EXHIBIT NO. 10.42.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("AGREEMENT") is entered into by and between
Carlos Alberini (the "EXECUTIVE") and GUESS ?, Inc., a Delaware corporation (the
"COMPANY") on November 8, 2000 and shall be effective on the date that is the
first day of the Executive's employment with the Company (the "EFFECTIVE DATE").
WHEREAS, the Company desires to provide for the service and employment
of the Executive with the Company and the Executive wishes to perform services
for the Company, all in accordance with the terms and conditions provided
herein.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, the Executive and the Company hereby agree as follows:
Section 1. EMPLOYMENT. The Company does hereby employ the Executive and
the Executive does hereby accept employment as President and Chief Operating
Officer of the Company. In the Executive's capacity as President and Chief
Operating Officer of the Company, the Executive shall be responsible for product
sourcing, logistics, retail sales (including store operations and real estate),
MIS, finance, human resources, legal (excluding litigation management) and
wholesale sales for the Company and all employees performing these
responsibilities will report to the Executive in a manner consistent with the
Company's open door policy. The Executive shall render such services on the
terms set forth herein and shall report to the Board of Directors of the Company
(the "BOARD") and the chief executive officer(s) of the Company. In addition,
the Executive shall have such other executive and managerial powers and duties
with respect to the Company and its subsidiaries as may reasonably be assigned
to him by the Board, to the extent consistent with his position and status as
set forth above. The Executive agrees to devote all of his working time and
efforts to the business and affairs of the Company and its subsidiaries and
shall not engage in activities that interfere in any way with such performance;
PROVIDED, HOWEVER, that this Agreement shall not be interpreted to prohibit the
Executive, subject to the prior approval of the Board, from serving on the board
of directors of any corporation other than the Company.
Section 2. TERM OF AGREEMENT. Subject to Section 6 hereof, the term
(the "TERM") of this Agreement shall commence on the Effective Date and shall
continue through December 31, 2003; PROVIDED that on December 31, 2003 and on
each succeeding December 31, the Term shall automatically be extended by an
additional year, unless the Executive or the Company shall give the other at
least one hundred and eighty (180) days' prior written notice to the contrary
("NONRENEWAL NOTICE").
Section 3. BOARD MEMBERSHIP. During the Term, the Company shall cause
the Executive to be nominated to the Board and, if elected by the stockholders
of the Company, the Executive shall serve as a member of the Board for the term
for which he is so elected.
Section 4. LOCATION. In connection with the Executive's employment by
the Company, the Executive shall be based at the headquarters of the Company in
Los Angeles, California, except for required travel for the Company's business.
Section 5. COMPENSATION.
(a) BASE SALARY. Effective as of the Effective
Date, the Company shall pay the Executive a base salary ("BASE SALARY") at an
initial rate of $650,000 per year, payable in accordance with the Company's
policies relating to salaried employees. Commencing on January 1, 2002, the
Executive's Base Salary may be increased by the Compensation Committee of the
Board (the "COMPENSATION COMMITTEE") in its sole discretion.
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(b) GUARANTEED BONUS. With respect to the
twelve-month period commencing on the Effective Date, the Company shall pay to
the Executive a guaranteed bonus in an amount equal to $260,000 (the "GUARANTEED
BONUS"), payable in two prorated installments to be paid on December 31, 2000
and on the last day of such twelve-month period; PROVIDED in each case that the
Executive has been continuously employed with the Company from the Effective
Date through the applicable installment payment date.
(c) TARGET BONUS. Commencing with the first full
fiscal year of the Company ("FISCAL YEAR") following the Effective Date, the
Executive shall have the opportunity to earn a bonus ("TARGET BONUS") for each
Fiscal Year as recommended by the Compensation Committee in accordance with the
Company's Executive Incentive Program, as it may be amended or otherwise
modified from time to time (the "EIP"); PROVIDED in each case that the Executive
has been continuously employed with the Company from the Effective Date through
the last day of such Fiscal Year. The amount of each Target Bonus shall be set
by the Compensation Committee and shall be no less than seventy percent (70%) of
Base Salary if the applicable "target" performance goals (as defined in the EIP
for such period) are met and no more than one hundred and twenty percent (120%)
of Base Salary if the applicable "stretch" performance goals (as defined in the
EIP for such period) are met. The criteria for determining the amount of any
Target Bonus and the bases upon which such Target Bonus shall be payable shall
be no less favorable to the Executive than those used for other senior executive
officers of the Company, such criteria and bases to be determined in the sole
discretion of the Compensation Committee. The amount of any Target Bonus to be
paid to the Executive with respect to the first Fiscal Year following the
Effective Date shall be reduced by the amount of the second installment of the
Guaranteed Bonus payable to the Executive pursuant to clause (b) above, but in
no event shall such amount be reduced to less than zero.
(d) RESTRICTED STOCK AND STOCK OPTIONS.
(i) RESTRICTED STOCK GRANT. Subject to
the approval of the Compensation Committee, the Executive shall be
granted, as of the Effective Date, 205,680 restricted shares of common
stock of the Company (the "RESTRICTED STOCK"). As a condition to
receiving such grant of the Restricted Stock, the Executive agrees to
pay to the Company in cash the aggregate amount of the par value of the
Restricted Stock. The Restricted Stock shall vest as follows: (A)
105,680 shares shall vest on January 1, 2002, (B) 50,000 shares shall
vest on January 1, 2003, and (C) 50,000 shares shall vest on January 1,
2004; PROVIDED in each case that the Executive has been continuously
employed with the Company from the Effective Date through the
applicable vesting date. Except as otherwise provided herein, the
Restricted Stock shall be subject to such terms and conditions as
generally apply to restricted stock granted to other senior executive
officers who participate in the Company's equity incentive plans as
such terms and conditions are in effect on the Effective Date.
(ii) INITIAL OPTION GRANT. Subject to
the approval of the Compensation Committee, the Executive shall be
granted, as of the Effective Date, an option (the "INITIAL OPTION") to
purchase 500,000 shares of common stock of the Company at a per share
exercise price equal to the fair market value of the common stock of
the Company on the Effective Date. The Initial Option shall vest and
become exercisable in annual installments at the rate of 100,000 shares
on each of December 31, 2001, December 31, 2002, December 31, 2003,
December 31, 2004 and December 31, 2005 (each such installment, an
"INITIAL OPTION INSTALLMENT"); PROVIDED in each case that the Executive
has been continuously employed with the Company from the Effective Date
through the applicable vesting date. Except as otherwise provided
herein, the Initial Option shall be subject to such terms and
conditions, including provisions regarding post-termination
exercisability, as generally apply to stock options granted to other
senior executive officers who participate in the Company's equity
incentive plans as such terms and conditions are in effect on the
Effective Date.
(iii) ADDITIONAL OPTION GRANTS.
Commencing on January 1, 2002, the Executive shall be eligible to
receive additional grants of stock options (each, an "ADDITIONAL OPTION
GRANT") to purchase shares of common stock of the Company as
recommended by the Compensation Committee in its sole discretion. Such
Additional Option Grants, if any, shall be subject to the terms and
conditions of any applicable
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stock option plans and programs of the Company and any other terms and
conditions recommended by the Compensation Committee.
(e) FRINGE BENEFITS. The Executive shall be
entitled to participate in any fringe, welfare and pension benefit and incentive
programs adopted from time to time by the Company for the benefit of, and which
generally apply to, its senior executive officers from time to time. The
Executive will receive four (4) weeks of paid vacation annually.
Section 6. TERMINATION.
(a) NOTICE OF TERMINATION.
(i) "NOTICE OF TERMINATION" shall mean
a notice that shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of
the Executive's employment under the provisions so indicated.
(ii) Any purported termination of the
Executive's employment by the Company or by the Executive shall be
communicated by written Notice of Termination to the other party hereto
in accordance with Section 13 hereof.
(b) DATE OF TERMINATION. "DATE OF TERMINATION"
shall mean:
(i) if the Executive's employment is
terminated because of death, the date of the Executive's death,
(ii) if the Executive's employment is
terminated by the Company because of Disability, ten (10) days
following the date on which the Notice of Termination is given, and
(iii) if the Executive's employment is
terminated for any other reason, the date specified in the Notice of
Termination, which shall not be a date prior to the date such Notice of
Termination is given.
(c) ACCRUED AND UNPAID BENEFITS. Following the
termination of the Executive's employment with the Company for any reason, the
Executive shall receive:
(i) any earned, but unpaid, Base
Salary,
(ii) any earned, but unpaid, Guaranteed
Bonus or Target Bonus for any Fiscal Year prior to the Fiscal Year in
which the Date of Termination occurs,
(iii) the cash equivalent of any accrued,
but unused, vacation,
(iv) any accrued employee benefits,
subject to the terms of the applicable employee benefit plans, and
(v) all additional amounts that the
Executive is entitled to receive pursuant to this Section 6 or Section
7 hereof.
(d) DEATH. In the event that the Executive's
employment hereunder is terminated by reason of the Executive's death, the
Company shall pay the amounts described in Section 6(c) above and all benefits
payable to the Executive, if any, under the terms of the Company's compensation
and benefit plans, programs or arrangements.
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(e) DISABILITY.
(i) "DISABILITY" shall have the same
meaning assigned to the same or a similar term pursuant to any
long-term disability plan or policy of the Company in effect as of the
Date of Termination. If no such plan or policy is then in effect,
"Disability" shall mean that as a result of the Executive's incapacity
due to physical or mental illness, the Executive shall have been absent
from the full-time performance of his duties with the Company for a
period of six (6) consecutive months or for any two hundred and ten
(210) days within any period of twelve (12) consecutive months and
that, in either case, the Executive shall not have returned to the
full-time performance of his duties within thirty (30) days following
the Company's delivery of a Notice of Termination pursuant to this
Section 6(e)(i).
(ii) The Executive's employment under
this Agreement may be terminated by the Company or the Executive for
Disability, subject to applicable law.
(iii) During any period prior to such
termination during which the Executive is absent from the full-time
performance of his duties with the Company due to Disability, the
Company shall continue to pay the Executive his Base Salary at the rate
in effect at the commencement of such period of Disability, and the
vesting of the Initial Option, Restricted Stock and other stock awards,
if any, shall continue.
(iv) Upon termination of the Executive's
employment for Disability, the Company shall pay all benefits payable
to the Executive, if any, under the terms of the Company's compensation
and benefit plans, programs or arrangements.
(f) TERMINATION FOR CAUSE. The Company may
terminate the Executive's employment under this Agreement for Cause (as defined
below) at any time.
(i) As used herein, termination for
"CAUSE" shall mean the occurrence of any of the following, as
determined by a two-thirds majority of the members of the Board
(excluding the Executive from such vote and the denominator):
(A) the willful failure,
neglect or refusal by the Executive to perform his duties
hereunder or to follow the instructions of the Board;
(B) any willful or grossly
negligent act, or commission of a felony or misdemeanor, by
the Executive that a two-thirds majority of the members of the
Board (excluding the Executive from such vote and the
denominator) determines may have the effect of materially
injuring (monetarily or otherwise) the business or reputation
of the Company or its subsidiaries or their affiliates or any
division thereof;
(C) the conviction of the
Executive of (or the pleading by Executive of guilty or NOLO
CONTENDRE to) any misdemeanor involving fraud or embezzlement
or any felony;
(D) any misappropriation or
embezzlement of the property of the Company or its
subsidiaries or their affiliates (whether or not a misdemeanor
or felony); and
(E) a material breach by the
Executive of any covenant in this Agreement.
(ii) The Company shall notify the
Executive of any event or circumstance described in subsection (i)
above, and, if curable, the Executive shall have thirty (30) days
following such notice within which to cure such event or circumstance.
If such event or circumstance is not cured within such period
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or is not curable, the Company may terminate the Executive for Cause at
any time following the end of such period or, if such event or
circumstance is not curable, at any time after such notice.
(iii) In the event of termination for
Cause, this Agreement shall terminate without further obligation by the
Company, except (A) for payment of the amounts described in Section
6(c) above, and (B) as otherwise may be provided under the terms of any
equity incentive award outstanding on the Date of Termination.
(g) TERMINATION BY THE EXECUTIVE.
(i) FOR GOOD REASON. The Executive may
terminate his employment hereunder for Good Reason (as defined below).
(ii) WITHOUT GOOD REASON. Except as
provided in clause (iii) below, the Executive may terminate his
employment hereunder voluntarily without Good Reason upon at least six
(6) months' prior notice to the Company.
(iii) FOLLOWING RECEIPT OF NONRENEWAL
NOTICE FROM THE COMPANY. In the event that the Executive receives a
Nonrenewal Notice from the Company, the Executive may terminate his
employment with the Company upon thirty (30) days' prior written notice
to the Company; PROVIDED that such Notice of Termination is received by
the Company no later than thirty (30) days prior to the expiration of
the Term.
(iv) "GOOD REASON".
(A) The Executive shall have
"GOOD REASON" to terminate his employment hereunder upon a
failure by the Company to substantially comply with any
material provision of this Agreement, without the Executive's
written consent, that has not been cured within thirty (30)
days after written notice of such noncompliance has been given
by the Executive to the Company.
(B) Failure by the Company to
substantially comply with any material provision of this
Agreement shall mean:
(1) an action by the
Company resulting in a diminution of the Executive's
title or authority,
(2) any reduction in
the Executive's Base Salary then in effect or the
failure to pay any other compensation described in
Section 5 hereof or Schedule 1 hereto that is due and
payable to the Executive,
(3) the Executive
being required by the Company to be based at any
office or location outside the Los Angeles,
California metropolitan area, or
(4) any failure by
the Company or any successor of the Company to comply
with and satisfy Section 18 hereof, including any
failure by any such successor to adopt and be bound
by this Agreement.
Section 7. SEVERANCE.
(a) PRIOR TO CHANGE IN CONTROL. If, prior to a
change in control of the Company as defined in the Company's 1996 Equity
Incentive Plan as in effect on the Effective Date ("CHANGE IN CONTROL"), the
Company terminates the Executive's employment with the Company for any reason
other than (i) the
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Executive's death or Disability or (ii) for Cause, or if the Executive
terminates his employment with the Company for Good Reason, the Executive shall
enter into a consulting arrangement with the Company pursuant to which the
Executive shall provide consulting services to the Company for up to forty (40)
hours per month for a period of eighteen (18) months commencing on the Date of
Termination (the "CONSULTING PERIOD"). During the Consulting Period, the
Executive shall be entitled to the following:
(i) the Company shall pay to the
Executive on an annualized basis the Executive's Base Salary then in
effect, payable in accordance with the Company's policies relating to
salaried employees;
(ii) any benefits to which the Executive
would otherwise be entitled pursuant to Schedule 1 hereto with respect
to the Relocation Loan (as defined in Schedule 1 hereto) as if the
Executive remained in active employment with the Company during the
Consulting Period;
(iii) on the Date of Termination, the
Company shall pay to the Executive an amount equal to the portion of
any Guaranteed Bonus for the expired portion of the Fiscal Year in
which the Date of Termination occurs;
(iv) any portion of the Restricted Stock
that is not vested on the Date of Termination shall vest on such date;
(v) any portion of the Initial Option
that is not vested on the Date of Termination shall vest and be
exercisable during the Consulting Period at the rate of 8,334 shares
per month commencing with the month following the vesting date of the
Initial Option pursuant to Section 5(d)(ii) hereof that immediately
preceded the Date of Termination and continuing through the month in
which the Consulting Period ends as if the Executive remained in active
employment with the Company during the Consulting Period;1 and
(vi) any portion of any Additional Grant
that is not vested on the Date of Termination shall vest and be
exercisable during the Consulting Period on a monthly basis based on
the number of months remaining in the original vesting schedule as of
the Date of Termination for such Additional Grant as if the Executive
remained in active employment with the Company during the Consulting
Period.
(b) FOLLOWING CHANGE IN CONTROL. If, following a
Change in Control and prior to the expiration of the Term, the Company
terminates the Executive's employment with the Company for any reason other than
(i) the Executive's death or Disability or (ii) for Cause, or if the Executive
terminates his employment with the Company for Good Reason, the Executive shall
be entitled to the following:
(i) the Company shall pay to the
Executive a lump sum in an amount equal to two hundred percent (200%)
of:
- ----------
(1)This provision is intended to work as follows:
DATE OF TERMINATION LAST VESTING DATE TOTAL MONTHS TO VEST TOTAL SHARES VESTED
- ------------------- ----------------- -------------------- -------------------
1/15/03 12/31/02 1 + 18 months 19 x 8,334 = 158,346
6/15/03 12/31/02 6 + 18 months 24 x 8,334 = 200,016
11/15/03 12/31/02 11 + 18 months 29 x 8,334 = 241,686
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(A) the Executive's Base
Salary then in effect, and
(B) the Target Bonus payable
to the Executive with respect to the Fiscal Year immediately
preceding the Date of Termination or the Target Bonus payable
to the Executive with respect to the Fiscal Year immediately
preceding the Change in Control, whichever is higher (for the
avoidance of doubt, the Target Bonus for the Fiscal Year
ending December 31, 2001 includes the portion of the
Guaranteed Bonus paid to the Executive during such Fiscal
Year);
(ii) any benefits to which the Executive
would otherwise be entitled pursuant to Schedule 1 hereto with respect
to the Relocation Loan (as defined in Schedule 1 hereto) as if the
Executive remained in active employment with the Company for a period
of two (2) years commencing on the Date of Termination;
(iii) any portion of the Restricted Stock
that is not vested on the date immediately prior to the Date of
Termination shall immediately vest as of the Date of Termination;
(iv) any Initial Option Installment that
has not vested immediately prior to the Date of Termination shall vest
and be exercisable;
(v) any portion of any Additional Grant
that has not vested immediately prior to the Date of Termination shall
vest and be exercisable; and
(vi) if the aggregate of all payments or
benefits made or provided to the Executive under this Agreement and
under all other plans and programs of the Company (the "AGGREGATE
PAYMENT") is determined to constitute a parachute payment, as such term
is defined in Section 280G(b)(2) of the Internal Revenue Code of 1986,
as amended (the "CODE"), the Company shall pay to the Executive, prior
to the time any excise tax imposed by Section 4999 of the Code (the
"EXCISE TAX") is payable with respect to such Aggregate Payment, an
additional amount that, after the imposition of all income, excise and
other taxes thereon, is equal to the Excise Tax on the Aggregate
Payment. The determination of whether the Aggregate Payment constitutes
a Parachute Payment and, if so, the amount to be paid to the Executive
and the time of payment pursuant to this Section 7(b)(v) shall be made
by the accounting firm that was, immediately prior to the Change in
Control, the Company's independent auditor.
(c) NONRENEWAL BY THE COMPANY. Upon the
expiration of the Term following the Executive's receipt of a Nonrenewal Notice
from the Company (PROVIDED that the Executive's last day of employment with
Company is the last day of the Term) or on the date on which the Executive
voluntarily terminates his employment with the Company pursuant to Section
6(g)(iii) hereof, if earlier, the Executive shall enter into a consulting
arrangement with the Company pursuant to which the Executive shall provide
consulting services to the Company pursuant to the same terms and conditions as
set forth in Section 7(a) hereof except that the "Consulting Period" shall be
twelve (12) months rather than eighteen (18) months.
(d) MITIGATION. As a condition to receiving any
payments or benefits pursuant to Section 7(c) hereof, the Executive agrees to
mitigate the amount of any payment or benefit provided for pursuant to such
Section 7(c), including, without limitation, by seeking comparable employment,
and any amounts earned by the Executive from any employment or any consulting
arrangement during the Consulting Period may be deducted from the payments
described in Section 7(c) hereof. The obligation to mitigate and the deduction
from payment described in this Section 7(d) does not apply to payments and
benefits described in Sections 7(a) and 7(b) hereof.
(e) RELEASE OF EMPLOYMENT CLAIMS. The Executive
agrees, as a condition to receipt of the payments and benefits provided for in
this Section 7, that he will execute a release agreement, in a form satisfactory
to the Company, releasing any and all claims arising out of the Executive's
employment (other than enforcement of this Agreement and the Executive's rights
under any of the Company's incentive compensation and employee benefit plans and
programs to which he is entitled under this Agreement).
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Section 8. CONFIDENTIALITY; NON-COMPETITION.
(a) CONFIDENTIALITY. "CONFIDENTIAL INFORMATION"
shall mean non-public information about the Company and its subsidiaries or
their affiliates, and their respective clients and customers that is not
disclosed by the Company or its subsidiaries for financial reporting purposes
and that was learned by the Executive in the course of his employment with the
Company, including, without limitation, any proprietary knowledge, trade
secrets, data, formulae, information and client and customer lists and all
papers, resumes and records (including computer records) of the documents
containing such Confidential Information. Confidential Information does not
include information regarding the Executive's own compensation and benefits.
(i) The Executive acknowledges that in
his employment with the Company, he will occupy a position of trust and
confidence. The Executive shall not, except as may be required to
perform his duties hereunder or as required by applicable law, without
limitation in time or until such information shall have become public
other than by the Executive's unauthorized disclosure, disclose to
others or use, whether directly or indirectly, any Confidential
Information.
(ii) The Executive acknowledges that all
Confidential Information is specialized, unique in nature and of great
value to the Company and its subsidiaries, and that such Confidential
Information gives the Company and its subsidiaries a competitive
advantage. The Executive agrees to deliver or return to the Company, at
the Company's request at any time or upon termination or expiration of
his employment or as soon thereafter as possible, all documents,
computer tapes and disks, records, lists, data, drawings, prints, notes
and written information (and all copies thereof) furnished by or on
behalf of or for the benefit of the Company and its subsidiaries or
their affiliates or prepared by the Executive during the term of his
employment by the Company, but excluding documents relating to the
Executive's own compensation and benefits.
(b) NON-COMPETITION. During the Executive's
employment with the Company and during the Consulting Period, if any, the
Executive shall not, directly or indirectly, whether as owner, consultant,
employee, partner, venturer, agent, through stock ownership, investment of
capital, lending of money or property, rendering of services, or otherwise,
compete with the Company or any of its affiliates or subsidiaries in any
business in which any of them is engaged while the Executive is employed with
Company, including, without limitation, the design, manufacture and/or
distribution of men's, women's or children's sportswear or accessories (such
businesses are hereinafter referred to as the "BUSINESS"), or assist, become
interested in or be connected with any corporation, firm, partnership, joint
venture, sole proprietorship or other entity which so competes with the
Business. During the Consulting Period, if any, the restrictions imposed by this
Section 8(b) shall not apply to any business in which the Company or its
affiliates and subsidiaries were not engaged at the time of termination of the
Executive's employment hereunder or to any geographic area in which the Company
or its affiliates and subsidiaries were not engaged in the Business at the time
of termination.
(c) NON-SOLICITATION OF CUSTOMERS AND SUPPLIERS.
During the Executive's employment with the Company and during the Consulting
Period, if any (and, in the event of a termination by the Company for Cause or
by the Executive other than for Good Reason, for a period of twenty-four (24)
months following the Date of Termination), the Executive shall not, directly or
indirectly, influence or attempt to influence customers or suppliers of the
Company or any of its subsidiaries or their affiliates to divert their business
to any business, individual, partner, firm, corporation or other entity that is
then a direct competitor of the Company or its subsidiaries or their affiliates
(each such competitor, a "COMPETITOR OF THE COMPANY"); PROVIDED, HOWEVER, that
if the Executive is employed by customers or suppliers of the Company following
his termination of employment and such employment does not violate Section 8(b)
hereof, the normal execution of his duties in connection with such employment
shall not constitute a violation of this Section 8(c).
(d) NON-SOLICITATION OF EMPLOYEES.
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(i) The Executive recognizes that he
will possess confidential information about other employees of the
Company and its subsidiaries or their affiliates relating to their
education, experience, skills, abilities, compensation and benefits,
and interpersonal relationships with customers of the Company and its
subsidiaries or their affiliates.
(ii) The Executive recognizes that the
information he will possess about these other employees is not
generally known, is of substantial value to the Company and its
subsidiaries in developing their business and in securing and retaining
customers, and will be acquired by him because of his business position
with the Company and its subsidiaries.
(iii) The Executive agrees that, during
the Executive's employment with the Company and during the Consulting
Period, if any (and, in the event of a termination by the Company for
Cause or by the Executive other than for Good Reason, for a period of
twenty-four (24) months following the Date of Termination) he will not,
directly or indirectly, solicit or recruit any employee of the Company
or its subsidiaries or their affiliates for the purpose of being
employed by him or by any Competitor of the Company on whose behalf he
is acting as an agent, representative or employee and that he will not
convey any such confidential information or trade secrets about other
employees of the Company and its subsidiaries or their affiliates to
any other person.
(e) REMEDIES. In the event of a breach or
threatened breach of this Section 8, the Executive agrees that the Company shall
be entitled to apply for injunctive relief in a court of appropriate
jurisdiction to remedy any such breach or threatened breach, the Executive
acknowledging that damages would be inadequate and insufficient. Without
limiting the foregoing and in addition to whatever other rights and remedies the
Company may have at equity or in law, if the Executive breaches any of the
provisions contained in this Section 8, all benefits and payments payable
pursuant to Section 7 hereof shall cease and all outstanding stock options,
Restricted Stock or other stock awards shall be forfeited.
(f) SURVIVAL OF PROVISIONS. The obligations
contained in this Section 8 shall, to the extent provided in this Section 8,
survive the termination or expiration of the Executive's employment with the
Company and, as applicable, shall be fully enforceable thereafter in accordance
with the terms of this Agreement. If it is determined by a court of competent
jurisdiction in any state that any restriction in this Section 8 is excessive in
duration or scope or is unreasonable or unenforceable under the laws of that
state, it is the intention of the parties that such restriction may be modified
or amended by the court to render it enforceable to the maximum extent permitted
by the law of that state.
Section 9. NO VIOLATION OF THIRD-PARTY RIGHTS.
(a) The Executive hereby represents, warrants
and covenants to the Company that the Executive:
(i) shall not, in the course of his
employment or his consultancy with the Company, infringe upon or
violate any proprietary rights of any third party (including, without
limitation, any third party confidential relationships, patents,
copyrights, mask works, trade secrets or other proprietary rights);
(ii) is not a party to any agreements
with third parties that are not publicly available that prevent him
from fulfilling the terms of employment and the obligations of this
Agreement or which would be breached as a result of his execution of
this Agreement; and
(iii) agrees to respect any and all valid
obligations which he may now have to prior employers or to others
relating to confidential information, inventions or discoveries which
are the property of those prior employers or others, as the case may
be.
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(b) The Executive agrees to indemnify and save
harmless the Company from any loss, claim, damage, cost or expense of any kind
(including, without limitation, attorney fees) to which the Company may be
subjected by virtue of a breach by the Executive of any of the foregoing
representations, warranties and covenants.
Section 10. RELOCATION EXPENSES. The Executive shall be entitled to the
relocation benefits described in SCHEDULE 1 hereto.
Section 11. REIMBURSEMENT FOR LEGAL FEES. The Company shall reimburse
the Executive for reasonable legal fees and expenses incurred by the Executive
in connection with the negotiation and preparation of this Agreement; PROVIDED
that the aggregate amount of such reimbursement shall not exceed $20,000 and the
Executive has furnished to the Company evidence satisfactory to the Company
relating to such legal fees and expenses.
Section 12. WITHHOLDING; OFFSET.
(a) The Company shall make such deductions and
withhold such amounts from each payment made to the Executive hereunder as may
be required from time to time by law, governmental regulation or order.
(b) The Company shall have the right to offset
any amounts that are due and payable to the Company by the Executive upon or
after the Executive's termination of employment with the Company for any reason
from any amounts due to the Executive pursuant to this Agreement; PROVIDED,
HOWEVER, that the Company may not offset any amounts payable by the Executive to
the Company in connection with any breach of contract or breach of fiduciary
duty claim that has not been entered as a judgment.
Section 13. NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be given by hand, facsimile or
first-class mail, certified or registered with return receipt requested, and
shall be deemed to have been duly given three (3) days after mailing or
twenty-four (24) hours after transmission of a facsimile to the respective
persons named below:
(a) IF TO THE COMPANY: GUESS ?, Inc.
1444 South Alameda Street
Los Angeles, California 90021
Attention: Maurice Marciano
Facsimile: (213) 744-7840
(b) IF TO THE EXECUTIVE: Carlos Alberini
11 Boulder Trail
Chappaqua, New York 10514
Either party may change such party's address for notices by notice duly given
pursuant hereto.
Section 14. DISPUTE RESOLUTION; ATTORNEYS' FEES. The Company and the
Executive agree that any dispute arising as to the parties' rights and
obligations hereunder, other than with respect to Section 8 hereof, shall be
resolved by binding arbitration in accordance with the rules of the American
Arbitration Association then in effect. Each party shall have the right, in
addition to any other relief granted by such arbitrator (or by any court with
respect to relief granted with respect to Section 8 hereof), to reasonable
attorneys' fees based on a determination by the arbitrator (or, with respect to
Section 8 hereof, the court) of the extent to which each party has prevailed as
to the material issues raised in determination of the dispute.
Section 15. GOVERNING LAW. This Agreement and the legal relations thus
created between the parties hereto shall be governed by and construed under and
in accordance with the laws of the State of California, without regard to its
conflicts of law principles.
10
Section 16. TERMINATION OF PRIOR AGREEMENTS. This Agreement terminates
and supersedes any and all prior agreements and understandings between the
parties with respect to the Executive's employment and compensation by the
Company.
Section 17. WAIVER; MODIFICATION. Failure to insist upon strict
compliance with any of the terms, covenants or conditions hereof shall not be
deemed a waiver of such term, covenant or condition, nor shall any waiver or
relinquishment of, or failure to insist upon strict compliance with, any right
or power hereunder at any one or more times be deemed a waiver or relinquishment
of such right or power at any other time or times. This Agreement shall not be
modified in any respect except by a writing executed by each party hereto.
Section 18. ASSIGNMENT; SUCCESSORS. This Agreement is personal in its
nature and neither of the parties hereto shall, without the consent of the
other, assign or transfer this Agreement or any rights or obligations hereunder;
PROVIDED that, in the event of the merger, consolidation, transfer or sale of
all or substantially all of the assets of the Company with or to any other
individual or entity or any similar event, this Agreement shall, subject to the
provisions hereof, be binding upon and inure to the benefit of such successor
and such successor shall discharge and perform all the promises, covenants,
duties and obligations of the Company hereunder.
Section 19. SEVERABILITY. Except as provided in Section 8(f) hereof, in
the event that a court of competent jurisdiction determines that any portion of
this Agreement is in violation of any statute or public policy, only the
portions of this Agreement that violate such statute or public policy shall be
stricken. All portions of this Agreement that do not violate any statute or
public policy shall continue in full force and effect. Furthermore, any court
order striking any portion of this Agreement shall modify the stricken terms as
little as possible to give as much effect as possible to the intentions of the
parties under this Agreement.
Section 20. HEADINGS. Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose.
Section 21. COUNTERPARTS. This Agreement may be executed in
counterparts (including counterparts delivered by facsimile), each of which
shall be deemed an original, but all of which taken together shall constitute
one and the same instrument.
Section 22. REPRESENTATION BY COUNSEL; INTERPRETATION. Each party
acknowledges that it has had the opportunity to be represented by counsel in
connection with this Agreement. Any rule of law or any legal decision that would
require interpretation of any claimed ambiguities in this Agreement against the
party that drafted it has no application and is expressly waived.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed by its duly authorized officer and the Executive has hereunto signed
this Agreement on the date first above written.
GUESS ?, INC.
----------------------------------------
By:
Title:
CARLOS ALBERINI
----------------------------------------
Carlos Alberini
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SCHEDULE 1
RELOCATION POLICY
1. REIMBURSEMENT FOR RELOCATION EXPENSES. The Company shall reimburse the
Executive in accordance with the Company's relocation policy for the
Executive's reasonable relocation-related costs and expenses; PROVIDED
that the Executive has furnished to the Company evidence satisfactory
to the Company relating to such costs and expenses.
2. RELOCATION LOAN FOR PURCHASE OF PRIMARY RESIDENCE. Upon request by the
Executive, the Company shall advance an aggregate amount of up to
$1,000,000 to be used by the Executive solely for the purchase of a
primary residence ("RESIDENCE") for the Executive in the Los Angeles,
California metropolitan area (the total amount advanced hereinafter
referred to as the "RELOCATION LOAN"). The Relocation Loan shall be
evidenced by a separate agreement, the terms of which shall be
consistent with this Paragraph 2.
a. The unpaid principal balance of the Relocation Loan shall
accrue interest at the fixed rate of seven percent (7%) per
annum (calculated using the actual daily principal balance
outstanding and on the basis of a 365-day or 366-day year);
PROVIDED that no interest shall accrue while the Executive is
continuously employed with the Company.
b. The Relocation Loan shall be secured by a first or second
mortgage on the Residence.
c. On each of the sixth, seventh, eighth, ninth and tenth
anniversaries of the Effective Date (subject to the Executive
being continuously employed with the Company from the
Effective Date through each such anniversary date), an amount
equal to twenty-percent (20%) of the Relocation Loan shall be
deemed to have been repaid.
d. Upon termination of the Executive's employment with the
Company by the Executive for Good Reason, by the Company
without Cause or by the Executive pursuant to Section
6(g)(iii) of the Agreement, the Executive shall repay the
entire unpaid principal balance of the Relocation Loan (plus
interest accrued thereon from the Date of Termination) by the
earlier of (i) twelve (12) months following the Date of
Termination, and (ii) the date of the closing of the sale of
the Residence (directly from the escrow proceeds), unless the
Compensation Committee, in its sole discretion, waives the
Executive's obligation to repay all or any portion of such
amount.
e. Upon termination of the Executive's employment with the
Company by the Company for Cause, the Executive shall repay
the entire unpaid principal balance of the Relocation Loan
(plus interest accrued thereon from the Date of Termination)
by the earlier of (i) six (6) months following the Date of
Termination, and (ii) the date of the closing of the sale of
the Residence (directly from the escrow proceeds).
f. Upon termination of the Executive's employment with the
Company for any other reason not described in clauses c. and
d. above, the Executive shall repay the entire unpaid
principal balance of the Relocation Loan (plus interest
accrued thereon from the Date of Termination) by the earlier
of (i) thirty (30) days following the Date of Termination, and
(ii) the date of the closing of the sale of the Residence
(directly from the escrow proceeds).
g. The Company shall have the right to offset any amounts due and
payable by the Executive to the Company with respect to the
Relocation Loan against any amounts then due to the Executive
pursuant to this Agreement.
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- ------------------ COMPARISON OF FOOTNOTES ------------------
- -FOOTNOTE 1-
This provision is intended to work as follows:
DATE OF TERMINATION LAST VESTING DATE TOTAL MONTHS TO VEST TOTAL SHARES VESTED
- ------------------- ----------------- -------------------- -------------------
1/15/03 12/31/02 1 + 18 months 19 x 8,334 = 158,346
6/15/03 12/31/02 6 + 18 months 24 x 8,334 = 200,016
11/15/03 12/31/02 11 + 18 months 29 x 8,334 = 241,686
13