September 22, 2003 EXHIBIT 10(g) 6 pages
Mr. Raymond J. Smith
72 Hickory Lane
Oakdale, NY 11769
Dear Mr. Smith:
The purpose of this letter is to confirm your continuing employment with
Lakeland Industries Inc. on the following terms and conditions:
1. THE PARTIES
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This is an agreement between Raymond J. Smith residing at 72 Hickory Lane,
Oakdale, New York 11769 (hereinafter referred to as "you") and Lakeland
Industries, Inc., a Delaware corporation, with principal place of business
located at 711-2 Koehler Avenue, Ronkonkoma, NY 11779-7410 (hereinafter the
Company).
2. TERM; RENEWAL
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The term of the agreement shall be for a 3 year period from February 1, 2004
through and including January 31, 2006 which term shall be automatically renewed
for a maximum of 2 successive annual periods unless either party notifies the
other 120 days prior to the expiration of the original term or renewal thereof,
that the agreement will not be renewed.
3. CAPACITY
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You shall be employed in the capacity of Chairman of the Board of Lakeland
Industries, Inc. You shall be nominated for election to serve as a member of the
Board of Directors of the Company, so long as this agreement shall remain in
effect.
You agree to devote your full time and attention and best efforts to the
faithful and diligent performance of your duties to the Company and shall serve
and further the best interests and enhance the reputation of the company to the
best of your ability.
4. COMPENSATION
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As full compensation for your services you shall receive following from the
Company:
(a) A base annual salary of $250,000 year payable bi-weekly (the "Base
Salary"); and
(b) Payments, compensation, and reimbursements equal to such payments,
compensation and reimbursements as are paid to the members of the
Board of Directors from time to time; and
(c) Participation when eligible in any of the Company's Pension, profit
Sharing Plans, medical and disability plans, stock appreciation rights
plan or stock option plans and ESOP. 401(K) plans when any such plans
become effective; and
(d) A group term life policy insuring your life, the beneficiary of whom
shall be designated by you, with a face amount of no less than
$500,000.00, provided you meet the insurance company's reasonable
medical qualifications; and
(e) The use of an appropriate new luxury automobile furnished by the
Company on a bi-annual basis, or an automobile allowance to be paid to
you in an amount sufficient to pay for the lease of such an
automobile; and
(f) Reimbursement for any dues and expenses incurred by you that are
necessary and proper in the conduct of the Company's business.
5. NON-COMPETITION
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During the term of this Agreement and for one year thereafter you shall not
either directly or indirectly as an agent, employee, partner stockholder,
director, investor or otherwise engage in any activities in competition with the
activities of the Company.
6. CONFIDENTIALITY
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Except as require in your duties to the Company you shall not at any time during
your employment and for a period of twelve months thereafter, directly or
indirectly, use or disclose any confidential information relating to the Company
or its business which is disclosed to you or known by you as a consequence of or
through your employment by the Company. As used in this Agreement, "confidential
information" means any information relating to the business of the Company which
is not publicly known or readily ascertainable by proper means.
7. CHANGE IN CONTROL
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Upon the occurrence of a change in control (as hereinafter defined) you shall
have the right to terminate at your option this agreement within 30 days after
the occurrence of such change in control (provided such thirty day period shall
not begin to run until you have actual knowledge of the change in control). Upon
the effective date of such termination, you shall be entitled to receive a lump
sum severance payment in an amount equal to the greater of the present value
(determined by applying a discount factor of 6% effective annual interest rate)
of (i) the balance of your Base Salary of the Term of the Agreement, plus your
estimated Annual Bonus for the fiscal year in which such termination occurs, or
(ii) two times your Base Salary, plus your estimated Annual Bonus for the fiscal
year in which such termination occurs. The estimated amount of your Annual Bonus
in this Agreement for the fiscal year during which the termination occurs shall
be determined in good faith by the Compensation Committee of the Board of
Directors of the Company based upon the Company's results of operations for the
partial fiscal year through the effective date of the termination and the
Company's historical results of operations.
A "change of control" shall have occurred (i) upon any person or group becoming
directly or indirectly, the beneficial owner of 50% or more of the Company's
then outstanding securities or (ii) upon the disposition by the Company (whether
direct or indirect by sale of assets or stock, merger, consolidation or
otherwise) of all or substantially all of the company's business and/or assets.
For purposes of this paragraph, "person" means such term as used in Section
13(d) (1) of the Securities Exchange Act of 1934 (the "1934 Act"); "beneficial
owner" means such term as defined in Rule 13d-3 of the SEC under the 1934 Act;
and "group" means such term as defined in Section 13(d) (3) of the 1934 Act.
In the event of a disposition by the Company (where direct or indirect by sale
of assets or stock, merger, consolidation or otherwise) of all or substantially
all of its business and/or assets the Company will require any successor to
expressly assume and agree to perform this agreement in the same manner and to
the same extent that the company would be required to perform, if no such
disposition had taken place.
8. TERMINATION
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You or the Company may terminate your employment prior to the end of the Term
for any reason upon written notice to the other party in accordance with the
following provisions;
a) Termination of Employment for Cause or Without Good Reason. If, before
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the end of the Term, the Company terminates your employment for Cause (as
defined below) or you quit without Good Reason (as defined below), the Company
shall pay you, within thirty days of such termination, (i) that portion of your
Base Salary which is accrued but unpaid as of the date of such termination and
(ii) any other benefits accrued prior to the date of termination under this
Agreement but you will not be entitled to receive any portion of your Annual
Bonus for one year in which said termination shall set forth the effective date
of your termination (which shall not be prior to the date such notice is
delivered) and a reasonable detailed description of the facts and circumstances
giving rise to the Cause for termination."
"Cause" means a written finding by the Board or the Company, acting through
an authorized officer, that you were convicted of, or entered a plea of nolo
contendere to a charge of, committing a felony involving moral turpitude or you
were grossly negligent in performing your duties and responsibilities (other
than on account of "total disability" as referred to in sub-Paragraph (c)
below), or that you committed an act of fraud, embezzlement, or gross neglect of
duty. Cause shall not mean (i) the exercise of bad judgment alone, (ii)
negligence not amounting to gross negligence (iii) any act or omission believed
by you in good faith to have been in or not opposed to the interest of the
company (without intent of you to gain therefrom directly or indirectly, a
profit to which you were not legally entitled), or (iv) any act or omission with
respect to which notice of the termination of your employment is given to you
more than 12 months after the earliest date on which any member of the Board who
is not a party to the act or omission, knew of such act or omission.
"Good Reason" means any of the following events: (i) the assignment to you of
any duties materially and adversely inconsistent with your position
responsibilities duties, or officerships, as required under Section 3 hereof,
(ii) the liquidation or dissolution of the company, (iii) any material breach by
the Company of the provisions of this Agreement, or (iv) the Company's
requiring, without your written consent, that you be based in an office or
location other than the Company's principal business location at Ronkonkoma, New
York.
b) Death. Your employment shall terminate on the date of your death. Your
Base Salary (as in effect on the date of death) shall continue through the last
day of the month in which your death occurs. Payment of your Base Salary shall
be made to your estate or your beneficiary as designated in writing to the
Company. Your estate or designated beneficiaries as applicable, shall also
receive a pro-rata portion of the Annual Bonus, if any, determined for the
fiscal year up to and including the date of death which shall be determined in
good faith by the compensation Committee of the Board of Directors. Your
beneficiaries shall also be entitled to all other benefits generally paid by the
company on an employee's death.
c) Total Disability. Your employment shall terminate if you become totally
disabled. You shall be deemed to be totally disabled if you are unable, for any
reason, to substantially perform your duties to the Company for a period of
(ninety consecutive days). In the event of your Total Disability, you shall
receive 100% of your Base Salary for the greater of (i) the remainder of the
Term of this Agreement or (ii) one year. Such amount shall be reduced by the
amount of any disability insurance.
d) Termination Without Cause or Good Reason. If, before the end of the
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Term, the company terminates your employment without Cause or you quit wit Good
Reason, the Company shall:
(i) Pay you within 10 days of the termination of your employment, a lump
sum amount equal to the then present value of your Base Salary (as in effect on
the date of your termination) though the remainder of the Term, determined by
applying a discount factor of 6% effective annual interest rate.
(ii) Pay you within 10days of the termination of your employment, a lump
sum amount equal to a pro-rata portion of the Annual Bonus, if any, that you
would have received for the fiscal year in which such termination occurs
determined in good faith by the Compensation Committee of the Board of
Directors.
(iii) Pay you within 10 days of the termination of your employment, a slump
sum amount equal to the present value of (three) times your Base Salary (as in
effect of the date of your termination), determined by applying a discount
factor of 6% effective annual interest rate.
(iv) Continue to provide to you for a period equal to the greater of (i)
the remainder of the Term of this Agreement or (ii) one year, benefits under any
of the following welfare benefit programs of the company as in effect from time
to time during the Term of this Agreement: long term disability insurance, life
insurance, accidental death and dismemberment insurance and health and major
medical benefits, pursuant to COBRA.
9. TAX GROSS-UP
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If is determined that as a result of any payments provided to you under this
Agreement, you will incur an excise tax under Section 4999 of the Internal
Revenue Code on "excess parachute payments" or any similar tax payable under any
federal, state, local or other law, as a result of payments made to you under
this Agreement, then the Company shall pay to you an amount necessary to
reimburse you for such excise taxes and the tax due on such reimbursement
payments. All determinations and payments hereunder shall be made in adequate
time to permit you to prepare and file your individual tax returns in a timely
fashion.
10. MITIGATION
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In no event shall you, subsequent to the termination of your employment, be
obligated to seek other employment arrangements or take any other action by way
of mitigation of the amounts payable to you under and provision of this
Agreement, nor shall the amount of any payment, hereunder be reduced by any
compensation earned by you as a result of a subsequent contract with or
employment by another employer.
11. ASSIGNMENT AND SUCCESSORS
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The rights and obligations of the company under this Agreement shall inure to
the benefit of and shall be binding upon the successors of the company. This
Agreement may not be assigned by the Company unless the assignee or successor
(as the case may be) expressly assumes the Company's obligations hereunder in
writing or unless, in the opinion of counsel for the company addressed to you,
the obligations of the Company by operation of law. In the event of a successor
to the Company or the assignment of the Agreement the term "Company" as used
herein shall include any such successor or assignee.
12. CONSTRUCTION
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This Agreement shall be interpreted and construed in accordance with the laws of
the State of New York without regard to its choice of law principles. In case of
any dispute or disagreement arising out of or connected with this Agreement, the
parties hereto hereby agree to resolve such dispute or disagreement in a court
of competent jurisdiction within the State of New York. The Company shall
reimburse you for all reasonable legal fees and expenses incurred by you in an
effort to establish entitlement to fees and benefits under this Agreement. If
you do not prevail (after exhaustion of all available judicial remedies), and a
court of competent jurisdiction decides that you had no reasonable basis for
bringing you action or there was an absence of good faith for bring your action
no further reimbursement for legal fees and expenses shall be due to you and you
shall repay the Company for any amounts previously paid by the Company. It is
understood that in all events, the Company shall be responsible for its own
legal fees and expenses incurred for any action brought hereunder.
13. NOTICES
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Any notices required to begin under this Agreement shall unless otherwise agreed
to by you and the Company be in writing and by certified mail, return receipt
requested and mailed to the Company at its headquarters at 711-2 Koehler Avenue,
Ronkonkoma, NY 11779-7410 or to you at your home address at 72 Hickory Lane,
Oakdale, NY 11769.
14. WAIVER OR MODIFICATION
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No waiver or modification in whole or in part of this agreement or any term or
condition hereof shall be effective against any party unless in writing and duly
signed by the party sought to be bound. Any waiver of any breach of any
provision hereof or right or power by any party on one occasion shall not be
construed as a waiver of or a bar to the exercise of such right or power on any
other occasion or as a waiver of any subsequent breach.
15. SEPARABILITY
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Any provision of this agreement which is unenforceable or invalid in any respect
in any jurisdiction shall be ineffective in such jurisdiction to the extent that
it is unenforceable or invalid without effecting the remaining provisions
hereof, which shall continue in full force and effect. The unenforceability or
invalidity of any provision of the agreement in one jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
16. HEADINGS
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The headings contained in this agreement are for convenience only and shall not
effect, restrict or modify the interpretation this agreement.
LAKELAND INDUSTRIES, INC.
/s/Raymond J. Smith /s/ John J. Collins
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Raymond J. Smith By: John J. Collins
President
/s/ Eric O. Hallman
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By: Eric O. Hallman
/s/ W. James Raleigh
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By: W. James Raleigh
Board of Directors
Compensation Committee