EXHIBIT 99.4(c)
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into by and between PremiumWear, Inc., a
Delaware corporation with its principal offices at 5500 Feltl Road, Minnetonka,
Minnesota (the "Company"), and James S. Bury, residing at New Hope, Minnesota
(the "Executive"), and shall be effective as of this 26th day of May, 2000.
WHEREAS, pursuant to an Agreement and Plan of Merger dated as of May 26,
2000 (the "Merger Agreement"), by and among New England Business Service, Inc.,
a Delaware corporation ("NEBS"), Penguin Sub, Inc., a Delaware corporation and a
wholly-owned subsidiary of NEBS ("Sub"), and the Company, Sub will offer to
purchase shares of the Company's common stock pursuant to a tender offer, and
upon successful completion of the tender offer, will thereafter be merged with
and into the Company (the "Merger"), with the Company being the surviving
corporation in the Merger and a wholly-owned subsidiary of NEBS; and
WHEREAS, the Company desires to secure the continuation of the Executive's
services as Chief Financial Officer following the Merger, and the Executive
desires to perform such services for the Company, on the terms and conditions as
set forth herein;
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein contained, the parties hereto
agree as follows:
1. Term. This Agreement shall be effective from and after the date hereof
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and shall continue in effect through June 30, 2004. Except as expressly
provided herein, this Agreement shall neither impose nor confer any further
rights or obligations on the Company or the Executive on the day after the end
of the term of this Agreement. Expiration of the term of this Agreement of
itself and without subsequent action by the Company or the Executive shall not
end the employment relationship between the Company and the Executive.
2. Duties. The Executive is engaged to and shall render services in the
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position of Chief Financial Officer of the Company through June 30, 2002;
thereafter, and for the remainder of the term hereunder, the Executive shall
render services as requested on a part-time basis (up to 30 hours a week) within
the scope of his expertise and experience. In this regard, the Executive shall
perform such services as are appropriate to his position and such other services
that are assigned to him from time to time by such person as the Board of
Directors may designate from time to time (the "Designated Person"). During the
period from the date hereof through June 30, 2002, the Executive will devote his
full time, attention and skill to the business and affairs of the Company during
normal working hours, and at all times during the term hereof he will use his
best efforts to advance the Company's interests, and will not engage in outside
business activities, except for managing passive investments, serving on other
corporate, civic or charitable boards or committees and providing tax
preparation services for individuals consistent
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with his past practice, provided that such permitted outside activities do not
significantly interfere with the performance of his duties hereunder.
3. Compensation.
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(a) Base Salary. During the term of the Executive's employment hereunder
prior to June 30, 2002, the Company will pay to the Executive an annual base
salary of $136,000, such salary to be paid in conformity with the Company's
policies relating to salaried employees. During the term of the Executive's
employment hereunder after June 30, 2002, the Company will pay to the Executive
an annual base salary of $68,000, payable in the same manner as aforesaid. The
Executive's base salary will be subject to annual review and may be increased,
but not decreased, by the Company's Board of Directors, based on the
recommendation of the Designated Person.
(b) Bonus. Following the Merger, the Executive will participate in an
Annual Executive Bonus Plan for NEBS' fiscal years 2001 and 2002, with a bonus
target equal to 50% of base salary. Payments will be determined against
financial and personal objectives established by NEBS' Board of Directors and
the Designated Person at the beginning of each fiscal year, which objectives
will include Company-specific objectives, as well as NEBS' overall corporate
objectives; provided, however, that 50% of the Executive's bonus target for
fiscal 2001 will be guaranteed, and all payments to the Executive under the
Annual Executive Bonus Plan will be paid in cash within 60 days following the
end of the applicable fiscal year. The financial objectives established for the
Annual Executive Bonus Plan for fiscal year 2001 that will be applicable to the
Executive are set forth in Attachment A hereto. The Executive will not
participate in any bonus plan or program with respect to any period following
the end of NEBS' fiscal year 2002.
Upon the effective date of the Merger, the Executive's participation in the
Company's 2000 Bonus Plan (the "2000 Bonus Plan") will cease; provided, however,
that, within 60 days following the Merger, the Company will pay the Executive
the pro-rated amount of the bonus for which the Executive was otherwise eligible
under the 2000 Bonus Plan (assuming for these purposes that the plan permits
pro-rated payouts) with respect to the period from January 2, 2000 through the
effective date of the Merger.
4. Additional Benefits.
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(a) Stock Options. Immediately following the Merger, the Executive will
be granted an option to purchase 8,000 shares of NEBS common stock. The portion
of the option that vests on the date of grant will, to the extent permitted by
applicable law, be granted in the form of incentive stock options, and such
portion as qualifies for incentive stock option status will be granted under the
NEBS 1997 Key Employee and Eligible Director Stock Option and Stock Appreciation
Rights Plan (the "1997 Plan"); the remaining portion of the option will be
granted on terms substantially similar to the 1997 Plan and will be in the form
of options that do not qualify as incentive stock options. The exercise price
for such option will be the fair market value of NEBS common stock on the date
of grant, as determined in accordance with the 1997 Plan. The option will vest
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as to one-third of the option shares on the date of grant, and as to an
additional one-third per year on each of the first two anniversaries of the date
of grant, and will have a maximum term of ten years, subject to earlier
termination in accordance with the terms of the 1997 Plan.
(b) Other Benefits.
(i) The Executive will be entitled to and will receive such other
employee benefits, such as 401(k), hospitalization, medical, life and other
insurance benefits, vacation, sick pay and short-term and long-term disability
that are now being maintained by the Company for the benefit of senior
executives, subject to the terms, conditions, and overall administration of
such benefits and to the right of the Company to hereafter change the level of
such benefits as part of a general change in policy affecting senior
executives of the Company generally; provided that any action by the Company
which would directly or indirectly materially reduce any of such benefits and
which remains uncured after 30 days following the delivery of the Executive's
written notice of such breach to the Company in accordance with Section 9
below will entitle the Executive to terminate his employment hereunder for
Good Reason (as defined below); and provided, further, that so long as the
Company does not reduce its portion (in either dollars or percentage of total
premium cost) of the Executive's premium cost for the group health plans in
which the Executive participates, any increase in the Executive's co-payment
amount for such premiums shall not be deemed to be a reduction in the
Executive's benefits provided by this Section.
(ii) The Company will promptly pay (or reimburse the Executive for)
all reasonable business expenses incurred by him in the performance of his
duties hereunder in accordance with policies from time to time adopted by the
Board of Directors or by NEBS, including business travel and entertainment
expenses. The Executive shall furnish to the Company such receipts and records
as the Company may require to verify the foregoing expenses.
5. Termination of Employment.
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(a) Termination by the Company. The Company may terminate the Executive's
employment with the Company hereunder at any time:
(i) upon the death or Disability (as hereinafter defined) of the
Executive. For purposes of this Agreement, "Disability" shall be deemed the
reason for the Company's termination of the Executive's employment with the
Company if, as a result of the Executive's incapacity due to mental or
physical disability, the Executive is absent from the full-time performance of
his duties with the Company for at least 6 consecutive months, and within 30
days after written Notice of Termination (as defined below) is given the
Executive shall not have returned to the full-time performance of his duties.
Any question as to the existence of the Executive's Disability upon which the
Executive and the Company cannot agree shall be determined by a qualified
independent physician selected by the Executive (or, if the
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Executive is unable to make such selection, it shall be made by any adult
member of the Executive's immediate family), and reasonably approved by the
Company. The determination of such physician made in writing to the Company
and to the Executive shall be final and conclusive for all purposes of this
Agreement, absent fraud.
(ii) for Cause. For purpose of this Agreement, "Cause" shall mean (A)
the willful and continued failure by the Executive (other than any such
failure resulting from (1) the Executive's incapacity due to physical or
mental illness or death, (2) any such actual or anticipated failure after the
issuance of a Notice of Termination by the Executive for Good Reason, or (3)
the Company's active or passive obstruction of the performance of the
Executive's duties and responsibilities) to perform substantially the duties
and responsibilities of the Executive's position with the Company after a
written demand for substantial performance, signed by a majority of the
Company's Board of Directors, is delivered to the Executive, which demand
specifically identifies the manner in which the directors believe that the
Executive has not substantially performed his duties or responsibilities; (B)
the conviction of the Executive by a court of competent jurisdiction for
felony criminal conduct; (C) the willful engaging by the Executive in fraud or
dishonesty which is demonstrably and materially injurious to the Company or
its reputation, monetarily or otherwise; or (D) the Executive's violation of
Section 7 of this Agreement (other than violations of Section 7(a) that are
both inadvertent and immaterial). No act, or failure to act, on the
Executive's part shall be deemed "willful" unless committed, or omitted by the
Executive in bad faith and without a reasonable belief that the Executive's
act or failure to act was in the best interest of the Company. The Executive
shall not be terminated for Cause unless and until the Company shall have
delivered to the Executive a copy of a resolution duly adopted by the
affirmative vote of not less than a majority of the entire membership of NEBS'
Board of Directors at a meeting of said Board called and held for such purpose
(after reasonable notice to the Executive and an opportunity for the
Executive, together with the Executive's counsel, to be heard by said Board),
finding that, in the good faith opinion of said Board, the Executive's conduct
was Cause and specifying the particulars thereof in detail.
(iii) without Cause, provided that in such case the Executive shall be
entitled to the benefits set forth in Section 6(d) and (e) below.
(b) Termination by the Executive. The Executive may terminate his
employment with the Company hereunder at any time:
(i) for Good Reason. "Good Reason" shall mean, without the Executive's
express written consent, any of the following: (A) the assignment to the
Executive of any duties inconsistent with the Executive's status or position
with the Company, or a substantial alteration in the nature or status of the
Executive's responsibilities from those in effect immediately prior to the
Merger; (B) a reduction by the Company in the Executive's annual base salary
or bonus targets; (C) (1) the relocation of the Company's principal executive
offices to a location more than 50 miles from Minnetonka, Minnesota; or (2)
the Company requiring the Executive to be based anywhere other than the
Company's principal executive offices except for required
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travel on the Company's business to the extent reasonably consistent with the
Company's strategic business plan, and except to the extent for travel in
connection with the Executive's management reporting, planning and training
responsibilities to NEBS; (D) the taking of any action by the Company which
would directly or indirectly materially reduce any of the other benefits
described in Section 4(b) and which remains uncured after 30 days following
the delivery of the Executive's written notice of such breach to the Company
in accordance with Section 9 below; or (E) any material violation of this
Agreement by the Company which remains uncured after 30 days following the
delivery of the Executive's written notice of such breach to the Company in
accordance with Section 9 below. The Executive acknowledges that he will not
be entitled to terminate his employment with the Company for Good Reason
solely by reason of (x) the consummation of the transactions contemplated by
the Merger Agreement (and any subsequent transactions directly related thereto
and contemplated thereby), including his resignation or removal from the board
of directors or as Treasurer of the Company or any of its subsidiaries, or any
change in his reporting responsibilities to reflect the fact that the Company
is a subsidiary of NEBS, or (y) the reduction in the Executive's salary as
expressly provided in Section 3(a) above, or the discontinuation of the
Executive's participation in any bonus plan or program as expressly provided
in Section 3(b) above, or the reduction in any of the Executive's other
benefits described in Section 4(b) resulting directly from the reduction in
the Executive's base salary as expressly provided in Section 3(a) above, or
(z) the Company's election not to extend the term of the Change in Control
Severance Agreement dated as of September 23, 1999, as amended (the "Change in
Control Agreement"), by and between the Company and the Executive, in
accordance with the first sentence of Section 1 of the Change in Control
Agreement.
(ii) other than for Good Reason; provided that the Company retains the
right to terminate the Executive's employment for Cause at any time during the
notice period referred to in Section 5(d) below.
(c) Notice of Termination. 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 9
below. For purposes of this Agreement, a "Notice of Termination" shall mean a
notice which shall indicate the specific termination provision in this Agreement
relied upon and shall set forth the facts and circumstances claimed to provide a
basis for termination of the Executive's employment.
(d) Date of Termination. For purposes of this Agreement, "Date of
Termination" shall mean:
(i) If the Executive's employment is terminated for Disability, 30 days
after the Notice of Termination is given (provided that the Executive shall
have been absent from the full-time performance of his duties for at least 6
months and shall not have returned to the full-time performance of his duties
during such 30-day period in accordance with Section 5(a)(i) hereof); and
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(ii) If the Executive's employment is terminated pursuant to Section
5(a)(ii), 5(a)(iii) or 5(b) above or for any other reason (other than
Disability), the date specified in the Notice of Termination (which, in the
case of a termination pursuant to Section 5(a)(ii) above shall not be less
than 10 days, and in the case of a termination pursuant to Section 5(b)(i)
above shall not be less than 10 nor more than 30 days, and in the case of a
termination pursuant to Section 5(b)(ii) above shall not be less than 60 days,
respectively, from the date such Notice of Termination is given).
If the Executive delivers a Notice of Termination in connection with an
intended termination of employment by the Executive other than for Good
Reason, the Company may, in its sole discretion, waive the requirement that
the Executive remain employed during the entire notice period, and may fix an
earlier date as the Date of Termination, which actions shall not under any
circumstances be deemed to be a termination of the Executive's employment by
the Company without Cause.
(e) Dispute of Termination. If, within 10 days after any Notice of
Termination is given, the party receiving such Notice of Termination notifies
the other party that a dispute exists concerning the termination, the Date of
Termination shall be the date on which the dispute is finally determined, either
by mutual written agreement of the parties, or by a final judgment, order or
decree of a court of competent jurisdiction (which is not appealable or the time
for appeal therefrom having expired and no appeal having been perfected);
provided, that the Date of Termination shall be extended by a notice of dispute
only if such notice is given in good faith and the party giving such notice
pursues the resolution of such dispute with reasonable diligence.
Notwithstanding the pendency of any such dispute, the Company shall continue to
pay the Executive full compensation in effect when the notice giving rise to the
dispute was given (including, but not limited to, base salary) and continue the
Executive as a participant in all compensation, benefit and insurance plans in
which the Executive was participating when the notice giving rise to the dispute
was given, until the dispute is finally resolved in accordance with this
Section. Amounts paid under this Section 5(e) are in addition to all other
amounts due under this Agreement and shall not be offset against or reduce any
other amounts under this Agreement.
6. Compensation Upon Termination or During Disability. Upon termination
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of the Executive's employment or during a period of Disability, the Executive
shall be entitled to the following benefits:
(a) During any period that the Executive fails to perform his full-time
duties with the Company as a result of Disability, the Company shall pay the
Executive his base salary as in effect at the commencement of any such period
(provided that such payments with respect to any period after June 30, 2002 will
be reduced as contemplated by Section 3(a) above) and the amount of any other
form or type of compensation otherwise payable for such period if the Executive
were not so disabled, until such time as the Executive is determined to be
eligible for long term disability benefits in accordance with the Company's
insurance program then in effect or the Executive is terminated for Disability.
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(b) If the Executive's employment shall be terminated by the Company for
Cause or by the Executive other than for Good Reason, then the Company shall pay
to the Executive his full base salary through the Date of Termination at the
rate in effect at the time Notice of Termination is given (provided that such
payments with respect to any period after June 30, 2002 will be reduced as
contemplated by Section 3(a) above) and the Company shall have no further
obligation to the Executive under this Agreement, except with respect to any
benefits to which the Executive is entitled under any Company pension or welfare
plan, insurance program or as otherwise required by law.
(c) If the Executive's employment shall be terminated by the Company for
Disability or by reason of the Executive's death, then the Company shall (i)
immediately commence payment to the Executive (or the Executive's designated
beneficiaries or estate, if no beneficiary is designated) of any and all
benefits to which the Executive is entitled under the Company's retirement and
insurance programs then in effect, (ii) immediately pay the Executive (or the
executor or administrator of the Executive's estate) for all vacation time
earned but not used through the Date of Termination and (iii) pay the Executive
(or the executor or administrator of the Executive's estate) the bonus payment
in accordance with Section 6(e) below.
(d) If the Executive's employment shall be terminated (A) by the Company
without Cause (excluding termination for Disability or by reason of the
Executive's death), or (B) by the Executive for Good Reason, then
notwithstanding such termination, the Executive shall be entitled to the
benefits provided below:
(i) The Company shall continue to pay the Executive his base salary
at the rate in effect immediately prior to the Notice of Termination (or, if
higher, at the rate in effect immediately prior to the reduction giving rise
to the Executive's termination for Good Reason in accordance with Section
5(b)(i)(B) above) for the remaining term of this Agreement (the "Severance
Period"); provided that the Company's obligation to make such payments with
respect to any period after June 30, 2002 will be reduced as contemplated by
Section 3(a) above.
(ii) The Executive will be paid for all vacation time earned but not
used through his Date of Termination, but vacation will not continue to accrue
after such date.
(iii) During the Severance Period, the Company shall also (A) continue
to reimburse the Executive for the premium cost of any life or long term
disability insurance maintained by the Executive pursuant to this Agreement on
substantially the same terms as prior to the Notice of Termination (provided
that, with respect to any period after June 30, 2002, the amount of such
insurance benefits will be reduced to reflect the reduction in the Executive's
base salary as expressly provided in Section 3(a) above), and (B) if the
Executive is eligible for and elects continuation coverage under one or more
group health plans sponsored by the Company, and is not otherwise eligible to
receive such coverage pursuant to another employer's plan, pay the same
portion of the premium cost of such coverage, if any, as is paid by the
Company for members of its management team who are actively employed. Except
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as set forth above, after his Date of Termination the Executive's benefits
under any other applicable employee benefit plans will be determined in
accordance with the terms of such plans then in effect or as otherwise
required by law.
(iv) The amount of compensation and benefit payments to the Executive
during the Severance Period shall be offset by any compensation or benefit
payments by another employer, or by a self proprietorship if the Executive is
self employed, to Employee during the Severance Period; provided that there
shall be no offset with respect to any compensation or benefit payments
derived from the continuation of any business activities in which the
Executive was engaged prior to the Date of Termination and which are expressly
permitted under Section 2 above.
(e) If the Executive's employment shall be terminated (i) by the Company
other than for Cause (including termination for Disability or by reason of the
Executive's death), or (ii) by the Executive for Good Reason, prior to the end
of any fiscal year, then notwithstanding such termination or the terms of any
bonus plan to the contrary, the Executive shall be entitled to a bonus if the
earnings thresholds for the applicable fiscal year have been achieved as of the
last day of the fiscal year in which his termination of employment occurs;
provided, however, that the amount of such bonus shall be calculated by
multiplying the bonus amount that would have been payable to the Executive, had
his employment not terminated during the fiscal year, by a fraction, the
numerator of which is the number of full weeks of employment completed by the
Executive during such fiscal year and the denominator of which is 52.
If the Executive's employment shall be terminated (A) by the Company for
Cause, or (B) by the Executive other than for Good Reason, prior to the end of
any fiscal year, then no bonus shall be payable for such year. Any bonus amount
payable pursuant to this Section 6(e) shall be paid at the same time bonuses are
paid to other senior executives of the Company, and shall be payable in cash.
(f) The Company's obligation to make the payments provided by Section 6(d)
or (e) is conditioned upon the Executive's execution of a customary release of
claims relating to the termination of the Executive's employment with the
Company, in favor of the Company, its affiliates, and their respective
directors, officers, employees and agents.
(g) If the Executive's employment shall be terminated (i) by the Company
other than for Cause, or (ii) by the Executive for Good Reason, then any
unvested portion of the stock option referred to in Section 4(a) shall
automatically vest and become exercisable immediately prior to the Date of
Termination.
(h) All amounts payable to the Executive hereunder are subject to such
income, employment and other tax withholding obligations as are required by
applicable law.
7. Non-Disclosure of Company Information; Non-Competition.
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(a) The Executive understands that he will have access to confidential and
proprietary information of the Company (including its subsidiaries and
affiliates) and hereby agrees that he will treat all such information as
confidential and proprietary
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information of the Company (or of such subsidiary or affiliate, as the case may
be) and he will not, either directly or indirectly, copy, use or disclose any
such confidential or proprietary information which he may either obtain or
develop during employment with the Company to any person, firm, company,
association or other entity, unless such copying, use or disclosure is for the
exclusive benefit of the Company as the Company may direct or he is otherwise
required to do so by law.
(b) At such time as the Executive's employment with the Company
terminates, regardless of the reason, the Executive shall return to the Company
any and all confidential and proprietary information of the Company, customer
files and all copies of such information, whether stored on paper or
electronically, which the Executive may have acquired or developed during his
employment with the Company and any other property of the Company, regardless of
the confidential or proprietary nature of such property, which the Executive may
have in his possession at that time.
(c) During the term of this Agreement and while the Executive is employed
by the Company, the Executive shall not, directly or indirectly, engage in any
business or sales activity or other endeavor which competes with the business of
the Company (or of any of its subsidiaries or affiliates), whether as an
employee, agent, independent contractor, consultant, advisor, director, owner
(except as a holder of not more than 1% of the outstanding stock of a publicly-
traded company) or sole proprietor of another organization or entity. In
addition, for a period of six months following the termination of the
Executive's employment with the Company for Cause by the Company or for any
reason by the Executive other than for Good Reason, the Executive shall not,
directly or indirectly, anywhere within the United States, Canada and such other
countries in which the Company conducts business during his employment, own
(except as a holder of not more than 1% of the outstanding stock of a publicly-
traded company), manage, operate, control, be employed by, render services to,
participate in or be connected in any manner with any business which is
competitive to the Company's business, including, without limitation, any
business which buys, sells, manufactures, distributes, markets or promotes (i)
apparel products to golf sports shops and to promotional products/advertising
specialty industry customers or (ii) personalized apparel products targeted to
small businesses for professional image, promotional or advertising specialty
uses, it being recognized that (A) if the Executive' s employment is terminated
by the Company other than for Cause or by the Executive for Good Reason, the
restrictions of this Section 7(c) shall not apply after the termination of his
employment, and (B) the restrictions of this Section 7(c) shall not apply with
respect to any period during which the Company fails to continue making payments
to the Executive at his base salary rate as set forth in Section 3(a) above.
(d) For a period ending six months following termination of the
Executive's employment with the Company, if the Executive's employment with the
Company is terminated by the Company for Cause or by the Executive other than
for Good Reason, then the Executive agrees that he will not, either directly or
indirectly, solicit, hire, employ, retain or otherwise contact any employee of
the Company, any independent contractor or sales representative of the Company
or any person who has been an employee of the Company during the one-year period
prior to the termination of the
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Executive's employment with the Company, nor assist any other person or entity
to solicit or hire any such individual.
(e) The Executive acknowledges that the restrictions set forth in this
Section 7 are reasonably necessary to protect a legitimate business interest of
the Company and that the Company has no adequate remedy at law for any breach of
the provisions of this Section 7 by the Executive and that such breach will
result in irreparable harm to the Company. Accordingly, in the event of the
breach by the Executive of any of the provisions of this Section 7, the Company
will have no further obligations to him under this Agreement, including without
limitation the payments described in Section 6(d) and (e) above, and in addition
and supplementary to any other rights and remedies existing in its favor, the
Company shall be entitled to seek specific performance and/or injunctive or
other relief in order to enforce or prevent any violation of the provisions
hereof.
8. Successors; Binding Agreement.
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(a) The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to 51% or more of the business
and/or assets of the Company 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 it if no such succession had taken place. Failure of the
Company to obtain such assumption and agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle the
Executive to the compensation and benefits from the Company in the same amount
and on the same terms as he would be entitled hereunder if he terminated his
employment for Good Reason, except that for purposes of implementing the
foregoing, the date on which any such succession becomes effective shall be
deemed the Date of Termination.
(b) This Agreement shall inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, successors, heirs, and designated
beneficiaries. If the Executive should die while any amount would still be
payable to the Executive hereunder if the Executive had continued to live, all
such amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to the Executive's designated beneficiaries, or, if
there is no such designated beneficiary, to the Executive's estate.
9. Notice. For the purposes of this Agreement, notices and all other
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communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed to the last known residence address of the Executive or in the case of
the Company, to its principal office to the attention of at least one of the
directors of the Company, with a copy to NEBS, 500 Main Street, Groton, MA
01471, Attention: President (provided that notice to the Company shall not be
effective unless a copy of such notice is delivered to NEBS as aforesaid), or to
such other address as either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall be effective
only upon receipt.
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10. Miscellaneous. No provision of this Agreement may be modified, waived
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or discharged unless such waiver, modification or discharge is agreed to in
writing and signed by the parties. No waiver by either party hereto at any time
of any breach by the other party to this Agreement of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or similar time. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not expressly set forth in this
Agreement. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Minnesota. Each of the
parties consents to personal jurisdiction in any action brought in any court,
federal or state, of competent jurisdiction within the State of Minnesota,
waives any argument that such a forum is not convenient, and agrees that any
litigation or arbitration relating to this Agreement shall be venued in Hennepin
County, Minnesota.
Notwithstanding anything herein to the contrary, this Agreement is intended
to supersede the Employment Agreement dated as of April 24, 1990 (the 4/24/90
Employment Agreement") by and between the Company and the Executive; provided,
however, that if the Merger Agreement is terminated for any reason prior to the
occurrence of the Merger, then this Agreement shall automatically be deemed to
have been terminated and cancelled, without any further liability of either
party or of NEBS to each other, and the 4/24/90 Employment Agreement shall
automatically be reinstated and thereafter shall remain in full force and
effect.
11. Severability. Any term or provision of this Agreement that is invalid
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or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction. If the final judgment of a court of
competent jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the parties agree that the court making the determination of
invalidity or unenforceability shall have the power to reduce the scope,
duration or area of the term or provision, to delete specific words or phrases
or to replace any invalid or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision, and this Agreement
shall be enforceable as so modified after the expiration of the time within
which the judgment may be appealed.
[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned officer, on behalf of PremiumWear,
Inc., and the Executive have hereunto set their hands as of the date first above
written.
PREMIUMWEAR, INC.
By: /s/ David E. Berg
----------------------------
David E. Berg
Its Chief Executive Officer
EXECUTIVE:
/s/ James S. Bury
----------------------------
James S. Bury
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