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EXHIBIT 10.12
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of the
31st day of May, 1996, by and between ACCESSORIES ASSOCIATES, INC., a Rhode
Island corporation with a mailing address of 500 George Washington Highway,
Smithfield, Rhode Island 02917 (the "Company"), and ROBERT V. LALLO, an
individual with a residence address of 132 Division Street, E. Greenwich, Rhode
Island 02818 ("Executive").
INTRODUCTION
1. The Company is in the business of developing, manufacturing,
distributing and marketing ladies' and men's consumer soft lines sold in retail
stores (the "Accessories Business"). Executive assisted in the conception and
development of the concepts currently used in the Company's operations and
possesses other skills and knowledge advantageous to the Company.
2. The Company desires to employ Executive and Executive desires
to accept such employment on the terms and conditions set forth herein.
AGREEMENT
In consideration of the premises and mutual promises hereinbelow set
forth, the parties hereby agree as follows:
1. EMPLOYMENT PERIOD. The term of this Agreement (the
"Employment Period") shall commence on the date hereof and, subject to earlier
termination as hereinafter provided, shall terminate three (3) years from the
date hereof. Thereafter, Executive's employment will continue automatically on a
year to year basis terminable by either party consistent with the terms of this
Agreement.
2. EMPLOYMENT; DUTIES. Subject to the terms and
conditions set forth herein, the Company hereby employs Executive to act as
Chief Operating Officer of the Company during the Employment Period, and
Executive hereby accepts such employment. The duties assigned and authority
granted to Executive shall be as set forth in the By-laws of the Company and as
determined by its Board of Directors from time to time. Executive agrees to
perform his duties for the Company diligently, competently, and in a good faith
manner. The Executive may also engage in civic and charitable activities to the
extent they are not inconsistent with Executive's duties hereunder.
3. SALARY AND BONUS.
(a) BASE SALARY. During the first year of the
Employment Period, the Company agrees to pay Executive $156,707 per year,
payable weekly in arrears. Executive's base
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salary shall not be decreased, and shall be increased on each anniversary date
of this Agreement (the "Anniversary Date"), based upon the increase in the
Consumer Price Index for all Urban Consumers (CPI-U), Boston, Massachusetts,
published by the Bureau of Labor Statistics of the United States Department of
Labor (1982-1984=100) (the "Index"). If, on an Anniversary Date, the Index shows
an increase from the base date of May 31, 1996 (the "Base Date"), then
Executive's annual base salary for the ensuing 12 months shall be equal to the
product of (a) $156,707 and (b) one plus a percentage equal to the percentage
increase in the Index on each such Anniversary Date over the Index on the Base
Date. In the event the Bureau of Labor Statistics no longer publishes the Index
the Company shall use that index then available which most closely replicates
the Index. In addition, after the first year of the Employment Period, the Board
of Directors of the the Company (or any appropriate committee thereof) shall
review and may increase the Executive's annual base salary in its discretion,
based upon the Company's performance and the Executive's particular
contributions.
(b) BONUS. Executive shall be eligible for and
shall receive an annual cash bonus under the Company's Executive Incentive
Compensation Plan, subject to the discretion of the Company's Board of
Directors.
4. OTHER BENEFITS.
(a) INSURANCE AND OTHER BENEFITS. The Executive
shall be entitled to participate in, and shall receive the maximum benefits
available under, the Company's insurance programs (including health and life
insurance) and any ERISA benefit plans, as the same may be adopted and/or
amended from time to time, and shall receive all other fringe benefits that are
provided by the Company to other senior executives. The Company shall purchase a
disability insurance policy which shall provide Executive with a minimum monthly
benefit equal to sixty percent (60%) of Executive's monthly base salary, subject
to a maximum monthly benefit of $15,000 after a six-month period of disability.
The Company shall contribute the maximum amount permitted under current law to
the Executive's 401(k) Plan, and any other Company pension or retirement plan
during the Employment Period.
(b) VACATION. Executive shall be entitled to an
annual vacation of such duration as may be determined by the Board of Directors,
but not less than that generally established for other executives of Company and
in no event less than four (4) weeks, without interruption of salary.
(c) AUTOMOBILE ALLOWANCE. The Company shall
provide Executive with an automobile consistent with past practice.
(d) REIMBURSEMENT OF EXPENSES. The Company shall
reimburse Executive for all reasonable travel, entertainment and other expenses
incurred or paid by the Executive in connection with, or related to, the
performance of his duties or responsibilities under this Agreement, provided
that Executive submits to the Company substantiation of such expenses sufficient
to satisfy the record keeping guidelines promulgated from time to time by the
Internal
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Revenue Service. All domestic and international airline travel may be in first
class accommodations at the Executive's sole discretion.
5. TERMINATION BY THE COMPANY WITH CAUSE. Upon prior
written notice to Executive, the Company may terminate this Agreement if any of
the following events shall occur:
(a) the conviction of Executive for a crime
involving fraud or moral turpitude;
(b) deliberate dishonesty of the Executive with
respect to the Company or any of its subsidiaries; or
(c) the refusal of the Executive to follow the
reasonable and lawful written instructions of the Board of Directors of the
Company with respect to the services to be rendered and the manner of rendering
such services by Executive, provided such refusal is material and repetitive and
is not justified or excused either by the terms of this Agreement or by actions
taken by the Company in violation of this Agreement, and with respect to the
first two refusals Executive has been given reasonable written notice and
explanation thereof and reasonable opportunity to cure and no cure has been
effected within a reasonable time after such notice.
6. TERMINATION BY THE EXECUTIVE; TERMINATION BY THE
COMPANY WITHOUT CAUSE.
6.1 NOTICE/EVENTS/DEFINED TERMS.
(a) Executive may terminate this Agreement at
any time by providing written notice to the Company.
(b) The Company may terminate this Agreement at
any time, WITHOUT CAUSE, by providing written notice to Executive. As used in
this Agreement, the term "WITHOUT CAUSE" shall mean termination for any reason
not specified in Section 5 hereof, and shall include, without limitation: (i)
the Company's materially reducing Executive's duties or authority as Chief
Operating Officer of the Company; or (ii) disability of Executive; or (iii) the
Executive's death.
6.2 SEVERANCE.
(a) If the Company terminates this Agreement,
WITHOUT CAUSE, the Company shall provide Executive with a severance package
which shall consist of the following: (i) payment on the first business day of
each month of an amount equal to one-twelfth of the Executive's then current
annual base salary under Section 3(a) hereof; (ii) payment on the first business
day of each month of an amount equal to one-twelfth of Executive's most recent
bonus under Section 3(b) hereof; and (iii) continuation of all benefits under
Section 4.
(b) The Company's obligation to make the
payments and provide the benefits required by this Section 6.2 shall commence on
the date of termination of this Agreement
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by the Company, WITHOUT CAUSE, and continue for a period equal to the greater
of: (i) two (2) years, or (ii) the duration of the Executive's obligations under
Section 8 hereof.
7. DEATH OR DISABILITY. In the event of the Executive's
death or disability, employment will automatically terminate effective as of the
date of such death or disability. As used in this Agreement, the term
"disability" shall mean inability on the part of Executive for a period of more
than six (6) months in the aggregate during any twelve (12) month period to
perform the services contemplated under this Agreement. A determination of
disability shall be made by a physician satisfactory to both the Executive and
the Company, provided that if the Executive and the Company do not agree on a
physician, the Executive and the Company shall each select a physician and these
two physicians together shall select a third physician, whose determination as
to disability shall be binding on all parties.
8. NON-COMPETITION. During the Employment Period and
after termination of this Agreement by Executive under Section 6.1(a), or the
Company under Section 5 or Section 6.1(b) of Executive's employment under
Section 5, the Company may restrict the Executive's subsequent involvement in
the Restricted Business Activities, as defined below, for the period ending one
(1) year after the date of termination of this Agreement (the "Non-compete
Period"). As used in this Agreement, the term "Restricted Business Activities"
shall mean the marketing and sale of ladies' and men's consumer soft lines to
retail stores, which the Company sold and marketed during Executive's employment
with the Company. During the Non-compete Period, Executive shall not, without
the written approval of the Company, directly or indirectly, either as an
individual, partner, joint venturer, employee or agent for any person, company,
corporation or association, or as an officer, director or stockholder of a
corporation or otherwise, enter into or engage in or have a proprietary interest
in the Restricted Business Activities other than the ownership of (a) the stock
of the Company then held by Executive, and (b) no more than five percent (5%) of
the securities of any other publicly-held company. The Non-compete period may be
extended for up to an additional two (2) years, at the option of the Company,
provided that the Company continues to make the monthly payments and provides
the benefits required under Section 6.2 hereof, for such additional period.
The Executive recognizes and agrees that because a violation
by him of his obligations under this Section 8 will cause irreparable harm to
the Company that would be difficult to quantify and for which money damages
would be inadequate, the Company shall have the right to injunctive relief to
prevent or restrain any such violation, without the necessity of posting a bond.
Executive expressly agrees that the character, duration and
scope of this covenant not to compete are reasonable in light of the
circumstances as they exist at the date upon which this Agreement has been
executed. However, should a determination nonetheless be made by a court of
competent jurisdiction at a later date that the character, duration or
geographical scope of this covenant not to compete is unreasonable in light of
the circumstances as they then exist, then it is the intention of both Executive
and the Company that this covenant not to compete shall be construed by the
court in such a manner as to impose only those restrictions on the conduct of
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Executive which are reasonable in light of the circumstances as they then exist
and necessary to assure the Company of the intended benefit of this covenant to
compete.
9. CONFIDENTIALITY COVENANTS. Executive understands that
Company may impart to him confidential business information including, without
limitation, designs, financial information, personnel information, real estate
information, and the like (collectively "Confidential Information"). Executive
hereby acknowledges Company's exclusive ownership of such Confidential
Information.
Executive agrees as follows: (1) only to use the Confidential
Information to provide services to Company; (2) only to communicate the
Confidential Information to fellow employees, agents and representatives on a
need-to-know basis; and (3) not to otherwise disclose or use any Confidential
Information. Upon demand by Company or upon termination of Executive's
employment, Executive will deliver to Company all manuals, photographs,
recordings, and any other instrument or device by which, through which, or on
which Confidential Information has been recorded and/or preserved, which are in
my Executive's possession, custody or control.
10. GOVERNING LAW/JURISDICTION. This Agreement shall be
governed by and interpreted and governed in accordance with the laws of the
State of Rhode Island. The parties agree that this Agreement was made and
entered into in Rhode Island and each party hereby consents to the jurisdiction
of a competent court in Rhode Island to hear any dispute arising out of this
Agreement.
11. ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement between the parties hereto with respect to the subject matter
hereof and thereof and supercedes any and all previous agreements, written and
oral, regarding the subject matter hereof between the parties hereto. This
Agreement shall not be changed, altered, modified or amended, except by a
written agreement signed by both parties hereto.
12. NOTICES. All notices, requests, demands and other
communications required or permitted to be given or made under this Agreement
shall be in writing and shall be deemed to have been given if delivered by hand,
sent by generally recognized overnight courier service, telex or telecopy, or
certified mail, return receipt requested.
(a) to the Company at:
500 George Washington Highway
Smithfield, Rhode Island 02917
(b) to the Executive at:
132 Division Street
E. Greenwich, Rhode Island 02818
Any such notice or other communication will be considered to
have been given (i) on the date of delivery in person, (ii) on the third day
after mailing by certified mail, provided that
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receipt of delivery is confirmed in writing, (iii) on the first business day
following delivery to a commercial overnight courier or (iv) on the date of
facsimile transmission (telecopy) provided that the giver of the notice obtains
telephone confirmation of receipt.
Either party may, by notice given to the other party in
accordance with this Section, designate another address or person for receipt of
notices hereunder.
13. SEVERABILITY. If any term or provision of this
Agreement, or the application thereof to any person or under any circumstance,
shall to any extent be invalid or unenforceable, the remainder of this
Agreement, or the application of such terms to the persons or under
circumstances other than those as to which it is invalid or unenforceable, shall
be considered severable and shall not be affected thereby, and each term of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
The invalid or unenforceable provisions shall, to the extent permitted by law,
be deemed amended and given such interpretation as to achieve the economic
intent of this Agreement.
14. WAIVER. The failure of any party to insist in any one
instance or more upon strict performance of any of the terms and conditions
hereof, or to exercise any right or privilege herein conferred, shall not be
construed as a waiver of such terms, conditions, rights or privileges, but same
shall continue to remain in full force and effect. Any waiver by any party of
any violation of, breach of or default under any provision of this Agreement by
the other party shall not be construed as, or constitute, a continuing waiver of
such provision, or waiver of any other violation of, breach of or default under
any other provision of this Agreement.
15. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon the Company and any successors and assigns of the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ACCESSORIES ASSOCIATES, INC.
By: /s/ Gerald F. Cerce
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Title: Chairman
EXECUTIVE:
/s/ Robert V. Lallo
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Robert V. Lallo
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