EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of March 31, 1994, between TIMOTHY F.
FINLEY ("Executive") and JOS A. BANK CLOTHIERS, INC. ("Employer").
WHEREAS, the parties hereto are parties to a Management Agreement,
dated as of May 10, 1991, as amended from time to time (the "Previous
Agreement") pursuant to which Executive is currently serving as the Chief
Executive Officer of Employer.
WHEREAS, the parties wish by this Employment Agreement to provide for
the terms of the continued employment of Executive and to terminate the Previous
Agreement, except with respect to Section 6 thereof which was the subject of an
amendment to the Previous Agreement, dated as of January 29, 1994, a copy of
which is attached hereto ("Section 6 of the Previous Agreement, as amended").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, the parties hereto hereby agree as follows:
1. Employment of Executive; Termination of Previous Agreement
Employer hereby agrees to employ Executive, and Executive
hereby agrees to be and remain in the employ of Employer, upon the terms and
conditions hereinafter set forth. Employer and Executive hereby agree that upon
the execution hereof, the Previous Agreement shall be deemed terminated except
with respect to Section 6 of the Previous Agreement, as amended, which shall
continue in full force and effect and be deemed a part of this Agreement. This
Agreement is a contract for personal services of Executive and services pursuant
hereto may only be performed by Executive.
2. Employment Period
The term of Executive's employment under this Agreement (the
"Employment Period") shall commence as of the date hereof and shall, subject to
earlier termination as provided in Section 5, continue for a period of five
years after commencement and be automatically renewed thereafter for successive
one-year periods unless, at least 180 days before the end of the initial
five-year period or any subsequent one-year period, either party gives notice to
the other of his or its desire to terminate the Employment Period, in which case
the Employment Period shall terminate as of the end of such period.
3. Duties and Responsibilities
3.1 General. During the Employment Period, Executive (i) shall
have the title of Chairman and Chief Executive Officer and (ii) shall devote
substantially all of his business time and expend his best efforts, energies and
skills to the business of the Company. The preceding sentence shall not be
construed to prohibit Executive from continuing to devote more than an
insignificant amount of time, in accordance with his past practice, to
management of his investments, serving on boards of directors, serving as Chief
Executive Officer of the Finley Group and participation in civic and
philanthropic activities.
Executive shall perform such duties, consistent with his
status as Chairman and Chief Executive Officer of Employer, as he may be
assigned from time to time by Employer's Board of Directors. Executive shall
have such authority, discretion, power and responsibility, and shall be
entitled to office, secretarial and administrative (at least one secretary
and/or administrative assistant of his selection) and other facilities and
conditions of employment, as are customary or appropriate to his position and
those currently exercised by and afforded to him. Without limitation of the
generality of the foregoing, Executive, within the general guidelines adopted
from time to time by the Board, shall have the power, without further approval
of the Board of Directors, to hire, fire and establish the terms of employment
(including all compensation and bonus arrangements of all employees of and
consultants and other advisers to the Company (other than the President).
Executive shall also serve without additional compensation as a director of the
Company and, if he should so desire, any of its subsidiaries. For all purposes
of this Agreement, the term "Company" means Employer and all corporations,
associations, companies, partnerships, firms and other enterprises controlled by
or under common control with Employer.
3.2 Location of Executive Offices. The Company will maintain
its principal executive offices at a location in any state on the eastern coast
of the United States from and including South Carolina to and including New
York. Executive shall not be required to perform services for the Company at any
other location, except for services rendered in connection with required travel
on the Company's business to an extent not substantially in excess of
Executive's past travel commitments for the Company.
4. Compensation and Related Matters
4.1 Base Salary. Employer shall pay to Executive during the
Employment Period an annual base salary (the "Base Salary") equal to the sum of
(a) $435,000, subject to such raises as the Compensation Committee (the
"Committee") of the Board of Directors of the Company or the Board of Directors
may from time to time determine in their sole discretion (the "Salary") and (b)
the "cost of living adjustment" (as determined below). The "cost of living
adjustment" shall be determined on each January 1 (or as soon as practicable
thereafter) of the Employment Period, commencing January 1, 1995, and shall be
an amount that equals the greater of (x) $0 or (y) the difference between (i)
the Salary multiplied by a fraction, (A) the numerator of which shall be the
Consumer Price Index for Urban Wage Earners and Clerical Workers (1967 = 100)
(the "Index"), published by the Bureau of Labor Statistics of the United States
Department of Labor in the column for the Baltimore, Maryland area entitled "All
Items" for the month of January for the calendar year for which the cost of
living adjustment is to be determined and (B) the denominator of which shall be
such Index number of the month in which the date of this Agreement falls and
(ii) the Salary. Any portion of increased Base Salary which is retroactively due
to Executive hereunder shall be payable within 15 days after the computation
thereof has been made. Appropriate adjustment shall be promptly made following
receipt of notice from Executive in the event there is a published amendment of
the Index figures upon which the computation is based. If publication of the
Index is discontinued, the parties shall accept comparable statistics on the
cost of living for the Baltimore, Maryland area as computed and published by any
recognized authority acceptable to the parties. The Base Salary for each
calendar year shall be payable in installments in accordance with the Company's
policy on payment of executives in effect from time to time.
4.2 Annual Bonus. For fiscal year 1995 (ending January 28,
1995) and for each fiscal year that begins during the Employment Period (each
such fiscal year, a "Bonus Year"), Executive shall be entitled to receive a
bonus of 75% of Base Salary (each, a "Bonus") based upon attainment of annual
quantitative and qualitative performance goals established by the Committee for
such Bonus Year in consultation with Executive, such performance goals to be
established as soon as possible following the beginning of each Bonus Year. The
relationship between the size of each Bonus and degree of attainment of
performance objectives shall be discretionary with the Committee. Bonus earned
for any Bonus Year shall be payable promptly following the determination
thereof, but in no event later than 90 days following the end of each Bonus
Year. The Bonus payable for the Bonus Year in which the Employment Period
terminates shall equal the Bonus that would have been paid had the Employment
Period not so terminated, multiplied by a fraction, the numerator of which shall
be the number of days of the Employment Period within the Bonus Year and the
denominator of which shall be 365.
4.3 Life Insurance. Employer shall maintain in effect at all
times during the Employment Period, at Employer's expense, a policy of term life
insurance, or such other type of policy as Executive shall request provided that
the cost to Employer thereof is approximately the same as the cost of such term
policy, on the life of Executive in the amount of not less than $2,000,000
naming such person as Executive shall designate from time to time as the owner
and beneficiary thereof. Executive agrees that Employer shall have the right to
obtain other life insurance on Executive's life, at Employer's sole expense and
with Employer or an affiliate thereof as the sole beneficiary thereof. Executive
shall (i) cooperate fully with Employer in obtaining all such insurance, (ii)
sign any necessary consents, applications and other related forms or documents,
and (iii) take any required medical examinations.
4.4 Automobile. Throughout the Employment Period, Employer
shall provide to Executive, at Employer's expense, a top-of-the-line Cadillac,
Lincoln, Lexus or comparable luxury automobile selected by Executive on a
biannual basis and equipped to Executive's satisfaction. Employer shall also be
responsible for all expenses of use and operation thereof.
4.5 Other Benefits. During the Employment Period, subject to,
and to the extent Executive is eligible under their respective terms, Executive
shall be entitled to receive such fringe benefits as are, or are from time to
time hereafter, generally provided by Employer to Employer's senior management
employees or other employees (other than those provided under or pursuant to
separately negotiated individual employment agreements or arrangements) under
any pension or retirement plan, disability plan or insurance, group life
insurance, medical and dental insurance, travel accident insurance, stock
option, phantom stock or other similar plan or program of Employer. Executive's
Base Salary shall (where applicable) constitute the compensation on the basis of
which the amount of Executive's benefits under any such plan or program shall be
fixed and determined. If, during the Employment Period, any plan or program in
which Executive participates (including those in which Executive currently
participates) shall be amended so as to result in an overall reduction of
Executive's benefits, or shall be terminated without being replaced by a new
plan or program providing for benefits equivalent overall to those provided for
Executive prior thereto, the Company shall make arrangements, in addition to any
such amended or terminated plan or program, for Executive to participate in a
plan or program so as to provide benefits to Executive at least equivalent
overall to those provided to Executive prior to such amendment or termination,
such benefits to be provided through a plan or program of insurance if
commercially available.
4.6 Expense Reimbursement. Employer shall reimburse Executive
for all business expenses reasonably incurred by him in the performance of his
duties under this Agreement and consistent with past practice upon his
presentation, not less frequently than monthly, of signed, itemized accounts of
such expenditures, all in accordance with Employer's procedures and policies as
adopted and in effect from time to time and applicable to its senior management
employees. Without limiting the generality of the foregoing, Employer shall
continue to pay for all of Executive's reasonable travel expenses incurred in
traveling from and to his permanent residence in Charlotte, North Carolina and
his reasonable living expenses while the Executive is residing in the Baltimore,
Maryland area, including, without limitation, hotel or other residential
accommodation expenses and meals, all such amounts to be treated as additional
salary for all securities acts reporting purposes.
4.7 Vacations. Executive shall be entitled to 20 days of
vacation during each calendar year, which shall accrue in accordance with the
Company's vacation policy in effect from time to time for its senior executive
officers, with reasonable carry-over allowances, which vacations shall be taken
at such time or times as shall not unreasonably interfere with Executive's
performance of his duties under this Agreement. Upon termination of Executive's
employment pursuant to Section 5 herein or non-renewal of the Employment Period
as provided for under Section 2 herein, for any reason whatsoever, Employer
shall pay Executive, in addition to any termination compensation provided for
under Section 6 herein, all unused vacation benefits, including any carry-over,
due Executive as of the date of termination, to be computed at the Executive's
then current Base Salary rate.
4.8 Tax Gross-up. In the event that any payments made by
Employer to or on behalf of Executive pursuant to the provisions of Section 4.3
through 4.6 hereof result in the payment of additional federal, state or local
income taxes by Executive, Employer shall pay to Executive the amount of such
additional taxes plus such additional amount as shall be necessary to hold
harmless Executive, as nearly as can be, from the obligation to pay such taxes
in respect of amounts payable pursuant to this Section 4.8.
5. Termination of Employment Period
5.1 Termination Without Cause. Employer or Executive may, by
delivery of not less than 60 days' notice to the other at any time during the
Employment Period, terminate the Employment Period without cause.
5.2 By Employer for Cause. Employer may, at any time during
the Employment Period by notice to Executive in accordance with and only after
full compliance with the procedure set forth herein terminate the Employment
Period "for cause" effective immediately. For the purposes hereof, "for cause"
means:
(i) the conviction of Executive in a court of
competent jurisdiction of a crime
constituting a felony in such jurisdiction
involving money or other property of
Employer or any of its affiliates or any
other felony involving moral turpitude; or
(ii) the willful (a) commission of an act not
approved of or ratified by the Board of
Directors involving a serious and material
conflict of interest or self-dealing
relating to any material aspects of Employer
or any such subsidiary or affiliate thereof;
or (b) commission of an act of fraud or
misrepresentation (including the omission of
material facts), provided that such acts
relate to the business of Employer and would
materially and negatively impact upon
Employer and its business; or (c) material
failure of Executive to obey directions of
the Board of Directors that are consistent
with Executive's status of Chief Executive
Officer; however, for the purposes of this
subsection (ii), the refusal of Executive to
comply with an order or directive of anyone
other than the majority of the Board of
Directors, or the refusal of Executive to
perform an act which is contrary to his
duties, responsibilities and/or authority as
Chief Executive Officer or is unlawful shall
not constitute "for cause". In the event of
an act or omission as provided for in this
subsection 5.2(ii), Employer shall provide
Executive with a written notice of intent to
terminate the Employment Period "for cause",
setting forth, with reasonable
particularity, the reasons and acts or
omissions constituting "cause" under this
subsection, and shall provide Executive
with at least thirty (30) calendar days
after such notice to cure or eliminate the
problem or violation giving rise to such
cause or any longer period as reasonably
needed by Executive, provided that it is
susceptible to cure or elimination and
Executive is proceeding diligently and in
good faith to cure such violation. In the
event and only after the Executive fails
to cure the problem or violation within
the period provided for herein, Employer
may exercise its right to terminate the
Employment Period in accordance with the
procedure set forth below.
Termination "for cause" shall be effected only if (A) Employer
has delivered to Executive a copy of a written notice of termination "for
cause", setting forth, with reasonable particularity, the reasons for such "for
cause" termination, and (B) has provided Executive with, on at least ten (10)
business days' prior written notice, in the case of a termination pursuant to
subsection 5.2(ii) the opportunity, together with Executive's counsel, to be
heard before Employer's Board of Directors, said hearing to occur at such
reasonable time and place that is mutually convenient to Executive, his counsel,
and Employer, and (C) Employer's Board of Directors (after such notice and
opportunity to be heard has been provided to Executive in the case of a
termination pursuant to subsection 5.2(ii)), adopts a resolution concurred in by
not less than majority of all of the directors of Employer then in office,
including at least two-thirds of all of the directors who are not officers of
Employer, that Executive was guilty of conduct constituting "for cause"
hereunder, which conduct has not been cured (if applicable), and specifying the
particulars thereof in detail.
5.3 By Executive for Good Reason. Executive may, at any time
during the Employment Period by notice to Employer, terminate the Employment
Period under this Agreement "for good reason" effective immediately. For the
purposes hereof, "good reason" means (i) any material breach by Employer of any
provision of this Agreement which , if susceptible of being cured, is not cured
within 30 days of delivery of notice thereof to Employer by Executive or (ii)
the occurrence of a change in control (as hereinafter defined) of Employer
provided that not more than 90 days shall have elapsed subsequent to Executive's
becoming aware of the occurrence of the change in control. Without limitation of
the generality of the foregoing, each of the following shall be deemed to be a
material breach of this Agreement by Employer: (x) any failure timely to pay (or
any reduction in) compensation (including benefits) paid or payable to Executive
pursuant to the provisions of Section 4 hereof; (y) any reduction in the duties,
responsibilities or perquisites of Executive as provided in Section 3.1 hereof
and (z) any transfer of the Company's principal executive offices outside the
geographic area described in Section 3.2 hereof or requirement that Executive
principally perform his duties outside such geographic area.
For purposes of this Agreement, a "change in control" of the
Company shall be deemed to have occurred if, as a result of a single transaction
or a series of transactions, (A) any "person" (as such term is used in Section
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), other than a trustee or other fiduciary holding securities
under any employee benefit plan of the Company or a corporation owned, directly
or indirectly, by the stockholders of the Company (including any nominee
corporation that holds shares of the Company on behalf of the beneficial owners
of such corporation), in substantially the same proportions as their ownership
of stock of the Company, is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the
Company representing 51% or more of the combined voting power of the Company's
then outstanding securities; or (B) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act, other than a trustee or other
fiduciary holding securities under any employee benefit plan of the Company or a
corporation owned, directly or indirectly, by the stockholders of the Company
(including any nominee corporation that holds shares of the Company on behalf
of the beneficial owners of such corporation), in substantially the same
proportions as their ownership of stock of the Company, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing 30% or more of
the combined voting power of the Company's then outstanding securities and
there are at least a majority of directors serving on the Board of Directors
who were not serving in such capacity as of the date hereof or who were not
elected with the consent of the Executive; or (C) the shareholders of the
Company approve a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) at least 70% of the combined
voting power of the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or the shareholders
of the Company approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all or substantially all
the Company's assets; provided, however, the change in ownership of the
Company's securities resulting from the initial public offering thereof shall
not be deemed a "change in control" for purposes of this Agreement.
5.4 Disability. During the Employment Period, if, as a result
of physical or mental incapacity or infirmity (including alcoholism or drug
addiction), Executive shall be unable to perform his material duties under this
Agreement for (i) a continuous period of at least 180 days, or (ii) periods
aggregating at least 270 days during any period of 12 consecutive months (each a
"Disability Period"), and at the end of the Disability Period there is no
reasonable probability that Executive can promptly resume his material duties
hereunder pursuant hereto, Executive shall be deemed disabled ("the Disability")
and Employer, by notice to Executive, shall have the right to terminate the
Employment Period for Disability at, as of or after the end of the Disability
Period. The existence of the Disability shall be determined by a reputable,
licensed physician mutually selected by Employer and Executive, whose
determination shall be final and binding on the parties, provided, that if
Employer and Executive cannot agree upon such physician, such physician shall be
designated by the then acting President of the Baltimore City Medical Society,
and if for any reason such President shall fail or refuse to designate such
physician, such physician shall, at the request of either party, be designated
by the American Arbitration Association. Executive shall cooperate in all
reasonable respects to enable an examination to be made by such physician.
5.5 Death. The Employment Period shall end on the date of
Executive's death.
6. Termination Compensation; Non-Compete
6.1 Termination Without Cause by Employer or for Good Reason
by Executive. If the Employment Period is terminated by Employer pursuant to the
provisions of Section 5.1 hereof or by Executive pursuant to the provisions of
Section 5.3 hereof, Employer will pay to Executive (i) the greater of (a) the
Base Salary for the balance of the Employment Period, or (b) Base Salary for one
(1) year, calculated in each case, at the applicable Base Salary rate which
would have been in effect for each year during the balance of Employment Period,
assuming no termination, payable in equal installments at the times Base Salary
would have been paid had the Employment Period not been terminated; and (ii) on
the date due pursuant to the provisions of Section 4.2 hereof, the Bonus for the
then current Bonus Year prorated as provided in Section 4.2; provided, however,
in the event the Employment Period is terminated by Executive because of a
"change in control" pursuant to Section 5.3 (ii), then clause (i) of this
sentence shall be modified to read: "the Base Salary for the period which is
the greater of (a) eighteen (18) months or (b) the balance of the Employment
Period not to exceed twenty-four (24) months (calculated, in each case, at
the applicable Base Salary rate which would have been in effect for each year
during the balance of the Employment Period, assuming no termination) payable in
equal installments at the times Base Salary would have been paid had the
Employment Period not been terminate." All other benefits provided for in
Sections 4.3, 4.4, 4.5 and 4.8 shall be continued at the expense of Employer
for the period that payments are required to be made pursuant to the
preceding provisions of this Section 6.1.
6.2 Certain Other Terminations. If the Employment Period is
terminated by Employer pursuant to the provisions of Section 5.2, by Executive
pursuant to Section 5.1, or by death, pursuant to the provisions of Section 5.5,
Employer shall pay to Executive (i) Base Salary (calculated at its then current
rate per year) through the date of termination and (ii) in the case of
termination by death pursuant to the provisions of Section 5.5, when due
pursuant to provisions of Section 4.2 the Bonus for the Bonus Year in which the
date of termination occurred prorated as provided in said Section 4.2. Employer
shall have no obligation to continue any other benefits provided for in Section
4 past the date of termination.
6.3 Termination for Disability. If the Employment Period is
terminated by Employer pursuant to the provisions of Section 5.4, Employer shall
make all payments and continue all benefits provided for in Section 6.1 for the
balance of the Employment Period (assuming no termination), provided, however,
that such payments shall be reduced by any amounts actually paid to Executive
pursuant to any disability insurance or other such similar program maintained by
Employer.
6.4 Termination by Non-Renewal. In the event the Employment
Period expires because of an election by Employer to allow the Employment Period
to expire at the end of its then stated term as provided in Section 2 hereof,
Employer shall pay to Executive (i) Base Salary for the one year period
following the date of termination (calculated at its then current rate per
year), payable in equal installments at the times Base Salary would have been
paid had the Employment Period not been terminated and (ii) when due pursuant to
the provisions of Section 4.2 the Bonus for the Bonus Year in which the
Employment Period expired prorated as provided in said Section 4.2. Employer
shall have no obligation to continue any other benefits provided for in Section
4 past the date of termination.
6.5 Tax Grossup. In the event that any amounts paid to
Executive pursuant to the provisions of this Section 6 (including benefits
continued and payments deemed received by reason of changes in stock options
provided for therein, all such amounts, collectively, the "Severance Payments")
shall be deemed to be subject to the tax imposed by Section 4999 of the Internal
Revenue Code of 1986, as amended (the "Excise Tax"), an additional amount (the
"Grossup Amount") shall be paid by Employer to Executive such that the net
amount retained by Executive, after deduction of any Excise Tax on the Severance
Payments and any federal, state and local income tax and Excise Tax upon the
payment provided for by this sentence, shall be equal to the Severance Payments.
The provisions of this Section 6.5 shall survive the expiration of the
Employment Period and shall continue in effect until expiration of the statute
of limitations for tax returns filed that include the period in which any
Severance Payments are made or, if earlier, final determination of tax liability
relating thereto. Payment of the Grossup Amount shall be made in accordance with
the computation thereof by the accountant to Executive in connection with
preparation of Executive's tax return for the relevant tax year, and shall be
adjusted upon final determination of tax liability, with any increase therein
being paid by the Employer to Executive or decrease therein being paid by
Executive to Employer within 30 days following the date of final determination
of tax liability.
6.6 No Other Termination Compensation. Executive shall not,
except as set forth in this Section 6 and in Section 4.7, be entitled to any
compensation following termination of the Employment Period, except as otherwise
provided in any stock options granted by Employer to Executive.
6.7 Mitigation. Executive shall not be required to mitigate
the amount of any payments or benefits provided for hereunder upon termination
of the Employment Period by seeking employment with any other person, or
otherwise, nor shall the amount of any such payments or benefits be reduced by
any compensation, benefit or other amount earned by, accrued for or paid to
Executive as the result of Executive's employment by or consultancy or other
association with any other person, provided, that any medical, dental or
hospitalization insurance or benefits provided to Executive with his employment
by or consultancy with an unaffiliated person during such period shall be
primary to the benefits to be provided to Executive pursuant to this Agreement
for the purposes of coordination of benefits.
6.8 Non-Compete. For the 6 month period following the
termination of the Employment Period for any reason whatsoever, including
termination pursuant to Section 6.4 (other than a termination by Executive
pursuant to Section 5.1, in which case the applicable period shall be one year)
and for so long as Employer is making and Executive is accepting the payments
required to be made to Executive pursuant to Section 6.1 or 6.4 hereof,
Executive shall not, directly or indirectly, (i) engage in any activities that
are in competition with the Company in any geographic area where the Company is
engaged in business, (ii) solicit any customer of the Company or (iii) solicit
any person who is then employed by the Company or was employed by the Company
within one year of such solicitation to (a) terminate his or her employment with
the Company, (b) accept employment with anyone other than the Company, or (c) in
any manner interfere with the business of the Company; provided, however, in the
event Executive violates any of the provisions of the foregoing at any time
after the expiration of 6 months (one year, in the case of a termination by
Executive pursuant to Section 5.1) following the termination of the Employment
Period, Employer's sole remedy under this Agreement shall be the right to
terminate any and all severance payments required under Section 6.1 or 6.4
hereof. Executive acknowledges and agrees that in the event of any violation or
threatened violation by Executive of his obligations under the preceding
sentence during the six month (or, in the case of a termination pursuant to
Section 5.1, the one year) period following the termination of the Employment
Period, Employer shall be entitled to injunctive relief without any necessity to
post bond.
7. Indemnification
The Company shall indemnify and hold Executive harmless from
and against any expenses (including attorneys' fees of the attorneys selected by
Executive to represent him, which shall be advanced as incurred), judgements,
fines and amounts paid in settlement incurred by him by reason of his being made
a party or threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of any act or omission to act by Executive during or
before the Employment Period or otherwise by reason of the fact that he is or
was a director or officer of Employer or any subsidiary or affiliate included as
a part of the Company, to the fullest extent and in the manner set forth and
permitted by the General Corporation Law of the State of Delaware and any other
applicable law as from time to time in effect. The provisions of this Section 7
shall survive any termination of the Employment Period or any deemed termination
of this Agreement.
8. Miscellaneous.
8.1 Notices. Any notice, consent or authorization required or
permitted to be given pursuant to this Agreement shall be in writing and sent to
the party for or to whom intended, at the address of such party set forth below,
by registered or certified mail, postage paid (deemed given five days after
deposit in the U.S. mails) or personally or by facsimile transmission (deemed
given upon receipt), or at such other address as either party shall designate by
notice given to the other in the manner provided herein.
If to Employer: Jos. A. Bank Clothiers, Inc.
500 Hanover Pike
Hampstead, Maryland 21074-2095
Attn: Secretary
With a copy to: Ralph J. Sutcliffe, Esq.
Kronish, Lieb, Weiner & Hellman
1114 Avenue of the Americas
New York, New York 10036
If to Executive: Mr. Timothy F. Finley
Jos. A. Bank Clothiers, Inc.
500 Hanover Pike
Hampstead, Maryland 21074-2095
8.2 Legal Fees. The Company shall pay the reasonable legal
fees and expenses incurred by Executive in connection with preparation,
negotiation, execution and delivery of this Agreement, as well as such fees and
expenses incurred in connection with any amendment or modification hereof or
enforcement of Executive's rights hereunder.
8.3 Taxes. Employer is authorized to withhold (from any
compensation or benefits payable hereunder to Executive) such amounts for income
tax, social security, unemployment compensation and other taxes as shall be
necessary or appropriate in the reasonable judgment of Employer to comply with
applicable laws and regulations.
8.4 Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York
applicable to agreements made and to be performed therein.
8.5 Arbitration. Any dispute or controversy arising under or
in connection with this Agreement shall be settled exclusively by arbitration in
Baltimore, Maryland in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the arbitration award in
any court having jurisdiction; provided, however, that Executive shall be
entitled to seek specific performance of his right to be paid until expiration
of the Employment Period during the pendency of any arbitration.
8.6 Headings. All descriptive headings in this Agreement are
inserted for convenience only and shall be disregarded in construing or applying
any provision of this Agreement.
8.7 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
8.8 Severability. If any provision of this Agreement, or any
part thereof, is held to be unenforceable, the remainder of such provision and
this Agreement, as the case may be, shall nevertheless remain in full force and
effect.
8.9 Entire Agreement and Representation. This Agreement
contains the entire agreement and understanding between Employer and Executive
with respect to the subject matter hereof. No representations or warranties of
any kind or nature relating to the Company or its several businesses, or
relating to the Company's assets, liabilities, operations, future plans or
prospects have been made by or on behalf of Employer to Executive. This
Agreement supersedes any prior agreement between the parties relating to the
subject matter hereof.
8.10 Successor and Assigns. This Agreement shall be binding
upon and inure to the benefit of each of the parties hereto and their respective
successors, heirs (in the case of Executive) and assigns.
[signatures on next page]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
JOS. A. BANK CLOTHIERS, INC.
By:_________________________
Name:_______________________
Title:______________________
____________________________
Timothy F. Finley