Employment Agreement - Bernard Chaus Inc. and Michael Winter
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated the 14th day of December, 1995, by and
between BERNARD CHAUS, INC., a New York corporation (the "Company"), and
MICHAEL WINTER (the "Employee").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Employee and to
enter into an agreement (the "Agreement") embodying the terms of such
employment; and
WHEREAS, the Employee desires to accept such employment with
the Company and to enter into the Agreement.
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the Company and the
Employee hereby agree as follows:
1. Employment.
The Company hereby agrees to employ the Employee, and the
Employee hereby agrees to accept employment with the Company, for the Term (as
defined in Section 2 below), in the position, and with the duties and
responsibilities set forth in Section 3 below, and upon the other terms and
conditions hereinafter stated.
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2. Term.
The initial term of the Agreement shall commence on January
1, 1996 and shall continue through December 31, 1999; provided, however, that
the Agreement at all times shall be subject to earlier termination in
accordance with the provisions hereof (the "Term").
3. Position, Duties, Responsibilities.
3.1 Appointment as President - Nautica Division.
(a) During the Term, the Employee shall serve,
and the Company shall employ Employee, as President - Nautica Division with
principal supervisory responsibility over the merchandising, marketing and
sales of the Nautica Division of the Company. The Employee shall be
responsible for the duties attendant to such office, and such other duties
and responsibilities with the Company or its subsidiaries or other divisions,
consistent with such office, as may be assigned to the Employee by the Chief
Executive Officer of the Company (the "Chief Executive Officer"). The Employee
shall report directly to the Chief Executive Officer.
(b) During the Term, the Employee shall devote his full working
time, attention and energies, to the best of his ability, experience and
talent, to the business and affairs of the Company, and shall use his best
efforts to promote the best interests of the Company. Without limiting the
generality of the foregoing, the Employee shall perform such duties and
responsibilities as may be assigned to him by the Chief Executive Officer
consistent with the Employee's positions as President - Nautica Division.
Nothing in the Agreement shall preclude the Employee from engaging in
charitable and community affairs, or giving
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attention to his passive personal investments; provided, that such activities,
in the reasonable judgment of the Chief Executive Officer, do not interfere
with the regular performance of the Employee's duties and responsibilities
under the Agreement; provided, further, that without the prior approval of the
Chief Executive Officer, which approval shall not unreasonably be withheld,
(i) no such investment (other than an investment in real estate) may exceed
two percent (2%) of any class or series of equity securities of any entity and
(ii) the Employee may not serve as a member of the board of directors or as a
trustee of any other company, association or entity.
3.2 Place of Performance.
During the Term, the Employee shall perform his services at
the principal place of business of the Company, at which place he shall be
furnished with office facilities suitable to his position and the performance
of his duties and responsibilities. Notwith-standing the foregoing, the
Employee acknowledges that in fulfillment of his duties and responsibilities
hereunder he may be required to travel on behalf of the Company. The Employee
shall be entitled to first class seating on all cross-country and overseas
flights taken by him in carrying out his duties and responsibilities
hereunder, and to business class (or, if unavailable, coach) seating on all
other flights taken by him in carrying out such duties and responsibilities.
3.3 Representation.
In order to induce the Company to enter into the Agreement on the terms
and conditions set forth herein, the Employee hereby represents and warrants
to the Company that his execution of the Agreement and the performance of his
duties and responsibilities
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hereunder will not violate or result in a breach of, or in any manner be
prohibited or restricted by, the terms of any agreement, arrangement,
understanding (written or otherwise), order or decree to which he is a party
or by which he is bound.
4. Compensation.
4.1 Salary.
The Company hereby agrees to pay to the Employee, and the Employee
hereby agrees to accept, as cash compensation for all services rendered during
the term of the Agreement, a base salary (the "Base Salary") at the rate of
$500,000 per annum, payable in equal monthly installments.
4.2 Annual Cash Bonus.
In addition to the Base Salary provided in clause 4.1 above, the Board of
Directors of the Company (the "Board") shall, for each fiscal year during the
Term, consider whether the Employee shall receive a discretionary bonus based
upon his performance. For the period from the commencement of employment
through June 30, 1996, there shall be no numerate targets for the bonus. On or
about the commencement of each fiscal year of the Company during the Term,
beginning with the 1997 fiscal year (i.e., July 1, 1996 to June 30, 1997), the
Compensation Committee of the Board shall establish numerate targets for at
least a portion of the potential bonus amount available to the Employee for
that fiscal year.
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4.3 Stock Options.
On the date of commencement of employment pursuant to this
Agreement, or as soon as practicable thereafter, the Employee shall be awarded
non-incentive stock options ("Stock Options") under the Company's 1986 Stock
Option Plan, as amended (the "Stock Option Plan"), to purchase 500,000 shares
of common stock, par value $.01 per share ("Common Stock"), of the Company
(subject to the vesting provisions described below and the accelerated vesting
provisions described in clauses 9.2(a) and (b) below, but otherwise in
accordance with the terms of the Stock Option Plan). The per share exercise of
each such Stock Option shall be equal to the closing price of the Common Stock
on the date of the award thereof. The aforementioned award of Stock Options
shall vest over a five (5) year period at the rate of 125,000 Stock Options
per year commencing on the first anniversary of the date of the award thereof.
The award shall provide that each vested Stock Option shall be exercisable for
a period of ten (10) years from the date of the award thereof, provided,
however, that in the event of the termination of employment of the Employee
for any reason, the Employee shall have a thirty (30) day period from the date
of such termination within which to exercise any vested Stock Options (taking
into account the accelerated vesting provisions described in clauses 9.2(a)
and (b) below), and any Stock Options that had not vested as of such
termination date shall be forfeited.
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5. Employee Benefits.
5.1 Employee Benefit Programs and Plans.
During the Term, the Employee will be entitled to participate
in all benefit programs and plans now or hereafter made available by the Company
to its senior executive officers generally, which currently include disability
insurance, life insurance and participation in the Company's 401(K) plan. In
addition, during the Term, the Employee and his spouse and children of
minority age will be entitled to receive major medical coverage on the same
terms as is provided by the Company to its other senior executive officers.
5.2 Vacations.
The Employee shall be entitled to four (4) weeks paid vacation
in each year, such vacation to be taken at such time or times as are consistent
with the requirements of the business of the Company and the Nautica Division
and the performance of the Employee's duties and responsibilities hereunder.
Unused vacation time may not be accumulated and carried forward to a
subsequent year.
6. Expense Reimbursement and Perquisites.
6.1 Out-of-Pocket Expenses.
During the Term, the Company shall reimburse the Employee for
all reasonable, out-of-pocket, expenses incurred by him (in accordance with the
policies and procedures established by the Company for its senior executive
officers) in carrying out his duties and responsibilities hereunder; provided,
that the Employee presents appropriately itemized accounts of, and receipts
for, such expenditures.
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6.2 Relocation Expenses.
(a) Subject to the provisions of this subsection (a), the
Company shall reimburse the Employee for his reasonable moving expenses incurred
in connection with the relocation of his residence from Los Angeles, California
to the New York City metropolitan area. The Employee shall be required to
obtain estimates from two moving companies regarding the cost of moving from
Los Angeles, California to the New York City metropolitan area. The Employee
shall select the moving company with the lower of the two estimates. In the
event the estimate of such moving company is in excess of $25,000, the
Employee shall obtain authorization from the Company prior to engaging such
moving company.
(b) The Company shall reimburse the Employee for two round
trip airline tickets (business class) between Los Angeles, California and New
York City for his spouse, in connection with their search for a residence in the
New York City metropolitan area. In addition, the Company shall reimburse the
Employee for one airline ticket (business class) from Los Angeles, California
to New York City for each of himself and his spouse and children in connection
with their relocation to the New York City metropolitan area.
(c) Until the Employee is able to locate a residence in
the New York City metropolitan area, but not beyond May 31, 1996, the Company
shall reimburse the Employee for the rental costs of a temporary residence in
the New York City metropolitan area, in an amount not to exceed $2,500 per
month. During the period prior to the move to the New York City metropolitan
area by the Employee's spouse and children, but not beyond
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May 31, 1996, the Company shall reimburse the Employee for one round trip
airline ticket (business class) per month between Los Angeles, California and
the New York City metropolitan area.
6.3 Automobile.
During the Term, the Company shall reimburse the Employee for the
cost of leasing an automobile selected by the Employee and purchasing
insurance for the automobile and for the reasonable cost of a garage for, and
maintenance on, the automobile; provided, that the Company shall not be
required to reimburse the Employee in excess of $1,250 per month to lease such
automobile and for the related expenses enumerated above. The Employee shall
be entitled to account to the Company for the portion of the foregoing
expenses that constitute business-related expenses; and, to the extent
consistent with the rules and regulations promulgated by the Internal Revenue
Service, such portion of the foregoing expenses that constitute
business-related expenses shall not be subject to withholding taxes.
7. Death or Disability of Employee.
7.1 Death.
In the event of the death of the Employee during the Term, the
Agreement automatically shall be terminated. Base Salary shall be paid to the
Employee's designated beneficiary, or, in the absence of such designation, to
the estate or other legal representative of the Employee for the month in
which death occurs. The Employee shall be entitled to other death benefits in
accordance with the terms of the Company's benefit programs and plans.
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7.2 Disability.
In the event of the Disability (as herein defined) of the Employee
during the Term, the Agreement automatically shall be terminated. Base Salary
shall be paid to the Employee for the month in which Disability occurs and for a
period of six (6) months thereafter (less any Disability compensation which
the Employee receives in accordance with the Company's benefit programs and
plans). The Employee shall be entitled to other Disability compensation in
accordance with the Company's benefit programs and plans. "Disability," for
purposes of the Agreement, shall mean that the Employee has failed as a result
of his illness, physical or mental disability or other incapacity, for a
period of ninety (90) consecutive days or two hundred seventy (270) days
during the Term to render the services provided in the Agreement, or has been
adjudicated an incompetent.
8. Termination by the Company for Due Cause.
Nothing herein shall prevent the Company from terminating the
Employee's employment for Due Cause (as herein defined). Upon such
termination, the Employee shall continue to receive salary only for the period
ending with the date of such termination, and the obligation of the Company to
make any further payments (or to provide any benefits specified herein) to the
Employee shall thereupon cease and terminate. The term "Due Cause", as used
herein, shall mean (a) the Employee's willful misconduct or gross negligence
in the performance of his duties on behalf of the Company, or the Employee's
material dishonesty in the performance of his duties on behalf of the Company,
(b) the material breach of any provision of the Agreement by the Employee
(including, without
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limitation, the breach of his representation in clause 3.3 above) or (c) the
entering of a plea of guilty or nolo contendere to, or the Employee's
conviction of, a felony or other crime involving moral turpitude, dishonesty,
theft or unethical business conduct. Termination of employment pursuant to
this Section 8 shall be made by delivery to the Employee of a copy of a letter
from the Chief Executive Officer setting forth the particulars of the conduct
which provides the basis for a termination of the Employee for Due Cause.
9. Termination Other than for Due Cause.
9.1 Termination.
The Agreement may be terminated (a) by the Company (in
addition to termination pursuant to Sections 7 or 8) at any time and for any
reason, (b) by the Employee for Good Reason (as defined below), or (c) upon the
expiration of the Term. "Good Reason" shall mean the Company shall have breached
the provisions of clause 3.1(a) of the Agreement (except that the termination of
the Employee's employment by the Company for Due Cause or as a result of death
or Disability of the Employee or by the Employee other than for Good Reason
shall not be deemed a breach by the Company of the provisions of clause 3.1(a)
of the Agreement).
9.2 Severance and Non-Competition Payments.
(a) If the Agreement is terminated (i) by the Company
other than as a result of death or Disability of the Employee or for Due Cause
(and other than in connection with a change in control (as herein defined) of
the Company) or (ii) by the Employee for Good Reason (other than in connection
with a change in control of the Company), then the Company
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shall pay the Employee a severance and non-competition payment equal to the
Base Salary in effect at the time of termination for a period equal to the
lesser of (x) the remainder of the Term and (y) twelve (12) months; provided,
however, that if more then two (2) years is remaining in the Term at the time
of termination, such payment shall be for a period equal to fifty percent
(50%) of the remainder of the Term. Such severance and non-competition payment
shall be paid in equal monthly installments over such twelve (12) month or
other period, as the case may be, commencing on the first day of the month
following termination. In addition, all Stock Options which otherwise would
have vested at the anniversary of the Agreement immediately following such
termination shall be deemed to have vested on the date of such termination.
(b) In the event that, following a change in control of the Company,
the Agreement is terminated (i) by the Company other than as a result of death
or Disability of the Employee or for Due Cause or (ii) by the Employee For
Good Reason, then the Company shall pay the Employee a severance and
non-competition payment equal to the Base Salary in effect at the time of
termination for a period equal to the lesser of (x) twenty-four (24) months
and (y) the remainder of the Term. Such severance and non-competition payment
shall be paid in equal monthly installments over such twenty-four (24) month
or lesser period, as the case may be, commencing on the first day of the month
following termination. In addition, all Stock Options which have not yet
vested shall be deemed to have vested on the date of such termination. A
"change in control" of the Company shall be deemed to have occurred if (x) any
person or group shall have acquired beneficial ownership (as such terms are
defined under
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the rules and regulations adopted under the Securities Exchange Act of 1934,
as amended) of a percentage of voting securities of the Company which exceeds
the percentage of voting securities beneficially owned by Josephine Chaus (the
principal stockholder of the Company), at the time of acquisition by such
person or group, and (y) in connection with such acquisition, there shall have
occurred a change in the constituency of a majority of the Board.
(c) The Employee shall not be required to mitigate the amount of any
severance and non-competition payment provided for under the Agreement by
seeking other employment (which may include self-employment) or otherwise.
After the termination of the Agreement, however, any severance and
non-competition payments due to the Employee from the Company hereunder shall
be reduced by an amount equal to 50% of all amounts received by the Employee
in connection with any other employment (including self-employment).
10. Confidential Information.
(a) The Employee agrees not to use, disclose or make accessible to
any other person, firm, partnership, corporation or any other entity any
Confidential Information (as herein defined) pertaining to the business of the
Company except (i) while employed by the Company, in the business of and for
the benefit of the Company or (ii) when required to do so by a court of
competent jurisdiction, by any governmental agency having supervisory
authority over the business of the Company, or by any administrative body or
legislative body (including a committee thereof) with jurisdiction to order
the Company to divulge, disclose or make accessible such information. For
purposes of the Agreement, "Confidential Information" shall mean non-public
information concerning the Company's
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financial data, statistical data, strategic business plans, product
development (or other proprietary product data), customer and supplier
information, information relating to governmental relations, discoveries,
practices, processes, methods, trade secrets, marketing plans and other
non-public, proprietary and confidential information of the Company, that, in
any case, is not otherwise generally available to the public and has not been
disclosed by the Company to others not subject to confidentiality agreements.
In the event that the Employee's employment is terminated hereunder for any
reason, he immediately shall return to the Company all Confidential
Information in his possession.
(b) The Employee and the Company agree that this covenant
regarding confidential information is a reasonable covenant under the
circumstances, and further agree that if, in the opinion of any court of
competent jurisdiction, such covenant is not reasonable in any respect, such
court shall have the right, power and authority to excise or modify such
provision or provisions of this covenant as to the court shall appear not
reasonable and to enforce the remainder of the covenant as so amended. The
Employee agrees that any breach of the covenant contained in this Section 10
would irreparably injure the Company. Accordingly, the Employee agrees that
the Company, in addition to pursuing any other remedies it may have in law or
in equity, may obtain an injunction against the Employee from any court having
jurisdiction over the matter, restraining any further violation of this
Section 10.
(c) The provisions of this Section 10 shall survive the
termination of the Agreement.
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11. Non-Competition; Non-Solicitation.
(a) The Employee agrees that during the Term and for a period of
twelve (12) months thereafter (herein referred to as the "Non-Competition
Period"), without the prior written consent of the Company: (I) he shall not,
directly or indirectly, either as principal, manager, agent, consultant,
officer, director, greater than two percent (2%) holder of any class or series
of equity securities, partner, investor, lender or employee or in any other
capacity, carry on, be engaged in or have any financial interest in or
otherwise be connected with, any entity which is now or at the time, engaged
in any business activity competitive (directly or indirectly) with the
business of the Company including, for these purposes, any business in which,
at the termination of his employment, there was a bona fide intention on the
part of the Company to engage in the future; and (ii) he shall not, on behalf
of any such competing entity, directly or indirectly, have any dealings or
contact with any suppliers or customers of the Company. All severance and
non-competition payments pursuant to Section 9 shall be in consideration of
the Employee's agreement not to compete with the Company; it being understood,
however, that the Employee will have no obligations under this Section 11(a)
if following the termination of his employment for any reason the Employee is
not receiving or is not entitled to severance and non-competition payments
under Section 9.
(b) During the Term and during the Non-Competition Period, the
Employee agrees that, without the prior written consent of the Company (and
other than on behalf of the Company), the Employee shall not, on his own
behalf or on behalf of any person or entity, directly or indirectly, hire or
solicit the employment of any employee who has been
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employed by the Company at any time during the one (1) year period immediately
preceding such date of hiring or solicitation by the Employee. The restrictive
covenant contained in this Section 11(b) shall not apply to the hiring by the
Employee of his personal assistant.
(c) The Employee and the Company agree that the covenants of
non-competition and non-solicitation are reasonable covenants under the
circumstances, and further agree that if, in the opinion of any court of
competent jurisdiction such covenants are not reasonable in any respect, such
court shall have the right, power and authority to excise or modify such
provision or provisions of these covenants as to the court shall appear not
reasonable and to enforce the remainder of these covenants as so amended. The
Employee agrees that any breach of the covenants contained in this Section 11
would irreparably injure the Company. Accordingly, the Employee agrees that
the Company, in addition to pursuing any other remedies it may have in law or
in equity, may obtain an injunction against the Employee from any court having
jurisdiction over the matter restraining any further violation of this Section
11.
(d) The provisions of this Section 11 shall survive the
termination of the Agreement.
12. Notices.
All notices, request, demands or other communications required or
permitted under the Agreement shall be in writing and shall be deemed duly to
have been given when mailed by registered or certified mail, return receipt
requested, postage prepaid, sent by facsimile (followed by telephonic
confirmation of receipt) or personally delivered by
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hand or overnight courier to the address stated below or to such changed
address as the addressee may have given by similar notice.
To the Company: Bernard Chaus, Inc.
1410 Broadway
New York, New York 10018
Attention: Chairwoman of the Board
With a copy to: Shereff, Friedman, Hoffman & Goodman, LLP
919 Third Avenue
New York, New York 10022
Attention: Martin Nussbaum, Esq.
To the Employee: Mr. Michael Winter
c/o Bernard Chaus, Inc.
1410 Broadway
New York, New York 10018
With a copy to: Hansen, Jacobson, Teller & Hoberman
450 N. Roxbury Drive, 8th Floor
Beverly Hills, California 90210-4222
Attention: Craig A. Jacobson, Esq.
Communications delivered by hand or overnight courier or by facsimile shall be
deemed received on the date of delivery and communications sent by registered
or certified mail shall be deemed received three (3) business days after the
sending thereof.
13. Entire Agreement.
The Agreement contains the entire agreement between the parties hereto
with respect to the matters contemplated herein and supersedes all prior
agreements or understandings among the parties related to such matters.
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14. Binding Effect; Assignment.
The Agreement shall be binding upon and inure to the benefit of the
Company and its successors and assigns and upon the Employee and his
successors and assigns. "Successors and assigns" shall mean, in the case of
the Company, any successor pursuant to a merger, consolidation, or sale or a
transfer of all or substantially all of the assets of the Company and, in the
case of the Employee, his heirs and/or legal representatives as determined by
will or by operation of law. Neither the Agreement nor any rights hereunder
shall be assignable or otherwise subject to hypothecation by the Employee
(except by will or by operation of law). The Company may assign the Agreement
and all of its rights hereunder to any of its successors and assigns.
15. Amendment or Modification; Non-Waiver.
No provision of the Agreement may be amended or waived unless
agreed to in writing, signed by the parties hereto. The waiver of, or failure
to take action with regard to, any breach of any term or condition of the
Agreement shall not be deemed to constitute a continuing waiver or a waiver of
any other breach of the same or any other term or condition.
16. Beneficiaries; References.
The Employee shall be entitled to select (and change, to the extent
permitted under any applicable law) a beneficiary or beneficiaries to receive
any compensation or benefit payable hereunder following the Employee's death,
and may change such election by giving the Company written notice thereof. In
the event of the Employee's death,
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Disability or a judicial determination of his incompetence, reference in the
Agreement to the Employee shall be deemed, where appropriate, to refer to his
beneficiary, estate or other legal representative.
17. Survivorship.
The respective rights and obligations of the parties hereunder shall
survive any termination of the Agreement to the extent necessary to the
intended preservation of such rights and obligations. The provisions of this
Section 17 are in addition to the survivorship provisions of any other section
of the Agreement.
18. Governing Law.
The validity, interpretation, construction, performance and
enforcement of the Agreement shall be governed by the laws of the State of New
York, without reference to rules relating to conflict of law.
19. Severability.
If any provision of the Agreement shall be determined to be invalid
or unenforceable (in whole or in part) for any reason, the remaining provisions
of the Agreement shall be unaffected thereby and shall remain in full force
and effect to the fullest extent permitted by law. The provisions of this
Section 19 are in addition to the severability provisions of any other section
of the Agreement.
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20. Withholding.
The Company shall withhold from any payments due to the Employee
hereunder, all taxes, FICA or other amounts required to be withheld pursuant
to any applicable law.
21. Headings.
The headings contained in the Agreement are intended solely for
convenience of reference and shall not affect in any way the meaning or
interpretation of the
Agreement.
22. Counterparts.
The Agreement may be executed in one or more counterparts, each of
which for all purposes shall be deemed to be an original, and all of which
when taken together shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed the
Agreement as of the day and year first above written.
BERNARD CHAUS, INC.
By: \s\ Andrew Grossman
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Name: Andrew Grossman
Title: Chief Executive Officer
\s\ Michael Winter
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Michael Winter
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