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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report:
December 6, 1995
DESIGNS, INC.
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(Exact Name of registrant as specified in its charter)
Delaware 0-15898 04-2623104
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
1244 Boylston Street, Chestnut Hill, Massachusetts 02167
(Address of principal executive offices) (Zip Code)
(617) 739-6722
(Registrant's telephone number, including area code)
Item 5. Other Events
As of October 16, 1995, the Board of Directors of Designs, Inc. (the
"Company") authorized the Company to enter into Employment Agreements with
each of its four senior executive officers. The four senior executive
officers of the Company, Joel H. Reichman, President and Chief Executive
Officer, Scott N. Semel, Senior Vice President, General Counsel and
Secretary, Mark S. Lisnow, Senior Vice President, Merchandising, and
William D. Richins, Chief Financial Officer, and the Company have entered
into such Employment Agreements. Each Employment Agreement provides,
among other things, that the initial term of employment will cover a period
of three years following the date the Agreement was authorized, unless the
Agreement is terminated prior thereto in accordance with its terms.
Accompanying this Report as Exhibits 10.1 through 10.4 are the Employment
Agreements between the Company and each of Mr. Reichman, Mr. Semel,
Mr. Lisnow and Mr. Richins.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
DESIGNS, INC.
Date: December 6, 1995 By: /s/ Scott N. Semel
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Scott N. Semel, Senior Vice President,
General Counsel and Secretary
Index to Exhibits
-----------------
Exhibit No. Description
- ----------- -----------
10.1. Employment Agreement dated as of October 16, 1995 between
Designs, Inc. and Joel H. Reichman
10.2. Employment Agreement dated as of October 16, 1995 between
Designs, Inc. and Scott N. Semel
10.3. Employment Agreement dated as of October 16, 1995 between
Designs, Inc. and Mark S. Lisnow
10.4. Employment Agreement dated as of October 16, 1995 between
Designs, Inc. and William D. Richins
EMPLOYMENT AGREEMENT
--------------------
AGREEMENT made as of October 16, 1995, between DESIGNS, INC., a
Delaware corporation with an office at 1244 Boylston Street, Chestnut
Hill, Massachusetts, 02167 (the "Company"), and JOEL H. REICHMAN,
residing at 46 Ralph Road, Marblehead, Massachusetts 01970 (the
"Executive").
W I T N E S S E T H:
-------------------
WHEREAS, the Company desires that Executive be employed to serve
in a senior executive capacity with the Company, and Executive desires
to be so employed by the Company, upon the terms and conditions herein
set forth.
NOW, THEREFORE, in consideration of the premises and of the
mutual promises, representations and covenants herein contained, the
parties hereto agree as follows:
1. EMPLOYMENT
The Company hereby employs Executive and Executive hereby
accepts such employment, subject to the terms and condition herein set
forth. Executive shall hold the office of President and Chief
Executive Officer reporting to the Board of Directors of the Company
(the "Board of Directors").
2. TERM
The initial term of employment under this Agreement shall
begin on the date hereof (the "Employment Date") and shall continue
for a period of three (3) years from that date, subject to prior
termination in accordance with the terms hereof. Thereafter, this
Agreement shall automatically be renewed for successive one year terms
unless either party shall give the other ninety (90) days prior
written notice of its intent not to renew this Agreement.
3. COMPENSATION
As compensation for the employment services to be rendered by
Executive hereunder, including all services as an officer of the
Company and any of its subsidiaries and affiliates, the Company agrees
to pay, or cause to be paid, to Executive, and Executive agrees to
accept, payable in equal installments in accordance with Company
practice, an initial annual salary of $375,000. Executive's annual
salary hereunder for the remaining years of employment shall be
determined by the Compensation Committee of the Board of Directors in
its sole discretion; provided, however, that Executive's salary shall
be increased each year effective as of the first day of the Company's
fiscal year and commencing with the beginning of fiscal 1997, by at
least the percentage increase, if any, in the cost of living shown on
the Consumer Price Index for all items in the Boston, Massachusetts
Area (published by the Bureau of Labor Statistics of the United States
Department of Labor) between January 1995 and the last calendar month
immediately preceding the first day of the following calendar year.
In addition, Executive shall be entitled to bonuses from time to time
in such amounts as may be determined by the Compensation Committee of
the Board of Directors in its sole discretion.
4. EXPENSES
The Company shall pay or reimburse Executive, upon
presentment of suitable vouchers, for all reasonable business and
travel expenses which may be incurred or paid by Executive in
connection with his employment hereunder. Executive shall comply with
such restrictions and shall keep such records as the Company may deem
necessary to meet the requirements of the Internal Revenue Code of
1986, as amended from time to time, and regulations promulgated
thereunder.
5. OTHER BENEFITS
(a) Executive shall be entitled to such vacations and to
participate in and receive any other benefits customarily provided by
the Company to its senior management personnel (including any bonus,
profit sharing, pension, 401(k), short and long-term disability
insurance, hospital, major medical insurance and group life insurance
plans in accordance with the terms of such plans) and including stock
option and/or stock purchase plans, all as determined from time to
time by the Compensation Committee of the Board of Directors of the
Company.
(b) The Company shall, during the term of Executive's
employment hereunder, provide Executive with a full size automobile
for his use in performing his employment duties and obligations
hereunder, including maintenance of and fuel for such automobile.
6. DUTIES
(a) Executive shall perform such duties and functions as
the Board of Directors of the Company shall from time to time
determine and Executive shall comply in the performance of his duties
with the policies of, and be subject to the direction of the Board of
Directors. Executive shall serve as an officer of the Company without
further compensation.
At the request of the Board of Directors, Executive shall serve,
without further compensation, as an executive officer of any
subsidiary or affiliate of the Company and, in the performance of such
duties, Executive shall comply with the policies of the Board of
Directors of each such subsidiary or affiliate.
(b) During the term of this Agreement, Executive shall
devote substantially all of his time and attention, vacation time and
absences for sickness excepted, to the business of the Company, as
necessary to fulfill his duties. Executive shall perform the duties
assigned to him with fidelity and to the best of his ability.
Notwithstanding anything herein to the contrary, Executive may engage
in other activities so long as such activities do not unreasonably
interfere with Executive's performance of his duties hereunder and do
not violate Section 9 hereof.
(c) Nothing in this Section 6 or elsewhere in this
Agreement shall be construed to prevent Executive from investing or
trading in nonconflicting investments as he sees fit for his own
account, including real estate, stocks, bonds, securities, commodities
or other forms of investments.
(d) The principal location at which the Executive shall
perform his duties hereunder shall be at the Company's offices in
Chestnut Hill, Massachusetts or at such other location as may be
designated from time to time by the Board of Directors of the Company;
provided that if the principal location of Executive's duties is
transferred from Chestnut Hill, Massachusetts, the new principal
location of Executive's duties shall not be transferred beyond a
15-mile radius of Chestnut Hill, Massachusetts without Executive's
consent. Notwithstanding, the foregoing, Executive shall perform such
services at such other locations as may be required for the proper
performance of his duties hereunder, and Executive recognizes that
such duties may involve travel.
7. TERMINATION OF EMPLOYMENT; EFFECT OF TERMINATION
(a) Executive's employment hereunder may be terminated at
any time upon written notice from the Company to Executive:
(i) upon the determination by the Board of Directors
that Executive's performance of his duties has not
been fully satisfactory for any reason which would
not constitute justifiable cause (as hereinafter
defined) upon thirty (30) days' prior written
notice to Executive; or
(ii) upon the determination by the Board of Directors
that there is justifiable cause (as hereinafter
defined) for such termination upon ten (10) days'
prior written notice to Executive.
(b) Executive's employment shall terminate upon:
(i) the death of Executive; or
(ii) the "disability" of Executive (as hereinafter
defined pursuant to subsection (c) herein)
pursuant to subsection (f) hereof.
(c) For the purposes of this Agreement, the term
"disability" shall mean the inability of Executive, due to illness,
accident or any other physical or mental incapacity, substantially to
perform his duties for a period of three (3) consecutive months or for
a total of six (6) months (whether or not consecutive) in any twelve
(12) month period during the term of this Agreement, as reasonably
determined by the Board of Directors of the Company after examination
of Executive by an independent physician reasonably acceptable to
Executive.
(d) For the purposes hereof, the term "justifiable cause"
shall mean and be limited to: any repeated willful failure or refusal
to perform any of the duties pursuant to this Agreement where such
conduct shall not have ceased within 30 days following written warning
from the Company; Executive's conviction (which, through lapse of time
or otherwise, is not subject to appeal) of any crime or offense
involving money or other property of the Company or its subsidiaries
or affiliates or which constitutes a felony in the jurisdiction
involved; Executive's performance of any act or his failure to act,
for which if Executive were prosecuted and convicted, a crime or
offense involving money or property of the Company or its subsidiaries
or affiliates, or which would constitute a felony in the jurisdiction
involved, would have occurred; any unauthorized disclosure by
Executive to any person, firm or corporation other than the Company,
its subsidiaries or affiliates and their respective directors,
officers and employees (or other persons fulfilling similar
functions), of any confidential information or trade secret of the
Company or any of its subsidiaries or affiliates; any attempt by
Executive to secure any personal profit in connection with the
business of the Company or any of its subsidiaries and affiliates; or
the engaging by Executive in any business other than the business of
the Company and its subsidiaries and affiliates which unreasonably
interferes with the performance of his duties hereunder. Upon
termination of Executive's employment for justifiable cause, this
Agreement shall terminate immediately and Executive shall not be
entitled to any amounts or benefits hereunder other than such portion
of Executive's annual salary and reimbursement of expenses pursuant to
Section 4 hereof as has been accrued through the date of his
termination of employment.
(e) If Executive shall die during the term of his
employment hereunder, this Agreement shall terminate immediately. In
such event, the estate of Executive shall thereupon be entitled to
receive such portion of Executive's annual salary and reimbursement of
expenses pursuant to Section 4 as has been accrued through the date of
his death. If Executive's death shall occur while he is on Company
business, the estate of Executive shall be entitled to receive, in
addition to the other amounts set forth in this subsection (e), an
amount equal to one-half his then annual salary.
(f) Upon Executive's "disability", the Company shall have
the right to terminate Executive's employment. Notwithstanding any
inability to perform his duties, Executive shall be entitled to
receive his compensation (including bonus, if any) and reimbursement
of expenses pursuant to Section 4 as provided herein until he begins
to receive long-term disability insurance benefits under the policy
provided by the Company pursuant to Section 5 hereof. Any termination
pursuant to this subsection (f) shall be effective on the later of (i)
the date 30 days after which Executive shall have received written
notice of the Company's election to terminate or (ii) the date he
begins to receive long-term disability insurance benefits under the
policy provided by the Company pursuant to Section 5 hereof.
(g) Notwithstanding any provision to the contrary contained
herein, in the event that Executive's employment is terminated by the
Company at any time for any reason other than justifiable cause,
disability or death, or in the event the Company shall fail to renew
this Agreement at any time within two years following the effective
date of a Change in Control of the Company, the Company shall upon
such termination, immediately pay (i) Executive, in a lump sum, an
amount equal to the greater of (1) one-twelfth of the Executive's then
annual salary multiplied by the number of months in the remaining term
of this Agreement or (2) a sum equal to his then annual salary
multiplied by two years (such period being hereinafter referred to as
the "Severance Period"), which amount shall be in lieu of any and all
other payments due and owing to the Executive under the terms of this
Agreement (other than any payments constituting reimbursement of
expenses pursuant to Section 4 hereof), and (ii) continue to allow
Executive to participate, at the Company's expense, in the Company's
health insurance and disability insurance programs, to the extent
permitted under such programs, during the Severance Period
(collectively, the "Severance Payments"). For purposes of this
Agreement, a "Change in Control of the Company" shall be deemed to
occur if (i) there shall be consummated (x) any consolidation or
merger of the Company in which the Company is not the continuing or
surviving corporation or pursuant to which shares of the Company's
Common Stock would be converted into cash, securities or other
property, other than a merger of the Company in which the holders of
the Company's Common Stock immediately prior to the merger have the
same proportionate ownership of common stock of the surviving
corporation immediately after the merger, or (y) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the
Company, or (ii) the stockholders of the Company shall approve any
plan or proposal for liquidation or dissolution of the Company, or
(iii) any person (as such term is used in Sections 13(d) and 14(d)(2)
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) shall become the beneficial owner (within the meaning of Rule
13d-3 under the Exchange Act) of 40% or more of the Company's
outstanding Common Stock other than pursuant to a plan or arrangement
entered into by such person and the Company, or (iv) during any period
of two consecutive years, individuals who at the beginning of such
period constitute the entire Board of Directors of the Company shall
cease for any reason to constitute a majority thereof unless the
election, or the nomination for election by the Company's
stockholders, of each new director was approved by a vote of at least
two-thirds of the directors then still in office who were directors at
the beginning of the period.
(h) Notwithstanding any provision to the contrary contained
herein, in the event the Company elects not to renew this Agreement
(other than within two years following a change in Control of the
Company, which is covered in Section 7(g) above) the Company will pay
Executive a severance payment equal to the greater of (i) two months'
salary plus 1/6 of Executive's bonus, if any, relating to the most
recently completed fiscal year, for each year Executive has been
employed by the Company or (ii) one year's annual salary.
(i) Executive may terminate his employment at any time upon
30 days' prior written notice to the Company. Upon Executive's
termination of his employment hereunder or his election not to renew
this Agreement, this Agreement (other than Sections 4, 7, 9, 10, 11
and 12, which shall survive, if at all, in accordance with their
terms) shall terminate, provided however, that Section 9 shall not
survive such termination unless the Company pays to Executive during
the Severance Period the Severance Payments. In such event, Executive
shall be entitled to receive such portion of Executive's annual salary
and bonus, if any, as has been accrued to date. Executive shall be
entitled to reimbursement of expenses pursuant to Section 4 hereof and
to participate in the Company's benefit plans to the extent
participation by former employees is required by law or permitted by
such plans, with the expense of such participation to be as specified
in such plans for former employees.
(j) If, in connection with a change of ownership or control
of the Company or a change in ownership of a substantial portion of
the assets of the Company (all within the meaning of Section
28OG(b)(2) of the Internal Revenue Code of 1986, as amended (the
"Code")), an excise tax is payable by Executive under Section 4999 of
the Code, then the Company will pay to the Executive additional
compensation which will be sufficient to enable Executive to pay such
excise tax as well as the income tax and excise tax on such additional
compensation, such that, after the payment of income and excise taxes,
Executive is in the same economic position in which he would have been
if the provisions of Section 4999 of the Code had not been applicable.
The additional compensation required by this Section 7(j) will be paid
to Executive promptly after the date or dates on which the amount of
such additional compensation is determinable, in whole or in part.
(k) Upon the resignation of this Executive Officer in any
capacity that resignation will be deemed to be a resignation from all
offices and positions that that person holds with respect to the
Company and any of its subsidiaries and affiliates.
8. REPRESENTATION AND AGREEMENTS OF EXECUTIVE
(a) Executive represents and warrants that he is free to
enter into this Agreement and to perform the duties required
hereunder, and that there are no employment contracts or
understandings, restrictive covenants or other restrictions, whether
written or oral, preventing the performance of his duties hereunder.
(b) Executive agrees to submit to a medical examination and
to cooperate and supply such other information and documents as may be
required by any insurance company in connection with the Company's
obtaining life insurance on the life of Executive, and any other type
of insurance or fringe benefit as the Company shall determine from
time to time to obtain.
9. NON-COMPETITION
(a) Executive agrees that during his employment by the
Company and during the one year period following the termination of
Executive's employment hereunder, (the "Non-Competitive Period"),
Executive shall not, directly or indirectly, as owner, partner, joint
venturer, stockholder, employee, broker, agent, principal, trustee,
corporate officer, director, licensor, or in any capacity whatsoever
engage in, become financially interested in, be employed by, render
any consultation or business advice with respect to, or have any
connection with, any business which is competitive with, products or
services of the Company or any of its subsidiaries and affiliates, in
any geographic area in the United States of America where, at the time
of the termination of his employment hereunder, the business of the
Company or any of its subsidiaries and affiliates was being conducted
or was proposed to be conducted in any manner whatsoever; provided,
however, that Executive may own any securities of any corporation
which is engaged in such business and is publicly owned and traded but
in an amount not to exceed at any one time one percent (1%) of any
class of stock or securities of such corporation. In addition,
Executive shall not notify directly or indirectly, during the Non-
Competitive Period, request or cause any suppliers or customers with
whom the Company or any of its subsidiaries and affiliates has a
business relationship to cancel or terminate any such business
relationship with the Company or any of its subsidiaries and
affiliates of solicit, interfere with or entice from the Company any
employee (or former employee) of the Company.
(b) If any portion of the restrictions set forth in this
Section 9 should, for any reason whatsoever, be declared invalid by a
court of competent jurisdiction, the validity or enforceability of the
remainder of such restrictions shall not thereby be adversely
affected.
(c) Executive acknowledges that the Company conducts
business throughout the United States, that its sales and marketing
prospects are for continued expansion throughout the United States and
that, therefore, the territorial and time limitations set forth in
this Section 9 are reasonable and properly required for the adequate
protection of the business of the Company and its subsidiaries and
affiliates. In the event any such territorial or time limitation is
deemed to be unreasonable by a court of competent jurisdiction,
Executive agrees to the reduction of the territorial or time
limitation to the area or period which such court shall deem
reasonable.
(d) The existence of any claim or cause of action by
Executive against the Company or any subsidiary or affiliate shall not
constitute a defense to the enforcement by the Company or any
subsidiary or affiliate of the foregoing restrictive covenants, but
such claim or cause of action shall be litigated separately.
(e) In the event Executive's employment with the Company
terminates for any reason other than (i) the Company's failure to
renew this Agreement or (ii) termination by the Company within two
years following a Change in Control of the Company, the Company and
Executive agree that in consideration of the severance payment made to
Executive, Executive shall be available during the Non-Competitive
Period to advise and consult with the Board of Directors, the
President and other officers of the Company and its subsidiaries and
affiliates with respect to the affairs of the Company and its
subsidiaries and affiliates on a part-time basis, in response to
requests for such advisory and consulting services by the Board of
Directors, or other officers of the Company or its subsidiaries and
affiliates, subject to the conditions that (i) such services shall be
performed within the United States of America, (ii) Executive shall
not be required to devote a major portion of his time to such
services, (iii) such services shall not unreasonably interfere with
the performance of other employment or consulting duties Executive may
have, (iv) Executive shall not be required to perform such services
during usual vacation periods and reasonable periods of illness or
other incapacitation, (v) such services shall be performed at times
and places as shall be chosen by Executive, and which will result in
the least inconvenience to Executive, and (vi) all other provisions of
this Section 9 shall apply. The Company shall reimburse Executive for
actual out-of-pocket expenses incurred in rendering the services
performed by Executive upon the request of the Board of Directors, or
other officers of the Company or its subsidiaries or affiliates,
payable at the end of each month during such period. Notwithstanding
the foregoing, in the event that Executive seeks full-time employment
with a third party and such third party will not accept Executive's
services for as long as he is committed under this subsection (e) to
provide consulting services to the Company, then if the Board of
Directors of the Company determines in its reasonable discretion that
Executive's employment with the third party will not cause him to
breach the provisions of Section 9 of this Agreement (other than this
subsection (e)) and Executive provides the Board of Directors with a
letter signed by the third party stating that such third party will
not accept Executive's services as described above, the provisions of
this subsection (e) shall immediately terminate and be of no further
force or effect.
(f) Notwithstanding anything herein to the contrary, this
Section 9 shall automatically terminate if the Company elects not to
renew this Agreement, if the Company terminates Executive's employment
within two years following the effective date of a Change in Control
of the Company, or if the Company fails to make any payments due to
Executive under Sections 7(g), 7(h), 7(i) or 9(e).
10. INVENTIONS AND DISCOVERIES
(a) Upon execution of this Agreement and thereafter
Executive shall promptly and fully disclose to the Company, and with
all necessary detail for a complete understanding of the same, all
existing and future developments, know-how, discoveries, inventions,
improvements, concepts, ideas, writings, formulae, processes and
Methods (whether copyrightable, patentable or otherwise) made,
received, conceived, acquired or written during working hours, or
otherwise, by Executive (whether or not at the request or upon the
suggestion of the Company) during the period of his employment with,
or rendering of advisory or consulting services to, the Company or any
of its subsidiaries and affiliates, solely or jointly with others in
or relating to any activities of the Company or its subsidiaries and
affiliates known to him as a consequence of his employment or the
rendering of advisory and consulting services hereunder (collectively
the "Subject Matter").
(b) Executive hereby assigns and transfers, and agrees to
assign and transfer, to the Company) all his rights, title and
interest in and to the Subject Matter, and Executive further agrees to
deliver to the Company any and all drawings, notes, specifications and
data relating to the Subject Matter, and to execute, acknowledge and
deliver all such further papers, including applications for copyrights
or patents, as may be necessary to obtain copyrights and patents for
any thereof in any and all countries and to vest title thereto to the
Company. Executive shall assist the Company in obtaining such
copyrights or patents during the term of this Agreement, and any time
thereafter on reasonable notice and at mutually convenient times, and
Executive agrees to testify in any prosecution or litigation involving
any of the Subject Matter; provided, however, that Executive shall be
compensated in a timely manner at the rate of $1,500 per day (or
portion thereof), plus out-of-pocket expenses incurred in rendering
such assistance or giving or preparing to give such testimony if it is
required after the Severance Period.
11. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
(a) Executive shall not, during the term of this Agreement,
or at any time following termination of this Agreement, directly or
indirectly, disclose or permit to be known (other than as is required
in the regular course of his duties (including without limitation
disclosures to the Company's advisors and consultants) or is required
by law (in which case Executive shall give the Company prior written
notice of such required disclosure) or with the prior written consent
of the Board of Directors of the Company), to any person, firm or
corporation, any confidential information acquired by him during the
course of, or as an incident to, his employment or the rendering of
his advisory or consulting services hereunder, relating to the Company
or any of its subsidiaries and affiliates, the directors of the
Company or its subsidiaries and affiliates, any client of the Company
or any of its subsidiaries and affiliates, or any corporation,
partnership or other entity owned or controlled, directly or
indirectly, by any of the foregoing, or in which any of the foregoing
has a beneficial interest, including, but not limited to, the business
affairs of each of the foregoing. Such confidential information shall
include, but shall not be limited to, proprietary technology, trade
secrets, patented processes, research and development data, know-how,
market studies and forecasts, competitive analyses, pricing policies,
employee lists, personnel policies, the substance of agreements with
customers, suppliers and others, marketing or dealership arrangements,
servicing and training programs and arrangements, customer lists and
any other documents embodying such confidential information. This
confidentiality obligation shall not apply to any confidential
information which thereafter becomes publicly available other than
pursuant to a breach of this Section 11(a) by Executive.
(b) All information and documents relating to the Company
and its affiliates as hereinabove described (or other business
affairs) shall be the exclusive property of the Company, and Executive
shall use commercially reasonable best efforts to prevent any
publication or disclosure thereof. Upon termination of Executive's
employment with the Company, all documents, records, reports, writings
and other similar documents containing confidential information,
including copies thereof then in Executive's possession or control
shall be returned and left with the Company.
12. SPECIFIC PERFORMANCE
Executive agrees that if he breaches, or threatens to commit
a breach of, any of the provisions of Sections 9, 10 or 11 (the
"Restrictive Covenants"), the Company shall have, in addition to, and
not in lieu of, any other rights and remedies available to the Company
under law and in equity, the right to have the Restrictive Covenants
specifically enforced by an court of competent jurisdiction, it being
agreed that any breach or threatened breach of the Restrictive
Covenants would cause irreparable injury to the Company and that money
damages would not provide an adequate remedy to the Company.
Notwithstanding the foregoing, nothing herein shall constitute a
waiver by Executive of his right to contest whether a breach or
threatened breach of any Restrictive Covenant has occurred.
13. AMENDMENT OR ALTERATION
No amendment or alteration of the terms of this Agreement
shall be valid unless made in writing and signed by both of the
parties hereto.
14. GOVERNING LAW
This Agreement shall be governed by, and construed and
enforced in accordance with the substantive laws of The Commonwealth
of Massachusetts, without regard to its principles of conflicts of
laws.
15. SEVERABILITY
The holding of any provision of this Agreement to be invalid
or unenforceable by a court of competent jurisdiction shall not affect
any other provision of this Agreement, which shall remain in full
force and effect.
16. NOTICES
Any notices required or permitted to be given hereunder
shall be sufficient if in writing, and if delivered by hand or
courier, or sent by certified mail, return receipt requested, to the
addresses set forth above or such other address as either party may
from time to time designate in writing to the other, and shall be
deemed given as of the date of the delivery or at the expiration of
three days in the event of a mailing.
17. WAIVER OR BREACH
It is agreed that a waiver by either party of a breach of
any provision of this Agreement shall not operate, or be construed as
a waiver of any subsequent breach by that same party.
18. ENTIRE AGREEMENT AND BINDING EFFECT
This Agreement contains the entire agreement of the parties
with respect to the subject matter hereof, supersedes all prior
agreements, both written and oral, between the parties with respect to
the subject matter hereof, and shall be binding upon and inure to the
benefit of the parties hereto and their respective legal
representatives, heirs, distributors, successors and assigns.
19. SURVIVAL
Except as otherwise expressly provided herein, the
termination of Executive's employment hereunder or the expiration of
this Agreement shall not affect the enforceability of Sections 4, 7,
9, 10, 11 and 12 hereof.
20. FURTHER ASSURANCES
The parties agree to execute and deliver all such further
documents, agreements and instruments and take such other and further
action as may be necessary or appropriate to carry out the purposes
and intent of this Agreement.
21. HEADINGS
The Section headings appearing in this Agreement are for the
purposes of easy reference and shall not be considered a part of this
Agreement or in any way modify, demand or affect its provisions.
22. COUNTERPARTS
This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original and all of which together
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, under seal, as of the date and year first above written.
DESIGNS, INC.
By:/s/ Scott N. Semel
------------------------------------
Scott N. Semel, Senior Vice Presient
/s/ Joel H. Reichman
---------------------------------------
Joel H. Reichman
EMPLOYMENT AGREEMENT
--------------------
AGREEMENT made as of October 16, 1995, between DESIGNS, INC., a
Delaware corporation with an office at 1244 Boylston Street, Chestnut
Hill, Massachusetts, 02167 (the "Company"), and SCOTT N. SEMEL,
residing at 54 Knobhill Street, Sharon, Massachusetts 02067 (the
"Executive").
W I T N E S S E T H:
-------------------
WHEREAS, the Company desires that Executive be employed to serve
in a senior executive capacity with the Company, and Executive desires
to be so employed by the Company, upon the terms and conditions herein
set forth.
NOW, THEREFORE, in consideration of the premises and of the
mutual promises, representations and covenants herein contained, the
parties hereto agree as follows:
1. EMPLOYMENT
The Company hereby employs Executive and Executive hereby
accepts such employment, subject to the terms and condition herein set
forth. Executive shall hold the office of Senior Vice President,
General Counsel and Secretary reporting to the Chief Executive Officer
of the Company (the "Chief Executive Officer").
2. TERM
The initial term of employment under this Agreement shall
begin on the date hereof (the "Employment Date") and shall continue
for a period of three (3) years from that date, subject to prior
termination in accordance with the terms hereof. Thereafter, this
Agreement shall automatically be renewed for successive one year terms
unless either party shall give the other ninety (90) days prior
written notice of its intent not to renew this Agreement.
3. COMPENSATION
As compensation for the employment services to be rendered by
Executive hereunder, including all services as an officer of the
Company and any of its subsidiaries and affiliates, the Company agrees
to pay, or cause to be paid, to Executive, and Executive agrees to
accept, payable in equal installments in accordance with Company
practice, an initial annual salary of $255,000. Executive's annual
salary hereunder for the remaining years of employment shall be
determined by the Compensation Committee of the Board of Directors in
its sole discretion; provided, however, that Executive's salary shall
be increased each year effective as of the first day of the Company's
fiscal year and commencing with the beginning of fiscal 1997, by at
least the percentage increase, if any, in the cost of living shown on
the Consumer Price Index for all items in the Boston, Massachusetts
Area (published by the Bureau of Labor Statistics of the United States
Department of Labor) between January 1995 and the last calendar month
immediately preceding the first day of the following calendar year.
In addition, Executive shall be entitled to bonuses from time to time
in such amounts as may be determined by the Compensation Committee of
the Board of Directors in its sole discretion.
4. EXPENSES
The Company shall pay or reimburse Executive, upon
presentment of suitable vouchers, for all reasonable business and
travel expenses which may be incurred or paid by Executive in
connection with his employment hereunder. Executive shall comply with
such restrictions and shall keep such records as the Company may deem
necessary to meet the requirements of the Internal Revenue Code of
1986, as amended from time to time, and regulations promulgated
thereunder.
5. OTHER BENEFITS
(a) Executive shall be entitled to such vacations and to
participate in and receive any other benefits customarily provided by
the Company to its senior management personnel (including any bonus,
profit sharing, pension, 401(k), short and long-term disability
insurance, hospital, major medical insurance and group life insurance
plans in accordance with the terms of such plans) and including stock
option and/or stock purchase plans, all as determined from time to
time by the Compensation Committee of the Board of Directors of the
Company.
(b) The Company shall, during the term of Executive's
employment hereunder, provide Executive with a full size automobile
for his use in performing his employment duties and obligations
hereunder, including maintenance of and fuel for such automobile.
6. DUTIES
(a) Executive shall perform such duties and functions as
the Chief Executive Officer and the Board of Directors of the Company
shall from time to time determine and Executive shall comply in the
performance of his duties with the policies of, and be subject to the
direction of, the Chief Executive Officer and/or the Board of
Directors. Executive shall serve as an officer of the Company without
further compensation.
At the request of the Chief Executive Officer and/or the Board of
Directors, Executive shall serve, without further compensation, as an
executive officer of any subsidiary or affiliate of the Company and,
in the performance of such duties, Executive shall comply with the
policies of the Board of Directors of each such subsidiary or
affiliate.
(b) During the term of this Agreement, Executive shall
devote substantially all of his time and attention, vacation time and
absences for sickness excepted, to the business of the Company, as
necessary to fulfill his duties. Executive shall perform the duties
assigned to him with fidelity and to the best of his ability.
Notwithstanding anything herein to the contrary, Executive may engage
in other activities so long as such activities do not unreasonably
interfere with Executive's performance of his duties hereunder and do
not violate Section 9 hereof.
(c) Nothing in this Section 6 or elsewhere in this
Agreement shall be construed to prevent Executive from investing or
trading in nonconflicting investments as he sees fit for his own
account, including real estate, stocks, bonds, securities, commodities
or other forms of investments.
(d) The principal location at which the Executive shall
perform his duties hereunder shall be at the Company's offices in
Chestnut Hill, Massachusetts or at such other location as may be
designated from time to time by the Board of Directors of the Company;
provided that if the principal location of Executive's duties is
transferred from Chestnut Hill, Massachusetts, the new principal
location of Executive's duties shall not be transferred beyond a
15-mile radius of Chestnut Hill, Massachusetts without Executive's
consent. Notwithstanding, the foregoing, Executive shall perform such
services at such other locations as may be required for the proper
performance of his duties hereunder, and Executive recognizes that
such duties may involve travel.
7. TERMINATION OF EMPLOYMENT; EFFECT OF TERMINATION
(a) Executive's employment hereunder may be terminated at
any time upon written notice from the Company to Executive:
(i) upon the determination by the Chief Executive
Officer and the Board of Directors that
Executive's performance of his duties has not been
fully satisfactory for any reason which would not
constitute justifiable cause (as hereinafter
defined) upon thirty (30) days' prior written
notice to Executive; or
(ii) upon the determination by the Chief Executive
Officer and the Board of Directors that there is
justifiable cause (as hereinafter defined) for
such termination upon ten (10) days' prior written
notice to Executive.
(b) Executive's employment shall terminate upon:
(i) the death of Executive; or
(ii) the "disability" of Executive (as hereinafter
defined pursuant to subsection (c) herein)
pursuant to subsection (f) hereof.
(c) For the purposes of this Agreement, the term
"disability" shall mean the inability of Executive, due to illness,
accident or any other physical or mental incapacity, substantially to
perform his duties for a period of three (3) consecutive months or for
a total of six (6) months (whether or not consecutive) in any twelve
(12) month period during the term of this Agreement, as reasonably
determined by the Chief Executive Officer and the Board of Directors
of the Company after examination of Executive by an independent
physician reasonably acceptable to Executive.
(d) For the purposes hereof, the term "justifiable cause"
shall mean and be limited to: any repeated willful failure or refusal
to perform any of the duties pursuant to this Agreement where such
conduct shall not have ceased within 30 days following written warning
from the Company; Executive's conviction (which, through lapse of time
or otherwise, is not subject to appeal) of any crime or offense
involving money or other property of the Company or its subsidiaries
or affiliates or which constitutes a felony in the jurisdiction
involved; Executive's performance of any act or his failure to act,
for which if Executive were prosecuted and convicted, a crime or
offense involving money or property of the Company or its subsidiaries
or affiliates, or which would constitute a felony in the jurisdiction
involved, would have occurred; any unauthorized disclosure by
Executive to any person, firm or corporation other than the Company,
its subsidiaries or affiliates and their respective directors,
officers and employees (or other persons fulfilling similar
functions), of any confidential information or trade secret of the
Company or any of its subsidiaries or affiliates; any attempt by
Executive to secure any personal profit in connection with the
business of the Company or any of its subsidiaries and affiliates; or
the engaging by Executive in any business other than the business of
the Company and its subsidiaries and affiliates which unreasonably
interferes with the performance of his duties hereunder. Upon
termination of Executive's employment for justifiable cause, this
Agreement shall terminate immediately and Executive shall not be
entitled to any amounts or benefits hereunder other than such portion
of Executive's annual salary and reimbursement of expenses pursuant to
Section 4 hereof as has been accrued through the date of his
termination of employment.
(e) If Executive shall die during the term of his
employment hereunder, this Agreement shall terminate immediately. In
such event, the estate of Executive shall thereupon be entitled to
receive such portion of Executive's annual salary and reimbursement of
expenses pursuant to Section 4 as has been accrued through the date of
his death. If Executive's death shall occur while he is on Company
business, the estate of Executive shall be entitled to receive, in
addition to the other amounts set forth in this subsection (e), an
amount equal to one-half his then annual salary.
(f) Upon Executive's "disability", the Company shall have
the right to terminate Executive's employment. Notwithstanding any
inability to perform his duties, Executive shall be entitled to
receive his compensation (including bonus, if any) and reimbursement
of expenses pursuant to Section 4 as provided herein until he begins
to receive long-term disability insurance benefits under the policy
provided by the Company pursuant to Section 5 hereof. Any termination
pursuant to this subsection (f) shall be effective on the later of (i)
the date 30 days after which Executive shall have received written
notice of the Company's election to terminate or (ii) the date he
begins to receive long-term disability insurance benefits under the
policy provided by the Company pursuant to Section 5 hereof.
(g) Notwithstanding any provision to the contrary contained
herein, in the event that Executive's employment is terminated by the
Company at any time for any reason other than justifiable cause,
disability or death, or in the event the Company shall fail to renew
this Agreement at any time within two years following the effective
date of a Change in Control of the Company, the Company shall upon
such termination, immediately pay (i) Executive, in a lump sum, an
amount equal to the greater of (1) one-twelfth of the Executive's then
annual salary multiplied by the number of months in the remaining term
of this Agreement or (2) a sum equal to his then annual salary
multiplied by two years (such period being hereinafter referred to as
the "Severance Period"), which amount shall be in lieu of any and all
other payments due and owing to the Executive under the terms of this
Agreement (other than any payments constituting reimbursement of
expenses pursuant to Section 4 hereof), and (ii) continue to allow
Executive to participate, at the Company's expense, in the Company's
health insurance and disability insurance programs, to the extent
permitted under such programs, during the Severance Period
(collectively, the "Severance Payments"). For purposes of this
Agreement, a "Change in Control of the Company" shall be deemed to
occur if (i) there shall be consummated (x) any consolidation or
merger of the Company in which the Company is not the continuing or
surviving corporation or pursuant to which shares of the Company's
Common Stock would be converted into cash, securities or other
property, other than a merger of the Company in which the holders of
the Company's Common Stock immediately prior to the merger have the
same proportionate ownership of common stock of the surviving
corporation immediately after the merger, or (y) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the
Company, or (ii) the stockholders of the Company shall approve any
plan or proposal for liquidation or dissolution of the Company, or
(iii) any person (as such term is used in Sections 13(d) and 14(d)(2)
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) shall become the beneficial owner (within the meaning of Rule
13d-3 under the Exchange Act) of 40% or more of the Company's
outstanding Common Stock other than pursuant to a plan or arrangement
entered into by such person and the Company, or (iv) during any period
of two consecutive years, individuals who at the beginning of such
period constitute the entire Board of Directors of the Company shall
cease for any reason to constitute a majority thereof unless the
election, or the nomination for election by the Company's
stockholders, of each new director was approved by a vote of at least
two-thirds of the directors then still in office who were directors at
the beginning of the period.
(h) Notwithstanding any provision to the contrary contained
herein, in the event the Company elects not to renew this Agreement
(other than within two years following a change in Control of the
Company, which is covered in Section 7(g) above) the Company will pay
Executive a severance payment equal to the greater of (i) two months'
salary plus 1/6 of Executive's bonus, if any, relating to the most
recently completed fiscal year, for each year Executive has been
employed by the Company or (ii) one year's annual salary.
(i) Executive may terminate his employment at any time upon
30 days' prior written notice to the Company. Upon Executive's
termination of his employment hereunder or his election not to renew
this Agreement, this Agreement (other than Sections 4, 7, 9, 10, 11
and 12, which shall survive, if at all, in accordance with their
terms) shall terminate, provided however, that Section 9 shall not
survive such termination unless the Company pays to Executive during
the Severance Period the Severance Payments. In such event, Executive
shall be entitled to receive such portion of Executive's annual salary
and bonus, if any, as has been accrued to date. Executive shall be
entitled to reimbursement of expenses pursuant to Section 4 hereof and
to participate in the Company's benefit plans to the extent
participation by former employees is required by law or permitted by
such plans, with the expense of such participation to be as specified
in such plans for former employees.
(j) If, in connection with a change of ownership or control
of the Company or a change in ownership of a substantial portion of
the assets of the Company (all within the meaning of Section
28OG(b)(2) of the Internal Revenue Code of 1986, as amended (the
"Code")), an excise tax is payable by Executive under Section 4999 of
the Code, then the Company will pay to the Executive additional
compensation which will be sufficient to enable Executive to pay such
excise tax as well as the income tax and excise tax on such additional
compensation, such that, after the payment of income and excise taxes,
Executive is in the same economic position in which he would have been
if the provisions of Section 4999 of the Code had not been applicable.
The additional compensation required by this Section 7(j) will be paid
to Executive promptly after the date or dates on which the amount of
such additional compensation is determinable, in whole or in part.
(k) Upon the resignation of this Executive Officer in any
capacity that resignation will be deemed to be a resignation from all
offices and positions that that person holds with respect to the
Company and any of its subsidiaries and affiliates.
8. REPRESENTATION AND AGREEMENTS OF EXECUTIVE
(a) Executive represents and warrants that he is free to
enter into this Agreement and to perform the duties required
hereunder, and that there are no employment contracts or
understandings, restrictive covenants or other restrictions, whether
written or oral, preventing the performance of his duties hereunder.
(b) Executive agrees to submit to a medical examination and
to cooperate and supply such other information and documents as may be
required by any insurance company in connection with the Company's
obtaining life insurance on the life of Executive, and any other type
of insurance or fringe benefit as the Company shall determine from
time to time to obtain.
9. NON-COMPETITION
(a) Executive agrees that during his employment by the
Company and during the one year period following the termination of
Executive's employment hereunder, (the "Non-Competitive Period"),
Executive shall not, directly or indirectly, as owner, partner, joint
venturer, stockholder, employee, broker, agent, principal, trustee,
corporate officer, director, licensor, or in any capacity whatsoever
engage in, become financially interested in, be employed by, render
any consultation or business advice with respect to, or have any
connection with, any business which is competitive with, products or
services of the Company or any of its subsidiaries and affiliates, in
any geographic area in the United States of America where, at the time
of the termination of his employment hereunder, the business of the
Company or any of its subsidiaries and affiliates was being conducted
or was proposed to be conducted in any manner whatsoever; provided,
however, that Executive may own any securities of any corporation
which is engaged in such business and is publicly owned and traded but
in an amount not to exceed at any one time one percent (1%) of any
class of stock or securities of such corporation. In addition,
Executive shall not notify directly or indirectly, during the Non-
Competitive Period, request or cause any suppliers or customers with
whom the Company or any of its subsidiaries and affiliates has a
business relationship to cancel or terminate any such business
relationship with the Company or any of its subsidiaries and
affiliates of solicit, interfere with or entice from the Company any
employee (or former employee) of the Company.
(b) If any portion of the restrictions set forth in this
Section 9 should, for any reason whatsoever, be declared invalid by a
court of competent jurisdiction, the validity or enforceability of the
remainder of such restrictions shall not thereby be adversely
affected.
(c) Executive acknowledges that the Company conducts
business throughout the United States, that its sales and marketing
prospects are for continued expansion throughout the United States and
that, therefore, the territorial and time limitations set forth in
this Section 9 are reasonable and properly required for the adequate
protection of the business of the Company and its subsidiaries and
affiliates. In the event any such territorial or time limitation is
deemed to be unreasonable by a court of competent jurisdiction,
Executive agrees to the reduction of the territorial or time
limitation to the area or period which such court shall deem
reasonable.
(d) The existence of any claim or cause of action by
Executive against the Company or any subsidiary or affiliate shall not
constitute a defense to the enforcement by the Company or any
subsidiary or affiliate of the foregoing restrictive covenants, but
such claim or cause of action shall be litigated separately.
(e) In the event Executive's employment with the Company
terminates for any reason other than (i) the Company's failure to
renew this Agreement or (ii) termination by the Company within two
years following a Change in Control of the Company, the Company and
Executive agree that in consideration of the severance payment made to
Executive, Executive shall be available during the Non-Competitive
Period to advise and consult with the Board of Directors, the
President and other officers of the Company and its subsidiaries and
affiliates with respect to the affairs of the Company and its
subsidiaries and affiliates on a part-time basis, in response to
requests for such advisory and consulting services by the Board of
Directors, or other officers of the Company or its subsidiaries and
affiliates, subject to the conditions that (i) such services shall be
performed within the United States of America, (ii) Executive shall
not be required to devote a major portion of his time to such
services, (iii) such services shall not unreasonably interfere with
the performance of other employment or consulting duties Executive may
have, (iv) Executive shall not be required to perform such services
during usual vacation periods and reasonable periods of illness or
other incapacitation, (v) such services shall be performed at times
and places as shall be chosen by Executive, and which will result in
the least inconvenience to Executive, and (vi) all other provisions of
this Section 9 shall apply. The Company shall reimburse Executive for
actual out-of-pocket expenses incurred in rendering the services
performed by Executive upon the request of the Board of Directors, or
other officers of the Company or its subsidiaries or affiliates,
payable at the end of each month during such period. Notwithstanding
the foregoing, in the event that Executive seeks full-time employment
with a third party and such third party will not accept Executive's
services for as long as he is committed under this subsection (e) to
provide consulting services to the Company, then if the Board of
Directors of the Company determines in its reasonable discretion that
Executive's employment with the third party will not cause him to
breach the provisions of Section 9 of this Agreement (other than this
subsection (e) and Executive provides the Board of Directors with a
letter signed by the third party stating that such third party will
not accept Executive's services as described above, the provisions of
this subsection (e) shall immediately terminate and be of no further
force or effect.
(f) Notwithstanding anything herein to the contrary, this
Section 9 shall automatically terminate if the Company elects not to
renew this Agreement, if the Company terminates Executive's employment
within two years following the effective date of a Change in Control
of the Company, or if the Company fails to make any payments due to
Executive under Sections 7(g), 7(h), 7(i) or 9(e).
10. INVENTIONS AND DISCOVERIES
(a) Upon execution of this Agreement and thereafter
Executive shall promptly and fully disclose to the Company, and with
all necessary detail for a complete understanding of the same, all
existing and future developments, know-how, discoveries, inventions,
improvements, concepts, ideas, writings, formulae, processes and
Methods (whether copyrightable, patentable or otherwise) made,
received, conceived, acquired or written during working hours, or
otherwise, by Executive (whether or not at the request or upon the
suggestion of the Company) during the period of his employment with,
or rendering of advisory or consulting services to, the Company or any
of its subsidiaries and affiliates, solely or jointly with others in
or relating to any activities of the Company or its subsidiaries and
affiliates known to him as a consequence of his employment or the
rendering of advisory and consulting services hereunder (collectively
the "Subject Matter").
(b) Executive hereby assigns and transfers, and agrees to
assign and transfer, to the Company) all his rights, title and
interest in and to the Subject Matter, and Executive further agrees to
deliver to the Company any and all drawings, notes, specifications and
data relating to the Subject Matter, and to execute, acknowledge and
deliver all such further papers, including applications for copyrights
or patents, as may be necessary to obtain copyrights and patents for
any thereof in any and all countries and to vest title thereto to the
Company. Executive shall assist the Company in obtaining such
copyrights or patents during the term of this Agreement, and any time
thereafter on reasonable notice and at mutually convenient times, and
Executive agrees to testify in any prosecution or litigation involving
any of the Subject Matter; provided, however, that Executive shall be
compensated in a timely manner at the rate of $1,500 per day (or
portion thereof), plus out-of-pocket expenses incurred in rendering
such assistance or giving or preparing to give such testimony if it is
required after the Severance Period.
11. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
(a) Executive shall not, during the term of this Agreement,
or at any time following termination of this Agreement, directly or
indirectly, disclose or permit to be known (other than as is required
in the regular course of his duties (including without limitation
disclosures to the Company's advisors and consultants) or is required
by law (in which case Executive shall give the Company prior written
notice of such required disclosure) or with the prior written consent
of the Board of Directors of the Company), to any person, firm or
corporation, any confidential information acquired by him during the
course of, or as an incident to, his employment or the rendering of
his advisory or consulting services hereunder, relating to the Company
or any of its subsidiaries and affiliates, the directors of the
Company or its subsidiaries and affiliates, any client of the Company
or any of its subsidiaries and affiliates, or any corporation,
partnership or other entity owned or controlled, directly or
indirectly, by any of the foregoing, or in which any of the foregoing
has a beneficial interest, including, but not limited to, the business
affairs of each of the foregoing. Such confidential information shall
include, but shall not be limited to, proprietary technology, trade
secrets, patented processes, research and development data, know-how,
market studies and forecasts, competitive analyses, pricing policies,
employee lists, personnel policies, the substance of agreements with
customers, suppliers and others, marketing or dealership arrangements,
servicing and training programs and arrangements, customer lists and
any other documents embodying such confidential information. This
confidentiality obligation shall not apply to any confidential
information which thereafter becomes publicly available other than
pursuant to a breach of this Section 11(a) by Executive.
(b) All information and documents relating to the Company
and its affiliates as hereinabove described (or other business
affairs) shall be the exclusive property of the Company, and Executive
shall use commercially reasonable best efforts to prevent any
publication or disclosure thereof. Upon termination of Executive's
employment with the Company, all documents, records, reports, writings
and other similar documents containing confidential information,
including copies thereof then in Executive's possession or control
shall be returned and left with the Company.
12. SPECIFIC PERFORMANCE
Executive agrees that if he breaches, or threatens to commit
a breach of, any of the provisions of Sections 9, 10 or 11 (the
"Restrictive Covenants"), the Company shall have, in addition to, and
not in lieu of, any other rights and remedies available to the Company
under law and in equity, the right to have the Restrictive Covenants
specifically enforced by an court of competent jurisdiction, it being
agreed that any breach or threatened breach of the Restrictive
Covenants would cause irreparable injury to the Company and that money
damages would not provide an adequate remedy to the Company.
Notwithstanding the foregoing, nothing herein shall constitute a
waiver by Executive of his right to contest whether a breach or
threatened breach of any Restrictive Covenant has occurred.
13. AMENDMENT OR ALTERATION
No amendment or alteration of the terms of this Agreement
shall be valid unless made in writing and signed by both of the
parties hereto.
14. GOVERNING LAW
This Agreement shall be governed by, and construed and
enforced in accordance with the substantive laws of The Commonwealth
of Massachusetts, without regard to its principles of conflicts of
laws.
15. SEVERABILITY
The holding of any provision of this Agreement to be invalid
or unenforceable by a court of competent jurisdiction shall not affect
any other provision of this Agreement, which shall remain in full
force and effect.
16. NOTICES
Any notices required or permitted to be given hereunder
shall be sufficient if in writing, and if delivered by hand or
courier, or sent by certified mail, return receipt requested, to the
addresses set forth above or such other address as either party may
from time to time designate in writing to the other, and shall be
deemed given as of the date of the delivery or at the expiration of
three days in the event of a mailing.
17. WAIVER OR BREACH
It is agreed that a waiver by either party of a breach of
any provision of this Agreement shall not operate, or be construed as
a waiver of any subsequent breach by that same party.
18. ENTIRE AGREEMENT AND BINDING EFFECT
This Agreement contains the entire agreement of the parties
with respect to the subject matter hereof, supersedes all prior
agreements, both written and oral, between the parties with respect to
the subject matter hereof, and shall be binding upon and inure to the
benefit of the parties hereto and their respective legal
representatives, heirs, distributors, successors and assigns.
19. SURVIVAL
Except as otherwise expressly provided herein, the
termination of Executive's employment hereunder or the expiration of
this Agreement shall not affect the enforceability of Sections 4, 7,
9, 10, 11 and 12 hereof.
20. FURTHER ASSURANCES
The parties agree to execute and deliver all such further
documents, agreements and instruments and take such other and further
action as may be necessary or appropriate to carry out the purposes
and intent of this Agreement.
21. HEADINGS
The Section headings appearing in this Agreement are for the
purposes of easy reference and shall not be considered a part of this
Agreement or in any way modify, demand or affect its provisions.
22. COUNTERPARTS
This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original and all of which together
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, under seal, as of the date and year first above written.
DESIGNS, INC.
By:/s/ Joel H. Reichman
----------------------------
Joel H. Reichman, President
/s/ Scott N. Semel
------------------------------
Scott N. Semel
EMPLOYMENT AGREEMENT
--------------------
AGREEMENT made as of October 16, 1995, between DESIGNS, INC., a
Delaware corporation with an office at 1244 Boylston Street, Chestnut
Hill, Massachusetts, 02167 (the "Company"), and MARK S. LISNOW,
residing at 43 Tide Run, Mashpee, Massachusetts 02649 (the
"Executive").
W I T N E S S E T H:
-------------------
WHEREAS, the Company desires that Executive be employed to serve
in a senior executive capacity with the Company, and Executive desires
to be so employed by the Company, upon the terms and conditions herein
set forth.
NOW, THEREFORE, in consideration of the premises and of the
mutual promises, representations and covenants herein contained, the
parties hereto agree as follows:
1. EMPLOYMENT
The Company hereby employs Executive and Executive hereby
accepts such employment, subject to the terms and condition herein set
forth. Executive shall hold the office of Senior Vice President
Merchandising reporting to the Chief Executive Officer of the Company
(the "Chief Executive Officer").
2. TERM
The initial term of employment under this Agreement shall
begin on the date hereof (the "Employment Date") and shall continue
for a period of three (3) years from that date, subject to prior
termination in accordance with the terms hereof. Thereafter, this
Agreement shall automatically be renewed for successive one year terms
unless either party shall give the other ninety (90) days prior
written notice of its intent not to renew this Agreement.
3. COMPENSATION
As compensation for the employment services to be rendered by
Executive hereunder, including all services as an officer of the
Company and any of its subsidiaries and affiliates, the Company agrees
to pay, or cause to be paid, to Executive, and Executive agrees to
accept, payable in equal installments in accordance with Company
practice, an initial annual salary of $300,000, plus an additional
health insurance cost not to exceed $8,800 for the first two years of
employment. Executive's annual salary hereunder for the remaining
years of employment shall be determined by the Compensation Committee
of the Board of Directors in its sole discretion; provided, however,
that Executive's salary shall be increased each year effective as of
the first day of the Company's fiscal year and commencing with the
beginning of fiscal 1997, by at least the percentage increase, if any,
in the cost of living shown on the Consumer Price Index for all items
in the Boston, Massachusetts Area (published by the Bureau of Labor
Statistics of the United States Department of Labor) between January
1995 and the last calendar month immediately preceding the first day
of the following calendar year. In addition, Executive shall be
entitled to bonuses from time to time in such amounts as may be
determined by the Compensation Committee of the Board of Directors in
its sole discretion.
4. EXPENSES
The Company shall pay or reimburse Executive, upon
presentment of suitable vouchers, for all reasonable business and
travel expenses which may be incurred or paid by Executive in
connection with his employment hereunder. Executive shall comply with
such restrictions and shall keep such records as the Company may deem
necessary to meet the requirements of the Internal Revenue Code of
1986, as amended from time to time, and regulations promulgated
thereunder.
5. OTHER BENEFITS
(a) Executive shall be entitled to such vacations and to
participate in and receive any other benefits customarily provided by
the Company to its senior management personnel (including any bonus,
profit sharing, pension, 401(k), short and long-term disability
insurance, hospital, major medical insurance and group life insurance
plans in accordance with the terms of such plans) and including stock
option and/or stock purchase plans, all as determined from time to
time by the Compensation Committee of the Board of Directors of the
Company.
(b) The Company shall, during the term of Executive's
employment hereunder, provide Executive with a full size automobile
for his use in performing his employment duties and obligations
hereunder, including maintenance of and fuel for such automobile.
6. DUTIES
(a) Executive shall perform such duties and functions as
the Chief Executive Officer and the Board of Directors of the Company
shall from time to time determine and Executive shall comply in the
performance of his duties with the policies of, and be subject to the
direction of, the Chief Executive Officer and/or the Board of
Directors. Executive shall serve as an officer of the Company without
further compensation.
At the request of the Chief Executive Officer and/or the Board of
Directors, Executive shall serve, without further compensation, as an
executive officer of any subsidiary or affiliate of the Company and, in
the performance of such duties, Executive shall comply with the policies
of the Board of Directors of each such subsidiary or affiliate.
(b) During the term of this Agreement, Executive shall
devote substantially all of his time and attention, vacation time and
absences for sickness excepted, to the business of the Company, as
necessary to fulfill his duties. Executive shall perform the duties
assigned to him with fidelity and to the best of his ability.
Notwithstanding anything herein to the contrary, Executive may engage
in other activities so long as such activities do not unreasonably
interfere with Executive's performance of his duties hereunder and do
not violate Section 9 hereof.
(c) Nothing in this Section 6 or elsewhere in this
Agreement shall be construed to prevent Executive from investing or
trading in nonconflicting investments as he sees fit for his own
account, including real estate, stocks, bonds, securities, commodities
or other forms of investments.
(d) The principal location at which the Executive shall
perform his duties hereunder shall be at the Company's offices in
Chestnut Hill, Massachusetts or at such other location as may be
designated from time to time by the Board of Directors of the Company;
provided that if the principal location of Executive's duties is
transferred from Chestnut Hill, Massachusetts, the new principal
location of Executive's duties shall not be transferred beyond a 15-
mile radius of Chestnut Hill, Massachusetts without Executive's
consent. Notwithstanding, the foregoing, Executive shall perform such
services at such other locations as may be required for the proper
performance of his duties hereunder, and Executive recognizes that
such duties may involve travel.
7. TERMINATION OF EMPLOYMENT; EFFECT OF TERMINATION
(a) Executive's employment hereunder may be terminated at
any time upon written notice from the Company to Executive:
(i) upon the determination by the Chief Executive
Officer and the Board of Directors that
Executive's performance of his duties has not been
fully satisfactory for any reason which would not
constitute justifiable cause (as hereinafter
defined) upon thirty (30) days' prior written
notice to Executive; or
(ii) upon the determination by the Chief Executive
Officer and the Board of Directors that there is
justifiable cause (as hereinafter defined) for
such termination upon ten (10) days' prior written
notice to Executive.
(b) Executive's employment shall terminate upon:
(i) the death of Executive; or
(ii) the "disability" of Executive (as hereinafter
defined pursuant to subsection (c) herein)
pursuant to subsection (f) hereof.
(c) For the purposes of this Agreement, the term
"disability" shall mean the inability of Executive, due to illness,
accident or any other physical or mental incapacity, substantially to
perform his duties for a period of three (3) consecutive months or for
a total of six (6) months (whether or not consecutive) in any twelve
(12) month period during the term of this Agreement, as reasonably
determined by the Chief Executive Officer and the Board of Directors
of the Company after examination of Executive by an independent
physician reasonably acceptable to Executive.
(d) For the purposes hereof, the term "justifiable cause"
shall mean and be limited to: any repeated willful failure or refusal
to perform any of the duties pursuant to this Agreement where such
conduct shall not have ceased within 30 days following written warning
from the Company; Executive's conviction (which, through lapse of time
or otherwise, is not subject to appeal) of any crime or offense
involving money or other property of the Company or its subsidiaries
or affiliates or which constitutes a felony in the jurisdiction
involved; Executive's performance of any act or his failure to act,
for which if Executive were prosecuted and convicted, a crime or
offense involving money or property of the Company or its subsidiaries
or affiliates, or which would constitute a felony in the jurisdiction
involved, would have occurred; any unauthorized disclosure by
Executive to any person, firm or corporation other than the Company,
its subsidiaries or affiliates and their respective directors,
officers and employees (or other persons fulfilling similar
functions), of any confidential information or trade secret of the
Company or any of its subsidiaries or affiliates; any attempt by
Executive to secure any personal profit in connection with the
business of the Company or any of its subsidiaries and affiliates; or
the engaging by Executive in any business other than the business of
the Company and its subsidiaries and affiliates which unreasonably
interferes with the performance of his duties hereunder. Upon
termination of Executive's employment for justifiable cause, this
Agreement shall terminate immediately and Executive shall not be
entitled to any amounts or benefits hereunder other than such portion
of Executive's annual salary and reimbursement of expenses pursuant to
Section 4 hereof as has been accrued through the date of his
termination of employment.
(e) If Executive shall die during the term of his
employment hereunder, this Agreement shall terminate immediately. In
such event, the estate of Executive shall thereupon be entitled to
receive such portion of Executive's annual salary and reimbursement of
expenses pursuant to Section 4 as has been accrued through the date of
his death. If Executive's death shall occur while he is on Company
business, the estate of Executive shall be entitled to receive, in
addition to the other amounts set forth in this subsection (e), an
amount equal to one-half his then annual salary.
(f) Upon Executive's "disability", the Company shall have
the right to terminate Executive's employment. Notwithstanding any
inability to perform his duties, Executive shall be entitled to
receive his compensation (including bonus, if any) and reimbursement
of expenses pursuant to Section 4 as provided herein until he begins
to receive long-term disability insurance benefits under the policy
provided by the Company pursuant to Section 5 hereof. Any termination
pursuant to this subsection (f) shall be effective on the later of (i)
the date 30 days after which Executive shall have received written
notice of the Company's election to terminate or (ii) the date he
begins to receive long-term disability insurance benefits under the
policy provided by the Company pursuant to Section 5 hereof.
(g) Notwithstanding any provision to the contrary contained
herein, in the event that Executive's employment is terminated by the
Company at any time for any reason other than justifiable cause,
disability or death, or in the event the Company shall fail to renew
this Agreement at any time within two years following the effective
date of a Change in Control of the Company, the Company shall upon
such termination, immediately pay (i) Executive, in a lump sum, an
amount equal to the greater of (1) one-twelfth of the Executive's then
annual salary multiplied by the number of months in the remaining term
of this Agreement or (2) a sum equal to his then annual salary
multiplied by one year (such period being hereinafter referred to as
the "Severance Period"), which amount shall be in lieu of any and all
other payments due and owing to the Executive under the terms of this
Agreement (other than any payments constituting reimbursement of
expenses pursuant to Section 4 hereof), and (ii) continue to allow
Executive to participate, at the Company's expense, in the Company's
health insurance and disability insurance programs, to the extent
permitted under such programs, during the Severance Period
(collectively, the "Severance Payments"). For purposes of this
Agreement, a "Change in Control of the Company" shall be deemed to
occur if (i) there shall be consummated (x) any consolidation or
merger of the Company in which the Company is not the continuing or
surviving corporation or pursuant to which shares of the Company's
Common Stock would be converted into cash, securities or other
property, other than a merger of the Company in which the holders of
the Company's Common Stock immediately prior to the merger have the
same proportionate ownership of common stock of the surviving
corporation immediately after the merger, or (y) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the
Company, or (ii) the stockholders of the Company shall approve any
plan or proposal for liquidation or dissolution of the Company, or
(iii) any person (as such term is used in Sections 13(d) and 14(d)(2)
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) shall become the beneficial owner (within the meaning of Rule
13d-3 under the Exchange Act) of 40% or more of the Company's
outstanding Common Stock other than pursuant to a plan or arrangement
entered into by such person and the Company, or (iv) during any period
of two consecutive years, individuals who at the beginning of such
period constitute the entire Board of Directors of the Company shall
cease for any reason to constitute a majority thereof unless the
election, or the nomination for election by the Company's
stockholders, of each new director was approved by a vote of at least
two-thirds of the directors then still in office who were directors at
the beginning of the period.
(h) Notwithstanding any provision to the contrary contained
herein, in the event the Company elects not to renew this Agreement
(other than within two years following a change in Control of the
Company, which is covered in Section 7(g) above) the Company will pay
Executive a severance payment equal to the greater of (i) two months'
salary plus 1/6 of Executive's bonus, if any, relating to the most
recently completed fiscal year, for each year Executive has been
employed by the Company or (ii) one year's annual salary.
(i) Executive may terminate his employment at any time upon
30 days' prior written notice to the Company. Upon Executive's
termination of his employment hereunder or his election not to renew
this Agreement, this Agreement (other than Sections 4, 7, 9, 10, 11
and 12, which shall survive, if at all, in accordance with their
terms) shall terminate, provided however, that Section 9 shall not
survive such termination unless the Company pays to Executive during
the Severance Period the Severance Payments. In such event, Executive
shall be entitled to receive such portion of Executive's annual salary
and bonus, if any, as has been accrued to date. Executive shall be
entitled to reimbursement of expenses pursuant to Section 4 hereof and
to participate in the Company's benefit plans to the extent
participation by former employees is required by law or permitted by
such plans, with the expense of such participation to be as specified
in such plans for former employees.
(j) If, in connection with a change of ownership or control
of the Company or a change in ownership of a substantial portion of
the assets of the Company (all within the meaning of Section
28OG(b)(2) of the Internal Revenue Code of 1986, as amended (the
"Code")), an excise tax is payable by Executive under Section 4999 of
the Code, then the Company will pay to the Executive additional
compensation which will be sufficient to enable Executive to pay such
excise tax as well as the income tax and excise tax on such additional
compensation, such that, after the payment of income and excise taxes,
Executive is in the same economic position in which he would have been
if the provisions of Section 4999 of the Code had not been applicable.
The additional compensation required by this Section 7(j) will be paid
to Executive promptly after the date or dates on which the amount of
such additional compensation is determinable, in whole or in part.
(k) Upon the resignation of this Executive Officer in any
capacity that resignation will be deemed to be a resignation from all
offices and positions that that person holds with respect to the
Company and any of its subsidiaries and affiliates.
8. REPRESENTATION AND AGREEMENTS OF EXECUTIVE
(a) Executive represents and warrants that he is free to
enter into this Agreement and to perform the duties required
hereunder, and that there are no employment contracts or
understandings, restrictive covenants or other restrictions, whether
written or oral, preventing the performance of his duties hereunder.
(b) Executive agrees to submit to a medical examination and
to cooperate and supply such other information and documents as may be
required by any insurance company in connection with the Company's
obtaining life insurance on the life of Executive, and any other type
of insurance or fringe benefit as the Company shall determine from
time to time to obtain.
9. NON-COMPETITION
(a) Executive agrees that during his employment by the
Company and during the one year period following the termination of
Executive's employment hereunder, (the "Non-Competitive Period"),
Executive shall not, directly or indirectly, as owner, partner, joint
venturer, stockholder, employee, broker, agent, principal, trustee,
corporate officer, director, licensor, or in any capacity whatsoever
engage in, become financially interested in, be employed by, render
any consultation or business advice with respect to, or have any
connection with, any business which is competitive with, products or
services of the Company or any of its subsidiaries and affiliates, in
any geographic area in the United States of America where, at the time
of the termination of his employment hereunder, the business of the
Company or any of its subsidiaries and affiliates was being conducted
or was proposed to be conducted in any manner whatsoever; provided,
however, that Executive may own any securities of any corporation
which is engaged in such business and is publicly owned and traded but
in an amount not to exceed at any one time one percent (1%) of any
class of stock or securities of such corporation. In addition,
Executive shall not notify directly or indirectly, during the Non-
Competitive Period, request or cause any suppliers or customers with
whom the Company or any of its subsidiaries and affiliates has a
business relationship to cancel or terminate any such business
relationship with the Company or any of its subsidiaries and
affiliates of solicit, interfere with or entice from the Company any
employee (or former employee) of the Company.
(b) If any portion of the restrictions set forth in this
Section 9 should, for any reason whatsoever, be declared invalid by a
court of competent jurisdiction, the validity or enforceability of the
remainder of such restrictions shall not thereby be adversely
affected.
(c) Executive acknowledges that the Company conducts
business throughout the United States, that its sales and marketing
prospects are for continued expansion throughout the United States and
that, therefore, the territorial and time limitations set forth in
this Section 9 are reasonable and properly required for the adequate
protection of the business of the Company and its subsidiaries and
affiliates. In the event any such territorial or time limitation is
deemed to be unreasonable by a court of competent jurisdiction,
Executive agrees to the reduction of the territorial or time
limitation to the area or period which such court shall deem
reasonable.
(d) The existence of any claim or cause of action by
Executive against the Company or any subsidiary or affiliate shall not
constitute a defense to the enforcement by the Company or any
subsidiary or affiliate of the foregoing restrictive covenants, but
such claim or cause of action shall be litigated separately.
(e) In the event Executive's employment with the Company
terminates for any reason other than (i) the Company's failure to
renew this Agreement or (ii) termination by the Company within two
years following a Change in Control of the Company, the Company and
Executive agree that in consideration of the severance payment made to
Executive, Executive shall be available during the Non-Competitive
Period to advise and consult with the Board of Directors, the
President and other officers of the Company and its subsidiaries and
affiliates with respect to the affairs of the Company and its
subsidiaries and affiliates on a part-time basis, in response to
requests for such advisory and consulting services by the Board of
Directors, or other officers of the Company or its subsidiaries and
affiliates, subject to the conditions that (i) such services shall be
performed within the United States of America, (ii) Executive shall
not be required to devote a major portion of his time to such
services, (iii) such services shall not unreasonably interfere with
the performance of other employment or consulting duties Executive may
have, (iv) Executive shall not be required to perform such services
during usual vacation periods and reasonable periods of illness or
other incapacitation, (v) such services shall be performed at times
and places as shall be chosen by Executive, and which will result in
the least inconvenience to Executive, and (vi) all other provisions of
this Section 9 shall apply. The Company shall reimburse Executive for
actual out-of-pocket expenses incurred in rendering the services
performed by Executive upon the request of the Board of Directors, or
other officers of the Company or its subsidiaries or affiliates,
payable at the end of each month during such period. Notwithstanding
the foregoing, in the event that Executive seeks full-time employment
with a third party and such third party will not accept Executive's
services for as long as he is committed under this subsection (e) to
provide consulting services to the Company, then if the Board of
Directors of the Company determines in its reasonable discretion that
Executive's employment with the third party will not cause him to
breach the provisions of Section 9 of this Agreement (other than this
subsection (e)) and Executive provides the Board of Directors with a
letter signed by the third party stating that such third party will
not accept Executive's services as described above, the provisions of
this subsection (e) shall immediately terminate and be of no further
force or effect.
(f) Notwithstanding anything herein to the contrary, this
Section 9 shall automatically terminate if the Company elects not to
renew this Agreement, if the Company terminates Executive's employment
within two years following the effective date of a Change in Control
of the Company, or if the Company fails to make any payments due to
Executive under Sections 7(g), 7(h), 7(i) or 9(e).
10. INVENTIONS AND DISCOVERIES
(a) Upon execution of this Agreement and thereafter
Executive shall promptly and fully disclose to the Company, and with
all necessary detail for a complete understanding of the same, all
existing and future developments, know-how, discoveries, inventions,
improvements, concepts, ideas, writings, formulae, processes and
Methods (whether copyrightable, patentable or otherwise) made,
received, conceived, acquired or written during working hours, or
otherwise, by Executive (whether or not at the request or upon the
suggestion of the Company) during the period of his employment with,
or rendering of advisory or consulting services to, the Company or any
of its subsidiaries and affiliates, solely or jointly with others in
or relating to any activities of the Company or its subsidiaries and
affiliates known to him as a consequence of his employment or the
rendering of advisory and consulting services hereunder (collectively
the "Subject Matter").
(b) Executive hereby assigns and transfers, and agrees to
assign and transfer, to the Company) all his rights, title and
interest in and to the Subject Matter, and Executive further agrees to
deliver to the Company any and all drawings, notes, specifications and
data relating to the Subject Matter, and to execute, acknowledge and
deliver all such further papers, including applications for copyrights
or patents, as may be necessary to obtain copyrights and patents for
any thereof in any and all countries and to vest title thereto to the
Company. Executive shall assist the Company in obtaining such
copyrights or patents during the term of this Agreement, and any time
thereafter on reasonable notice and at mutually convenient times, and
Executive agrees to testify in any prosecution or litigation involving
any of the Subject Matter; provided, however, that Executive shall be
compensated in a timely manner at the rate of $1,500 per day (or
portion thereof), plus out-of-pocket expenses incurred in rendering
such assistance or giving or preparing to give such testimony if it is
required after the Severance Period.
11. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
(a) Executive shall not, during the term of this Agreement,
or at any time following termination of this Agreement, directly or
indirectly, disclose or permit to be known (other than as is required
in the regular course of his duties (including without limitation
disclosures to the Company's advisors and consultants) or is required
by law (in which case Executive shall give the Company prior written
notice of such required disclosure) or with the prior written consent
of the Board of Directors of the Company), to any person, firm or
corporation, any confidential information acquired by him during the
course of, or as an incident to, his employment or the rendering of
his advisory or consulting services hereunder, relating to the Company
or any of its subsidiaries and affiliates, the directors of the
Company or its subsidiaries and affiliates, any client of the Company
or any of its subsidiaries and affiliates, or any corporation,
partnership or other entity owned or controlled, directly or
indirectly, by any of the foregoing, or in which any of the foregoing
has a beneficial interest, including, but not limited to, the business
affairs of each of the foregoing. Such confidential information shall
include, but shall not be limited to, proprietary technology, trade
secrets, patented processes, research and development data, know-how,
market studies and forecasts, competitive analyses, pricing policies,
employee lists, personnel policies, the substance of agreements with
customers, suppliers and others, marketing or dealership arrangements,
servicing and training programs and arrangements, customer lists and
any other documents embodying such confidential information. This
confidentiality obligation shall not apply to any confidential
information which thereafter becomes publicly available other than
pursuant to a breach of this Section 11(a) by Executive.
(b) All information and documents relating to the Company
and its affiliates as hereinabove described (or other business
affairs) shall be the exclusive property of the Company, and Executive
shall use commercially reasonable best efforts to prevent any
publication or disclosure thereof. Upon termination of Executive's
employment with the Company, all documents, records, reports, writings
and other similar documents containing confidential information,
including copies thereof then in Executive's possession or control
shall be returned and left with the Company.
12. SPECIFIC PERFORMANCE
Executive agrees that if he breaches, or threatens to commit
a breach of, any of the provisions of Sections 9, 10 or 11 (the
"Restrictive Covenants"), the Company shall have, in addition to, and
not in lieu of, any other rights and remedies available to the Company
under law and in equity, the right to have the Restrictive Covenants
specifically enforced by an court of competent jurisdiction, it being
agreed that any breach or threatened breach of the Restrictive
Covenants would cause irreparable injury to the Company and that money
damages would not provide an adequate remedy to the Company.
Notwithstanding the foregoing, nothing herein shall constitute a
waiver by Executive of his right to contest whether a breach or
threatened breach of any Restrictive Covenant has occurred.
13. AMENDMENT OR ALTERATION
No amendment or alteration of the terms of this Agreement
shall be valid unless made in writing and signed by both of the
parties hereto.
14. GOVERNING LAW
This Agreement shall be governed by, and construed and
enforced in accordance with the substantive laws of The Commonwealth
of Massachusetts, without regard to its principles of conflicts of
laws.
15. SEVERABILITY
The holding of any provision of this Agreement to be invalid
or unenforceable by a court of competent jurisdiction shall not affect
any other provision of this Agreement, which shall remain in full
force and effect.
16. NOTICES
Any notices required or permitted to be given hereunder
shall be sufficient if in writing, and if delivered by hand or
courier, or sent by certified mail, return receipt requested, to the
addresses set forth above or such other address as either party may
from time to time designate in writing to the other, and shall be
deemed given as of the date of the delivery or at the expiration of
three days in the event of a mailing.
17. WAIVER OR BREACH
It is agreed that a waiver by either party of a breach of
any provision of this Agreement shall not operate, or be construed as
a waiver of any subsequent breach by that same party.
18. ENTIRE AGREEMENT AND BINDING EFFECT
This Agreement contains the entire agreement of the parties
with respect to the subject matter hereof, supersedes all prior
agreements, both written and oral, between the parties with respect to
the subject matter hereof, and shall be binding upon and inure to the
benefit of the parties hereto and their respective legal
representatives, heirs, distributors, successors and assigns.
19. SURVIVAL
Except as otherwise expressly provided herein, the
termination of Executive's employment hereunder or the expiration of
this Agreement shall not affect the enforceability of Sections 4, 7,
9, 10, 11 and 12 hereof.
20. FURTHER ASSURANCES
The parties agree to execute and deliver all such further
documents, agreements and instruments and take such other and further
action as may be necessary or appropriate to carry out the purposes
and intent of this Agreement.
21. HEADINGS
The Section headings appearing in this Agreement are for the
purposes of easy reference and shall not be considered a part of this
Agreement or in any way modify, demand or affect its provisions.
22. COUNTERPARTS
This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original and all of which together
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, under seal, as of the date and year first above written.
DESIGNS, INC.
By:/s/ Scott N. Semel
-------------------------------------
Scott N. Semel, Senior Vice President
/s/ Mark S. Lisnow
----------------------------------------
Mark S. Lisnow
EMPLOYMENT AGREEMENT
--------------------
AGREEMENT made as of October 16, 1995, between DESIGNS, INC., a
Delaware corporation with an office at 1244 Boylston Street, Chestnut Hill,
Massachusetts, 02167 (the "Company"), and WILLIAM D. RICHINS, residing at
38 Wicks End Lane, Wilton, Connecticut 06897 (the "Executive").
W I T N E S S E T H:
-------------------
WHEREAS, the Company desires that Executive be employed to serve in a
senior executive capacity with the Company, and Executive desires to be so
employed by the Company, upon the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual
promises, representations and covenants herein contained, the parties
hereto agree as follows:
1. EMPLOYMENT
The Company hereby employs Executive and Executive hereby accepts
such employment, subject to the terms and condition herein set forth.
Executive shall hold the office of Chief Financial Officer reporting to the
Chief Executive Officer of the Company (the "Chief Executive Officer").
2. TERM
The initial term of employment under this Agreement shall begin
on the date hereof (the "Employment Date") and shall continue for a period
of three (3) years from that date, subject to prior termination in
accordance with the terms hereof. Thereafter, this Agreement shall
automatically be renewed for successive one year terms unless either party
shall give the other ninety (90) days prior written notice of its intent
not to renew this Agreement.
3. COMPENSATION
As compensation for the employment services to be rendered by
Executive hereunder, including all services as an officer of the Company
and any of its subsidiaries and affiliates, the Company agrees to pay, or
cause to be paid, to Executive, and Executive agrees to accept, payable in
equal installments in accordance with Company practice, an initial annual
salary of $225,000. Executive's annual salary hereunder for the remaining
years of employment shall be determined by the Compensation Committee of
the Board of Directors in its sole discretion; provided, however, that
Executive's salary shall be increased each year effective as of the first
day of the Company's fiscal year and commencing with the beginning of
fiscal 1997, by at least the percentage increase, if any, in the cost of
living shown on the Consumer Price Index for all items in the Boston,
Massachusetts Area (published by the Bureau of Labor Statistics of the
United States Department of Labor) between January 1995 and the last
calendar month immediately preceding the first day of the following
calendar year. In addition, Executive shall be entitled to bonuses from
time to time in such amounts as may be determined by the Compensation
Committee of the Board of Directors in its sole discretion.
4. EXPENSES
The Company shall pay or reimburse Executive, upon presentment of
suitable vouchers, for all reasonable business and travel expenses which
may be incurred or paid by Executive in connection with his employment
hereunder. Executive shall comply with such restrictions and shall keep
such records as the Company may deem necessary to meet the requirements of
the Internal Revenue Code of 1986, as amended from time to time, and
regulations promulgated thereunder.
5. OTHER BENEFITS
(a) Executive shall be entitled to such vacations and to
participate in and receive any other benefits customarily provided by the
Company to its senior management personnel (including any bonus, profit
sharing, pension, 401(k), short and long-term disability insurance,
hospital, major medical insurance and group life insurance plans in
accordance with the terms of such plans) and including stock option and/or
stock purchase plans, all as determined from time to time by the
Compensation Committee of the Board of Directors of the Company.
(b) The Company shall, during the term of Executive's employment
hereunder, provide Executive with a full size automobile for his use in
performing his employment duties and obligations hereunder, including
maintenance of and fuel for such automobile.
6. DUTIES
(a) Executive shall perform such duties and functions as the
Chief Executive Officer and the Board of Directors of the Company shall
from time to time determine and Executive shall comply in the performance
of his duties with the policies of, and be subject to the direction of, the
Chief Executive Officer and/or the Board of Directors. Executive shall
serve as an officer of the Company without further compensation.
At the request of the Chief Executive Officer and/or the Board of
Directors, Executive shall serve, without further compensation, as an
executive officer of any subsidiary or affiliate of the Company and, in the
performance of such duties, Executive shall comply with the policies of the
Board of Directors of each such subsidiary or affiliate.
(b) During the term of this Agreement, Executive shall devote
substantially all of his time and attention, vacation time and absences for
sickness excepted, to the business of the Company, as necessary to fulfill
his duties. Executive shall perform the duties assigned to him with
fidelity and to the best of his ability. Notwithstanding anything herein
to the contrary, Executive may engage in other activities so long as such
activities do not unreasonably interfere with Executive's performance of
his duties hereunder and do not violate Section 9 hereof.
(c) Nothing in this Section 6 or elsewhere in this Agreement
shall be construed to prevent Executive from investing or trading in
nonconflicting investments as he sees fit for his own account, including
real estate, stocks, bonds, securities, commodities or other forms of
investments.
(d) The principal location at which the Executive shall perform
his duties hereunder shall be at the Company's offices in Chestnut Hill,
Massachusetts or at such other location as may be designated from time to
time by the Board of Directors of the Company; provided that if the
principal location of Executive's duties is transferred from Chestnut Hill,
Massachusetts, the new principal location of Executive's duties shall not
be transferred beyond a 15-mile radius of Chestnut Hill, Massachusetts
without Executive's consent. Notwithstanding, the foregoing, Executive
shall perform such services at such other locations as may be required for
the proper performance of his duties hereunder, and Executive recognizes
that such duties may involve travel.
7. TERMINATION OF EMPLOYMENT; EFFECT OF TERMINATION
(a) Executive's employment hereunder may be terminated at any
time upon written notice from the Company to Executive:
(i) upon the determination by the Chief Executive Officer
and the Board of Directors that Executive's performance
of his duties has not been fully satisfactory for any
reason which would not constitute justifiable cause (as
hereinafter defined) upon thirty (30) days' prior
written notice to Executive; or
(ii) upon the determination by the Chief Executive Officer
and the Board of Directors that there is justifiable
cause (as hereinafter defined) for such termination
upon ten (10) days' prior written notice to Executive.
(b) Executive's employment shall terminate upon:
(i) the death of Executive; or
(ii) the "disability" of Executive (as hereinafter defined
pursuant to subsection (c) herein) pursuant to
subsection (f) hereof.
(c) For the purposes of this Agreement, the term "disability"
shall mean the inability of Executive, due to illness, accident or any
other physical or mental incapacity, substantially to perform his duties
for a period of three (3) consecutive months or for a total of six (6)
months (whether or not consecutive) in any twelve (12) month period during
the term of this Agreement, as reasonably determined by the Chief Executive
Officer and the Board of Directors of the Company after examination of
Executive by an independent physician reasonably acceptable to Executive.
(d) For the purposes hereof, the term "justifiable cause" shall
mean and be limited to: any repeated willful failure or refusal to perform
any of the duties pursuant to this Agreement where such conduct shall not
have ceased within 30 days following written warning from the Company;
Executive's conviction (which, through lapse of time or otherwise, is not
subject to appeal) of any crime or offense involving money or other
property of the Company or its subsidiaries or affiliates or which
constitutes a felony in the jurisdiction involved; Executive's performance
of any act or his failure to act, for which if Executive were prosecuted
and convicted, a crime or offense involving money or property of the
Company or its subsidiaries or affiliates, or which would constitute a
felony in the jurisdiction involved, would have occurred; any unauthorized
disclosure by Executive to any person, firm or corporation other than the
Company, its subsidiaries or affiliates and their respective directors,
officers and employees (or other persons fulfilling similar functions), of
any confidential information or trade secret of the Company or any of its
subsidiaries or affiliates; any attempt by Executive to secure any personal
profit in connection with the business of the Company or any of its
subsidiaries and affiliates; or the engaging by Executive in any business
other than the business of the Company and its subsidiaries and affiliates
which unreasonably interferes with the performance of his duties hereunder.
Upon termination of Executive's employment for justifiable cause, this
Agreement shall terminate immediately and Executive shall not be entitled
to any amounts or benefits hereunder other than such portion of Executive's
annual salary and reimbursement of expenses pursuant to Section 4 hereof as
has been accrued through the date of his termination of employment.
(e) If Executive shall die during the term of his employment
hereunder, this Agreement shall terminate immediately. In such event, the
estate of Executive shall thereupon be entitled to receive such portion of
Executive's annual salary and reimbursement of expenses pursuant to Section
4 as has been accrued through the date of his death. If Executive's death
shall occur while he is on Company business, the estate of Executive shall
be entitled to receive, in addition to the other amounts set forth in this
subsection (e), an amount equal to one-half his then annual salary.
(f) Upon Executive's "disability", the Company shall have the
right to terminate Executive's employment. Notwithstanding any inability
to perform his duties, Executive shall be entitled to receive his
compensation (including bonus, if any) and reimbursement of expenses
pursuant to Section 4 as provided herein until he begins to receive long-
term disability insurance benefits under the policy provided by the Company
pursuant to Section 5 hereof. Any termination pursuant to this subsection
(f) shall be effective on the later of (i) the date 30 days after which
Executive shall have received written notice of the Company's election to
terminate or (ii) the date he begins to receive long-term disability
insurance benefits under the policy provided by the Company pursuant to
Section 5 hereof.
(g) Notwithstanding any provision to the contrary contained
herein, in the event that Executive's employment is terminated by the
Company at any time for any reason other than justifiable cause, disability
or death, or in the event the Company shall fail to renew this Agreement at
any time within two years following the effective date of a Change in
Control of the Company, the Company shall upon such termination,
immediately pay (i) Executive, in a lump sum, an amount equal to the
greater of (1) one-twelfth of the Executive's then annual salary multiplied
by the number of months in the remaining term of this Agreement or (2) a
sum equal to his then annual salary multiplied by one year (such period
being hereinafter referred to as the "Severance Period"), which amount
shall be in lieu of any and all other payments due and owing to the
Executive under the terms of this Agreement (other than any payments
constituting reimbursement of expenses pursuant to Section 4 hereof), and
(ii) continue to allow Executive to participate, at the Company's expense,
in the Company's health insurance and disability insurance programs, to the
extent permitted under such programs, during the Severance Period
(collectively, the "Severance Payments"). For purposes of this Agreement,
a "Change in Control of the Company" shall be deemed to occur if (i) there
shall be consummated (x) any consolidation or merger of the Company in
which the Company is not the continuing or surviving corporation or
pursuant to which shares of the Company's Common Stock would be converted
into cash, securities or other property, other than a merger of the Company
in which the holders of the Company's Common Stock immediately prior to the
merger have the same proportionate ownership of common stock of the
surviving corporation immediately after the merger, or (y) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the Company,
or (ii) the stockholders of the Company shall approve any plan or proposal
for liquidation or dissolution of the Company, or (iii) any person (as such
term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act")) shall become the beneficial owner
(within the meaning of Rule 13d-3 under the Exchange Act) of 40% or more of
the Company's outstanding Common Stock other than pursuant to a plan or
arrangement entered into by such person and the Company, or (iv) during any
period of two consecutive years, individuals who at the beginning of such
period constitute the entire Board of Directors of the Company shall cease
for any reason to constitute a majority thereof unless the election, or the
nomination for election by the Company's stockholders, of each new director
was approved by a vote of at least two-thirds of the directors then still
in office who were directors at the beginning of the period.
(h) Notwithstanding any provision to the contrary contained
herein, in the event the Company elects not to renew this Agreement (other
than within two years following a change in Control of the Company, which
is covered in Section 7(g) above) the Company will pay Executive a
severance payment equal to the greater of (i) two months' salary plus 1/6
of Executive's bonus, if any, relating to the most recently completed
fiscal year, for each year Executive has been employed by the Company or
(ii) one year's annual salary.
(i) Executive may terminate his employment at any time upon 30
days' prior written notice to the Company. Upon Executive's termination of
his employment hereunder or his election not to renew this Agreement, this
Agreement (other than Sections 4, 7, 9, 10, 11 and 12, which shall survive,
if at all, in accordance with their terms) shall terminate, provided
however, that Section 9 shall not survive such termination unless the
Company pays to Executive during the Severance Period the Severance
Payments. In such event, Executive shall be entitled to receive such
portion of Executive's annual salary and bonus, if any, as has been accrued
to date. Executive shall be entitled to reimbursement of expenses pursuant
to Section 4 hereof and to participate in the Company's benefit plans to
the extent participation by former employees is required by law or
permitted by such plans, with the expense of such participation to be as
specified in such plans for former employees.
(j) If, in connection with a change of ownership or control of
the Company or a change in ownership of a substantial portion of the assets
of the Company (all within the meaning of Section 28OG(b)(2) of the
Internal Revenue Code of 1986, as amended (the "Code")), an excise tax is
payable by Executive under Section 4999 of the Code, then the Company will
pay to the Executive additional compensation which will be sufficient to
enable Executive to pay such excise tax as well as the income tax and
excise tax on such additional compensation, such that, after the payment of
income and excise taxes, Executive is in the same economic position in
which he would have been if the provisions of Section 4999 of the Code had
not been applicable. The additional compensation required by this Section
7(j) will be paid to Executive promptly after the date or dates on which
the amount of such additional compensation is determinable, in whole or in
part.
(k) Upon the resignation of this Executive Officer in any
capacity that resignation will be deemed to be a resignation from all
offices and positions that that person holds with respect to the Company
and any of its subsidiaries and affiliates.
8. REPRESENTATION AND AGREEMENTS OF EXECUTIVE
(a) Executive represents and warrants that he is free to enter
into this Agreement and to perform the duties required hereunder, and that
there are no employment contracts or understandings, restrictive covenants
or other restrictions, whether written or oral, preventing the performance
of his duties hereunder.
(b) Executive agrees to submit to a medical examination and to
cooperate and supply such other information and documents as may be
required by any insurance company in connection with the Company's
obtaining life insurance on the life of Executive, and any other type of
insurance or fringe benefit as the Company shall determine from time to
time to obtain.
9. NON-COMPETITION
(a) Executive agrees that during his employment by the Company
and during the one year period following the termination of Executive's
employment hereunder, (the "Non-Competitive Period"), Executive shall not,
directly or indirectly, as owner, partner, joint venturer, stockholder,
employee, broker, agent, principal, trustee, corporate officer, director,
licensor, or in any capacity whatsoever engage in, become financially
interested in, be employed by, render any consultation or business advice
with respect to, or have any connection with, any business which is
competitive with, products or services of the Company or any of its
subsidiaries and affiliates, in any geographic area in the United States of
America where, at the time of the termination of his employment hereunder,
the business of the Company or any of its subsidiaries and affiliates was
being conducted or was proposed to be conducted in any manner whatsoever;
provided, however, that Executive may own any securities of any corporation
which is engaged in such business and is publicly owned and traded but in
an amount not to exceed at any one time one percent (1%) of any class of
stock or securities of such corporation. In addition, Executive shall not
notify directly or indirectly, during the Non-Competitive Period, request
or cause any suppliers or customers with whom the Company or any of its
subsidiaries and affiliates has a business relationship to cancel or
terminate any such business relationship with the Company or any of its
subsidiaries and affiliates of solicit, interfere with or entice from the
Company any employee (or former employee) of the Company.
(b) If any portion of the restrictions set forth in this Section
9 should, for any reason whatsoever, be declared invalid by a court of
competent jurisdiction, the validity or enforceability of the remainder of
such restrictions shall not thereby be adversely affected.
(c) Executive acknowledges that the Company conducts business
throughout the United States, that its sales and marketing prospects are
for continued expansion throughout the United States and that, therefore,
the territorial and time limitations set forth in this Section 9 are
reasonable and properly required for the adequate protection of the
business of the Company and its subsidiaries and affiliates. In the event
any such territorial or time limitation is deemed to be unreasonable by a
court of competent jurisdiction, Executive agrees to the reduction of the
territorial or time limitation to the area or period which such court shall
deem reasonable.
(d) The existence of any claim or cause of action by Executive
against the Company or any subsidiary or affiliate shall not constitute a
defense to the enforcement by the Company or any subsidiary or affiliate of
the foregoing restrictive covenants, but such claim or cause of action
shall be litigated separately.
(e) In the event Executive's employment with the Company
terminates for any reason other than (i) the Company's failure to renew
this Agreement or (ii) termination by the Company within two years
following a Change in Control of the Company, the Company and Executive
agree that in consideration of the severance payment made to Executive,
Executive shall be available during the Non-Competitive Period to advise
and consult with the Board of Directors, the President and other officers
of the Company and its subsidiaries and affiliates with respect to the
affairs of the Company and its subsidiaries and affiliates on a part-time
basis, in response to requests for such advisory and consulting services by
the Board of Directors, or other officers of the Company or its
subsidiaries and affiliates, subject to the conditions that (i) such
services shall be performed within the United States of America, (ii)
Executive shall not be required to devote a major portion of his time to
such services, (iii) such services shall not unreasonably interfere with
the performance of other employment or consulting duties Executive may
have, (iv) Executive shall not be required to perform such services during
usual vacation periods and reasonable periods of illness or other
incapacitation, (v) such services shall be performed at times and places as
shall be chosen by Executive, and which will result in the least
inconvenience to Executive, and (vi) all other provisions of this Section 9
shall apply. The Company shall reimburse Executive for actual out-of-
pocket expenses incurred in rendering the services performed by Executive
upon the request of the Board of Directors, or other officers of the
Company or its subsidiaries or affiliates, payable at the end of each month
during such period. Notwithstanding the foregoing, in the event that
Executive seeks full-time employment with a third party and such third
party will not accept Executive's services for as long as he is committed
under this subsection (e) to provide consulting services to the Company,
then if the Board of Directors of the Company determines in its reasonable
discretion that Executive's employment with the third party will not cause
him to breach the provisions of Section 9 of this Agreement (other than
this subsection (e)) and Executive provides the Board of Directors with a
letter signed by the third party stating that such third party will not
accept Executive's services as described above, the provisions of this
subsection (e) shall immediately terminate and be of no further force or
effect.
(f) Notwithstanding anything herein to the contrary, this
Section 9 shall automatically terminate if the Company elects not to renew
this Agreement, if the Company terminates Executive's employment within two
years following the effective date of a Change in Control of the Company,
or if the Company fails to make any payments due to Executive under
Sections 7(g), 7(h), 7(i) or 9(e).
10. INVENTIONS AND DISCOVERIES
(a) Upon execution of this Agreement and thereafter Executive
shall promptly and fully disclose to the Company, and with all necessary
detail for a complete understanding of the same, all existing and future
developments, know-how, discoveries, inventions, improvements, concepts,
ideas, writings, formulae, processes and Methods (whether copyrightable,
patentable or otherwise) made, received, conceived, acquired or written
during working hours, or otherwise, by Executive (whether or not at the
request or upon the suggestion of the Company) during the period of his
employment with, or rendering of advisory or consulting services to, the
Company or any of its subsidiaries and affiliates, solely or jointly with
others in or relating to any activities of the Company or its subsidiaries
and affiliates known to him as a consequence of his employment or the
rendering of advisory and consulting services hereunder (collectively the
"Subject Matter").
(b) Executive hereby assigns and transfers, and agrees to assign
and transfer, to the Company) all his rights, title and interest in and to
the Subject Matter, and Executive further agrees to deliver to the Company
any and all drawings, notes, specifications and data relating to the
Subject Matter, and to execute, acknowledge and deliver all such further
papers, including applications for copyrights or patents, as may be
necessary to obtain copyrights and patents for any thereof in any and all
countries and to vest title thereto to the Company. Executive shall assist
the Company in obtaining such copyrights or patents during the term of this
Agreement, and any time thereafter on reasonable notice and at mutually
convenient times, and Executive agrees to testify in any prosecution or
litigation involving any of the Subject Matter; provided, however, that
Executive shall be compensated in a timely manner at the rate of $1,500 per
day (or portion thereof), plus out-of-pocket expenses incurred in rendering
such assistance or giving or preparing to give such testimony if it is
required after the Severance Period.
11. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
(a) Executive shall not, during the term of this Agreement, or
at any time following termination of this Agreement, directly or
indirectly, disclose or permit to be known (other than as is required in
the regular course of his duties (including without limitation disclosures
to the Company's advisors and consultants) or is required by law (in which
case Executive shall give the Company prior written notice of such required
disclosure) or with the prior written consent of the Board of Directors of
the Company), to any person, firm or corporation, any confidential
information acquired by him during the course of, or as an incident to, his
employment or the rendering of his advisory or consulting services
hereunder, relating to the Company or any of its subsidiaries and
affiliates, the directors of the Company or its subsidiaries and
affiliates, any client of the Company or any of its subsidiaries and
affiliates, or any corporation, partnership or other entity owned or
controlled, directly or indirectly, by any of the foregoing, or in which
any of the foregoing has a beneficial interest, including, but not limited
to, the business affairs of each of the foregoing. Such confidential
information shall include, but shall not be limited to, proprietary
technology, trade secrets, patented processes, research and development
data, know-how, market studies and forecasts, competitive analyses, pricing
policies, employee lists, personnel policies, the substance of agreements
with customers, suppliers and others, marketing or dealership arrangements,
servicing and training programs and arrangements, customer lists and any
other documents embodying such confidential information. This
confidentiality obligation shall not apply to any confidential information
which thereafter becomes publicly available other than pursuant to a breach
of this Section 11(a) by Executive.
(b) All information and documents relating to the Company and
its affiliates as hereinabove described (or other business affairs) shall
be the exclusive property of the Company, and Executive shall use
commercially reasonable best efforts to prevent any publication or
disclosure thereof. Upon termination of Executive's employment with the
Company, all documents, records, reports, writings and other similar
documents containing confidential information, including copies thereof
then in Executive's possession or control shall be returned and left with
the Company.
12. SPECIFIC PERFORMANCE
Executive agrees that if he breaches, or threatens to commit a
breach of, any of the provisions of Sections 9, 10 or 11 (the "Restrictive
Covenants"), the Company shall have, in addition to, and not in lieu of,
any other rights and remedies available to the Company under law and in
equity, the right to have the Restrictive Covenants specifically enforced
by an court of competent jurisdiction, it being agreed that any breach or
threatened breach of the Restrictive Covenants would cause irreparable
injury to the Company and that money damages would not provide an adequate
remedy to the Company. Notwithstanding the foregoing, nothing herein shall
constitute a waiver by Executive of his right to contest whether a breach
or threatened breach of any Restrictive Covenant has occurred.
13. AMENDMENT OR ALTERATION
No amendment or alteration of the terms of this Agreement shall
be valid unless made in writing and signed by both of the parties hereto.
14. GOVERNING LAW
This Agreement shall be governed by, and construed and enforced
in accordance with the substantive laws of The Commonwealth of
Massachusetts, without regard to its principles of conflicts of laws.
15. SEVERABILITY
The holding of any provision of this Agreement to be invalid or
unenforceable by a court of competent jurisdiction shall not affect any
other provision of this Agreement, which shall remain in full force and
effect.
16. NOTICES
Any notices required or permitted to be given hereunder shall be
sufficient if in writing, and if delivered by hand or courier, or sent by
certified mail, return receipt requested, to the addresses set forth above
or such other address as either party may from time to time designate in
writing to the other, and shall be deemed given as of the date of the
delivery or at the expiration of three days in the event of a mailing.
17. WAIVER OR BREACH
It is agreed that a waiver by either party of a breach of any
provision of this Agreement shall not operate, or be construed as a waiver
of any subsequent breach by that same party.
18. ENTIRE AGREEMENT AND BINDING EFFECT
This Agreement contains the entire agreement of the parties with
respect to the subject matter hereof, supersedes all prior agreements, both
written and oral, between the parties with respect to the subject matter
hereof, and shall be binding upon and inure to the benefit of the parties
hereto and their respective legal representatives, heirs, distributors,
successors and assigns.
19. SURVIVAL
Except as otherwise expressly provided herein, the termination of
Executive's employment hereunder or the expiration of this Agreement shall
not affect the enforceability of Sections 4, 7, 9, 10, 11 and 12 hereof.
20. FURTHER ASSURANCES
The parties agree to execute and deliver all such further
documents, agreements and instruments and take such other and further
action as may be necessary or appropriate to carry out the purposes and
intent of this Agreement.
21. HEADINGS
The Section headings appearing in this Agreement are for the
purposes of easy reference and shall not be considered a part of this
Agreement or in any way modify, demand or affect its provisions.
22. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original and all of which together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
under seal, as of the date and year first above written.
DESIGNS, INC.
By:/s/ Scott N. Semel
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Scott N. Semel, Senior Vice President
/s/ William D. Richins
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William D. Richins