*10.27. Employment Agreement between the Registrant and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
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EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, made as of August 13, 1996, by and between Guess ?,
Inc., a Delaware corporation (herein referred to as the "COMPANY"), and ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ (herein referred to as the "EXECUTIVE").
W I T N E S S E T H:
WHEREAS, the Company intends to make an underwritten initial public
offering of its common stock (the "PUBLIC OFFERING"); and
WHEREAS, in connection with the Public Offering, the Company and
Executive deem it to be in their respective best interests to enter into an
agreement providing for the Company's employment of Executive pursuant to the
terms herein stated;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto hereby agree as follows:
1. EMPLOYMENT; POSITION AND DUTIES; EXCLUSIVE SERVICES.
(a) EMPLOYMENT. The Company agrees to employ the Executive, and the
Executive agrees to be employed by the Company, for the Term provided in Section
2 below and upon the other terms and conditions hereinafter provided.
(b) POSITION AND DUTIES. During the Term, the Executive (i) agrees
to serve as the Senior Executive Vice President and Secretary of the Company and
to perform such reasonable duties as may be delineated in the By-Laws of the
Company and as may be assigned to him from time to time by the Board of
Directors of the Company (the "BOARD"), including, without limitation, primary
responsibility for all production functions of the Company, (ii) shall report,
as Senior Executive Vice President and Secretary of the Company, only to the
Board or to the Chairman of the Board and to the Chief Executive Officer of the
Company, (iii) shall be given such authority as is appropriate to carry out the
duties described above, it being understood that, in his capacities as Senior
Executive Vice President and Secretary of the Company, his duties will be
consistent in scope, prestige and authority with the duties of Senior Executive
Vice President and Secretary of the Company as demonstrated by the Company's
existing practices as of the effective date of this Agreement, and (v) agrees to
serve, if elected, at no additional compensation (if the other officers or
directors (other than non-employee directors) of the Company also serve at no
additional compensation) in the position of officer or director of any
subsidiary or affiliate of the Company; PROVIDED, HOWEVER, that such position
shall be of no less status relative to such subsidiary or affiliate as the
position that the Executive holds pursuant to clause (i) of this Section 1(b) is
relative to the Company.
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(c) EXCLUSIVE SERVICES. During the Term, the Executive agrees to
devote substantially all of his business time, attention, skill and efforts
exclusively to the business and affairs of the Company and its subsidiaries and
affiliates, and shall perform and discharge the duties which may be assigned to
him from time to time by the Board or the Chief Executive Officer.
(d) RELOCATION. The Company shall not relocate the Executive's
principal place of business outside of the Los Angeles metropolitan area without
the written consent of the Executive.
2. TERM OF AGREEMENT. The term of employment under this Agreement shall
initially be the three-year period commencing on the date of the Public Offering
(the "EFFECTIVE DATE") and ending on the third anniversary of the Effective
Date, and shall be automatically extended without further action by either party
for a successive or successive one-year period or periods, unless written notice
of either party's intention to terminate this Agreement has been given to the
other party at least 90 days prior to the expiration of the Term (including any
one-year extension thereof). As used in this Agreement, the "TERM" shall mean
the initial three-year term plus any extensions thereof as provided in this
Section 2.
3. SALARY AND ANNUAL BONUS. The Executive's cash compensation for all
services to be rendered by him in any capacity hereunder shall consist of base
salary as provided in Section 3(a) and bonus compensation as provided in Section
3(b).
(a) SALARY. The Executive shall be paid a minimum base salary (the
"SALARY") at the rate of $650,000 per annum. The Salary shall be payable in
accordance with the customary payroll practices for executives of the Company.
The amount of Executive's Salary will be reviewed not less often than annually
by the Compensation Committee of the Board (the "COMPENSATION COMMITTEE") and
may be increased, but not decreased below such amount, on the basis of such
review.
(b) ANNUAL BONUS.
(i) GENERAL TERMS. For each calendar year included in whole or in
part within the Term, the Executive shall be eligible to earn an annual cash
bonus (a "BONUS") based upon the achievement by the Company and its subsidiaries
of performance targets established by the Compensation Committee in accordance
with the terms of the Company's Annual Incentive Bonus Plan and any successor
plan thereto (collectively, the "BONUS PLAN"). The performance goals on the
basis of which the Executive's bonus shall be determined shall be no less
favorable to the Executive than the goals used to determine the bonus of any
other executive of the Company whose annual bonus is based in whole or in part
on corporate performance and who participates in the Bonus Plan, and the
Compensation Committee shall establish objective criteria to be used to
determine the extent to which such performance goals have been met. The Bonus,
if any, payable to the Executive in respect of each calendar year will be paid
at the same time that bonuses are paid to other participants in the Bonus Plan.
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(ii) AMOUNT OF TARGET BONUS. For each calendar year included in whole
or in part within the Term, there shall be a target Bonus (a "TARGET BONUS") for
the Executive equal to at least 100% of Executive's Salary, at the annual rate
in effect at the beginning of such calendar year (pro rated, if less than an
entire year).
(iii) DETERMINATION OF THE BONUS AMOUNT. The amount of the actual
Bonus for any calendar year to be paid to the Executive will be determined, in
the sole discretion of the Compensation Committee, based upon the performance of
the Company and its subsidiaries against the goals established by the
Compensation Committee pursuant to the Bonus Plan.
4. STOCK OPTIONS. Commencing as of the Effective Date, Executive shall
be eligible for option grants under the Company's 1996 Equity Incentive Plan and
any successor plan thereto for the Company's executive officers, in accordance
with the terms and conditions thereof.
5. PENSION AND WELFARE BENEFITS. During the Term, the Executive will
participate in all pension and welfare plans, programs and benefits that are
applicable to executives of the Company. The benefits provided to the Executive
during the Term, when taken as a whole, shall be no less favorable than the
benefits which, when taken as a whole, are provided to any other executive of
the Company; PROVIDED that Executive shall continue to receive life insurance
coverage in an amount equal to at least one (1) times his then Salary. During
the Term, the Executive shall also be entitled to all additional perquisites
which the Company provides to its executives. Subject to subsection 7(a)(i)
hereof, from and after the expiration of the Term or, if earlier, the date of
termination of Executive's employment hereunder, Executive shall be entitled,
during his lifetime, to full Company-paid health and life insurance for himself
and his immediate family, at a level no less favorable than that in effect from
time to time for the benefit of the Company's senior executive officers.
6. OTHER BENEFITS.
(a) TRAVEL AND BUSINESS-RELATED EXPENSES. During the Term, the
Executive shall be reimbursed in accordance with the policies of the Company for
traveling and other expenses incurred in the performance of the business of the
Company.
(b) AUTOMOBILE. During the Term, the Executive shall be furnished
with an automobile either owned or leased by the Company or an automobile
allowance, at the discretion of the Company. The Company shall pay or reimburse
the Executive for all reasonable expenses associated with the operation of such
automobile, including, without limitation, all reasonable maintenance and
insurance expenses.
(c) AIRCRAFT. The Executive shall be provided with reasonable access
to any aircraft leased or owned by the Company.
(d) COUNTRY CLUB MEMBERSHIP. During the Term, the Company shall pay
the Executive's reasonable membership expenses (including fees, dues and related
expenses) at such country club or clubs as approved by the Board.
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(e) CONSULTING AGREEMENT. Commencing on the expiration of the Term
of this Agreement or, if earlier, the date of termination of Executive's
employment hereunder for any reason other than death or for Cause (as defined
below), and subject to the provisions of Sections 8 and 9 hereof, the Company
and Executive shall enter into a two (2) year consulting agreement pursuant to
which Executive shall render consulting services to the Company as Executive and
the Company shall agree, for which the Company shall pay Executive a consulting
fee at an annual rate equal to 50% of Executive's Salary, at the rate in effect
immediately prior to the commencement of the consulting period, payable in
accordance with the customary payroll practices for executives of the Company or
at such other time or times as Executive and the Company shall agree. It is
expressly understood that Executive's reporting obligations pursuant to such
consulting agreement shall be limited to the Board and the Chief Executive
Officer of the Company, or such other person as Executive and the Company shall
agree.
7. TERMINATION OF EMPLOYMENT.
(a) TERMINATION FOR CAUSE, RESIGNATION WITHOUT GOOD REASON.
(i) If the Executive's employment is terminated by the Company for
Cause (as defined below) or if the Executive resigns from his employment without
Good Reason (as defined below), prior to the expiration of the Term, the
Executive shall be entitled to receive: (A) the Salary provided for in Section
3(a) as accrued through the date of such resignation or termination; (B) any
Bonus earned but not yet paid in respect of any calendar year preceding the year
in which such termination or resignation occurs; and (C) any unreimbursed
expenses. The Executive shall not accrue or otherwise be eligible to receive
Salary payments or to participate in any plans, programs or benefits described
in Section 5 hereof with respect to periods after the date of such termination
or resignation, and shall not be eligible to receive any Bonus in respect of the
year of such termination or resignation or any calendar year following the year
in which such termination or resignation occurs. Any Bonus in respect of a year
prior to the year in which such termination or resignation occurs shall be
payable at such time and in such manner as provided for in Section 3(b) hereof.
(ii) Termination for "CAUSE" shall mean termination by action of the
Board because of: (A) Executive's willful and continued failure (other than by
reason of the incapacity of Executive due to physical or mental illness)
substantially to perform his duties hereunder; (B) a felony conviction of the
Executive or the perpetration by the Executive of a serious dishonest act
against the Company or any of its affiliates or subsidiaries; (C) any willful
misconduct by the Executive that is materially injurious to the financial
condition or business reputation of the Company or any of its affiliates or
subsidiaries; or (D) chronic alcoholism or drug abuse which materially affects
Executive's performance hereunder, PROVIDED, HOWEVER, that no event or
circumstance shall be considered to constitute Cause within the meaning of this
clause (ii) unless the Executive has been given written notice of the events or
circumstances constituting Cause and has failed to effect a cure thereof within
60 calendar days following the receipt of such notice.
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(iii) Resignation for "GOOD REASON" shall mean the resignation of the
Executive because of (A) a material reduction in Executive's responsibilities,
duties, authority, status or titles as described in Section 1 above; or (B)
failure by the Company to pay or provide Executive when due any compensation,
benefits or perquisites to which Executive is entitled pursuant to this
Agreement or any other plan, contract or arrangement in which Executive
participates or is entitled to participate; PROVIDED, HOWEVER, that no event or
circumstance shall be considered to constitute Good Reason within the meaning of
this clause (iii) unless the Company has been given written notice of the events
or circumstances constituting Good Reason and has failed to effect a cure
thereof within 60 calendar days following the receipt of such notice.
(iv) The date of termination of employment by the Company pursuant to
this Section 7(a) shall be the date specified in a written notice of termination
from the Company to the Executive, which, in the case of a proposed termination
to which the 60-day cure period provided for in subsection (ii) above applies
shall be no less than 61 days after the delivery of such notice to the
Executive. The date of a resignation by the Executive pursuant to this Section
7(a) shall be the date specified in the written notice of resignation from the
Executive to the Company, which, in the case of a proposed resignation to which
the 60-day cure period provided for in subsection (iii) above applies shall be
no less than 61 days after the delivery of such notice to the Company, or, if no
date is specified therein, 61 days after receipt by the Company of the written
notice of resignation from the Executive.
(b) TERMINATION WITHOUT CAUSE, RESIGNATION FOR GOOD REASON.
(i) If the Executive's employment is terminated by the Company
without Cause or if the Executive should resign for Good Reason, prior to the
expiration of the Term, he shall be entitled to receive: (A) the Salary
provided for in Section 3(a) as accrued through the date of such resignation or
termination and continuing for the remainder of the then-effective Term (the
"CONTINUATION PERIOD"); (B) any Bonus earned but not yet paid in respect of any
calendar year preceding the year in which such termination or resignation
occurs; (C) any unreimbursed expenses and (D) a Bonus for the calendar year in
which such termination or resignation occurs equal to the Executive's Target
Bonus for such year and a Bonus for each subsequent year included in whole or in
part within the Continuation Period equal to the Target Bonus for the calendar
year in which such termination or resignation occurs, PROVIDED, HOWEVER, that
the amount of such Bonus payable in respect of any partial calendar year at the
conclusion of the Continuation Period shall be prorated and shall equal the
Executive's Bonus for such year multiplied by a fraction, the numerator of which
shall equal the number of days in such calendar year up to and including the
last day of the Continuation Period and the denominator of which shall equal the
lesser of 365 or the number of days in such final calendar year up to and
including the last day of the Term.
During the Continuation Period, (X) Salary payments to the Executive
shall be payable in accordance with the payroll practices of the
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Company, and (Y) Bonus payments shall be made in respect of each calendar
year at the same time that bonuses are paid to participants in the Bonus
Plan.
The Executive shall also be entitled to continued participation in the
medical, dental and insurance plans and arrangements described in Section 5, on
the same terms and conditions as are in effect immediately prior to such
termination or resignation, until the earlier to occur of (i) the last day of
the Continuation Period and (ii) such time as Executive is entitled to
comparable benefits provided by a subsequent employer. Anything herein to the
contrary notwithstanding, the Company shall have no obligation to continue to
maintain during the Continuation Period any plan or program solely as a result
of the provisions of this Agreement. If, during the Continuation Period,
Executive is precluded from participating in a plan or program by its terms or
applicable law or if the Company for any reason ceases to maintain such plan or
program, the Company shall provide Executive with compensation or benefits the
aggregate value of which, in the reasonable judgement of the Company, is no less
than the aggregate value of the compensation or benefits that Executive would
have received under such plan or program had he been eligible to participate
therein or had such plan or program continued to be maintained by the Company.
(ii) Except as may be provided under the terms of any applicable
grants to the Executive, under any plan or arrangement in which the Executive
participates under Section 5 or except as may be otherwise required by
applicable law, including, without limitation, the provisions of Section
4980B(f) of the Internal Revenue Code of 1986, as amended (the "CODE"), the
Executive shall have no right under this Agreement or any other agreement to
receive any other compensation, or to participate in any other plan, arrangement
or benefit, with respect to future periods after such termination or resignation
of employment. Except as otherwise provided in Section 9(d), in the event of a
termination or resignation pursuant to this Section 7(b), the Executive shall
have no duty of mitigation with respect to amounts payable to him pursuant to
this Section 7(b) or other benefits to which he is entitled pursuant hereto;
PROVIDED, HOWEVER, that, in the event the Executive breaches any of the
provisions of Sections 8 or 9 hereof, the amounts payable to the Executive
pursuant to this Section 7(b), or other benefits to which he is entitled
pursuant hereto, will be offset or reduced by any compensation, payments or
benefits he may receive from a subsequent employer.
(iii) The date of termination of employment by the Company pursuant to
this Section 7(b) shall be the date specified in the written notice of
termination from the Company to the Executive or, if no date is specified
therein, ten business days after receipt by the Executive of the written notice
of termination from the Company. The date of a resignation by the Executive
pursuant to this Section 7(b) shall be the date specified in the written notice
of resignation from the Executive to the Company or, if no date is specified
therein, ten business days after receipt by the Company of the written notice of
resignation from the Executive.
(c) DEATH OR PERMANENT DISABILITY. If the Executive's employment
hereunder terminates by reason of Executive's death or Permanent Disability
prior to expiration of the Term, the Executive (or his beneficiary
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(or if no such beneficiary is designated, his estate), conservator or
guardian, as the case may be) shall be entitled to receive: (i) the Salary
provided for in Section 3(a) as accrued through the date of the Executive's
death or Permanent Disability; (ii) any Bonus earned but not yet paid in
respect of any calendar year preceding the year in which the Executive's
death or Permanent Disability occurs; (iii) a Bonus for the calendar year in
which the Executive's death or Permanent Disability occurs equal to a pro
rata portion of the Executive's Target Bonus for such year, determined on the
basis of the number of days in such year through the date of Executive's
death or Permanent Disability; and (iv) any unreimbursed expenses. Bonus
payments provided for in this Section 7(c) shall be made at such time and in
such manner as is provided in Section 3(b). As used in this Section, the
term "BENEFICIARY" includes both the singular and the plural of such term, as
may be appropriate. For purposes of this Agreement, "PERMANENT DISABILITY"
shall be defined in the same manner as such term or a similar term is defined
in any long-term disability policy maintained by the Company for the
Executive and in effect on the date of the Executive's termination of
employment with the Company, PROVIDED that, in the event that the Company
does not maintain a long-term disability policy for the Executive, Permanent
Disability shall mean a physical or mental incapacity that substantially
prevents him from performing his duties hereunder for a period of 6
consecutive months and that can reasonably be expected to continue
indefinitely. Any dispute as to whether or not Executive is disabled within
the meaning of the preceding sentence shall be resolved by a physician
reasonably satisfactory to Executive and the Company, and the determination
of such physician shall be final and binding upon both Executive and the
Company.
8. ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS.
(a) DEFINITION OF "INVENTIONS". As used herein, the term "INVENTIONS"
shall mean all inventions, discoveries, improvements, trade secrets, formulas,
techniques, data, programs, systems, specifications, documentations, algorithms,
flow charts, logic diagrams, source codes, processes, and other information,
including works-in-progress, whether or not subject to patent, trademark,
copyright, trade secret, or mask work protection, and whether or not reduced to
practice, which are made, created, authored, conceived, or reduced to practice
by Executive, either alone or jointly with others, during the period of
employment with the Company (including, without limitation, all periods of
employment with the Company prior to the Effective Date), whether or not
performed on the Company's premises or property, which (A) relate to the actual
or anticipated business, activities, research, or investigations of the Company
or (B) result from or is suggested by work performed by Executive for the
Company (whether or not made or conceived during normal working hours or on the
premises of the Company), or (C) which result, to any extent, from use of the
Company's premises or property.
(b) WORK FOR HIRE. Executive expressly acknowledges that all
copyrightable aspects of the Inventions (as defined above) are to be considered
"works made for hire" within the meaning of the Copyright Act of 1976, as
amended (the "ACT"), and that the Company is to be the "author" within the
meaning of such Act for all purposes. All such copyrightable
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works, as well as all copies of such works in whatever medium, fixed or
embodied, shall be owned exclusively by the Company as of the date of
creation, and Executive hereby expressly disclaims any and all interest in
any of such copyrightable works and waives any right of DROIT MORALE or
similar rights.
(c) ASSIGNMENT. Executive acknowledges and agrees that all
Inventions constitute trade secrets of the Company and shall be the sole
property of the Company or any other entity designated by the Company. In the
event that title to any or all of the Inventions, or any part or element
thereof, may not, by operation of law, vest in the Company, or such Inventions
may be found as a matter of law not to be "works made for hire" within the
meaning of the Act, Executive hereby conveys and irrevocably assigns to the
Company, without further consideration, all his right, title and interest,
throughout the universe and in perpetuity, in all Inventions and all copies of
them, in whatever medium, fixed or embodied, and in all written or computer
records, graphics, diagrams, notes, or reports relating thereto in Executive's
possession or under his control, including, with respect to any of the
foregoing, all rights of copyright, patent, trademark, trade secret, mask work,
and any and all other proprietary rights therein, the right to modify and create
derivative works, the right to invoke the benefit of any priority under any
international convention, and all rights to register and renew the same.
Anything to the contrary notwithstanding, this subsection (c) shall not require
Executive to assign any Invention that would cause this Section 8, or any
portion thereof, to be void or unenforceable under Section 2870 of the
California Labor Code, and Executive acknowledges receipt of the notification
required by Section 2872 of the California Labor Code.
(d) PROPRIETARY NOTICES; NO FILINGS; WAIVER OF MORAL RIGHTS.
Executive acknowledges that all Inventions shall, at the sole option of the
Company, bear the Company's patent, copyright, trademark, trade secret and mask
work notices.
Executive agrees not to file any patent, copyright or trademark
applications relating to any Invention except with prior written consent of an
authorized representative of the Company (other than Executive).
Executive hereby expressly disclaims any and all interest in any
Inventions and waives any right of DROIT MORALE or similar rights, such as
rights of integrity or the right to be attributed as the creator of the
Invention.
(e) FURTHER ASSURANCES. Executive agrees to assist the Company, or
any party designated by the Company, promptly on the Company's request, whether
before or after the termination of employment, however such termination may
occur, in perfecting, registering, maintaining, and enforcing, in all
jurisdictions, the Company's rights in the Inventions by performing all acts and
executing all documents and instruments deemed necessary or convenient by the
Company, including, by way of illustration and not limitation:
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(i) Executing assignments, applications, and other documents and
instruments in connection with (A) obtaining patents, copyrights, trademarks,
mask works, or other proprietary protections for the Inventions and (B)
confirming the assignment to the Company of all right, title and interest in
the Inventions or otherwise establishing the Company's exclusive ownership
rights therein.
(ii) Cooperating in the prosecution of patent, copyright, trademark
and mask work applications, as well as in the enforcement of the Company's
rights in the Inventions, including, but not limited to, testifying in court
or before any patent, copyright, trademark or mask work registry office or
any other administrative body.
Executive will be reimbursed for all out-of-pocket costs reasonably
incurred in connection with the foregoing, if such assistance is requested by
the Company after the termination of Executive's employment. In addition, to
the extent that, after the termination of employment for whatever reason,
Executive's technical expertise shall be required in connection with the
fulfillment of the aforementioned obligations, the Company will compensate
Executive at a reasonable rate for the time actually spent by Executive at the
Company's request rendering such assistance.
(f) POWER OF ATTORNEY. Executive hereby irrevocably appoints the
Company to be his Attorney-in-Fact to execute any document and to take any
action in his name and on his behalf and to generally use his name for the
purpose of giving to the Company the full benefit of the assignment provisions
set forth above.
(g) DISCLOSURE OF INVENTIONS. Executive will make full and prompt
disclosure to the Company of all Inventions subject to assignment to the
Company, and all information relating thereto in Executive's possession or under
his control as to possible applications and use thereof.
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9. NO COMPETING EMPLOYMENT; NO INTERFERENCE; CONFIDENTIALITY; REMEDIES.
(a) NO COMPETING EMPLOYMENT. For so long as the Executive is
employed by the Company or any of its affiliates and subsidiaries and continuing
for the two-year period commencing at the expiration of the Term hereof or the
earlier termination of Executive's employment for any reason other than death
(such period being referred to hereinafter as the "RESTRICTED PERIOD"), the
Executive shall not, unless he receives after the Effective Date the prior
written consent of the Board, directly or indirectly, whether as owner,
consultant, employee, partner, venturer, agent, through stock ownership,
investment of capital, lending of money or property, rendering of services, or
otherwise, compete with the Company or any of its affiliates or subsidiaries in
any business in which any of them is engaged during the Term hereunder or at the
time of the termination of the Executive's employment hereunder, including
without limitation the design, manufacture and/or distribution of men's or
women's sportswear or accessories (such businesses are hereinafter referred to
as the "BUSINESS"), or assist, become interested in or be connected with any
corporation, firm, partnership, joint venture, sole proprietorship or other
entity which so competes with the Business, except that the provisions of this
Section 9(a) will not be deemed breached merely because Executive owns equity in
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇ of California, (ii) California Sunshine Active Wear, Inc.; or
(iii) Nantucket Industries, Inc. or because Executive "beneficially owns",
either individually or as a member of a "group" (as such terms are used in Rule
13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act")), not more than five percent (5%) of the voting securities of any one or
more companies that file reports pursuant to the Exchange Act. After the
expiration of the Term hereof and during the two-year period referenced above,
the restrictions imposed by this paragraph shall not apply to any business in
which the Company or its affiliates and subsidiaries were not engaged at the
time of termination of the Executive's employment hereunder or to any geographic
area in which the Company or its affiliates and subsidiaries were not engaged in
the Business at the time of termination.
(b) NO INTERFERENCE. During the Restricted Period, the Executive
shall not, for the purpose of competing with the Business, directly or
indirectly, whether for his own account or for the account of any other
individual, partnership, firm, corporation or other business organization or
entity (other than the Company), intentionally solicit, endeavor to entice away
from the Company or any of its affiliates or subsidiaries, or otherwise
intentionally interfere with the relationship of the Company or any of its
affiliates or subsidiaries with any person who is employed by or otherwise
engaged to perform services for the Company or any of its affiliates or
subsidiaries or influence, or seek to influence, any person or entity who is a
customer, client or supplier of the Company or any of its affiliates or
subsidiaries to divert their business to any person or entity that competes with
the Company or any of its affiliates or subsidiaries, nor shall the Executive
participate in the efforts of any individual, partnership, firm, corporation or
other business corporation or entity for which he provides services, by which he
is employed, or in which he invests, to do so, except that the provisions of
this Section 9(b) will not be deemed breached merely
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because Executive owns equity in (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇ of California, (ii)
California Sunshine Active Wear, Inc.; or (iii) Nantucket Industries, Inc. or
because Executive "beneficially owns", either individually or as a member of
a "group" (as such terms are used in Rule 13d-3 under the Exchange Act), not
more than five percent (5%) of the voting securities of any one or more
companies that file reports pursuant to the Exchange Act. After the
expiration of the Term hereof and during the two-year period referenced in
subsection 9(a), the restrictions imposed by this paragraph shall not apply
to any business in which the Company or its affiliates and subsidiaries were
not engaged at the time of termination of the Executive's employment
hereunder or to any geographic area in which the Company or its affiliates
and subsidiaries were not engaged in the Business at the time of termination.
(c) CONFIDENTIAL INFORMATION. The Executive recognizes that the
services to be performed by him hereunder, and the services performed by him
during prior periods of employment with the Company, are special, unique and
extraordinary and that, by reason of such employment, he has acquired and will
continue to acquire confidential information and trade secrets concerning the
operations of the Company and its affiliates and subsidiaries. Accordingly, the
Executive agrees that he will not, except with the prior written consent of the
Board or as may be required by law, directly or indirectly, disclose during the
Term or any time thereafter any secret or confidential information that he has
learned by reason of his association with the Company or any of its affiliates
or subsidiaries or use any such information to the detriment of the Company or
its affiliates or subsidiaries so long as such confidential information or trade
secrets have not been disclosed or are not otherwise in the public domain. The
term "CONFIDENTIAL INFORMATION" means any information about the Company, its
subsidiaries and affiliates, and their respective clients and customers, not
previously disclosed to the public or to the trade by the Company's management,
including, without limitation, any products, data, formulae, facilities and
methods, trade secrets and other intellectual property, systems, records
(including computer records), procedures, manuals, confidential reports, product
price lists, client and customer lists, financial information (including the
revenues, costs or profits associated with any of the Company's products),
business plans, prospects or opportunities.
(d) REMEDIES; SURVIVAL OF AGREEMENT. In the event that the Executive
materially breaches any of the covenants set forth in this Section 9 and fails
to cure such breach to the reasonable satisfaction of the Company within 10
business days after receipt of written notice thereof to the Executive, any
obligation of the Company to make any payment to the Executive pursuant to this
Agreement, including without limitation any payments pursuant to Section 7(b)
(other than payments of Salary or Bonus earned prior to the date of such breach
and unreimbursed expenses), shall be cancelled. In addition, the Executive
acknowledges that a breach of any of the covenants contained in this Section 9
may result in material irreparable injury to the Company or its affiliates or
subsidiaries for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of such a breach or threat thereof, the Company shall be entitled, in addition
to any other rights or remedies it may have, to seek an injunction enjoining or
restraining the Executive from
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any violation or threatened violation of this Section 9. The Executive's
agreement as set forth in this Section shall survive the termination of the
Executive's employment under this Agreement.
10. SOURCE OF PAYMENTS. All payments provided under this Agreement,
other than payments made pursuant to a benefit plan which may provide otherwise,
shall be paid in cash from the general funds of the Company, and no special or
separate fund shall be established, and no other segregation of assets made, to
assure payment. The Executive shall have no right, title, or interest whatever
in or to any investments which the Company may make to aid the Company in
meeting its obligations hereunder. Nothing contained in this Agreement, and no
action taken pursuant to its provisions, shall create or be construed to create
a trust of any kind, or a fiduciary relationship, between the Company and the
Executive or any other person. To the extent that any person acquires a right
to receive payments from the Company hereunder, such right shall be no greater
than the right of an unsecured creditor of the Company.
11. TAX WITHHOLDING. Payments to the Executive of all compensation
contemplated under this Agreement shall be subject to all applicable legal
requirements with respect to the withholding of taxes.
12. NONASSIGNABILITY; BINDING AGREEMENT. Neither this Agreement nor
any right, duty, obligation or interest hereunder shall be assignable or
delegable by the Executive without the Company's prior written consent;
PROVIDED, HOWEVER, that nothing in this Section shall preclude the Executive
from designating any of his beneficiaries to receive any benefits payable
hereunder upon his death or disability, or his executors, administrators, or
other legal representatives, from assigning any rights hereunder to the person
or persons entitled thereto. This Agreement shall be binding upon, and inure to
the benefit of, the parties hereto, any successors to or assigns of the Company
and the Executive's heirs and the personal representatives of the Executive's
estate.
13. AMENDMENT; WAIVER. This Agreement may not be modified, amended
or waived in any manner except by an instrument in writing signed by the parties
hereto. The waiver by either party of compliance with any provision of this
Agreement by the other party shall not operate or be construed as a waiver of
any provision of this Agreement, or of any subsequent breach by such party of a
provision of this Agreement.
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14. NOTICES. Any notice hereunder by either party to the other
shall be given in writing by personal delivery, telex, telecopy or certified
mail, return receipt requested, to the applicable address set forth below:
(i) To the Company: Guess ?, Inc.
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Attention: General Counsel
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) To the Executive: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Guess ?, Inc.
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Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(or such other address as may from time to time be designated by notice by any
party hereto for such purpose). Notice shall be deemed given, if by personal
delivery, on the date of such delivery or, if by telex or telecopy, on the
business day following receipt of answerback or telecopy confirmation or, if by
certified mail, on the date shown on the applicable return receipt.
15. CALIFORNIA LAW. This Agreement is to be governed by and
interpreted in accordance with the laws of the State of California, without
giving effect to the choice-of-law provisions thereof. If, under such law, any
portion of this Agreement is at any time deemed to be in conflict with any
applicable statute, rule, regulation or ordinance, such portion shall be deemed
to be modified or altered to conform thereto or, if that is not possible, to be
omitted from this Agreement, and the invalidity of any such portion shall not
affect the force, effect and validity of the remaining portion hereof.
16. ARBITRATION. Any controversy or claim arising out of or relating
to this Agreement, including, but not limited to, any claim relating to its
validity, interpretation, enforceability or breach, or any other claim or
controversy arising out of the employment relationship or the commencement or
termination of that relationship, including, but not limited to, claims for
breach of covenant, breach of implied covenant or intentional infliction of
emotional distress, which are not settled by agreement between the parties,
shall be settled by arbitration in Los Angeles, California before a board of
three arbitrators, one to be selected by the Company, one by Executive and the
other by the two persons so selected, all in accordance with the labor
arbitration rules of the American Arbitration Association then in effect;
PROVIDED, HOWEVER, that the Company shall nevertheless be entitled to seek
relief under Section 9 in accordance with Section 9(d). In consideration of the
parties' agreement to submit to arbitration disputes with regard to this
Agreement and with regard to any alleged contract or tort or other claim arising
out of the employment relationship, and in consideration of the anticipated
expedition and minimization of expense of this arbitration remedy, each party
agrees that the arbitration provisions of this Agreement shall provide it with
exclusive remedy, except as provided in the preceding sentence, and each party
expressly waives any right it might have to seek redress in any other forum
except as provided herein. The parties further
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agree that the arbitrators acting hereunder shall be empowered to assess no
remedy other than the payment of compensatory damages or an order (including
temporary, preliminary and permanent injunctive relief) enforcing the
provisions of Section 9. Executive acknowledges that the Company would be
irreparably injured by Executive's breach of his obligations under Section 9
and that monetary damages would be inadequate. Subject to the provisions of
Section 17(b) hereof, the expenses of the third arbitrator and of a
transcript of any arbitration proceeding shall be divided equally between the
Company and Executive and each party shall bear the expense of the arbitrator
selected by it and of any witnesses it calls. Any decision and award or
order of the majority of the arbitrators shall be binding upon the parties
hereto and judgment thereon may be entered in any court having jurisdiction
thereof.
17. INDEMNITY AND REIMBURSEMENT OF LEGAL EXPENSES.
(a) INDEMNITY. The Company will indemnify the Executive (and his
legal representatives or other successors) to the fullest extent permitted
(including payment of expenses in advance of final disposition of a proceeding)
by the laws of the State of California, as in effect at the time of the subject
act or omission, or by the Certificate of Incorporation and By-Laws of the
Company, as in effect at such time, or by the terms of any indemnification
agreement between the Company and the Executive, whichever affords greatest
protection to the Executive, and the Executive shall be entitled to the
protection of any insurance policies the Company may elect to maintain generally
for the benefit of its directors and officers (and to the extent the Company
maintains such an insurance policy or policies, the Executive shall be covered
by such policy or policies, in accordance with its or their terms, to the
maximum extent of the coverage available for any Company officer or director),
against all costs, charges and expenses whatsoever incurred or sustained by him
or his legal representatives at the time such costs, charges and expenses are
incurred or sustained, in connection with any action, suit or proceeding to
which he (or his legal representatives or other successors) may be made a party
by reason of his being or having been a director, officer or employee of the
Company or any subsidiary thereof, or his serving or having served any other
enterprises as a director, officer or employee at the request of the Company.
(b) LEGAL FEES AND EXPENSES. In the event of a dispute between the
Executive and the Company with respect to any of the Executive's rights under
this Agreement, the Company shall reimburse the Executive for any and all legal
fees and related expenses reasonably incurred by him in connection with
enforcing such rights if the Executive is successful in obtaining a money
judgment against the Company in a final arbitration proceeding. In addition,
the Company shall reimburse Executive for all reasonable legal expenses in
connection with the negotiation and review of this Agreement and any amendments
thereto.
18. COUNTERPARTS. This Agreement may be executed by either of the
parties hereto in counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement this
13th day of August, 1996, effective as of the Effective Date.
GUESS ?, INC.
By:
Title:
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