Exhibit 10.7
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of, July
18, 2003, (the "Effective Date") by and between Tropical Sportswear Int'l
Corporation, a Florida corporation (the "Company"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇ (the
"Employee").
RECITALS:
By entering into this Agreement, the Company desires to provide the
Employee with substantial incentives to serve the Company without distraction or
concern over minimum compensation, benefits or tenure, to develop and implement
the Company's business plan and to manage the Company's future growth and
development and to maximize the returns to the Company's stockholders. Employee
desires to accomplish those goals and to provide excellent service to, and for
the benefit of, the Company.
NOW, THEREFORE, in consideration of the foregoing and the mutual provisions
contained herein, and for other good and valuable consideration, the parties
hereto agree with each other as follows:
1. EMPLOYMENT
A. On the terms and subject to the conditions hereinafter set forth, the
Company will employ the Employee as Senior Vice President Sales, Wal-Mart or
such other executive positions as the Company may from time to time assign, and
the Employee agrees to serve in those positions. The Employee shall perform such
duties, and have such powers, authority, functions, duties and responsibilities
for the Company and corporations Affiliated with the Company as are commensurate
and consistent with his position. The Employee also shall have such additional
powers, authority, functions, duties and responsibilities as may be assigned to
him or her by the President, Chief Executive Officer or Board of Directors.
B. The Employee shall not, at any time during the Term of Employment,
engage in any other activities unless these activities do not interfere
materially with the Employee's duties and responsibilities for the Company at
that time.
2. TERM OF EMPLOYMENT
The term of the Employee's Employment shall be for a term of one (1) year
(the "Term") commencing on the Effective Date and renew each day of the Term
thereafter for an additional day without further action by the Company or the
Employee, it being the intention of the parties that from the Effective Date
there shall be a continuously remaining Term of one (1) year duration of the
Employee's Employment unless the Agreement is terminated in accordance with
Section 4 below. The effective date of any termination shall be the "Termination
Date" and may be set by the Company in its discretion, pursuant to Section 4
below. In the event that Employee's Employment hereunder shall not have
otherwise been terminated, such Employment shall terminate at the end of the
Company's fiscal year in which the Employee reaches age sixty-five (65).
3. COMPENSATION
A. Base Salary. A Base Salary shall be payable to the Employee by the
Company as a guaranteed minimum annual amount hereunder for each Compensation
Year during the period from the Effective Date to the Termination Date. That
Base Salary shall be payable in the intervals consistent with the Company's
normal payroll schedules (but in no event less frequently than semi-monthly),
shall be payable initially at the annual rate of $220,000.
On the first and each subsequent anniversary of the Company's fiscal year,
the Base Salary shall be increased by the greater of the same percentage
increase (if any) in the CPI for the twelve (12) month period immediately
preceding such anniversary or such amount that the Company shall determine.
B. Annual Cash Bonus. The Annual Cash Bonus, if any, shall be determined
solely in the discretion of the Company.
C. Total Compensation is defined as the total of all Base Salary and Annual
Cash Bonus (including sales commissions) paid or payable by the Company to
Employee in the 12 months preceding termination.
4. TERMINATION
A. Termination by Company with Cause. The Company may terminate Employee at
any time upon notice for "cause." "Cause" shall mean and be limited to:
(1) the Employee's commission or conviction of, or plea of guilty or nolo
contendere to, any crime or offense involving money or other property of the
Company or others or which constitutes a felony or a crime involving moral
turpitude in the jurisdiction involved;
(2) fraud on the Company or otherwise relating to the Company or its
business;
(3) theft of any property of the Company;
(4) use of illegal drugs, misuse of prescription drugs that affects the
Employee's performance or repeated abuse of alcohol in connection with
employment or any Company duty or function;
(5) any willful material breach by the Employee of the performance of his
duties pursuant to this Agreement which continues after written notice from the
Company;
(6) failure or refusal by the Employee to carry out or abide by a directive
of the President, Chief Executive Officer or the Board of Directors, or their
designees, within five (5) business days after receipt of written notice of the
alleged failure or refusal;
(7) material misrepresentation by the Employee to any officer or director
of the Company;
(8) the Employee's continued poor performance or nonperformance of his
duties for more than thirty (30) days after receipt of written notice from the
Company detailing the poor performance or nonperformance and demanding
completion of reasonable objectives;
(9) any disclosure by the Employee to any person, firm or corporation other
than the Company and its directors, officers, and employees of any material
confidential information or trade secrets of the Company which is detrimental to
the interests of the Company or made outside the scope of the Employee's duties
to the Company;
(10)engaging by the Employee, without prior consent of the Board of
Directors of the Company, in any other business other than the business of the
Company which interferes in any material respect with the performance of
Employee's duties.
If the employment of the Employee is terminated by the Company for cause,
the Employee will not be entitled to any separation benefits and Employee's
salary, bonus, benefits and business expense reimbursements shall cease as of
the date of termination. All salary, bonuses on a prorata basis, benefits and
business expense reimbursements that are earned and due to the Employee
hereunder and not paid up to the Termination Date shall be paid to the Employee
within forty-five (45) days after the Termination Date.
B. Termination by the Company Without Cause. If the Company terminates the
Employee's employment without Cause at any time and Employee executes a general
release of claims in a form acceptable to the Company:
(a) the Company shall pay to the Employee an amount equal to one (1) year
of his or her Total Compensation for the prior 12 month period payable in one
lump sum within 45 days after the date of termination.
C. Relief of Duties. The Company may, during any notice period or at any
other time, in its discretion, relieve the Employee of his duties without
terminating him so long as the Company continues to pay and provide all of the
Employee's regular compensation and benefits.
D. Change of Control. For purposes of this Agreement, a "Change of Control"
shall be deemed to exist in the event that any of the following occurs:
(1) A change in the ownership of the capital stock of the Company where a
corporation, person other than an Exempt Person (as defined hereafter), or group
excluding any Exempt Person (as defined hereafter) acting in concert (a
"Person") as described in Section 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), holds or acquires, directly or
indirectly, beneficial ownership (within the meaning of Rule 13d3 promulgated
under the Exchange Act) of a number of shares of capital stock of the Company
which constitutes 50% or more of the combined voting power of the Company's then
outstanding capital stock then entitled to vote generally in the election of
directors; or
(2) The persons who were members of the Board of Directors of the Company
immediately prior to a tender offer, exchange offer, contested election, or any
combination of the foregoing, cease to constitute a majority of the Board of
Directors; or,
(3) The adoption of a merger, consolidation, or reorganization plan
involving the Company in which the Company is not the surviving entity, or a
sale of all or substantially all of the assets of the Company. For purposes of
this Agreement, a sale of all or substantially all of the assets of the Company
shall be deemed to occur if any Person, excluding any Exempt Person, acquires
(or during the 12-month period ending on the date of the most recent acquisition
by such Person, excluding any Exempt Person, has acquired, gross assets of the
Company that have an aggregate fair market value equal to 50% of the fair market
value of all of the gross assets of the Company immediately prior to such
acquisition or acquisitions; or
(4) A tender offer or exchange offer is made by any Person excluding any
Exempt Person (as hereafter defined) which, if successfully completed, would
result in such Person excluding any Exempt Person (as hereafter defined)
beneficially owning (within the meaning of Rule 13d3 promulgated under the
Exchange Act) either 50% or more of the Company's outstanding shares of Common
Stock or shares of capital stock having 50% or more of the combined voting power
of the Company's then outstanding capital stock (other than an offer made by the
Company), and sufficient shares are acquired under the offer to cause such
person to own 50% or more of the voting power; or
(5) Any other transactions or series of related transactions which have
substantially the same effect as the transactions specified in any of the
preceding clauses.
(6) "Exempt Person" means
(a) (1) the Company, any subsidiary of the Company, any employee benefit
plan of the Company or of any subsidiary of the Company, and
(2) any Person organized, appointed or established by the Company for or
pursuant to the terms of any such plan or for the purpose of funding any such
plan or funding other employee benefits for employees of the Company or any
subsidiary of the Company and
(b) the Employee, any Affiliate or Associate of the Employee or any group
(as that term is used in Exchange Act Rule 1 3d-5(b)) of which the Employee or
any Affiliate or Associate of the Employee is a member.
(c) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, any Affiliate or Associate of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or
any group (as that term is used in Exchange Act Rule 1 3d-5(b)) of which ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ or any Affiliate or Associate of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ is a member.
(d) ▇▇▇▇▇▇▇ ▇▇▇▇▇, any Affiliate or Associate of ▇▇▇▇▇▇▇ ▇▇▇▇▇ or any group
(as that term is used in Exchange Act Rule 1 3d-5(b)) of which ▇▇▇▇▇▇▇ ▇▇▇▇▇ or
any Affiliate or Associate of ▇▇▇▇▇▇▇ ▇▇▇▇▇ is a member.
(e) Accel SA de C.V., any Affiliate or Associate of said Accel or any group
(as that term is used in said rule) of which said Accel or any Affiliate or
Associate of said Accel is a member.
E. Termination Within 270 Days Following "Change of Control" In the event
of the Company's termination of Employee for any reason other than Cause within
270 days following a Change of Control, the Company shall pay Employee an amount
equal to one (1) year of his or her Total Compensation for the prior 12 month
period payable in one lump sum within 45 days after the date of termination.
F. Successors and Assigns. The parties acknowledge and agree that this
Agreement may not be assigned by the Company to any other person or entity
without the consent of the other party, provided, however, that in the event of
a Change of Control, the Company shall cause the surviving entity in any such
transaction to assume the payment obligations contained in this Agreement, to
the extent such obligations have not yet been fully performed. In the event of
the Employee's death, this Agreement shall be enforceable by the Employee's
estate, executors, or legal representatives.
5. OTHER EMPLOYEE RIGHTS
A. Paid Vacation: Holidays. The Employee shall be entitled to annual
vacation and all legal holidays during which times his applicable compensation
shall be paid in full in accordance with Company policies in effect from time to
time.
B. Fringe Benefits. During the term of this agreement, the Employee is
entitled to the same level of fringe benefits currently provided to Employee by
the Company.
C. Business Expenses. The Employee is authorized to incur, and will be
entitled to receive prompt reimbursement for, all reasonable expenses incurred
by the Employee in performing his duties and carrying out his responsibilities
hereunder, including air fare and hotels, business meals, entertainment and
travel expenses, provided that the Employee complies with the applicable
policies, practices and procedures of the Company relating to the submission of
expense reports, receipts or similar documentation of those expenses. The
Company shall either pay directly or promptly reimburse the Employee for such
expenses not more than twenty (20) days after the submission to the Company by
the Employee from time to time of an itemized accounting and acceptable evidence
of such expenditures for which direct payment or reimbursement is sought.
6. PROTECTIVE COVENANTS
A. Definitions. The following capitalized terms used in this Section 6
shall have the meanings assigned to them below, which definitions shall apply to
both the singular and the plural forms of such terms:
"Competitive Position" means any employment with a Competitor in which the
Employee will use or is likely to use any Confidential Information or Trade
Secrets, or in which the Employee has duties for such Competitor that relate to
Competitive Services and that are the same or similar to those services actually
performed by the Employee for the Company;
"Competitive Services" means the merchandising, manufacturing,
distribution, selling or marketing of apparel products.
"Competitor" means any Person engaged, wholly or in part, in Competitive
Services.
"Confidential Information" means all information regarding the Company, its
activities, business or clients that is the subject of reasonable efforts by the
Company to maintain its confidentiality and that is not generally disclosed by
practice or authority to persons not employed by the Company, but that does not
rise to the level of a Trade Secret. "Confidential Information" shall include,
but is not limited to, sales and marketing techniques and plans, lists of
contact data, technical data relating to the Company's products or production
techniques, purchase and supply information, details of client or consultant
contracts, current and anticipated customer requirements, pricing policies,
client billing information, price lists, market studies, business plans,
operational methods, marketing plans or strategies, product development
techniques or plans, financial plans and data concerning the Company, and
management planning information. "Confidential Information" shall not include
information that has become generally available to the public by the act of one
who has the right to disclose such information without violating any right or
privilege of the Company. This definition shall not limit any definition of
"confidential information" or any equivalent term under state or federal law.
"Person" means any individual or any corporation, partnership, joint
venture limited liability company, association or other entity or enterprise.
"Principal or Representative" means a principal, owner, partner,
shareholder, joint venturor, investor, member, trustee, director, officer,
manager, employee, agent, representative or consultant.
"Protected Employees" means employees of the Company who were employed by
the Company at any time within six (6) months prior to the termination Date.
"Restricted Period" means the Period of Employment and a period extending
one (1) year from the termination of the Employee's employment with the Company
for any reason whatsoever.
"Restricted Territory" means the United States and North, Central and South
America, the United Kingdom, Western Europe, Australia, New Zealand, and Fiji.
The Company and the Employee acknowledge and agree that the Company and its
subsidiaries do business and sell men's, women's, boys' and girls' sportswear
(tops and bottoms) in all 50 states of the United States and in each other
country in the Restricted Territory.
"Restrictive Covenants" means the restrictive covenants contained in
Section 6(b) hereof.
"Trade Secret" means all information regarding the Company, without regard
to form, including, but not limited to, technical or nontechnical data, a
formula, a pattern, a compilation, a program, a device, a method, a technique, a
drawing, a process, financial data, financial plans, product plans, distribution
lists or a list of actual or potential customers, advertisers or suppliers which
is not commonly known by or available to the public and which information: (A)
derives economic value, actual or potential, from not being generally known to,
and not being readily ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use; and (B) is the subject of
efforts that are reasonable under the circumstances to maintain its secrecy.
Without limiting the foregoing, Trade Secret means any item of Confidential
Information that constitutes a "trade secret(s)" under the common law or
statutory law of the State of Florida.
B. Restrictive Covenants.
(a) Restriction on Disclosure and Use of Confidential Information and Trade
Secrets. The Employee understands and agrees that the Confidential Information
and Trade Secrets constitute valuable assets of the Company and its affiliated
entities, and may not be converted to the Employee's own use. Accordingly, the
Employee hereby agrees that the Employee shall not, directly or indirectly, at
any time during the Restricted Period reveal, divulge, or disclose to any Person
not expressly authorized by the Company any Confidential Information, and the
Employee shall not, directly or indirectly, at any time during the Restricted
Period use or make use of any Confidential Information in connection with any
business activity other than that of the Company. Throughout the term of this
Agreement and at all times after the date that this Agreement terminates for any
reason, the Employee shall not directly or indirectly transmit or disclose any
Trade Secret of the Company to any Person, and shall not make use of any such
Trade Secret, directly or indirectly, for himself or for others, without the
prior written consent of the Company. The parties acknowledge and agree that
this Agreement is not intended to, and does not, alter either the Company's
rights or the Employee's obligations under any state or federal statutory or
common law regarding trade secrets and unfair trade practices.
Anything herein to the contrary notwithstanding, the Employee shall not be
restricted from disclosing or using Confidential Information that is required to
be disclosed by law, court order or other legal process; provided, however, that
in the event disclosure is required by law, the Employee shall provide the
Company with prompt notice of such requirement so that the Company may seek an
appropriate protective order prior to any such required disclosure by the
Employee.
(b) Nonsolicitation of Protected Employees. The Employee understands and
agrees that the relationship between the Company and each of its Protected
Employees constitutes a valuable asset of the Company and may not be converted
to the Employee's own use. Accordingly, the Employee hereby agrees that during
the Restricted Period the Employee shall not directly or indirectly on the
Employee's own behalf or as a Principal or Representative of any Person or
otherwise solicit or induce any Protected Employee to terminate his or her
employment relationship with the Company or to enter into employment with any
other Person.
(c) Enforcement of Restrictive Covenants.
(i) Rights and Remedies Upon Breach. In the event the Employee breaches, or
threatens to commit a breach of, any of the provisions of the Restrictive
Covenants, the Company shall have the following rights and remedies, which shall
be independent of any others and severally enforceable, and shall be in addition
to, and not in lieu of, any other rights and remedies available to the Company
at law or in equity:
(A) the right and remedy to enjoin, preliminarily and permanently, the
Employee from violating or threatening to violate the Restrictive Covenants and
to have the Restrictive Covenants specifically enforced by any 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; and
(B) the right and remedy to require the Employee to account for and pay
over to the Company all compensation, profits, monies, accruals, increments or
other benefits derived or received by the Employee as the result of any
transactions constituting a breach of the Restrictive Covenants.
(ii) Severability of Covenants. the Employee acknowledges and agrees that
the Restrictive Covenants are reasonable and valid in time and scope and in all
other respects. The covenants set forth in this Agreement shall be considered
and construed as separate and independent covenants. Should any part or
provision of any covenant be held invalid, void or unenforceable in any court of
competent jurisdiction, such invalidity, voidness or unenforceability shall not
render invalid, void or unenforceable any other part or provision of this
Agreement. If any portion of the foregoing provisions is found to be invalid or
unenforceable by a court of competent jurisdiction because its duration, the
territory, the definition of activities or the definition of information covered
is considered to be invalid or unreasonable in scope, the invalid or
unreasonable term shall be redefined, or a new enforceable term provided, such
that the intent of the Company and the Employee in agreeing to the provisions of
this Agreement will not be impaired and the provision in question shall be
enforceable to the fullest extent of the applicable laws.
7. RIGHTS TO AND RETURN OF MATERIALS
The Company and the Employee acknowledge that in the course of the
Employee's employment (as employee or independent contractor) by the Company,
the Employee may from time to time create, for the Company copyrightable works.
Such works may consist of manuals, pamphlets, instructional materials, computer
programs, software, software integration techniques, software codes, and data,
technical data, photographs, drawings, logos, designs, artwork or other
copyrightable material, or portions thereof, and may be created within or
without Company's facilities and before, during or after normal business hours.
All such works related to or useful in the business of the Company are
specifically intended to be works made by hire by the Employee, and the Employee
shall cooperate with the Company in the protection of the Company's copyrights
in such works and, to the extent deemed desirable by the Company, the
registration of such copyrights.
All records, files, software, software code, memoranda, reports, notes,
price lists, customer lists, drawings, plans, sketches, documents, technical
information, information on the use, development and integration of software,
and the like (together with all copies of such documents and things) relating to
the business of the Company, which the Employee shall use or prepare or come in
contact with in the course of, or as a result of, the Employee's employment or
other engagement by the Company shall, as between the parties to this Agreement,
remain the sole property of the Company. Laptop computers, other computers, cell
phones, pagers, software and related data, information and things provided to
the Employee by the Company or obtained by the Employee, directly or indirectly,
from the Company, also shall remain the sole property of the Company. Upon the
termination of the Employee's employment or upon the prior demand of the
Company, the Employee shall immediately return all such materials and things to
the Company and shall not retain any copies or remove or participate in removing
any such materials or things from the premises of the Company after termination
or the Company's request for return.
8. GENERAL PROVISION
A. Governing Law. This Agreement shall be construed and regulated under and
by the laws of the State of Florida. Personal jurisdiction for any proceeding
brought pursuant to this Agreement shall be vested in the appropriate County or
Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County,
Florida, or the Federal District Court of the Middle District of Florida,
Hillsborough County Division. Venue for any legal action authorized hereunder
shall be in Hillsborough County, Florida. Both parties consent to such
jurisdiction and venue.
B. Arbitration. The Company and the Employee agree that any claim or
controversy arising out of or relating to this Agreement, or any breach of this
Agreement, shall be settled by final and binding arbitration in the city of the
party against whom Arbitration is sought, in accordance with the Commercial
Arbitration Rules of the American Arbitration Association in effect on the date
the claim or controversy arises. Nothing in this Agreement shall be construed to
require the arbitration of any claim arising out of or relating to the
restrictive covenants provisions in this Agreement or any claim for unemployment
compensation or a claim for workers' compensation. These provisions shall be
enforceable by any Court of competent jurisdiction and shall not be subject to
arbitration under this section. The prevailing party shall be entitled to
reasonable attorney's fees and costs.
C. Severability. If any provision of this Agreement is deemed to be
unenforceable in accordance with its term, but would be considered enforceable
if the time period or geographic area of its effect is reduced, then such
provision shall be so reduced with the excessive aspects of the offending
provisions deemed severed and deleted from this Agreement with the Agreement
enforceable in full in accordance with its terms as so modified. If, however,
any portion of the foregoing provisions is found to be invalid or unenforceable
by a court of competent jurisdiction because of its duration, the territory, the
definition of activities or the definition of information covered is invalid or
unreasonable in scope, the invalid or unreasonable term shall be redefined, or a
new enforceable term provided, such that the intent of the Company and the
Employee in agreeing to the provisions of this Agreement will not be impaired
and the provision in question shall be enforceable to the fullest extent of the
applicable laws.
D. Notices. Whenever notice is required to be given hereunder, written
notice mailed or delivered to the Company at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ (if intended for the Company), or such other address as the
Company shall furnish in writing, shall constitute sufficient notice to the
Company; and written notice mailed or delivered to Employee at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ or such other place as may be designated by
Employee in writing, shall constitute sufficient notice to Employee. Where "the
Company" or "Employee" consists of more than one party, notice to one shall
constitute notice to all.
E. Waiver or Modification. No waiver or modification of this Agreement or
of any covenant, condition or limitation herein contained shall be valid unless
in writing and duly executed by the party to be charged therewith. Furthermore,
no evidence of any waiver or modification shall be offered or received in
evidence in any proceeding, arbitration or litigation between the parties
arising out of or affecting this Agreement or the rights or obligations of any
party hereunder, unless such waiver or modification is in writing and duly
executed as aforesaid. The provisions of this paragraph may not be waived except
as herein set forth.
F. Entire Agreement. This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter of this Agreement, and
supersedes any and all previous agreements, negotiations and promises between
the parties, whether written or oral, with respect to such subject matter.
G. Amendment. No amendment of any provision of this Agreement shall be
effective unless it is in writing and signed by both parties hereto, and then
such waiver or amendment shall be effective only in the specific instance and
for the specific purpose for which it is given.
H. Assignment. Employee may not directly or indirectly transfer or assign
any of its rights or obligations hereunder without prior written consent of the
Company, which consent may be given or withheld in the Company's sole and
exclusive discretion, and any such attempted assignment or transfer by Employee
without the Company's consent shall be void. Except as otherwise provided
herein, this Agreement shall bind and inure to the benefit of the Company and
its successors and assigns and Employee and its successors, permitted assigns,
heirs, devisees and legal representatives, as the case may be.
I. Section Headings. Section, subsection and similar headings contained in
this Agreement are for reference purposes only and shall not in any way affect
the meaning or interpretation of this Agreement.
J. Prior Agreements. Any prior agreement between Employee and the Company
Agreement is terminated and superseded in its entirety by this Agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the day and year indicated above.
TROPICAL SPORTSWEAR INT'L CORPORATION
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: President and CEO
EMPLOYEE
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇