AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
This
AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT
(“Agreement”) is made to be effective as of
December 30, 2008, between R. G. Barry Corporation, an Ohio
corporation (the “Company”), and Daniel D. Viren
(“Executive”) under the following
circumstances:
A. The
parties originally entered into this Agreement effective as of
June 5, 2000 (the “Original Agreement Date”), and
subsequently amended the Agreement to extend the Term of Employment
(as defined in Section 2); and
B. Pursuant to Section 12 of the
Agreement, the parties desire to amend and restate the Agreement in
its entirety to comply with the requirements of Section 409A
of the Internal Revenue Code of 1986, as amended (the
“Code”).
NOW,
THEREFORE, IN CONSIDERATION OF THE PREMISES AND THE MUTUAL
COVENANTS CONTAINED HEREIN, THE COMPANY AND EXECUTIVE AGREE AS
FOLLOWS:
Section 1.
Employment . The Company hereby agrees to continue to employ
Executive, and Executive hereby agrees to continue to be employed
by the Company, on the terms and conditions set forth
herein.
Section 2.
Term of Employment . The term of employment of Executive by
the Company under this Agreement commenced on June 5, 2000 and
shall end on August 30, 2009 (the “Term of
Employment”).
Section 3.
Position and Duties .
(a)
Position . The Company shall continue to employ Executive
as, and Executive shall continue to serve as, Senior Vice President
— Finance, Chief Financial Officer and Secretary of the
Company or any other position within the discretion of the Board of
Directors of the Company, with his duties, authority and
responsibilities to be as reasonably assigned by the Chief
Executive Officer or the Board of Directors of the Company
consistent with the applicable titles and positions.
(b)
Duties . Executive shall devote his full-time efforts to the
business and affairs of the Company and shall perform his duties
faithfully, diligently, and to the best of his ability and in
conformity with the policies of the Company and under and subject
to such reasonable directions and instructions as the Board of
Directors and the Chief Executive Officer of the Company may issue
from time to time.
Section 4.
Compensation and Related Matters .
(a)
Salary . The Company shall pay Executive a base salary of
not less than $220,000 per year payable in approximately equal
installments in accordance with the Company’s normal pay
schedule. In the event the Company shall at any time or times after
the Original Agreement Date increase Executive’s base salary,
then Executive’s base salary under this Agreement for any
period after any such increase shall be not less than the last
amount to which the Company increased the base salary of Executive
(such base salary including increases granted after the Original
Agreement Date is hereinafter referred to as “Basic
Salary”). Compensation of Executive by Basic Salary payments
shall not be deemed exclusive and shall not prevent Executive from
participating in any other compensation or benefit plan of the
Company. The Basic Salary payments hereunder shall not in any way
limit or reduce any other obligation of the Company hereunder, and
no other compensation, benefit or payment hereunder shall in any
way limit or reduce the obligation of the Company to pay
Executive’s Basic Salary hereunder.
(b)
Expenses . During the Term of Employment, Executive shall be
entitled to receive prompt reimbursement for all reasonable
expenses incurred by Executive in performing services hereunder,
including all reasonable expenses of travel and living expenses
while away from home on business or at the request of and in the
service of the Company, provided that such expenses are incurred
and accounted for in accordance with the policies and procedures
established by the Company.
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(c)
Other Benefits . During the Term of Employment:
(1) Executive
shall be entitled to receive such perquisites and fringe benefits
historically provided by the Company to its senior executives,
including, without limitation, a monthly automobile allowance which
shall be payable on the first pay period of each month and
bi-weekly health club dues. Any perquisite provided pursuant to
this Section 4(c) shall be subject to the following requirements:
(i) the amount of expenses eligible for reimbursement or
benefits provided during any taxable year of Executive may not
affect the expenses eligible for reimbursement or benefits to be
provided in any other taxable year of Executive; (ii) any
reimbursement of an eligible expense shall be made on or before the
last day of the taxable year of Executive following the taxable
year of Executive in which the expense was incurred; and
(iii) the right to such reimbursement or benefit may not be
subject to liquidation or exchange for another benefit.
(2) Executive
shall be entitled to participate in the Company’s Executive
Supplemental Pension Plan and Executive Variable Life Insurance
Plan, as either of the same may be amended from time to time, or
any substitute or successor plans;
(3) Executive
shall be entitled to participate in the Company’s Short-Term
Incentive Plan (STIPS), as the same may be amended from time to
time, or any substitute or successor plan, at a maximum annual
level equal to 60% of his Basic Salary; and
(4) Executive
shall be entitled to receive all other employee benefits,
including, without limitation, medical, dental, disability, 401(k),
retirement, group life and accidental death insurance benefits as
are or in the future may be provided by the Company to its senior
executives.
Section 5.
Termination . For purposes of this Agreement,
“termination” or any form thereof shall mean a
“separation from service,” within the meaning of
Treasury Regulation §1.409A-1(h), with the Company and all
persons with whom the Company would be considered a single employer
under Sections 414(b) and (c) of the Code.
(a)
Termination of Employment Other Than by Executive .
Executive’s employment hereunder may be terminated without
any breach of this Agreement only under the following
circumstances:
(1)
Death . Executive’s employment hereunder shall
terminate upon his death.
(2)
Disability . If, as a result of Executive’s incapacity
due to physical or mental illness, Executive shall have been absent
from his duties hereunder on a full-time basis for the entire
period of four (4) consecutive months, and within ten
(10) days after written Notice of Termination (as defined in
Section 5(d)) is given (which may occur before or after the
end of such four (4) month period) shall not have returned to
the performance of his duties hereunder on a full-time basis, the
Company may terminate Executive’s employment hereunder for
“Disability.”
(3) Cause .
The Company may terminate Executive’s employment hereunder
for Cause. For purposes of this Agreement, the Company shall have
“Cause” to terminate Executive’s employment
hereunder only upon:
(i) The willful
and continued refusal by Executive to perform his duties with the
Company (other than any such refusal resulting from his incapacity
due to physical or mental illness), after a demand for substantial
performance is delivered to Executive by the Company which
specifically identifies the manner in which it is believed that
Executive has refused substantially to perform his
duties;
(ii) Conviction of
Executive of any felony; or
(iii) Willful and
gross misconduct materially and demonstrably injurious to the
Company.
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(b)
Termination of Employment by Executive . Executive may
terminate his employment hereunder for Good Reason. As used herein,
“Good Reason” means any of the following:
(1) The
assignment to Executive, without his consent, of any duties
materially inconsistent with his position, duties, responsibilities
and status with the Company on the Original Agreement Date, or a
change in Executive’s responsibilities, as in effect on the
Original Agreement Date, which materially diminishes
Executive’s responsibilities with the Company when considered
as a whole; provided, however, that the foregoing shall not
constitute Good Reason if done in connection with the termination
of Executive’s employment because of Disability or for
Cause.
(2) A
reduction by the Company in Executive’s Basic
Salary.
(3) Failure
by the Company to comply with the provisions of Section
4(c).
(4) The
Company’s requiring Executive, without his consent, to be
based anywhere other than the location where Executive is based on
the Original Agreement Date, if the same requires Executive to
relocate his principal residence; or, in the event Executive
consents to being based anywhere other than such location, the
failure by the Company to pay (or reimburse Executive for) all
reasonable moving expenses incurred by Executive relating to a
change of Executive’s principal residence in connection with
such relocation.
(5) The
failure of the Company to obtain the assumption of this Agreement
by any successor as provided in Section 9.
(c)
Notice of Termination . Any termination of Executive’s
employment by the Company or by Executive other than a termination
pursuant to Section 5(a)(1) shall be communicated by written
Notice of Termination to the other party. For purposes of this
Agreement, a Notice of Termination shall mean a notice which shall
indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of
Executive’s employment under the provision so
indicated.
(d)
Date of Termination . “Date of Termination”
shall mean (i) if Executive’s employment is terminated
by his death, the date of his death, (ii) if Executive’s
employment is terminated pursuant to Section 5(a)(2), ten
(10) days after Notice of Termination is given (provided that
Executive shall not have returned to the performance of his duties
on a full-time basis during such ten (10) day period), or
(iii) if Executive’s employment is terminated for any
other reason, the date on which the Notice of Termination is given;
provided that, in each case, such date also constitutes the date of
Executive’s “separation from service,” within the
meaning of Treasury Regulation §1.409A-1(h).
Section 6.
Compensation Upon Termination or During Disability
.
(a)
Disability . During any period that Executive fails to
perform his duties hereunder as a result of incapacity due to
physical or mental illness (“Disability Period”),
Executive shall continue to receive his Basic Salary in accordance
with the Company’s normal pay schedule at the rate then in
effect for such period until his employment is terminated pursuant
to Section 5(a)(2), provided that payments of Basic Salary so
made
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