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Exhibit 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made as of
May 1, 2007 between CASUAL MALE RETAIL GROUP, INC., a Delaware
corporation with an office at 555 Turnpike Street, Canton,
Massachusetts, 02021 (the "Company"), and Mark Bean (the
"Executive") having an address at 1 Bridle Path, Plainville, MA
02762.
WITNESSETH:
WHEREAS, the Company desires that Executive serve as Senior Vice
President, Store Sales and Operations and Executive desires to be
so employed by the Company.
WHEREAS, Executive and the Company desire to set forth in
writing the terms and conditions of the Executive’s
employment with the Company from the date hereof.
NOW, THEREFORE, in consideration of the promises and the mutual
promises, representations and covenants herein contained, the
parties hereto agree as follows:
The Company hereby employs Executive and
Executive hereby accepts such employment, subject to the terms and
conditions herein set forth. Executive shall hold the office of
Senior Vice President, Store Sales and Operations .
The term of employment under this Agreement shall
begin on May 1 2007 (the "Employment Date") and shall continue
for a period of two (2) years from that date (the "Term"),
subject to prior termination in accordance with the terms
hereof.
(a) As compensation for the employment services
to be rendered by Executive hereunder, the Company agrees to pay to
Executive, and Executive agrees to accept, payable in equal
bi-weekly installments in accordance with Company practice, an
annual base salary of two hundred seventy-five thousand dollars and
no cents ($275,000.00).
(b) Executive is eligible to participate in the Company’s
annual performance appraisal and compensation review process in
accordance with Company practice.
(c) In addition to the annual base salary, Executive is eligible
to participate in the Company’s Annual Incentive Plan. Such
incentive shall be determined and payable in accordance with the
Company’s incentive program in effect at the time, subject to
change from year to year in the Company’s sole discretion.
Executive will participate in the Company’s incentive program
at a rate of 35% at target (52.5% max) (FY 2007) of
Executive’s actual annual base earnings. The actual award
under the incentive program, if any, may be more or less than the
target and will be based on Executive’s performance and the
performance of the Company and payment will be made in accordance
with the terms of the incentive program then in effect.
(c) In addition, Executive is eligible to
participate in the Company’s Long Term Incentive Plan (LTIP).
Such incentive shall be determined and distributable in accordance
with the terms and conditions as described in the Long Term
Incentive Plan (LTIP) documents in effect at the time of the award,
subject to change from year to year in the Company’s sole
discretion. Executive will participate in the Company’s Long
Term Incentive Plan at an incentive rate of 70%, at target, of
Executive’s combined actual annual base salary, for the
incentive period, as defined in the Long Term Incentive Plan
documents in effect at the time of the award. However, given the
three year term of the Long Term Incentive Plan and the eighteen
(18) month vesting period for distribution, Executive would
have to be employed with the Company beyond the term of this
Agreement to receive benefits under the Plan.
The Company shall pay or reimburse Executive, in
accordance with the Company’s policies and procedures and
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 reasonably deem necessary to meet the requirements of the
Internal Revenue Code of 1986, as amended from time to time, and
regulations promulgated thereunder.
(a) Executive shall be entitled to such vacations
and to participate in and receive any other benefits customarily
provided by the Company to its management (including any profit
sharing, pension, 401 (k), short and long-term disability
insurance, medical and dental insurance and group life insurance
plans in accordance with the terms of such plans), all as
determined from time to time by the Compensation Committee of the
Board of Directors in its discretion.
(b) Executive will be eligible to participate in the
Company’s annual performance appraisal process.
(a) Executive shall perform such duties and
functions consistent with his position as Senior Vice President,
Store Sales and Operations and/or as the Chief Executive Officer 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 above named officer of the
company.
(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, and
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subject to the foregoing, Executive shall not be
prevented from accepting positions in outside charitable
organizations so long as such activities do not interfere with
Executive’s performance of his duties hereunder and do not
violate Section 10 hereof.
(c) The principal location at which the Executive shall perform
his duties hereunder shall be at the Company’s offices in
Canton, Massachusetts or at such other location as may be
temporarily designated from time to time by the Chief Executive
Officer. 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.
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7.
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TERMINATION OF EMPLOYMENT; EFFECT
OF TERMINATION
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(a) Executive’s employment hereunder may be
terminated by the Company at any time:
(i) upon the determination that Executive’s performance of
his duties has not been fully satisfactory for any reason which
would not constitute justifiable cause (as hereinafter defined) or
for other business reasons necessitating termination which do not
constitute justifiable cause, in either case upon thirty
(30) days’ prior written notice to Executive; or
(ii) upon the determination that there is justifiable cause (as
hereinafter defined) for such termination.
(b) Executive’s employment shall terminate upon:
(i) the death of Executive;
(ii) the "total disability" of Executive (as hereinafter defined
in Subsection (c) herein) pursuant to Subsection (h) hereof;
or
(iii) Executive’s resignation of employment.
(c) For the purposes of this Agreement, the term "total
disability" shall mean Executive is physically or mentally
incapacitated so as to render Executive incapable of performing the
essentials of Executive’s job, even with reasonable
accommodation, as reasonably determined by the Company, which
determination shall be final and binding.
(d) For the purposes hereof, the term "justifiable cause" shall
mean: any failure or refusal to perform any of the duties pursuant
to this Agreement or any breach of this Agreement by the Executive;
Executive’s breach of any material written policies, rules or
regulations which have been adopted by the Company;
Executive’s performance of any act or his failure to act, as
to which if Executive were prosecuted and convicted, a crime or
offense involving money or property of the Company or its
subsidiaries or affiliates, or a crime or offense constituting a
felony in the jurisdiction involved, would have occurred; any
unauthorized disclosure by Executive to any person, firm or
corporation 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
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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 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 base salary and reimbursement of expenses
pursuant to Section 5 hereof as have been accrued through the
date of his termination of employment.
(e) If the Company terminates this Agreement without
"justifiable cause" as provided in Subsection 7 (a)(i) the Company
shall pay Executive the base salary for the remainder of the Term
not to exceed an amount equal to one half of Executive’s
annual base salary, payable in equal payments in accordance with
the Company’s customary payroll practices. However, if
Executive is employed or retained, as an employee, independent
contractor, consultant or in any other capacity or if he is offered
another position by the Company at a comparable salary ("New
Employment") prior to or during the time he receives payment under
this Subsection or Subsection 3 (b), the Company is entitled to a
credit for all sums paid or earned by Executive during this period
of time or which he could have earned had he accepted the
comparable position by the Company. The Executive must make a good
faith effort to find New Employment and mitigate the amount of
money to be paid by the Company to Executive under this Subsection
or Subsection 3(b). Executive also agrees to immediately notify the
Senior Vice President of Human Resources of the Company at 555
Turnpike Street, Canton, Massachusetts, 02021, if and when he is
offered another position and/or accepts another position. The
Company will pay any amount due and owing in accordance with the
payment schedule in 3(a), until paid in full. Any payment pursuant
to this paragraph 7(e) is contingent upon Executive’s
execution of a general release and separation agreement in a form
acceptable to the Company and will be in lieu of payments to which
Executive might have been entitled under any other severance plan
of the Company.
(f) 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 base annual salary and
reimbursement of expenses pursuant to Section 5 as have been
accrued through the date of his death.
(g) Upon Executive’s "total disability", the Company shall
have the right to terminate Executive’s employment. Any
termination pursuant to this Subsection (f) shall be effective
on the earlier 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 6 hereof.
(h) Upon the resignation of Executive in any capacity, that
resignation will be deemed to be a resignation from all offices and
positions that Executive holds with respect to the Company and any
of its subsidiaries and affiliates. In the event of
Executive’s resignation, he shall be entitled only to receive
such portion of his annual base salary and reimbursement of
expenses pursuant to Section 5 as have been accrued through
the date of his resignation.
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(i) Change of
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