Exhibit 10.56
EMPLOYMENT
AGREEMENT
This Employment Agreement
(“Agreement”) is made as of December 12, 2008
between CASUAL MALE RETAIL GROUP, INC., a Delaware corporation with
an office at 555 Turnpike Street, Canton, Massachusetts, 02021 (the
“Company” which term includes any affiliates and
subsidiaries), and Douglas L. Hearn (the “Executive”)
having an address at 3 Pennyborough Court, Reistertown, MD
21136.
WITNESSETH:
WHEREAS, the Company desires that
Executive serve as Vice President, General Merchandise Manager 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
Vice President, General Merchandise Manager.
The term of employment under this
Agreement shall begin on the date set forth above (the
“Effective Date”) and shall continue until terminated
by either party as hereinafter set forth (such period of employment
being referred to herein as 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 Fifty Thousand
Dollars and 00/100 Cents ($250,000.00).
(b) 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 and Executive’s target
bonus under such plan (if all individual and Company performance
conditions are met) shall be 35% 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 and subject to the terms and conditions 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 and subject to the terms and
conditions as described in the 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 LTIP at a target incentive rate of 70%, of
Executive’s combined actual annual base earnings, for the
incentive period, based upon the Company’s targeted
performance as defined in the LTIP documents in effect at the time
of the award.
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 and subject to the terms of such plans,
including, without limitation, any eligibility requirements
contained therein), all as determined from time to time by the
Compensation Committee of the Board of Directors in its
discretion.
(b) The Company will, during the
term of Executive’s employment hereunder, provide Executive
with an automobile allowance in the total amount of Seven Thousand
Two Hundred Dollars and No Cents ($7,200.00) annually, in equal
bi-weekly payments in accordance with the Company’s normal
payroll practices. Executive shall pay and be responsible for all
insurance, repairs and maintenance costs associated with operating
the automobile. Executive is responsible for his gasoline, unless
the gasoline expense is reimbursable under the Company’s
policies and procedures.
(c) Executive will be eligible to
participate in the Company’s annual performance appraisal
process.
(a) Executive shall perform such
duties and functions consistent with the position of Vice
President, General Merchandise Manager and/or as 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 Company.
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(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 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 9 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
Company. 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 repeated
failure to perform his duties in a
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satisfactory manner; 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 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 his then
current base salary for five months after the effectiveness of such
termination, 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
Company 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 4 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 (g) 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 5 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
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shall be entitled only to receive such portion
of his annual base salary and reimbursement of expenses pursuant to
Section 4 as have been accrued through the date of his
resignation.
(i) Change of Control. In the event
the Executive’s employment with the Company is terminated by
the Company during the Term without justifiable cause within twelve
months following a Change of Control of the Company occurring
during the Term then, in such event, the Company shall pay
Executive an amount equal to twelve (12) months of base annual
salary in effect at the time of the termination, which amount will
be subject to mitigation in accordance with Section 7(e)
above. For the purposes of the foregoing, Change of Control shall
have the meaning set forth in the Company’s 2006 Incentive
Stock Option Plan (without regard to any subsequent amendments
thereto). Any payment pursuant to this paragraph 7(i) 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 paragraph 7(e) of this Agreement or under any other severance
plan of the Company
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8.
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COMPLIANCE
WITH SECTION 409A
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(a) General. It is the intention of
both the Company and the Executive that the benefits and rights to
which the Executive could be entitled pursuant to this Agreement
comply with Section 409A of the Code and the Treasury
Regulations and other guidance promulgated or issued thereunder
(“Section 409A”), to the extent that the requirements
of Section 409A are applicable thereto, and the provisions of
this Agreement shall be construed in a manner consistent with that
intention. If the Executive or the Company believes, at any time,
that any such benefit or right that is subject to Section 409A
does not so comply, it shall promptly advise the other and shall
negotiate reasonably and in good faith to amend the timing of such
benefits and rights such that they comply with Section 409A
(with the most limited possible economic effect on the
Executive).
(b) Distributions on Account of
Separation from Service. If and to the extent required to comply
with Section 409A, no payment or benefit required to be paid
under this Agreement on account of termination of the
Executive’s employment shall be made unless and until the
Executive incurs a “separation from service” within the
meaning of Section 409A.
(c) 6 Month Delay for
“Specified Employee