THIS EMPLOYMENT AGREEMENT is made as of the 30th
day of January 2009, by and between JAMES W. THORNE
(“Employee”) and JOS. A. BANK CLOTHIERS, INC.
(“Employer” or “Company”).
FOR GOOD AND VALUABLE CONSIDERATION, the receipt
and adequacy of which are hereby acknowledged, Employer hereby
agrees to employ Employee as an Executive Vice President, and
Employee hereby agrees to be and remain in the employ of Employer,
upon the terms and conditions hereinafter set forth:
1. EMPLOYMENT PERIOD
. Subject to earlier termination as
set forth in this Agreement, the period of employment under this
Agreement (the “Employment Period”) shall be from
February 1, 2009 through January 31, 2011.
2. DUTIES
AND RESPONSIBILITIES.
2.1 General . During the Employment
Period, Executive shall (i) have the title of Executive Vice
President and (ii) devote substantially all of his business
time and expend his best efforts, energies and skills to the
business of the Company. Executive shall perform such duties,
consistent with his status as Executive Vice President, as he may
be assigned from time to time by Employer’s Chief Executive
Officer (the “Chief Executive Officer”).
2.2 Location of Executive Office . The
Company will maintain its principal executive offices at a location
in the Baltimore, Maryland metropolitan area. Executive shall not
be required to perform services for the Company at any other
location, except for services rendered in connection with
reasonably required travel on Company business.
3.
COMPENSATION AND RELATED MATTERS
3.1 Base Salary . Employer shall pay to
Executive during the Employment Period an annual base salary (the
“Base Salary”) of $350,000. The Base Salary for each
year shall be payable in installments in accordance with the
Company’s policy on payment to executives in effect from time
to time.
3.2 Annual Bonus . For fiscal year 2009
(ending January 30, 2010) and for each other fiscal year that
begins during the Employment Period (each such fiscal year, a
“Bonus Year”), Executive shall be eligible to receive a
bonus of up to 65% of Base Salary (each, a “Bonus”)
conditioned upon the satisfaction of (a) Company performance
goals established by the Compensation Committee of the Board of
Directors of the Company (the “Committee”) for such
Bonus Year and (b) personal performance goals approved by the Chief
Executive Officer and the Committee for such Bonus Year. Company
and personal performance goals are herein referred to collectively
as the “Performance Goals”. The Performance Goals for
each Bonus Year shall be established as soon as possible following
the beginning of such Bonus Year. The Bonus earned for any Bonus
Year shall be payable promptly following the determination thereof,
but in no event later than 90 days following the end of each
Bonus Year. If (a) the Employment Period shall expire or
terminate and (b) Employee is entitled to payment of a bonus
pursuant to Section 5
hereof, the
Bonus payable for the Bonus Year in which the Employment Period
terminates or expires shall equal the Bonus that would have been
paid had the Employment Period not so terminated or expired,
multiplied by a fraction, the numerator of which shall be the
number of days of the Employment Period within the Bonus Year and
the denominator of which shall be 365. For the purposes of
determining the amount of Bonus payable pursuant to the immediately
preceding sentence, it shall be assumed that all conditions to
payment based upon performance by the Executive (e.g. personal
performance goals) have been satisfied. Notwithstanding anything to
the contrary contained herein or in the Employer’s Bonus
Plan, in the event (y) the Employment Period shall end for any
reason whatsoever on a day prior to payment to Executive of a Bonus
for the last full Bonus Year contained within the Employment
Period, and (z) Executive would have been entitled to receive
a Bonus for such last full Bonus Year had the Employment Period not
ended — then , Employer shall pay to Executive the
Bonus for such last full Bonus Year as and when such Bonus would
have been paid had the Employment Period not ended.
3.3 Other Benefits . During the
Employment Period, subject to, and to the extent Executive is
eligible under their respective terms, Executive shall be entitled
to receive such fringe benefits as are, or are from time to time
hereafter, generally provided by Employer to Employer’s
senior management employees (other than those provided under or
pursuant to separately negotiated employment agreements or
arrangements).
3.4 Vacation . Executive shall be
entitled to 20 days of vacation during each 12-month vacation
accrual period, which days shall accrue in accordance with the
Company’s vacation policy in effect from time to time for its
senior executive officers. Vacations shall be taken at such time or
times as shall not unreasonably interfere with Executive’s
performance of his duties under this Agreement. The number of
vacation days shall be prorated for any 12-month vacation accrual
period not wholly within the Employment Period. Upon termination of
Executive’s employment pursuant to Section 4 for any
reason whatsoever, Employer shall pay Executive, in addition to any
termination compensation provided for under Section 5, an
amount equivalent to Executive’s per diem compensation at the
then-current Base Salary rate multiplied by the number of unused
vacation days, including any carry-over, accrued by Executive as of
the date of termination.
3.5 Car Allowance . In addition to such
other compensation as may be due and payable hereunder, Employer
shall pay to Executive a car allowance in the amount of $800.00 per
month during the Employment Period.
2
4.
TERMINATION OF EMPLOYMENT PERIOD.
4.1. Termination without Cause or Good
Reason . Employer or Employee may terminate the Employment
Period at any time without cause or without good reason upon
60 days notice. Notwithstanding the forgoing, Employer shall
have the right to terminate the Employment Period without cause
upon less than 60 days notice by paying to Executive, in
addition to such other termination compensation as may be payable
pursuant to Section 5.1, an amount equal to Executive’s
then-current per diem Base Salary multiplied by the difference
between 60 and the number of days notice given.
4.2 Termination by Employer for Cause .
Employer may terminate the Employment Period in accordance with
this Section 4.2 at any time for cause. For the purpose of
this Section 4.2, “cause” shall mean any of the
following:
a) the conviction of Executive in a court of
competent jurisdiction of a crime constituting a felony in such
jurisdiction involving money or other property of the Company or
any of its affiliates or any other felony or offense involving
moral turpitude;
b) the willful commission of an act not approved
of or ratified by the Chief Executive Officer involving a material
conflict of interest or self-dealing relating to any material
aspect of the Company’s business or affairs;
c) the willful commission of any act of fraud or
misrepresentation (including the omission of material facts)
provided that such act relates to the business of the Company and
would materially and negatively impact upon the Company ;
or
d) the willful and material failure of Executive
to comply with the lawful orders of the Chief Executive Officer,
provided such orders are consistent with Executive’s duties,
responsibilities and/or authority as Executive Vice President of
the Company.
4.3. Termination by Employee for Good
Reason . Executive may, at any time during the Employment
Period by notice to Employer, terminate the Employment Period
effective immediately for “good reason”. For the
purposes hereof, “good reason” means any material
breach by Employer of any provision of this Agreement which, if
susceptible of being cured, is not cured within 30 days of
delivery of notice thereof to Employer by Executive; it being
agreed, however, that the foregoing 30 day cure period shall
not be applicable to an
|
