Exhibit
10.2
EMPLOYMENT AGREEMENT
AGREEMENT
dated as of January 1, 2007 between SWANK, INC., a Delaware
corporation, with an address at 90 Park Avenue, New York, New York
10016 (the “ Corporation ”), and JAMES E. TULIN,
residing at 11843 East Desert Trail Road, Scottsdale, Arizona 85259
(“ Employee ”).
W I T N E S S E T H:
WHEREAS,
the Corporation desires to continue the employment of Employee upon
the terms and subject to the conditions hereinafter set forth;
and
WHEREAS,
Employee is willing to be employed by the Corporation upon such
terms and conditions of employment.
NOW,
THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Corporation
and Employee hereby agree as follows:
1.
Employment and Term .
The
Corporation hereby employs Employee, and Employee hereby accepts
employment by the Corporation, on the terms and conditions herein
contained, to perform the duties described in paragraph 2 for a
term (the “ Employment Term ”) commencing on
January 1, 2007 (the “ Commencement Date ”) and,
subject to the remaining provisions of this Agreement, ending on
December 31, 2009.
2.
Duties .
(a)
During the Employment Term, Employee shall serve as Senior Vice
President of the Corporation. Employee will perform such duties and
responsibilities, consistent with the position of Senior Vice
President and in accordance with past practice, as from time to
time shall be designated in good faith by the Corporation’s
Chairman of the Board and/or its Board of Directors and Employee
shall report to, and shall be subject to the direction and
supervision of, the Chairman of the Board and the Board of
Directors of the Corporation. Employee shall serve the Corporation
faithfully and to the best of his ability and will devote his full
business time and attention to the business and affairs of the
Corporation and its subsidiaries except during vacation periods and
periods of illness or incapacity.
(b)
The Corporation and Employee acknowledge and agree that, while the
duties of Employee under this paragraph 2 are presently intended
primarily to be performed at the Corporation’s offices
located in the Scottsdale, Arizona area (presently 8800 North
Gainey Center Drive, Suite 278, Scottsdale, Arizona 85258),
Employee shall spend such time at the Corporation’s other
offices and otherwise travel in furtherance of the business of the
Corporation or the performance of Employees duties and
responsibilities hereunder, as the Board of Directors or the
Corporation’s Chairman of the Board shall deem
necessary.
3.
Compensation and Benefits .
(a)
During the Employment Term, in consideration for the full and
complete performance by Employee of his duties and obligations
under this Agreement, the Corporation agrees to pay Employee a
salary (“ Base Salary ”) at the rate of $357,000
per year payable in accordance with the Corporation’s regular
pay intervals for its executive officers or in such other manner as
shall be mutually agreeable to Employee and the Corporation. The
Executive Compensation Committee of the Corporation’s Board
of Directors may, in its discretion, at any time and from time to
time, increase the Base Salary for Employee and grant Employee
other compensation in addition to that provided for hereby (in that
regard, consistent with past practices, Employee will be considered
by the Corporation for a salary increase and annual bonus
compensation at the same time as the other executive officers of
the Corporation are considered for a salary increase and such bonus
compensation). The Base Salary described herein and other amounts
payable to Employee hereunder are, in each case, a gross amount,
and Employee acknowledges and agrees that the Corporation shall be
required to withhold, and such Base Salary and other amounts shall
be reduced by, applicable federal, state and local taxes, FICA,
unemployment compensation taxes and other required taxes,
assessments and withholdings.
(b)
During the Employment Term, Employee shall be entitled to
participate in any retirement, medical payment, disability, health
or life insurance and other benefit plans and arrangements which
may be or become available to executive officers of the Corporation
in general; provided , that Employee shall be required to
comply with the conditions attendant to coverage by such plans and
arrangements and shall comply with, and be entitled to benefits
only in accordance with, the terms and conditions of such plans and
arrangements.
(c)
Employee shall be entitled to reimbursement for such expenses
reasonably incurred by him in furtherance of the business of the
Corporation and in the performance of his duties hereunder, on an
accountable basis with such substantiation as the Corporation may
at the time require from its executive officers.
(d)
During the Employment Term, the Corporation shall provide to
Employee a leased automobile for his use, at a gross cost to the
Corporation of not more than $1,500 per month.
(e)
Employee shall be entitled to four (4) weeks vacation in each year
during the Employment Term. Such vacation shall be taken at such
time or times as may be mutually agreed upon by the Corporation and
Employee and in accordance with the vacation policies and
procedures for employees of the Corporation as in effect from time
to time.
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4.
Termination for Disability or Death .
(a)
If, during the Employment Term, in the good faith judgment of the
Corporation’s Board of Directors, Employee shall, because of
physical or mental illness or incapacity, become unable to perform
the duties and services required of him pursuant to this Agreement
for a period of 120 consecutive days or for a period of 150 days in
any 365-day period, the Corporation may, upon prior written notice
given at any time after the expiration of such 120-day period or
150-day period, as the case may be, to Employee of its intention to
do so, terminate this Agreement and the Employment Term to such
date as may be set forth in such notice. In case of such
termination, Employee shall be entitled to receive (i) his Base
Salary through the end of the calendar month in which termination
occurs, plus (ii) bonus compensation, if any, that shall have been
awarded to Employee prior to such termination, but not paid to him
prior to such termination. The foregoing amounts shall be in
addition to amounts, if any, that shall be payable to Employee upon
his illness or incapacity under any disability insurance policy or
other disability plan of the Corporation.
(b)
If, during the Employment Term, Employee shall die,
Employee’s legal representatives shall be entitled to receive
(i) his Base Salary through the end of the calendar month in which
termination occurs, plus (ii) bonus compensation, if any, that
shall have been awarded to Employee prior to such termination, but
not paid to him prior to such termination. If Employee shall die
after the Employment Term but during any period in which Employee
shall be entitled to receive amounts under paragraph 5(b) hereof,
Employee’s legal representatives shall be entitled to receive
all amounts that Employee would have been entitled to receive under
paragraph 5(b).
5.
Termination by Corporation; Expiration of the Employment Term;
Change of Control .
(a)
The Corporation may terminate this Agreement and the Employment
Term, without liability other than for payment of accrued but
unpaid Base Salary and Commissions through the date this Agreement
shall terminate and the Employment Term end, “for
cause.” The term “for cause” shall mean (i) a
willful refusal or failure (after not less than 14 days notice by
the Corporation to Employee that such refusal or failure will
result in termination of this Agreement and the Employment Term) by
Employee to perform, to the satisfaction of the Chairman of the
Board or the Board of Directors, determined in good faith, any
duties or responsibilities assigned to Employee, (ii) a breach in
any material respect by Employee of a term or provision of this
Agreement which is not cured within 14 days after notice of such
breach shall have been given to Employee by the Corporation, (iii)
the commission by Employee of an act involving moral turpitude,
dishonesty, theft, misappropriation of assets, or unethical
business conduct, or any other conduct of Employee which materially
impairs or materially harms the reputation, or is otherwise to the
material detriment, of the Corporation, or any of its subsidiaries
or affiliates, or which could reasonably be expected to materially
impair or harm the reputation, or be to the material detriment, of
the Corporation, (iv) the use of illegal drugs or prohibited
substances, (v) excessive drinking which, in the good
faith
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judgment of the Chairman of the
Board or the Board of Directors, impairs Employee’s ability
to perform his duties and responsibilities hereunder, (vi) the
conviction of Employee of, or the pleading of nolo
contendere by Employee to, any felony, or a misdemeanor
involving any of the acts referred to in clause (a)(iii) above, or
the admission by Employee thereto, or (vii) the breach by Employee
of a fiduciary duty or fiduciary obligation to the Corporation or
any of its subsidiaries or affiliates.
(b)
The Corporation may also terminate this Agreement and the
Employment Term at any time without cause. In such event, provided
Employee shall not at any time be in violation of paragraph 6
hereof, the Corporation shall pay to Employee (i) his Base Salary
(at the annual rate in effect on the date of termination) from the
date of termination through and including the last day of the
Employment Term (without regard to the termination of this
Agreement and the Employment Term pursuant to this subparagraph (b)
and without regard to any further extension of the Employment Term
pursuant to paragraph 1 and (ii) accrued but unpaid bonus
compensation, if any, through the termination date, in each case,
which shall be payable in installments in accordance with the
Corporation’s regular pay intervals for its executive
officers or in such other manner as shall be mutually agreeable to
Employee and the Corporation.
