Exhibit
10.1
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 JOHN TULIN,
residing at 1196 Elinor Road, Hewlett, New York 11557 (“
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. On December 31, 2007 and on each subsequent December 31, the
Employment Term, as previously extended, if applicable,
automatically shall be extended, subject to the remaining
provisions of this Agreement, for an additional period of one (1)
year so that, upon each such extension, the Employment Term shall
be for a period of three (3) calendar years, unless either Employee
or the Corporation shall give the other party not less than thirty
(30) days’ written notice prior to December 31, 2007, or any
such subsequent December 31, as the case may be, that the
Employment Term shall not be so extended. In the event that either
party shall give the other such written notice, the Employment
Term, as previously extended, if applicable, shall not be further
extended beyond the then current expiration date of this Agreement
and, except for those provisions of this Agreement that by their
respective terms survive the termination or expiration hereof, this
Agreement shall terminate on such expiration date.
2.
Duties .
(a)
During the Employment Term, Employee shall serve as Chairman of the
Board and Chief Executive Officer of the Corporation. Employee will
perform such duties and responsibilities, consistent with the
position of Chairman of the Board and Chief Executive Officer and
in accordance with past practice, as from time to time shall
be
designated in good faith by the
Corporation's Board of Directors and Employee shall report to, and
shall be subject to the direction and supervision of, the Board of
Directors of the Corporation. Employee shall serve the Corporation
faithfully and to the best of his ability and will devote
substantially all of his 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 metropolitan New York City area (presently 90 Park
Avenue, New York, New York 10016), 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 may be
necessary or appropriate, all in accordance with past
practice.
3.
Compensation and Benefits .
(a)
During the Employment Term, in consideration for the 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 $500,000 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 a special allowance in the amount of
$43,200, which shall be payable in substantially equal installments
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.
-2-
(d)
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.
(e)
During the Employment Term, the Corporation shall continue to
provide Employee with an automobile consistent with the current
arrangement with Employee and, upon the expiration of the then
current lease for such automobile, the Corporation shall lease or
otherwise provide Employee with an automobile of at least equal
value.
(f)
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 Employee may determine, subject to the reasonable
requirements of the business of the Corporation.
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 270 consecutive days or for a period of 270 days in
any 365-day period, the Corporation may, upon prior written notice
given at any time after the expiration of either of such 270-day
period, 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 year in which termination occurs, (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, plus (iii) an amount equal to (A) the sum of the Base
Salary and Commission Compensation paid to Employee for the
three-calendar year period ending on December 31 of the calendar
year immediately preceding termination, divided by (B) three
(3) (such amount, the “ Disability Severance Base
Amount ”). The Disability Severance Base Amount provided
for in clause (a)(iii) 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. 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 year following
the calendar year in which termination occurs, (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, plus (iii) an amount equal to (A) the sum of the Base
Salary and
-3-
Commission Compensation paid to
Employee for the three-calendar year period ending on December 31
of the calendar year immediately preceding termination, divided
by (B) three (3) (such amount, the “ Death Severance
Base Amount ”). The Death Severance Base Amount provided
for in clause (b)(iii) 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’s legal representatives and the
Corporation. 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 through the date this Agreement shall terminate
and the Employment Term end, “for cause.” The term
“for cause” shall mean (i) a willful breach in any
material respect by Employee of a term or provision of this
Agreement which is not cured within 45 days after notice of such
breach shall have been given to Employee by the Corporation, (ii)
the conviction of Employee of, or the pleading of nolo
contendere by Employee to, any felony, or a misdemeanor an act
involving moral turpitude, dishonesty, theft, or misappropriation
of assets, or (iii) the use of illegal drugs or prohibited
substances, or excessive drinking which impairs Employee’s
ability to perform his duties and responsibilities
hereunder.
(b)
The Corporation may
