Exhibit 10.4
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT
AGREEMENT (“Agreement”) is entered into
effective as of January 1, 2005 (the “Effective
Date”), by and between Joseph L. Gorga
(“Executive”) and International Textile Group, Inc.
(“Company” or “ITG”), a Delaware
corporation.
R E C I T A L S:
A. Executive serves as the President
and Chief Executive Officer of ITG and is a key corporate officer
of ITG and is expected to make major contributions to the
profitability, growth and financial strength of the ITG.
B. ITG desires to employ Executive,
and Executive desires to accept such employment, under the terms
and conditions of this Agreement.
C. The Board of Directors has also
determined that it is in the best interests of the stockholders and
ITG to promote stability among key officers.
IN CONSIDERATION OF THE FOREGOING,
the mutual covenants contained herein, and other good and valuable
consideration, receipt of which is hereby acknowledged, the parties
agree as follows:
1.1
“Accountants” has the meaning set forth in
Section 9.9(B)(i).
1.2 “ Base Salary ” has the
meaning set forth in Section 6.1.
1.3 “ Board ” means the board of
directors of ITG.
1.4 “ Cause ” means (A) the
commission by Executive of (i) a felony or (ii) any
serious crime involving fraud, dishonesty or breach of trust;
(B) gross negligence or intentional misconduct by Executive
with respect to ITG or in the performance of his duties to ITG;
(C) failure to follow a reasonable, lawful and specific
direction of the Board of Directors of ITG; (D) failure by
Executive to cooperate in any corporate investigation, or
(E) breach by Executive of any material provision of this
Agreement, which breach is not corrected by Executive within ten
(10) calendar days after receipt by Executive of written
notice from ITG of such breach. For purposes of this definition, no
act or failure to act by the Executive shall be considered
“intentional” unless done or omitted to be done by the
Executive in bad faith and without reasonable belief that the
Executive’s action or omission was in the best interests of
ITG.
1.5 “Code”
has the meaning set forth in
Section 9.9(A).
1.6 “Covered
Payments” has the
meaning set forth in Section 9.9(A).
1.7 “ Disability ” or “
Disabled ” means the absence of Executive from
Executive’s duties with the Company on a full time basis for
180 consecutive days as a result of incapacity due to mental or
physical illness which is determined to be total and permanent by a
physician selected by the Company or its insurers and reasonably
acceptable to Executive or Executive’s legal
representative.
1.8 “ Employee Benefits ” means
the “benefit plans and policies” for the limited
liability companies of ITG or its predecessor that was the employer
of the Executive immediately prior to the execution of this
Employment Agreement and Employee Benefits shall refer to such
plans until adopted by and as subsequently amended by
ITG.
1.9 “Excise
Tax” has the
meaning set forth in Section 9.9(A).
1.10 “Excise Tax
Reimbursement” has
the meaning set forth in Section 9.9(A).
1.11 “ Good Reason ” means the
termination of Executive’s employment by Executive for any of
the following reasons:
(A) involuntary reduction in
Executive’s Base Salary unless such reduction occurs
simultaneously with a reduction in officers’ salaries
generally applicable on a company-wide basis;
(B) involuntary discontinuance or
reduction in bonus award opportunities for Executive under
ITG’s Incentive or Bonus Plan unless a generally applicable
company-wide reduction or elimination of all officers’ bonus
awards occurs simultaneously with such discontinuance or
reduction;
(C) involuntary discontinuance of
Executive’s participation in any employee benefit plans
maintained by ITG unless such plans are discontinued by reason of
law or loss of tax deductibility to ITG with respect to
contributions to such plans, or are discontinued as a matter of ITG
policy applied equally to all participants in such plans that are
in the same classification of employees as Executive;
(D) failure to obtain an assumption
of ITG’s obligations under this Agreement by any successor to
ITG, regardless of whether such entity becomes a successor to ITG
as a result of a merger, consolidation, sale of assets of ITG, or
other form of reorganization, except when the rights and
obligations of ITG under this Agreement are vested in the successor
to ITG by operation of law;
(E) involuntary relocation of
Executive’s primary office to a location more than fifty
(50) miles from the City of Greensboro, State of North
Carolina; and
(F) material reduction of
Executive’s duties in effect on the Effective
Date.
1.12 “ Incentive or Bonus Plan ”
has the meaning set forth in Section 6.2 hereof.
1.13 “ ITG ” means International
Textile Group Inc. and each of the affiliates of International
Textile Group Inc. (meaning any entity that directly, or indirectly
through one or more intermediaries, controls, is controlled by, or
is under common control with, International Textile Group Inc.),
along with all successors and assigns of each of such
entities.
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1.14 “ Plan ” has the meaning set
forth in Section 7.3.
1.15 “ Restricted Customers ”
means all the specific customer accounts, whether within or outside
of the Restricted Territory, with which Executive had any contact
or for which Executive had any responsibility (either direct or
supervisory) at the time of termination of Executive’s
employment and at any time during the two (2)-year period prior to
such termination.
1.16 “ Restricted Industry ” means
the specific industry segment or segments for which the Executive
had any responsibility (either direct or supervisory) at the time
of termination of Executive’s employment and at any time
during the two (2)-year period prior to such
termination.
1.17 “ Restricted Territory ”
means the geographic area(s) within a 200 mile radius of any and
all ITG location(s) in, to, or for which Executive worked, to which
Executive was assigned or had any responsibility (either direct or
supervisory) at the time of termination of Executive’s
employment and at any time during the two-year period prior to such
termination.
1.18 “Target
Bonus” has the
meaning set forth in the Incentive or Bonus Plan as defined in
Section 6.2 hereof.
1.19 “ Term ” has the meaning set
forth in Section 5.
1.20 “ Termination Date ” means
the date on which the termination of Executive’s employment
with ITG becomes effective.
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2.
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Termination
of Prior Agreements.
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The parties hereto acknowledge and
agree that, effective as of the date hereof, all prior employment
agreements if any are terminated and each and every provision of
each of such agreements is rendered void and of no further force or
effect whatsoever.
ITG hereby employs Executive, and
Executive hereby accepts employment, according to the terms and
conditions set forth in this Agreement and for the period specified
in Section 5 of this Agreement.
During the Term, Executive shall
serve ITG as its President and Chief Executive Officer in
accordance with reasonable and lawful directions from ITG’s
Board of Directors and in accordance with ITG’s Articles of
Incorporation and Bylaws, as both may be amended from time to time.
Executive will report directly to the Board of Directors. While
Executive is employed by ITG as a full-time employee, Executive
shall serve ITG, faithfully, diligently, competently and to the
best of his ability, and will exclusively devote his full time,
energy and attention to the business of ITG and to the promotion of
its interests. Executive shall not, without the written consent of
the Board of Directors either render services to or for any person,
firm, corporation or
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other entity or organization in exchange for
compensation, regardless of the form in which such compensation is
paid and whether or not it is paid directly or indirectly to
Executive, or serve as a board member, director or trustee of any
corporation or organization regardless of whether Executive is paid
for such services. Nothing in this Section 4 shall preclude
Executive from managing his personal investments and affairs,
provided that such activities in no way interfere with the proper
performance of his duties and responsibilities as President and
Chief Executive Officer.
Subject to Article 9, the term of
this Agreement (the “Term”) shall commence on the
Effective Date and end on December 31, 2007. The Term shall
automatically be extended by one year on each December 31,
beginning December 31, 2005, unless not later than
September 30 of each year ITG notifies Executive, or Executive
notifies ITG, that it or he, as the case may be, does not desire to
have the Term extended. For example, if such notice of
non-extension is not given by September 30, 2005, the Term of
this Agreement shall automatically be extended to December 31,
2008.
6.1 Base Salary
. While employed under this
Agreement, Executive will receive as his compensation for the
performance of his duties and obligations to ITG under this
Agreement a Base Salary of Six Hundred Thousand Dollars
($600,000.00) per year, which will be payable in such installments
established by ITG for all salaried employees, and which will be
subject to annual review by the Board of Directors or any committee
designated by the Board of Directors (the base salary, as it may be
modified from time to time, is referred to herein as the
“Base Salary”).
6.2 Bonus . In addition to the Base Salary, Executive will
receive with respect to each plan year a bonus in accordance with
ITG’s Incentive and Bonus Plan, a copy of which has been
delivered to Executive.
6.3 Withholding
. All compensation payable to
Executive pursuant to this Section 6 shall be paid net of
amounts withheld for federal, state, municipal or local income
taxes, Executive’s share, if any, of any payroll taxes and
such other federal, state, municipal or local taxes as may be
applicable to amounts paid by an employer to its employee or to the
employer/employee relationship.
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7.
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Other
Benefits of Employment.
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7.1 Employee Benefits
. Executive will be entitled to
participate in such hospitalization, life insurance, long and short
term disability, 401(k) and other employee benefit plans and
programs, if any, as may be adopted by ITG from time to time, in
accordance with the provisions of such plans and programs and on
the same basis as other full-time salaried employees of ITG who
participate in such employee benefit plans (except to the extent
that the benefits provided under any of such plans or programs are
expressly offset by any of the benefits provided under or pursuant
to this Agreement).
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7.2 Executive Benefits
. Executive shall be entitled to
participate in any employee benefit adopted by ITG for executive
level employees.
7.3 Stock Based Awards
. Executive shall be eligible to
receive grants of stock options, performance units, stock
appreciation rights, restricted stock, deferred shares, and other
stock-based awards in accordance with the provisions of any
stock-based award or long-term incentive plan (“Plan”)
ITG may adopt or amend or supersede from time to time. The terms of
such grants shall be determined by the Board of Directors (or its
designee as provided in the Plan or as appointed by the Board of
Directors) in accordance with the Plan, provided, however, that
notwithstanding any provision of the Plan to the contrary, in the
event of any termination of Executive’s employment for any
reason other than for Cause pursuant to Section 9.3, or for
termination of employment for other than Good Reason pursuant to
Section 9.5, any stock-based award granted to Executive prior
to such Termination Date shall immediately vest and be exercisable
by or issued to the Executive under the Plan.
7.4 Taxes and
Withholding . Executive
shall be responsible for paying all federal, state, municipal or
local taxes payable by him with respect to any benefits provided
under this Section 7, and ITG will, when required by law or
when otherwise appropriate or customary, withhold from the benefits
or other compensation amounts sufficient to satisfy such taxes,
unless taxes are to be paid by ITG as set forth in the provisions
of the executive benefit plan, Employee Benefit Plan, or an
agreement with the Executive.
7.5 Vacation
. Notwithstanding any policy of the
company for salaried employees, Executive will be entitled to four
(4) weeks paid vacation and ITG recognized
holidays.
8.1 Termination by ITG
.
(A) This Agreement shall
automatically terminate effective upon (i) the date of
Executive’s death; (ii) the date that Executive is
determined to be permanently Disabled or (iii) the date of
Executive’s retirement.
(B) ITG may terminate this
Agreement, and Executive’s employment with ITG, without Cause
upon ninety (90) days’ prior written notice to
Executive.
(C) ITG may terminate this
Agreement, and Executive’s employment with ITG, with Cause
effective immediately and without the requir