EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 28th day of September, 1998, by and
between Donnkenny Apparel, Inc., a Delaware corporation (the "Company"), and
Xxxxxxx Xxxxxx of 00 Xxxxxxx Xxxx Xxxxx, Xxxxxxx, Xxx Xxxx 00000 (the
"Executive").
W I T N E S S E T H T H A T
WHEREAS, the Company wishes to provide for the employment by the Company of
the Executive, and the Executive wishes to serve as an employee of the Company,
in the capacities and on the terms and conditions set forth in this Agreement;
NOW, THEREFORE, it is hereby agreed as follows:
1. EMPLOYMENT PERIOD. The Company shall employ the Executive, and the
Executive shall serve as an employee of the Company, on the terms and conditions
set forth in this Agreement. The term of this Agreement shall commence on
November 2, 1998 (the "Commencement Date") and, unless earlier terminated in
accordance with Section 5 hereof, shall continue through the second anniversary
of such date (such two-year term shall be referred to herein as the "Employment
Period").
2. POSITION AND DUTIES. (a) During the Employment Period, the Executive
shall serve as Executive Vice President and Chief Financial Officer of the
Company with such duties and responsibilities as are customarily assigned to
such positions, and such other executive duties and responsibilities not
inconsistent therewith as may from time to time be assigned to her by the Board
of Directors of the Company (the "Board").
(b) During the Employment Period, the Executive shall report to the Chief
Executive Officer.
(c) During the Employment Period, the Executive shall devote her full
business time and attention to the business and affairs of the Company and shall
perform, faithfully and diligently her duties and responsibilities hereunder.
3. COMPENSATION. (a) BASE SALARY. During the Employment Period, the
Executive shall receive an annual base salary of $275,000. The annual base
salary shall be payable in accordance with the Company's regular payroll
practice for its senior executives, as in effect from time to time. In addition,
upon signing this Agreement Executive shall receive a one-time signing bonus of
$50,000.
(b) Performance Bonus. During the Employment Period, the Executive shall be
eligible to receive a discretionary annual bonus ("Performance Bonus") in an
amount, if any, to be determined on an annual basis by the Board, taking into
account the performance of Executive and the Company during the year in respect
of which the Performance Bonus is payable.
(c) STOCK OPTIONS. In addition to the payments provided above, the
Executive will be granted on the Commencement Date, options to purchase 150,000
shares of Donnkenny, Inc. ("Donnkenny") Common Stock pursuant to Donnkenny's
Incentive Stock Option Plan (the "Stock Option Plan"). The options shall vest as
follows: 60,000 options will become exercisable on September 28, 1999; (B)
60,000 options will become exercisable on September 28, 2000, and (C) 30,000
options will become exercisable on September 28, 2001, and such options shall
remain exercisable during the remainder of their respective terms
notwithstanding any termination of the Executive's employment; provided,
however, that the vesting of such options shall be accelerated in the event of a
Change in Control (as defined herein), termination of Executive's employment by
the Company other than for Cause (as defined herein) and termination by the
Executive of her employment for Good Reason (as defined herein).
(d) REIMBURSEMENT OF EXPENSES AND ADMINISTRATIVE SUPPORT. The Company shall
pay or reimburse the Executive, upon the presentation of appropriate
documentation, for all reasonable travel (including automobile parking) and
other expenses incurred by the Executive in performing her obligations under
this Agreement. The Company further agrees to furnish the Executive with a car
allowance of $650 per month plus reimbursement for reasonable insurance and
maintenance costs.
(e) VACATION. Executive shall be entitled to four (4) weeks paid vacation
in each calendar year.
(f) DEDUCTIONS. All payments made under this Agreement shall be subject to
such deductions as from time to time may be required to be made pursuant to any
law, rule, regulation or order.
(g) CHANGE IN CONTROL. For purposes of this Agreement, a "Change in
Control" of the Company shall be deemed to have occurred upon any of the
following events:
(A) A person or entity or group of persons or entities, acting
in concert, shall become the direct or indirect beneficial owner (within
the meaning of Rule 13d-3 of the Securities Exchange Act of 1934, as
amended), of securities of the Company or Donnkenny representing more than
fifty percent (50%) of the combined voting power of the issued and
outstanding common stock of the Company or Donnkenny;
(B) The majority of the Board, or of the board of directors of
Donnkenny, is no longer comprised of the incumbent directors who constitute
such board on the date of this Agreement and other individual(s) who became
a director subsequent to the date of this Agreement whose initial election
or nomination for election as a director, as the case may be, was approved
by at least two-thirds of the directors who comprised the incumbent
directors on such board as of the date of this Agreement;
(C) The Board shall approve a sale of all or substantially all
of the assets of the Company, or the board of directors of Donnkenny shall
approve a sale of all or substantially all of the assets of Donnkenny; or
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(D) The Board, or the board of directors of Donnkenny, shall
approve any merger, consolidation, or like business combination or
reorganization of the Company, or of Donnkenny, the consummation of which
would result in the occurrence of any event described in clause (A) or (B)
above, and such transaction shall have been consummated.
4. PARTICIPATION IN BENEFIT PLANS. The Executive shall be entitled to
participate, during the term of this Agreement, in the Company's benefit
programs, including but not limited to qualified or non-qualified pension plans,
supplemental pension plans, group hospitalization, health, dental care, death
benefit, post-retirement welfare plans, or other present or future group
employee benefit plans or programs of the Company for which key executives are
or shall become eligible (collectively, the "Benefit Plans"), on the same terms
as other key executives of the Company.
5. TERMINATION OF EMPLOYMENT. (a) DEATH OR DISABILITY. The Executive's
employment shall terminate automatically upon the Executive's death during the
Employment Period. The Company shall be entitled to terminate the Executive's
employment because of the Executive's Disability during the Employment Period.
"Disability" means that the Executive has been unable, for a period of not less
than (x) 120 consecutive business days, or (y) 180 days within any 12 month
period, to perform the Executive's duties under this Agreement, as a result of
physical or mental illness or injury. A termination of the Executive's
employment by the Company for Disability shall be communicated to the Executive
by written notice, and shall be effective on the 30th day after receipt of such
notice by the Executive (the "Disability Effective Date"), unless the Executive
returns to full-time performance of the Executive's duties before the Disability
Effective Date.
(b) BY THE COMPANY. The Company may terminate the Executive's employment
during the Employment Period for Cause or without Cause. "Cause" means (x) the
conviction of the Executive for the commission of (A) any felony, or (B) a
misdemeanor involving moral turpitude, or (y) willful misconduct by the
Executive that results in demonstrable and material damage to the business or
reputation of the Company, or (z) commission of fraud or embezzlement or any act
of dishonesty relating to Executive's employment resulting or intending to
result in direct or indirect personal gain or enrichment to Executive at the
expense of Company. No act or failure to act on the part of the Executive shall
be considered "willful unless it is done, or omitted to be done, by the
Executive in bad faith or without reasonable belief that the Executive's action
or omission was in the best interests of the Company. Any act or failure to act
that is based upon authority given pursuant to the Chief Executive Officer of
the Company, a resolution duly adopted by the Board, or the advice of counsel
for the Company, shall be conclusively presumed to be done, or omitted to be
done, by the Executive in good faith and in the best interests of the Company.
(c) BY THE EXECUTIVE FOR GOOD REASON. The Executive may terminate her
employment during the Employment Period for Good Reason. "Good Reason" means (A)
defacto or de jure material diminution of the Executive's title, or her position
and responsibilities as Chief Financial Officer. Executive acknowledges that the
Company's MIS and Human Resources departments may not report to the Company's
Chief Financial Officer; (B) location or relocation of the main office of the
company other than within a 50 mile radius
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of New York, New York; (C) location of the Executive other than at the Company's
New York office or other location permitted by (B) above, and (d) breach by the
Company of any of its material obligations hereunder that is not cured within
twenty (20) days after written notice thereof is given by the Executive to the
Company.
(d) DATE OF TERMINATION. "Date of Termination" means the date of the
Executive's death, the Disability Effective Date, the date on which the
termination of the Executive's employment by the Company for Cause or without
Cause is effective, or the date on which the Executive gives the Company notice
of a termination of employment for Good Reason or otherwise, as the case may be.
6. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(a) DEATH. If the Executive's employment is terminated by reason of the
Executive's death during the Employment Period, the Company shall continue to
pay to the Executive's designated beneficiaries (or, if there is no such
beneficiary, to the Executive's estate or legal representative), the annual base
salary provided for in Section 3(a) as in effect on the Date of Termination
through the end of the month in which the Executive's death occurs plus prorated
bonus, if any,due.
(b) DISABILITY. If the Executive's employment is terminated by reason of
the Executive's Disability during the Employment Period, the Company shall
continue to pay to the Executive the annual base salary provided for in Section
3(a) until the earlier of: (x) the date on which the Executive begins receiving
payments pursuant to any long-term disability insurance policy or (y) the
Disability Effective Date plus prorated bonus, if any, due.
(c) AFTER A CHANGE IN CONTROL. If, during the Employment Period and upon or
after the occurrence of a Change in Control, the Executive's employment is
terminated by the Company or within 90 days after the Change in Control the
Executive for any or no reason other than by the Company for Cause, death or
Disability, the Company shall pay to the Executive a lump sum amount of one and
one half times the Executive's base salary in effect on the Date of Termination.
(d) BY THE COMPANY FOR CAUSE; BY THE EXECUTIVE. If the Executive's
employment is terminated by the Company for Cause during the Employment Period,
or if the Executive voluntarily terminates employment during the Employment
Period (other than for Good Reason), the Company shall pay to the Executive in a
lump sum in cash within 30 days of the Date of Termination any portion of the
Executive's annual base salary through the Date of Termination that has not yet
been paid, and the Company shall have no further obligations under this
Agreement.
(e) BY THE EXECUTIVE FOR GOOD REASON. If the Executive's employment is
terminated by the Executive for Good Reason, the Company shall continue to pay
to the Executive the annual base salary provided for in Section 3(a) through the
Employment Period and any Performance Bonus due to Executive.
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(f) SURVIVAL The Respective obligations of the Company and the Executive
under Sections 7,8,9 and 10 shall survive any termination of Executive's
employment; provided, however, that the Executive's obligations under Section 9
(Non-Solicitation) shall terminate and shall not survive in the event (i) the
Executive's employment is terminated by the Company other than for Cause; (ii)
the Executive's employment is terminated for any or no reason following a Change
in Control or (iii) the Executive's employment is terminated by the Executive
for Good Reason.
7. INVENTIONS. Any and all inventions, innovations or improvements
("inventions") made, developed or created by the Executive (whether at the
request or suggestion of the Company (which, as used in this Section 7, shall be
deemed to include the Company and each of its subsidiaries) or otherwise,
whether alone or in conjunction with others, and whether during regular hours of
work or otherwise) during the period of her employment with the Company which
may be directly or indirectly useful in, or relate to, the business of the
Company, shall be promptly and fully disclosed by the Executive to the Board and
shall be the Company's exclusive property as against the Executive, and the
Executive shall promptly deliver to an appropriate representative of the Company
as designated by the Board all papers, drawings, models, data and other material
relating to any inventions made, developed or created by her as aforesaid. The
Executive shall, at the request of the Company and without any payment therefor,
execute any documents necessary or advisable in the opinion of the Company's
counsel to direct issuance of patents or copyrights to the Company with respect
to such inventions as are to be the Company's exclusive property as against the
Executive or to vest in the Company title to such inventions as against the
Executive. The expense of securing any such patent or copyright shall be borne
by the Company.
8. CONFIDENTIAL INFORMATION. The Executive shall hold all secret or
confidential information, knowledge or data relating to the Company or any of
its affiliated companies and their respective businesses that the Executive
obtains during the Executive's employment by the Company or any of its
affiliated companies and that is not public knowledge (other than as a result of
the Executive's violation of this Section 8) ("Confidential Information") in
strict confidence. The Executive shall not communicate, divulge or disseminate
Confidential Information at any time during or after the Executive's employment
with the Company, except with the prior written consent of the Company or as
otherwise required by law or regulation or by legal process. If the Executive is
requested pursuant to, or required by, applicable law or regulation or by legal
process to disclose any Confidential Information, the Executive will provide the
Company, as promptly as the circumstances reasonably permit, with notice of such
request or requirement and, unless a protective order or other appropriate
relief is previously obtained, the Confidential Information, subject to such
request, may be disclosed pursuant to and in accordance with the terms of such
request or requirement, provided that the Executive shall use her best efforts
to limit any such disclosure to the precise terms of such request or
requirement.
9. NON-SOLICITATION. The Executive agrees that she will not, during the
term of this Agreement and until the expiration of twelve (12) months from the
date of termination of her employment with the Company, solicit or entice to
endeavor to solicit or entice away from the Company any person who was an
officer or employee, either for her own account or for any individual, firm or
corporation.
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10. INDEMNIFICATION. (a) The Company shall indemnify the Executive to the
fullest extent permitted by Delaware law in effect as of the date hereof against
all costs, expenses, liabilities and losses (including, without limitation,
attorneys' fees, judgments, fines, penalties, ERISA excise taxes, penalties and
amounts paid in settlement) reasonably incurred by the Executive in connection
with a Proceeding. For the purposes of this Section 10, a "Proceeding" shall
mean any action, suit or proceeding, whether civil, criminal, administrative or
investigative, in which the Executive is made, or is threatened to be made, a
party to, or a witness in, such action, suit or proceeding by reason of the fact
that she is or was an officer, director or employee of the Company or is or was
serving as an officer, director, member, employee, trustee or agent of any other
entity at the request of the Company, whether or not the basis of such
Proceeding arises out of or in connection with the Executive's alleged action or
omission in an official capacity.
(b) The Company shall advance to the Executive all reasonable costs and
expenses incurred by her in connection with a Proceeding within 20 days after
receipt by the Company of a written request for such advance. Such request shall
include an itemized list of the costs and expenses and an undertaking by the
Executive to repay the amount of such advance if it shall ultimately be
determined that she is not entitled to be indemnified against such costs and
expenses as authorized by Delaware law. Upon a request under subsection (b), the
Executive shall be deemed to have met the standard of conduct required for such
indemnification unless the contrary shall be established by a court of competent
jurisdiction.
(c) The Executive shall not be entitled to indemnification under this
Section 10 unless she meets the standard of conduct specified in the Delaware
General Corporation Law. Any indemnification under subsection (a) (unless
ordered by a court) shall be made by the Company only as authorized in the
specific case upon a determination that indemnification of the Executive is
proper in the circumstances because she has met the applicable standard of
conduct set forth in the Delaware Corporation Law. Such determination shall be
made in accordance with Delaware law.
11. SUCCESSORS; BENEFICIARIES. (a) This Agreement is personal to the
Executive and, without the prior written consent of the Company, shall not be
assignable by the Executive otherwise than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable by
the Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns.
(c) The Company shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company expressly to assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
have been required to perform it if no such succession had taken place. As used
in this Agreement, "Company" shall mean both the Company as defined above and
any such successor that assumes and agrees to perform this Agreement, by
operation of law or otherwise.
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(d) The Executive shall be entitled, to the extent permitted under any
applicable law, to select and change the beneficiary or beneficiaries to receive
any compensation or benefit payable hereunder following the Executive's death by
giving the Company written notice thereof. In the event of the Executive's death
or a judicial determination of her incompetence, reference in this Agreement to
the Executive shall be deemed, where appropriate, to refer to her beneficiary,
estate or other legal representative.
12. MISCELLANEOUS. (a) Except for the applicability of Delaware law
provided for in paragraph 10 above, this Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without
reference to principles of conflict of laws. The captions of this Agreement are
not part of the provisions hereof and shall have no force or effect. This
Agreement may not be amended or modified except by a written agreement executed
by the parties hereto or their respective successors and legal representatives.
(b) All notices and other communications under this Agreement shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive:
Xxxxxxx Xxxxxx
00 Xxxxxxx Xxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
If to the Company:
Donnkenny Apparel, Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
or such other address as either party furnishes to the other in writing in
accordance with this paragraph (b) of Section 12. Notices and communications
shall be effective when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement. If any provision of this Agreement shall be held invalid or
unenforceable in part, the remaining portion of such provision, together with
all other provisions of this Agreement, shall remain valid and enforceable and
continue in full force and effect to the fullest extent consistent with law.
(d) Notwithstanding any other provision of this Agreement, the Company may
withhold from amounts payable under this Agreement all federal, state, local and
foreign taxes that are required to be withheld by applicable laws or
regulations.
(e) The Executive's or the Company's failure to insist upon strict
compliance with any provisions of, or to assert, any right under, this Agreement
shall not be deemed to be a waiver of such provision or right or of any other
provision of or right under this Agreement.
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(f) The Executive and the Company acknowledge that this Agreement
supersedes any other agreement between them concerning the subject matter
hereof.
(g) This Agreement may be executed in several counterparts, each of which
shall be deemed an original, and said counterparts shall constitute but one and
the same instrument.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization of the Board, the Company has caused this
Agreement to be executed in its name on its behalf, all as of the day and year
first above written.
/s/ XXXXXXX XXXXXX
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XXXXXXX XXXXXX
DONNKENNY APPAREL, INC.
By: /s/ Xxxxxx X. Appelle
--------------------------
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