Exhibit 10.3
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
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AMENDED AND RESTATED EMPLOYMENT AGREEMENT dated as of the 7th day of
June, 1999, by and between NORTON XXXXXXXXXX OF XXXXXX, INC., a New York
corporation (the "Company"), and XXXXXXX XXXXXXXXX (the "Employee").
W I T N E S W E T H:
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WHEREAS, the Company and the Employee are parties to the Amended and
Restated Employment Agreement dated as of November 4, 1995 (the "1995
Agreement") and desire to amend and restate the 1995 Agreement in its
entirety as set forth herein; and
WHEREAS, the Employee and the Company are parties to the Agreement
dated as of November 16, 1998 (the "1998 Agreement") and desire to amend
and restate the 1998 Agreement in its entirety as set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereto hereby agree as
follows:
1. Employment, Term.
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1.1 The Company agrees to employ the Employee, and the Employee
agrees to serve in the employ of the Company, for the term set forth in
Section 1.2, in the position and with the responsibilities, duties and
authority set forth in Section 2 and on the other terms and conditions set
forth in this Agreement.
1.2 Unless sooner terminated in accordance with this Agreement, the
term of the Employee's employment under this Agreement (the "Term") shall
commence on the date hereof and shall terminate on November 2, 2001,
provided that (i) the Term automatically shall be extended until November
3, 2002 in the event that, after the date hereof and on or before November
2, 2001, the Employee shall not have sold 195,000 (as such number shall be
adjusted to reflect stock dividends, stock splits or similar events) or
more shares of common stock, par value $0.01 (the "Common Stock"), of
XxXxxxxxxx Apparel Group Inc., a Delaware corporation (the "Parent') (a
"Sale") and (ii) the Term may be extended until November 3, 2002 by the
Company upon written notice to that effect to the Employee given, if at
all, at least 90 days prior to November 2, 2001.
2. Position, Duties. The Employee shall serve in the position of
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Chairman of the Board of the Company in the New York City metropolitan
area. The Employee shall perform, faithfully and diligently, such duties,
and shall have such responsibilities, appropriate to said position, as
shall be assigned to him from time to time by the Board of Directors of the
Company. The Employee shall report to the Board of Directors of the
Company. During the Term, the Employee also agrees to serve in the New
York City metropolitan area, if elected, as an officer and/or director of
any parent, subsidiary or affiliate of the Company. The Employee shall
devote his complete and undivided attention to the performance of his
duties and responsibilities hereunder during the normal working hours of
executive employees of the Company.
3. Compensation.
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3.1 Salary. During the Term, in consideration of the performance by
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the Employee of the services set forth in Section 2 and his observance of
the other covenants set forth herein, the Company shall pay the Employee,
and the Employee shall accept, a base salary at a rate of $754,000 per
annum, payable in accordance with the standard payroll practices of the
Company.
3.2 Bonus. During the Term, in addition to the salary provided for
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in Section 3.1, the Employee shall be eligible to participate in any bonus
plan for executives of the Company in effect during the Term.
4. Expense Reimbursement. During the Term of this Agreement, the
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Company shall reimburse the Employee for all reasonable and necessary out-
of-pocket expenses incurred by him in connection with the performance of
his duties hereunder, upon the presentation of proper accounts therefor in
accordance with the Company's policies (in any case, as such policies are
adopted from time to time by the Compensation Committee of the Board of
Directors).
5. Benefits.
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5.1 Benefit Plans. During the Term of this Agreement, the Employee
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will be eligible to participate in all employee benefit plans and programs
offered by the Company (and, to the extent required by applicable law or
this Agreement, approved by the Compensation Committee of the Board of
Directors) from time to time to its employees of comparable seniority,
subject to the provisions of such plans and programs as in effect from time
to time.
5.2 Vacation. During the Term, the Employee shall be entitled to
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paid vacation in accordance with Company policy for its executive
employees.
5.3 Life Insurance. During the Term, subject to the continued
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availability on commercially reasonable terms, the Company will provide the
Employee with $2 million term life insurance coverage. The beneficiary of
such policy shall be the Employee's estate or other beneficiary designated
by the Employee
5.4 Disability. During the Term, subject to its continued
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availability on commercially reasonable terms, the Company shall provide
the Employee with disability insurance providing the same monthly
disability benefit as in effect for the Employee immediately prior to the
date hereof. The Company's obligations under Section 6.2 of this Agreement
shall be subject to appropriate reduction for amounts paid to the Employee
under disability insurance during the Disability Salary Continuation Period
(as hereinafter defined), taking into account the tax treatment of such
disability insurance payments.
6. Termination of Employment.
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6.1 Death. In the event of the death of the Employee during the
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Term, the Company shall pay to the estate or other legal representative of
the Employee the salary provided for in Section 3.1 accrued to the date of
the Employee's death and not theretofore paid to the Employee. Rights and
benefits of the estate or other legal representative of the Employee under
the benefit plans and programs of the Company shall be determined in
accordance with the provisions of such plans and programs. Neither the
estate or other legal representative of the Employee nor the Company shall
have any further rights or obligations under this Agreement, except as
provided in Section 7 hereof.
6.2 Disability. If during the Term the Employee shall become
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incapacitated by reason of physical or mental disability and shall be
unable to perform his normal duties hereunder for a cumulative period of
six (6) months in any period of twelve (12) consecutive months, the
employment of the Employee hereunder may be terminated by the Company or
the Employee upon notice to the other. In the event of such termination,
subject to Section 5.4 of this Agreement, the Company shall pay to the
Employee the salary provided for in Section 3.1 for the remainder of the
Term (the period of time during which the Company shall be required to
continue to pay such salary, the "Disability Salary Continuation Period").
Rights and benefits of the Employee under the benefit plans and programs of
the Company shall be determined in accordance with the provisions of such
plans and programs. Neither the Employee nor the Company shall have any
further rights or obligations under this Agreement, except as provided in
Sections 7, 8, 9, 10 and 11 hereof.
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6.3 Due Cause. The employment of the Employee hereunder may be
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terminated by the Company at any time during the Term for Due Cause (as
hereinafter defined). In the event of such termination, the Company shall
pay to the Employee the salary provided for in Section 3.1 accrued to the
date of such termination and not theretofore paid to the Employee. Rights
and benefits of the Employee under the benefit plans and programs of the
Company shall be determined in accordance with the provisions of such plans
and programs. After the satisfaction of any claim of the Company against
the Employee incidental to such Due Cause, neither the Employee nor the
Company shall have any further rights or obligations under this Agreement,
except as provided in Sections 8, 9, 10 and 11 hereof. For purposes of
this Agreement, "Due Cause" shall mean (a) the Employee's gross neglect or
willful misconduct in the discharge of his duties and responsibilities to
any member of the Company Group (as defined in Section 10 below), as
determined by the Board of Directors of the Company (other than the
Employee if he is a member of such Board at the time), (b) the Employee's
material failure to obey appropriate directions from the Board of Directors
of the Company, (c) any act of the Employee against any member of the
Company Group intended to enrich him in derogation of his duties to such
member and at the expense of such member, (d) any willful or purposeful act
(or any act or omission taken in bad faith) of the Employee having the
effect of materially injuring the business or business relationships of any
member of the Company Group, (e) the Employee's commission of (1) a felony
or (2) any crime or offense involving moral turpitude, fraud or
misrepresentation, (f) the Employee's willful and material breach of this
Agreement, (g) the Employee's breach of his duty of loyalty to the members
of the Company Group or (h) the entry of a plea of nolo contendre by the
Employee to a felony; provided, however, that the Employee shall be given
written notice by a majority of the Board of Directors of the Company that
it intends to terminate the Employee's employment for Due Cause under this
Section, which written notice shall specify the act or acts upon the basis
of which the majority of the Board of Directors of the Company intends so
to terminate the Employee's employment, and the Employee shall then be
given the opportunity, within fifteen (15) days of his receipt of such
notice, to have a meeting with the Board of Directors of the Company to
discuss such act or acts.
6.4 Other Termination by the Company. The Company may terminate the
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Employee's employment at any time during the Term for whatever reason it
deems appropriate or without reason; provided, however, that in the event
that such termination is not pursuant to Section 6.1, 6.2 or 6.3 the
Company shall continue to pay to the Employee the salary provided for in
Section 3.1 until the first to occur of (i) the expiration of the Term of
this Agreement in effect immediately prior to such termination or (ii) the
death of the Employee, (the period of time during which the Company shall
be required to continue to pay such salary, the "Salary Continuation
Period"). The Employee shall be under no obligation to seek subsequent
employment and upon obtaining subsequent employment shall be under no
obligation to offset any amounts earned from such subsequent employment
(whether as an employee, a consultant or otherwise) against such payment.
Rights and benefits of the Employee under the benefit plans and programs of
the Company shall be determined in accordance with the provisions of such
plans and programs. Neither the Employee nor the Company shall have any
further rights or obligations under this Agreement, except as provided in
Sections 7, 8, 9, 10 and 11 hereof.
7. Consulting Agreement.
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7.1 In the event that (1) (i) a Sale shall not have occurred, (ii)
the Employee shall remain in the employ of the Company on November 3, 2002
and (iii) on or prior to November 3, 2002 the Company shall have not
offered to the Employee to extend the Term for at least one year and
otherwise on the terms and conditions set forth herein, (2) (i) a Sale
shall have occurred, (ii) the Employee shall remain in the employ of the
Company on November 2, 2001 and (iii) on or prior to November 2, 2001 the
Company shall not have elected to extend the Term until November 3, 2002
pursuant to Section 1.2(ii) hereof, or (3) the Employee's employment
hereunder has been terminated pursuant to Sections 6.1 or 6.2 hereof or by
the Company pursuant to Section 6.4 hereof, in any case before the end of
the Term, then, subject to Section 7.9 hereof, the Company hereby agrees to
retain the Employee to provide consulting and advisory services on a
project-by-project basis to the Company (I) in the case of the
circumstances set forth in clause (1) above, during the period commencing
on November 4, 2002 and terminating on November 4, 2004, (II) in the case
of the circumstances set forth in clause (2) above, during the period
commencing on November 3, 2001 and terminating on November 3, 2003 or (III)
in the case of the circumstances set forth in clause (3)
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above, during the two-year period following the date of termination of
employment pursuant to Sections 6.1, 6.2 or 6.4 hereof (the applicable two-
year period contemplated by clauses (I), (II) or (III) hereof, the
"Consulting Term"). During the Consulting Term, the Employee shall provide
such consulting and advisory services to the Company as may be agreed to
between the Employee and the Board of Directors of the Company. Unless a
greater amount of time is agreed to by the Employee, the Employee shall
devote up to 15 hours per week to the mutually agreed upon consulting and
advisory services, if any, hereunder, provided that, to the extent
feasible, such services may be conducted telephonically outside of the
Company's offices and the Employee's performance of such duties and
responsibilities does not materially interfere with any obligations of the
Employee to provide services to any activity or business venture which is
not in violation of Section 10 hereof. Subject to Section 7.2 hereof,
during the Consulting Term, in consideration of the performance by the
Employee of services set forth herein, the Company shall pay the Employee,
and the Employee shall accept, a consulting fee (the "Fee") (payable on the
15th day of each month for the month in which the payment occurs) in an
amount per month equal to either (a) in the event that this Agreement is
not amended after the date hereof to adjust the salary set forth in Section
3.1 hereof, $75,000 or (b) in the event that this Agreement is amended by
the Company and the Employee after the date hereof to adjust the salary,
the aggregate monthly consideration payable to the Employee by the Company
under Section 3.1 of this Agreement as so amended.
7.2 In the event of the death of the Employee during the Consulting
Term, the Company shall continue to pay the Fee to the estate or other
legal representative of the Employee in accordance with the terms hereof,
all notwithstanding the death of the Employee. Rights and benefits of the
estate or other legal representative of the Employee under the benefit
plans and programs of the Company, if applicable to the Employee, shall be
continued subject to the provisions of such plans and programs. Except as
aforesaid, in the event of the death of the Employee during the Consulting
Term, neither the estate or other legal representative of the Employee nor
the Company shall have any further rights or obligations under this
Agreement.
7.3 The Employee shall perform his duties and responsibilities during
the Consulting Term as an independent contractor. Nothing in this Section 7
shall be deemed to create a partnership, joint venture or employment
relationship between the Employee and the Company during the Consulting
Term or thereafter. Anything to the contrary herein notwithstanding, all
payments required to be made by the Company during the Consulting Term
shall be subject to Section 20 hereof.
7.4 Subject to Section 7.9 hereof, for the period commencing on the
termination of the Employee's employment under this Agreement (for reasons
other than Due Cause) until the death of the Employee, the Company agrees,
at its expense, to provide the Employee and the Employee's wife and his
children under age 20 or under age 24 if such children are full-time
students with coverage under the medical plans of the Company on the same
terms and conditions (including the same Company-paid portions) that
coverage is generally available to employees of the Company. In the event
that the Company is unable to provide the coverage set forth in the
preceding sentence during any month as a result of (a) a change of law or
regulation which restricts the provision of coverage for persons who are
not employees of the Company, (b) the failure by the Company's insurance
carrier or plan to provide coverage for persons who are not employees of
the Company or (c) a change in the cost of such coverage such that the cost
to the Company to provide such coverage for any monthly period exceeds the
amount set forth on Exhibit A hereto under the column labeled "Monthly
Premium", the Company shall not be obligated to provide such coverage under
its medical plans and shall reimburse the Employee for any premiums paid by
the Employee for comparable medical coverage. Such reimbursement shall not
exceed the amount set forth on Exhibit A hereto under the column labeled
"Monthly Premium" for any monthly period.
7.5 Notwithstanding Section 8 of the Split Dollar Agreement (the
"Split Dollar Agreement") dated as of March 8, 1994 by and among the
Company, the Employee and Xxx Xxxxxxxxx, as trustee of a trust established
under a trust agreement between Xxxxxxx Xxxxxxxxx, as settlor, and Xxx
Xxxxxxxxx, as trustee, subject to Section 7.9 hereof and except in the
event that the Employee's employment under this Agreement is terminated for
Due Cause, until the death of the Employee, the Company agrees to continue
to pay premiums on the Policy (as defined in the Split Dollar Agreement)
until payment of the twentieth annual Policy premium, subject to the other
terms and provisions of the Split Dollar Agreement.
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7.6 As set forth in Section 5.3 hereof, the Company is currently
providing the Employee with the benefits of a $2 million term life
insurance policy. Subject to Section 7.9 hereof, and subject to the
continued availability of such coverage on commercially reasonable terms,
for the period commencing on the termination of the Employee's employment
under this Agreement (for reasons other than Due Cause) until the death of
the Employee, the Company agrees, at its expense, to continue to provide to
the Employee such life insurance benefits.
7.7 In the event that the Company agrees to forgive certain loans
made to each of Xxx Xxxxxxxxx, Xxxxxx Xxxxxxxxx, Xxxxxx Xxxxxxxx and Xxxxxx
Xxxxxx pursuant to each of their respective Third Amended and Restated Non-
Negotiable Limited Recourse Promissory Notes dated March 27, 1995 and
payable to the Company, subject to Section 7.9 hereof and except in the
event that the Employee's employment under this Agreement is terminated for
Due Cause, the Company shall forgive the loan (the "Loan") made to the
Employee pursuant to his Third Amended and Restated Non-Negotiable Limited
Recourse Promissory Note dated March 27, 1995 (the "Note") and payable to
the Company.
7.8 Subject to Section 7.9 hereof, in the event that, at any time or
from time to time, except in the event that the Employee's employment under
this Agreement is terminated for Due Cause, Parent proposes to register any
shares of Common Stock, under the Securities Act of 1933 (the "Securities
Act") other than pursuant to a registration statement on Forms S-4 or S-8,
or any successor to such Forms, for the purpose of the sale or other
transfer of such shares of Common Stock by either Xxx Xxxxxxxxx or Norton
Xxxxxxxx or both (the "Registration Shares"), the Parent shall deliver to
the Employee at least twenty (20) days prior to the filing of the
registration statement with respect to the Registration Shares, a written
notice (a "Registration Notice") of its intention so to register the
Registration Shares. In the event that a Registration Notice shall have
been so delivered, the Employee, at his election, may deliver to the Parent
a written notice (a "Response") (i) specifying the number of shares of
Common Stock (together with the Registration Shares, the "Supplemental
Registration Shares") proposed to be sold or otherwise transferred by the
Employee, (ii) describing the proposed manner of sale or other transfer
thereof and (iii) requesting the registration thereof under the Securities
Act; provided, however, that a Response shall be so delivered by the
Employee, if at all, not more than fifteen (15) days after the date of
delivery to the Employee of a Registration Notice. From and after receipt
of a Response, the Parent shall use its reasonable best efforts to cause
the Supplemental Registration Shares specified in such Response to be
registered under the Securities Act and to effect and to comply with all
such qualifications, compliances and requirements as may be necessary to
permit the sale or other transfer of such Supplemental Registration Shares,
in the manner described in such Response, without limitation,
qualifications under the applicable Blue Sky or other state securities laws
(provided that the Parent shall not be required in connection therewith to
qualify as a foreign corporation or to execute general consent to service
of process in any state); provided, however, that if (i) in the case of an
underwritten public offering of securities, the managing underwriter shall
advise the Parent in writing that the inclusion of some or all of such
Supplemental Registration Shares would, in such managing underwriter's
opinion, materially interfere with the proposed distribution of any
securities to be issued by the Parent in respect of which registration was
originally to be effected or would materially interfere with the proposed
distribution of all the Supplemental Registration Shares, then the Parent
may, upon written notice to the Employee, allocate the Supplemental
Registration Shares to be included in the registration statement (if and to
the extent such allocation is certified by the managing underwriter as
necessary to eliminate such interference) pro rata among the holders
thereof (including the Employee) on the basis of the number of shares of
Common Stock at the time owned by such holders or (ii) any firm of counsel
representing the Parent in connection with such registration shall advise
the Parent and the Employee in writing that in its opinion one or more of
the steps contemplated hereby is not necessary to permit the sale of the
Registration Shares in a transaction constituting a public offering within
the meaning of the Securities Act, then the Parent shall not be required to
take any action with respect to such step or steps.
7.9 (a) Notwithstanding anything to the contrary contained herein,
the agreements and obligations of the Company set forth in this Section 7
may be terminated at any time during the Consulting Term or thereafter for
Due Cause by notice from the Company to the Employee (the "Due Cause
Notice"). In the event of such termination, the Company shall pay to the
Employee the Fee, if any, accrued to the date of termination and not
theretofore paid to the Employee. Rights and benefits of the Employee under
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the benefit plans and programs of the Company, if applicable to the
Employee, shall be continued subject to the provisions of such plans and
programs. After satisfaction of any claim of the Company against the
Employee arising from such Due Cause, following the date of the Due Cause
Notice, neither the Employee nor the Company shall have any rights or
obligations under this Agreement, except as provided in Xxxxxxxx 0, 0, 00
xxx 00 xxxxxx.
(x) Notwithstanding anything to the contrary contained herein,
the agreements and obligations of the Company set forth in this Section 7
may be suspended (but not terminated; any termination to be governed by
Section 7.9(a) hereof) at any time during the Consulting Term (during which
suspension the Fee otherwise payable shall accrue, but not past the end of
the Consulting Term) or thereafter for Good Reason (as defined below) by
notice to the Employee by the Company (the "Good Reason Notice"). In the
event of such suspension, the Company shall pay to the Employee the Fee, if
any, accrued to the date of the suspension and not theretofore paid to the
Employee. Rights and benefits to the Employee under the benefit plans and
programs of the Company, if applicable to the Employee, shall thereafter be
determined in accordance with the provisions of such plans and programs.
Following the date of the Good Reason Notice, neither the Employee nor the
Company shall have any rights or obligations under this Agreement until
such time as the Good Reason shall cease to exist, except as provided in
Sections 8, 9, 10 and 11 hereof, and nothing herein shall limit or
otherwise affect the Company's rights under Section 7.9(a) hereof.
Notwithstanding the foregoing, in the event that a Good Reason Notice shall
have been given as a result of an Investigation (as defined below) and
within 18 months from the date of such Good Reason Notice neither an
Indictment (as defined below) nor Due Cause shall exist, then any Fee which
shall have accrued during the suspension period pursuant to this Section
7.9(b) (but not past the end of the Consulting Term) shall be paid at the
end of such suspension period. For purposes hereof, "Good Reason" shall
mean the conduct by a Federal, state or local governmental agency, court or
other judicial body of a criminal investigation of the activities of the
Employee (an "Investigation") or the indictment of the Employee for a
felony ("Indictment").
8. Confidential Information.
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8.1 The Employee shall, during the Term and at all times thereafter,
treat as confidential and, except as required in the performance of his
duties and responsibilities under this Agreement, not disclose, publish or
otherwise make available to the public or to any individual, firm or
corporation any confidential material (as hereinafter defined). the
Employee agrees that all confidential material, together with all notes and
records of the Employee relating thereto, and all copies or facsimiles
thereof in the possession of the Employee, are the exclusive property of
the Company and the Employee agrees to return such material to the Company
promptly upon the termination of the Employee's employment with the
Company.
8.2 For the purposes hereof, the term "confidential material" shall
mean all information acquired by the Employee in the course of the
Employee's employment with the Company in any way concerning the products,
projects, activities, business or affairs of the Company or any member of
the Company Group or the customers of the Company or any member of the
Company Group, including, without limitation, all information concerning
trade secrets and the preparation of raw material for, manufacture of,
and/or finishing processes utilized in the production of, the products or
projects of the Company or any member of the Company Group and/or any
improvements therein, all sales and financial information concerning the
Company or any member of the Company Group, all customer and supplier
lists, all information concerning projects in research and development or
marketing plans for any such products or projects, and all information in
any way concerning the products, projects, activities, business or affairs
of customers of the Company or any member of the Company Group which is
furnished to the Employee by the Company or any member of the Company Group
or any of their respective employees (current or former), agents or
customers, as such; provided, however, that the term "confidential
material" shall not include information which (a) becomes generally
available to the public other than as a result of a disclosure by the
Employee, (b) was available to the Employee on a non-confidential basis
prior to his employment with the Company or (c) becomes available to the
Employee on a non-confidential basis from a source other than the Company
or any of its agents, franchisees, creditors, suppliers, lessors, lessees
or
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customers provided that such source is not bound by a confidentiality
agreement with the Company or any of such agents or customers.
9. Inventions. Any and all inventions, innovations or improvements
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("inventions") made, developed or created by the Employee (whether at the
request or suggestion of the Company or otherwise, whether alone or in
conjunction with others, and whether during regular hours of work or
otherwise) during the period of his 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 Employee to the Board
of Directors of the Company and shall be the Company's exclusive property
as against the Employee, and the Employee shall promptly deliver to an
appropriate representative of the Company as designated by the Board of
Directors all papers, drawings, models, data and other material relating to
any inventions made, developed or created by him as aforesaid. the
Employee 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 Employee or to vest in the Company title
to such inventions as against the Employee. The expense of securing any
such patent or copyright shall be borne by the Company.
10. Non-Competition. the Employee acknowledges that the services to
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be rendered by him to the Company are of a special and unique character.
In consideration of his employment hereunder, the Employee agrees, for the
benefit of the Company and members of the Company Group, that he will not,
during the period of employment with the Company and thereafter for the
Applicable Period (as hereinafter defined) commencing on the date of
termination of his employment with the Company, (a) engage, directly or
indirectly, whether as principal, agent, distributor, representative,
consultant, employee, partner, stockholder, limited partner or other
investor (other than an investment of not more than (i) one percent (1%) of
the stock or equity of any corporation the capital stock of which is
publicly traded or (ii) five percent (5%) of the ownership interest of any
limited partnership or other entity) or otherwise, anywhere in the United
States, in any activity or business venture which is in competition with
the business then conducted by the Company, any of its subsidiaries or any
of its corporate parents or affiliates (including, without limitation,
XxXxxxxxxx Apparel Group Inc., Miss Xxxxx, Inc. and Xxxxx-Xx Knitwear,
Inc., each a Delaware corporation, and XxXxxxxxxx Apparel Holdings Inc., a
South Carolina corporation) (collectively, the "Company Group"), (b)
solicit or entice or endeavor to solicit or entice away from any member of
the Company Group any person who is (as the applicable time) an officer,
employee or consultant of any member of the Company Group, either for his
own account or for any individual, firm or corporation, whether or not such
person would commit any breach of his contract of employment by reason of
leaving the service of a member of the Company Group, and the Employee
agrees not to employ, directly or indirectly, any person who was an officer
or employee of any member of the Company Group or who by reason of such
position at any time is or may be likely to be in possession of any
confidential information or trade secrets relating to the businesses or
products of any member of the Company Group, or (c) solicit or entice or
endeavor to solicit or entice away from any member of the Company Group any
customer or prospective customer of any member of the Company Group, either
for his own account or for any individual, firm or corporation. As used
herein, the term "Applicable Period" shall mean (i) in the case of
termination of employment pursuant to Section 6.4 of this Agreement, the
Salary Continuation Period and (ii) in the case of any other termination of
employment with the Company hereunder or otherwise, three (3) years.
11. Equitable Relief, Etc.
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11.1 In the event of a breach or threatened breach by the Employee of
any of the provisions of Sections 8, 9, or 10 of this Agreement, the
Employee hereby consents and agrees that the Company shall be entitled to
an injunction or similar equitable relief from any court of competent
jurisdiction restraining the Employee from committing or continuing any
such breach or threatened breach or granting specific performance of any
act required to be performed by the Employee under any of such provisions,
without the necessity of showing any actual damage or that money damages
would not afford an adequate remedy and without the necessity of posting
any bond or other security. Nothing herein shall be construed as
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prohibiting the Company from pursuing any other remedies at law or in
equity which it may have with respect to any such breach or threatened
breach.
11.2 The Company and the Employee understand and agree that in any
lawsuit or other proceeding between any of them with respect to Sections 8,
9, or 10 hereof, the prevailing party in such lawsuit or proceeding shall
be entitled to recover from the other party in such lawsuit or proceeding,
and such other party hereby agrees to pay such prevailing party, for all
costs and expenses, including attorneys' fees, incurred by such prevailing
party in the defense, prosecution or investigation of the matters which are
the subject of such lawsuit or proceeding.
12. Successors and Assigns.
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12.1 Assignment by the Company. The Company shall require any
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successors (whether direct or indirect, by purchase, merger, consolidation
or otherwise) to all or substantially all of the business and/or assets of
the Company to assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform
if no such succession had taken place. As used in this Section, the
"Company" shall mean the Company as hereinbefore defined and any successor
to its business and/or assets as aforesaid which otherwise becomes bound by
all the terms and provisions of this Agreement by operation of law and this
Agreement shall be binding upon, and inure to the benefit of, the Company,
as so defined.
12.2 Assignment by the Employee. The Employee may not assign this
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Agreement or any part thereof without the prior written consent of a
majority of the Board of Directors of the Company (other than the Employee
if he is a member of such Board at the time); provided, however, that
nothing herein shall preclude one or more beneficiaries of the Employee
from receiving any amount that may be payable following the occurrence of
his legal incompetency or his death and shall not preclude the legal
representative of his estate from receiving such amount or from assigning
any right hereunder to the person or persons entitled thereto under his
will or, in the case of intestacy, to the person or persons entitled
thereto under the laws of intestacy applicable to his estate. The term
"beneficiaries", as used in this Agreement, shall mean a beneficiary or
beneficiaries so designated to receive any such amount or, if no
beneficiary has been so designated, the legal representative of the
Employee (in the event of his incompetency) or the Employee's estate.
13. Governing Law. This Agreement shall be deemed a contract made
-------------
under, and for all purposes shall be construed in accordance with, the laws
of the State of New York applicable to contracts to be performed entirely
within such State.
14. Entire Agreement. This Agreement contains all the understandings
----------------
and representations between the parties hereto pertaining to the subject
matter hereof. This Agreement supersedes (or in the case of the 1995
Agreement and the 1998 Agreement, amends and restates those Agreements in
their entirety as set forth herein) all understandings and agreements,
whether oral or in writing, if any, previously entered into by the Company
or any other member of the Company Group with the Employee in any way
relating to the employment of the Employee by the Company or any other
member of the Company Group, all of which agreements and understandings are
hereby terminated (or in the case of the 1995 Agreement and the 1998
Agreement, amended and restated in their entirety as set forth herein) and
all rights and entitlements thereunder are hereby waived and released.
15. Amendment, Modification, Waiver. No provision of this Agreement
-------------------------------
may be amended or modified unless such amendment or modification is agreed
to in writing and signed by the Employee and by representatives of the
Company (other than the Employee) who have been duly authorized by the
Board of Directors of the Company to do so (other than the Employee if he
is a member of such Board at the time). Except as otherwise specifically
provided in this Agreement, no waiver by either party hereto of any breach
by the other party hereto of any condition or provision of this Agreement
to be performed by such other party shall be deemed a waiver of a similar
or dissimilar provision or condition at the same or any prior or subsequent
time, nor shall the failure of or delay by either party hereto in
exercising any right,
8
power or privilege hereunder operate as a waiver thereof to preclude any
other or further exercise thereof or the exercise of any other such right,
power or privilege.
16. Notices. Any notice to be given hereunder shall be in writing
-------
and delivered personally or sent by certified mail, postage prepaid, return
receipt requested, addressed to the party concerned at the address
indicated below or at such other address as such party may subsequently
designate by like notice:
If to the Company:
c/x XxXxxxxxxx Apparel Group Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Compensation Committee and Secretary
If to the Employee:
Xxxxxxx Xxxxxxxxx
00 Xxxxxx Xxxxx
Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
17. Arbitration. Any controversy or claim arising out of or relating
-----------
to this Agreement, or any breach thereof, shall, except as provided in
Section 10, be settled by binding arbitration in accordance with the rules
of the American Arbitration Association then in effect and judgment upon
such award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. The arbitration shall be held in New York, New York.
The arbitration award shall include an award of attorneys' fees and costs
to the prevailing party as determined by the arbitrator.
18. Severability. Should any provision of this Agreement be held by
------------
a court or arbitration panel of competent jurisdiction to be enforceable
only if modified, such holding shall not affect the validity of the
remainder of this Agreement, the balance of which shall continue to be
binding upon the parties hereto with any such modification to become a part
hereof and treated as though originally set forth in this Agreement. The
parties further agree that any such court or arbitration panel is expressly
authorized to modify any such unenforceable provision of this Agreement in
lieu of severing such unenforceable provision from this Agreement in its
entirety, whether by rewriting the offending provision, deleting any or all
of the offending provision, adding additional language to this Agreement,
or by making such other modifications as it deems warranted to carry out
the intent and agreement of the parties as embodied herein to the maximum
extent permitted by law. The parties expressly agree that this Agreement
as so modified by the court or arbitration panel shall be binding upon and
enforceable against each of them. In any event, should one or more of the
provisions of this Agreement be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions hereof, and if such
provision or provisions are not modified as provided above, this Agreement
shall be construed as if such invalid, illegal or unenforceable provisions
had never been set forth herein.
19. Authority. The Company represents and warrants to the Employee
---------
that the execution and delivery of this Agreement by the Company and the
performance by the Company of its covenants and agreements hereunder have
been duly authorized by all necessary corporate action and that this
Agreement has been duly executed and delivered on behalf of the Company.
20. Withholding. Anything to the contrary notwithstanding, all
-----------
payments required to be made by the Company hereunder to the Employee or
his beneficiaries, including his estate, shall be subject to withholding of
such amounts relating to taxes as the Company may reasonably determine it
should withhold pursuant to any applicable law or regulation. In lieu of
withholding such amounts, in whole or in part, the Company, may, in its
sole discretion, accept other provision for payment of taxes as permitted
by law, provided it is satisfied in its sole discretion that all
requirements of law affecting its responsibilities to withhold such taxes
have been satisfied.
9
21. Subsidiaries, etc. The Employee shall be deemed to resign as an
------------------
officer and director of the Company and of any parent, subsidiary or
affiliate of the Company upon termination of his employment with the
Company under this Agreement or otherwise.
22. Survivorship. The respective rights and obligations of the
------------
Employee and the Company hereunder shall survive any termination of the
Term or of this Agreement to the extent necessary to the intended
preservation of such rights and obligations.
23. Titles. Titles of the sections of this Agreement are intended
------
solely for convenience and no provision of this Agreement is to be
construed by reference to the title of any section.
24. Counterparts. This Agreement may be executed in two or more
------------
counterpart copies, each of which shall be deemed to be an original and all
of which taken together shall be deemed one document.
* * *
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
NORTON XXXXXXXXXX OF XXXXXX, INC.
By:/s/ Xxxxx Xxxxxxxxx
------------------------------
Title: President
EMPLOYEE:
/s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Xxxxxxx Xxxxxxxxx
For good and valuable consideration,
the receipt and sufficiency of which are
hereby acknowledged, the undersigned
hereby agrees to cause the Company to
perform, and hereby guarantees to the
Employee that the Company will
perform, all of the Company's
agreements and covenants contained
herein.
XXXXXXXXXX APPAREL GROUP INC.
By:/s/ Xxxxx Xxxxxxxxx
--------------------------
Title: President
10
EXHIBIT A
---------
MEDICAL INSURANCE PREMIUMS TO
XXXXXXX XXXXXXXXX IF COMPANY IS UNABLE TO PROVIDE COVERAGE
----------------------------------------------------------
Fiscal Period
------------------------------------
Beginning Ended Annual Monthly
Nov. 1: Oct. 31: Premium Premium
--------------------------------------------------------------------------------
1999 2000 $ 7,200.00 $ 600.00
2000 2001 7,560.00 630.00
2001 2002 7,938.00 661.50
2002 2003 8,334.90 694.58
2003 2004 8,751.64 729.30
2004 2005 9,189.23 765.77
2005 2006 9,648.69 804.06
2006 2007 10,131.12 844.26
2007 2008 10,637.68 886.47
2008 2009 11,169.56 930.80
2009 2010 11,728.04 977.34
2010 2011 12,314.44 1,026.20
2011 2012 12,930.17 1,077.51
2012 2013 13,576.67 1,131.39
2013 2014 14,255.51 1,187.96
2014 2015 14,968.28 1,247.36
2015 2016 15,716.70 1,309.72
2016 2017 15,502.53 1,375.21
2017 2018 17,327.66 1,443.97
2018 2019 18,194.04 1,516.17
2019 2020 19,103.74 1,591.98
2020 2021 20,058.93 1,671.58
2021 2022 21,061.88 1,755.16
2022 2023 22,114.97 1,842.91
2023 2024 23,220.72 1,935.06
2024 2025 24,381.76 2,031.81
2025 2026 25,600.84 2,133.40
2026 2027 26,880.89 2,240.07
2027 2028 28,224.93 2,352.08
2028 2029 29,636.18 2,469.68
2029 2030 31,117.99 2,593.17
2030 2031 32,673.88 2,722.82
2031 2032 34,307.58 2,858.96
2032 2033 36,022.96 3,001.91
2033 2034 37,824.11 3,152.01
2034 2035 39,715.31 3,309.61
A-1
Fiscal Period
------------------------------------
Beginning Ended Annual Monthly
Nov. 1: Oct. 31: Premium Premium
--------------------------------------------------------------------------------
2035 2036 41,701.08 3,475.09
2036 2037 43,786.13 3,648.84
2037 2038 45,975.44 3,831.29
2038 2039 48,274.21 4,022.85
2039 2040 50,687.92 4,223.99
2040 2041 53,222.31 4,435.19
2041 2042 55,883.43 4,656.95
2042 2043 58,677.60 4,889.80
2043 2044 61,611.48 5,134.29
2044 2045 64,692.06 5,391.00
2045 2046 67,926.66 5,660.55
2046 2047 71,322.99 5,943.58
2047 2048 74,889.14 6,240.76
2048 2049 78,633.60 6,552.80
2049 2050 82,565.28 6,880.44
2050 2051 86,693.54 7,224.46
A-2
