EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of February 2, 1998 (this "Agreement"), by
and between DANSKIN, INC., a Delaware corporation ("Danskin" or the "Company"),
and XXXXXXXXX XXXXXX ("Executive").
RECITALS
WHEREAS, the Company desires to employ Executive as Chief Executive
Officer of the Company and Executive desires to accept such employment.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties agree as follows:
1. Employment.
1.1 Subject to the terms and conditions of this Agreement, the
Company agrees to employ Executive during the Term (as herein defined). As of
March 2, 1998, Executive shall be employed as Chief Executive Officer of the
Company and as such shall report to the Board of Directors of the Company. As
Chief Executive Officer of the Company, Executive shall perform such duties and
responsibilities as are customarily performed by the chief executive officer of
a company the size and nature of the Company, and such other managerial duties
and responsibilities with the Company which are appropriate for her position at
the Company as, from time to time, may be assigned to her by the Board of
Directors of the Company. During the period of the Term which is prior to March
2, 1998, Executive shall report to the Chairman of the Board of Directors and
perform such duties as may be assigned to her by the Chairman of the Board of
Directors.
1.2 Subject to the terms and conditions of this Agreement,
Executive hereby accepts employment hereunder and with respect to the period of
the Term which commences on March 2, 1998, accepts employment as Chief Executive
Officer of the Company and agrees to devote her full working time and efforts to
the performance of services, duties and responsibilities in connection therewith
(other than during periods of illness, disability or vacation). Nothing in this
Agreement shall preclude Executive, so long as, such activities are not
prohibited under Section 9.2 hereof and, in the reasonable determination of the
Board of Directors of the Company (the "Board"), such activities do not
materially interfere with her duties and responsibilities hereunder, from
engaging in charitable and community affairs, from managing any passive
investment made by her in real estate or other property (provided that no such
investment may exceed 2% of the equity securities of any entity, without the
prior approval of the Board), or from serving, subject to the prior approval of
the Board, as a member of boards of directors or as a trustee of any other
company, association or entity.
1.3 From the time Executive commences her duties as Chief
Executive Officer of the Company, the Company shall cause Executive to be
nominated for election to the Board of Directors of the Company.
1
2. Term of Employment. The term of this Agreement shall commence on the
date hereof and continue through February 28, 2003 (the "Term"); subject to
earlier termination in accordance with the terms and conditions contained in
Section 7 hereof. The Term shall be extended automatically for successive one
year periods unless terminated by written notice not less than (thirty) 30, days
prior to the end of the Term or any successive one year extension by either of
the parties hereto.
3. Place of Employment. During the Term, Executive shall perform her
services at the principal place of business of the Company which is presently
located in New York City. Executive shall be furnished with office facilities
and services suitable to her position and suitable for the performance of her
duties. The Company hereby covenants and agrees that during the Term, it will
not, without Executive's consent, move the location of the Company's principal
place of business to a location which is more than 50 miles from New York City.
Executive acknowledges and agrees that in connection with her employment,
however, she may be required to travel on behalf of the Company.
4. Compensation.
4.1 Salary. With respect to the period of the Term which commences
on March 2, 1998, the Company shall pay Executive a base salary ("Base Salary")
at the rate of Three Hundred Seventy Five Thousand Dollars ($375,000) per annum
(pro rated for the balance of fiscal 1998 ending December 31, 1998, and for any
partial year during the Term). The Base Salary shall be payable in accordance
with the ordinary payroll practices of the Company for its executive officers
but in no event less frequently than semi-monthly. During the period of the Term
which is prior to March 2, 1998, the Company shall pay the Executive $200 per
week, payable in accordance with the ordinary payroll practices of the Company
but in no event less frequently than semi-monthly. As used in this Agreement,
the term "Base Salary" shall include Executive's base salary as it may be
adjusted from time to time.
4.2 Signing Bonus. The Company shall pay Executive a signing bonus
of One Hundred Fifty Thousand Dollars ($150,000) upon the execution and delivery
of this Agreement.
4.3 Performance Bonus. Executive shall be entitled to receive an
annual performance bonus (each, a "Performance Bonus") of up to 100% of Base
Salary for the most recently completed fiscal year in which such bonus is
earned. The amount of any such Performance Bonus shall be determined by the
Board of Directors, in its sole discretion, based on such quantitative and
qualitative initiatives as identified by the Board upon consultation with
Executive and upon approval of the budget for the respective fiscal year. Any
such Performance Bonus shall be paid to Executive within 120 days of the end of
the fiscal year to which it relates. Notwithstanding the foregoing, the
Performance Bonus for 1998 shall be based upon such criteria as agreed upon
between the Company and Executive and shall be no less than $187,500.
2
4.4 Stock Award, Signing Bonus. As an inducement to Executive to
enter into this Agreement, the Company shall issue to Executive 750,000 shares
of common stock, par value $.01 per share, of the Company ("Common Stock") upon
the execution and delivery of this Agreement.
5. Employee Benefits.
5.1 Employee Benefit Programs, Plans and Practices. The Company
shall provide Executive, during the Term, with coverage under all employee
benefit programs, plans and practices which the Company makes available from
time to time to its senior executives, with at least the same opportunity to
participate as the other senior executives of the Company including, without
limitation, retirement, pension, profit sharing, medical, dental,
hospitalization, life insurance, short and long term disability, accidental
death and dismemberment and travel accident coverage.
5.2 Vacation and Fringe Benefits.
(a) Executive shall be entitled to three (3) weeks paid
vacation in each year (pro rated as necessary for partial calendar years during
the Term). Executive may take her allotted vacation days at such times as are
mutually convenient for the Company and Executive, consistent with the Company's
vacation policy in effect from time to time with respect to its executive
officers.
(b) The Company shall provide the Executive with a
non-accountable automobile allowance of One Thousand Dollars ($1,000.00) per
month which includes all costs associated with use of an automobile, including
lease or loan payments, fuel, maintenance and insurance.
(c) Executive shall be entitled to the perquisites and
fringe benefits normally made available to other senior executives of the
Company, commensurate with her position with the Company.
5.3 Expenses. Executive is authorized to incur reasonable expenses
in carrying out her duties and responsibilities under this Agreement, (in
accordance with the policies and procedures established from time to time by the
Company for its senior executive officers) including, without limitation,
entertainment and travel expenses (and the cost of living while away from home
on business or at the request of, and in the service of the Company) and similar
items related to such duties and responsibilities. The Company will promptly
reimburse Executive in full for all such out-of-pocket expenses upon
presentation by Executive from time to time of a proper account of such
expenditures in accordance with the policies and procedures established by the
Board and applicable to executive officers of the Company.
3
5.4 Relocation Expenses. The Company will reimburse Executive for
(or pay directly) all expenses of moving Executive's possessions from
Winston-Salem, North Carolina to Executive's new residence in the New York
metropolitan area. In addition, the Company will reimburse Executive for (or pay
directly) the following costs and expenses relating to her relocation to the New
York metropolitan area, up to an aggregate maximum of $100,000 (the "Relocation
Cap"):
(a) Lease or rental payments incurred by Executive for
temporary housing of Executive in the New York metropolitan area during the
first six months of the Term, subject to the reasonable approval of the Chairman
of the Board;
(b) plane fare between New York and Winston, Salem, North
Carolina, for Executive and her husband until Executive has sold her residence
in Winston-Salem, North Carolina;
(c) the difference between net proceeds (if less than
$575,000) received by Executive (i.e., gross proceeds less brokers' commissions)
on the sale of her existing residence in Winston-Salem, North Carolina and
$575,000;
(d) points on a mortgage for Executive's new residence in
the New York metropolitan area;
(e) reasonable attorney's fees on the sale of Executive's
existing home and the purchase of her new home in the New York metropolitan
area;
(f) title insurance on Executive's new home in the New York
metropolitan area; and
(g) reasonable inspection fees on Executive's new home in
the New York metropolitan area.
5.5 Indemnification. Executive shall be entitled, at all times
(including after the termination of this Agreement for any reason), to the
benefit of the maximum indemnification and advancement of expenses available
from time to time under the Company's Articles of Incorporation and By-laws,
and, if not set forth therein, to the maximum extent available under the laws of
the Company's state of incorporation.
6. Key-Person Insurance Executive agrees that, the Company may at any
time and from time to time, and for the Company's own benefit, apply for and
take out term life, health, accident, and/or other insurance covering Executive
("Key-Person Insurance") in an amount to be determined in the sole discretion of
the Board in consultation with Executive. The Company shall own all rights in
any such Key-Person Insurance policies and proceeds thereof and Executive shall
not have any right, title or interest therein; except that if Executive is no
longer employed by the Company (other than as a result of her death or
Disability (as herein defined)) then the Company shall terminate such Key-Person
Insurance policies or, at the option of Executive, arrange for such Key-Person
Insurance
4
policies to be assigned to Executive; provided, however, that said policies
permit such assignment and Executive is solely responsible for the payment of
any premiums after such assignment. Executive agrees to assist the Company at
the Company's expense in obtaining any such Key-Person Insurance by, among other
things, submitting to the customary examinations and correctly preparing,
signing and delivering such applications and other documents as may be required
by insurers.
7. Termination of Employment.
7.1 Good Reason. Executive shall be entitled to terminate her
employment for "Good Reason." For purposes of this Agreement, "Good Reason"
shall mean (without Executive's express prior written consent as a shareholder,
director or otherwise) (i) failure by the Company to pay any compensation when
due hereunder, (ii) any significant reduction by the Company of Executive's
authorities, powers, functions, duties or responsibilities in managing the
Company's business or the assignment of duties to Executive by the Board of
Directors of the Company inconsistent with Executive's position (except in
connection with termination of Executive's employment for Cause, as a result of
Disability, as a result of Executive's death or by Executive other than for Good
Reason), (iii) a reduction by the Company in Executive's Base Salary or any
other compensation due hereunder, (iv) any material breach by the Company of any
other material provision of this Agreement, or (v) the relocation of the
Company's principal place of business to a location more than 50 miles from New
York City. If Executive desires to terminate her employment with the Company,
she shall first give written notice of the facts and circumstances providing
Good Reason to the Company, and shall allow the Company no less than twenty (20)
days to remedy, cure or rectify the situation giving rise to Good Reason.
7.2 Disability. If Executive shall fail during the Term, because
of illness, physical or mental disability or other incapacity, for a period of
90 days in any 365 consecutive days, to render the services provided for by this
Agreement or be adjudged an incompetent ("Disability"); provided that the date
on which the Disability will be deemed to occur shall be such 90th day or the
date on which Executive is adjudged an incompetent, as the case may be, the
Company may terminate Executive's employment on not less than two (2) weeks
written notice thereof, setting forth the facts and circumstances claimed to
provide a basis for termination of Executive's employment under this Section
7.2.
7.3 Death. Executive's employment hereunder will terminate
automatically if she should die.
7.4 Termination for Cause. The Company shall have the right to
terminate the employment of Executive with or without Cause (as hereinafter
defined). The term "Cause," as used herein, shall mean (i) Executive's willful
refusal and failure (other than during periods of illness, disability) to
perform her duties hereunder or under any lawful directive of the Board of
Directors of the Company (consistent with the terms of this Agreement), (ii)
Executive's willful misconduct or gross neglect in the performance of her duties
hereunder, (iii) the willful material breach of this Agreement by Executive,
(iv) the indictment, conviction, plea of guilty or nolo contendere of
5
Executive in respect of any felony, other than motor vehicle offenses or for any
misdemeanor constituting theft or embezzlement from the Company or, (v) other
fraudulent action against the Company. For purposes of this Section 7.4, no act,
or failure to act, on Executive's part, will be considered "willful" unless done
or omitted to be done by her not in good faith or without a reasonable belief
that her action or omission was in furtherance of the Company's business.
Termination by the Company for Cause may be effected by written notice of the
Company to Executive; provided, however, that if the Company determines to
terminate the Executive's employment pursuant to clause (i) or (iii) hereof, the
Company shall give the Executive written notice of the facts and circumstances
providing Cause and shall allow Executive no less than twenty (20) days in the
case of a proposed termination pursuant to clause (i) or (iii) above to remedy,
cure or rectify the situation giving rise to Cause.
7.5 Termination upon a Change of Control. Executive shall be
entitled to terminate her employment at any time within six (6) months following
a "Change of Control" if such Change of Control has resulted in a significant
reduction or modification by the Company of the Executive's authorities, powers,
functions, duties or responsibilities or the assignment of duties to Executive
by the Board of Directors of the Company inconsistent with Executive's position
(except in connection with termination of Executive's employment for Cause, as a
result of Disability, or as a result of Executive's death). For purposes of this
Agreement, a "Change of Control" shall mean that (i) any "person" (as such term
is defined within the meaning of Rule 13(d)(3) of the Securities Exchange Act of
1934, as amended (the "1934 Act")), other than any person who as of the date
hereof beneficially owns (as defined in Rule 13(d)(3) of the 0000 Xxx) directly
or indirectly 5% or more of the Company's outstanding Common Stock or as of the
date hereof is on, or has designated a member of, the Board of Directors of the
Company or has directly or indirectly made an investment in Danskin Investors,
LLC of at least $2,000,000, becomes a beneficial owner directly or indirectly of
securities of the Company representing in excess of fifty percent (50%) of the
Company's then outstanding securities having the right to vote for the election
of directors, or (ii) the Company shall have consummated the sale of all or
substantially all of the assets of the Company.
8. Compensation Upon Termination.
8.1 Constructive Termination; Termination by Company Without
Cause; Termination by Executive upon a Change of Control.
(a) If Executive terminates her employment pursuant to (i)
Section 7.1 or 7.5, or (ii) if Executive's employment is terminated by the
Company without Cause, or (iii) if the Company, pursuant to Section 2 hereof,
delivers written notice of its determination not to extend the Term of this
Agreement for any successive one year period and the Company does not elect to
waive Executive's compliance with Section 9.2 hereof, Executive shall be
entitled to receive Executive's Base Salary paid consistent with the Company's
payroll practices for one (1) year; and, in the case of termination described in
clauses (i) and (ii) above, Executive shall be entitled to receive a Performance
Bonus for the year of termination (to the extent the qualitative and
quantitative benchmarks are achieved for the year of termination), pro-rated for
a partial fiscal year and payable
6
at the time provided in Section 4.3. Executive also shall be entitled to
receive, during the period she is being paid Base Salary under this Agreement,
the benefits provided under Section 5.1; except to the extent that such
continued participation is not permitted under the plan, program or practice or
would cause the plan, program or practice to cease to be qualified under any
applicable law or regulation. Notwithstanding the foregoing, nothing herein
shall cause the Company to maintain Executive's status as an employee of the
Company after termination.
(b) In addition to the payments provided in Section 8.1(a)
above, upon termination by Executive of her employment under Section 7.1,
Executive shall be entitled to receive a Performance Bonus payment equal to
one-half of the Performance Bonus paid to Executive in respect of the fiscal
year prior to termination; such Performance Bonus to be paid within 120 days of
the end of the fiscal year of termination. If Executive terminates her
employment pursuant to Section 7.5, then Executive shall be paid a Performance
Bonus equal to the Performance Bonus paid to Executive in respect of the fiscal
year prior to termination; such Performance Bonus to be paid within 120 days of
the end of the fiscal year of termination. If the Company terminates Executive's
employment without Cause, then (subject to the further provisions of this
Section 8.1(b)) Executive shall be paid a Performance Bonus equal to the
Performance Bonus for the fiscal year prior to termination; such Performance
Bonus to be paid within 120 days of the end of the fiscal year of termination;
and provided, however, Executive shall not be paid any Performance Bonus
following such termination of employment without Cause if the Executive
Committee of the Board certifies to Executive that the termination of
Executive's employment was related to her performance. The determination of the
Executive Committee of the Board shall be final and binding on Executive and may
not be challenged (including, without limitation, under Section 20).
Nothwithstanding foregoing, if the Executive Committee has determined to
terminate Executive other than for Cause on account of her performance, then
Executive shall be granted an opportunity to appear before the Executive
Committee for the sole purpose of attempting to convince the Executive Committee
to reverse its reason for terminating Executive so that Executive would be
entitled to be paid a Performance Bonus under this Section 8.1(b); and not to
challenge the termination itself.
8.2 Termination by Executive other than for Good Reason;
Termination by Company for Cause. If Executive's employment is terminated by the
Company for Cause or by Executive other than pursuant to Section 7.1 or 7.5,
Executive only shall be entitled to receive Executive's Base Salary and benefits
as set forth in Section 5 to which Executive is entitled up to and including the
effective date of Executive's termination of employment hereunder. After such
termination of employment, the obligations of the Company under this Agreement
to make any further payments or to provide any benefits specified herein, to
Executive shall thereupon cease and terminate.
8.3 No Substitution. Nothing contained in Section 8.1 shall be
construed to represent a substitution for compensation already paid to or earned
by Executive. In addition, Executive shall be entitled to receive all amounts in
respect of the period prior to the date of termination otherwise payable herein
(without double counting), including such payments provided for in Sections 4
and 5.
7
9. Nondisclosure of Confidential Information; Non-Competition.
9.1 Executive shall not during the Term and thereafter, without
the prior written consent of the Company, divulge, disclose or make accessible
to any other person, firm, partnership, corporation or other entity any
Confidential Information (as herein defined) pertaining to the business of the
Company, except (i) while employed by the Company, in the business of and for
the benefit of the Company or (ii) when required to do so by a court of
competent jurisdiction, by any governmental agency having supervisory authority
over the business of the Company, or by any administrative body or legislative
body (including a committee thereof) with purported or apparent jurisdiction to
order Executive to divulge, disclose or make accessible such information. For
purposes of this Agreement, "Confidential Information" shall mean non-public
information concerning the Company's financial data, strategic business plans,
product development (or other proprietary product data), customer information,
discoveries, practices, processes, methods, marketing plans and other material
non-public, proprietary and confidential information of the Company, that, in
any case, is not otherwise generally available to the public. In the event
Executive's employment is terminated hereunder, she shall immediately return to
the Company all Confidential Information in her possession other than
information which Executive is entitled to receive in her capacity as a
shareholder of the Company. "Confidential Information" shall not include
information which becomes available to Executive on a non-confidential basis
from a source other than the Company or was available to Executive on a
non-confidential basis prior to its disclosure to Executive by the Company.
9.2 During the period of her employment with the Company (other
than on behalf of the Company) and for twelve (12) months after the date of
termination of her employment with the Company, Executive agrees that, without
the prior written consent of the Company: (i) she will not, directly or
indirectly, either as principal, manager, agent, consultant, officer,
stockholder, partner, investor, lender or employee, or in any other capacity
(and whether or not for compensation) carry on, be engaged in or employed by or
be a consultant to or have any financial interest in, any business which is in
competition with the business of the Company (as defined in Section 9.3) and
(ii) she shall not, on her own behalf or on behalf of any person or entity,
directly or indirectly, solicit or offer employment to any employee who has been
employed by the Company at any time during twelve (12) months immediately
preceding such solicitation. In the event the Company, pursuant to Section 2
hereof, delivers written notice of its determination not to extend the Term of
the Agreement for any successive one year period, the Company shall have the
right, exercisable by written notice to Executive, to waive compliance by
Executive with this Section 9.2.
9.3 For purposes of this Section 9, a person or entity which is
"in competition with the business of the Company" shall mean an entity engaged,
in any country in which the Company sells or to which the Company's products are
sold by a distributor or licensee of the Company, or in which the products of
the Company are designed or manufactured, in the business of designing,
manufacturing and marketing women's activewear apparel, dancewear and such
classifications or categories of womens ready-to-wear apparel as are marketed or
planned to be marketed during the Term by the Company as well as designing,
manufacturing and marketing legwear and hosiery in the same distribution
channels in which, or the same class of trade to which, Pennaco markets or plans
8
to market legwear and/or hosiery at any time during the Term of Executive's
employment. Nothing in this Section 9 shall be construed so as to preclude
Executive from (i) investing in any publicly held company provided Executive's
beneficial ownership of any class of such company's securities does not exceed
2% of the outstanding securities of such class, (ii) owning memberships, or
other similar rights or interests therein, of any United States or foreign
securities, commodities, options or similar exchange, board of trade, contract
market or terminal association (collectively "Exchanges") and exercising the
rights and privileges attendant to such ownership for her own personal account
or for the account of any spouse, child, parent or sibling or any trust created
for the benefit of Executive or any of the foregoing or for the account of any
entity wholly owned by Executive or any of the foregoing relatives or trusts or
(iii) trading or dealing on any Exchanges for Executive's own personal account
or for the account of any relative or any trust created for the benefit of any
relative of Executive.
9.4 Executive and the Company agree that this covenant not to
compete is a reasonable covenant under the circumstances, and further agree that
if in the opinion of any court of competent jurisdiction such restraint shall be
held to be excessively broad as to duration, geographic scope, activity or
subject, such provisions shall be construed by limiting and reducing them in
order that such provisions be enforceable to the maximum extent compatible with
applicable law. Executive agrees, solely for purposes of any attempt by the
Company to obtain an injunction for breach of any covenant contained in this
Section 9, that such breach would irreparably injure the Company. Accordingly,
Executive agrees that the Company, in addition to pursuing any other remedies it
may have in law or in equity, may obtain an injunction against Executive from
any court having jurisdiction over the matter, restraining any further violation
of this Section 9 without the necessity of posting a bond or security.
10. Mitigation of Damages. Executive shall not be required to mitigate
damages or the amount of any payment provided for under this Agreement by
seeking other employment (which may include self-employment) or otherwise, and,
after her termination of employment hereunder, any payments made by the Company
hereunder shall not be reduced by any amount Executive receives from any other
such employment.
11. Certain Provisions Applicable to Stock Award. The issuance of shares
of Common Stock to the Executive pursuant to Section 4.4 hereof will not be
registered under the Securities Act of 1933, as amended (the "Securities Act").
Such shares of Common Stock may not be transferred or sold other than pursuant
to an effective registration statement under the Securities Act or pursuant to
an exemption from the registration requirements of the Securities Act. Executive
hereby represents and warrants that she is an "accredited investor" within the
meaning of Rule 501 promulgated under Regulation D of the Securities Act and is
acquiring such shares of Common Stock for her own account investment purposes
only and not with a view to resale or distribution thereof except in compliance
with the Securities Act.
12. Notices. Any notice, request, demand or other communication required
or permitted hereunder shall be in writing and shall be deemed to have been duly
given when delivered by hand,
9
electronic transmission (with a copy following by hand or by overnight courier),
by registered or certified mail, postage prepaid, return receipt requested or by
overnight courier addressed to the other party. All notices shall be addressed
as follows, or to such other address or addresses as may be substituted by
notice in writing:
To the Company:
Danskin, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chairman of the Board
Fax No.: (000) 000-0000
with a copy to the Company's attorneys as directed
To Executive:
Xxxxxxxxx Xxxxxx
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
with a copy to:
Xxxxxxx Xxxxxx, Esq.
Xxxxxxx, Carton & Xxxxxxx
000 X. Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax No.: (000) 000-0000
Communications delivered by hand or by overnight courier shall be deemed
received on the date of delivery; communications sent by electronic means shall
be deemed received one (1) business day after the sending thereof, and
communications sent by registered or certified mail shall be deemed received
three (3) business days after the sending thereof.
10
13. Severability; Legal Fees. If any provision of this Agreement shall
be declared to be invalid or unenforceable, in whole or in part, such invalidity
or unenforceability shall not affect the remaining provisions hereof which shall
remain in full force and effect. Each party shall bear the costs of any legal
fees and other fees and expenses which may be incurred in respect of enforcing
its respective rights under this Agreement.
14. Assignment.
(a) This contract shall be binding upon and inure to the benefit
of the heirs and representatives of Executive and the assigns and successors of
the Company. Neither this Agreement nor any rights hereunder shall be assignable
or otherwise subject to hypothecation by Executive (except by will or by
operation of the laws of intestate succession) or by the Company, except that
the Company may assign this Agreement to any successor (whether by merger,
acquisition of stock, purchase or otherwise) to all or substantially all of the
assets or business of the Company, if such successor expressly agrees in writing
to assume the obligations of the Company hereunder.
15. Amendment; Waiver. This Agreement may only be amended by written
agreement signed by the parties hereto. A waiver by the Company or Executive of
a breach of any provision of this Agreement by the other party shall not operate
or be construed as a waiver of any subsequent breach by the other party.
16. Beneficiaries; References. Executive shall be entitled to select
(and change, to the extent permitted under any applicable law) a beneficiary or
beneficiaries to receive any compensation or benefit payable hereunder following
Executive's death, and may change such election, in either case by giving the
Company written notice thereof. In the event of Executive's death or a judicial
determination of her incompetence, reference in this Agreement to Executive
shall be deemed, where appropriate, to refer to her beneficiary, estate or other
legal representative. Any reference to the masculine gender in this Agreement
shall include, where appropriate, the feminine.
17. Survivorship. The respective rights and obligations of the parties
hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations. The
provisions of this Section 16 are in addition to the survivorship provisions of
any other section of this Agreement.
18. Governing Law. This Agreement shall be construed, interpreted and
governed in accordance with the laws of the State of New York, without reference
to rules relating to conflicts of law.
19. Entire Agreement. This Agreement and the Stock Option Plan and
Agreement dated as of February 2, 1998, by and between the Company and the
Executive contain the entire understanding among Executive and the Company and
supersede in all respects any prior or other agreement or understanding between
the Company and Executive as to the matters set forth herein and therein. Except
for the obligations specifically set forth herein and
11
therein, the Company does not owe any obligations to Executive and Executive
does not owe any obligations to the Company with respect to the matters set
forth herein.
20. Arbitration. Any dispute arising under, out of, in connection with,
or in relation to this Agreement, or any claimed breach hereof, shall be
determined and settled by arbitration in the City of New York under the auspices
of and pursuant to the rules then obtaining of the American Arbitration
Association; provided, however, that any such dispute shall be determined by a
panel of three (3) arbitrators selected in accordance with this Section 20. Each
of the Company and Executive shall select one member of the panel and such two
members shall select the third member of the panel. Any award rendered upon any
such arbitration shall be final and conclusive and a judgment thereon may be
entered in any court of competent jurisdiction.
21. Withholding. The Company shall withhold from any payments due to
Executive hereunder, all taxes, FICA or other amounts required to be withheld
pursuant to any applicable law.
22. Headings. The section headings contained in this Agreement are for
the convenience of reference only and shall not affect the construction of any
provision of this Agreement.
23. Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original but all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed as of the date and year first above written.
DANSKIN, INC.
By:
-----------------------------
Name:
Title:
---------------------------------
Xxxxxxxxx Xxxxxx
12
