AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement"), is made as of January
1, 2002, by and among Xxxx Xxxxxxx (the "Executive"), Donnkenny Apparel, Inc., a
Delaware corporation (the "Company"), and Donnkenny, Inc., a Delaware
corporation which is the parent corporation of the Company ("Donnkenny").
W I T N E S S E T H:
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WHEREAS, the Executive is currently employed by the Company as its
President and Chief Operating Officer under an Employment Agreement dated as of
April 14, 1997, as amended and extended, which is currently scheduled to expire
on December 31, 2002 (the "Employment Agreement"); and
WHEREAS, the Board of Directors of the Company (the "Board") expects
that the Executive will make substantial contributions to the growth and
prospects of Donnkenny, the Company and their subsidiaries; and
WHEREAS, the Board desires to obtain for the Company the continued
services of the Executive, and the Executive desires to continue to be employed
by the Company, all on the terms and subject to the conditions set forth herein;
and
WHEREAS, the parties deem it to be in their mutual best interests to
amend and restate the Employment Agreement in certain respects in recognition of
the desire of the parties to extend the term thereof and to otherwise solidify
their respective relationships on a long-term basis.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements of the parties and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the Company and the Executive
Agree as follows:
1. Employment.
a. Position. On the terms and subject to the conditions set forth
herein, the Company hereby employs the Executive as its President and Chief
Operating Officer. In addition, the Company promptly shall cause each of its
subsidiaries to designate Executive to the offices of President and Chief
Operating Officer. Donnkenny agrees that during the Employment Term, it shall
nominate the Executive for election to its Board of Directors at each annual
meeting of shareholders and use its best efforts to cause the Executive to be
duly elected to the Board at each such meeting.
b. Duties and Responsibilities. The Executive shall have such duties
and responsibilities as the Board or Chief Executive Officer determines and
shall perform such duties and carry out such responsibilities to the best of her
ability for the purpose of advancing the business of the Company and its
subsidiaries and Donnkenny. Subject to the provisions of Section 1.c. below, and
excluding any periods of vacation and sick leave to which Executive is entitled,
during the Employment Term the Executive shall devote her full business time,
skill and attention to the business of the Company and its subsidiaries and
Donnkenny, and, except as specifically approved by the Board, shall not engage
in any other business activity or have any other business affiliation. During
the Employment Term, Executive shall report directly to the Chief Executive
Officer of Donnkenny and the Company. The Executive shall not be required to
perform the principal duties of her employment outside of the New York, New York
metropolitan area without the prior written consent of the Executive, which may
be delayed or withheld by Executive in her sole discretion, it being understood
however, that Executive's position historically has required and in the future
will require considerable domestic and foreign travel.
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c. Other Activities. Notwithstanding anything else to the contrary set
forth herein, Executive shall have the right to manage her personal investments
and Executive may participate fully in social, charitable and civic activities
and serve on the boards of directors of other companies provided that such
activities do not unreasonably and materially interfere with the performance, of
and do not involve a conflict of interest with, her duties or responsibilities
hereunder, and further provided that the serving on boards of other companies
will require the prior approval of the Chief Executive Officer of Donnkenny.
2. Employment Term. Subject to the termination provisions of Section 5
hereof, the "Employment Term" hereunder shall be an ongoing and continuous
period of two (2) years, commencing on January 1, 2002, with the result that
each day subsequent to January 1, 2002 shall, without further action or notice
of any kind by any party hereto, be deemed to automatically extend the term
hereof by one day so that, at all times hereafter, the remaining term hereof
shall be deemed to be two (2) years.
3. Compensation. During the Employment Term, the Company will pay
and/or otherwise provide the Executive with compensation and related benefits as
follows:
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a. Base Salary. During the year of the Employment Term ending December
31, 2002, the Company agrees to pay the Executive, for services rendered
hereunder, a base salary at the annual rate of Six Hundred Thousand Dollars
($600,000) (the "Base Salary"). Commencing January 1, 2003 and on each January 1
thereafter during the Employment Term, the base salary which was in effect on
the immediately preceding December 31 shall be increased by the greater of (i)
the percentage increase in the Cost of Living Index (as hereafter defined); or
(ii) such higher rate as the Compensation Committee of the Board (the
"Compensation Committee") may designate in its sole and absolute discretion (the
adjusted base salary shall be deemed the effective "Base Salary" hereunder). The
Base Salary shall be payable in equal periodic installments, not less frequently
than monthly, less any sums which may be required to be deducted or withheld
under applicable provisions of law. The Base Salary for any partial year shall
be prorated based upon the number of days elapsed in such year. For purposes
hereof, the Cost of Living Index shall mean the December 2001 Revised Consumer
Price Index ("CPI") for all Urban Consumers published by the Bureau of Labor
Statistics of the United States Department of Labor, for New York City
Metropolitan Area Average, All Items. If the manner in which the CPI is
calculated shall be substantially revised, Executive and the Company shall
select a means to adjust such revised Index which would produce results
equivalent, as practicable, to those which would have been obtained if the CPI
has not been so revised. If the CPI shall become unavailable to the public
because publication is discontinued, or otherwise, Executive and the Company
shall select a comparable substitute index based upon changes in the cost of
living or purchasing power of the consumer dollar published by any other
governmental agency, or, of no such index shall then be available, a comparable
index published by a major bank or other financial institution or by a
university or a recognized financial publication. In the event that the U.S.
Department of Labor, Bureau of Labor Statistics, changes the publication
frequency of the CPI so that a CPI is not available to make an adjustment for
the period in question, the adjustment shall be based on the percentage increase
in the CPI for the twelve (12) month period beginning with the closest month
preceding the period in question for which a CPI is available.
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b. Bonus. During the Employment Term, Executive shall participate in
any bonus plan that includes senior executives of the Company on the terms
generally set forth in such plan from time to time, or in any plan substituted
therefor or in addition thereto.
c. Restricted Stock and Stock Options. In the event the Compensation
Committee of Donnkenny shall grant to the Executive any award of restricted
shares of the Common Stock of Donnkenny, or options to purchase shares of
Donnkenny Common Stock, then with respect to the options, such options shall
remain exercisable during the remainder of their respective terms except as
otherwise provided in the grant agreements respecting such options; provided,
however, that, anything herein or in the grant agreements to the contrary
notwithstanding, the vesting of such shares of restricted stock shall be
accelerated in the event of a Change in Control (as defined herein), a
termination of Executive's employment by the Company without Cause (as defined
below), a termination of Executive's employment for Good Reason (as defined
below), or a termination of Executive's employment as a result of the death or
disability of Executive. With respect to the options, such options shall be
incentive stock options to fullest extent permitted by applicable law and the
Stock Option Plan
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In the event there shall be a Change in Control, all shares of common
stock of Donnkenny previously or subsequently issued to Executive as restricted
shares or pursuant to stock options upon the vesting thereof from time to time
shall be promptly and duly registered and fully and freely tradable by Executive
without restriction at the sole cost and expense of the Company. In the event
Executive shall require a resale prospectus in connection with any intended sale
of shares, Donnkenny and the Company shall promptly furnish such resale
prospectus to Executive at the Company's expense.
d. Automobile Allowance. During the Employment Term the Company shall
lease and provide to Executive an automobile whose monthly lease payment does
not exceed $1,200. In addition, the Company shall be responsible for the payment
of (i) automobile insurance, parking in one garage, maintenance, repairs and
similar expenses, and (ii) the federal, state and local income taxes for which
Executive is liable on account of the payments or other benefits referred to in
this Section 3d above, together with an amount sufficient to satisfy any
additional federal, state or local income taxes for which Executive is liable on
account of the amounts received pursuant to this Section 3d, all of which shall
be payable within fifteen (15) days after demand therefor by Executive. In the
event the employment of Executive with the Company shall cease for any reason
other than the death or Disability (as hereinafter defined) of Executive, then
Executive shall assume, pay and perform, when due, all obligations under the
lease for the Company automobile provided to Executive hereunder for the
remaining term thereof
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e. Reimbursement of Expenses and Administrative Support. The Company
shall pay or reimburse the Executive, upon the presentation of appropriate
documentation of such expenses, for all reasonable travel and other expenses
incurred by the Executive in performing her obligations under this Agreement.
The Company further agrees to furnish the Executive with office space and
administrative support, and any other assistance and accommodations as shall be
consistent with past practices in the performance of her duties under this
Agreement.
f. Vacation. Executive shall be entitled to four (4) weeks paid
vacation in each calendar year. Any vacation for the current year to which
Executive is entitled and which has not been fully taken by Executive at the
time her employment with the Company shall terminate for any reason, shall be
fully paid to Executive within thirty (30) days after the effective date of
Executive's termination of employment.
g. Financial Planning and Tax Preparation Services. Each year during
the Employment Term, the Company shall pay or reimburse Executive for financial
planning services and tax preparation services provided to Executive in an
amount not to exceed Ten Thousand Dollars ($10,000.00), which amount shall be
payable upon submission of appropriate documentation.
h. Deductions. All payments made under this Agreement shall be subject
to such deductions at the source as from time to time may be required to be made
pursuant to any law, rule, regulation or order.
i. Change in Control. For purposes of this Agreement and subject to the
exception set forth below in this Section 3(i), a "Change in Control" of the
Company or Donnkenny shall be deemed to have occurred upon any of the following
events:
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(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
Donnkenny or the Company; or
(B) The majority of the Board, or the majority 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 any other individual(s)
who becomes 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 a majority of the directors who comprised the incumbent
directors as of the date of such election or nomination or directors elected by
such incumbent directors; provided however, that in determining whether a
director has been so elected by the incumbent directors or their successors, a
person who has been so elected by reason of having made an investment in the
Company or Donnkenny or by reason of a transaction agreement with the Company or
Donnkenny or otherwise in connection with any Change in Control transaction with
Donnkenny or the Company, shall not be deemed to have been elected by incumbent
directors or their successors; or
(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.
Anything in this Section 3(i) to the contrary notwithstanding, a Change
in Control shall not occur or be deemed to have occurred if Xxxxxx X. Xxxx is
one of the principals (or is one of the principals of a group) that acquires
control as a result of any of the transactions described in Section 3(i)A
through D above.
4. Participation in Benefit Plans. The Executive shall be entitled to
participate, during the term of this Agreement, in the Company's and Donnkenny's
benefit programs, including but not limited to qualified or non-qualified
pension plans, other qualified or nonqualified retirement 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 or Donnkenny for which key executives are or
shall become eligible (collectively, the "Benefit Plans"), on the same terms as
other key executives of the Company or Donnkenny, as the case may be, on a
Company wide basis. If participation in any of such Benefit Plans is subject to
or based on length of service, the Executive, upon execution of this Agreement,
shall be credited with the greater of (i) fourteen (14)years eight (8) months of
service, or (ii) whatever number of years or period of service shall be required
in order for Executive to immediately commence participation therein at any time
hereafter. In addition to and without limiting the generality of the foregoing,
(i) the Company may obtain and maintain a "key man" life insurance policy under
which the Company is
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the named beneficiary in such amount as is determined by the Company, and (ii)
the Executive may obtain and maintain, at the sole expense of the Company, a
life insurance policy with a death benefit of up to $2,500,000, which policy
shall be owned by the Executive or her designee and payable to Executive's
designated beneficiary, and/or may be a joint life insurance policy providing
for payment upon the last to die of Executive and Executive's spouse, in each
case from a nationally-recognized insurance carrier reasonably acceptable to the
Executive, and (iii) the Company shall use its reasonable efforts to provide, in
addition to any such insurance regularly provided to the Company's executives
and/or employees, long-term disability insurance which will pay to Executive at
least sixty percent (60%) of Executive's then current Base Salary until the
Executive reaches age 65. Upon termination of the employment of the Executive
with the Company for any reason, the Executive shall be entitled to purchase
from the Company any life insurance policy then owned by the Company on the life
of the Executive and the aforementioned disability insurance policy (if
permitted under the terms of such policy) for a purchase price equal to the cash
surrender value of each policy, if any (net of any loans or other reductions in
value chargeable upon such surrender). The Company may not borrow against any
life insurance policy owned by the Company on the life of the Executive, or
pledge or otherwise encumber said policy or the death benefit payable thereunder
without the prior written consent of Executive, which consent may be delayed or
withheld in the Executive's sole discretion. The Company shall be responsible
for the federal, state and local income taxes for which Executive is liable on
account payment by the Company of the premiums for the maintenance of the
benefits referred to in this Section4 above, together with an amount sufficient
to satisfy any additional federal, state or local income taxes for which
Executive is liable on account of the tax reimbursement amounts received
pursuant to this Section 4, all of which shall be payable within fifteen (15)
days after demand therefor by Executive.
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5. Termination of Employment.
a. By the Company For Cause. The Company may terminate the Executive's
employment under this Agreement at any time for Cause (as defined below) by
delivery of written notice of termination to the Executive (which notice shall
specify in reasonable detail the basis upon which such termination is made and
the specific provision(s) of the Agreement upon which it relies, and further
stating the date, time and place of the special meeting of the Board or the
Board of Directors of Donnkenny at which the issue of Cause shall be addressed)
at least ten days prior to the termination date set forth in such notice. No
such termination shall become effective until the Executive, after receipt of
such notice, shall have been offered the opportunity to attend a meeting of the
Board of Directors of the Company (or the Board of Directors of Donnkenny,
whichever is applicable) at which a quorum is present (with the Executive's
counsel present and participating, if desired by the Executive) regarding such
termination notice and the allegations set forth therein and, based upon such
meeting, such Board of Directors shall have elected to proceed with such
termination. Except as provided for in Section 21 below, in the event the
Executive's employment is terminated for Cause, all provisions of this Agreement
and the Employment Term shall be terminated; provided, however, that such
termination shall not divest the Executive of any previously vested benefit or
right. In addition, the Executive shall be entitled only to payment of her
earned and unpaid Base Salary to the date of termination, earned and unpaid
bonus for the prior fiscal year, additional salary payments in lieu of the
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Executive's accrued and unused vacation, unreimbursed business and entertainment
expenses in accordance with the Company's policy, and unreimbursed medical,
dental and other employee benefit expenses incurred (including any tax gross-up
payments required hereunder), and other vested and accrued benefits payable in
accordance with the Company's or Donnkenny's employee benefit plans (hereinafter
referred to as the "Standard Termination Payments"). For purposes of this
Agreement, "Cause" means (1) the conviction of the Executive for the commission
of (A) any felony, or (B) a misdemeanor involving moral turpitude, or (2)
willful misconduct or neglect of duties by the Executive that results in
material and demonstrable damage to the business or reputation of the Company,
or (3) Executive's repeated failure to follow a written Company policy
previously delivered to Executive or (4) Executives alcohol or drug abuse. 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 a resolution duly adopted by the Board or the Board
of Directors of Donnkenny, or the written advice of counsel for the Company or
Donnkenny, 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.
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b. Upon Death or Disability. If the Executive dies, all provisions of
this Agreement (other than rights or benefits arising as a result of such death)
and the Employment Term shall be automatically terminated; provided, however,
that the Standard Termination Payments and pro rata Bonus for the fiscal year
during which such death occurs shall be paid to the Executive's surviving spouse
or, if none, her estate, and the death benefits under the Company's and
Donnkenny's employee benefit plans shall be paid to the Executive's beneficiary
or beneficiaries as properly designated in writing by the Executive. If the
Executive is unable to perform her responsibilities under this Agreement by
reason of physical or mental disability or incapacity and such disability or
incapacity shall have continued for six consecutive months or any period
aggregating six months within any 12 consecutive months (a "Disability'), the
Company may terminate this Agreement and the Employment Term at any time
thereafter. In such event, the Executive shall be entitled to receive her normal
compensation hereunder during said six (6) month period, and shall thereafter be
entitled to receive the Standard Termination Payments and the pro rata Bonus for
the fiscal year during which such disability occurs. Pro rata Bonus, in the
event of the Executive's death or disability, shall be an amount equal to the
Bonus at the amount payable upon fully achieving the figure targeted in the
annual business plan or other documents relating to the Bonus approved by the
Board, the Compensation Committee or any other duly authorized designee of the
Board for such year (the "Target Amount") (regardless of the Company's actual
performance) for the fiscal year during which such death or disability occurs,
prorated by a fraction, the numerator of which is the number of days of
employment elapsed during the fiscal year prior to termination of employment and
the denominator of which is 365. 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.
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The Company shall continue to provide the Executive and the spouse and
dependents of the Executive, at the expense of the Company, with the medical
insurance then provided to Executive and to such spouse and dependents
including, without limitation, the Company's Execucare Program or any addition
thereto or substitution therefor, for a period of five (5) years following the
termination of the employment of the Executive, which medical insurance coverage
shall be included as part of any required COBRA Coverage; provided, however,
that the Company provided medical coverage and the COBRA Coverage shall
terminate with respect to the Executive, the spouse and/or dependents of the
Executive as of the date that any such individual becomes eligible to receive
coverage and benefits as a full time employee under any plans, programs and/or
arrangements of a subsequent employer. Availability for coverage as a spouse,
principal or director of a company shall not be treated as eligibility for
coverage absent full time employment. Subject to the provisions of this
Agreement, which shall control in the event of any conflicting provisions, the
rights and benefits of the Executive under the benefit plans and programs of the
Company shall be determined in accordance with the provisions of such plans and
programs. The rights and benefits of the Executive with respect to the shares of
restricted stock and options referred to in Section 3.c. above shall be
determined in accordance with the provisions of this Agreement and the plans and
grant agreements governing such shares and options. Except as otherwise
specified in this Agreement, neither the Executive nor the Company shall have
any further rights or obligations under this Agreement.
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c. By the Company Without Cause.
i. The Company may only terminate the employment of the Executive for
Cause or upon the death or Disability of the Executive. If the employment of the
Executive shall be terminated without Cause prior to a Change in Control and
other than as a result of death or Disability of the Executive, then the
Executive shall be entitled to the payments, rights and benefits set forth in
Section 5.d.v. below.
d. By the Executive.
i. The Executive may terminate her employment, and any further
obligations which Executive may have to perform services on behalf of Donnkenny
or the Company and any of its subsidiaries hereunder at any time after the date
hereof, (i) without Good Reason (as defined below) by sending written notice of
such termination to the Company not less than sixty (60) days prior to the
effective date of such termination (during such sixty (60) day period, the
Executive shall continue to perform the normal duties of her employment
hereunder and shall be entitled to receive when due all compensation and
benefits applicable to the Executive hereunder); or (ii) for Good Reason
pursuant to the procedure set forth in Section 5(d)iii below).
ii. For purposes of this Agreement, "Good Reason" shall be defined as
any of the following:
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A. failure by the Company or Donnkenny to re-elect the Executive as a
director and President, or the assignment to the Executive of any
duties or responsibilities inconsistent in any material respect with
those customarily associated with the positions to be held by the
Executive pursuant to this Agreement, or any other action by the
Company that results in a diminution in the Executive's position,
authority, duties or responsibilities, other than an isolated,
insubstantial and inadvertent action that is not taken in bad faith
and is remedied by the Company promptly after receipt of notice
thereof from the Executive;
B. any failure by the Company or Donnkenny to comply with any provision
of Section 3 of this Agreement, other than an isolated, insubstantial
and inadvertent failure that is not taken in bad faith and is remedied
by the Company or Donnkenny, as the case may be, promptly after
receipt of notice thereof from the Executive;
C. Any requirement by the Company that the Executive's services be
rendered primarily at a location or locations other than in New York
City;
D. any purported termination of the Executive's employment by the Company
or Donnkenny for a reason or in a manner not expressly permitted by
this Agreement;
E. any failure by the Company or Donnkenny to comply with Section 10 of
this Agreement;
F. any Change in Control of the Company or Donnkenny;
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G. the institution of bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings by or against the Company or Donnkenny
(which proceedings, if instituted against the Company or Donnkenny,
have been consented to by the Company or Donnkenny, as the case may
be, or have remained undismissed for a period of sixty (60) days after
the filing date thereof); or
H. any other material breach of this Agreement by the Company or
Donnkenny that either is not taken in good faith or is not remedied by
the Company or Donnkenny, as the case may be, within twenty (20)
business days after receipt of notice thereof from the Executive;
provided, however, that with respect to any breach of a payment
obligation of the Company or Donnkenny, such breach must be remedied
within five (5) business days after written notice thereof from the
Executive.
iii. A termination of employment by the Executive for Good Reason shall
be effectuated by giving the Company written notice ("Notice of Termination for
Good Reason") of the termination, setting forth in reasonable detail the
specific conduct of the Company or other event(s) that constitutes Good Reason
and the specific provision(s) of this Agreement on which the Executive relies
with such notice to be provided within 90 days of such alleged conduct or other
event. A termination of employment by the Executive for Good Reason shall be
effective on the fifth business day following the date when the Notice of
Termination for Good Reason is given, unless the notice sets forth a later date
(which date shall in no event be later than thirty (30) days after the notice is
given). Upon the occurrence of a termination of employment by the Executive for
Good Reason prior to a Change in Control, the Company shall pay to the Executive
the Standard Termination Payments and the Additional Termination Payments.
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iv. If the Executive shall elect to terminate her employment hereunder
(other than as a result of her death or disability) without Good Reason, then
the Executive shall remain vested in all vested benefits provided for hereunder
or under any benefit plan of the Company in which Executive is a participant and
shall be entitled to receive the Standard Termination payments, but the Company
shall have no further obligation to make payments or provide benefits to the
Executive.
v. Subject to the provisions of Section 0.x.xx. below, if the Company
terminates the Executive's employment, other than for Cause , death or
Disability, or the Executive terminates employment for Good Reason, the Company
shall, at the option of the Company, (i) continue to pay to the Executive the
sum of (x) the aggregate Base Salary Executive would have been entitled to
receive during the twenty-four (24) month period following such termination
(assuming, for these purposes, that Executive would have remained in the full
and continuous employment of the Company during such twenty-four (24) month
period, and that Base Salary shall not increase above the rate in effect at the
date of termination); and (y) a one time payment which is equal to the maximum
Bonus payable to Executive upon fully achieving the figure targeted in the
annual business plan or other documents relating to the Bonus approved by the
Board, the Compensation Committee or any other duly authorized designee of the
Board for the year in which
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such termination occurs (regardless of the Company's actual performance) or, in
the event no such figure shall be targeted for such year, for the most recent
year with respect to which such figure was targeted (the sum of (x) and (y) are
hereinafter collectively referred to as the "Additional Termination Payments").
when same would otherwise be due and payable in the ordinary cause of business
assuming, for these purposes, that Executive remained in the full time
continuous employment of the Company during such period; provided, however, that
the Company shall only be entitled to elect this continued payment option if, on
or before the effective termination date, the Company, at its expense, has
delivered to Executive a bank letter of credit in an amount equal to the
aggregate payments to be received by Executive, naming Executive as beneficiary
and issued by the Bank which is then providing financing for the Company or such
other bank reasonably approved by Executive (it being understood and agreed that
a letter of credit issued by the bank which is then the principal current lender
to the Company shall be deemed acceptable for purposes hereof) on terms and
conditions which are reasonably approved by Executive, or secured by such other
collateral which is not subject to the claims of the creditors of the Company as
Executive shall approve in Executive's sole discretion, the value of which shall
be 100% of the aggregate payments to be received by Executive or (ii)
contemporaneously with such termination, pay the Executive a lump sum amount
equal to the present value (using a discount rate of 3%) of the amount referred
to in 5.d.v(i) below. In the event the payment obligations hereunder shall be
secured by collateral other than a bank letter of credit, and in the event the
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fair market value of such collateral shall fall below the then remaining balance
of the amounts payable to Executive, then, within five (5) business days after
written notice thereof, the Company shall deliver to Executive such additional
or substituted collateral which, in the aggregate with any collateral to be
continually held by Executive, has a value which shall be not less than 100% of
the remaining payments to be made to Executive. In the event there shall be any
default in payment of any installment of the Additional Termination Payments
which is not cured within five (5) business days after written notice thereof,
or in the event additional or substituted collateral shall not be timely
delivered to Executive as provided for above, then the remaining unpaid balance
thereof shall be immediately due and payable without further notice and, among
other things, Executive shall have the unrestricted right to proceed against the
letter of credit or other collateral, as the case may be.
In addition to the foregoing, the Company shall also be obligated to
pay to the Executive the Standard Termination Payments as and when they shall
become due. Furthermore, the Company shall continue to provide the Executive and
the spouse and dependents of the Executive, at the expense of the Company, with
the medical insurance then provided to Executive and her spouse and dependents
including, without limitation, the Company's Execucare Program or any addition
thereto or substitution therefor, for a period of five (5) years following the
termination of the employment of the Executive, which medical insurance coverage
shall be included as part of any required COBRA Coverage; provided, however,
that the COBRA Coverage shall terminate with respect to the Executive, the
spouse and/or dependents
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of the Executive as of the date that any such individual becomes eligible to
receive coverage and benefits as a full time employee under any plans, programs
and/or arrangements of a subsequent employer. Availability for coverage as a
spouse, principal or director of a company shall not be treated as eligibility
for coverage absent full time employment. The rights and benefits of the
Executive with respect to the shares of restricted stock and options referred to
in Section 3.c. above shall be determined in accordance with the provisions of
this Agreement and the plans and grant agreements governing such shares and
options; provided, however, that in the event there shall be a conflict between
the terms of this Agreement and the terms of any such plan or grant agreement,
then the provisions of this Agreement shall govern and control. Except as
otherwise specified in this Agreement, neither the Executive nor the Company
shall have any further rights or obligations under this Agreement. Except as is
provided for in Section 0.x.xx. below, the payments and benefits provided
pursuant to this Section 5.d.v. are intended as liquidated damages for a
termination of the Executive's employment by the Company other than for Cause or
Disability or for the actions of the Company leading to a termination of the
Executive's employment by the Executive for Good Reason and shall be the sole
and exclusive remedy therefor. Executive shall have no obligation whatsoever to
mitigate any damages, costs or expenses suffered or incurred by the Company with
respect to any payments made pursuant to this Section 5.d., and no such payment
shall be subject to any cancellation, reduction, offset, rebate or repayment as
a result of any subsequent employment or other business activity by the
Executive including, without limitation, self employment., except for such
deductions at the source as from time to time may be required to be made
pursuant to any law, rule, regulation or order.
21
vi. Anything in this Agreement to the contrary notwithstanding, if,
during the Employment Term and, in connection with, upon or after the occurrence
of a Change in Control, the Executive's employment is terminated by the
Executive for any or no reason or by the Company other for Cause, death or
Disability, the Company shall pay to the Executive, by wire transfer of
immediately available funds within ten (10) days after the Termination Date, an
amount equal to the sum of (x) three times the Executive's Base Salary in effect
on the Date of Termination and (y) three times the Bonus which is included in
the determination of the Additional Termination Payments hereunder (the "Change
in Control Payment"). In addition to the foregoing, the Company shall also be
obligated to pay to the Executive the Standard Termination Payments as and when
they shall become due.
Anything in this Section 0.x.xx. to the contrary notwithstanding,
subsequent to the consummation of the Change in Control transaction and, within
thirty (30) days after Executive's termination of employment with the Company,
the Company shall have the right to elect to pay to the Executive (and to the
Executive's surviving spouse in the event of Executive's death or, if no spouse
shall then be surviving, to Executive's estate) the amount of the Change in
Control Payment in thirty-six (36) equal or substantially equal consecutive
monthly installments, commencing on the first day of the month immediately
succeeding the Termination Date and on the first
22
day of each month thereafter, without interest, provided that the Company has
first provided to Executive, and maintains in full force and effect during the
entire thirty-six (36) month period referred to above, at the Company's expense,
a bank letter of credit (with Executive as beneficiary) or other collateral
security for such payment which is not subject to the claims of the Company's
creditors and which is in an amount that is equal (in the case of the bank
letter of credit) to the unpaid balance of the Change in Control Payment or (in
the case of collateral other than the bank letter of credit) which is equal to
100% in value of the unpaid balance of the Change in Control Payment. In the
event the payment obligations hereunder shall be secured by collateral other
than a bank letter of credit, and in the event the fair market value of such
collateral shall fall below the then remaining balance of the amounts payable to
Executive, then, within five (5) business days after written notice thereof, the
Company shall deliver to Executive such additional or substituted collateral
which, in the aggregate with any collateral to be continually held by Executive,
has a value which shall be not less than 100% of the remaining payments to be
made to Executive. The election provided for above shall be effective only if
Executive receives written notice thereof within the aforesaid thirty (30) day
period. Executive will have the right to reasonably approve the financial
institution issuing any such letter of credit and the terms thereof, as well as
the form of other security or the terms of any pledge relating thereto; provided
that if the financial institution is the institution then providing financing
for the Company, said institution shall be deemed approved for purposes of this
paragraph. In the event there shall be any default in
23
payment of any installment of the Change in Control Payment which is not cured
within five (5) business days after written notice thereof, or in the event
additional or substituted collateral shall not be timely delivered to Executive
as provided for above, then the remaining unpaid balance thereof shall be
immediately due and payable without further notice and, among other things,
Executive shall have the unrestricted right to proceed against the letter of
credit or other collateral, as the case may be.
The Company shall continue to provide the Executive and the spouse and
dependents of the Executive, at the expense of the Company, with the medical
insurance then provided to Executive and her spouse and dependents including,
without limitation, the Company's Execucare Program or any addition thereto or
substitution therefor, for a period of five (5) years following the termination
of the employment of the Executive which medical insurance coverage shall be
included as part of any required COBRA Coverage; provided, however, that the
Company provided medical coverage and the COBRA Coverage shall terminate with
respect to the Executive, the spouse and/or dependents of the Executive as of
the date that any such individual becomes eligible to receive coverage and
benefits under any plans, programs and/or arrangements of a subsequent employer.
Availability for coverage as a spouse, principal or director of a company shall
not be treated as eligibility for coverage absent full time employment. Subject
to the provisions of this Agreement, which shall control in the event of any
conflicting provisions, the rights and benefits
24
of the Executive under the benefit plans and programs of the Company shall be
determined in accordance with the provisions of such plans and programs;
provided, however, that, in the event the Company shall timely elect to pay the
Change in Control Payment over a period of thirty-six (36) months, as provided
for above (or any other term of extended payment agreed upon by Executive and
the Company), then the Company shall continue to provide Executive with the
benefits to which she was entitled immediately prior to her termination of
employment until the Change in Control Payment is paid to Executive in full. The
rights and benefits of the Executive with respect to the shares of restricted
stock and options referred to in Section 3.c. above shall be determined in
accordance with the provision of this Agreement and the plans and grant
agreements governing such shares and options; provided, however, that in the
event there shall be a conflict between the terms of this Agreement and the
terms of any such plan or grant agreement, then the provisions of this Agreement
shall govern and control.. Except as otherwise specified in this Agreement,
neither the Executive nor the Company shall have any further rights or
obligations under this Agreement. The payments and benefits provided pursuant to
this Section 0.x.xx. are intended as liquidated damages for a termination of the
Executive's employment by the Company other than for Cause or Disability or for
the actions of the Company leading to a termination of the Executive's
employment by the Executive for Good Reason, in each case in connection with, on
or after the occurrence of a Change in Control, and shall be the sole and
exclusive remedy therefor. Executive shall have no obligation whatsoever to
mitigate any damages,
25
costs or expenses suffered or incurred by the Company with respect to any
payments made pursuant to this Section 0.x.xx., and no such payment shall be
subject to any cancellation, reduction, offset, rebate or repayment as a result
of any subsequent employment or other business activity by the Executive
including, without limitation, self employment, except for such deductions at
the source as from time to time may be required to be made pursuant to any law,
rule, regulation or order.
Notwithstanding the foregoing, if the aggregate value of all payments
to be received by the Executive in connection with a Change in Control would be
subject to excise tax under Internal Revenue Code Section 4999 and any successor
provision, or any comparable provision of state or local tax law, then the
payments to the Executive will be reduced to an amount sufficient to eliminate
any excise tax, but only if, after such reduction, the Executive would be placed
in a better after-tax financial position than the Executive would otherwise be
in had no reduction occurred.
e. No Waiver. The failure to set forth any fact or circumstance in a
Notice of Termination for Cause or a Notice of Termination for Good Reason shall
not constitute a waiver of the right to assert, and shall not preclude the party
giving notice from asserting, such fact or circumstance in an attempt to enforce
any right under or provision of this Agreement.
f. Date of Termination. The "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 or by the Executive for Good Reason is effective, or the date on which the
Executive gives the Company notice of a termination of employment without Good
Reason, as the case may be.
26
6. Non-Exclusivity of Rights. Nothing in this Agreement shall prevent
or limit the Executive's continuing or future participation in any plan,,
program, policy or practice provided by the Company or any of its affiliated
companies for which the Executive may qualify, nor shall anything in this
Agreement limit or otherwise affect such rights as the Executive may have under
any contract or agreement with the Company or any of its affiliated companies.
Vested benefits and other amounts that the Executive is otherwise entitled to
receive under the Restricted Stock Plan, the Stock Option Plan, or any other
plan, policy, practice or program of, or any contract of agreement (including
this Agreement) with, the Company or any of its affiliated companies on or after
the Date of Termination shall be payable in accordance with the terms of each
such plan, policy, practice, program, contract or agreement, as the case may be.
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
therefore, 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.
27
8. Confidential Information. The Executive shall hold in strict
confidence 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; provided, however, that Executive's obligations
under this Section 8 with respect to any specific Confidential Information shall
cease when that specific Confidential Information becomes public knowledge
(other than as a result of the Executive's violation of this Section 8)
("Confidential Information") or when it is disclosed by any person, firm,
corporation or business entity which is not bound by the terms of a
confidentiality agreement with the Company which contains substantially
identical provisions as the terms hereof. Except as is otherwise provided for
herein, 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 shall 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, at the Company's expense, shall use
her best efforts to limit any such disclosure to the precise terms of such
request or requirement.
28
9. Non-Competition. The Executive acknowledges that the services to
be rendered by her to the Company (which, as used in this Section 9 shall be
deemed to include the Company and each of its subsidiaries) are of a special and
unique character. In consideration of her employment hereunder, the Executive
agrees, for the benefit of the Company, that she will not, during the term of
this Agreement and (except in a case where the Executive's employment is
terminated (x) by the Company other than for Cause, (y) by the Executive for
Good Reason, or (z) by the Executive or the Company for any or no reason
following the occurrence of a Change in Control) thereafter until the expiration
of a period of twelve (12) months commencing on the date of termination of her
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) five percent (5%) 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,
within the United States of America, in any apparel business which is
competitive with the business now, or at any time during the term of this
Agreement, conducted by the Company, (b) solicit or entice to endeavor to
solicit or entice away from the Company or hire any person who was or is an
officer, employee or sales representative of the Company within the ninety (90)
day period immediately preceding Executive's termination of employment, either
for her own account or for any individual, firm or corporation, whether or not
such person would commit any breach of her contract of employment by reason of
leaving the
29
service of the Company, and the Executive agrees not to employ, directly or
indirectly, any person who was an officer, employee or sales representative of
the Company 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 the Company, or (c) solicit or entice or endeavor
to solicit or entice away from the Company any customer or prospective customer
of the Company, either for her own account or for any individual, firm or
corporation with respect to the business of the Company. In addition, the
Executive shall not, at any time during the term of this Agreement or at any
time thereafter, engage in the business which uses as its name, in whole or in
part, Donnkenny or any other trade name or trademark or corporate name used by
Donnkenny, the Company or any of their subsidiaries during the Employment Term.
10. Indemnification.
a. The Company and Donnkenny 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 10a. "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 Donnkenny,
or is or was serving as an officer, director, member, employee, trustee or agent
of any other entity at the request of the Company or Donnkenny, 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.
30
b. The Company and Donnkenny 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 or Donnkenny, as the case may be, 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. 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 or Donnkenny 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 (1) by the Board or the Board of Directors of Donnkenny, as the case may
be, by a majority vote of a quorum consisting of directors who were not parties
to such Proceeding, or (2) if such a quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (3) by the stockholders.
31
d. Neither the Company nor Donnkenny shall settle any Proceeding or
claim in any manner which would impose on the Executive any penalty or
limitation without her prior written consent. Neither the Company nor Donnkenny
nor the Executive will unreasonably withhold its or her consent to any proposed
settlement.
e. The indemnification in this Section 10 shall inure to the benefit of
the Executive's heirs, executors and administrators.
f. The Company and Donnkenny agree to use their respective best efforts
to obtain, continue and maintain an adequate directors and officers' liability
insurance policy and shall cause such policy to cover the Executive to the
extent the Company or Donnkenny provides such coverage for its other executive
officers. Upon request by Executive, the Company and Donnkenny shall furnish
Executive with written evidence that such coverage is in full force and effect.
g. Donnkenny and the Company agree to indemnify and hold Executive
harmless from all losses, costs, fees and expenses including, without
limitation, reasonable legal fees and litigation expenses, which Executive shall
suffer, sustain or incur as a result of, in connection with or arising from any
breach of this Agreement by Donnkenny or the Company.
32
11. Attorneys' Fees. The Company agrees to pay, as incurred, all legal
fees and expenses incurred by the Company and the Executive in connection with
the preparation of this Agreement. The Company further agrees to pay, if and
only if the Executive prevails in arbitration , to the fullest extent permitted
by law, all legal fees and expenses that the Executive may reasonably incur as a
result of any contest by Donnkenny, the Company, the Executive or others of the
validity or enforceability of or liability under, or otherwise involving, any
provision of this Agreement, together with interest on any delayed payment at
the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.
12. 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 or Donnkenny, as the case may be, 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 or Donnkenny expressly to assume and agree to perform this Agreement in
the same manner and to the same extent that Donnkenny or the Company would have
been required to perform it if no such succession had taken place; provided,
however, that no such assignment or transfer shall have the effect of releasing
or relieving Donnkenny or the Company of any liability or obligation to the
Executive hereunder or in any other agreement, plan or document contemplated
herein. 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 and "Donnkenny" shall mean both
Donnkenny as defined above and any such successor that assumes and agrees to
perform this Agreement by operation of law or otherwise.
33
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.
13. Notices. 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 or by
overnight mail, addressed as follows:
If to the Executive:
Xx. Xxxx Xxxxxxx
Townhouses at Lake Isle
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
34
With a copy to:
Xxxxx Xxxxxxx
Suite 1800
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
If to Donnkenny or the Company:
Donnkenny Apparel, Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
or to such other address as either party furnishes to the other in writing in
accordance with this Section 13. Notices and communications shall be effective
when actually received by the addressee.
14. Modification or Waiver. No amendment, modification, waiver,
termination or cancellation of this Agreement shall be binding or effective for
any purpose unless it is made in a writing signed by the party against whom
enforcement of such amendment, modification, waiver, termination or cancellation
is sought. No course of dealing between or among the parties to this Agreement
shall be deemed to affect or to modify, amend or discharge any provision or term
of this Agreement. No delay on the part of Donnkenny, the Company or the
Executive in the exercise of any of their respective rights or remedies shall
operate as a waiver thereof, and no single or partial exercise by Donnkenny, the
Company or the Executive of any such right or remedy shall preclude other or
further exercises thereof. A waiver of a right or remedy on any one occasion
shall not be construed as a bar to or waiver of any such right or remedy on any
other occasion.
15. Governing Law; Jurisdiction. This Agreement and all rights,
remedies and obligations hereunder, including, but not limited to, matters of
construction, validity and performance shall be governed by the laws of the
State of New York without regard to its conflict of laws principles or rules.
16. Severability. Whenever possible each provision and term of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision or term of this Agreement shall be
held to be prohibited by or invalid under such applicable law, then such
provision or term shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating or affecting in any manner whatsoever the
remainder of such provisions or term or the remaining provisions or terms of
this Agreement.
35
17. Counterparts. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same Agreement.
18. Headings. The headings of the Sections of this Agreement are
inserted for convenience only and shall not be deemed to constitute a part
hereof and shall not affect the construction or interpretation of this
Agreement.
19. Entire Agreement. This Agreement (together with all documents and
instruments referred to herein) constitutes the entire agreement and supersedes
all other prior agreements and undertakings, both written and oral, among the
parties with respect to the subject matter hereof.
36
20. Arbitration. If any controversy or dispute shall arise between the
parties hereto in connection with, arising from, or in respect to this
Agreement, any provision hereof, or any provision of any instrument, document,
agreement or other writing delivered pursuant hereto, or with respect to the
validity of this Agreement or any such document, agreement or other writing, and
if such controversy or dispute shall not be resolved within thirty (30) days
after the same shall arise, then such dispute or controversy shall be submitted
for arbitration to the New York, New York office of the American Arbitration
Association in accordance with its commercial arbitration rules then in effect.
Any such dispute or controversy shall be determined by one (1) arbitrator. Such
arbitrator may award any relief which such arbitrator shall deem proper in the
circumstances, without regard to the relief which would otherwise be available
to either party hereto in a court of law or equity, including, without
limitation, an award of money damages (including interest on unpaid amounts,
calculated from the due date of any such amount, at a rate per annum determined
by said arbitrator), specific performance and injunctive relief. The award and
findings of such arbitrator shall be conclusive and binding upon the parties
thereto, and judgment upon such award may be entered in any court of competent
jurisdiction. Any party against whom an arbitrator's award shall be issued shall
not, in any manner, oppose or defend against any suit to confirm such award, or
any enforcement proceedings brought against such party, whether within or
outside of the United States of America, with respect to any judgment entered
upon the award, and such party hereby consents to the entry of a judgment
against such party, in the full amount thereof, or other relief granted therein,
in any jurisdiction in which such enforcement is sought.
21. Survival. The respective obligations of Donnkenny and the Company
and the Executive under Sections 5 (with respect to amounts owing as a result of
any termination), 6, (with respect to amounts owing), 7, 8, 9, 10, 11, 12, 13,
20 or this Section 21 shall survive any termination of Executive's employment;
provided, however, that the Executive's obligations under Section 9
(Non-Competition) shall terminate and shall not survive in the event (i) the
Executive's employment is terminated by the Company other than for Cause or by
the Executive for Good Reason, or (ii) the Executive's employment is terminated
for any or no reason following a Change in Control.
37
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
DONNKENNY, INC., a Delaware
Corporation
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
------------------------
Title: Chairman and CEO
------------------------
DONNKENNY APPAREL, INC., a
Delaware Corporation
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
------------------------
Title: Chairman and CEO
------------------------
EXECUTIVE
/s/ Xxxx Xxxxxxx
----------------------------------
XXXX XXXXXXX
38
