Exhibit 10.4
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
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AMENDED AND RESTATED EMPLOYMENT AGREEMENT dated as of the 7th day of
June, 1999 by and between NORTON ▇▇▇▇▇▇▇▇▇▇ OF ▇▇▇▇▇▇, INC., a New York
corporation (the "Company"), and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (the "Employee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and the Employee are parties to the Employment
Agreement dated as of April 30, 1997 (the "1997 Agreement") and desire to amend
and restate the 1997 Agreement in its entirety as set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereto hereby agree as follows:
1. Employment, Term.
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1.1 The Company agrees to employ the Employee, and the Employee
agrees to serve in the employ of the Company, for the term set forth in Section
1.2, in the positions and with the responsibilities, duties and authority set
forth in Section 2 and on the other terms and conditions set forth in this
Agreement.
1.2 The term of the Employee's employment under this Agreement (the
"Term") shall commence on the date hereof and shall terminate on November 1,
2003, unless sooner terminated in accordance with this Agreement.
2. Positions, Duties. The Employee shall serve in the positions of
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Chief Executive Officer, President and Chief Operating Officer of the Company in
the New York City metropolitan area. The Employee shall perform, faithfully and
diligently, such duties, and shall have such responsibilities, appropriate to
said positions, as shall be assigned to him from time to time by the Board of
Directors of the Company. The Employee shall report to the Board of Directors
of the Company. During the Term, the Employee also agrees to serve in the New
York City metropolitan area, if elected, as an officer and/or director of any
parent, subsidiary or affiliate of the Company. The Employee shall devote his
complete and undivided attention to the performance of his duties and
responsibilities hereunder during the normal working hours of executive
employees of the Company. During the Term, the Company shall cause the Employee
to be recommended for election to the Board of Directors of ▇▇▇▇▇▇▇▇▇▇ Apparel
Group Inc., a Delaware corporation (the "Parent"). Subject to the prior consent
of the Board of Directors of the Parent, the Employee shall be permitted to sit
on the boards of directors of other corporations not involving any conflict of
interest with the Company or any member of the Company Group (as hereinafter
defined).
3. Compensation.
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3.1 Salary. During the Term, in consideration of the performance by
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the Employee of the services set forth in Section 2 and his observance of the
other covenants set forth herein, the Company shall pay the Employee, and the
Employee shall accept, a salary at a rate of $754,000 per annum, payable in
accordance with the standard payroll practices of the Company.
3.2 Bonus. During the Term, in addition to the salary provided for
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in Section 3.1, the Employee shall be eligible to participate in any bonus plan
for executives of the Company in effect during the Term.
4. Expense Reimbursement. During the Term, the Company shall
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reimburse the Employee for all reasonable and necessary out-of-pocket expenses
incurred by him in connection with the performance of his duties hereunder, upon
the presentation of proper accounts therefor in accordance with the Company's
policies (in any case, as such policies are adopted from time to time by the
Compensation Committee of the Board of Directors).
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5. Benefits.
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5.1 Benefit Plans. During the Term, the Employee will be entitled to
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participate in all employee benefit plans and programs offered by the Company
(and, to the extent required by applicable law or this Agreement, approved by
the Compensation Committee of the Board of Directors) from time to time to its
employees of comparable seniority, subject to the provisions of such plans and
programs as in effect from time to time.
5.2 Vacation. During the Term, the Employee shall be entitled to
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paid vacation in accordance with Company policy for its executive employees.
5.3 Life Insurance. During the Term, subject to the continued
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availability on commercially reasonable terms, the Company will provide the
Employee with $5 million term life insurance coverage. The beneficiary of such
policy shall be the Employee's estate or other beneficiary so designated by the
Employee.
5.4 Disability. During the Term, subject to the continued
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availability on commercially reasonable terms, the Company shall provide the
Employee with disability insurance providing the same monthly disability benefit
as in effect for the Employee immediately prior to the date hereof. The
Company's obligations under Section 6.2 of this Agreement shall be subject to
appropriate reduction for amounts paid to the Employee under disability
insurance during the Disability Salary Continuation Period (as hereinafter
defined), taking into account the tax treatment of such disability insurance
payments.
6. Termination of Employment.
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6.1 Death. In the event of the death of the Employee during the
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Term, the Company shall pay to the estate or other legal representative of the
Employee the salary provided for in Section 3.1 accrued to the date of the
Employee's death and not theretofore paid to the Employee. Rights and benefits
of the estate or other legal representative of the Employee under the benefit
plans and programs of the Company shall be determined in accordance with the
provisions of such plans and programs. Neither the estate or other legal
representative of the Employee nor the Company shall have any further rights or
obligations under this Agreement, except as provided in Section 3.4 of the 1997
Agreement.
6.2 Disability. If during the Term the Employee shall become
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incapacitated by reason of physical or mental disability and shall be unable to
perform his normal duties hereunder for a cumulative period of six (6) months in
any period of twelve (12) consecutive months, the employment of the Employee
hereunder may be terminated by the Company or the Employee upon notice to the
other. In the event of such termination, subject to Section 5.4 of this
Agreement, the Company shall continue to pay to the Employee the salary provided
for in Section 3.1 for the remainder of the Term (the period of time during
which the Company shall be required to continue to pay such salary, the
"Disability Salary Continuation Period"). Rights and benefits of the Employee
under the benefit plans and programs of the Company shall be determined in
accordance with the provisions of such plans and programs. Neither the Employee
nor the Company shall have any further rights or obligations under this
Agreement, except as provided in Section 3.4 of the 1997 Agreement and in
Sections 8, 9, 10 and 11 hereof.
6.3 Due Cause. The employment of the Employee hereunder may be
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terminated by the Company at any time during the Term for Due Cause (as
hereinafter defined). In the event of such termination, the Company shall pay
to the Employee the salary provided for in Section 3.1 accrued to the date of
such termination and not theretofore paid to the Employee. Rights and benefits
of the Employee under the benefit plans and programs of the Company shall be
determined in accordance with the provisions of such plans and programs. After
the satisfaction of any claim of the Company against the Employee incidental to
such Due Cause, neither the Employee nor the Company shall have any further
rights or obligations under this Agreement, except as provided in Section 3.4 of
the 1997 Agreement and in Sections 8, 9, 10 and 11 hereof. For purposes of this
Agreement, "Due Cause" shall mean (a) the Employee's gross negligence or willful
misconduct in bad faith in the discharge of his duties and responsibilities to
any member of the Company Group (as defined in Section 10 below), as determined
by the Board of Directors of the Company (other than the Employee if he is a
member of such at the time), (b) the Employee's material and repeated failure to
obey appropriate directions from the Board of Directors of the Company, (c) any
willful or purposeful act or omission of the Employee taken or omitted in bad
faith and intended to materially injure, and which had the effect of materially
injuring, the business or business relationships of any member of the Company
Group or (d) the Employee's conviction or other adjudication of (1) a felony or
(2) any crime or offense involving fraud; provided, however, that the Employee
shall be given written notice by a majority of the Board of Directors of the
Company that it intends to
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terminate the Employee's employment for Due Cause under this Section, which
written notice shall specify the act or acts upon the basis of which the
majority of the Board of Directors of the Company intends so to terminate the
Employee's employment, and the Employee shall then be given the opportunity,
within fifteen (15) days of his receipt of such notice, to have a meeting with
the Board of Directors of the Company to discuss such act or acts.
6.4 Other Termination by the Company. The Company may terminate the
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Employee's employment at any time during the Term for whatever reason it deems
appropriate or without reason; provided, however, that in the event that such
termination is not pursuant to Section 6.1, 6.2 or 6.3, the Company shall
continue to pay to the Employee the salary provided for in Section 3.1 for the
remainder of the Term (the period of time during which the Company shall be
required to continue to pay such salary, the "Salary Continuation Period"). In
either case, the Employee shall be required to seek subsequent employment in
good faith and upon obtaining subsequent employment shall inform the Company
that he obtained such employment and to offset any amounts earned from such
subsequent employment (whether as an employee, a consultant or otherwise)
against such salary continuation by the Company. Rights and benefits of the
Employee under the benefit plans and programs of the Company shall be determined
in accordance with the provisions of such plans and programs. Neither the
Employee nor the Company shall have any further rights or obligations under this
Agreement, except as provided in Section 3.4 of the 1997 Agreement and in
Sections 7, 8, 9, 10 and 11 hereof.
7. Consulting Agreement.
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7.1 In the event that (1) (i) the Employee shall remain in the employ
of the Company on November 1, 2003 and (ii) on or prior to November 1, 2003 the
Company shall have not offered to the Employee to extend the Term for at least
one year and otherwise on the terms and conditions set forth herein, or (2) the
Employee's employment hereunder shall have been terminated by the Company
pursuant to Section 6.4 hereof before the end of the Term, then, subject to
Section 7.4 hereof, the Company hereby agrees to retain the Employee to provide
consulting and advisory services on a project-by-project basis to the Company
(I) in the case of the circumstances set forth in clause (1) above, during the
period commencing on November 2, 2003 and terminating on November 2, 2004 or
(II) in the use of the circumstances set forth in clause (2) above, during the
one-year period following the date of a termination of employment by the Company
pursuant to Section 6.4 hereof (the applicable one-year period contemplated by
clauses (I) or (II), the "Consulting Term"). During the Consulting Term, the
Employee shall provide such consulting and advisory services to the Company as
may be agreed to between the Employee and the Board of Directors of the Company.
Unless a greater amount of time is agreed to by the Employee, the Employee shall
devote up to 15 hours per week to the mutually agreed upon consulting and
advisory services, if any, hereunder, provided that, to the extent feasible,
such services may be conducted telephonically outside of the Company's offices
and the Employee's performance of such duties and responsibilities does not
materially interfere with any obligations of the Employee to provide services to
any activity or business venture which is not in violation of Section 10 hereof.
Subject to Section 7.2 hereof, during the Consulting Term, in consideration of
the performance by the Employee of services set forth in this Section 7.1, the
Company shall pay the Employee, and the Employee shall accept, a consulting fee
(the "Fee") (payable on the 15th day of each month for the month in which the
payment occurs) in an amount per month equal to either (a) in the event that
this Agreement is not amended after the date hereof to adjust the salary set
forth in Section 3.1 hereof payable thereunder, $62,500 or (b) in the event that
this Agreement is amended by the Company and the Employee after the date hereof
to adjust the salary set forth in Section 3.1 hereof, the aggregate monthly
consideration payable to the Employee by the Company under Section 3.1 of this
Agreement as so amended.
7.2 In the event of the death of the Employee during the Consulting
Term, the Company shall continue to pay the Fee to the estate or other legal
representative of the Employee in accordance with the terms hereof, all
notwithstanding the death of the Employee. Rights and benefits of the estate or
other legal representative of the Employee under the benefit plans and programs
of the Company, if applicable to the Employee, shall be continued subject to the
provisions of such plans and programs. Except as aforesaid, in the event of the
death of the Employee during the Consulting Term, neither the estate or other
legal representative of the Employee nor the Company shall have any further
rights or obligations under this Agreement other than pursuant to Section 3.4 of
the 1997 Agreement.
7.3 The Employee shall perform his duties and responsibilities during
the Consulting Term as an independent contractor. Nothing in this Section 7
shall be deemed to create a partnership, joint venture or employment
relationship between the Employee and the Company during the Consulting Term or
thereafter. Anything to the contrary herein notwithstanding, all payments
required to be made by the Company during the Consulting Term shall be subject
to Section 20 hereof.
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7.4 Notwithstanding anything to the contrary contained herein, the
agreements and obligations of the Company set forth in this Section 7 may be
terminated at any time during the Consulting Term for Due Cause by notice from
the Company to the Employee (the "Due Cause Notice"). In the event of such
termination, the Company shall pay to the Employee the Fee, if any, accrued to
the date of termination and not theretofore paid to the Employee. Rights and
benefits of the Employee under the benefit plans and programs of the Company, if
applicable to the Employee, shall be continued subject to the provisions of such
plans and programs. After satisfaction of any claim of the Company against the
Employee arising from such Due Cause, following the date of the Due Cause
Notice, neither the Employee nor the Company shall have any rights or
obligations under this Agreement, except as provided in Section 3.4 of the 1997
Agreement and in Sections 8, 9, 10 and 11 hereof.
8. Confidential Information.
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8.1 The Employee shall, during the Term and at all times thereafter,
treat as confidential and, except as required in the performance of his duties
and responsibilities under this Agreement, not disclose, publish or otherwise
make available to the public or to any individual, firm or corporation any
confidential material (as hereinafter defined). The Employee agrees that all
confidential material, together with all notes and records of the Employee
relating thereto, and all copies or facsimiles thereof in the possession of the
Employee, are the exclusive property of the Company and the Employee agrees to
return such material to the Company promptly upon the termination of the
Employee's employment with the Company.
8.2 For the purposes hereof, the term "confidential material" shall
mean all information acquired by the Employee in the course of the Employee's
employment with the Company in any way concerning the products, projects,
activities, business or affairs of the Company or any member of the Company
Group or the customers of the Company or any member of the Company Group,
including, without limitation, all information concerning trade secrets and the
preparation of raw material for, manufacture of, and/or finishing processes
utilized in the production of, the products or projects of the Company or any
member of the Company Group and/or any improvements therein, all sales and
financial information concerning the Company or any member of the Company Group,
all customer and supplier lists, all information concerning projects in research
and development or marketing plans for any such products or projects, and all
information in any way concerning the products, projects, activities, business
or affairs of customers of the Company or any member of the Company Group which
is furnished to the Employee by the Company or any member of the Company Group
or any of their respective employees (current or former), agents or customers,
as such; provided, however, that the term "confidential material" shall not
include information which (a) becomes generally available to the public other
than as a result of a disclosure by the Employee, (b) was available to the
Employee on a non-confidential basis prior to his employment with the Company or
(c) becomes available to the Employee on a non-confidential basis from a source
other than the Company or any of its agents, franchisees, creditors, suppliers,
lessors, lessees or customers provided that such source is not bound by a
confidentiality agreement with the Company or any of such agents or customers.
9. Inventions. Any and all inventions, innovations or improvements
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("inventions") made, developed or created by the Employee (whether at the
request or suggestion of the Company or otherwise, whether alone or in
conjunction with others, and whether during regular hours of work or otherwise)
during the period of his employment with the Company which may be directly or
indirectly useful in, or relate to, the business of the Company, shall be
promptly and fully disclosed by the Employee to the Board of Directors of the
Company and shall be the Company's exclusive property as against the Employee,
and the Employee shall promptly deliver to an appropriate representative of the
Company as designated by the Board of Directors all papers, drawings, models,
data and other material relating to any inventions made, developed or created by
him as aforesaid. The Employee shall, at the request of the Company and without
any payment therefor, execute any documents necessary or advisable in the
opinion of the Company's counsel to direct issuance of patents or copyrights to
the Company with respect to such inventions as are to be the Company's exclusive
property as against the Employee or to vest in the Company title to such
inventions as against the Employee. The expense of securing any such patent or
copyright shall be borne by the Company.
10. Non-Competition. The Employee acknowledges that the services to
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be rendered by him to the Company are of a special and unique character. In
consideration of his employment hereunder, the Employee agrees, for the benefit
of the Company and members of the Company Group, that he will not, during the
period of his employment with the Company and thereafter for the Applicable
Period (as hereinafter defined) commencing on the date of termination of his
employment with the Company, (a) engage, directly or indirectly, whether as
principal, agent, distributor, representative, consultant, employee, partner,
stockholder, limited partner or other investor (other than an investment of not
more than (i) one
5
percent (1%) of the stock or equity of any corporation the capital stock of
which is publicly traded or (ii) five percent (5%) of the ownership interest of
any limited partnership or other entity) or otherwise, anywhere in the United
States, in any activity or business venture which is in competition with the
business then conducted by the Company (presently, the manufacture,
merchandising, distribution and sale of women's clothing), any of its
subsidiaries or any of its corporate parents or affiliates (including, without
limitation, ▇▇▇▇▇▇▇▇▇▇ Apparel Group Inc., Miss ▇▇▇▇▇, Inc. and ▇▇▇▇-▇▇
Knitwear, Inc., each a Delaware corporation, and ▇▇▇▇▇▇▇▇▇▇ Apparel Holdings
Inc., a South Carolina corporation) (collectively, the "Company Group"), (b)
solicit or entice or endeavor to solicit or entice away from any member of the
Company Group any person who is (at the applicable time) an officer, employee or
consultant of any member of the Company Group, either for his own account or for
any individual, firm or corporation, whether or not such person would commit any
breach of his contract of employment by reason of leaving the service of a
member of the Company Group, and the Employee agrees not to employ, directly or
indirectly, any person who was an officer or employee of any member of the
Company Group or who by reason of such position at any time is or may be likely
to be in possession of any confidential information or trade secrets relating to
the businesses or products of any member of the Company Group, or (c) solicit or
entice or endeavor to solicit or entice away from any member of the Company
Group any customer or prospective customer of any member of the Company Group,
either for his own account or for any individual, firm or corporation. As used
herein, the term "Applicable Period" shall mean, (i) in the case of termination
of employment pursuant to Section 6.4 of the Agreement, the Salary Continuation
Period (determined without regard to the Employee's duty to offset as specified
in such Section 6.4), and (ii) in the case of any other termination of
employment with the Company hereunder or otherwise, three (3) years.
11. Equitable Relief, Etc.
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11.1 In the event of a breach or threatened breach by the Employee of
any of the provisions of Sections 8, 9 or 10 of this Agreement, the Employee
hereby consents and agrees that the Company shall be entitled to an injunction
or similar equitable relief from any court of competent jurisdiction restraining
the Employee from committing or continuing any such breach or threatened breach
or granting specific performance of any act required to be performed by the
Employee under any of such provisions, without the necessity of showing any
actual damage or that money damages would not afford an adequate remedy and
without the necessity of posting any bond or other security. Nothing herein
shall be construed as prohibiting the Company from pursuing any other remedies
at law or in equity which it may have with respect to any such breach or
threatened breach.
11.2 The Company and the Employee understand and agree that in any
lawsuit or other proceeding between any of them with respect to Sections 8, 9 or
10 hereof, the prevailing party in such lawsuit or proceeding shall be entitled
to recover from the other party in such lawsuit or proceeding, and such other
party hereby agrees to pay such prevailing party, for all costs and expenses,
including attorneys' fees, incurred by such prevailing party in the defense,
prosecution or investigation of the matters which are the subject of such
lawsuit or proceeding.
12. Successors and Assigns.
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12.1 Assignment by the Company. The Company shall require any
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successors (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform if no such
succession had taken place. As used in this Section, the "Company" shall mean
the Company as hereinbefore defined and any successor to its business and/or
assets as aforesaid which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law and this Agreement shall be
binding upon, and inure to the benefit of, the Company, as so defined.
12.2 Assignment by the Employee. The Employee may not assign this
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Agreement or any part thereof without the prior written consent of a majority of
the Board of Directors of the Company (other than the Employee if he is a member
of such Board at the time); provided, however, that nothing herein shall
preclude one or more beneficiaries of the Employee from receiving any amount
that may be payable following the occurrence of his legal incompetency or his
death and shall not preclude the legal representative of his estate from
receiving such amount or from assigning any right hereunder to the person or
persons entitled thereto under his will or, in the case of intestacy, to the
person or persons entitled thereto under the laws of intestacy applicable to his
estate. The term "beneficiaries", as used in this Agreement, shall mean a
beneficiary or beneficiaries so designated to receive any such amount or, if no
beneficiary has been so designated, the legal representative of the Employee (in
the event of his incompetency) or the Employee's estate.
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13. Governing Law. This Agreement shall be deemed a contract made
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under, and for all purposes shall be construed in accordance with, the laws of
the State of New York applicable to contracts to be performed entirely within
such State.
14. Entire Agreement. This Agreement contains all the understandings
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and representations between the parties hereto pertaining to the subject matter
hereof. Except for Section 3.4 of the 1997 Agreement which shall remain in full
force and effect (it being agreed that references in Section 3.4 (d) of the 1997
Agreement to "this Agreement" shall mean and refer to this Agreement and to
"Term" shall mean and refer to the Term under this Agreement), this Agreement
supersedes (or in the case of the 1997 Agreement, amends and restates the 1997
Agreement in its entirety as set forth herein) all understandings and
agreements, whether oral or in writing, if any, previously entered into by the
Company or any other member of the Company Group with the Employee in any way
relating to the employment of the Employee by the Company or any other member of
the Company Group, all of which agreements and understandings are hereby
terminated (or in the case of the 1997 Agreement, amended and restated in its
entirety as set forth herein) and all rights and entitlements thereunder are
hereby waived and released.
15. Amendment, Modification, Waiver. No provision of this Agreement
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may be amended or modified unless such amendment or modification is agreed to in
writing and signed by the Employee and by representatives of the Company (other
than the Employee) who have been duly authorized by the Board of Directors of
the Company to do so (other than the Employee if he is a member of such Board at
the time). Except as otherwise specifically provided in this Agreement, no
waiver by either party hereto of any breach by the other party hereto of any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of a similar or dissimilar provision or condition at
the same or any prior or subsequent time, nor shall the failure of or delay by
either party hereto in exercising any right, power or privilege hereunder
operate as a waiver thereof to preclude any other or further exercise thereof or
the exercise of any other such right, power or privilege.
16. Notices. Any notice to be given hereunder shall be in writing
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and delivered personally or sent by certified mail, postage prepaid, return
receipt requested, addressed to the party concerned at the address indicated
below or at such other address as such party may subsequently designate by like
notice:
If to the Company:
c/▇ ▇▇▇▇▇▇▇▇▇▇ Apparel Group Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Compensation Committee and
Secretary
If to the Employee:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
17. Arbitration. Any controversy or claim arising out of or relating
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to this Agreement, or any breach thereof, shall, except as provided in Section
10, be settled by binding arbitration in accordance with the rules of the
American Arbitration Association then in effect and judgment upon such award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitration shall be held in New York, New York. The arbitration
award shall include an award of attorneys' fees and costs to the prevailing
party as determined by the arbitrator.
18. Severability. Should any provision of this Agreement be held by
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a court or arbitration panel of competent jurisdiction to be enforceable only if
modified, such holding shall not affect the validity of the remainder of this
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Agreement, the balance of which shall continue to be binding upon the parties
hereto with any such modification to become a part hereof and treated as though
originally set forth in this Agreement. The parties further agree that any such
court or arbitration panel is expressly authorized to modify any such
unenforceable provision of this Agreement in lieu of severing such unenforceable
provision from this Agreement in its entirety, whether by rewriting the
offending provision, deleting any or all of the offending provision, adding
additional language to this Agreement, or by making such other modifications as
it deems warranted to carry out the intent and agreement of the parties as
embodied herein to the maximum extent permitted by law. The parties expressly
agree that this Agreement as so modified by the court or arbitration panel shall
be binding upon and enforceable against each of them. In any event, should one
or more of the provisions of this Agreement be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions hereof, and if such provision or
provisions are not modified as provided above, this Agreement shall be construed
as if such invalid, illegal or unenforceable provisions had never been set forth
herein.
19. Authority. The Company represents and warrants to the Employee
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that the execution and delivery of this Agreement by the Company and the
performance by the Company of its covenants and agreements hereunder have been
duly authorized by all necessary corporate action and that this Agreement has
been duly executed and delivered on behalf of the Company.
20. Withholding. Anything to the contrary notwithstanding, all
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payments required to be made by the Company hereunder to the Employee or his
beneficiaries, including his estate, shall be subject to withholding of such
amounts relating to taxes as the Company may reasonably determine it should
withhold pursuant to any applicable law or regulation. In lieu of withholding
such amounts, in whole or in part, the Company, may, in its sole discretion,
accept other provision for payment of taxes as permitted by law, provided it is
satisfied in its sole discretion that all requirements of law affecting its
responsibilities to withhold such taxes have been satisfied.
21. Subsidiaries, etc. The Employee shall be deemed to resign as an
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officer and director of the Company and of any parent, subsidiary or affiliate
of the Company upon termination of his employment with the Company under this
Agreement or otherwise.
22. Survivorship. The respective rights and obligations of the
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Employee and the Company hereunder shall survive any termination of the Term or
of this Agreement to the extent necessary to the intended preservation of such
rights and obligations.
23. Titles. Titles of the sections of this Agreement are intended
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solely for convenience and no provision of this Agreement is to be construed by
reference to the title of any section.
24. Counterparts. This Agreement may be executed in two or more
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counterpart copies, each of which shall be deemed to be an original and all of
which taken together shall be deemed one document.
* * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
NORTON ▇▇▇▇▇▇▇▇▇▇ OF ▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Chairman of the Board
EMPLOYEE:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
For good and valuable consideration,
the receipt and sufficiency of which are
hereby acknowledged, the undersigned
hereby agrees to cause the Company to
perform, and hereby guarantees to the
Employee that the Company will
perform, all of the Company's
agreements and covenants contained
herein.
▇▇▇▇▇▇▇▇▇▇ APPAREL GROUP INC.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Chairman of the Board
