EXECUTION COPY
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into as of October __, 1997, by and between
▇▇▇▇▇▇▇ CHAUS, INC., a New York corporation (the"Company"), and ▇▇▇▇ ▇▇▇▇▇▇▇▇
(the "Executive") (hereinafter collectively referred to as "the parties").
WHEREAS, the Company desires to employ the Executive as President of
its Nautica Women's Division and the Executive is willing to be so employed by
the Company; and
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company and its shareholders
to so employ the Executive and the Executive is willing to render services on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the respective
agreements of the parties contained herein, the parties hereby agree as
follows:
1. Term. The initial term of employment under this Agreement shall be
for the period commencing on October 27, 1997 (the "Commencement Date") and
ending on the third anniversary of the Commencement Date (the "Initial Term");
provided, however, that upon the expiration of the Initial Term, this Agreement
shall be automatically extended for a period of one year and again for
successive one-year periods on each anniversary thereof, unless either the
Company or the Executive shall have given written notice to the other at least
ninety (90) days prior thereto that the term of this Agreement shall not be so
extended.
2. Employment.
(a) Position. The Executive shall be employed as the
President of the Company's Nautica Women's Division, provided, however, that if
the License Agreement (as defined below) is materially modified, terminated,
expires or is not renewed the Executive shall be employed by the Company in
such executive positions with a division of the Company of reasonably
comparable status and responsibilities as may be determined by the Board. The
Executive shall perform the duties, undertake the responsibilities and exercise
the authority customarily performed, undertaken and exercised by persons
employed in any of such executive capacities. The Executive shall report
directly to the Chairperson of the Board and the Company's Chief Executive
Officer. The "License Agreement" shall mean that certain agreement dated as of
September 6, 1995 by and between the Company and Nautica Apparel, Inc.
(b) Obligations. The Executive agrees to devote her full
business time and attention to the business and affairs of the Company. The
foregoing, however, shall not preclude the Executive from serving on corporate,
civic or charitable boards or committees or
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managing personal investments, so long as such activities do not interfere with
the performance of the Executive's responsibilities hereunder.
3. Compensation.
(a) Compensation. The Company agrees to pay or cause to be
paid to the Executive during each year of the Initial Term of this Agreement
(a) an annual base salary at the rate of four hundred thousand dollars
($400,000) (the "Base Salary") and (b) an amount equal to the greater of (i)
two percent (2%) of "Net Sales" (as hereinafter defined) in excess of $24
million (or a pro-rata portion of $24 million for the fiscal year in which
occurs the termination of the Executive's employment hereunder based on the
number of days elapsed in such fiscal year of termination) of the Company's
Nautica Women's Division for each fiscal year of the Company and (ii) one
hundred thousand dollars ($100,000) ("Net Profit Participation"). Each year of
the Initial Term, commencing with the first day of the second year of the
Initial Term, the Company shall increase the Base Salary by twenty-five
thousand dollars ($25,000). Such increase in the Base Salary shall, from and
after the effective date of the increase, constitute the "Base Salary" for
purposes of this Agreement. Base Salary shall be payable in equal installments
not less frequently than semi-monthly and otherwise in accordance with the
Company's customary practices applicable to its executives. "Net Sales" for any
fiscal year shall mean the Company's Nautica Women's Division sales at standard
after discounts, allowances and returns. If the License Agreement is
terminated, materially amended, expires or is not renewed, the Executive and
the Company shall establish a bonus arrangement for the Executive's behalf that
is substantially equivalent on an economic basis as that set forth above.
Subject to Sections 8(b)(iii) and 8(c)(iii) below, for the Company's
fiscal year ending June 30, 1998, the Net Profit Participation shall be
calculated by multiplying the Net Profit Participation otherwise calculated
based on the full fiscal year by a fraction, the numerator of which is the
number of days of such fiscal year on which the Executive was so employed and
the denominator of which is 365. The Net Profit Participation shall be paid
promptly after the determination of the amount thereof, which determination
shall be made not later than 90 days following the end of such fiscal year.
(b) Sign-on Bonus. As additional compensation for services to
be rendered, the Company shall pay to the Executive on the Commencement Date, a
sign-on bonus of one hundred and fifty thousand dollars ($150,000) (the
"Sign-on Bonus") in cash. In the event the Executive voluntarily terminates her
employment other than for Good Reason (as hereinafter defined), or breaches any
of the provisions of Section 9 below, or if the Company terminates the
Executive's employment for Cause (as hereinafter defined) in each case, prior
to the first anniversary of the Commencement Date, the Executive shall promptly
pay back to the Company in cash the Sign-on Bonus. For purposes of this
Agreement, "Good Reason" means (i) the failure to continue the Executive as
President of the Company's Nautica Women's Division or such other capacity as
contemplated by Section 2 hereof; (ii) the assignment to the Executive of any
duties materially inconsistent with the Executive's positions, duties,
authority, responsibilities
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and reporting requirements as set forth in Section 2 hereof; (iii) a reduction
in or a material delay in payment of the Executive's total cash compensation
and benefits from those required to be provided in accordance with the
provisions of this Agreement; (iv) the Company, the Board or any person
controlling the Company requires the Executive to be based outside of the New
York City metropolitan area, other than on travel reasonably required to carry
out the Executive's obligations under this Agreement or (v) the failure of the
Company to obtain the assumption in writing of its obligation to perform this
Agreement by any successor to all or substantially all of the business or
assets of the Company upon a merger, consolidation, sale or similar
transaction; provided, however, that "Good Reason" shall not include (A) acts
not taken in bad faith which are cured by the Company in all respects not later
than 30 days from the date of receipt by the Company of a written notice from
the Executive identifying in reasonable detail the act or acts constituting
"Good Reason" (a "Preliminary Notice of Good Reason") or (B) acts taken by the
Company by reason of the Executive's physical or mental infirmity which impairs
the Executive's ability to substantially perform the duties under this
Agreement. A Preliminary Notice of Good Reason shall not, by itself, constitute
a Notice of Termination.
4. Stock Options. On the 30th day following the consummation of the
Company's proposed rights offering as described in the Company's Form 10-K
dated October 14, 1997 (the "Restructuring"), the Company shall grant to the
Executive options (the "Stock Option") to acquire a number of shares of the
Company's common stock that has an aggregate fair market value on such date
equal to four hundred thousand dollars ($400,000). The Stock Option shall vest
with respect to twenty percent (20%) of the shares subject thereto on each of
the first five anniversaries of the grant date subject to continued employment,
and shall have a term of ten years. Fair market value (for purposes of the
first sentence of this Section 4) and the per share exercise price of the Stock
Option shall be equal to the average fair market value of the Company's common
stock during the 30-day period immediately following consummation of the
Restructuring (the "30 Day Average"); provided, however, that the per share
exercise price of the Stock Option shall not be less than the fair market value
of such stock on the date of grant. In the event that the per share exercise
price of the Stock Option exceeds the 30 Day Average (the "Excess"), the number
of shares subject to the Stock Option shall be increased by the quotient of (x)
the product of the number of shares subject to the Stock Option without regard
to this sentence multiplied by the Excess, divided by (y) the per share
exercise price of the Stock Option. The vesting provisions of the Stock Option
shall be governed by the terms of the stock option plan (the "Plan") to be
adopted by the Company in connection with the Restructuring; provided, however,
that the vesting terms of the Stock Option shall be no less favorable than the
vesting terms of options granted in connection with the Restructuring to any
other senior executive of the Company other than ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or which may
be granted to any such employee within the six (6) months following the
Restructuring; and provided, however, that the Stock Option shall vest upon a
"change in control" (as defined in the Plan).
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5. Executive Benefits.
(a) General. The Executive shall be entitled to participate
in all employee benefit plans, practices and programs maintained by the Company
and made available to senior executives generally and as may be in effect from
time to time. The Executive's participation in such plans, practices and
programs shall be on the same basis and terms as are applicable to senior
executives of the Company generally.
(b) Automobile. The Company shall pay the Executive $2,000
per month on a gross basis, i.e., pre-tax, subject to applicable withholding
taxes, to be used as an automobile allowance.
6. Other Benefits.
(a) Expenses. The Executive shall be entitled to receive
prompt reimbursement of all out-of-pocket expenses reasonably incurred by her
in connection with the performance of her duties hereunder, including, without
limitation, all expenses of travel and living expenses while away from home on
business or at the request of and in the service of the Company, provided the
Executive submits documentation for the reimbursement of such expenses in
accordance with the policies and procedures established by the Company for its
executives.
(b) Office and Facilities. The Executive shall be provided
with an appropriate office in the Company's New York City headquarters and with
such secretarial and other support facilities as are commensurate with the
Executive's status with the Company and adequate for the performance of her
duties hereunder.
(c) Vacation. The Executive shall be entitled to four (4)
weeks paid vacation in each full twelve month period during the Initial Term,
such vacation to be taken at such time or times as are consistent with the
requirements of the Company's business and performance of the Executive's
duties and responsibilities hereunder. Unused vacation time may be accumulated
and carried forward to a subsequent year.
7. Termination. The Executive's employment hereunder may be terminated
under the following circumstances:
(a) Disability. The Company shall be entitled to terminate
the Executive's employment after having established the Executive's Disability.
For purposes of this Agreement, "Disability" means a physical or mental
infirmity which prevents the Executive from substantially performing her duties
under this Agreement for a period of at least six (6) months in any 12 month
calendar period.
(b) Termination by the Company. The Company shall be entitled
to terminate the Executive's employment for "Cause" as hereafter provided or
without Cause. For
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purposes of this Agreement, "Cause" shall mean that the Executive (1) willfully
and continually fails to perform those duties with the Company set forth in
this Agreement (other than a failure resulting from the Executive's incapacity
due to physical or mental illness); (2) performs the duties hereunder with the
Company in a grossly negligent manner; (3) commits one or more acts of willful
misappropriation from the Company; or (4) is indicted, pleads guilty or nolo
contendere or is convicted of an act which is defined as a felony under federal
or state law.
The Executive shall be given written notice by the Board of a proposed
termination for Cause, such notice to state in detail the particular act or
acts or failure or failures to act that constitute the grounds on which the
proposed termination for Cause is based. The Executive shall be entitled to a
hearing before the Board or a committee thereof established for such purpose
and to be accompanied by legal counsel. Such hearing shall be held within 15
days of notice to the Company by the Executive, provided the Executive requests
such hearing within 30 days of the written notice from the Board of the
termination for Cause. If after such a hearing the Company determines to
terminate the Executive for Cause or the Executive does not request such a
hearing, the termination date shall be the date on which written notice was
provided to the Executive by the Board.
(c) Termination by Death. The Executive's employment shall
terminate by reason of her death.
(d) Expiration of Term. The Executive's employment shall
terminate upon expiration of the Initial Term or any extension thereof.
(e) Notice of Termination. Any purported termination by the
Company or by the Executive shall be communicated by a written Notice of
Termination to the other two weeks prior to the Termination Date (as defined
below). For purposes of this Agreement, a "Notice of Termination" shall mean a
notice which indicates the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated. For purposes of this Agreement, no
such purported termination of employment shall be effective without such Notice
of Termination.
(f) Termination Date. "Termination Date" shall mean in the
case of the Executive's death, the date of death, or in all other cases, the
date specified in the Notice of Termination; provided, however, that if the
Executive's employment is terminated by the Company due to Disability, the date
specified in the Notice of Termination shall be at least 30 days from the date
the Notice of Termination is given to the Executive.
8. Compensation Upon Termination.
(a) If during the Initial Term or any extensions thereof, the
Executive's employment is terminated by the Company for Cause or the Executive
terminates her employment (including giving notice not to extend the term of
this Agreement), the Company's
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sole obligation to the Executive shall be to pay the Executive the following
amounts earned hereunder but not paid as of the Termination Date: (i) Base
Salary, (ii) reimbursement for out-of-pocket expenses incurred in connection
with the Executive's employment for reasonable and necessary expenses incurred
by the Executive on behalf of the Company through the Termination Date, (iii)
any earned compensation which the Executive had previously deferred (including
any interest earned or credited thereon), (iv) unpaid Net Profit Participation
for fiscal years prior to the year of termination, and (v) accrued vacation pay
for the fiscal year of termination without regard to any carryover vacation
time from prior fiscal years (collectively, "Accrued Compensation"). The vested
portion of the Stock Option shall remain exercisable for a period of 90 days
from the Termination Date, and will be extinguished thereafter if not exercised
within such period, and the unvested portion of the Stock Option shall be
canceled.
(b) If the Executive's employment is terminated by the
Company other than for Cause, by reason of the Company's written notice to the
Executive of its decision not to extend the term of this Agreement or by the
Executive for Good Reason, the Company's sole obligation hereunder shall be as
follows:
the Company shall pay the Executive the Accrued
Compensation;
(ii) the Company shall continue to pay the Executive
the Base Salary for the longer of the remainder of the Initial Term or a period
of one (1) year from the Termination Date (subject to offset pursuant to
Section 8(e) below);
(iii) the Company shall pay the Executive an amount
equal to the pro-rated Net Profit Participation as calculated pursuant to
Section 3(a) of this Agreement based on the Company's performance and the
number of days elapsed in the fiscal year in which the termination occurs
through the date of termination; and
(iv) the Stock Option will immediately vest and be
exerciseable with respect to the shares subject thereto scheduled to vest
through the next two succeeding scheduled vesting dates, and the option shall
remain exercisable for 90 days after termination. The unvested portion of the
Stock Option shall be canceled.
(c) If the Executive's employment is terminated by the
Company by reason of the Executive's death or Disability, the Company's sole
obligation shall be as follows:
(i) the Company shall pay the Executive the Accrued
Compensation;
(ii) the Company shall pay the Executive the Base
Salary for a period of one (1) year from Termination Date;
(iii) the Company shall pay the Executive an amount
equal to the pro-rated Net Profit Participation as calculated pursuant to
Section 3(a) of this Agreement
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based on the Company's performance and the number of days elapsed in the fiscal
year in which the termination occurs through the date of termination; and
(iv) the Stock Option will immediately vest with
respect to the shares subject thereto scheduled to vest through the next
succeeding scheduled vesting date and the option shall remain exercisable for
one (1) year following the Termination Date. The unvested portion of the Stock
Option shall be canceled.
(d) During the period the Executive is receiving salary
continuation pursuant to Section 8 (b)(ii) or 8(c)(ii) hereof, the Company
shall, at its expense, provide to the Executive and the Executive's
beneficiaries medical and dental benefits substantially similar in the
aggregate to those provided to the Executive immediately prior to the date of
the Executive's termination of employment; provided, however, that the
Company's obligation with respect to the foregoing benefits shall be reduced to
the extent that the Executive or the Executive's beneficiaries obtain any such
benefits pursuant to a subsequent employer's benefit plans.
(e) If the Company is obligated pursuant to Section 8(b)(ii)
to continue to pay the Base Salary for a period of more than one (1) year, such
obligation shall be reduced for periods after the expiration of the one (1)
year period following termination by an amount equal to all amounts received by
the Executive in connection with any other employment (including
self-employment) with respect to periods on and after the first anniversary of
the date of termination.
9. Employee Covenants.
(a) Unauthorized Disclosure. The Executive shall not, during
her employment by the Company and thereafter, make any Unauthorized Disclosure.
For purposes of this Agreement, "Unauthorized Disclosure" shall mean disclosure
by the Executive without the prior written consent of the Board to any person,
other than an employee of the Company or a person to whom disclosure is
reasonably necessary or appropriate in connection with the performance by the
Executive of duties as an executive of the Company or as may be legally
required, of any information relating to the business or prospects of the
Company or any of its affiliates (including, but not limited to, any
confidential information with respect to any of the Company's or any of its
affiliates' customers, products, methods of distribution, strategies, business
and marketing plans and business policies and practices); provided, however,
that such term shall not include the use or disclosure by the Executive,
without consent, of any information known generally to the public (other than
as a result of disclosure by her in violation of this Section 9(a)).
(b) Non-Competition. During the Non-Competition Period, the
Executive shall not, directly or indirectly, without the prior written consent
of the Company, own, manage, operate, join, control, be employed by, consult
with or participate in the ownership, management, operation or control of, or
be connected with (as a stockholder, partner, or otherwise), any business,
individual, partner, firm, corporation, or other entity that is engaged,
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directly or indirectly, in the manufacturing of Women's Better Apparel;
provided, however, that the "beneficial ownership" by the Executive after
termination of employment with the Company, either individually or as a member
of a "group," as such terms are used in Rule 13d of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), of not more than two percent (2%) of the voting stock of any
publicly held corporation shall not be a violation of Section 9 of this
Agreement.
The "Non-Competition Period" means the period the Executive is
employed by the Company plus one (1) year thereafter unless the termination is
by the Company without Cause or by the Executive for Good Reason.
(c) Non-Solicitation. During the No-Raid Period, the
Executive shall not, either directly or indirectly, alone or in conjunction
with another party, solicit away from the employ of the Company any person who
is an employee of the Company, its subsidiaries and/or affiliates.
The "No-Raid Period" means the period the Executive is employed by the
Company plus one (1) year thereafter.
(d) Remedies. The Executive agrees that any breach of the
terms of this Section 9 would result in irreparable injury and damage to the
Company and its affiliates for which the Company and its affiliates would have
no adequate remedy at law; the Executive therefore also agrees that in the
event of said breach or any threat of breach, the Company shall be entitled to
an immediate injunction and restraining order to prevent such breach and/or
threatened breach and/or continued breach by the Executive and/or any and all
persons and/or entities acting for and/or with the Executive, without having to
prove damages, and to all costs and expenses, including reasonable attorneys'
fees and costs, in addition to any other remedies to which the Company and its
affiliates may be entitled at law or in equity. The terms of this paragraph
shall not prevent the Company and its affiliates from pursuing any other
available remedies for any breach or threatened breach hereof, including, but
not limited to, the recovery of damages from the Executive. The Executive and
the Company further agree that the covenants in this Section 9 are reasonable
and that the Company would not have entered into this Agreement but for the
inclusion of such covenants herein. Should a court determine, however, that any
provision of the covenants is unreasonable, either in period of time,
geographical area, or otherwise, the parties hereto agree that the covenant
should be interpreted and enforced to the maximum extent which such court or
arbitrator deems reasonable.
The provisions of this Section 9 shall survive any termination of
this Agreement, and the existence of any claim or cause of action by the
Executive against the Company, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Company of
the covenants and agreements of this Section 9; provided, however, that this
paragraph shall not, in and of itself, preclude the Executive from defending
herself against the enforceability of the covenants and agreements of this
Section 9.
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10. Limitation of Payments.
(a) Notwithstanding anything contained in this Agreement to
the contrary, to the extent that the payments and benefits provided under this
Agreement and benefits provided to, or for the benefit of, the Executive under
any other Company plan or agreement (such payments or benefits are collectively
referred to as the "Payments") would be subject to the excise tax (the "Excise
Tax") imposed under Section 4999 of the Internal Revenue Code of 1986, as
amended (the "Code"), the Payments shall be reduced (but not below zero) if and
to the extent necessary so that no Payment to be made or benefit to be provided
to the Executive shall be subject to the Excise Tax (such reduced amount is
hereinafter referred to as the "Limited Payment Amount"). Unless the Executive
shall have given prior written notice specifying a different order to the
Company to effectuate the foregoing, the Company shall reduce or eliminate the
Payments, by first reducing or eliminating the portion of the Payments which
are not payable in cash and then by reducing or eliminating cash payments, in
each case in reverse order beginning with payments or benefits which are to be
paid the farthest in time from the Determination (as hereinafter defined). Any
notice given by the Executive pursuant to the preceding sentence shall take
precedence over the provisions of any other plan, arrangement or agreement
governing the Executive's rights and entitlements to any benefits or
compensation.
(b) The determination of whether the Payments shall be
reduced to the Limited Payment Amount pursuant to this Agreement and the amount
of such Limited Payment Amount shall be made, at the Company's expense, by an
accounting firm selected by the Company which is one of the six largest
accounting firms in the United States (the "Accounting Firm"). The Accounting
Firm shall provide its determination (the "Determination"), together with
detailed supporting calculations and documentation, to the Company and the
Executive within ten (10) days of the date of termination of the Executive, if
applicable, or such other time as requested by the Company or by the Executive
(provided the Executive reasonably believes that any of the Payments may be
subject to the Excise Tax).
11. Successors and Assigns.
(a) This Agreement shall be binding upon and shall inure to
the benefit of the Company, its successors and assigns and the Company shall
require any successor or assign to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession or assignment had taken place. The
term "the Company" as used herein shall include any such successors and assigns
to the Company's business and/or assets. The term "successors and assigns" as
used herein shall mean a corporation or other entity acquiring or otherwise
succeeding to, directly or indirectly, all or substantially all the assets and
business of the Company (including this Agreement) whether by operation of law
or otherwise.
(b) Neither this Agreement nor any right or interest
hereunder shall be assignable or transferable by the Executive, the Executive's
beneficiaries or legal representatives,
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except by will or by the laws of descent and distribution. This Agreement shall
inure to the benefit of and be enforceable by the Executive's legal personal
representative.
12. Arbitration. Except with respect to the remedies set forth in
Section 9(d) hereof, if in the event of any controversy or claim between the
Company or any of its affiliates and the Executive arising out of or relating
to this Agreement, either party delivers to the other party a written demand
for arbitration of a controversy or claim then such claim or controversy shall
be submitted to binding arbitration. The binding arbitration shall be
administered by the American Arbitration Association under its Commercial
Arbitration Rules. The arbitration shall take place in New York, New York. Each
of the Company and the Executive shall appoint one person to act as an
arbitrator, and a third arbitrator shall be chosen by the first two arbitrators
(such three arbitrators, the "Panel"). The Panel shall have no authority to
award punitive damages against the Company or the Executive. The Panel shall
have no authority to add to, alter, amend or refuse to enforce any portion of
the disputed agreements. The Company and the Executive each waive any right to
a jury trial or to petition for stay in any action or proceeding of any kind
arising out of or relating to this Agreement. In connection with an award or a
judgment by an arbitrator, judge or similar person with respect to any disputed
issue arising under this Agreement, the prevailing party on such issue shall
receive reasonable attorneys' fees from the other party reasonably attributable
to such issue.
13. Fees and Expenses. The Company shall pay the legal fees reasonably
incurred by the Executive in connection with the negotiation and execution of
this Agreement, payable upon submission of the billing statement or paid
receipt for such services rendered by the Executive's counsel.
14. Notice. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement (including the Notice of
Termination) shall be in writing and shall be deemed to have been duly given
when personally delivered or three (3) days after mailing if sent by registered
or certified mail, return receipt requested, postage prepaid, or upon receipt
if overnight delivery service or facsimile is used, addressed as follows:
To the Executive: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
With a Copy to: ▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
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To the Company: ▇▇▇▇▇▇▇ Chaus, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chairperson of the Board
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
With a Copy to: Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
15. Settlement of Claims. Except as set forth in Section 8(e) above,
the Company's obligation to make the payments provided for in this Agreement
and otherwise to perform its obligations hereunder shall not be affected by any
circumstances, including, without limitation, any set-off, counterclaim,
recoupment, defense or other right which the Company may have against the
Executive or others.
16. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by the Executive and the Company. No waiver by either
party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time. No
agreement or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not expressly set forth in this Agreement.
17. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of New York without
giving effect to the conflict of law principles thereof.
18. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
19. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements, if any, understandings and arrangements, oral
or written, between the parties hereto with respect to the subject matter
hereof.
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20. Representations. The Executive represents and warrants to the
Company that no agreement, other commitment or law limits in any way the
Executive's ability to negotiate, enter into or fully perform her obligations
under this Agreement. The Executive shall indemnify and hold harmless the
Company and its affiliates from any breach of such representation and warranty.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer and the Executive has executed this
Agreement as of the day and year first above written.
▇▇▇▇▇▇▇ CHAUS, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive Officer
Date: October 28, 1997
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇
Date: October 23, 1997
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