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EXHIBIT 10.16
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") made
effective as of the 10th day of November, 1998, by and between ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Corporation, a Delaware corporation (the "Corporation"), and F. ▇▇▇▇▇ ▇▇▇▇▇ (the
"Executive").
WHEREAS, the Executive is currently employed by the Corporation
pursuant to an employment agreement dated as of April 2, 1995, (the "Prior
Agreement");
WHEREAS, the Executive has been elected to be the Corporation's
President by the Board of Directors (the "Board");
WHEREAS, the Corporation and the Executive wish to amend and restate
the Prior Agreement as evidenced by this Agreement effective as of the date
hereof in order to provide for the modification of certain provisions of the
Prior Agreement relating to the Executive's annual and incentive compensation,
equity opportunities and restrictive covenants;
NOW, THEREFORE, intending to be bound the parties hereby agree as
follows with effect from the date first above written.
1. Employment/Prior Agreement. The Corporation hereby agrees to employ
the Executive, and the Executive hereby agrees to serve the Corporation, on the
terms and conditions set forth herein. From and after the date hereof, the terms
of this Agreement shall supersede in all respects the terms of the Prior
Agreement which shall cease to be of any further force and effect.
2. Term. The employment of the Executive by the Corporation as provided
in Section 1 pursuant to this Agreement will be effective on the date hereof.
The Executive will serve at the direction and pleasure of the Board. The term of
the Executive's employment under this Employment Agreement shall continue until
the close of business of the fifth anniversary of the date of this Agreement,
subject to earlier termination in accordance with the terms of this Agreement
(the "Term"). The Term shall be automatically extended for successive one year
periods thereafter unless either party notifies the other in writing of its
intention not to so extend the Term at least twelve (12) months prior to the
commencement of the next scheduled one year extension.
3. Position and Duties. The Executive shall serve as President of the
Corporation and shall have such responsibilities, duties and authority as he may
have as of the date hereof (or which arise from any comparable position as a key
executive officer to which he may be
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appointed after the date hereof) and as may from time to time be assigned to the
Executive by the Board that are consistent with such responsibilities, duties
and authority. The Executive shall devote substantially all his working time and
efforts to the business and affairs of the Corporation.
4. Compensation and Related Matters.
(a) Salary and Incentive Bonus
(i) Salary. From and after the date of this Agreement
the Corporation shall pay to the Executive an annual salary of
not less than $900,000. Such salary shall be paid in
substantially equal installments on a basis consistent with
the Corporation's payroll practices and shall be subject to
such increases, if any, as may be determined in the sole
discretion of the Board.
(ii) Incentive Bonus. Executive shall participate in
the Corporation's Executive Incentive Plan (the "EIP") and be
eligible to earn an annual cash bonus for each fiscal year
during the term of this Agreement (the "Bonus"). For fiscal
year 1999, Executive's Bonus opportunity shall be based on his
actual salary earnings for the year but otherwise shall be
unchanged and calculated as if Executive had remained Group
President and COO of the Corporation's men's division for the
full fiscal year. Beginning for fiscal year 2000 and for each
fiscal year thereafter Executive's Bonus opportunity shall
range from 115% to 230% of Executive's annual salary based
upon the extent to which corporate performance goals
established by the Compensation Committee (the "Compensation
Committee") of the Board are achieved. The Bonus, if any,
payable to the Executive in respect of each fiscal year will
be paid at the same time that bonuses are paid to other
executives under the EIP. Notwithstanding any provision of
this Agreement to the contrary, the Executive's entitlement to
payment of an annual incentive bonus during any period when
the compensation payable to the Executive pursuant to this
Agreement is subject to the deduction limitations of section
162(m) of the Internal Revenue Code of 1986, as amended (the
"Code"), shall be subject to shareholder approval of a plan or
arrangement evidencing such annual incentive bonus opportunity
that complies with the requirements of section 162(m) of the
Code.
(b) Expenses. During the term of the Executive"s employment
hereunder, the Executive shall be entitled to receive prompt
reimbursement for all reasonable and customary expenses incurred by the
Executive in performing services hereunder, including all expenses of
travel and living expenses while away from home on business or at the
request of and in the service of the Corporation, provided that such
expenses are
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incurred and accounted for in accordance with the policies and
procedures established by the Corporation.
(c) Other Benefits. During the term of the Executive's
employment hereunder, the Executive shall be entitled to participate in
or receive benefits under any medical, pension, profit sharing or other
employee benefit plan or arrangement generally made available by the
Corporation now or in the future to its executives and key management
employees (or to their family members), subject to and on a basis
consistent with the terms, conditions and overall administration of
such plans and arrangements. Nothing paid to the Executive under any
plan or arrangement presently in effect or made available in the future
shall be deemed to be in lieu of the salary payable to the Executive
pursuant to paragraph (a) of this Section.
(d) Vacations. The Executive shall be entitled to reasonable
vacations consistent with past practice.
(e) Restricted Stock. Executive shall be granted a number of
restricted shares of the Corporation's Class A Common Stock with a fair
market value equal to $2 million as of the date hereof, based upon the
mean between the high and low sales price per share for such stock on
this date as reported on the Composite tape for securities traded on
the New York Stock Exchange; provided that any fractional share will be
paid to the Executive in cash. The restricted shares will vest with
respect to one third (1/3) of the aggregate number of restricted shares
so granted on each of the third, fourth and fifth anniversaries of the
date of this Agreement subject to the Executive's continued employment
through each vesting date.
(f) Options. With respect to fiscal years 2000 and 2001,
Executive shall be granted options to purchase at least 100,000 shares
of the Corporation's Class A Common Stock pursuant to the terms of the
Corporation's 1997 Long-Term Stock Incentive Plan. Options granted to
the Executive pursuant to the foregoing will vest and become
exercisable ratably over three (3) years on each of the first three
anniversaries of the date of grant, subject to the Executive's
continued employment through each vesting date, and will have an
exercise price equal to the fair market value per shares as of the date
of grant.
5. Termination.
(a) Termination by Corporation. The Executive's employment
hereunder may be terminated by the Board at any time with or without
Cause.
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(b) Termination by The Executive. The Executive may terminate
his employment hereunder with or without Good Reason. For purposes of
this Agreement, "Good Reason" shall mean (A) a material diminution in
the Executive's duties or the assignment to the Executive of a title or
duties inconsistent with his position as President of the Corporation,
(B) a reduction in the Executive's salary or annual incentive bonus
opportunity, (C) a failure of the Corporation to comply with any
material provision of this Agreement or (D) the Executive's ceasing to
be entitled to the payment of an annual incentive bonus as a result of
the failure of the Corporation's shareholders to approve a plan or
arrangement evidencing such annual incentive bonus in a manner that
complies with the requirements of section 162(m) of the Internal
Revenue Code of 1986; provided that the events described in clauses
(A), (B) and (C) above shall not constitute Good Reason unless and
until such diminution, reduction or failure (as applicable) has not
been cured within thirty (30) days after notice of such noncompliance
has been given by the Executive to the Corporation.
(c) Any termination of the Executive's employment by the
Corporation or by the Executive (other than termination pursuant to
Section 6(d)(i) hereof) shall be communicated by written Notice of
Termination to the other party hereto in accordance with Section 10
hereof. If termination is pursuant to Sections 6(d)(ii)-(iii) or 5(b)
hereof, the "Notice of Termination" shall mean a notice which shall
indicate 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.
6. Compensation Upon Termination.
(a) If the Corporation shall terminate the Executive's
employment for any reason other than an Enumerated Reason as set forth
in Section 6(d) hereof and other than due to the Corporation's election
not to extend the Term of this Agreement as contemplated by Section 2,
or if the Executive resigns for Good Reason pursuant to Section 5(b)
hereof, then so long as the Executive complies with Section 8 hereof
the Executive shall be entitled to the following:
(i) an amount equal to the greater of:
(A) the sum of (I) three (3) times the
Executive's salary at the rate in effect on such date
(unless employment is terminated by the Executive for
Good Reason pursuant to Section 5(b) hereof as a
result of a salary reduction, in which case, at the
rate in effect prior to such reduction), plus (II)
two (2) times the average annual incentive bonus paid
to the Executive over the preceding two years; plus a
pro rata annual incentive bonus for
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the year of termination (based on the average annual
incentive bonus paid to the Executive over the
preceding two years and based upon the percentage of
the calendar year in which such termination occurs
that shall have elapsed through the date of
termination (a "Pro Rata Annual Incentive Bonus"));
and
(B) the sum of (i) five (5) minus the
number of years (including fractions thereof) that
shall have elapsed from the date of this Agreement
times the Executive's salary at the rate in effect on
such date (unless employment is terminated by the
Executive for Good Reason pursuant to Section 5(b)
hereof as a result of a salary reduction, in which
case, at the rate in effect prior to such reduction),
plus (ii) two (2) times the average annual incentive
bonus paid to the Executive over the preceding two
(2) years; plus a Pro Rata Annual Incentive Bonus for
the year of termination.
Any amounts paid pursuant to either clause (A) or clause (B) above
shall be paid in equal monthly installments for a period of thirty-six (36)
months (the "Severance Period") from the date of termination, except that the
Pro Rata Annual Incentive Bonus shall be paid in a lump sum in cash within
thirty (30) days following the date of the Executive's termination of
employment.
(ii) Continued participation in the Corporation's
health benefit plans during the Severance Period; provided
that if the Executive is provided with similar coverage by a
successor employer, any such coverage by the Corporation shall
cease;
(iii) Continued use of the Corporation automobile
until the then existing auto lease term expires;
(iv) Waiver of collateral interest securing return to
the Corporation of premiums paid by the Corporation for the
Executive's existing split dollar life insurance policy;
(v) Any unvested restricted shares granted to the
Executive pursuant to Section 4(e) will continue to vest on
their scheduled vesting dates, subject to and conditioned upon
the Executive's compliance with Section 8 hereof;
(vi) Any unvested options granted to the Executive
pursuant to Section 4(f) will continue to vest on their
scheduled vesting dates, subject to and conditioned upon the
Executive's compliance with Section 8 hereof and subject to
and conditioned upon the Executive's compliance with Section
8, any vested options granted to the Executive pursuant to
Section 4(f) (including any options
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that continue to vest as described above) will remain
exercisable until the latest to occur of (x) five (5) years
from the date of this Agreement, (y) one (1) year from the
date the Executive's termination of employment and (z) thirty
(30) days from the date the option becomes vested and
exercisable;
(vii) If a Change of Control shall have occurred
prior to the date of termination the Executive shall be
entitled at his option, exercisable in writing within fifteen
days of the date of termination, to receive the salary and
bonus payments pursuant to subsection (i) above in an
equivalent amount in two equal lump sum installments, the
first payable within 30 days of the date of termination and
the second on the first anniversary of the date of
termination. Executive's right to receive the other benefits
provided for in this Section 6(a) shall otherwise be
unaffected. As used herein, the term "Change of Control" shall
mean ▇▇▇▇▇ ▇▇▇▇▇▇ or members of his family (or trusts or
entities created for their benefit) no longer control 50% or
more of the voting power of the then outstanding securities of
the Corporation entitled to vote for the election of the
Corporation's directors; and
(viii) Except as provided above, the Corporation will
have no further obligations to the Executive under this
Agreement following the Executive's termination of employment
under the circumstances described in this Section 6(a).
(b) If the Executive's employment is terminated by his death
or by the Corporation due to the Executive's Disability (as defined
below):
(i) The Corporation shall pay any amounts due to the
Executive through the date of his death or the date of his
termination due to Disability, including a Pro Rata Annual
Incentive Bonus for the year of termination;
(ii) Any unvested restricted shares granted to the
Executive pursuant to Section 4(e) shall vest immediately;
(iii) Any unvested options granted to the Executive
pursuant to Section 4(f) will vest and all such options held
by the Executive, or his estate, will remain exercisable for
three (3) years from the date of the Executive's death or
termination due to disability; and
(iv) Except as provided above, the Corporation will
have no further obligations to the Executive under this
Agreement following the Executive's termination of employment
under the circumstances described in this Section 6(b).
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(c) If the Executive's employment shall be terminated by the
Corporation pursuant to section 6(d)(iii) for Cause or by the
Executive for other than Good Reason (including due to the Executive's
election not to extend the Term as contemplated by Section 2), the
Corporation shall pay the Executive his full salary through the date of
termination at the rate in effect prior to such termination and the
Corporation shall have no further obligations to the Executive under
this Agreement but the Executive shall be bound by Section 8 hereof.
Following any such termination, any then unvested restricted shares
granted to the Executive pursuant to Section 4(e) shall be forfeited
and any options granted to the Executive pursuant to Section 4(f) that
have not theretofore been exercised shall cease to be exercisable and
shall terminate as of the date of such termination of employment.
(d) The term "Enumerated Reason" with respect to termination
by the Corporation of the Executive's employment shall mean any one of
the following reasons:
(i) Death. The Executive's employment hereunder shall
terminate upon his death.
(ii) Disability. If, as a result of the Executive's
incapacity due to physical or mental illness, the Executive
shall have been absent from his duties hereunder on a
full-time basis for the entire period of six consecutive
months, and within thirty (30) days after written Notice of
Termination is given (which may occur before or after the end
of such six month period) shall not have returned to the
performance of his duties hereunder on a full-time basis (a
"Disability"), the Corporation may terminate the Executive's
employment hereunder.
(iii) Cause. The Corporation shall have "Cause" to
terminate the Executive's employment hereunder upon (1) the
willful and continued failure by the Executive to
substantially perform his duties hereunder after demand for
substantial performance is delivered by the Corporation that
specifically identifies the manner in which the Corporation
believes the Executive has not substantially performed his
duties, or (2) Executive's conviction of, or plea of nolo
contendere to, a crime (whether or not involving the
Corporation) constituting any felony or (3) the willful
engaging by the Executive in gross misconduct relating to the
Executive's employment that is materially injurious to the
Corporation, monetarily or otherwise (including, but not
limited to, conduct that constitutes competitive activity, in
violation of Section 8) or which subjects, or if generally
known, would subject the Corporation to public ridicule or
embarrassment. For purposes of this paragraph, no act, or
failure to act, on the Executive's part shall be considered
"willful" unless done, or omitted to be done, by him not in
good
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faith and without reasonable belief that his action or
omission was in the best interest of the Corporation.
Notwithstanding the foregoing, the Executive shall not be
deemed to have been terminated for Cause without (x)
reasonable written notice to the Executive setting forth the
reasons for the Corporation's intention to terminate for
Cause, (y) an opportunity for the Executive, together with his
counsel, to be heard before the Board, and (z) delivery to the
Executive of a Notice of Termination, as defined in Section
5(c) hereof, from the Board finding that in the good faith
opinion of the Board the Executive was guilty of conduct set
forth above in clauses (A) through (C) hereof, and specifying
the particulars thereof in detail.
(e) If the Executive's employment with the Corporation shall
terminate due to the Corporation's election not to extend the Term of
this Agreement as contemplated by Section 2:
(i) The Executive shall be entitled to receive an
amount, payable in equal monthly installments over a one year
period, equal to the sum of (x) his annual salary, plus (y)
his average annual incentive bonus paid over the preceding two
years;
(ii) Any unvested restricted shares granted to the
Executive pursuant to Section 4(e) will continue to vest on
their scheduled vesting dates, subject to and conditioned upon
the Executive's compliance with Section 8 hereof;
(iii) Any unvested options granted to the Executive
pursuant to Section 4(f) will continue to vest on their
scheduled vesting dates, subject to and conditioned upon the
Executive's compliance with Section 8 hereof and subject to
and conditioned upon the Executive's compliance with Section
8, any vested options granted to the Executive pursuant to
Section 4(f) (including any options that continue to vest as
described above) will remain exercisable until the latest to
occur of (x) five (5) years from the date of this Agreement,
(y) one (1) year from the date the Executive's termination of
employment and (z) thirty (30) days from the date the option
becomes vested and exercisable; and
(iv) Except as provided above, the Corporation shall
have no further obligations to the Executive under this
Agreement following the Executive's termination of employment
under the circumstances described in this Section 6(e).
7. Mitigation. The Executive shall have no duty to mitigate the
payments provided for in Sections 6(a) or 6(e) by seeking other employment or
otherwise and such payment shall not be subject to reduction for any
compensation received by the Executive from employment in any
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capacity following the termination of the Executive's employment with the
Corporation.
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8. Noncompetition.
(a) The Executive agrees that for the duration of his
employment and for a period three (3) years from the date of
termination thereof, he will not, on his own behalf or on behalf of any
other person or entity, hire, solicit, or encourage to leave the employ
of the Corporation or its subsidiaries, affiliates or licensees any
person who is an employee of any of such companies.
(b) The Executive agrees that for the duration of his
employment and for a period of three (3) years from the date of
termination thereof, the Executive will take no action which is
intended, or would reasonably be expected, to harm (e.g. making public
derogatory statements or misusing confidential Corporation information,
it being acknowledged that the Executive's employment with a competitor
in and of itself shall not be deemed to be harmful to the Corporation
for purposes of this Section 8(b)) the Corporation or any of its
subsidiaries, affiliates or licensees or their reputation.
(c) The Executive agrees that during the duration of his
employment and;
(i) in the event of the Executive's termination of
employment due to the Executive's resignation without Good
Reason, until the later of (x) five (5) years from the date of
this Agreement and (y) two (2) years from the date of such
termination of employment; and
(ii) in the event of the Executive's termination of
employment by the Corporation without Cause or the Executive's
resignation for Good Reason pursuant to Section 5(b), for two
(2) years from the date of such termination of employment; and
(iii) in the event of the Executive's termination of
employment by the Corporation for Cause, at the election of
the Corporation in consideration for the payment to the
Executive of an amount equal to the Executive's salary and
annual incentive bonus (equal to the average annual incentive
bonus paid to the Executive over the preceding two years) for
each year within such period, for a period of up to two (2)
years from the date of such termination of employment,
then, during the period specified in clause (i), (ii) or (iii) above, as
applicable, the Executive shall not, directly or indirectly, (A) engage in any
"Competitive Business" (as defined below) for his own account, (B) enter into
the employ of, or render any services to, any person engaged in a Competitive
Business, or (C) become interested in any entity engaged in a Competitive
Business, directly or indirectly as an individual, partner, shareholder,
officer, director, principal, agent,
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employee, trustee, consultant, or in any other relationship or capacity;
provided that the Executive may own, solely as an investment, securities of any
entity which are traded on a national securities exchange if the Executive is
not a controlling person of, or a member of a group that controls such entity
and does not, directly or indirectly, own 2% or more of any class of securities
of such entity.
For purposes of this Agreement the term "Competitive Business" shall
mean any of the brands and companies that the Corporation and the Executive may
agree to and acknowledge in writing from time to time based upon a good faith
determination that such brands or companies compete with the Corporation or its
subsidiaries, affiliates or licensees.
The provisions of this Section 8(c) shall not apply if Executive elects
to terminate his employment with the Corporation other than for Good Reason
following the appointment of a person other than ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or
Executive to the position of chief executive officer of the Corporation,
provided (i) Executive has remained in his position for a period of nine months
following any such appointment, (ii) Executive has given the Corporation no less
than 90 day's prior written notice of such termination referring to the
provisions of this Section and (iii) no more than 18 months shall have elapsed
from the date of any such appointment prior to the giving of notice of
termination hereunder by Executive.
(d) The Executive will not at any time (whether during or
after his employment with the Corporation) disclose or use for his own
benefit or purposes or the benefit or purposes of any other person,
entity or enterprise, other than the Corporation or any of its
subsidiaries or affiliates, any trade secrets, information, data, or
other confidential information relating to customers, development
programs, costs, marketing, trading, investment, sales activities,
promotion, credit and financial data, manufacturing processes,
financing methods, plans or the business and affairs of the Corporation
generally, or any subsidiary, affiliate or licensee of the Corporation;
provided that the foregoing shall not apply to information which is not
unique to the Corporation or which is generally known to the industry
or the public other than as a result of the Executive's breach of this
covenant. The Executive agrees that upon termination of his employment
with the Corporation for any reason, he will return to the Corporation
immediately all memoranda, books, papers, plans, information, letters
and other data, and all copies thereof or therefrom, in any way
relating to the business of the Corporation or its subsidiaries or
affiliates or licensees.
(e) If the Executive breaches, or threatens to commit a breach
of, any of the provisions of this Section 8 (the "Restrictive
Covenants"), the Corporation shall have the following rights and
remedies, each of which rights and remedies shall be independent of the
other and severally enforceable, and all of which rights and remedies
shall be in
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addition to, and not in lieu of, any other rights and remedies
available to the Corporation under law or equity:
(i) The right and remedy to have the Restrictive
Covenants specifically enforced by any court having equity
jurisdiction, it being acknowledged and agreed that any such
breach or threatened breach will cause irreparable injury to
the Corporation and that money damages will not provide an
adequate remedy to the Corporation;
(ii) The right and remedy to require the Executive to
account for and pay over to the Corporation all compensation,
profits, monies, accruals, increments or other benefits
(collectively, "Benefits") derived or received by the
Executive as the result of any transactions constituting a
breach of any of the Restrictive Covenants, and the Executive
shall account for and pay over such Benefits to the
Corporation; and
(iii) The right to discontinue the payment of any
amounts owing to the Executive under the Agreement.
(f) If any court determines that any of the Restrictive
Covenants, or any part thereof, is invalid or unenforceable, the
remainder of the Restrictive Covenants shall not thereby be affected
and shall be given full effect, without regard to the invalid portion.
In addition, if any court construes any of the Restrictive Covenants,
or any part thereof, to be unenforceable because of the duration of
such provision or the area covered thereby, such court shall have the
power to reduce the duration or area of such provision and, in its
reduced form, such provision shall then be enforceable and shall be
enforced.
9. Successors; Binding Agreement.
(a) The Corporation will 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 Corporation to
expressly assume and agree to perform this Agreement in the same manner
and to the same extent that the Corporation would be required to
perform it if no such succession had taken place. As used in this
Agreement, "Corporation" shall mean the Corporation as hereinbefore
defined and any successor to its business and/or assets as aforesaid
which executes and delivers the agreement provided for in this Section
9 or which otherwise becomes bound by all the terms and provisions of
this Agreement by operation of law.
(b) This Agreement and all rights of the Executive hereunder
shall inure to the benefit of and be enforceable by the Executive's
personal or legal representatives,
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executors, administrators, successors, heirs, distributees, devisees
and legatees. If the Executive should die while any amounts are payable
to him hereunder all such amounts unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement to the
Executive's devisee, legatee, or other designee or, if there be no such
designee, to the Executive's estate.
10. Notice. For the purposes of this Agreement, notices, demands and
all other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when personally delivered with receipt
acknowledged or five business days after having been mailed by United States
certified or registered mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive:
Mr. F. ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Singer & ▇▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
If to the Corporation:
▇▇▇▇ ▇▇▇▇▇ Lauren Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
11. Miscellaneous. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Executive and such officer of the Corporation as may be
specifically designated by the Board. 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
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any prior or subsequent time. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of New
York without regard to its conflicts of law principles.
12. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
13. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
14. Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
the City of New York before a single arbitrator who shall be a retired federal
judge in accordance with the then obtaining employment rules of the American
Arbitration Association. Judgment may be entered on the arbitrator's award in
any court having jurisdiction; provided, however, that the Corporation shall be
entitled to seek a restraining order or injunction in any court of competent
jurisdiction to prevent any continuation of any violation of the provisions of
Section 8 of this Agreement and the Executive hereby consents that such
restraining order or injunction may be granted without the necessity of the
Corporation's posting any bond, and provided further that the Executive shall be
entitled to seek specific performance of his right to be paid until the date of
termination during the pendency of any dispute or controversy arising under or
in connection with this Agreement. Fees and expenses payable to the American
Arbitration Association and the arbitrator shall be shared equally by the
Corporation and by the Executive, but the parties shall otherwise bear their own
costs in connection with the arbitration; provided that the arbitrator shall be
entitled to include as part of the award to the prevailing party the reasonable
legal fees and expenses incurred by such party in an amount not to exceed
$25,000.
15. Withholding. The Corporation may withhold from any amounts payable
under this Agreement such federal, state and local taxes as may be required to
be withheld pursuant to applicable law or regulation.
16. Entire Agreement. This Agreement sets forth the entire agreement of
the parties hereto in respect of the subject matter contained herein and
supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto; and any prior agreement
of the parties hereto in respect of the subject matter contained herein is
hereby terminated and cancelled.
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IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
duly executed and the Executive has hereunto set his hand, each on the date set
forth below, but effective as of the 10th day of November, 1998.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇▇ Lauren
----------------
Date: March 10, 1999
/s/ F. ▇▇▇▇▇ ▇▇▇▇▇
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Executive: F. ▇▇▇▇▇ ▇▇▇▇▇
Date: February 24, 1999
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