Exhibit 10.9
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), made as of January 31, 1995, by
and between Anvil Knitwear, Inc., a New York corporation (the "Company"), and
Xxxxx Xxxxxxxxx, a resident of New York (the "Executive").
W I T N E S S E T H:
WHEREAS, Executive is currently serving each of XxXxxxxx Corporation
("XxXxxxxx") and Astrum International Corp. ("Astrum") in the position of Vice
President, Secretary and General Counsel; and
WHEREAS, the Company desires to retain Executive to serve it in the same
capacity or a similar capacity without a significant reduction in status and
responsibilities, and to perform services on its behalf in said position;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants herein contained, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. EMPLOYMENT
The Company agrees to employ Executive and Executive agrees to serve the
Company on the terms and conditions set forth herein.
2. TERM
This Agreement shall be for an initial period of four (4) years (the
"Initial Term"); provided, the term of this Agreement shall be extended for one
year unless prior to the third anniversary of the date hereof, the Company or
Executive notifies the other that the Agreement will be terminated at the end of
the Initial Term. Successive one-year extensions occur thereafter in the same
manner unless notice of termination is given by the Company or Executive at
least one year prior to the end of the then effective Term. As used herein,
"Term" means the Initial Term and any extensions thereof as provided for in this
Section 2.
3. POSITION AND DUTIES
(a) Executive shall serve as Executive Vice President, Chief
Administrative Officer, Secretary and General Counsel of the Company and shall
perform such duties and exercise such supervision and powers over and with
regard to the business of the Company customarily associated with the position
of Executive Vice President, Chief Administrative Officer, Secretary and General
Counsel, as well as such duties and services prescribed herein and as may be
prescribed from time to time by the Board of Directors of the Company (the
"Board"). Executive shall perform such duties to the best of his ability and in
a diligent and proper manner.
(b) Except during vacations and periods of illness, Executive shall,
during the term of this Agreement, devote all his business time and attention to
the performance of services for the Company; provided that the Executive may
engage in the activities listed on Schedule A hereto so long as they do not
materially interfere with Executive's performance of his obligations hereunder.
Executive shall cooperate reasonably in any sale of the Company, IPO or similar
transaction.
(c) In the event that the Company fails to extend Executive's term of
employment pursuant to Section 2 above, or the Company is sold in a Strategic
Sale (as defined in subsection 5(d) hereof), Executive may spend a reasonable
part of his time during the final year of the Term hereof seeking other
employment.
4. COMPENSATION AND RELATED MATTERS
(a) Salary. During the period of Executive's employment hereunder, the
Company shall pay to Executive a salary at a rate of not less than $250,000 per
annum payable in accordance with normal payroll practices of the Company but not
less frequently than monthly. The Executive's salary may be increased from time
to time and, if so increased, shall not thereafter be decreased during the Term
of this Agreement. As used herein, "Base Salary" means the Executive's initial
salary hereunder as the same is increased from time to time. The salary payments
hereunder shall not in any way limit or reduce any other obligation of the
Company hereunder, and no other compensation, benefit or payment hereunder shall
in any way limit or reduce the obligation of the Company to pay Executive's Base
Salary hereunder.
(b) Welfare and Retirement Benefits. From and after the date of this
Agreement, Executive shall be entitled to participate in all of the Company's
employee pension plans, welfare benefit plans, tax-deferred savings plans, or
other welfare or retirement benefits or arrangements (including any insurance or
trust arrangements maintained generally for the benefit of the Company's
directors and officers) and in which the executive officers of the Company are
entitled generally to participate (collectively, the "Company Benefit Plans") on
the same basis as other executive employees. For purposes of determining
Executive's "years of service" credit under any of the Company Benefit Plans,
Executive shall be given full credit for years of service with XxXxxxxx, Astrum
and their subsidiaries.
(c) Bonus/Incentive Compensation. Executive shall be entitled to such
additional compensation as may be awarded by the Company in the sole discretion
of the CEO and the Board in the form of bonus or other incentive compensation,
and to participate in the bonus plan described in the letter from X. X. Xxxxxxx
dated April 9, 1990. Executive shall be entitled to participate in any stock
option plan adopted by Anvil Holdings, Inc. ("Holdings") for management
employees of Holdings and its subsidiaries in accordance with the term sheet
attached hereto as Exhibit A.
(d) Vacations. Executive shall be entitled to the number of paid vacation
days in each calendar year determined in accordance with the Company's vacation
policies.
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(e) Expenses. During the term of Executive's employment hereunder,
Executive shall be entitled to receive prompt reimbursement from the Company of
all reasonable business-related expenses incurred by 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 Company, provided that such expenses are incurred and accounted for in
accordance with the policies and procedures established by the Company from time
to time.
(f) Certain Benefits. The Company shall furnish Executive with office
space, secretarial assistance and such other facilities and services as shall be
suitable to Executive's position and adequate for the performance of his duties
as set forth in Section 3 hereof and with the use of a Company provided
automobile.
5. TERMINATION
Executive's employment hereunder may be terminated under the following
circumstances:
(a) Death. Executive's employment hereunder shall terminate upon his
death.
(b) Disability. If Executive is unable to timely and regularly perform its
duties hereunder due to physical or mental illness, injury or incapacity, as
determined by the Board in good faith, based on medical evidence acceptable to
it (a "Disability") and such Disability continues for a period of nine
consecutive months, then, notwithstanding the provisions of Section 2, the
Company may terminate Executive's employment hereunder. A return to work for
less than thirty consecutive days during any period of Disability shall not be
deemed to interrupt the running of (and shall be included in) the aforementioned
nine-month period.
(c) Cause. The Company may terminate Executive's employment hereunder at
any time for Cause. For purposes of this Agreement, the Company shall have
"Cause" to terminate Executive's employment hereunder upon (i) a material breach
of this Agreement by Executive which breach is not cured within 30 days of
receipt of written notice from the Board, (ii) Executive's willful and repeated
failure to comply with the lawful directives of the Board or his superior
officer(s) consistent with the terms of this Agreement, (iii) gross negligence
or willful misconduct in the performance of Executive's duties under this
Agreement resulting in material injury to Holdings, the Company or their
subsidiaries, (iv) fraud committed by Executive with respect to Holdings, the
Company or their subsidiaries, or (v) indictment for (A) a felony or (B) a crime
involving moral turpitude conviction of which would materially injure
relationships with customers, suppliers or employees or otherwise cause material
injury to Holdings, the Company or their subsidiaries. Executive shall not be
deemed to have been terminated for Cause unless the Company shall have given or
delivered to Executive (1) reasonable notice setting forth, in reasonable detail
the facts and circumstances, if any, claimed to provide a basis for termination
for Cause, (2) a reasonable opportunity for Executive, together with his
counsel, to be heard before the Board, and (3) after being given a reasonable
opportunity to be heard, a Notice of Termination stating that, in the good faith
opinion of not less than a majority of the entire membership of the Board,
"Cause" exists to terminate Executive under this Agreement. The Board shall
consult with the CEO prior to
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taking action to terminate Executive for Cause and shall give the CEO at least
15 business days prior notice of the first Board meeting at which the existence
of Cause for termination is scheduled to be considered.
For purposes of determining whether Executive was given "reasonable
notice" and "reasonable opportunity to be heard" in connection with any
determination by the Board as to whether Cause exists, 15 business days notice
of the Board meeting shall be deemed to constitute "reasonable notice" (without
prejudice to the determination of whether some other period would also
constitute "reasonable notice") and the opportunity for Executive and his
counsel to present arguments to the Board at such meeting as to why Executive
believes that no Cause exists shall constitute "reasonable opportunity to be
heard" (without prejudice to the determination of whether some other forum or
method would also constitute a "reasonable opportunity to be heard").
In the event that Executive is terminated under clause (v) above but is
not ultimately convicted of the crime for which he was indicted, Executive shall
be eligible to be reinstated in the position he held on the date of his
termination. If Executive is so reinstated, this contract shall become effective
with a term equal to the term remaining on the date of termination.
Notwithstanding the foregoing, the Company at the option of its Chief Executive
Officer may determine that reinstatement is not in the best interests of the
Company, in which event the Executive shall not be reinstated.
(d) Termination by Executive for Good Reason. Executive may voluntarily
terminate his employment hereunder at any time for Good Reason. For purposes of
this Agreement, "Good Reason" shall mean (i) a material breach of this Agreement
which has not been cured within thirty (30) days after the Board's receipt of
written notice of such non-compliance from the Executive; (ii) the assignment to
Executive by the Company of duties inconsistent with Executive's position,
duties or responsibilities as in effect immediately after the date of execution
of this Agreement including, but not limited to, any material reduction in such
position, duties or responsibilities, or a change in Executive's titles or
offices, as then in effect, or any removal of Executive from, or any failure to
reelect Executive to, any of such positions, except in connection with the
termination of his employment pursuant to subsections 5(a), 5(b) or 5(c); (iii)
upon the relocation by the Company of its executive offices to a location
outside a thirty (30) mile radius around its current location or (iv) upon a
sale of the Company to a corporation or other legal entity that is, or is part
of a group of such entities, engaged in operating a material business in
competition with, or similar or related to the business of the Company at the
time of such sale (a "Strategic Sale"). Notwithstanding the foregoing, Executive
shall be entitled to elect to terminate his employment for "Good Reason" only if
Executive gives the Company a Notice of Termination notifying the Company of his
election to terminate employment for "Good Reason," (A) in the case of
termination pursuant to subsection 5(d)(i), 5(d)(ii) or 5(d)(iii), within 90
days after the occurrence of the event which Executive asserts as the basis for
Executive's right to terminate his employment for "Good Reason," and (B) in the
case of termination pursuant to subsection 5(d)(iv), within twelve months after
the occurrence of the Strategic Sale (and at least 30 days prior to the
termination date).
(e) Retirement. Executive may retire from his employment at any time after
attaining the age of 65 years upon giving thirty days prior written notice to
the Company.
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(f) Termination by Company Without Cause. The Company may at any time
terminate the Executive for any reason and, except for the amounts payable
pursuant to subsection 6(a) hereof, Executive shall have no claim against the
Company under this Agreement or otherwise by reason of such termination.
Termination of Executive's employment pursuant to this subsection 5(f) shall be
deemed to be exclusive of termination under any other subsection of this Section
5 and of termination of Executive's employment upon expiration of the Term of
this Agreement.
(g) Resignation following Non-Extension. If the Company gives Executive
timely notice of its election not to extend the Term of this Agreement pursuant
to Section 2 (and Executive has not given the Company notice of his election not
to extend the Term of this Agreement pursuant to Section 2), then at any time
during the last nine months of the Term of this Agreement, Executive may resign
his employment with the Company.
(h) Notice of Termination. Any termination of Executive's employment by
the Company or by Executive (other than termination pursuant to subsection 5(a)
hereof) shall be communicated by written Notice of Termination to the other
party hereto. For purposes of this Agreement, a "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, if any, claimed to provide a basis for termination of Executive's
employment under the provision so indicated.
6. COMPENSATION UPON TERMINATION
(a) (i) If Executive's employment is terminated by the Company pursuant to
subsection 5(f), or if Executive shall terminate his employment pursuant to
subsection 5(d)(i), 5(d)(ii) or 5(d)(iii), then the Company shall pay to
Executive, within 30 days of such termination (or, if there is a dispute
regarding such termination, within 30 days of the date such dispute is resolved)
the following amounts, and in lieu of any further salary and bonus or other
incentive compensation payments to Executive for periods subsequent to the date
of termination, an amount (the "Severance Payment") equal to the aggregate
salary payments (based on the Base Salary in effect on the termination date)
that would have been paid to Executive from the date of termination to the end
of the Term then in effect, plus the bonus that would have been payable to
Executive for the bonus year in which such termination occurs (which shall not
be discounted to take into account present value), and the Executive shall be
entitled to continue to participate in all Company Benefit Plans on the same
basis as the Company's executive employees through the end of the fiscal year in
which such termination occurs; provided, that if (A) (i) the period from the
date of Executive's termination for reasons described in this Section 6(a)(i) to
the end of the Term then in effect (the "Severance Period") is less than two
years or (ii) the Company gives notice under Section 2 that the term will not be
beyond the last year of the term then in effect (the last day of such term is
referred to as the "Nonrenewal Date") and (B) Executive is not engaged in
regular employment (whether as an employee or as a self-employed person) at the
end of the Severance Period or at the Nonrenewal Date, then at the end of the
Severance Period, or on the Nonrenewal Date as the case may be the Company shall
begin making additional monthly severance payments ("Supplemental Severance
Payments") to Executive (based on Executive's Base Salary at the time of
termination, payable in arrears, pro rated for the months in which such payments
begin and end and otherwise calculated and
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paid in accordance with the Company's payroll practices for its executive
employees) until the earlier of (1) if clause (A)(i) of this proviso applies,
the second anniversary of the date of such Executive's termination, or if clause
(A)(ii) of this proviso applies, the first anniversary of the Nonrenewal Date
and (2) the date that the Executive finds regular employment, whether as an
employee or as a self-employed person, provided that the Company may at any
time, in the discretion of the Company's chief executive officer, elect not to
pay, or elect to discontinue payment of any, Supplemental Severance Payments, if
at the time of such election, Xxxxxxx Xxxxxx is the Chief Executive Officer of
the Company. If Xxxxxxx Xxxxxx is not then Chief Executive Officer, such
election shall be made by Xxxxxxx X. Xxxxxxx so long as Vestar Equity Partners,
L.P., together with its general partner and their respective affiliates, own, or
have the power to vote or direct the voting of, shares of the capital stock of
the Company sufficient to elect a majority of the Company's Board of Directors.
The provision in clause (A)(ii) of the foregoing proviso relating to continuing
payments after the Nonrenewal Date on account of the Company's failure to extend
the Term shall not be applicable if Executive's employment is terminated prior
to the Nonrenewal Date.
(ii) If Executive's employment terminates for any reason other than
pursuant to subparagraph 5(f), 5(d)(i), 5(d)(ii) or 5(d)(iii), Executive shall
receive compensation and benefits through the end of the calendar month in which
termination occurs (or, if earlier, the end of the Term then in effect) and
shall thereafter receive no other compensation or, except as required by law,
any benefits of any kind whatsoever; it being understood that no bonus shall be
payable for the year in which such termination occurs.
(iii) Any sums due pursuant to the provisions of this subsection
6(a) shall be reduced by any sums payable to Executive pursuant to any severance
or termination pay program maintained by the Company.
(b) Executive shall not be required to mitigate the amount of any payment
provided for in this Section 6 by seeking other employment or otherwise.
7. ARBITRATION; LEGAL FEES; REIMBURSEMENT OF CERTAIN EXPENSES
(a) To the extent that the parties are unable to resolve any disputes
arising under this Agreement, then either party may submit the dispute to
binding arbitration in New York City in accordance with the rules of the
American Arbitration Association then in effect (and the Company will pay all
filing fees for commencing such arbitration). The arbitrator's decision shall be
made in accordance with such rules, shall be delivered in writing to the parties
and shall be conclusive and binding upon the parties. Nothing in this Section
7(a) shall obligate the Company or entitle Executive to submit any claim arising
under Section 10 or 11 of this Agreement to arbitration or otherwise limit the
Company's rights under subsection 11(d).
(b) The Company shall promptly reimburse Executive for the first $100,000
of reasonable legal fees and reasonable expenses incurred by Executive in
connection with obtaining or enforcing in good faith any right or benefit
provided to Executive by the Company pursuant to or in accordance with this
Agreement and for 50% of all such amounts incurred by Executive in excess of
$100,000. In addition, the Company hereby agrees that the amount of any such
legal fees
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and expenses reimbursed to Executive in connection with obtaining or enforcing
any right or benefit provided to Executive by the Company pursuant to or in
accordance with this Agreement will not be taken into account by the Company in
determining the aggregate compensation paid or payable to Executive under this
Agreement.
8. INDEMNIFICATION
The Company shall indemnify Executive (and his legal representatives or
other successors), unless expressly prohibited by applicable law, against all
losses, claims, damages, liabilities, costs, charges and expenses whatsoever
(including but not limited to all legal fees payable to attorneys reasonably
acceptable to the Company and designated by Executive and any other expenses and
other disbursements incurred in connection with investigating, preparing to
defend or defending any action, suit or proceeding, including any inquiry or
investigation, commenced or threatened, or in preparing to defend any claim or
threatened claim) incurred or sustained by him or his legal representatives in
connection with any action, suit or proceeding to which he (or his legal
representatives or other successors) may be made a party by reason of his being
or having been a director, officer or employee of the Company including payment
of expenses in advance of the final disposition of the proceeding. The Company
further agrees, upon demand by Executive, promptly to reimburse Executive for,
or pay, any loss, claim, damage, liability or expense, unless expressly
prohibited by applicable law, to which the Company has agreed to indemnify
Executive pursuant to Sections 7 and 8 hereof. If any action, suit or proceeding
is brought or threatened against Executive in respect of which indemnity may be
sought against the Company pursuant to the foregoing, Executive shall notify the
Company promptly in writing as soon as practicable of the threat or the
institution of such action, suit or proceeding. Within 30 days of such notice,
the Company shall inform Executive in writing whether it elects to control and
direct the proceedings relating to such action or claim. If it so elects, the
Company shall have the right to direct, control and supervise Executive's
defense of such action, suit or proceeding with counsel of the Company's
choosing. Executive may designate separate counsel, at his own expense, and
shall be entitled to participate in all aspects of the defense of such action,
suit or proceeding. If the Company fails to elect to control the proceeding,
Executive shall direct and control the proceeding at Company's expense and the
Company shall have the right to participate in all aspects of such defense.
Neither Executive nor the Company shall settle or compromise any such action,
suit or proceeding without the written consent of the other party hereto, which
consent may not be unreasonably withheld; notwithstanding the foregoing, the
consent of Executive shall not be required if such settlement or compromise
solely involves the payment of money or property by the Company or otherwise has
no adverse effect on Executive.
9. TAXES
The Company shall deduct from all amounts payable under this Agreement all
federal, state, local and other taxes required by law to be withheld with
respect to such payments.
10. CONFIDENTIALITY
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Executive acknowledges that the information, observations and data
obtained by him while employed by the Company (including those obtained while
employed by XxXxxxxx or Astrum prior to the date of this Agreement and the
acquisition of Anvil Knitwear division by the Company) concerning the business
or affairs of the Company, Holdings, and their subsidiaries ("Confidential
Information") are the property of the Company, Holdings or such subsidiary.
Therefore, Executive agrees that he shall not disclose to any unauthorized
person or use for his own account any Confidential Information without the prior
written consent of the Board, unless and to the extent that the aforementioned
matters become generally known to and available for use by the public other than
as a result of Executive's acts or omissions to act. Executive shall deliver to
the Company at the termination of employment, or at any other time the Company
may request, all memoranda, notes, plans, records, reports, computer tapes and
software and other documents and data (and copies thereof) relating to the
Confidential Information, work product or the business of the Company, Holdings
or any of their subsidiaries which he may then possess or have under his
control.
11. NON-COMPETE, NON-SOLICITATION
(a) Executive agrees that during the Noncompete Period (as defined below),
he shall not directly or indirectly own, manage, control, participate in,
consult with, render services for, or in any manner engage in any business that
competes anywhere in the United States, Canada or anywhere else in the world
with the businesses of Holdings, the Company or their subsidiaries as businesses
exist or are in process on the date of the termination of Executive's
employment. Nothing herein shall prohibit Executive from owning not more than 5%
of the outstanding stock of any class of a corporation which is publicly traded,
so long as Executive has no active participation in the business of such
corporation. For purposes of this Agreement, the term "Noncompete Period" means
the period beginning on the date of this Agreement and ending on the fourth
anniversary of the date of this Agreement; provided, that if and when the Term
of this Agreement is extended beyond the Initial Term pursuant to Section 2
hereof, or if payments are being made pursuant to the last proviso in Section
6(a)(i) the Noncompete Period shall be extended to the end of the Term as so
extended or through the date such payments are actually made, as the case may
be; and, provided, further, that if Executive's employment is terminated by the
Company pursuant to subsection 5(f) or by Executive pursuant to subsection 5(d)
or subsection 5(g), the Noncompete Period shall terminate upon termination of
Executive's employment with the Company.
(b) During his employment with the Company (or such longer period as
Executive is receiving payments under Section 6(a)(i) and for the "Applicable
Period" thereafter, Executive shall not directly or indirectly through another
entity (i) induce or attempt to induce any employee of Holdings, the Company or
their subsidiaries to leave the employ of Holdings, the Company or such
subsidiary, or in any way interfere with the relationship between Holdings, the
Company or their subsidiaries and any employee thereof, (ii) hire any person who
was an employee of Holdings, the Company or their subsidiaries at any time
during Executive's employment with the Company, or (iii) induce or attempt to
induce any customer, supplier, licensee or other business relation of Holdings,
the Company or their subsidiaries to cease doing business with Holdings, the
Company or their subsidiaries, or in any way interfere with the relationship
between any such customer, supplier, licensee or business relation and Holdings,
the Company or their subsidiaries. The Applicable Period for purposes of clause
(i) and (iii) shall be two years and for clause (ii) shall be one year.
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(c) If, at the time of enforcement of this Section 11, a court or
arbitrator shall hold that the duration, scope or area restrictions stated
herein are unreasonable under circumstances then existing, the parties agree
that the maximum duration, scope or area reasonable under such circumstances
shall be substituted for the stated duration, scope or area and that the court
or arbitrator shall be allowed to revise the restrictions contained herein to
cover the maximum period, scope and area permitted by law.
(d) In the event of the breach or a threatened breach by Executive, of any
of the provisions of Section 10 or this Section 11, the Company, in addition and
supplementary to other rights and remedies existing in its favor, may apply to
any court of law or equity of competent jurisdiction for specific performance or
injunctive or other relief in order to enforce or prevent any violations of the
provisions hereof (without posting a bond or other security).
12. SUCCESSORS; BINDING AGREEMENT
(a) This Agreement shall be binding upon and inure to the benefit of the
Company and any successor of the Company, including, any corporation acquiring
directly or indirectly all or substantially all of the stock, business or assets
of Holdings or the Company, whether by merger, restructuring, reorganization,
consolidation, sale or otherwise (and such successor shall thereafter be deemed
the "Company" for the purposes of this Agreement). Each of Holdings and its and
the Company's subsidiaries are hereby acknowledged to be third-party
beneficiaries with respect to the provisions of Sections 10 and 11 hereof and
shall be entitled to enforce such provisions as if they were parties hereto.
(b) This Agreement and all rights of Executive hereunder shall inure to
the benefit of and be enforceable by Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If Executive should die while any amounts would be still
payable to him hereunder if he had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to Executive's devisee, legatee, or other beneficiary or, if there be
no such beneficiary, to Executive's estate.
13. NOTICE
For the purposes of this Agreement, notices, demands and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when hand delivered or (unless otherwise
specified) when mailed by United States certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to Executive:
Xxxxx Xxxxxxxxx
0 Xxxx Xxxx
Xxx Xxxxxxxx, Xxx Xxxx 00000
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If to the Board:
Vestar Capital Partners
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx,
Chairman of the Board
If to the Company:
Anvil Knitwear, Inc.
000 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
14. SURVIVORSHIP
The respective rights and obligations of the parties hereunder, including
the rights and obligations set forth in Sections 6, 7, 8, 9, 10 and 11 of this
Agreement, shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations.
15. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants that (a) it is fully authorized and
empowered to enter into this Agreement and that the Board has approved the terms
of this Agreement, (b) the execution of this Agreement and the performance of
its obligations under this Agreement will not violate or result in a breach of
the terms of any material agreement to which the Company is a party or by which
it is bound, (c) no approval by any governmental authority or body is required
for it to enter into this Agreement, and (d) the Agreement is valid, binding and
enforceable against the Company in accordance with its terms, except to the
extent affected or limited by applicable bankruptcy laws or other statutes
governing the right of creditors generally and any regulations or
interpretations thereof. Executive represents and warrants that his execution of
this Agreement and his performance of his duties and responsibilities under this
Agreement will not violate or result in a breach of the terms of any material
agreement to which he is a party or by which he is bound.
16. PRIOR AGREEMENT
Executive hereby waives any and all claims he may have against XxXxxxxx or
Astrum or Holdings or the Company, and releases each of them from any liability,
under any contract between XxXxxxxx or Astrum and such Executive or in respect
of any facts or circumstances relating to his employment which arose prior to
the closing of the sale of Anvil Knitwear division to the Company (the
"Closing"). The waiver of claims against XxXxxxxx and Astrum shall be
conditioned on
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payments of all amounts due Executive through the date of Closing (including
without limitation amounts due in respect of salary) and shall not apply to (a)
claims described in clause (v) of the definition of "Excluded Liabilities" as
set forth in the Asset Purchase Agreement dated as of December 29, 1994 among
XxXxxxxx, the Company, Holdings and the other parties thereto or (b) medical
benefits, executive medical, 401(k) and expense reimbursement.
17. MISCELLANEOUS
The parties hereto agree that this Agreement contains the entire
understanding and agreement between them, and supersedes all prior
understandings and agreements between the parties respecting the employment by
the Company of Executive, and that the provisions of this Agreement may not be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed by the parties hereto. 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 agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement. The validity, interpretations, construction and
performance of this Agreement shall be governed by the laws of the State of New
York without giving effect to the conflict of laws principles thereof.
18. VALIDITY
The invalidity or unenforceability of any provision or provisions of this
Agreement shall not affect the validity or enforceability of any other provision
or provisions of this Agreement, which shall remain in full force and effect.
19. 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.
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[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and the year first above written.
ANVIL KNITWEAR, INC.
By:
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Name:
Title:
--------------------------------
Xxxxx Xxxxxxxxx
Schedule A
Subject to the terms of Section 3(b) of this Agreement, Executive may engage in
the following activities:
1. Assist Astrum and XxXxxxxx with inquiries or other issues related to
services provided by Executive to Astrum or XxXxxxxx prior to the date of
this Agreement; and
2. Provide outside legal services to family members or otherwise not
requiring a material amount of time or effort; provided that the provision
of such services would not otherwise constitute a violation of the
Agreement.
