<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1997
-------------
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _________ to _________
Commission file number 0-21940
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Donnkenny, Inc.
---------------
(Exact name of registrant as specified in its charter)
Delaware 51-0228891
-------- ----------
(State or jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1411 Broadway, New York, NY 10018
--------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (212) 730-7770
--------------
NOT APPLICABLE
--------------
(Former name, former address and former fiscal year,
if changed since last report.)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that
the registrant was required to file such reports), Yes [X] No [ ] and (2) has
been the subject to such filing requirements for the past 90 days.
Yes [X] No [ ].
Indicate the number of shares outstanding of each of the issuer's
classes of Common Stock, as of the latest practicable date.
Common Stock $0.01 par value 14,069,940
---------------------------- ------------------
(Class) (Outstanding at June 30, 1997)
<PAGE>
DONNKENNY, INC AND SUBSIDIARIES
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
(FORM 10-Q)
<TABLE>
<CAPTION>
PART I - FINANCIAL INFORMATION Page
----
<S> <C>
Consolidated financial statements:
Independent Accountants' Report
Balance sheets as of June 30, 1997 and December 31, 1996 ...... I-1
Statements of operations for the three and six months ended
June 30, 1997 and June 1, 1996 ................................ II-1
Statements of cash flows for the six months ended
June 30, 1997 and June 1, 1996 ................................ III-1
Notes to Consolidated Financial Statements .................... IV-1-2
Management's Discussion and Analysis of Financial Condition and
Results of Operations ......................................... V-1-3
PART II - OTHER INFORMATION
Legal Proceedings ............................................. VI-1
Exhibits and Reports on Form 8-K .............................. VI-1-2
Signatures .................................................... VI-3
</TABLE>
<PAGE>
INDEPENDENT ACCOUNTANTS' REPORT
To the Board of Directors and Stockholders of
Donnkenny, Inc.
We have reviewed the accompanying consolidated balance sheet of Donnkenny, Inc.
and subsidiaries as of June 30, 1997, and the related consolidated statements
of operations and cash flows for the three-month and six-month periods then
ended. These financial statements are the responsibility of the Company's
management.
We conducted our review in accordance with standards established by the
American Institute of Certified Public Accountants. A review of interim
financial information consists principally of applying analytical procedures to
financial data and of making inquiries of persons responsible for financial
and accounting matters. It is substantially less in scope than an audit
conducted in accordance with generally accepted auditing standards, the
objective of which is the expression of an opinion regarding the financial
statements taken as a whole. Accordingly, we do not express such an opinion.
Based on our review, we are not aware of any material modifications that should
be made to such consolidated financial statements for them to be in conformity
with generally accepted accounting principles.
We have previously audited, in accordance with generally accepted auditing
standards, the consolidated balance sheet of Donnkenny, Inc. and subsidiaries
as of December 31, 1996, and the related consolidated statements of operations,
stockholders' equity, and cash flows for the year then ended (not presented
herein); and in our report dated April 15, 1997, we expressed an unqualified
opinion on those consolidated financial statements. In our opinion, the
information set forth in the accompanying consolidated balance sheet as of
December 31, 1996 is fairly stated, in all material respects, in relation to
the consolidated balance sheet from which it has been derived.
DELOITTE & TOUCHE LLP
New York, New York
August 5, 1997
<PAGE>
DONNKENNY, INC. AND SUBSIDIARIES
Consolidated Balance Sheets
(IN THOUSANDS)
June 30, 1997 and December 31, 1996
<TABLE>
<CAPTION>
June 30, December 31,
1997 1996
-------- --------
ASSETS (Unaudited)
<S> <C> <C>
CURRENT:
Cash $ 329 $ 3,998
Accounts receivable - net of allowances of
$2,017 and $1,946, respectively 27,970 29,721
Recoverable income taxes 9,353 8,625
Inventories 47,405 46,793
Deferred tax assets 4,439 4,439
Prepaid expenses and other current assets 1,881 1,633
-------- --------
TOTAL CURRENT ASSETS 91,377 95,209
Property, plant and equipment, net 10,991 11,774
Intangible assets 31,747 32,450
-------- --------
Total Assets $134,115 $139,433
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current:
Current portion of long-term debt $ 5,094 $ 50,761
Accounts payable 11,335 19,476
Accrued expenses and other current liabilities 7,585 8,055
-------- --------
TOTAL CURRENT LIABILITIES 24,014 78,292
Long-term debt, net of current portion 50,053 0
Deferred income taxes 5,863 5,863
STOCKHOLDERS' EQUITY:
Common stock, $.01 par value. Authorized 20,000 shares;
issued and outstanding 14,070 and 14,045
shares in 1997 and 1996, respectively 140 140
Additional paid-in capital 46,462 46,344
Retained earnings 7,583 8,794
-------- --------
Total Stockholders' Equity 54,185 55,278
-------- --------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $134,115 $139,433
======== ========
</TABLE>
See accompanying notes to consolidated financial statements.
I - 1
<PAGE>
DONNKENNY, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(In Thousands, Except Share and Per Share Data)
(unaudited)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
------------------------------- ------------------------------
June 30, 1997 June 1, 1996 June 30, 1997 June 1, 1996
------------ ------------ ------------ ------------
(Restated) (Restated)
<S> <C> <C> <C> <C>
Net sales $ 52,041 $ 52,407 $ 114,326 $ 94,944
Cost of sales 41,647 41,019 88,950 71,836
------------ ------------ ------------ ------------
Gross profit 10,394 11,388 25,376 23,108
Selling, general and administrative expenses 12,328 14,619 24,038 27,611
Amortization of intangibles 338 368 702 729
------------ ------------ ------------ ------------
Operating (loss) income (2,272) (3,599) 636 (5,232)
Interest expense 1,375 1,108 2,600 2,221
------------ ------------ ------------ ------------
Loss before income taxes (3,647) (4,707) (1,964) (7,453)
Income tax benefit (1,425) (1,907) (753) (2,990)
------------ ------------ ------------ ------------
Net loss $ (2,222) $ (2,800) $ (1,211) $ (4,463)
============ ============ ============ ============
Net loss per common share $ (0.16) $ (0.20) $ (0.09) $ (0.32)
============ ============ ============ ============
Weighted average number of common shares outstanding 14,069,940 13,985,831 14,066,901 13,979,012
============ ============ ============ ============
</TABLE>
See accompanying notes to consolidated financial statements.
II - 1
<PAGE>
DONNKENNY, INC. AND SUBSIDIARIES
Consolidated Statements of Cash Flows
(In Thousands)
(unaudited)
<TABLE>
<CAPTION>
Six Months Ended
----------------------
June 30, June 1,
1997 1996
-------- --------
CASH FLOWS FROM OPERATING ACTIVITIES: (Restated)
<S> <C> <C>
Net loss $ (1,211) $ (4,463)
Adjustments to reconcile net loss to
net cash provided by operating activities:
Depreciation and amortization of fixed assets 892 848
Amortization of intangibles 702 729
Provision for losses on accounts receivable 191 131
Changes in assets and liabilities:
Decrease in accounts receivable 1,560 19,510
Increase in recoverable income taxes (728) (1,525)
Increase in inventories (612) (2,651)
Increase in prepaid expenses and
other current assets (248) (475)
Decrease in accounts payable (8,140) (619)
Decrease in accrued expenses and
other current liabilities (352) (1,681)
-------- --------
Net cash (used) provided by operating activities (7,946) 9,804
-------- --------
CASH FLOWS FROM INVESTING ACTIVITY:
Purchase of fixed assets (109) (394)
-------- --------
Net cash used in investing activity (109) (394)
-------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Repayment of long-term debt (2,500) (3,553)
Net borrowings under revolving credit line 6,886 --
Net repayments under revolving credit line -- (7,500)
Exercise of stock options -- 253
-------- --------
Net cash provided (used) by financing activities 4,386 (10,800)
-------- --------
NET DECREASE IN CASH (3,669) (1,390)
CASH, AT BEGINNING OF PERIOD 3,998 2,688
-------- --------
CASH, AT END OF PERIOD $ 329 $ 1,298
======== ========
</TABLE>
See accompanying notes to consolidated financial statements.
III - 1
<PAGE>
DONNKENNY, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
(In Thousands Except Per Share Data)
(unaudited)
NOTE 1 - BASIS OF PRESENTATION
The accompanying unaudited consolidated financial statements have
been prepared by the Company pursuant to the Rules of the Securities and
Exchange Commission ("SEC") and , in the opinion of management, include all
adjustments (consisting of normal recurring accruals) necessary for the fair
presentation of financial position, results of operations and cash flows.
Certain information and footnote disclosures normally included in financial
statements prepared in accordance with generally accepted accounting
principles have been condensed or omitted pursuant to such SEC rules. The
Company believes the disclosures made are adequate to make such financial
statements not misleading. The results for the interim periods presented are
not necessarily indicative of the results to be expected for the full year.
These financial statements should be read in conjunction with the Company's
December 31, 1996 Form 10-K. Balance Sheet data as of December 31, 1996
have been derived from audited financial statements of the Company.
NOTE 2 - INVENTORIES
Inventories consist of the following:
<TABLE>
<CAPTION>
June 30, December 31,
1997 1996
---- ----
<S> <C> <C>
Raw materials .......................... $ 9,808 $12,081
Work-in-process ........................ 3,692 4,808
Finished goods ......................... 33,905 29,904
------- -------
$47,405 $46,793
======= =======
</TABLE>
NOTE 3 - RESTATEMENT OF FINANCIAL INFORMATION
The Company has restated its financial statements for the years ended
December 2, 1995 and December 3, 1994, as well as the respective quarters
within such years as well as, the first and second quarters of fiscal 1996,
because of errors discovered for those periods subsequent to the issuance of
such financial statements related to the recognition of net sales, cost of
sales and certain expenses. The financial statements for the third quarter of
fiscal 1996 have been restated to reflect the rescission of the Fashion Avenue
acquisition and to reflect additional reserves for sales returns and
allowances. In connection with such rescission the Company Issued
25,000 shares of stock and recorded such issuance at fair market value.
IV - 1
<PAGE>
The impact of the restatement on the Company's statement of operations and
balance sheets is summarized as follows:
<TABLE>
<CAPTION>
3 MONTHS ENDED June 1, 1996
- -------------- ----------------------------
(As Originally
STATEMENT OF OPERATIONS Reported) (Restated)
- ----------------------- --------- ---------
<S> <C> <C>
Net Sales ................................... $ 54,996 $ 52,407
Gross Profit ................................ 15,473 11,388
Operating Income (Loss) ..................... 5,979 (3,599)
Net Income (Loss) ........................... 2,879 (2,800)
Per common share:
Net Income (Loss) ................... $ 0.20 ($0.20)
<CAPTION>
6 MONTHS ENDED June 1, 1996
- -------------- ----------------------------
(As Originally
STATEMENT OF OPERATIONS Reported) (Restated)
- ----------------------- --------- ---------
<S> <C> <C>
Net Sales ................................... $107,190 $ 94,944
Gross Profit ................................ 30,350 23,108
Operating Income (Loss) ..................... 11,554 (5,232)
Net Income (Loss( ........................... 5,534 (4,463)
Per common share:
Net Income (Loss) ................... $ 0.39 ($0.32)
</TABLE>
NOTE 4 - CHANGE OF FISCAL YEAR
On September 11, 1996 the Company changed its fiscal year from one
ending on the first Saturday of each year on or after November 30th to one
ending on December 31st of each year.
NOTE 5 - CONTINGENCIES
In connection with contingent liabilities arising from the Company's
alleged inaccuracies in the reporting of revenues and expenses for certain
reporting periods, the Company has agreed to deposit $5.0 million over a three
year period to help defray claims, if any.
IV - 2
<PAGE>
DONNKENNY, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
COMPARISON OF SIX MONTHS ENDED JUNE 30, 1997, AND JUNE 1, 1996
Net sales increased by $19.4 million, or 20.4% from $94.9 million in the
first half of fiscal 1996 to $114.3 million in the first half of fiscal 1997.
As a result of the change in fiscal Year end, the inclusion of June 1997 net
sales in the first half of 1997 compared to the inclusion of December 1995 net
sales in the first half of 1996 accounted for $11.0 million of the increase.
The balance of the increase in net sales resulted primarily from growth in the
Beldoch and Oak Hill divisions.
Gross profit for the first half of fiscal 1997 was $25.4 million or 22.2% of
net sales compared to $23.1 million or 24.3% of net sales during the first
half of fiscal 1996. The percentage decline in gross profit was primarily
attributable to lower gross margins in the licensed character lines as a
result of the sell off of off priced excess inventory and the close out of
products with expiring licenses and to a lesser extent lower gross margins
from the sales of Beldoch products.
Selling, general and administrative expenses decreased from $27.6 million in
the first half of fiscal 1996 to $24.0 million in the first half of fiscal
1997. As a percentage of net sales, these expenses decreased from 29.1% in the
first half of fiscal 1996 to 21.0% in the first half of fiscal 1997. The
decrease in selling, general and administrative expenses in dollars and as a
percentage of net sales was due primarily to lower sales expense and design
and sample expenses as a result of greater efficiencies and the synergies
created in combining certain business functions. Additionally, fiscal 1997
headcount reductions resulted in decreased administrative expense. These
reductions were partially offset by higher professional fees, distribution
expenses and costs applicable to our factoring agreement which became effective
April 28, 1997. The increase in professional fees is the result of legal fees
associated with the previously reported class action lawsuits, legal and
accounting fees associated with the restatement of prior year quarterly and
annual financial statements and consulting services related to the Company's
amended Credit Facility discussed below.
The amortization of goodwill and other related acquisition costs were $0.7
million during the first half of fiscal 1997 and 1996.
Interest expense increased from $2.2 million during the first half of fiscal
1996 to $2.6 million during the first half of fiscal 1997. The increase was
the net result of higher average borrowings and higher interest rates under
the Company's credit facility to finance additional working capital needs.
The Company provided for taxes at an effective rate of 38.3% for the first
half of fiscal 1997 and 40.1% for the first half of fiscal 1996.
COMPARISON OF QUARTERS ENDED JUNE 30, 1997 AND JUNE 1, 1996
Net sales decreased by $0.4 million or 0.8% from $52.4 million in the second
quarter of fiscal 1996 to $52.0 million in the second quarter of fiscal 1997.
While net sales were essentially flat, decreases in net sales due to the
change in the fiscal year end offset increases in April and May. As a result
of the change in the fiscal year end, June 1997 net sales were included in the
second quarter of 1997 compared to the inclusion of March 1996 net sales in
the second quarter of 1996. The inclusion of June 1997 versus March 1997 in
the second quarter of fiscal 1997, as a result of the change in fiscal year
end, negatively impacted net sales by $5.7 million.
Gross profit for the second quarter of fiscal 1997 was $10.4 million, or
20.0% of net sales compared to $11.4 million or 21.7% of net sales during the
second quarter of fiscal 1996. The percentage decline in gross profit was
primarily attributable to lower gross margins in the licensed character lines
as a result of the sell off of off priced excess inventory and the close out
of products with expiring licenses and to a lesser extent lower gross margins
from the sales of Beldoch products.
Selling, general and administrative expenses decreased from $14.6 million in
the second quarter of fiscal 1996 to $12.3 million in the second quarter of
fiscal 1997. As a percentage of net sales, these expenses declined from 27.9%
in the second quarter of fiscal 1996 to 23.7% in the second quarter of fiscal
1997. The decrease in dollars and as a percent of net sales is primarily the
result of decreased sales expense, resulting from the consolidation of the
sales operations and decreases in administrative expenses, primarily
attributable to the reductions in personnel costs.
V - 1
<PAGE>
These reductions were partially offset by an increase in professional fees and
costs applicable to our factoring agreement which became effective April 28,
1997. The increase in professional fees is the result of legal fees associated
with the previously reported class action lawsuits, legal and accounting fees
associated with the restatement of prior year quarterly and annual financial
statements and consulting services related to the Company's amended Credit
Facility discussed below.
The amortization of goodwill and other related acquisition costs was $0.3
million during the second quarter of fiscal 1997 compared to $0.4 million
during the second quarter of fiscal 1996.
Interest expense increased from $1.1 million during the second quarter of
fiscal 1996 to $1.4 million during the second quarter of fiscal 1997. The
increase was a net result of higher average borrowings and higher average
interest rates under the Company's credit facility required to finance
additional working capital needs.
The Company provided for taxes at an effective rate of 39.1% for the second
quarter of fiscal 1997 and 40.5% for the second quarter of fiscal 1996.
LIQUIDITY AND CAPITAL RESOURCES
The Company's liquidity requirements arise from the funding of working
capital needs, primarily inventory and accounts receivable, and the interest
and principal payments related to certain indebtedness. The Company's
borrowing requirements for working capital fluctuates throughout the year.
Capital expenditures were $0.1 million for the first half of fiscal 1997
compared to $0.4 million in the first half of fiscal 1996. The Company may
spend up to $1.5 million annually on capital investments in accordance with
the Revolving Credit Agreement described below. The Company has no material
capital expenditure commitments.
On April 30, 1997 the Company entered into an amended Credit Facility to,
among other things, include the Company's operating subsidiaries Donnkenny
Apparel, Inc., Megaknits. Inc. and Beldoch Industries Corporation, as
borrowers. The Credit Facility consists of a Term Loan, a Revolving Credit
Agreement, and a Factoring Agreement. The purpose of the amended Credit
Facility is to continue to finance increased working capital needs of the
Company following the 1995 Beldoch and Oak Hill Sportswear acquisitions and
for general working capital purposes including the issuance of letters of
credit. The amended Credit Facility will expire on March 31, 1999. Under the
amended Credit Facility, the Chase Manhattan Bank serves as agent (and holds a
35% interest), the CIT Group/Commercial Services Inc. (CIT) serves as
collateral agent (and holds a 15% interest), and each of Fleet Bank, N.A. and
the Bank of New York are co-lenders (each holding a 25% interest).
As of June 30, 1997, the balance of the Term Loan was $15.0 million. The
interest rate is equal to the prime rate plus 1 1/2% per annum. The
amortization schedule calls for quarterly payments of $1.3 million, with a
balloon payment of $7.5 million due on March 31, 1999. An excess cash flow
recapture is payable annually within 15 days after receipt of the Company's
audited fiscal year-end financial statements. In addition, any tax refunds
received in excess of $2.0 million applicable to fiscal 1996 or prior fiscal
years will be applied to reduce the balloon payment. The default interest
would be equal to 2% above the otherwise applicable rate. The Term Loan does
not carry any prepayment penalty.
The commitment under the Revolving Credit Agreement is $85 million, with
sublimits of $70 million for direct borrowings and $35 million for letters of
credit. The interest rate is equal to the greater of 10% or the prime rate
plus 1 1/2% annum. Outstanding borrowings under the Revolving Credit Agreement
in excess of an allowable overadvance will bear interest at the prime rate
plus 3 1/2%. The Revolving Credit Agreement also requires the Company to pay
certain letter of credit fees and unused commitment fees. Advances and letters
of credit will be limited to (i) up to 85% of eligible accounts receivable
plus (ii) up to 60% of eligible inventory, plus (iii) an allowable
overadvance.
On April 28, 1997 the Company also entered into a Factoring Agreement with
CIT. The Factoring Agreement provides for a factoring commission equal to
0.45% of the gross amount of sales, plus certain customary surcharges. An
additional fee of 0.20% was paid upon the takeover of accounts receivables.
Collateral for the amended Credit Facility includes a first priority lien on
all accounts receivable, machinery, equipment, trademarks, intangibles and
inventory, a first mortgage on all real property and a pledge of the Company's
stock interest in the Company's operating subsidiaries, Donnkenny Apparel,
Inc., Beldoch Industries Corporation, and Megaknits, Inc.
V - 2
<PAGE>
During the first half of fiscal 1997, the Company's operating activities
used cash principally as the result of increases in inventories and decreases
in accounts payables offset by decreases in accounts receivable. During the
first half of fiscal 1996, the Company's operating activities provided cash
principally as the result of the decrease in accounts receivables, offset by
increases in inventory and decreases in accrued expenses. As a result the
amended Credit Facility discussed above, $44.7 million was reclassed from
short term debt to long term debt. The Company believes that amounts under the
Revolving Credit Agreement will be sufficient to offset any negative operating
cash flows and capital expenditures and will provide the Company with
sufficient cash for its needs for the foreseeable future.
RECENT ACCOUNTING PRONOUNCEMENTS
Comprehensive Income - In June 1997, the FASB issued Statement No. 130,
Reporting Comprehensive Income, which establishes standards for reporting
and display of comprehensive income. Management of the Company believes
that adoption of Statement No. 130, which is required for the year ended
December 31, 1998, will not have a significant impact on the Company's present
disclosure.
Segment Information - In June 1997, the FASB issued Statement No. 131,
Disclosure about Segments of an Enterprise and Related Information, which
requires that public companies report certain information about operating
segments in their annual financial statements and in condensed financial
statements of interim periods issued to shareholders. It also requires that
public companies report certain information about their products and services,
the geographic areas in which they operate, and their major customers.
Management of the Company is currently reviewing the impact on their current
level of disclosure.
V - 3
<PAGE>
PART II. OTHER INFORMATION
Item 1 - 3. Not Applicable.
Item 4. Submission of matters to vote of security holders.
The Company's annual meeting of stockholders was held on
July 30, 1997. The following directors were elected:
Name For Withholding Authority
---- --- ---------------------
Harvey A. Appelle 10,993,450 129,979
James W. Crystal 10,993,810 128,619
Harvey Horowitz 10,901,350 221,079
Lynn Siemers-Cross 10,996,250 126,179
Herbert L. Ash 10,991,960 130,469
Sheridan C. Biggs 10,990,970 131,459
Robert H. Cohen 10,988,100 134,329
Daniel H. Levy 10,988,210 134,219
Robert. H. Martinsen 10,993,250 129,179
The appointment of Deloitte & Touche LLP as independent
auditors for the fiscal year ended December 31, 1997 was
ratified with 10,792,435 shares voting in favor, 15,469
shares against and 23,500 shares abstaining.
Item 5. Other Information
In connection with contingent liabilities arising from the
Company's alleged inaccuracies in the reporting of revenues
and expenses for certain reporting periods, the Company has
agreed to deposit $5.0 million over a three year period to
help defray claims, if any.
VI - 1
<PAGE>
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits
1. Employment agreement between Donnkenny Apparel Inc.
Harvey A. Appelle dated as of April 14, 1997.
2. Employment agreement between Donnkenny Apparel Inc. and
Lynn Siemers-Cross dated as of April 14, 1997.
(b) Reports on Form 8-K
There were no reports filed on Form 8-K during the quarter
for which this report is filed.
VI - 2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Donnkenny, Inc.
---------------
Registrant
Date: August 6, 1997 /s/ Harvey Appelle
------------------------------
Harvey Appelle
Chairman of the Board,
President and Chief
Executive Officer
Date: August 6, 1997 /s/ Stuart S. Levy
------------------------------
Stuart S. Levy
Vice President - Finance
and Chief Financial Officer,
(Principal Financial Officer)
VI - 3
<PAGE>
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 14th day of April, 1997, by
and between Donnkenny Apparel, Inc., a Delaware corporation (the "Company"),
and Harvey A. Appelle (the "Executive").
W I T N E S S E T H T H A T
WHEREAS, the Company wishes to provide for the employment by
the Company of the Executive, and the Executive wishes to serve the Company,
in the capacities and on the terms and conditions set forth in this Agreement;
NOW, THEREFORE, it is hereby agreed as follows:
1. EMPLOYMENT PERIOD. The Company shall employ the
Executive, and the Executive shall serve the Company, on the terms and
conditions set forth in this Agreement. The term of this Agreement shall
commence on the date of this Agreement and, unless earlier terminated in
accordance with Section 5 hereof, shall continue through the third anniversary
of such date (such three-year term shall be referred to herein as the
"Employment Period").
2. POSITION AND DUTIES. (a) During the Employment Period,
the Executive shall serve as Chairman of the Board of Directors and as Chief
Executive Officer of each of the Company and each of its subsidiaries and the
Company's parent corporation, Donnkenny, Inc., a Delaware corporation
("Donnkenny") with such duties and responsibilities as are customarily
assigned to such positions, and such other duties and responsibilities not
inconsistent therewith as may from time to time be assigned to him by the
Board of Directors of the Company (the "Board"). The Executive shall be a
member of the Board on the first day of the Employment Period, and the Board
shall propose the Executive for re-election and shall use all reasonable
efforts to have the Executive re-elected to the Board and for positions
specified above throughout the Employment Period.
(b) During the Employment Period, the Executive shall report
directly to the Board. All other executive officers of the Company shall
report to the Executive.
<PAGE>
(c) During the Employment Period, and excluding any periods
of vacation and sick leave to which the Executive is entitled, the Executive
shall devote his full business time and attention consistent with his
reasonable business judgment to the business and affairs of the Company and
shall perform, faithfully and diligently his duties and responsibilities
hereunder. It shall not be considered a violation of the foregoing for the
Executive to serve on corporate, industry, civic, social or charitable boards
or committees, or to manage his personal investments, so long as such
activities do not interfere in a significant manner with the performance of
the Executive's responsibilities as an employee of the Company in accordance
with this Agreement.
3. COMPENSATION. (a) BASE SALARY. The Executive's
compensation during the Employment Period shall be determined by the Board
upon the recommendation of the committee of the Board having responsibility
for approving the compensation of senior executives (the "Compensation
Committee"), subject to the next sentence and the other provisions of this
Section 3. During the Employment Period, the Executive shall receive an annual
base salary ("Annual Base Salary") of $400,000 for each of the first two years
of the Employment Period (i.e., the years beginning on the date of this
Agreement and on the first anniversary of such date), and $500,000 for the
third year of the Employment Period (i.e., the year beginning on the second
anniversary of the date of this Agreement). The Annual Base Salary shall be
payable in accordance with the Company's regular payroll practice for its
senior executives, as in effect from time to time.
(b) PERFORMANCE BONUS. During the Employment Period, the
Executive shall be eligible to receive an annual bonus ("Performance Bonus")
in an amount, if any, to be determined on an annual basis by the Board upon
the recommendation of the Compensation Committee, taking into account the
performance of Executive and the Company during the year in respect of which
the Performance Bonus is payable. The Performance Bonus shall be payable at or
as soon as practicable after the end of each calendar year (generally after
completion of the annual audit), in cash. If the Executive's employment with
the Company is terminated for any reason during the Employment Period, in
addition to any amounts to which the Executive may be entitled pursuant to
Section 6, the Executive shall be entitled to receive any Performance Bonus
that the Board has awarded to the Executive prior to the Date of Termination
(as defined below).
(c) RESTRICTED STOCK AND STOCK OPTIONS. In addition
to the payments provided above, on April 14, 1997, the
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Compensation Committee granted to the Executive, subject to the execution of
this Agreement, (i) an award of 150,000 restricted shares of the Common Stock
of Donnkenny pursuant to Donnkenny's Restricted Stock Plan at a purchase price
equal to the aggregate par value of such shares (i.e., $.01 per share); and
(ii) options to purchase 150,000 shares of Donnkenny Common Stock pursuant to
Donnkenny's Incentive Stock Option Plan (the "Stock Option Plan"), with the
purchase price upon exercise of such options equal to $2.9375 (i.e., $2-15/16)
per share (i.e., the closing price of the Common Stock on the date of such
grant). The shares of restricted stock and options shall vest as follows: (A)
115,000 options will become exercisable on March 31, 1998; (B) 30,000 shares
of restricted stock shall vest on, and 35,000 options will become exercisable
on, March 31, 1999, and (C) 120,000 shares of restricted stock shall vest on
March 31, 2000 and, with respect to the options, such options shall remain
exercisable during the remainder of their respective terms notwithstanding any
termination of the Executive's employment except as otherwise provided in the
grant agreements referred to below; provided, however, that the vesting of
such shares of restricted stock and options shall be accelerated in the event
of a Change in Control (as defined herein) and, in the case of certain of the
options, in certain other circumstances set forth in the grant agreement
referred to below. With respect to the options, such options shall be
incentive stock options to fullest extent permitted by applicable law and the
Stock Option Plan. The grant of the shares of restricted stock and options has
been made by the Compensation Committee pursuant to the grant agreements
attached hereto as Annexes A, B-1 (with respect to incentive stock options)
and B-2 (with respect to non-qualified stock options), respectively.
(d) SARs. Also on April 14, 1997, the Compensation Committee
granted to the Executive, subject to the execution of this Agreement, cash-pay
stock appreciation rights with respect to 50,000 shares of Donnkenny Common
Stock (the "SARs"). The SARs shall vest in its entirety on March 31, 1999;
provided, however, that such "vesting" shall be accelerated in the event of
(i) the termination of Executive's employment by the Company other than for
Cause or by the Executive for Good Reason (as such terms are defined below) in
either case prior to March 31, 1999, or (ii) a Change in Control. The grant of
the SARs has been made by the Compensation Committee pursuant to the grant
agreement attached hereto as Annex C.
(e) AUTOMOBILE ALLOWANCE. Upon not less than ten
days' written notice from the Executive, the Company shall lease
for the benefit of the Executive an automobile selected by the
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Executive and will pay directly or reimburse the Executive for up to an
aggregate of $1,000 per month during the Employment Period for the lease
payments with respect thereto and gasoline, insurance, parking, maintenance
and similar expenses.
(f) REIMBURSEMENT OF EXPENSES AND ADMINISTRATIVE SUPPORT.
The Company shall pay or reimburse the Executive, upon the presentation of
appropriate documentation of such expenses, for all reasonable travel and
other expenses incurred by the Executive in performing his obligations under
this Agreement. The Company further agrees to furnish the Executive with
office space and administrative support, and any other assistance and
accommodations as shall be reasonably required by the Executive in the
performance of his duties under this Agreement.
(g) VACATION. Executive shall be entitled to four (4)
weeks paid vacation in each calendar year.
(h) DEDUCTIONS. All payments made under this Agreement shall
be subject to such deductions at the source as from time to time may be
required to be made pursuant to any law, rule, regulation or order.
(i) CHANGE IN CONTROL. For purposes of this
Agreement, a "Change in Control" of the Company shall be deemed
to have occurred upon any of the following events:
(A) A person or entity or group of persons or
entities, acting in concert, shall become the direct or
indirect beneficial owner (within the meaning of Rule 13d-3
of the Securities Exchange Act of 1934, as amended), of
securities of the Company representing more than fifty
percent (50%) of the combined voting power of the issued and
outstanding common stock of Donnkenny or the Company; or
(B) The majority of the Board, or of the board of
directors of Donnkenny, is no longer comprised of the
incumbent directors who constitute such board on the date of
this Agreement and any other individual(s) who becomes a
director subsequent to the date of this Agreement whose
initial election or nomination for election as a director,
as the case may be, was approved by at least a majority of
the directors who comprised the incumbent directors as of
the date of such election or nomination; or
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(C) The Board shall approve a sale of all or
substantially all of the assets of the Company, or the board
of directors of Donnkenny shall approve a sale of all or
substantially all of the assets of Donnkenny; or
(D) The Board, or the board of directors of
Donnkenny, shall approve any merger, consolidation, or like
business combination or reorganization of the Company, or of
Donnkenny, the consummation of which would result in the
occurrence of any event described in clause (A) or (B)
above, and such transaction shall have been consummated.
4. PARTICIPATION IN BENEFIT PLANS. The Executive shall be
entitled to participate, during the term of this Agreement, in the Company's
benefit programs, including but not limited to qualified or non-qualified
pension plans, supplemental pension plans, group hospitalization, health,
dental care, death benefit, post-retirement welfare plans, or other present or
future group employee benefit plans or programs of the Company for which key
executives are or shall become eligible (collectively, the "Benefit Plans"),
on the same terms as other key executives of the Company. If participation in
any of such Benefit Plans is subject to or based on length of service, the
Executive shall be credited with ten years service upon execution of this
Agreement. In addition to and without limiting the generality of the
foregoing, (i) the Company shall obtain and maintain (x) a "key man" life
insurance policy under which the Company is the named beneficiary in the
amount of $2,500,000, and (y) a term life insurance policy in the amount of
$2,500,000, which policy shall be owned by the Executive, in each case from a
nationally-recognized insurance carrier reasonably acceptable to the
Executive, and (ii) the Company shall provide, in addition to any such
insurance regularly provided to the Company's executives and/or employees,
long-term disability insurance which will pay at least sixty percent (60%) of
Executive's Annual Base Salary until the Executive reaches age 65. Upon
termination of the employment of the Executive with the Company for any
reason, the Company shall have no further obligation to pay the premiums on
any of such policies, and the Executive shall be entitled to purchase from the
Company any life insurance policy then owned by the Company on the life of the
Executive and the aforementioned disability insurance policy (if permitted
under the terms of such policy) for a purchase price equal to the cash
surrender value of each policy, if any.
5. TERMINATION OF EMPLOYMENT. (a) DEATH OR
DISABILITY. The Executive's employment shall terminate
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automatically upon the Executive's death during the Employment Period. The
Company shall be entitled to terminate the Executive's employment because of
the Executive's Disability during the Employment Period. "Disability" means
that the Executive has been unable, for a period of not less than (x) 120
consecutive business days, or (y) 180 days within any 12 month period, to
perform the Executive's duties under this Agreement, as a result of physical
or mental illness or injury. A termination of the Executive's employment by
the Company for Disability shall be communicated to the Executive by written
notice, and shall be effective on the 30th day after receipt of such notice by
the Executive (the "Disability Effective Date"), unless the Executive returns
to full-time performance of the Executive's duties before the Disability
Effective Date.
(b) BY THE COMPANY. (i) The Company may terminate the
Executive's employment during the Employment Period for Cause or
without Cause. "Cause" means (x) the conviction of the Executive for
the commission of (A) any felony, or (B) a misdemeanor involving
moral turpitude, or (y) willful misconduct by the Executive that
results in material and demonstrable damage to the business or
reputation of the Company. No act or failure to act on the part of
the Executive shall be considered "willful" unless it is done, or
omitted to be done, by the Executive in bad faith or without
reasonable belief that the Executive's action or omission was in the
best interests of the Company. Any act or failure to act that is
based upon authority given pursuant to a resolution duly adopted by
the Board, or the advice of counsel for the Company, shall be
conclusively presumed to be done, or omitted to be done, by the
Executive in good faith and in the best interests of the Company.
(ii) A termination of the Executive's employment for Cause
shall be effected in accordance with the following procedures. The
Company shall give the Executive written notice ("Notice of
Termination for Cause") of its intention to terminate the Executive's
employment for Cause, setting forth in reasonable detail the specific
conduct of the Executive that it considers to constitute Cause and
the specific provision(s) of this Agreement on which it relies, and
stating the date, time and place of the Special Board Meeting for
Cause. The "Special Board Meeting for Cause" means a meeting of the
Board called and held specifically for the purpose of considering the
Executive's termination for Cause, that takes place not less than ten
and not more than twenty business days after the Executive receives
the Notice of Termination for Cause. The Executive shall be
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given an opportunity, together with counsel, to be heard at the
Special Board Meeting for Cause. The Executive's termination for
Cause shall be effective when and if a resolution is duly adopted at
the Special Board Meeting for Cause.
(iii) A termination of the Executive's employment without
Cause shall be effected by giving the Executive written notice of the
termination.
(c) GOOD REASON. (i) The Executive may terminate
employment for Good Reason or without Good Reason. "Good
Reason" means:
A. failure by the Company or Donnkenny to re-elect
the Executive as a director, Chairman of the Board and Chief
Executive Officer, or the assignment to the Executive of any
duties or responsibilities inconsistent in any respect with
those customarily associated with the positions to be held
by the Executive pursuant to this Agreement, or any other
action by the Company that results in a diminution in the
Executive's position, authority, duties or responsibilities,
other than an isolated, insubstantial and inadvertent action
that is not taken in bad faith and is remedied by the
Company promptly after receipt of notice thereof from the
Executive;
B. any failure by the Company to comply with any
provision of Section 3 of this Agreement, other than an
isolated, insubstantial and inadvertent failure that is not
taken in bad faith and is remedied by the Company promptly
after receipt of notice thereof from the Executive;
C. any requirement by the Company that the
Executive's services be rendered primarily at a location or
locations other than that provided for in New York City;
D. any purported termination of the Executive's
employment by the Company for a reason or in a manner not
expressly permitted by this Agreement;
E. any failure by the Company to comply with
paragraph (c) of Section 14 of this Agreement; or
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F. any other material breach of this Agreement by
the Company that either is not taken in good faith or
is not remedied by the Company promptly after receipt
of notice thereof from the Executive.
(ii) A termination of employment by the Executive for Good
Reason shall be effectuated by giving the Company written notice
("Notice of Termination for Good Reason") of the termination, setting
forth in reasonable detail the specific conduct of the Company that
constitutes Good Reason and the specific provision(s) of this
Agreement on which the Executive relies. A termination of employment
by the Executive for Good Reason shall be effective on the fifth
business day following the date when the Notice of Termination for
Good Reason is given, unless the notice sets forth a later date
(which date shall in no event be later than 30 days after the notice
is given).
(iii) A termination of the Executive's employment by the
Executive without Good Reason shall be effected by giving the Company
written notice of the termination.
(d) NO WAIVER. The failure to set forth any fact or
circumstance in a Notice of Termination for Cause or a Notice of Termination
for Good Reason shall not constitute a waiver of the right to assert, and
shall not preclude the party giving notice from asserting, such fact or
circumstance in an attempt to enforce any right under or provision of this
Agreement.
(e) DATE OF TERMINATION. The "Date of Termination" means the
date of the Executive's death, the Disability Effective Date, the date on
which the termination of the Executive's employment by the Company for Cause
or without Cause or by the Executive for Good Reason is effective, or the date
on which the Executive gives the Company notice of a termination of employment
without Good Reason, as the case may be.
6. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(a) DEATH. If the Executive's employment is terminated by
reason of the Executive's death during the Employment Period, the Company
shall continue to pay to the Executive's designated beneficiaries (or, if
there is no such beneficiary, to the Executive's estate or legal
representative), the Annual Base Salary provided for in Section 3(a) as in
effect on the Date of Termination through the end of the month in which the
Executive's death occurs. The Company also shall pay to the Executive's
designated beneficiaries (or, if there is no such
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beneficiary, to the Executive's estate or legal representative), in a lump sum
in cash within 30 days of the Date of Termination (or, in the case of the
amount referred to in clause (i) below, as soon as practicable after the end
of the calendar year in which the Date of Termination occurs), the sum of the
following amounts (the "Accrued Obligations"): (i) any accrued but unpaid
Performance Bonus, vacation pay or other monetary payments to which Executive
was entitled on the Date of Termination, and (ii) a pro rata portion of the
Performance Bonus for the year in which the Date of Termination occurs, based
on (x) the number of days of such year prior to the Date of Termination, and
(y) the performance bonuses for such year, if any, paid to the other senior
executives of the Company and the percentage of such executives' annual base
salary represented by such performance bonuses. (So, by way of illustration,
if the Executive's employment is terminated after six months in a year in
which the other senior executives of the Company receive performance bonuses
representing 50% of their annual base salary, the Executive (or his
beneficiaries) would be entitled to receive an amount equal to the Executive's
Annual Base Salary then in effect, multiplied by .25 (i.e., Annual Base Salary
x .50 x .50)). With respect to medical insurance coverage, the Company shall
continue to provide the spouse and dependents of the Executive, at the expense
of the Company, with the medical insurance then provided generally to
dependents of employees of the Company, for a period of five (5) years
following the termination of the employment of the Executive, which medical
insurance coverage shall be included as part of any required continuation of
coverage under Part 6, Subtitle B of Title I of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or any similar state or local law
("COBRA Coverage"); provided, however, that the COBRA Coverage shall terminate
with respect to such spouse and/or dependents as of the date that the spouse
and/or dependents receive equivalent coverage and benefits under any plans,
programs and/or arrangements of a subsequent employer. The rights and benefits
of the estate or other legal representative of the Executive under the benefit
plans and programs of the Company shall be determined in accordance with the
provisions of such plans and programs. The rights and benefits of the estate
or other legal representative of the Executive with respect to the shares of
restricted stock, options and SARs referred to in Section 3(c) shall be
determined in accordance with the provisions of the plans and grant agreements
governing such shares and options. Except as otherwise specified in this
Agreement, neither the estate or other legal representative of the Executive
nor the Company shall have any further rights or obligations under this
Agreement.
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(b) DISABILITY. If the Executive's employment is terminated
by reason of the Executive's Disability during the Employment Period, the
Company shall continue to pay to the Executive the Annual Base Salary provided
for in Section 3(a) until the date on which the Executive begins receiving
payments pursuant to the long-term disability insurance policy referred to in
Section 4. The Company also shall pay to the Executive, in a lump sum in cash
within 30 days of the Date of Termination (or, in the case of any Performance
Bonus, as soon as practicable after the end of the calendar year on which the
Date of Termination occurs), the Accrued Obligations. The Company shall
continue to provide the Executive and the spouse and dependents of the
Executive, at the expense of the Company, with the medical insurance then
provided generally to dependents of employees of the Company, for a period of
five (5) years following the termination of the employment of the Executive,
which medical insurance coverage shall be included as part of any required
COBRA Coverage; provided, however, that the COBRA Coverage shall terminate
with respect to the Executive, the spouse and/or dependents of the Executive
as of the date that any such individual receives equivalent coverage and
benefits under any plans, programs and/or arrangements of a subsequent
employer. The rights and benefits of the Executive under the benefit plans and
programs of the Company shall be determined in accordance with the provisions
of such plans and programs. The rights and benefits of the Executive with
respect to the shares of restricted stock, options and the SARs referred to in
Section 3(c) shall be determined in accordance with the provisions of the
plans and grant agreements governing such shares and options. Except as
otherwise specified in this Agreement, neither the Executive nor the Company
shall have any further rights or obligations under this Agreement.
(c) PRIOR TO A CHANGE IN CONTROL, AND BY THE COMPANY OTHER
THAN FOR CAUSE, DEATH OR DISABILITY, OR BY THE EXECUTIVE FOR GOOD REASON. If,
during the Employment Period and prior to the occurrence of a Change in
Control, the Company terminates the Executive's employment, other than for
Cause, death or Disability, or the Executive terminates employment for Good
Reason, the Company shall, at the option of the Company, (i) continue to pay
to the Executive, until the expiration of the Employment Period then in
effect, the Annual Base Salary provided for in Section 3(a) (but in no event
less than one year) or (ii) pay the Executive a lump sum amount equal to the
present value of the sum of (x) Annual Base Salary provided for in Section
3(a) which would have been payable from the Date of Termination to the
scheduled expiration date of such Employment Period (but in no event less than
one year), and (y) the Accrued Obligations,
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discounted at a rate equal to the then applicable interest rate on 30-day U.S.
Treasury bills determined as of the Date of Termination by the Board. The
Company shall continue to provide the Executive and the spouse and dependents
of the Executive, at the expense of the Company with the medical insurance
then provided generally to dependents of employees of the Company, for a
period of five (5) years following the termination of the employment of the
Executive, which medical insurance coverage shall be included as part of any
required COBRA Coverage; provided, however, that the COBRA Coverage shall
terminate with respect to the Executive, the spouse and/or dependents of the
Executive as of the date that any such individual receives equivalent coverage
and benefits under any plans, programs and/or arrangements of a subsequent
employer. The rights and benefits of the Executive under the benefit plans and
programs of the Company shall be determined in accordance with the provisions
of such plans and programs. The rights and benefits of the Executive with
respect to the shares of restricted stock, options and SARs referred to in
Section 3(c) shall be determined in accordance with the provisions of the
plans and grant agreements governing such shares and options. Except as
otherwise specified in this Agreement, neither the Executive nor the Company
shall have any further rights or obligations under this Agreement. The
payments and benefits provided pursuant to this paragraph (c) of Section 6 are
intended as liquidated damages for a termination of the Executive's employment
by the Company other than for Cause or Disability or for the actions of the
Company leading to a termination of the Executive's employment by the
Executive for Good Reason, in each case prior to the occurrence of a Change in
Control, and shall be the sole and exclusive remedy therefor.
(d) AFTER A CHANGE IN CONTROL, AND BY THE COMPANY OTHER THAN
FOR CAUSE, DEATH OR DISABILITY, OR BY THE EXECUTIVE FOR GOOD REASON OR
OTHERWISE. If, during the Employment Period and upon or after the occurrence
of a Change in Control other than a Change in Control proposed, sponsored or
supported by the Executive, the Executive's employment is terminated by the
Company or the Executive for any or no reason other than by the Company for
Cause, death or Disability, the Company shall pay to the Executive a lump sum
amount in cash equal to three times the sum of (x) the Executive's Annual Base
Salary in effect on the Date of Termination, and (y) the Performance Bonus, if
any, paid to the Executive with respect to the calendar year prior to the Date
of Termination. The Company also shall pay to the Executive, in a lump sum in
cash within 30 days of the Date of Termination (or, in the case of any
Performance Bonus, as soon as practicable after the end of the calendar year
in which the Date of Termination occurs), the Accrued Obligations; provided,
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however, that the Company shall be required to pay the Performance Bonus
component of the Accrued Obligations only if no Performance Bonus is included
in the calculation of the amount referred to in the preceding sentence. The
Company shall continue to provide the Executive and the spouse and dependents
of the Executive, at the expense of the Company with the medical insurance
then provided generally to dependents of employees of the Company, for a
period of five (5) years following the termination of the employment of the
Executive, which medical insurance coverage shall be included as part of any
required COBRA Coverage; provided, however, that the COBRA Coverage shall
terminate with respect to the Executive, the spouse and/or dependents of the
Executive as of the date that any such individual receives equivalent coverage
and benefits under any plans, programs and/or arrangements of a subsequent
employer. The rights and benefits of the Executive under the benefit plans and
programs of the Company shall be determined in accordance with the provisions
of such plans and programs. The rights and benefits of the Executive with
respect to the shares of restricted stock, options and SARs referred to in
Section 3(c) shall be determined in accordance with the provisions of the
plans and grant agreements governing such shares and options. Except as
otherwise specified in this Agreement, neither the Executive nor the Company
shall have any further rights or obligations under this Agreement. The
payments and benefits provided pursuant to this paragraph (d) of Section 6 are
intended as liquidated damages for a termination of the Executive's employment
by the Company other than for Cause or Disability or for the actions of the
Company leading to a termination of the Executive's employment by the
Executive for Good Reason, in each case on or after the occurrence of a Change
in Control, and shall be the sole and exclusive remedy therefor.
(e) BY THE COMPANY FOR CAUSE; BY THE EXECUTIVE OTHER THAN
FOR GOOD REASON. If the Executive's employment is terminated by the Company
for Cause during the Employment Period, or if the Executive voluntarily
terminates employment during the Employment Period, other than for Good
Reason, the Company shall pay to the Executive in a lump sum in cash within 30
days of the Date of Termination any portion of the Executive's Annual Base
Salary through the Date of Termination that has not yet been paid, and the
Company shall have no further obligations under this Agreement, except as
otherwise specified in this Agreement. The rights and benefits of the
Executive under the benefit plans and programs of the Company shall be
determined in accordance with the provisions of such plans and programs. The
rights and benefits of the Executive with respect to the shares of restricted
stock, options and the SARs referred to in
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Section 3(c) shall be determined in accordance with the provisions of the
plans and grant agreements governing such shares and options.
(f) The Company's obligation to deliver the liquidated
damages payments described in paragraphs (c) and (d) of this Section 6 shall
be contingent on the Executive delivering to the Company, on or about the Date
or Termination, a legal release in a form acceptable to counsel to the
Company, releasing the Company, its affiliates, and the current and former
directors, officers and employees of the Company from any obligations relating
to his employment hereunder, subject to the Company's continuing obligations
under this Agreement and subject to the Executive's continuing rights under
the terms and conditions of the compensation and benefit plans in which the
Executive is a participant, as such plans may be amended from time to time.
(g) The respective obligations of the Company and the
Executive under Sections 9, 10, 11, 12 and 13 shall survive any termination of
Executive's employment; provided, however, that the Executive's obligations
under Section 11 (Non-Competition) shall terminate and shall not survive in
the event (i) the Executive's employment is terminated by the Company other
than for Cause or by the Executive for Good Reason, or (ii) the Executive's
employment is terminated for any or no reason following a Change in Control.
(h) Notwithstanding any other provision of this Agreement,
to the extent the Company reasonably determines that the Executive would be
subject to the excise tax under Section 4999 of the Internal Revenue Code of
1986, as amended (the "Code"), on any payments under Section 6 of this
Agreement and such other amounts or benefits the Executive receives from the
Company, any person whose actions result in a change of ownership covered by
Section 280G(b)(2) of the Code or any person affiliated with the Company or
such person, required to be included in the calculation of parachute payments
for purposes of Sections 280G and 4999 of the Code, the amounts provided under
this Agreement shall be automatically reduced to an amount one dollar less
than that which, when combined with such other amounts, would subject the
Executive to such excise tax.
7. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement
shall prevent or limit the Executive's continuing or future participation in
any plan, program, policy or practice provided by the Company or any of its
affiliated companies for which the Executive may qualify, nor, subject to
paragraph (f) of Section 16, shall anything in this Agreement limit or
otherwise
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affect such rights as the Executive may have under any contract or agreement
with the Company or any of its affiliated companies. Vested benefits and other
amounts that the Executive is otherwise entitled to receive under the
Restricted Stock Plan, the Incentive Stock Option Plan, or any other plan,
policy, practice or program of, or any contract of agreement with, the Company
or any of its affiliated companies on or after the Date of Termination shall
be payable in accordance with the terms of each such plan, policy, practice,
program, contract or agreement, as the case may be.
8. NO OFFSET, ETC. The Company's obligation to make the
payments provided for in, and otherwise to perform its obligations under, this
Agreement shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action that the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek
other employment or take any other action by way of mitigation of the amounts
payable to the Executive under any of the provisions of this Agreement, and
such amounts shall not be reduced, regardless of whether the Executive obtains
other employment.
9. INVENTIONS. Any and all inventions, innovations or
improvements ("inventions") made, developed or created by the Executive
(whether at the request or suggestion of the Company (which, as used in this
Section 9, shall be deemed to include the Company and each of its
subsidiaries) or otherwise, whether alone or in conjunction with others, and
whether during regular hours of work or otherwise) during the period of his
employment with the Company which may be directly or indirectly useful in, or
relate to, the business of the Company, shall be promptly and fully disclosed
by the Executive to the Board and shall be the Company's exclusive property as
against the Executive, and the Executive shall promptly deliver to an
appropriate representative of the Company as designated by the Board all
papers, drawings, models, data and other material relating to any inventions
made, developed or created by him as aforesaid. The Executive shall, at the
request of the Company and without any payment therefor, execute any documents
necessary or advisable in the opinion of the Company's counsel to direct
issuance of patents or copyrights to the Company with respect to such
inventions as are to be the Company's exclusive property as against the
Executive or to vest in the Company title to such inventions as against the
Executive. The expense of securing any such patent or copyright shall be borne
by the Company.
10. CONFIDENTIAL INFORMATION. The Executive shall hold all
secret or confidential information, knowledge or data
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relating to the Company or any of its affiliated companies and their
respective businesses that the Executive obtains during the Executive's
employment by the Company or any of its affiliated companies and that is not
public knowledge (other than as a result of the Executive's violation of this
Section 10) ("Confidential Information") in strict confidence. The Executive
shall not communicate, divulge or disseminate Confidential Information at any
time during or after the Executive's employment with the Company, except with
the prior written consent of the Company or as otherwise required by law or
regulation or by legal process. If the Executive is requested pursuant to, or
required by, applicable law or regulation or by legal process to disclose any
Confidential Information, the Executive will provide the Company, as promptly
as the circumstances reasonably permit, with notice of such request or
requirement and, unless a protective order or other appropriate relief is
previously obtained, the Confidential Information, subject to such request,
may be disclosed pursuant to and in accordance with the terms of such request
or requirement, provided that the Executive shall use his best efforts to
limit any such disclosure to the precise terms of such request or requirement.
11. NON-COMPETITION. The Executive acknowledges that the
services to be rendered by him to the Company (which, as used in this Section
11 shall be deemed to include the Company and each of its subsidiaries) are of
a special and unique character. In consideration of his employment hereunder,
the Executive agrees, for the benefit of the Company, that he will not, during
the term of this Agreement and (except in a case where the Executive's
employment is terminated (x) by the Company other than for Cause, (y) by the
Executive for Good Reason, or (z) by the Executive or the Company for any or
no reason following the occurrence of a Change in Control) thereafter until
the expiration of a period of twelve (12) months commencing on the date of
termination of his employment with the Company (a) engage, directly or
indirectly, whether as principal, agent, distributor, representative,
consultant, employee, partner, stockholder, limited partner or other investor
(other than an investment of not more than (i) five percent (5%) of the stock
or equity of any corporation the capital stock of which is publicly traded or
(ii) five percent (5%) of the ownership interest of any limited partnership or
other entity) or otherwise, within the United States of America, in any
apparel business which is competitive with the business now, or at any time
during the term of this Agreement, conducted by the Company, (b) solicit or
entice to endeavor to solicit or entice away from the Company any person who
was an officer, employee or sales representative of
15
<PAGE>
the Company, either for his own account or for any individual, firm or
corporation, whether or not such person would commit any breach of his
contract of employment by reason of leaving the service of the Company, and
the Executive agrees not to employ, directly or indirectly, any person who was
an officer, employee or sales representative of the Company or who by reason
of such position at any time is or may be likely to be in possession of any
confidential information or trade secrets relating to the businesses or
products of the Company, or (c) solicit or entice or endeavor to solicit or
entice away from the Company any customer or prospective customer of the
Company, either for his own account or for any individual, firm or
corporation. In addition, the Executive shall not, at any time during the term
of this Agreement or at any time thereafter, engage in the business which uses
as its name, in whole or in part, Donnkenny, Kenny Classics or any other
tradename or trademark or corporate name used by Donnkenny, the Company or any
of their subsidiaries.
12. INDEMNIFICATION. (a) The Company shall indemnify the
Executive to the fullest extent permitted by Delaware law in effect as of the
date hereof against all costs, expenses, liabilities and losses (including,
without limitation, attorneys' fees, judgments, fines, penalties, ERISA excise
taxes, penalties and amounts paid in settlement) reasonably incurred by the
Executive in connection with a Proceeding. For the purposes of this Section
12, a "Proceeding" shall mean any action, suit or proceeding, whether civil,
criminal, administrative or investigative, in which the Executive is made, or
is threatened to be made, a party to, or a witness in, such action, suit or
proceeding by reason of the fact that he is or was an officer, director or
employee of the Company or is or was serving as an officer, director, member,
employee, trustee or agent of any other entity at the request of the Company,
whether or not the basis of such Proceeding arises out of or in connection
with the Executive's alleged action or omission in an official capacity.
(b) The Company shall advance to the Executive all
reasonable costs and expenses incurred by him in connection with a Proceeding
within 20 days after receipt by the Company of a written request for such
advance. Such request shall include an itemized list of the costs and expenses
and an undertaking by the Executive to repay the amount of such advance if it
shall ultimately be determined that he is not entitled to be indemnified
against such costs and expenses. Upon a request under subsection (b), the
Executive shall be deemed to have met the standard of conduct required for
such indemnification unless the contrary shall be established by a court of
competent jurisdiction.
16
<PAGE>
(c) The Executive shall not be entitled to indemnification
under this Section 12 unless he meets the standard of conduct specified in the
Delaware General Corporation Law. Any indemnification under subsection (a)
(unless ordered by a court) shall be made by the Company only as authorized in
the specific case upon a determination that indemnification of the Executive
is proper in the circumstances because he has met the applicable standard of
conduct set forth in the Delaware Corporation Law. Such determination shall be
made (1) by the Board by a majority vote of a quorum consisting of directors
who were not parties to such Proceeding, or (2) if such a quorum is not
obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (3) by the
stockholders.
(d) The Company shall not settle any Proceeding or claim in
any manner which would impose on the Executive any penalty or limitation
without his prior written consent. Neither the Company nor the Executive will
unreasonably withhold its or his consent to any proposed settlement.
(e) The indemnification in this Section 12 shall inure to
the benefit of the Executive's heirs, executors and administrators.
(f) The Company agrees to use its best efforts to obtain,
continue and maintain an adequate directors and officers' liability insurance
policy and shall cause such policy to cover the Executive to the extent the
Company provides such coverage for its other executive officers.
13. ATTORNEYS' FEES. The Company agrees to pay, as incurred,
all legal fees and expenses incurred by the Company and the Executive in
connection with the preparation of this Agreement. The Company further agrees
to pay, as incurred, to the fullest extent permitted by law, all legal fees
and expenses that the Executive may reasonably incur as a result of any
contest (regardless of the outcome) by the Company, the Executive or others of
the validity or enforceability of or liability under, or otherwise involving,
any provision of this Agreement, together with interest on any delayed payment
at the applicable federal rate provided for in Section 7872(f)(2)(A) of the
Code.
14. SUCCESSORS; BENEFICIARIES. (a) This Agreement is
personal to the Executive and, without the prior written consent of the
Company, shall not be assignable by the Executive otherwise than by will or
the laws of descent and distribution.
17
<PAGE>
This Agreement shall inure to the benefit of and be enforceable by the
Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
(c) The Company shall require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would have been required to perform it if no such
succession had taken place. As used in this Agreement, "Company" shall mean
both the Company as defined above and any such successor that assumes and
agrees to perform this Agreement, by operation of law or otherwise.
(d) The Executive shall be entitled, to the extent permitted
under any applicable law, to select and change the beneficiary or
beneficiaries to receive any compensation or benefit payable hereunder
following the Executive's death by giving the Company written notice thereof.
In the event of the Executive's death or a judicial determination of his
incompetence, reference in this Agreement to the Executive shall be deemed,
where appropriate, to refer to his beneficiary, estate or other legal
representative.
15. MISCELLANEOUS. (a) This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York, without
reference to principles of conflict of laws. The captions of this Agreement
are not part of the provisions hereof and shall have no force or effect. This
Agreement may not be amended or modified except by a written agreement
executed by the parties hereto or their respective successors and legal
representatives.
(b) All notices and other communications under this
Agreement shall be in writing and shall be given by hand delivery to the other
party or by registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Executive:
Mr. Harvey A. Appelle
25 Erie Street
Irvington, New York 10573
18
<PAGE>
If to the Company:
Donnkenny Apparel, Inc.
1411 Broadway
New York, New York 10018
Attention: General Counsel
or to such other address as either party furnishes to the other in writing in
accordance with this paragraph (b) of Section 15. Notices and communications
shall be effective when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement. If any provision of this Agreement shall be held
invalid or unenforceable in part, the remaining portion of such provision,
together with all other provisions of this Agreement, shall remain valid and
enforceable and continue in full force and effect to the fullest extent
consistent with law.
(d) Notwithstanding any other provision of this Agreement,
the Company may withhold from amounts payable under this Agreement all
federal, state, local and foreign taxes that are required to be withheld by
applicable laws or regulations.
(e) The Executive's or the Company's failure to insist upon
strict compliance with any provisions of, or to assert, any right under, this
Agreement (including, without limitation, the right of the Executive to
terminate employment for Good Reason pursuant to paragraphs (c) or (d) of
Section 5 of this Agreement) shall not be deemed to be a waiver of such
provision or right or of any other provision of or right under this Agreement.
(f) The Executive and the Company acknowledge that this
Agreement supersedes any other agreement between them concerning the subject
matter hereof.
(g) The rights and benefits of the Executive under this
Agreement may not be anticipated, assigned, alienated or subject to
attachment, garnishment, levy, execution or other legal or equitable process
except as required by law. Any attempt by the Executive to anticipate,
alienate, assign, sell, transfer, pledge, encumber or charge the same shall be
void. Payments hereunder shall not be considered assets of the Executive in
the event of insolvency or bankruptcy.
19
<PAGE>
(h) This Agreement may be executed in several counterparts,
each of which shall be deemed an original, and said counterparts shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, the Executive has hereunto set the
Executive's hand and, pursuant to the authorization of the Board of Directors,
the Company has caused this Agreement to be executed in its name on its
behalf, all as of the day and year first above written.
------------------------------------
Harvey A. Appelle
DONNKENNY APPAREL, INC.
By
----------------------------------
20
<PAGE>
ANNEX A
DONNKENNY, INC.
1411 BROADWAY
NEW YORK, NEW YORK 10018
As of April 14, 1997
Mr. Harvey A. Appelle
25 Erie Street
Irvington, New York 10573
As referenced in your employment agreement with Donnkenny
Apparel, Inc., dated as of April 14, 1997, you have been awarded a restricted
stock award of 150,000 shares of common stock ("Common Stock") of Donnkenny,
Inc. (the "Company") under the Company's 1996 Restricted Stock Plan (the
"Plan").
The shares are vested according to the following schedule:
Date of Vesting Number of shares
--------------- ----------------
March 31, 1999 30,000
March 31, 2000 120,000
Notwithstanding the foregoing, the vesting of such shares shall be accelerated
in the event of a Change in Control, as that term is defined in your
employment agreement.
Accordingly, we request you to complete, sign and send to
the Company an Investment Representation Letter in the form attached hereto.
The terms of the Plan, including, without limitation, those relating to
withholding taxes and securities regulation, are incorporated in this
Agreement by reference.
All shares of Common Stock received by you hereunder shall
contain a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE ACT, OR STATE SECURITIES LAWS, BUT HAVE BEEN
ISSUED OR TRANSFERRED PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933 (THE "ACT"). NO
DISTRIBUTION, SALE, OFFER FOR SALE, TRANSFER,
A-1
<PAGE>
DELIVERY, PLEDGE, OR OTHER DISPOSITION OF THESE SECURITIES MAY BE
EFFECTED EXCEPT IN COMPLIANCE WITH THE ACT, ANY APPLICABLE STATE
LAWS, AND THE RULES AND REGULATIONS OF THE SECURITIES AND EXCHANGE
COMMISSION AND STATE AGENCIES
PROMULGATED THEREUNDER.
YOUR PARTICULAR ATTENTION IS DIRECTED TO SECTION 8 OF THE
PLAN WHICH DESCRIBES CERTAIN IMPORTANT CONDITIONS RELATING TO FEDERAL AND
STATE SECURITIES LAWS THAT MUST BE SATISFIED BEFORE THE COMPANY CAN ISSUE ANY
SHARES TO YOU. THE COMPANY HAS NO OBLIGATION TO REGISTER THE SHARES THAT YOU
RECEIVE HEREBY, AND IF IT NEVER REGISTERS THE SHARES, YOU WILL NOT BE ABLE TO
SELL THE SHARES UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE. AT THE
PRESENT TIME, EXEMPTIONS FROM REGISTRATION UNDER FEDERAL AND STATE SECURITIES
LAWS ARE VERY LIMITED AND MIGHT BE UNAVAILABLE TO YOU AT THE TIME YOU WISH TO
SELL YOUR SHARES. IN ADDITION, YOU SHOULD CONSULT WITH YOUR TAX ADVISOR
CONCERNING THE RAMIFICATIONS TO YOU OF HOLDING OR SELLING YOUR SHARES.
This agreement shall bind and inure to the benefit of the
parties hereto and the successors and assigns of the Company.
Please acknowledge this agreement by signing and returning
to the Company the Acceptance and Acknowledgment attached hereto.
Very truly yours,
DONNKENNY, INC.
By:
----------------------
A-2
<PAGE>
INSTRUCTION: PLEASE COMPLETE THE INFORMATION REQUESTED BELOW,
DETACH THIS PAGE AFTER SIGNING WHERE INDICATED AND RETURN TO THE
COMPANY.
ACCEPTANCE AND ACKNOWLEDGMENT
I accept the restricted stock award described in the Letter
Agreement from Donnkenny, Inc., dated as of April 14, 1997, granted pursuant
to the Donnkenny, Inc. 1996 Restricted Stock Plan (the "Plan"). I further
acknowledge that I have read and understand all the provisions and limitations
of the Plan.
Dated: As of April 14, 1997
--------------------------------
Signature
Name: Harvey A. Appelle
-------------------------------
Social Security No.
------------------
A-3
<PAGE>
ANNEX B-1
DONNKENNY, INC.
INCENTIVE STOCK OPTION AGREEMENT
TO: Harvey A. Appelle
As referenced in your employment agreement with Donnkenny
Apparel, Inc. ("Donnkenny") dated as of April 14, 1997, pursuant to the 1992
Stock Option Plan, as amended (the "Plan") of Donnkenny, Inc. (the "Company"),
you have been granted incentive stock options for the purchase of 68,084
shares (the "Option") of the Company's Common Stock at an exercise price of
$2.9375 (i.e., $2-15/16) per share, the closing price of the Company's Common
Stock on April 14, 1997. Please sign and return to the Company the Acceptance
and Acknowledgement attached to this Stock Option Agreement. The terms of the
Plan, including, without limitation, those relating to withholding taxes, are
incorporated into this Agreement by reference. This Option is intended to be
an "incentive stock option" within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended.
The terms of the Option are set forth in the Plan and in
this Agreement. Certain of the terms set forth in the Plan are summarized
below; however, reference should be made to the Plan for the complete terms.
Term: This option shall terminate ten years from date of
grant, unless sooner terminated in accordance with the terms of the Plan and
this Agreement.
Exercise: During your lifetime only you can exercise the
Option. The Plan also provides for exercise of the Option by the personal
representative of your estate or the beneficiary thereof following your death.
You may use the Notice of Exercise in the form attached to this Agreement when
you exercise the Option.
Notices: All notices sent in connection with this Option
shall be in writing and, if to the Company, shall be delivered personally to
the Secretary of the Company or mailed to its principal office, addressed to
the attention of the Secretary and, if to the Optionee, shall be delivered
personally or mailed to the Optionee at the address noted on the attached
Acceptance and Acknowledgement. Such addresses may be changed at any time by
notice from one party to the other.
B-1-1
<PAGE>
Payment for Shares: The Option may be paid for by
delivery to the Company of the following together with the Notice
of Exercise:
(a) Bank certified or cashier's checks; or
(b) Unless the Plan Administrator in its sole discretion
determines otherwise, shares of the capital stock of the Company held by you
having a fair market value at the time of exercise, as determined in good
faith by the Plan Administrator, equal to the exercise price.
Upon receipt of written notice of exercise and payment and
delivery of any other required documentation, the Company shall deliver to the
person exercising the Option a certificate or certificates for such shares. It
shall be a condition to the performance of the Company's obligation to issue
or transfer Common Stock upon exercise of this option that the Optionee pay,
or make provision satisfactory to the Company for the payment of, any taxes
which the Company is obligated to collect with respect to the issue or
transfer of Common Stock upon exercise.
Termination: If your employment by the Company or Donnkenny
is terminated for Cause, as defined in the Plan, the Option will terminate as
of the first discovery by the Company or Donnkenny of any reason for
termination for Cause. If your employment stops because of your death or
disability, the Option shall terminate 12 months after your employment stops.
Otherwise the Option will terminate 3 months after your employment with the
Company or Donnkenny ends.
Nothing in the Plan or in this Agreement shall confer on you
any right to continue in the employ of the Company or any parent or subsidiary
of the Company or interfere in any way with the right of the Company or any
parent or subsidiary of the Company to terminate your employment at any time.
Transfer of Option: The Option is not transferable
except by will or by the applicable laws of descent and
distribution.
B-1-2
<PAGE>
Vesting: The Option is vested according to the
following schedule:
Date of Vesting Number of shares exercisable
--------------- ----------------------------
March 31, 1998 34,042
March 31, 1999 34,042
Notwithstanding the foregoing, the vesting of such Options shall be
accelerated in the event of a Change in Control, as that term is defined in
your employment agreement.
Date of Grant: The date of grant of the Option is
April 14, 1997.
YOUR PARTICULAR ATTENTION IS DIRECTED TO SECTION 8 OF THE
PLAN WHICH DESCRIBES CERTAIN IMPORTANT CONDITIONS RELATING TO FEDERAL AND
STATE SECURITIES LAWS THAT MUST BE SATISFIED BEFORE THE OPTION CAN BE
EXERCISED AND BEFORE THE COMPANY CAN ISSUE ANY SHARES TO YOU. THE COMPANY HAS
NO OBLIGATION TO REGISTER THE SHARES THAT WOULD BE ISSUED UPON THE EXERCISE OF
YOUR OPTION, AND IF SUCH SHARES ARE NOT REGISTERED, YOU WILL NOT BE ABLE TO
EXERCISE THE OPTION UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE. AT THE
PRESENT TIME, EXEMPTIONS FROM REGISTRATION UNDER FEDERAL AND STATE SECURITIES
LAWS ARE VERY LIMITED AND MIGHT BE UNAVAILABLE TO YOU PRIOR TO THE EXPIRATION
OF THE OPTION. CONSEQUENTLY, YOU MIGHT HAVE NO OPPORTUNITY TO EXERCISE THE
OPTION AND TO RECEIVE SHARES UPON SUCH EXERCISE. IN ADDITION, YOU SHOULD
CONSULT WITH YOUR TAX ADVISOR CONCERNING THE RAMIFICATIONS TO YOU OF HOLDING
OR EXERCISING YOUR OPTIONS OR HOLDING OR SELLING THE SHARES UNDERLYING SUCH
OPTIONS.
You understand that, during any period in which the shares
which may be acquired pursuant to your Option are subject to the provisions of
Section 16 of the Securities Exchange Act of 1934 (and you are also so
subject), in order for your transactions under the Plan to qualify for the
exemption from Section 16(b) provided by Rule 16b-3, a total of six months
must elapse between the grant of the Option and the sale of the Option (other
than upon exercise or conversion) or the shares underlying the Option.
All decisions or interpretations made by the Compensation
Committee with regard to any question arising hereunder or under the Plan
shall be binding and conclusive on the Company and you.
B-1-3
<PAGE>
This Agreement shall bind and inure to the benefit of the
parties hereto and the successors and assigns of the Company and, to the
extent provided in the Plan, your executors, administrators, legatees, and
heirs.
Please execute the Acceptance and Acknowledgement set forth
below on the enclosed copy of this Agreement and return it to the undersigned.
Very truly yours,
DONNKENNY, INC.
Dated: As of April 14, 1997
By:
---------------------------
B-1-4
<PAGE>
INSTRUCTION: PLEASE COMPLETE THE INFORMATION REQUESTED BELOW,
DETACH THIS PAGE AFTER SIGNING WHERE INDICATED AND RETURN TO THE
COMPANY.
ACCEPTANCE AND ACKNOWLEDGEMENT
I, a resident of the State of ____________________________, accept
the incentive stock option described in the Incentive Stock Option Agreement
dated as of April 14, 1997 and in the Donnkenny, Inc. 1992 Stock Option Plan,
as amended, and acknowledge receipt of a copy of this Agreement. I have read
and understand all the provisions and limitations of the Plan, particularly
those relating to incentive stock options and the provisions of Section 8 of
the Plan relating to securities regulations.
Dated: As of April 14, 1997
-----------------------
- ------------------------------
Signature
- ------------------------------
Social Security Number
Name: Harvey A. Appelle
--------------------------
Address:
--------------------------
------------------------------------
B-1-5
<PAGE>
DONNKENNY, INC.
NOTICE OF EXERCISE OF INCENTIVE STOCK OPTION
------------------------------
(Name, please print)
------------------------------
(Date)
DONNKENNY, INC.
1411 Broadway
New York, New York 10018
Gentlemen:
I hereby exercise my right to purchase _______________ shares of Common Stock
of Donnkenny, Inc., a Delaware corporation ("Donnkenny"), pursuant to, and in
accordance with, the Donnkenny, Inc. 1992 Stock Option Plan and the Incentive
Stock Option Agreement ("Agreement") dated as of April 14, 1997. As provided
in that Agreement, I hereby: [check one]
[ ] deliver herewith a certified or bank cashier's
check in the amount of the aggregate option
exercise price; or
[ ] undertake to deliver shares of the capital stock
of Donnkenny held by me having a fair market value
at the time of exercise, as determined in good
faith by the Plan Administrator, equal to the
aggregate option exercise price.
Please deliver to me stock certificates representing the
subject shares registered as follows:
Name:
--------------------------------------------
Address:
-----------------------------------------
-------------------------------------------------
Social Security Number
--------------------------
The aggregate exercise price is $ _________ (total number of shares
to be purchased x $________).
B-1-6
<PAGE>
(1) Tax Implications. I understand that there are certain tax
implications to my exercise of my right to purchase shares of Common Stock
under the Agreement. I further understand that it is my obligation to confer
with my own tax advisor with respect to such tax implications.
(2) Securities Regulation. I understand that the Company may require
me to represent that the shares of Common Stock I propose to purchase are not
being acquired for resale of such securities.
Very truly yours,
--------------------------
Name:
B-1-7
<PAGE>
ANNEX B-2
DONNKENNY, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
TO: Harvey A. Appelle
As referenced in your employment agreement with Donnkenny
Apparel, Inc. ("Donnkenny") dated as of April 14, 1997, pursuant to the 1992
Stock Option Plan, as amended (the Plan") of Donnkenny, Inc. (the "Company"),
you have been granted non-qualified stock options for the purchase of 81,916
shares (the "Option") of the Company's Common Stock at an exercise price of
$2.9375 (i.e., $2-15/16) per share, the closing price of the Company's Common
Stock on April 14, 1997. Please sign and return to the Company the Acceptance
and Acknowledgement attached to this Stock Option Agreement. The terms of the
Plan, including, without limitation, those relating to withholding taxes, are
incorporated into this Agreement by reference. This Option is not intended to
qualify as an "incentive stock option" within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended.
The terms of the Option are set forth in the Plan and in
this Agreement. Certain of the terms set forth in the Plan are summarized
below; however, reference should be made to the Plan for the complete terms.
Term: This Option shall terminate ten years from date
of grant.
Exercise: During your lifetime only you can exercise the
Option. The Plan also provides for exercise of the Option by the personal
representative of your estate or the beneficiary thereof following your death.
You may use the Notice of Exercise in the form attached to this Agreement when
you exercise the Option.
Notices: All notices sent in connection with this Option
shall be in writing and, if to the Company, shall be delivered personally to
the Secretary of the Company or mailed to its principal office, addressed to
the attention of the Secretary and, if to the Optionee, shall be delivered
personally or mailed to the Optionee at the address noted on the attached
Acceptance and Acknowledgement. Such addresses may be changed at any time by
notice from one party to the other.
B-2-1
<PAGE>
Payment for Shares: The Option may be paid for by
delivery to the Company of the following together with the Notice
of Exercise:
(a) Bank certified or cashier's checks;
(b) Unless the Plan Administrator in its sole discretion
determines otherwise, shares of the capital stock of the Company held by you
having a fair market value at the time of exercise, as determined in good
faith by the Plan Administrator, equal to the exercise price; or
(c) A properly executed Notice of Exercise together with
instructions to the Company to withhold from the shares that would otherwise
be issued upon exercise that number of shares having a fair market value equal
to the option exercise price.
Upon receipt of written notice of exercise and payment and
delivery of any other required documentation, the Company shall deliver to the
person exercising the Option a certificate or certificates for such shares. It
shall be a condition to the performance of the Company's obligation to issue
or transfer Common Stock upon exercise of this option that the Optionee pay,
or make provision satisfactory to the Company for the payment of, any taxes
which the Company is obligated to collect with respect to the issue or
transfer of Common Stock upon exercise.
Termination: As stated above, this Option shall terminate on
April 14, 2007 (i.e., the tenth anniversary of the date of grant),
notwithstanding the fact that your employment by the Company or Donnkenny may
have terminated prior to such date.
Nothing in the Plan or in this Agreement shall confer on you
any right to continue in the employ of the Company or any parent or subsidiary
of the Company or interfere in any way with the right of the Company or any
parent or subsidiary of the Company to terminate your employment at any time.
Transfer of Option: The Option is not transferable
except by will or by the applicable laws of descent and distribution.
B-2-2
<PAGE>
Vesting: The Option is vested according to the
following schedule:
Date of Vesting Number of shares exercisable
--------------- ----------------------------
March 31, 1998 80,958
March 31, 1999 958
Notwithstanding the foregoing, the vesting of such Options shall be
accelerated in the event of a Change in Control, as that term is defined in
your employment agreement.
Date of Grant: The date of grant of the Option is April 14,
1997.
YOUR PARTICULAR ATTENTION IS DIRECTED TO SECTION 8 OF THE
PLAN WHICH DESCRIBES CERTAIN IMPORTANT CONDITIONS RELATING TO FEDERAL AND
STATE SECURITIES LAWS THAT MUST BE SATISFIED BEFORE THE OPTION CAN BE
EXERCISED AND BEFORE THE COMPANY CAN ISSUE ANY SHARES TO YOU. THE COMPANY HAS
NO OBLIGATION TO REGISTER THE SHARES THAT WOULD BE ISSUED UPON THE EXERCISE OF
YOUR OPTION, AND IF SUCH SHARES ARE NOT REGISTERED, YOU WILL NOT BE ABLE TO
EXERCISE THE OPTION UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE. AT THE
PRESENT TIME, EXEMPTIONS FROM REGISTRATION UNDER FEDERAL AND STATE SECURITIES
LAWS ARE VERY LIMITED AND MIGHT BE UNAVAILABLE TO YOU PRIOR TO THE EXPIRATION
OF THE OPTION. CONSEQUENTLY, YOU MIGHT HAVE NO OPPORTUNITY TO EXERCISE THE
OPTION AND TO RECEIVE SHARES UPON SUCH EXERCISE. IN ADDITION, YOU SHOULD
CONSULT WITH YOUR TAX ADVISOR CONCERNING THE RAMIFICATIONS TO YOU OF HOLDING
OR EXERCISING YOUR OPTIONS OR HOLDING OR SELLING THE SHARES UNDERLYING SUCH
OPTIONS.
You understand that, during any period in which the shares
which may be acquired pursuant to your Option are subject to the provisions of
Section 16 of the Securities Exchange Act of 1934 (and you are also so
subject), in order for your transactions under the Plan to qualify for the
exemption from Section 16(b) provided by Rule 16b-3, a total of six months
must elapse between the grant of the Option and the sale of the Option (other
than upon exercise or conversion) or the shares underlying the Option.
All decisions or interpretations made by the Compensation
Committee with regard to any question arising hereunder or under the Plan
shall be binding and conclusive on the Company and you.
This Agreement shall bind and inure to the benefit of
the parties hereto and the successors and assigns of the Company
B-2-3
<PAGE>
and, to the extent provided in the Plan, your executors,
administrators, legatees, and heirs.
Please execute the Acceptance and Acknowledgement set forth
below on the enclosed copy of this Agreement and return it to the undersigned.
Very truly yours,
DONNKENNY, INC.
Dated: As of April 14, 1997
By:
-----------------------
B-2-4
<PAGE>
INSTRUCTION: PLEASE COMPLETE THE INFORMATION REQUESTED BELOW,
DETACH THIS PAGE AFTER SIGNING WHERE INDICATED AND RETURN TO THE
COMPANY.
ACCEPTANCE AND ACKNOWLEDGEMENT
I, a resident of the State of ____________________________, accept
the non-qualified stock option described in the Non-Qualified Stock Option
Agreement dated as of April 14, 1997 and in the Donnkenny, Inc. 1992 Stock
Option Plan, as amended, and acknowledge receipt of a copy of this Agreement.
I have read and understand all the provisions and limitations of the Plan,
particularly those relating to incentive stock options and the provisions of
Section 8 of the Plan relating to securities regulations.
Dated: As of April 14, 1997
---------------------
- ------------------------------
Signature
- ------------------------------
Social Security Number
Name: Harvey A. Appelle
--------------------------
Address:
--------------------------
------------------------------------
B-2-5
<PAGE>
DONNKENNY, INC.
NOTICE OF EXERCISE OF NON-QUALIFIED STOCK OPTION
------------------------------
(Name, please print)
------------------------------
(Date)
DONNKENNY, INC.
1411 Broadway
New York, New York 10018
Gentlemen:
I hereby exercise my right to purchase _______________ shares of Common Stock
of Donnkenny, Inc., a Delaware corporation ("Donnkenny"), pursuant to, and in
accordance with, the Donnkenny, Inc. 1992 Stock Option Plan and the
Non-Qualified Stock Option Agreement ("Agreement") dated as of April 14, 1997.
As provided in that Agreement, I hereby: [check one]
[ ] deliver herewith a certified or bank cashier's
check in the amount of the aggregate option
exercise price; or
[ ] undertake to deliver shares of the capital stock
of Donnkenny held by me having a fair market value
at the time of exercise, as determined in good
faith by the Plan Administrator, equal to the
aggregate option exercise price; or
[ ] authorize Donnkenny to withhold from the shares
that would otherwise be issued upon exercise that
number of shares having a fair market value equal
to the aggregate option exercise price.
Please deliver to me stock certificates representing the
subject shares registered as follows:
Name:
-------------------------------------------
Address:
----------------------------------------
------------------------------------------------
Social Security Number
--------------------------
B-2-6
<PAGE>
The aggregate exercise price is $ _________ (total number of shares
to be purchased x $________).
(1) Tax Implications. I understand that there are certain tax
implications to my exercise of my right to purchase shares of Common Stock
under the Agreement. I further understand that it is my obligation to confer
with my own tax advisor with respect to such tax implications.
(2) Securities Regulation. I understand that the Company may require
me to represent that the shares of Common Stock I propose to purchase are not
being acquired for resale of such securities.
Very truly yours,
---------------------------
Name:
B-2-7
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ANNEX C
CASH-PAY STOCK APPRECIATION RIGHTS AGREEMENT
As of April 14, 1997
Mr. Harvey A. Appelle
25 Erie Street
Irvington, New York 10573
As referenced in your employment agreement with Donnkenny
Apparel, Inc. (the "Company") dated April 14, 1997, the Compensation Committee
of the Board of Directors (the "Committee") of the Company has awarded you
cash-pay stock appreciation rights. This letter will confirm the following
agreement made today between you and the Company pursuant to your employment
agreement.
1. The Company hereby grants you cash-pay stock appreciation
rights relating to 50,000 shares of Common Stock of Donnkenny, Inc. (the
"Common Stock") at an exercise price of $2.9375 (i.e., $2-15\16) per share.
2. Your stock appreciation rights entitle you to receive
from the Company an amount in cash equal to the product of (x) the amount, if
any, by which the Fair Market Value (as defined below) of a share of Common
Stock on the date of exercise exceeds the exercise price per share specified
in Paragraph 1 hereof and (y) the number of shares with respect to which such
stock appreciation rights shall have been exercised.
For purposes of the foregoing, the Fair Market Value of the
Common Stock shall be deemed to be the average of the daily closing prices per
share of Common Stock for the ten consecutive Trading Days (as such term is
hereinafter defined) immediately prior to the date of exercise. The closing
price for any day shall be the last quoted price (or, if not so quoted, the
average of the high bid and low asked prices) in the over-the-counter market,
as reported by The Nasdaq Stock Market or such other system then in use; or,
if no bids for such security are quoted by any such organization, the average
of the closing bid and asked prices as furnished by a professional market
maker making a market in such security selected by the Committee. The term
"Trading Day" shall mean a day on which The Nasdaq Stock Market is open for
trading. If at the time of exercise the Common Stock is not publicly held or
not so listed or traded, "Fair Market
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Value" shall mean the fair value per share of Common Stock, as determined by
an independent investment banking firm experienced in the valuation of
securities selected in good faith by the Committee, or, if no such investment
banking firm is, in the good faith judgment of the Committee, available to
make such determination, in good faith by the Committee.
3. The stock appreciation rights shall vest and become
exercisable as to all 50,000 shares of Common Stock on March 31, 1999;
provided, however, that such "vesting" shall be accelerated in the event of
(i) the termination of Executive's employment by the Company other than for
Cause or by the Executive for Good Reason in either case prior to March 31,
1999, or (ii) a Change in Control, as such terms are defined in your
employment agreement.
4. Payment shall be made in cash only, and you shall not be
entitled to receive any shares of Common Stock or any other securities of the
Company or Donnkenny. Your exercise of your stock appreciation rights may be
effected only during the period beginning on the eleventh business day
following the date of release of the Company's quarterly or annual statement
of sales and earnings and ending on the twentieth business day following such
date.
5. The unexercised portion of the stock appreciation rights
granted herein will automatically and without notice terminate and become null
and void on April 14, 2002 (i.e., the fifth anniversary of the date of grant),
notwithstanding the fact that your employment by the Company or its
subsidiaries may have terminated prior to such date.
6. During your lifetime the stock appreciation rights
granted herein shall be exercisable only by you or by your guardian or legal
representative in the event of your incompetence or incapacity; provided,
however, that you may transfer the stock appreciation rights to a trust for
the benefit of yourself, your spouse and/or your children or grandchildren or
other members of your family. Subject to the foregoing, this agreement and the
stock appreciation rights granted herein may not be assigned or transferred in
whole or in part, except by will or by the laws of the descent and
distribution.
7. Any exercise of the stock appreciation rights granted
herein shall be in writing addressed to the Secretary of the Company at its
general offices and shall be substantially in the form attached hereto. In
connection with such exercise, the Company shall make such provisions as it
deems necessary and
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appropriate to satisfy its obligation to withhold federal, state or local
income taxes or other taxes incurred by reason of such exercise.
Please indicate your acceptance of all of the terms and
conditions of this agreement by signing and returning one copy of this letter.
Very truly yours,
DONNKENNY, INC.
By
-----------------------------
Accepted:
- --------------------------------
Harvey A. Appelle
Date: As of April 14, 1997
C-3
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EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 14th day of April, 1997, by
and between Donnkenny Apparel, Inc., a Delaware corporation (the "Company"),
and Lynn Siemers-Cross (the "Executive").
W I T N E S S E T H T H A T
WHEREAS, the Company wishes to provide for the employment by
the Company of the Executive, and the Executive wishes to serve the Company,
in the capacities and on the terms and conditions set forth in this Agreement;
NOW, THEREFORE, it is hereby agreed as follows:
1. EMPLOYMENT PERIOD. The Company shall employ the
Executive, and the Executive shall serve the Company, on the terms and
conditions set forth in this Agreement. The term of this Agreement shall
commence on the date of this Agreement and, unless earlier terminated in
accordance with Section 5 hereof, shall continue through the fourth
anniversary of such date (such four-year term shall be referred to herein as
the "Employment Period").
2. POSITION AND DUTIES. (a) During the Employment Period,
the Executive shall serve as President and Chief Operating Officer of each of
the Company and each of its subsidiaries and the Company's parent corporation,
Donnkenny, Inc., a Delaware corporation ("Donnkenny") with such duties and
responsibilities as are customarily assigned to such positions, and such other
duties and responsibilities not inconsistent therewith as may from time to
time be assigned to her by the Board of Directors of the Company (the
"Board"). The Executive shall be a member of the Board on the first day of the
Employment Period, and the Board shall propose the Executive for re-election
and shall use all reasonable efforts to have the Executive re-elected to the
Board and for positions specified above throughout the Employment Period.
(b) During the Employment Period, the Executive shall
report to the Chief Executive Officer.
(c) During the Employment Period, and excluding any periods
of vacation and sick leave to which the Executive is entitled, the Executive
shall devote her full business time and attention to the business and affairs
of the Company and shall
<PAGE>
perform, faithfully and diligently her duties and responsibilities hereunder.
It shall not be considered a violation of the foregoing for the Executive to
serve on industry, civic, social or charitable boards or committees, so long
as such activities do not interfere in a significant manner with the
performance of the Executive's responsibilities as an employee of the Company
in accordance with this Agreement.
3. COMPENSATION. (a) BASE SALARY. The Executive's
compensation during the Employment Period shall be determined by the Board
upon the recommendation of the committee of the Board having responsibility
for approving the compensation of senior executives (the "Compensation
Committee"), subject to the next sentence and the other provisions of this
Section 3. During the Employment Period, the Executive shall receive an annual
base salary ("Annual Base Salary") of $500,000. The Annual Base Salary shall
be payable in accordance with the Company's regular payroll practice for its
senior executives, as in effect from time to time.
(b) Performance Bonus. During the Employment Period, the
Executive shall be eligible to receive an annual bonus ("Performance Bonus")
in an amount, if any, to be determined on an annual basis by the Board upon
the recommendation of the Compensation Committee, taking into account the
performance of Executive and the Company during the year in respect of which
the Performance Bonus is payable. Notwithstanding the foregoing, the
Performance Bonus for fiscal 1997 shall not be less than $150,000. The
Performance Bonus shall be payable at or as soon as practicable after the end
of each calendar year (generally after completion of the annual audit), in
cash. If the Executive's employment with the Company is terminated for any
reason during the Employment Period, in addition to any amounts to which the
Executive may be entitled pursuant to Section 6, the Executive shall be
entitled to receive any Performance Bonus that the Board has awarded to the
Executive prior to the Date of Termination (as defined below).
(c) RESTRICTED STOCK AND STOCK OPTIONS. In addition to the
payments provided above, on April 14, 1997, the Compensation Committee granted
to the Executive, subject to the execution of this Agreement, (i) an award of
150,000 restricted shares of the Common Stock of Donnkenny pursuant to
Donnkenny's Restricted Stock Plan at a purchase price equal to the aggregate
par value of such shares (i.e., $.01 per share); and (ii) options to purchase
150,000 shares of Donnkenny Common Stock pursuant to Donnkenny's Incentive
Stock Option Plan (the "Stock Option Plan"), with the purchase price upon
exercise of such options
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equal to $2.9375 (i.e., $2-15/16) per share (i.e., the closing price of the
Common Stock on the date of such grant). The shares of restricted stock and
options shall vest as follows: 115,000 options will become exercisable on
March 31, 1998; (B) 30,000 shares of restricted stock shall vest on, and
35,000 options will become exercisable on, March 31, 1999, and (C) 120,000
shares of restricted stock shall vest on March 31, 2000 and, with respect to
the options, such options shall remain exercisable during the remainder of
their respective terms notwithstanding any termination of the Executive's
employment except as otherwise provided in the grant agreements referred to
below; provided, however, that the vesting of such shares of restricted stock
and options shall be accelerated in the event of a Change in Control (as
defined herein) and, in the case of certain of the options, in certain other
circumstances set forth in the grant agreement referred to below. With respect
to the options, such options shall be incentive stock options to fullest
extent permitted by applicable law and the Stock Option Plan. The grant of the
shares of restricted stock and options has been made by the Compensation
Committee pursuant to the grant agreements attached hereto as Annexes A, B-1
(with respect to incentive stock options) and B-2 (with respect to
non-qualified stock options), respectively.
(d) SARs. Also on April 14, 1997, the Compensation Committee
granted to the Executive, subject to the execution of this Agreement, cash-pay
stock appreciation rights with respect to 50,000 shares of Donnkenny Common
Stock (the "SARs"). The SARs shall vest in its entirety on March 31, 1999;
provided, however, that such "vesting" shall be accelerated in the event of
(i) the termination of Executive's employment by the Company other than for
Cause or by the Executive for Good Reason (as such terms are defined below) in
either case prior to March 31, 1999, or (ii) a Change in Control. The grant of
the SARs has been made by the Compensation Committee pursuant to the grant
agreement attached hereto as Annex C.
(e) AUTOMOBILE ALLOWANCE. The Company shall lease for the
benefit of the Executive an automobile selected by the Executive and will pay
directly or reimburse the Executive for up to an aggregate of $1,000 per month
during the Employment Period for the lease payments with respect thereto and
gasoline, insurance, parking, maintenance and similar expenses.
(f) REIMBURSEMENT OF EXPENSES AND ADMINISTRATIVE
SUPPORT. The Company shall pay or reimburse the Executive, upon
the presentation of appropriate documentation of such expenses,
for all reasonable travel and other expenses incurred by the
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<PAGE>
Executive in performing her obligations under this Agreement. The Company
further agrees to furnish the Executive with office space and administrative
support, and any other assistance and accommodations as shall be reasonably
required by the Executive in the performance of her duties under this
Agreement.
(g) VACATION. Executive shall be entitled to four (4)
weeks paid vacation in each calendar year.
(h) DEDUCTIONS. All payments made under this Agreement shall
be subject to such deductions at the source as from time to time may be
required to be made pursuant to any law, rule, regulation or order.
(i) CHANGE IN CONTROL. For purposes of this
Agreement, a "Change in Control" of the Company shall be deemed
to have occurred upon any of the following events:
(A) A person or entity or group of persons or
entities, acting in concert, shall become the direct or
indirect beneficial owner (within the meaning of Rule 13d-3
of the Securities Exchange Act of 1934, as amended), of
securities of the Company representing more than fifty
percent (50%) of the combined voting power of the issued and
outstanding common stock of Donnkenny or the Company; or
(B) The majority of the Board, or of the board of
directors of Donnkenny, is no longer comprised of the
incumbent directors who constitute such board on the date of
this Agreement and any other individual(s) who becomes a
director subsequent to the date of this Agreement whose
initial election or nomination for election as a director,
as the case may be, was approved by at least a majority of
the directors who comprised the incumbent directors as of
the date of such election or nomination; or
(C) The Board shall approve a sale of all or
substantially all of the assets of the Company, or the board
of directors of Donnkenny shall approve a sale of all or
substantially all of the assets of Donnkenny; or
(D) The Board, or the board of directors of
Donnkenny, shall approve any merger, consolidation, or like
business combination or reorganization of the Company, or of
Donnkenny, the consummation of which would result in the
occurrence of any event described
4
<PAGE>
in clause (A) or (B) above, and such transaction shall have
been consummated.
4. PARTICIPATION IN BENEFIT PLANS. The Executive shall be
entitled to participate, during the term of this Agreement, in the Company's
benefit programs, including but not limited to qualified or non-qualified
pension plans, supplemental pension plans, group hospitalization, health,
dental care, death benefit, post-retirement welfare plans, or other present or
future group employee benefit plans or programs of the Company for which key
executives are or shall become eligible (collectively, the "Benefit Plans"),
on the same terms as other key executives of the Company. If participation in
any of such Benefit Plans is subject to or based on length of service, the
Executive shall be credited with ten years service upon execution of this
Agreement. In addition to and without limiting the generality of the
foregoing, (i) the Company shall obtain and maintain (x) a "key man" life
insurance policy under which the Company is the named beneficiary in the
amount of $2,500,000, and (y) a term life insurance policy in the amount of
$2,500,000, which policy shall be owned by the Executive, in each case from a
nationally-recognized insurance carrier reasonably acceptable to the
Executive, and (ii) the Company shall provide, in addition to any such
insurance regularly provided to the Company's executives and/or employees,
long-term disability insurance which will pay at least sixty percent (60%) of
Executive's Annual Base Salary until the Executive reaches age 65. Upon
termination of the employment of the Executive with the Company for any
reason, the Company shall have no further obligation to pay the premiums on
any of such policies, and the Executive shall be entitled to purchase from the
Company any life insurance policy then owned by the Company on the life of the
Executive and the aforementioned disability insurance policy (if permitted
under the terms of such policy) for a purchase price equal to the cash
surrender value of each policy, if any.
5. TERMINATION OF EMPLOYMENT. (a) DEATH OR DISABILITY. The
Executive's employment shall terminate automatically upon the Executive's
death during the Employment Period. The Company shall be entitled to terminate
the Executive's employment because of the Executive's Disability during the
Employment Period. "Disability" means that the Executive has been unable, for
a period of not less than (x) 120 consecutive business days, or (y) 180 days
within any 12 month period, to perform the Executive's duties under this
Agreement, as a result of physical or mental illness or injury. A termination
of the Executive's employment by the Company for Disability shall be
communicated to the Executive by written
5
<PAGE>
notice, and shall be effective on the 30th day after receipt of such notice by
the Executive (the "Disability Effective Date"), unless the Executive returns
to full-time performance of the Executive's duties before the Disability
Effective Date.
(b) BY THE COMPANY. (i) The Company may terminate the
Executive's employment during the Employment Period for Cause or
without Cause. "Cause" means (x) the conviction of the Executive for
the commission of (A) any felony, or (B) a misdemeanor involving
moral turpitude, or (y) willful misconduct by the Executive that
results in material and demonstrable damage to the business or
reputation of the Company. No act or failure to act on the part of
the Executive shall be considered "willful" unless it is done, or
omitted to be done, by the Executive in bad faith or without
reasonable belief that the Executive's action or omission was in the
best interests of the Company. Any act or failure to act that is
based upon authority given pursuant to a resolution duly adopted by
the Board, or the advice of counsel for the Company, shall be
conclusively presumed to be done, or omitted to be done, by the
Executive in good faith and in the best interests of the Company.
(ii) A termination of the Executive's employment for Cause
shall be effected in accordance with the following procedures. The
Company shall give the Executive written notice ("Notice of
Termination for Cause") of its intention to terminate the Executive's
employment for Cause, setting forth in reasonable detail the specific
conduct of the Executive that it considers to constitute Cause and
the specific provision(s) of this Agreement on which it relies, and
stating the date, time and place of the Special Board Meeting for
Cause. The "Special Board Meeting for Cause" means a meeting of the
Board called and held specifically for the purpose of considering the
Executive's termination for Cause, that takes place not less than ten
and not more than twenty business days after the Executive receives
the Notice of Termination for Cause. The Executive shall be given an
opportunity, together with counsel, to be heard at the Special Board
Meeting for Cause. The Executive's termination for Cause shall be
effective when and if a resolution is duly adopted at the Special
Board Meeting for Cause.
(iii) A termination of the Executive's employment without
Cause shall be effected by giving the Executive written notice of the
termination.
6
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(c) GOOD REASON. (i) The Executive may terminate
employment for Good Reason or without Good Reason. "Good
Reason" means:
A. failure by the Company or Donnkenny to re-elect
the Executive as a director, President and Chief Operating
Officer, or the assignment to the Executive of any duties or
responsibilities inconsistent in any respect with those
customarily associated with the positions to be held by the
Executive pursuant to this Agreement, or any other action by
the Company that results in a diminution in the Executive's
position, authority, duties or responsibilities, other than
an isolated, insubstantial and inadvertent action that is
not taken in bad faith and is remedied by the Company
promptly after receipt of notice thereof from the Executive;
B. any failure by the Company to comply with any
provision of Section 3 of this Agreement, other than an
isolated, insubstantial and inadvertent failure that is not
taken in bad faith and is remedied by the Company promptly
after receipt of notice thereof from the Executive;
C. any requirement by the Company that the
Executive's services be rendered primarily at a location or
locations other than that provided for in New York City;
D. any purported termination of the Executive's
employment by the Company for a reason or in a manner not
expressly permitted by this Agreement;
E. any failure by the Company to comply with
paragraph (c) of Section 14 of this Agreement; or
F. any other material breach of this Agreement by
the Company that either is not taken in good faith or is not
remedied by the Company promptly after receipt of notice
thereof from the Executive.
(ii) A termination of employment by the Executive for Good
Reason shall be effectuated by giving the Company written notice
("Notice of Termination for Good Reason") of the termination, setting
forth in reasonable detail the specific conduct of the Company that
constitutes Good Reason and the specific provision(s) of this
Agreement on which the
7
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Executive relies. A termination of employment by the Executive for
Good Reason shall be effective on the fifth business day following
the date when the Notice of Termination for Good Reason is given,
unless the notice sets forth a later date (which date shall in no
event be later than 30 days after the notice is given).
(iii) A termination of the Executive's employment by the Executive
without Good Reason shall be effected by giving the Company written
notice of the termination.
(d) NO WAIVER. The failure to set forth any fact or
circumstance in a Notice of Termination for Cause or a Notice of Termination
for Good Reason shall not constitute a waiver of the right to assert, and
shall not preclude the party giving notice from asserting, such fact or
circumstance in an attempt to enforce any right under or provision of this
Agreement.
(e) DATE OF TERMINATION. The "Date of Termination" means the
date of the Executive's death, the Disability Effective Date, the date on
which the termination of the Executive's employment by the Company for Cause
or without Cause or by the Executive for Good Reason is effective, or the date
on which the Executive gives the Company notice of a termination of employment
without Good Reason, as the case may be.
6. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(a) DEATH. If the Executive's employment is terminated by
reason of the Executive's death during the Employment Period, the Company
shall continue to pay to the Executive's designated beneficiaries (or, if
there is no such beneficiary, to the Executive's estate or legal
representative), the Annual Base Salary provided for in Section 3(a) as in
effect on the Date of Termination through the end of the month in which the
Executive's death occurs. The Company also shall pay to the Executive's
designated beneficiaries (or, if there is no such beneficiary, to the
Executive's estate or legal representative), in a lump sum in cash within 30
days of the Date of Termination (or, in the case of the amount referred to in
clause (i) below, as soon as practicable after the end of the calendar year in
which the Date of Termination occurs), the sum of the following amounts (the
"Accrued Obligations"): (i) any accrued but unpaid Performance Bonus, vacation
pay or other monetary payments to which Executive was entitled on the Date of
Termination, and (ii) a pro rata portion of the Performance Bonus for the year
in which the Date of Termination occurs, based on (x) the number of days of
such year prior to the Date of Termination, and (y) the
8
<PAGE>
performance bonuses for such year, if any, paid to the other senior executives
of the Company and the percentage of such executives' annual base salary
represented by such performance bonuses. (So, by way of illustration, if the
Executive's employment is terminated after six months in a year in which the
other senior executives of the Company receive performance bonuses
representing 50% of their annual base salary, the Executive (or her
beneficiaries) would be entitled to receive an amount equal to the Executive's
Annual Base Salary then in effect, multiplied by .25 (i.e., Annual Base Salary
x .50 x .50)). With respect to medical insurance coverage, the Company shall
continue to provide the spouse and dependents of the Executive, at the expense
of the Company, with the medical insurance then provided generally to
dependents of employees of the Company, for a period of five (5) years
following the termination of the employment of the Executive, which medical
insurance coverage shall be included as part of any required continuation of
coverage under Part 6, Subtitle B of Title I of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or any similar state or local law
("COBRA Coverage"); provided, however, that the COBRA Coverage shall terminate
with respect to such spouse and/or dependents as of the date that the spouse
and/or dependents receive equivalent coverage and benefits under any plans,
programs and/or arrangements of a subsequent employer. The rights and benefits
of the estate or other legal representative of the Executive under the benefit
plans and programs of the Company shall be determined in accordance with the
provisions of such plans and programs. The rights and benefits of the estate
or other legal representative of the Executive with respect to the shares of
restricted stock, options and SARs referred to in Section 3(c) shall be
determined in accordance with the provisions of the plans and grant agreements
governing such shares and options. Except as otherwise specified in this
Agreement, neither the estate or other legal representative of the Executive
nor the Company shall have any further rights or obligations under this
Agreement.
(b) DISABILITY. If the Executive's employment is terminated
by reason of the Executive's Disability during the Employment Period, the
Company shall continue to pay to the Executive the Annual Base Salary provided
for in Section 3(a) until the date on which the Executive begins receiving
payments pursuant to the long-term disability insurance policy referred to in
Section 4. The Company also shall pay to the Executive, in a lump sum in cash
within 30 days of the Date of Termination (or, in the case of any Performance
Bonus, as soon as practicable after the end of the calendar year on which the
Date of Termination occurs), the Accrued Obligations. The Company shall
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continue to provide the Executive and the spouse and dependents of the
Executive, at the expense of the Company, with the medical insurance then
provided generally to dependents of employees of the Company, for a period of
five (5) years following the termination of the employment of the Executive,
which medical insurance coverage shall be included as part of any required
COBRA Coverage; provided, however, that the COBRA Coverage shall terminate
with respect to the Executive, the spouse and/or dependents of the Executive
as of the date that any such individual receives equivalent coverage and
benefits under any plans, programs and/or arrangements of a subsequent
employer. The rights and benefits of the Executive under the benefit plans and
programs of the Company shall be determined in accordance with the provisions
of such plans and programs. The rights and benefits of the Executive with
respect to the shares of restricted stock, options and the SARs referred to in
Section 3(c) shall be determined in accordance with the provisions of the
plans and grant agreements governing such shares and options. Except as
otherwise specified in this Agreement, neither the Executive nor the Company
shall have any further rights or obligations under this Agreement.
(c) PRIOR TO A CHANGE IN CONTROL, AND BY THE COMPANY OTHER
THAN FOR CAUSE, DEATH OR DISABILITY, OR BY THE EXECUTIVE FOR GOOD REASON. If,
during the Employment Period and prior to the occurrence of a Change in
Control, the Company terminates the Executive's employment, other than for
Cause, death or Disability, or the Executive terminates employment for Good
Reason, the Company shall, at the option of the Company, (i) continue to pay
to the Executive, until the expiration of the Employment Period then in
effect, the Annual Base Salary provided for in Section 3(a) (but in no event
less than one year) or (ii) pay the Executive a lump sum amount equal to the
present value of the sum of (x) Annual Base Salary provided for in Section
3(a) which would have been payable from the Date of Termination to the
scheduled expiration date of such Employment Period (but in no event less than
one year), and (y) the Accrued Obligations, discounted at a rate equal to the
then applicable interest rate on 30-day U.S. Treasury bills determined as of
the Date of Termination by the Board. The Company shall continue to provide
the Executive and the spouse and dependents of the Executive, at the expense
of the Company with the medical insurance then provided generally to
dependents of employees of the Company, for a period of five (5) years
following the termination of the employment of the Executive, which medical
insurance coverage shall be included as part of any required COBRA Coverage;
provided, however, that the COBRA Coverage shall terminate with respect to the
Executive, the spouse and/or dependents of the
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Executive as of the date that any such individual receives equivalent coverage
and benefits under any plans, programs and/or arrangements of a subsequent
employer. The rights and benefits of the Executive under the benefit plans and
programs of the Company shall be determined in accordance with the provisions
of such plans and programs. The rights and benefits of the Executive with
respect to the shares of restricted stock, options and SARs referred to in
Section 3(c) shall be determined in accordance with the provisions of the
plans and grant agreements governing such shares and options. Except as
otherwise specified in this Agreement, neither the Executive nor the Company
shall have any further rights or obligations under this Agreement. The
payments and benefits provided pursuant to this paragraph (c) of Section 6 are
intended as liquidated damages for a termination of the Executive's employment
by the Company other than for Cause or Disability or for the actions of the
Company leading to a termination of the Executive's employment by the
Executive for Good Reason, in each case prior to the occurrence of a Change in
Control, and shall be the sole and exclusive remedy therefor.
(d) AFTER A CHANGE IN CONTROL, AND BY THE COMPANY OTHER THAN
FOR CAUSE, DEATH OR DISABILITY, OR BY THE EXECUTIVE FOR GOOD REASON OR
OTHERWISE. If, during the Employment Period and upon or after the occurrence
of a Change in Control other than a Change in Control proposed, sponsored or
supported by the Executive, the Executive's employment is terminated by the
Company or the Executive for any or no reason other than by the Company for
Cause, death or Disability, the Company shall pay to the Executive a lump sum
amount in cash equal to three times the sum of (x) the Executive's Annual Base
Salary in effect on the Date of Termination, and (y) the Performance Bonus, if
any, paid to the Executive with respect to the calendar year prior to the Date
of Termination. The Company also shall pay to the Executive, in a lump sum in
cash within 30 days of the Date of Termination (or, in the case of any
Performance Bonus, as soon as practicable after the end of the calendar year
in which the Date of Termination occurs), the Accrued Obligations; provided,
however, that the Company shall be required to pay the Performance Bonus
component of the Accrued Obligations only if no Performance Bonus is included
in the calculation of the amount referred to in the preceding sentence. The
Company shall continue to provide the Executive and the spouse and dependents
of the Executive, at the expense of the Company with the medical insurance
then provided generally to dependents of employees of the Company, for a
period of five (5) years following the termination of the employment of the
Executive, which medical insurance coverage shall be included as part of any
required COBRA Coverage; provided, however, that the COBRA Coverage shall
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terminate with respect to the Executive, the spouse and/or dependents of the
Executive as of the date that any such individual receives equivalent coverage
and benefits under any plans, programs and/or arrangements of a subsequent
employer. The rights and benefits of the Executive under the benefit plans and
programs of the Company shall be determined in accordance with the provisions
of such plans and programs. The rights and benefits of the Executive with
respect to the shares of restricted stock, options and SARs referred to in
Section 3(c) shall be determined in accordance with the provisions of the
plans and grant agreements governing such shares and options. Except as
otherwise specified in this Agreement, neither the Executive nor the Company
shall have any further rights or obligations under this Agreement. The
payments and benefits provided pursuant to this paragraph (d) of Section 6 are
intended as liquidated damages for a termination of the Executive's employment
by the Company other than for Cause or Disability or for the actions of the
Company leading to a termination of the Executive's employment by the
Executive for Good Reason, in each case on or after the occurrence of a Change
in Control, and shall be the sole and exclusive remedy therefor.
(e) BY THE COMPANY FOR CAUSE; BY THE EXECUTIVE OTHER THAN
FOR GOOD REASON. If the Executive's employment is terminated by the Company
for Cause during the Employment Period, or if the Executive voluntarily
terminates employment during the Employment Period, other than for Good
Reason, the Company shall pay to the Executive in a lump sum in cash within 30
days of the Date of Termination any portion of the Executive's Annual Base
Salary through the Date of Termination that has not yet been paid, and the
Company shall have no further obligations under this Agreement, except as
otherwise specified in this Agreement. The rights and benefits of the
Executive under the benefit plans and programs of the Company shall be
determined in accordance with the provisions of such plans and programs. The
rights and benefits of the Executive with respect to the shares of restricted
stock, options and the SARs referred to in Section 3(c) shall be determined in
accordance with the provisions of the plans and grant agreements governing
such shares and options.
(f) The Company's obligation to deliver the liquidated
damages payments described in paragraphs (c) and (d) of this Section 6 shall
be contingent on the Executive delivering to the Company, on or about the Date
or Termination, a legal release in a form acceptable to counsel to the
Company, releasing the Company, its affiliates, and the current and former
directors, officers and employees of the Company from any obligations relating
to her employment hereunder, subject to the Company's
12
<PAGE>
continuing obligations under this Agreement and subject to the Executive's
continuing rights under the terms and conditions of the compensation and
benefit plans in which the Executive is a participant, as such plans may be
amended from time to time.
(g) The respective obligations of the Company and the
Executive under Sections 9, 10, 11, 12 and 13 shall survive any termination of
Executive's employment; provided, however, that the Executive's obligations
under Section 11 (Non-Competition) shall terminate and shall not survive in
the event (i) the Executive's employment is terminated by the Company other
than for Cause or by the Executive for Good Reason, or (ii) the Executive's
employment is terminated for any or no reason following a Change in Control.
(h) Notwithstanding any other provision of this Agreement,
to the extent the Company reasonably determines that the Executive would be
subject to the excise tax under Section 4999 of the Internal Revenue Code of
1986, as amended (the "Code"), on any payments under Section 6 of this
Agreement and such other amounts or benefits the Executive receives from the
Company, any person whose actions result in a change of ownership covered by
Section 280G(b)(2) of the Code or any person affiliated with the Company or
such person, required to be included in the calculation of parachute payments
for purposes of Sections 280G and 4999 of the Code, the amounts provided under
this Agreement shall be automatically reduced to an amount one dollar less
than that which, when combined with such other amounts, would subject the
Executive to such excise tax.
7. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement
shall prevent or limit the Executive's continuing or future participation in
any plan, program, policy or practice provided by the Company or any of its
affiliated companies for which the Executive may qualify, nor, subject to
paragraph (f) of Section 16, shall anything in this Agreement limit or
otherwise affect such rights as the Executive may have under any contract or
agreement with the Company or any of its affiliated companies. Vested benefits
and other amounts that the Executive is otherwise entitled to receive under
the Restricted Stock Plan, the Incentive Stock Option Plan, or any other plan,
policy, practice or program of, or any contract of agreement with, the Company
or any of its affiliated companies on or after the Date of Termination shall
be payable in accordance with the terms of each such plan, policy, practice,
program, contract or agreement, as the case may be.
13
<PAGE>
8. NO OFFSET, ETC. The Company's obligation to make the
payments provided for in, and otherwise to perform its obligations under, this
Agreement shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action that the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek
other employment or take any other action by way of mitigation of the amounts
payable to the Executive under any of the provisions of this Agreement, and
such amounts shall not be reduced, regardless of whether the Executive obtains
other employment.
9. INVENTIONS. Any and all inventions, innovations or
improvements ("inventions") made, developed or created by the Executive
(whether at the request or suggestion of the Company (which, as used in this
Section 9, shall be deemed to include the Company and each of its
subsidiaries) or otherwise, whether alone or in conjunction with others, and
whether during regular hours of work or otherwise) during the period of her
employment with the Company which may be directly or indirectly useful in, or
relate to, the business of the Company, shall be promptly and fully disclosed
by the Executive to the Board and shall be the Company's exclusive property as
against the Executive, and the Executive shall promptly deliver to an
appropriate representative of the Company as designated by the Board all
papers, drawings, models, data and other material relating to any inventions
made, developed or created by her as aforesaid. The Executive shall, at the
request of the Company and without any payment therefor, execute any documents
necessary or advisable in the opinion of the Company's counsel to direct
issuance of patents or copyrights to the Company with respect to such
inventions as are to be the Company's exclusive property as against the
Executive or to vest in the Company title to such inventions as against the
Executive. The expense of securing any such patent or copyright shall be borne
by the Company.
10. CONFIDENTIAL INFORMATION. The Executive shall hold all
secret or confidential information, knowledge or data relating to the Company
or any of its affiliated companies and their respective businesses that the
Executive obtains during the Executive's employment by the Company or any of
its affiliated companies and that is not public knowledge (other than as a
result of the Executive's violation of this Section 10) ("Confidential
Information") in strict confidence. The Executive shall not communicate,
divulge or disseminate Confidential Information at any time during or after
the Executive's employment with the Company, except with the prior written
consent of the Company or as otherwise required by law or regulation or by
legal process. If the Executive is requested
14
<PAGE>
pursuant to, or required by, applicable law or regulation or by legal process
to disclose any Confidential Information, the Executive will provide the
Company, as promptly as the circumstances reasonably permit, with notice of
such request or requirement and, unless a protective order or other
appropriate relief is previously obtained, the Confidential Information,
subject to such request, may be disclosed pursuant to and in accordance with
the terms of such request or requirement, provided that the Executive shall
use her best efforts to limit any such disclosure to the precise terms of such
request or requirement.
11. NON-COMPETITION. The Executive acknowledges that the
services to be rendered by her to the Company (which, as used in this Section
11 shall be deemed to include the Company and each of its subsidiaries) are of
a special and unique character. In consideration of her employment hereunder,
the Executive agrees, for the benefit of the Company, that she will not,
during the term of this Agreement and (except in a case where the Executive's
employment is terminated (x) by the Company other than for Cause, (y) by the
Executive for Good Reason, or (z) by the Executive or the Company for any or
no reason following the occurrence of a Change in Control) thereafter until
the expiration of a period of twelve (12) months commencing on the date of
termination of her employment with the Company (a) engage, directly or
indirectly, whether as principal, agent, distributor, representative,
consultant, employee, partner, stockholder, limited partner or other investor
(other than an investment of not more than (i) five percent (5%) of the stock
or equity of any corporation the capital stock of which is publicly traded or
(ii) five percent (5%) of the ownership interest of any limited partnership or
other entity) or otherwise, within the United States of America, in any
apparel business which is competitive with the business now, or at any time
during the term of this Agreement, conducted by the Company, (b) solicit or
entice to endeavor to solicit or entice away from the Company any person who
was an officer, employee or sales representative of the Company, either for
her own account or for any individual, firm or corporation, whether or not
such person would commit any breach of her contract of employment by reason of
leaving the service of the Company, and the Executive agrees not to employ,
directly or indirectly, any person who was an officer, employee or sales
representative of the Company or who by reason of such position at any time is
or may be likely to be in possession of any confidential information or trade
secrets relating to the businesses or products of the Company, or (c) solicit
or entice or endeavor to solicit or entice away from the Company any customer
or prospective customer of the Company, either for her
15
<PAGE>
own account or for any individual, firm or corporation. In addition, the
Executive shall not, at any time during the term of this Agreement or at any
time thereafter, engage in the business which uses as its name, in whole or in
part, Donnkenny, Kenny Classics or any other tradename or trademark or
corporate name used by Donnkenny, the Company or any of their subsidiaries.
12. INDEMNIFICATION. (a) The Company shall indemnify the
Executive to the fullest extent permitted by Delaware law in effect as of the
date hereof against all costs, expenses, liabilities and losses (including,
without limitation, attorneys' fees, judgments, fines, penalties, ERISA excise
taxes, penalties and amounts paid in settlement) reasonably incurred by the
Executive in connection with a Proceeding. For the purposes of this Section
12, a "Proceeding" shall mean any action, suit or proceeding, whether civil,
criminal, administrative or investigative, in which the Executive is made, or
is threatened to be made, a party to, or a witness in, such action, suit or
proceeding by reason of the fact that she is or was an officer, director or
employee of the Company or is or was serving as an officer, director, member,
employee, trustee or agent of any other entity at the request of the Company,
whether or not the basis of such Proceeding arises out of or in connection
with the Executive's alleged action or omission in an official capacity.
(b) The Company shall advance to the Executive all
reasonable costs and expenses incurred by her in connection with a Proceeding
within 20 days after receipt by the Company of a written request for such
advance. Such request shall include an itemized list of the costs and expenses
and an undertaking by the Executive to repay the amount of such advance if it
shall ultimately be determined that she is not entitled to be indemnified
against such costs and expenses. Upon a request under subsection (b), the
Executive shall be deemed to have met the standard of conduct required for
such indemnification unless the contrary shall be established by a court of
competent jurisdiction.
(c) The Executive shall not be entitled to indemnification
under this Section 12 unless she meets the standard of conduct specified in
the Delaware General Corporation Law. Any indemnification under subsection (a)
(unless ordered by a court) shall be made by the Company only as authorized in
the specific case upon a determination that indemnification of the Executive
is proper in the circumstances because she has met the applicable standard of
conduct set forth in the Delaware Corporation Law. Such determination shall be
made (1) by the Board by a majority vote of a quorum consisting of directors
who
16
<PAGE>
were not parties to such Proceeding, or (2) if such a quorum is not
obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (3) by the
stockholders.
(d) The Company shall not settle any Proceeding or claim in
any manner which would impose on the Executive any penalty or limitation
without her prior written consent. Neither the Company nor the Executive will
unreasonably withhold its or her consent to any proposed settlement.
(e) The indemnification in this Section 12 shall inure to
the benefit of the Executive's heirs, executors and administrators.
(f) The Company agrees to use its best efforts to obtain,
continue and maintain an adequate directors and officers' liability insurance
policy and shall cause such policy to cover the Executive to the extent the
Company provides such coverage for its other executive officers.
13. ATTORNEYS' FEES. The Company agrees to pay, as incurred,
all legal fees and expenses incurred by the Company and the Executive in
connection with the preparation of this Agreement. The Company further agrees
to pay, as incurred, to the fullest extent permitted by law, all legal fees
and expenses that the Executive may reasonably incur as a result of any
contest (regardless of the outcome) by the Company, the Executive or others of
the validity or enforceability of or liability under, or otherwise involving,
any provision of this Agreement, together with interest on any delayed payment
at the applicable federal rate provided for in Section 7872(f)(2)(A) of the
Code.
14. SUCCESSORS; BENEFICIARIES. (a) This Agreement is
personal to the Executive and, without the prior written consent of the
Company, shall not be assignable by the Executive otherwise than by will or
the laws of descent and distribution. This Agreement shall inure to the
benefit of and be enforceable by the Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
(c) The Company shall require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent that the
17
<PAGE>
Company would have been required to perform it if no such succession had taken
place. As used in this Agreement, "Company" shall mean both the Company as
defined above and any such successor that assumes and agrees to perform this
Agreement, by operation of law or otherwise.
(d) The Executive shall be entitled, to the extent permitted
under any applicable law, to select and change the beneficiary or
beneficiaries to receive any compensation or benefit payable hereunder
following the Executive's death by giving the Company written notice thereof.
In the event of the Executive's death or a judicial determination of her
incompetence, reference in this Agreement to the Executive shall be deemed,
where appropriate, to refer to her beneficiary, estate or other legal
representative.
15. MISCELLANEOUS. (a) This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York, without
reference to principles of conflict of laws. The captions of this Agreement
are not part of the provisions hereof and shall have no force or effect. This
Agreement may not be amended or modified except by a written agreement
executed by the parties hereto or their respective successors and legal
representatives.
(b) All notices and other communications under this
Agreement shall be in writing and shall be given by hand delivery to the other
party or by registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Executive:
Ms. Lynn Siemers-Cross
145 West 67th Street, #33G
New York, New York 10023
If to the Company:
Donnkenny Apparel, Inc.
1411 Broadway
New York, New York 10018
Attention: General Counsel
or to such other address as either party furnishes to the other in writing in
accordance with this paragraph (b) of Section 15. Notices and communications
shall be effective when actually received by the addressee.
18
<PAGE>
(c) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement. If any provision of this Agreement shall be held
invalid or unenforceable in part, the remaining portion of such provision,
together with all other provisions of this Agreement, shall remain valid and
enforceable and continue in full force and effect to the fullest extent
consistent with law.
(d) Notwithstanding any other provision of this Agreement,
the Company may withhold from amounts payable under this Agreement all
federal, state, local and foreign taxes that are required to be withheld by
applicable laws or regulations.
(e) The Executive's or the Company's failure to insist upon
strict compliance with any provisions of, or to assert, any right under, this
Agreement (including, without limitation, the right of the Executive to
terminate employment for Good Reason pursuant to paragraphs (c) or (d) of
Section 5 of this Agreement) shall not be deemed to be a waiver of such
provision or right or of any other provision of or right under this Agreement.
(f) The Executive and the Company acknowledge that this
Agreement supersedes any other agreement between them concerning the subject
matter hereof.
(g) The rights and benefits of the Executive under this
Agreement may not be anticipated, assigned, alienated or subject to
attachment, garnishment, levy, execution or other legal or equitable process
except as required by law. Any attempt by the Executive to anticipate,
alienate, assign, sell, transfer, pledge, encumber or charge the same shall be
void. Payments hereunder shall not be considered assets of the Executive in
the event of insolvency or bankruptcy.
(h) This Agreement may be executed in several counterparts,
each of which shall be deemed an original, and said counterparts shall
constitute but one and the same instrument.
19
<PAGE>
IN WITNESS WHEREOF, the Executive has hereunto set the
Executive's hand and, pursuant to the authorization of the Board of Directors,
the Company has caused this Agreement to be executed in its name on its
behalf, all as of the day and year first above written.
--------------------------------------
Lynn Siemers-Cross
DONNKENNY APPAREL, INC.
By
------------------------------------
20
<PAGE>
ANNEX A
DONNKENNY, INC.
1411 BROADWAY
NEW YORK, NEW YORK 10018
As of April __, 1997
Ms. Lynn Siemers-Cross
[Insert address]
As referenced in your employment agreement with Donnkenny
Apparel, Inc., dated as of April 14, 1997, you have been awarded a restricted
stock award of 150,000 shares of common stock ("Common Stock") of Donnkenny,
Inc. (the "Company") under the Company's 1996 Restricted Stock Plan (the
"Plan").
The shares are vested according to the following schedule:
Date of Vesting Number of shares
--------------- ----------------
March 31, 1999 30,000
March 31, 2000 120,000
Notwithstanding the foregoing, the vesting of such shares shall be accelerated
in the event of a Change in Control, as that term is defined in your
employment agreement.
Accordingly, we request you to complete, sign and send to
the Company an Investment Representation Letter in the form attached hereto.
The terms of the Plan, including, without limitation, those relating to
withholding taxes and securities regulation, are incorporated in this
Agreement by reference.
All shares of Common Stock received by you hereunder shall
contain a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE ACT, OR STATE SECURITIES LAWS, BUT HAVE BEEN
ISSUED OR TRANSFERRED PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933 (THE "ACT"). NO
DISTRIBUTION, SALE, OFFER FOR SALE, TRANSFER,
A-1
<PAGE>
DELIVERY, PLEDGE, OR OTHER DISPOSITION OF THESE SECURITIES MAY BE
EFFECTED EXCEPT IN COMPLIANCE WITH THE ACT, ANY APPLICABLE STATE
LAWS, AND THE RULES AND REGULATIONS OF THE SECURITIES AND EXCHANGE
COMMISSION AND STATE AGENCIES
PROMULGATED THEREUNDER.
YOUR PARTICULAR ATTENTION IS DIRECTED TO SECTION 8 OF THE
PLAN WHICH DESCRIBES CERTAIN IMPORTANT CONDITIONS RELATING TO FEDERAL AND
STATE SECURITIES LAWS THAT MUST BE SATISFIED BEFORE THE COMPANY CAN ISSUE ANY
SHARES TO YOU. THE COMPANY HAS NO OBLIGATION TO REGISTER THE SHARES THAT YOU
RECEIVE HEREBY, AND IF IT NEVER REGISTERS THE SHARES, YOU WILL NOT BE ABLE TO
SELL THE SHARES UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE. AT THE
PRESENT TIME, EXEMPTIONS FROM REGISTRATION UNDER FEDERAL AND STATE SECURITIES
LAWS ARE VERY LIMITED AND MIGHT BE UNAVAILABLE TO YOU AT THE TIME YOU WISH TO
SELL YOUR SHARES. IN ADDITION, YOU SHOULD CONSULT WITH YOUR TAX ADVISOR
CONCERNING THE RAMIFICATIONS TO YOU OF HOLDING OR SELLING YOUR SHARES.
This agreement shall bind and inure to the benefit of the
parties hereto and the successors and assigns of the Company.
Please acknowledge this agreement by signing and returning
to the Company the Acceptance and Acknowledgment attached hereto.
Very truly yours,
DONNKENNY, INC.
By:
------------------------
A-2
<PAGE>
INSTRUCTION: PLEASE COMPLETE THE INFORMATION REQUESTED BELOW,
DETACH THIS PAGE AFTER SIGNING WHERE INDICATED AND RETURN TO THE
COMPANY.
ACCEPTANCE AND ACKNOWLEDGMENT
I accept the restricted stock award described in the Letter
Agreement from Donnkenny, Inc., dated as of April 14, 1997, granted pursuant
to the Donnkenny, Inc. 1996 Restricted Stock Plan (the "Plan"). I further
acknowledge that I have read and understand all the provisions and limitations
of the Plan.
Dated: As of April 14, 1997
--------------------
-------------------------------
Signature
Name: Lynn Siemers-Cross
-------------------------
Social Security No.
--------------------
A-3
<PAGE>
ANNEX B-1
DONNKENNY, INC.
INCENTIVE STOCK OPTION AGREEMENT
TO: Lynn Siemers-Cross
As referenced in your employment agreement with Donnkenny
Apparel, Inc. ("Donnkenny") dated as of April 14, 1997, pursuant to the 1992
Stock Option Plan, as amended (the "Plan") of Donnkenny, Inc. (the "Company"),
you have been granted incentive stock options for the purchase of 68,084
shares (the "Option") of the Company's Common Stock at an exercise price of
$2.9375 (i.e., $2-15/16) per share, the closing price of the Company's Common
Stock on April 14, 1997. Please sign and return to the Company the Acceptance
and Acknowledgement attached to this Stock Option Agreement. The terms of the
Plan, including, without limitation, those relating to withholding taxes, are
incorporated into this Agreement by reference. This Option is intended to be
an "incentive stock option" within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended.
The terms of the Option are set forth in the Plan and in
this Agreement. Certain of the terms set forth in the Plan are summarized
below; however, reference should be made to the Plan for the complete terms.
Term: This option shall terminate ten years from date of
grant, unless sooner terminated in accordance with the terms of the Plan and
this Agreement.
Exercise: During your lifetime only you can exercise the
Option. The Plan also provides for exercise of the Option by the personal
representative of your estate or the beneficiary thereof following your death.
You may use the Notice of Exercise in the form attached to this Agreement when
you exercise the Option.
Notices: All notices sent in connection with this Option
shall be in writing and, if to the Company, shall be delivered personally to
the Secretary of the Company or mailed to its principal office, addressed to
the attention of the Secretary and, if to the Optionee, shall be delivered
personally or mailed to the Optionee at the address noted on the attached
Acceptance and Acknowledgement. Such addresses may be changed at any time by
notice from one party to the other.
B-1-1
<PAGE>
Payment for Shares: The Option may be paid for by
delivery to the Company of the following together with the Notice
of Exercise:
(a) Bank certified or cashier's checks; or
(b) Unless the Plan Administrator in its sole discretion
determines otherwise, shares of the capital stock of the Company held by you
having a fair market value at the time of exercise, as determined in good
faith by the Plan Administrator, equal to the exercise price.
Upon receipt of written notice of exercise and payment and
delivery of any other required documentation, the Company shall deliver to the
person exercising the Option a certificate or certificates for such shares. It
shall be a condition to the performance of the Company's obligation to issue
or transfer Common Stock upon exercise of this option that the Optionee pay,
or make provision satisfactory to the Company for the payment of, any taxes
which the Company is obligated to collect with respect to the issue or
transfer of Common Stock upon exercise.
Termination: If your employment by the Company or Donnkenny
is terminated for Cause, as defined in the Plan, the Option will terminate as
of the first discovery by the Company or Donnkenny of any reason for
termination for Cause. If your employment stops because of your death or
disability, the Option shall terminate 12 months after your employment stops.
Otherwise the Option will terminate 3 months after your employment with the
Company or Donnkenny ends.
Nothing in the Plan or in this Agreement shall confer on you
any right to continue in the employ of the Company or any parent or subsidiary
of the Company or interfere in any way with the right of the Company or any
parent or subsidiary of the Company to terminate your employment at any time.
Transfer of Option: The Option is not transferable
except by will or by the applicable laws of descent and
distribution.
B-1-2
<PAGE>
Vesting: The Option is vested according to the
following schedule:
Date of Vesting Number of shares exercisable
--------------- ----------------------------
March 31, 1998 34,042
March 31, 1999 34,042
Notwithstanding the foregoing, the vesting of such Options shall be
accelerated in the event of a Change in Control, as that term is defined in
your employment agreement.
Date of Grant: The date of grant of the Option is
April 14, 1997.
YOUR PARTICULAR ATTENTION IS DIRECTED TO SECTION 8 OF THE
PLAN WHICH DESCRIBES CERTAIN IMPORTANT CONDITIONS RELATING TO FEDERAL AND
STATE SECURITIES LAWS THAT MUST BE SATISFIED BEFORE THE OPTION CAN BE
EXERCISED AND BEFORE THE COMPANY CAN ISSUE ANY SHARES TO YOU. THE COMPANY HAS
NO OBLIGATION TO REGISTER THE SHARES THAT WOULD BE ISSUED UPON THE EXERCISE OF
YOUR OPTION, AND IF SUCH SHARES ARE NOT REGISTERED, YOU WILL NOT BE ABLE TO
EXERCISE THE OPTION UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE. AT THE
PRESENT TIME, EXEMPTIONS FROM REGISTRATION UNDER FEDERAL AND STATE SECURITIES
LAWS ARE VERY LIMITED AND MIGHT BE UNAVAILABLE TO YOU PRIOR TO THE EXPIRATION
OF THE OPTION. CONSEQUENTLY, YOU MIGHT HAVE NO OPPORTUNITY TO EXERCISE THE
OPTION AND TO RECEIVE SHARES UPON SUCH EXERCISE. IN ADDITION, YOU SHOULD
CONSULT WITH YOUR TAX ADVISOR CONCERNING THE RAMIFICATIONS TO YOU OF HOLDING
OR EXERCISING YOUR OPTIONS OR HOLDING OR SELLING THE SHARES UNDERLYING SUCH
OPTIONS.
You understand that, during any period in which the shares
which may be acquired pursuant to your Option are subject to the provisions of
Section 16 of the Securities Exchange Act of 1934 (and you are also so
subject), in order for your transactions under the Plan to qualify for the
exemption from Section 16(b) provided by Rule 16b-3, a total of six months
must elapse between the grant of the Option and the sale of the Option (other
than upon exercise or conversion) or the shares underlying the Option.
All decisions or interpretations made by the Compensation
Committee with regard to any question arising hereunder or under the Plan
shall be binding and conclusive on the Company and you.
B-1-3
<PAGE>
This Agreement shall bind and inure to the benefit of the
parties hereto and the successors and assigns of the Company and, to the
extent provided in the Plan, your executors, administrators, legatees, and
heirs.
Please execute the Acceptance and Acknowledgement set forth
below on the enclosed copy of this Agreement and return it to the undersigned.
Very truly yours,
DONNKENNY, INC.
Dated: As of April 14, 1997
By:
--------------------------
B-1-4
<PAGE>
INSTRUCTION: PLEASE COMPLETE THE INFORMATION REQUESTED BELOW,
DETACH THIS PAGE AFTER SIGNING WHERE INDICATED AND RETURN TO THE
COMPANY.
ACCEPTANCE AND ACKNOWLEDGEMENT
I, a resident of the State of ____________________________, accept
the incentive stock option described in the Incentive Stock Option Agreement
dated as of April 14, 1997 and in the Donnkenny, Inc. 1992 Stock Option Plan,
as amended, and acknowledge receipt of a copy of this Agreement. I have read
and understand all the provisions and limitations of the Plan, particularly
those relating to incentive stock options and the provisions of Section 8 of
the Plan relating to securities regulations.
Dated: As of April 14, 1997
- ------------------------------
Signature
- ------------------------
Social Security Number
Name: Lynn Siemers-Cross
----------------------
Address:
----------------------
--------------------------------
B-1-5
<PAGE>
DONNKENNY, INC.
NOTICE OF EXERCISE OF INCENTIVE STOCK OPTION
------------------------------
(Name, please print)
------------------------------
(Date)
DONNKENNY, INC.
1411 Broadway
New York, New York 10018
Gentlemen:
I hereby exercise my right to purchase _______________ shares of Common Stock
of Donnkenny, Inc., a Delaware corporation ("Donnkenny"), pursuant to, and in
accordance with, the Donnkenny, Inc. 1992 Stock Option Plan and the Incentive
Stock Option Agreement ("Agreement") dated as of April 14, 1997. As provided
in that Agreement, I hereby: [check one]
[ ] deliver herewith a certified or bank cashier's
check in the amount of the aggregate option
exercise price; or
[ ] undertake to deliver shares of the capital stock
of Donnkenny held by me having a fair market value
at the time of exercise, as determined in good
faith by the Plan Administrator, equal to the
aggregate option exercise price.
Please deliver to me stock certificates representing the
subject shares registered as follows:
Name:
-------------------------------------------
Address:
----------------------------------------
------------------------------------------------
Social Security Number
--------------------------
The aggregate exercise price is $ _________ (total number of shares
to be purchased x $________).
B-1-6
<PAGE>
(1) Tax Implications. I understand that there are certain tax
implications to my exercise of my right to purchase shares of Common Stock
under the Agreement. I further understand that it is my obligation to confer
with my own tax advisor with respect to such tax implications.
(2) Securities Regulation. I understand that the Company may require
me to represent that the shares of Common Stock I propose to purchase are not
being acquired for resale of such securities.
Very truly yours,
------------------------------------
Name:
B-1-7
<PAGE>
DONNKENNY, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
TO: Lynn Siemers-Cross
As referenced in your employment agreement with Donnkenny
Apparel, Inc. ("Donnkenny") dated as of April 14, 1997, pursuant to the 1992
Stock Option Plan, as amended (the Plan") of Donnkenny, Inc. (the "Company"),
you have been granted non-qualified stock options for the purchase of 81,916
shares (the "Option") of the Company's Common Stock at an exercise price of
$2.9375 (i.e., $2-15/16) per share, the closing price of the Company's Common
Stock on April 14, 1997. Please sign and return to the Company the Acceptance
and Acknowledgement attached to this Stock Option Agreement. The terms of the
Plan, including, without limitation, those relating to withholding taxes, are
incorporated into this Agreement by reference. This Option is not intended to
qualify as an "incentive stock option" within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended.
The terms of the Option are set forth in the Plan and in
this Agreement. Certain of the terms set forth in the Plan are summarized
below; however, reference should be made to the Plan for the complete terms.
Term: This Option shall terminate ten years from date of
grant.
Exercise: During your lifetime only you can exercise the
Option. The Plan also provides for exercise of the Option by the personal
representative of your estate or the beneficiary thereof following your death.
You may use the Notice of Exercise in the form attached to this Agreement when
you exercise the Option.
Notices: All notices sent in connection with this Option
shall be in writing and, if to the Company, shall be delivered personally to
the Secretary of the Company or mailed to its principal office, addressed to
the attention of the Secretary and, if to the Optionee, shall be delivered
personally or mailed to the Optionee at the address noted on the attached
Acceptance and Acknowledgement. Such addresses may be changed at any time by
notice from one party to the other.
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Payment for Shares: The Option may be paid for by
delivery to the Company of the following together with the Notice
of Exercise:
(a) Bank certified or cashier's checks;
(b) Unless the Plan Administrator in its sole discretion
determines otherwise, shares of the capital stock of the Company held by you
having a fair market value at the time of exercise, as determined in good
faith by the Plan Administrator, equal to the exercise price; or
(c) A properly executed Notice of Exercise together with
instructions to the Company to withhold from the shares that would otherwise
be issued upon exercise that number of shares having a fair market value equal
to the option exercise price.
Upon receipt of written notice of exercise and payment and
delivery of any other required documentation, the Company shall deliver to the
person exercising the Option a certificate or certificates for such shares. It
shall be a condition to the performance of the Company's obligation to issue
or transfer Common Stock upon exercise of this option that the Optionee pay,
or make provision satisfactory to the Company for the payment of, any taxes
which the Company is obligated to collect with respect to the issue or
transfer of Common Stock upon exercise.
Termination: As stated above, this Option shall terminate on
April 14, 2007 (i.e., the tenth anniversary of the date of grant),
notwithstanding the fact that your employment by the Company or Donnkenny may
have terminated prior to such date.
Nothing in the Plan or in this Agreement shall confer on you
any right to continue in the employ of the Company or any parent or subsidiary
of the Company or interfere in any way with the right of the Company or any
parent or subsidiary of the Company to terminate your employment at any time.
Transfer of Option: The Option is not transferable
except by will or by the applicable laws of descent and distribution.
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Vesting: The Option is vested according to the
following schedule:
Date of Vesting Number of shares exercisable
--------------- ----------------------------
March 31, 1998 80,958
March 31, 1999 958
Notwithstanding the foregoing, the vesting of such Options shall be
accelerated in the event of a Change in Control, as that term is defined in
your employment agreement.
Date of Grant: The date of grant of the Option is April 14,
1997.
YOUR PARTICULAR ATTENTION IS DIRECTED TO SECTION 8 OF THE
PLAN WHICH DESCRIBES CERTAIN IMPORTANT CONDITIONS RELATING TO FEDERAL AND
STATE SECURITIES LAWS THAT MUST BE SATISFIED BEFORE THE OPTION CAN BE
EXERCISED AND BEFORE THE COMPANY CAN ISSUE ANY SHARES TO YOU. THE COMPANY HAS
NO OBLIGATION TO REGISTER THE SHARES THAT WOULD BE ISSUED UPON THE EXERCISE OF
YOUR OPTION, AND IF SUCH SHARES ARE NOT REGISTERED, YOU WILL NOT BE ABLE TO
EXERCISE THE OPTION UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE. AT THE
PRESENT TIME, EXEMPTIONS FROM REGISTRATION UNDER FEDERAL AND STATE SECURITIES
LAWS ARE VERY LIMITED AND MIGHT BE UNAVAILABLE TO YOU PRIOR TO THE EXPIRATION
OF THE OPTION. CONSEQUENTLY, YOU MIGHT HAVE NO OPPORTUNITY TO EXERCISE THE
OPTION AND TO RECEIVE SHARES UPON SUCH EXERCISE. IN ADDITION, YOU SHOULD
CONSULT WITH YOUR TAX ADVISOR CONCERNING THE RAMIFICATIONS TO YOU OF HOLDING
OR EXERCISING YOUR OPTIONS OR HOLDING OR SELLING THE SHARES UNDERLYING SUCH
OPTIONS.
You understand that, during any period in which the shares
which may be acquired pursuant to your Option are subject to the provisions of
Section 16 of the Securities Exchange Act of 1934 (and you are also so
subject), in order for your transactions under the Plan to qualify for the
exemption from Section 16(b) provided by Rule 16b-3, a total of six months
must elapse between the grant of the Option and the sale of the Option (other
than upon exercise or conversion) or the shares underlying the Option.
All decisions or interpretations made by the Compensation
Committee with regard to any question arising hereunder or under the Plan
shall be binding and conclusive on the Company and you.
This Agreement shall bind and inure to the benefit of
the parties hereto and the successors and assigns of the Company
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<PAGE>
and, to the extent provided in the Plan, your executors, administrators,
legatees, and heirs.
Please execute the Acceptance and Acknowledgement set forth
below on the enclosed copy of this Agreement and return it to the undersigned.
Very truly yours,
DONNKENNY, INC.
Dated: As of April 14, 1997
By:
------------------------
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<PAGE>
INSTRUCTION: PLEASE COMPLETE THE INFORMATION REQUESTED BELOW,
DETACH THIS PAGE AFTER SIGNING WHERE INDICATED AND RETURN TO THE
COMPANY.
ACCEPTANCE AND ACKNOWLEDGEMENT
I, a resident of the State of ____________________________, accept
the non-qualified stock option described in the Non-Qualified Stock Option
Agreement dated as of April 14, 1997 and in the Donnkenny, Inc. 1992 Stock
Option Plan, as amended, and acknowledge receipt of a copy of this Agreement.
I have read and understand all the provisions and limitations of the Plan,
particularly those relating to incentive stock options and the provisions of
Section 8 of the Plan relating to securities regulations.
Dated: As of April 14, 1997
-----------------------
- ------------------------------
Signature
- ------------------------
Social Security Number
Name: Lynn Siemers-Cross
--------------------------
Address:
--------------------------
-----------------------------------
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<PAGE>
DONNKENNY, INC.
NOTICE OF EXERCISE OF NON-QUALIFIED STOCK OPTION
------------------------------
(Name, please print)
------------------------------
(Date)
DONNKENNY, INC.
1411 Broadway
New York, New York 10018
Gentlemen:
I hereby exercise my right to purchase _______________ shares of Common Stock
of Donnkenny, Inc., a Delaware corporation ("Donnkenny"), pursuant to, and in
accordance with, the Donnkenny, Inc. 1992 Stock Option Plan and the
Non-Qualified Stock Option Agreement ("Agreement") dated as of April 14, 1997.
As provided in that Agreement, I hereby: [check one]
[ ] deliver herewith a certified or bank cashier's
check in the amount of the aggregate option
exercise price; or
[ ] undertake to deliver shares of the capital stock
of Donnkenny held by me having a fair market value
at the time of exercise, as determined in good
faith by the Plan Administrator, equal to the
aggregate option exercise price; or
[ ] authorize Donnkenny to withhold from the shares
that would otherwise be issued upon exercise that
number of shares having a fair market value equal
to the aggregate option exercise price.
Please deliver to me stock certificates representing the
subject shares registered as follows:
Name:
-------------------------------------------
Address:
----------------------------------------
------------------------------------------------
Social Security Number
-------------------------
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<PAGE>
The aggregate exercise price is $ _________ (total number of shares
to be purchased x $________).
(1) Tax Implications. I understand that there are certain tax
implications to my exercise of my right to purchase shares of Common Stock
under the Agreement. I further understand that it is my obligation to confer
with my own tax advisor with respect to such tax implications.
(2) Securities Regulation. I understand that the Company may require
me to represent that the shares of Common Stock I propose to purchase are not
being acquired for resale of such securities.
Very truly yours,
------------------
Name:
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<PAGE>
ANNEX C
CASH-PAY STOCK APPRECIATION RIGHTS AGREEMENT
As of April 14, 1997
Ms. Lynn Siemers-Cross
[Insert address]
As referenced in your employment agreement with Donnkenny
Apparel, Inc. (the "Company") dated April 14, 1997, the Compensation Committee
of the Board of Directors (the "Committee") of the Company has awarded you
cash-pay stock appreciation rights. This letter will confirm the following
agreement made today between you and the Company pursuant to your employment
agreement.
1. The Company hereby grants you cash-pay stock appreciation
rights relating to 50,000 shares of Common Stock of Donnkenny, Inc. (the
"Common Stock") at an exercise price of $2.9375 (i.e., $2-15\16) per share.
2. Your stock appreciation rights entitle you to receive
from the Company an amount in cash equal to the product of (x) the amount, if
any, by which the Fair Market Value (as defined below) of a share of Common
Stock on the date of exercise exceeds the exercise price per share specified
in Paragraph 1 hereof and (y) the number of shares with respect to which such
stock appreciation rights shall have been exercised.
For purposes of the foregoing, the Fair Market Value of the
Common Stock shall be deemed to be the average of the daily closing prices per
share of Common Stock for the ten consecutive Trading Days (as such term is
hereinafter defined) immediately prior to the date of exercise. The closing
price for any day shall be the last quoted price (or, if not so quoted, the
average of the high bid and low asked prices) in the over-the-counter market,
as reported by The Nasdaq Stock Market or such other system then in use; or,
if no bids for such security are quoted by any such organization, the average
of the closing bid and asked prices as furnished by a professional market
maker making a market in such security selected by the Committee. The term
"Trading Day" shall mean a day on which The Nasdaq Stock Market is open for
trading. If at the time of exercise the Common Stock is not publicly held or
not so listed or traded, "Fair Market Value" shall mean the fair value per
share of Common Stock, as
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determined by an independent investment banking firm experienced in the
valuation of securities selected in good faith by the Committee, or, if no
such investment banking firm is, in the good faith judgment of the Committee,
available to make such determination, in good faith by the Committee.
3. The stock appreciation rights shall vest and become
exercisable as to all 50,000 shares of Common Stock on March 31, 1999;
provided, however, that such "vesting" shall be accelerated in the event of
(i) the termination of Executive's employment by the Company other than for
Cause or by the Executive for Good Reason in either case prior to March 31,
1999, or (ii) a Change in Control, as such terms are defined in your
employment agreement.
4. Payment shall be made in cash only, and you shall not be
entitled to receive any shares of Common Stock or any other securities of the
Company or Donnkenny. Your exercise of your stock appreciation rights may be
effected only during the period beginning on the eleventh business day
following the date of release of the Company's quarterly or annual statement
of sales and earnings and ending on the twentieth business day following such
date.
5. The unexercised portion of the stock appreciation rights
granted herein will automatically and without notice terminate and become null
and void on April 14, 2002 (i.e., the fifth anniversary of the date of grant),
notwithstanding the fact that your employment by the Company or its
subsidiaries may have terminated prior to such date.
6. During your lifetime the stock appreciation rights
granted herein shall be exercisable only by you or by your guardian or legal
representative in the event of your incompetence or incapacity; provided,
however, that you may transfer the stock appreciation rights to a trust for
the benefit of yourself, your spouse and/or your children or grandchildren or
other members of your family. Subject to the foregoing, this agreement and the
stock appreciation rights granted herein may not be assigned or transferred in
whole or in part, except by will or by the laws of the descent and
distribution.
7. Any exercise of the stock appreciation rights granted
herein shall be in writing addressed to the Secretary of the Company at its
general offices and shall be substantially in the form attached hereto. In
connection with such exercise, the Company shall make such provisions as it
deems necessary and appropriate to satisfy its obligation to withhold federal,
state
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or local income taxes or other taxes incurred by reason of such
exercise.
Please indicate your acceptance of all of the terms and
conditions of this agreement by signing and returning one copy of this letter.
Very truly yours,
DONNKENNY, INC.
By
-----------------------------
Accepted:
- ---------------------------------
Lynn Siemers-Cross
Date: As of April 14, 1997
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<PAGE>
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0
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