SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
(RULE 13D-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13D-1(A) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13D-2(A)
( AMENDMENT NO. ____ )
The Leslie Fay Company, Inc.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $.01 per share
- --------------------------------------------------------------------------------
(Title of class of securities)
527016109
- --------------------------------------------------------------------------------
(CUSIP Number)
Michael J. Shef, Esq.
Parker Chapin Flattau & Klimpl, LLP
1211 Avenue of the Americas
New York, NY 10036
(212) 704-6000
- --------------------------------------------------------------------------------
(Person Authorized to Receive Notices and Communications)
July 26, 1999
- --------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]
(Continued on following pages)
(Page 1 of 8 Pages)
<PAGE>
CUSIP NO. 527016109 13D PAGE 2 OF 8 PAGES
----------- -------- -------
1 NAME OF REPORTING PERSON
SS. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
John J. Pomerantz
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e)
[ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
NUMBER OF 7 SOLE VOTING POWER
SHARES 242,598
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 2,158,000
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 242,598
PERSON 10 SHARED DISPOSITIVE POWER
WITH 0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,400,598
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
38.3%
14 TYPE OF REPORTING PERSON
IN
<PAGE>
ITEM 1. SECURITY AND THE ISSUER.
This statement relates to shares of common stock, par value $.01 per
share ("Common Stock"), of The Leslie Fay Company, Inc., a Delaware corporation
(the "Company"). The Company's principal executive office is located at 1412
Broadway, New York, New York 10018.
ITEM 2. IDENTITY AND BACKGROUND.
(a) This statement is being filed by John J. Pomerantz (the "Reporting
Person").
(b) The business address of the Reporting Person is c/o The Leslie Fay
Company, Inc., 1412 Broadway, New York, New York 10018.
(c) The Reporting Person is the Company's Chairman and Chief Executive
Officer.
(d) During the last five years, the Reporting Person has not been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) During the last five years, the Reporting Person has not been a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
(f) The Reporting Person is a citizen of the United States of America.
ITEM 3. SOURCE AND AMOUNTS OF FUNDS OR OTHER CONSIDERATION.
No payments are required to be made by the Reporting Person pursuant to
the voting arrangement described in Item 4.
ITEM 4. PURPOSE OF THE TRANSACTION.
Under the employment agreement between the Reporting Person and the
Company, the Reporting Person has the right to serve as Chairman of the
Company's Board of Directors (the "Board") and to designate one or more
additional directors so that, at all times during the term of such agreement,
directors designated by the Reporting Person comprise at least 28% of the
membership of the Board. A copy of the employment agreement between the Company
and the Reporting Person is attached hereto as Exhibit 1 and incorporated by
reference herein.
-3-
<PAGE>
Under a registration rights agreement among the Company, Three Cities
Fund II, L.P. ("Fund II"), and Three Cities Offshore II C.V. ("Offshore II" and,
together with Fund II, the "Three Cities Funds"), the Company has agreed that,
at annual meetings of stockholders of the Company following the Company's 1999
annual meeting of stockholders, the Three Cities Funds will have the right to
designate a number of nominees to serve as directors constituting at least a
percentage of the Board equal to the percentage of outstanding shares of Common
Stock then owned in the aggregate by the Three Cities Funds.
The Three Cities Funds and the Reporting Person have entered into a
letter agreement dated July 26, 1999 (the "Letter Agreement") pursuant to which
they have agreed to vote in favor of each of the nominees for director listed in
management's proxy for the Company's 1999 annual meeting of stockholders and not
to take any actions to change the size or composition of the Board before the
next annual meeting of stockholders of the Company following the annual meeting
scheduled for August 24, 1999, if at all. The Three Cities Funds and the
Reporting Person have also agreed that, for so long as the Reporting Person has
the contractual right to designate at least one nominee to the Board, (1) the
Three Cities Funds and the Reporting Person will agree on the identity of all
nominees for director (other than any nominee of someone else who has a
contractual right to designate such nominee) and (2) the Three Cities Funds and
the Reporting Person will vote for their agreed-upon nominees and against any
nominees competing against the agreed-upon nominees. If the Three Cities Funds
and the Reporting Person do not agree upon the identity of all of the nominees
for director, then (x) the Reporting Person has the right to designate at least
28% of the nominees to the Board and the Three Cities Funds have the right to
designate at least a percentage of the Board equal to the percentage of
outstanding shares of Common Stock then owned in the aggregate by the Three
Cities Funds, who must be reasonably satisfactory to the Reporting Person, and
(y) the Three Cities Funds and the Reporting Person will vote in favor of the
other's nominees. A copy of the Letter Agreement is attached hereto as Exhibit 2
and incorporated by reference herein.
Except as set forth herein and in the Company's proxy statement dated
July 30, 1999, the Reporting Person does not have any present plans or proposals
that relate to or would result in (1) the acquisition of additional securities
of the Company; (2) an extraordinary corporate transaction, such as a merger,
reorganization or liquidation of the Company; (3) a sale or transfer of a
material amount of assets of the Company or any of its subsidiaries; (4) any
change in the present Board of Directors or management of the Company, including
any plans or proposals to change the number or term of directors or to fill any
existing vacancies on the Board; (5) any material change in the present
capitalization or dividend policy of the Company; (6) any other material change
in the Company's business or corporate structure; (7) any changes in the
Company's charter, by-laws or instruments corresponding thereto or other actions
which may impede the acquisition of control of the Company by any person; (8)
causing a class of securities of the Company to be delisted from a national
securities exchange or cease to be authorized to be quoted in an inter-dealer
quotation system of a registered national securities association; (9) causing a
class of equity securities of the Company to become eligible for termination of
registration pursuant to Section 12(g)(4) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"); or (10) any action similar to any of
those enumerated above.
-4-
<PAGE>
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) The Reporting Person may, pursuant to Rules 13d-3 and 13d-5 under
the Exchange Act, be deemed the beneficial owner of 2,400,598 shares of Common
Stock, which constitute approximately 38.3% of the Common Stock (based on
6,041,138 shares that the Company reported as outstanding as of July 23, 1999 in
its proxy statement dated July 30, 1999).
The 2,400,598 shares of Common Stock include:
o 242,598 shares (3.9% of the Common Stock), of which 232,598
are subject to presently exercisable stock options, that are
directly owned by the Reporting Person;
o 1,356,120 shares (22.5% of the outstanding shares of Common
Stock) that are directly owned by Offshore II; and
o 801,880 shares (13.3% of the outstanding shares of Common
Stock) that are directly owned by Fund II.
(b) The Reporting Person has shared power to vote and sole power to
dispose of 242,598 shares of Common Stock directly owned by him, of which
232,598 are subject to presently exercisable stock options.
To the knowledge of the Reporting Person, and based solely on
information contained in a Schedule 13D filed by the Three Cities Funds, TCR
Associates, L.P., a Delaware limited partnership, Three Cities Research, Inc.,
TCR Offshore Associates, L.P., Three Cities Associates, N.V. and J. William
Uhrig, on May 24, 1999 and amended on August 5, 1999 (as so amended, the "Three
Cities 13D"), the Reporting Person also shares the power to vote 2,158,000
shares of Common Stock as follows:
o Fund II may, pursuant to Rules 13d-3 and 13d-5 under the
Exchange Act, be deemed to be the beneficial owner of
2,400,598 shares of Common Stock, which constitute
approximately 38.3% of the 6,041,138 shares of Common Stock
that are outstanding. The 2,400,598 shares of Common Stock
include 801,880 shares directly owned by Fund II, 1,356,120
shares directly owned by Offshore II and 242,598 shares
directly owned by the Reporting Person, with respect to which
the Three Cities Funds share voting power with respect to
voting shares for board nominees, as described in Item 4. Fund
II may be deemed to share the power to vote or direct the vote
of 1,044,478 shares of Common Stock, and may be deemed to
share the power to dispose of or direct the disposition of
801,880 shares of Common Stock.
o Offshore II may, pursuant to Rules 13d-3 and 13d-5 under the
Exchange Act, be deemed to be the beneficial owner of
2,400,598 shares of Common Stock, which constitute
approximately 38.3% of the 6,041,138 shares of Common Stock
that
-5-
<PAGE>
are outstanding. The 2,400,598 shares of Common Stock include
1,356,120 shares (22.4% of the outstanding shares of Common
Stock) directly owned by Offshore II, 801,880 shares (13.3% of
the outstanding shares of Common Stock) directly owned by Fund
II and 242,598 shares (3.9% of the outstanding shares of
Common Stock) directly owned by the Reporting Person, with
respect to which the Three Cities Funds share voting power
with respect to voting shares for board nominees, as described
in Item 4. Offshore II may be deemed to share the power to
vote or direct the vote of 1,598,718 shares of Common Stock,
and may be deemed to share the power to dispose of or direct
the disposition of 1,356,120 shares of Common Stock.
The Reporting Person does not have shared power to dispose of any
shares of Common Stock.
To the knowledge of the Reporting Person and based solely on the Three
Cities 13D, the information required by Item 2 with respect to each person with
whom the Reporting Person shares the power to vote is as follows:
o Fund II is a Delaware limited partnership, formed to invest in
securities to be selected by its investment committee. The
principal business address of Fund II, which also serves as
its principal office, is c/o Three Cities Research, Inc., 650
Madison Avenue, New York, New York 10022.
o Offshore II is a Netherlands Antilles partnership, formed to
invest in securities to be selected by its investment
committee. The principal business address of Offshore II,
which also serves as its principal office, is Caracasbaaiweg
201, P.O.
Box 6085, Curacao, Netherlands Antilles.
o None of the entities identified in this Item 5 with whom the
Reporting Person shares the power to vote has, during the last
five years, been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors).
o None of the entities identified in this Item 5 with whom the
Reporting Person shares the power to vote has, during the last
five years, been a party to a civil proceeding of a judicial
or administrative body of competent jurisdiction and as a
result of such proceeding was or is subject to a judgment,
decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to
such laws.
(c) Other than with respect to the Letter Agreement set forth in Item
4, the Reporting Person has not engaged in any transaction during the past 60
days in any shares of Common Stock.
-6-
<PAGE>
(d) No person is known to have the right to receive or the power to
direct the receipt of dividends from, or the proceeds from the sale of, the
shares of Common Stock held directly by the Reporting Person.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
Reference is made to Item 4 above and the exhibits incorporated herein
by reference. Except as set forth in this Schedule 13D, to the best knowledge of
Reporting Person, there are no other contracts, arrangements, understandings or
relationships (legal or otherwise) between the Reporting Person named in Item 2
and between such persons and any person with respect to any securities of the
Company, including, but not limited to, transfer or voting of any of the
securities of the Company, loan or option arrangements, puts or calls,
guarantees of profits, division of profits or loss, or the giving or withholding
of proxies, or a pledge or otherwise subject to a contingency, the occurrence of
which would give another person voting power or investment power over the
securities of the Issuer.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit Description of Exhibit
------- ----------------------
1. Employment Agreement dated January 4, 1998 between the Company
and the Reporting Person.
2. Letter Agreement dated July 26, 1999 between the Three Cities
Funds and the Company.
-7-
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Schedule 13D is true, complete
and correct.
Dated: August 24, 1999
/s/ John J. Pomerantz
-------------------------
John J. Pomerantz
<PAGE>
EXHIBIT INDEX
Exhibit Description of Exhibit
------- ----------------------
1. Employment Agreement dated January 4, 1998 between the
Company and the Reporting Person.
2. Letter Agreement dated July 26, 1999 between the Three Cities
Funds and the Company.
EMPLOYMENT AGREEMENT
(John J. Pomerantz)
AGREEMENT, dated as of January 4, 1998, between The Leslie Fay Company,
Inc., a Delaware corporation, with its principal office at 1412 Broadway, New
York, New York (the "Corporation"), and John J. Pomerantz, residing at Hidden
Spring Farm, 19 Winfield Avenue, Harrison, New York 10528 (the "Executive").
RECITALS
A. The Executive has served as the Chairman and Chief Executive Officer
of the Corporation since June 2, 1997, and prior thereto as Chairman and Chief
Executive Officer of The Leslie Fay Companies, Inc., predecessor-in-interest to
the Corporation ("Old Leslie Fay").
B. The Corporation desires to secure the continued services of the
Executive, and the Executive desires to continue to furnish services to the
Corporation, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements hereinafter contained, the parties hereto hereby agree as
follows:
1. Definitions. Unless otherwise defined herein, the following terms
shall have the respective meanings specified below and be equally applicable to
the singular and plural of terms defined:
(a) "Adjusted Incentive EBITDA" shall mean, for any fiscal
year during the Term, the lesser of (i) Incentive EBITDA and (ii) the projected
EBITDA for such fiscal year as set forth in the Corporation's business plan for
such fiscal year approved by the Board.
(b) "Base Salary" shall have the meaning set forth in Section
5 hereof.
(c) "Board" shall mean the Board of Directors of the
Corporation.
(d) "Bonus" shall mean, for any year during the Term, the
Executive's allocable portion of the Cash Bonus Pool for such year, determined
in accordance with Section 6 hereof.
(e) "Cash Bonus Pool" shall have the meaning set forth in
Section 6 hereof.
(f) "Cause" shall mean (i) conviction of the Executive in
respect of a felony, (ii) perpetration by the Executive of (x) an illegal act
which causes significant economic injury to the Corporation or (y) a common law
fraud against the Corporation, or (iii) willful violation by the Executive (a
"Material Insubordination") of a specific written direction from the Board
concerning one or more matters of a material nature for the Corporation or its
business or operations (following
<PAGE>
a warning in writing in respect thereto from the Board).
(g) "Change of Control" shall mean the occurrence of any of
the following:
(i) any person or "group" (within the meaning of Section
13(d)(3) of the Exchange Act), other than Dickstein Partners, Inc.
and/or any of its affiliates (as defined in Rule 12b-2 under the
Exchange Act), acquiring "beneficial ownership" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of fifty percent
(50%) or more of the aggregate voting power of the capital stock of the
Corporation; or
(ii) the sale of all or substantially all of the Corporation's
assets in one or more related transactions; or
(iii) any merger, consolidation, reorganization or similar
event of the Corporation or any of its subsidiaries, as a result of
which the holders of the voting stock of the Corporation immediately
prior to such merger, consolidation, reorganization or similar event do
not hold at least fifty-one percent (51%) of the aggregate voting power
of the capital stock of the surviving entity.
(h) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(i) "Compensation Committee" shall mean the compensation
committee of the Board, all of whose members are "outside directors" within the
meaning of Section 162(m) of the Code.
(j) "Corporation Senior Managers" shall mean the Chief
Executive Officer, the President, the Senior Vice President--Manufacturing and
Sourcing, the Senior Vice President-- Administration and Finance (Chief
Financial Officer) and such other employees of the Corporation as determined by
the Compensation Committee in consultation with the Chief Executive Officer.
(k) "Disabled" shall mean, with respect to the Executive,
being physically or mentally disabled, whether totally or partially, so that he
is substantially unable to perform his services hereunder for a consecutive
period of more than six (6) months or for shorter periods aggregating six months
during any twelve-month period.
(l) "EBITDA" shall mean for any fiscal year of the
Corporation, the consolidated earnings before interest, taxes, depreciation and
amortization of the Corporation and its consolidated subsidiaries, and before
any non-cash accruals for stock-based compensation, as determined pursuant to
generally accepted accounting principles in effect in the United States of
America from time to time, provided that for purposes of determining EBITDA
hereunder, EBITDA shall be calculated before determination of the Cash Bonus
Pool.
-2-
<PAGE>
(m) "Effective Date" shall mean January 4, 1998.
(n) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(o) "Good Reason" shall mean the continuation of any of the
following events for more than ten (10) days after the Corporation's receipt
from the Executive of written notice thereof:
(i) the Executive shall fail to be reelected as a
Director of the Corporation and as Chairman of the Board and Chairman
of the Executive Committee of the Board (if any) or shall be removed
from any such positions or from the position of Chief Executive Officer
of the Corporation at any time during the Term (other than for Cause);
(ii)the Executive shall fail to be vested with the
powers and authority of Chief Executive Officer of the Corporation as
described in Section 4(a) hereof, or the powers and authority of such
position or his responsibilities with respect thereto shall be
diminished in any material respect;
(iii) the Executive shall have assigned to him
without his express written consent any duties, functions, authority or
responsibilities that are inconsistent with the Executive's positions
described in Section 4 hereof;
(iv)the Executive's principal place of employment is
changed to a location more than twenty-five (25) miles from the prior
location without the Executive's prior written consent;
(v) any material failure by the Corporation to
fulfill any of its obligations under this Agreement (other than
pursuant to Section 4(b)), including, without limitation, the failure
to make any material payment required to be made by the Corporation
pursuant to Sections 5 and 6 hereof within five (5) business days after
the date such payment is required to be made;
(vi)any purported termination by the Corporation of
the Executive's employment otherwise than as expressly permitted by,
and in compliance with all conditions and procedures of, this
Agreement;
(vii) the Corporation shall fail to comply with the
provisions of Section 14 or Section 19(a) hereof; or
(viii) there shall occur a Change of Control and any
designee of the Executive pursuant to Section 4(b) hereof shall fail to
be reelected or shall be removed as a Director during the Term, or the
size of the Board shall be expanded and the Executive shall not be
given reasonable opportunity to designate one or more additional
Directors such that
-3-
<PAGE>
the Executive and all Directors designated by the Executive shall
comprise at least twenty-eight percent (28%) of the membership of the
Board.
(p) "Incentive EBITDA" shall mean Eleven Million Five Hundred
Thousand Dollars ($11,500,000).
(q) "Old Leslie Fay" shall have the meaning set forth in the
Recitals.
(r) "Target EBITDA" shall mean Five Million Four Hundred
Forty-Three Thousand Dollars ($5,443,000).
(s) "Term" shall have the meaning set forth in Section 3
hereof.
2. Employment. The Corporation shall employ the Executive, and the
Executive shall serve the Corporation, upon the terms and conditions hereinafter
set forth.
3. Term.
(a) Term of Employment. Subject to the terms and conditions
hereinafter set forth, the term of the Executive's employment hereunder shall
commence as of the Effective Date and shall continue until the third anniversary
of the Effective Date, unless earlier terminated pursuant to the provisions of
Section 8, 9 or 10 hereof (the "Term").
(b) Renewal. During the third year of the Term, the
Corporation will conduct, in good faith and on a timely basis, negotiations with
the Executive concerning the renewal of the Executive's employment with the
Corporation.
4. Duties and Extent of Services.
(a) Chief Executive Officer. During the Term, the Executive
shall serve as Chief Executive Officer of the Corporation faithfully and to the
best of his ability, and shall devote substantially all of his business time,
energy and skill to such employment, it being understood and agreed that the
Executive may serve on the boards of directors or equivalent governing bodies of
other business corporations or other business organizations; provided, however,
that (i) such other corporations or other organizations are not in direct
competition with the Corporation and/or its subsidiaries and (ii) such service
does not materially interfere with the performance by the Executive of his
duties hereunder. The Executive shall be invested with the duties and authority
that are customarily delegated to a chief executive officer of a corporation,
and shall report to and be subject to the direction of the Board of Directors of
the Corporation. The Executive shall also perform such specific duties and
services of a senior executive nature as the Board of Directors of the
Corporation shall request, including, without limitation, serving as a senior
officer and/or director of any of the Corporation's subsidiaries.
-4-
<PAGE>
(b) Board Membership. Although it is understood that the right
to elect directors of the Corporation is by law vested in the stockholders of
the Corporation, (i) the Executive shall serve as Chairman of the Board and of
the Executive Committee of the Board (if any) and (ii) the Executive shall be
entitled to designate one or more additional Directors such that the Executive
and all Directors designated by the Executive shall at all times comprise at
least twenty-eight percent (28%) of the membership of the Board. For so long as
John Ward shall be a Director of the Corporation, Mr. Ward shall be deemed a
designee of the Executive for purposes of this Section 4(b).
5. Base Salary. During the Term, the Corporation shall pay the
Executive a base salary ("Base Salary") of Five Hundred Thousand Dollars
($500,000), or such higher amount as the Board may from time to time determine,
payable in equal weekly installments.
6. Incentive Compensation.
(a) Amount. If the Corporation's EBITDA for any fiscal year
(except as noted, references in this Section to EBITDA or Incentive EBITDA are
to the corresponding quantity for such fiscal year) during the Term is greater
than or equal to eighty-five percent (85%) (the "Minimum Percentage") of Target
EBITDA, the Corporation shall pay a bonus ("Cash Bonus Pool") to the Corporation
Senior Managers in an amount equal to the sum of:
(x) nine and six-tenths percent (9.6%) of EBITDA, plus
(y) two-tenths percent (0.2%) of the Corporation's EBITDA for
each percentage point, if any, of Target EBITDA by which EBITDA exceeds
the Minimum Percentage; provided, however, that in no event shall the
combined amount under clause (x) above and this clause (y) exceed
twelve and one-half percent (12.5%) of EBITDA, plus
(z) five percent (5%) of the amount by which EBITDA exceeds
the sum of (I) Incentive EBITDA plus (II) the sum for all prior fiscal
years (excluding the fiscal year for which the amount of the Cash Bonus
Pool is being determined) of the positive difference, if any, for each
such fiscal year between (i) Adjusted Incentive EBITDA for such fiscal
year and (ii) EBITDA for such fiscal year less (III) any amount under
clause (II) applied in any prior year to reduce the amount of the Cash
Bonus Pool that would otherwise have been payable in such year.
The amount of the Cash Bonus Pool for any fiscal year only a part of which is
within the Term shall be equal to the amount of the Cash Bonus Pool that would
have been payable for such fiscal year had it been entirely within the Term,
times a fraction, the numerator of which is the number of days of such fiscal
year occurring during the Term, and the denominator of which is three hundred
and sixty-five (365).
The Executive and each other Corporation Senior Manager shall
be entitled to receive such portion of the Cash Bonus Pool for any fiscal year
during the Term as determined by the Chief
-5-
<PAGE>
Executive Officer, but only if approved by the Compensation Committee not later
than the end of the first quarter of such fiscal year. Other than with respect
to allocation, all of the Corporation Senior Managers shall participate in the
Cash Bonus Pool on the same terms and conditions.
(b) Manner of Payment. The Cash Bonus Pool for any fiscal year
during the Term shall be determined after the close of such fiscal year.
However, the Executive shall be permitted to draw during each fiscal year, on a
quarterly basis, against his anticipated allocation of the Cash Bonus Pool for
such year, as follows:
(i) Following each fiscal quarter, the Corporation shall
determine a pro-rated Cash Bonus Pool amount for the period from the
beginning of the fiscal year through the end of such fiscal quarter,
calculated as set forth in clauses (x), (y) and (z) of Section 6(a)
hereof. For purposes of such determination, Target EBITDA, Incentive
EBITDA, Adjusted Incentive EBITDA and the amount described under
subclause (II) of said clause (z), if any, shall be prorated for the
relevant year-to-date period.
(ii) The Executive shall be permitted to draw up to two-thirds
of his allocated amount of the pro-rated Cash Bonus Pool, less the
amount of all prior draws for the same fiscal year.
(iii) Following the end of the fiscal year, the Corporation
shall determine whether the amount of the Cash Bonus Pool allocable to
the Executive exceeds or is less than the Executive's draws under the
pro-rated Cash Bonus Pool for such fiscal year.
(iv) If the allocated amount of the Cash Bonus Pool to which
the Executive is entitled exceeds the amount of the Executive's draws
for the fiscal year, the Corporation shall pay the difference to the
participant not later than ninety (90) after the end of the fiscal
year. If the allocated amount of the Cash Bonus Pool to which the
Executive is entitled is less than the amount of the Executive's draws
for the fiscal year, the Executive shall repay the difference to the
Corporation within one hundred twenty (120) days after the Corporation
informs the Executive in writing of the deficiency, with a calculation
thereof in reasonable detail. The amount required to be repaid shall
bear interest at the applicable federal rate from the date of the
respective draw(s) until repayment. If the Executive shall dispute the
amount of the deficiency, the Executive shall inform the Corporation in
writing of such dispute on or before the date payment of the deficiency
is otherwise due, shall provide the Corporation with a statement of the
basis for the dispute in reasonable detail and shall pay to the
Corporation any undisputed amount thereof on or prior to the aforesaid
payment date. Thereafter, the Executive and the Corporation shall in
good faith attempt to resolve the dispute, but if the dispute cannot be
resolved prior to the expiration of thirty (30) days from the aforesaid
payment date, the dispute shall be submitted to arbitration in
accordance with the procedures set forth in Section 25.
-6-
<PAGE>
(v) The Executive's repayment obligations under the preceding
clause (iv) of this Section 6(b) shall be secured by all unexercised
options, vested or unvested, to acquire capital stock of the
Corporation granted by the Corporation to the Executive.
(c) If any payment is required to be made under Section 8, 9
or 10 hereof on the basis of the Cash Bonus Pool for any fiscal year, and the
Cash Bonus Pool for such fiscal year cannot be determined until after the time
that such payment is otherwise required to be made, then the payment of that
amount which is based upon the determination of the Cash Bonus Pool for such
fiscal year shall be deferred until after such time as the determination of the
Cash Bonus Pool for such fiscal year can reasonably be made, and such payment
shall be made as soon thereafter as practicable.
(d) Payment of the Cash Bonus Pool shall be subject to the
approval of the Corporation's stockholders to the extent necessary such that all
payments under the Cash Bonus Pool will be fully deductible under Section 162(m)
of the Code, and the Corporation shall used its reasonable best efforts to
obtain such approval on a timely basis consistent with the provisions of this
Section 6.
7. Employee Benefits.
(a) During the Term, the Executive shall receive coverage
and/or benefits under any and all medical insurance, life insurance, long-term
disability insurance and pension plans and other employee benefit plans of the
Corporation generally made available to senior executives of the Corporation
from time to time.
(b) During the Term, the Corporation shall provide (x) the
Executive and members of his immediate family with (i) supplemental disability
coverage and (ii) medical insurance for all medical costs and services incurred
by the foregoing, including costs of dental, vision and custodial care, and (y)
the Executive with the services of an automobile selected by him and a driver
for his use.
(c) The Executive shall be entitled to paid vacations (taken
consecutively or in segments), in accordance with the standard vacation policy
of the Corporation for senior executives, but in no event less than four (4)
weeks each calendar year during the Term. Such vacations shall be taken at times
consistent with the effective discharge of the Executive's duties.
(d) During the Term, the Executive shall be accorded office
facilities and secretarial assistance commensurate with his position as Chief
Executive Officer of the Corporation and adequate for the performance of his
duties hereunder.
(e) The Executive shall be awarded, as of January 1, 1998, ten
year options to acquire 190,399 shares of the Corporation's common stock, par
value $.01 per share, under the Corporation's 1997 Management Stock Option Plan,
at an exercise price of $6.18 per share, of which options to acquire 131,878
shares will vest in three equal annual installments beginning June 4, 1998
-7-
<PAGE>
and options to acquire 58,521 shares will vest in four equal installments
beginning January 4, 1998, subject to acceleration and expiration as provided in
the aforesaid plan.
8. Termination--Death or Disability.
(a) In the event of the termination of the Executive's
employment because of the death of the Executive during the Term, the
Corporation shall pay to any one or more beneficiaries designated by the
Executive pursuant to notice to the Corporation, or, failing such designation,
to the Executive's estate, (i) the unpaid Base Salary owing to the Employee
through the end of the month of his death, in a lump sum within five (5)
business days after his death, and (ii) a Bonus for the year in which such
termination occurs, equal to the Bonus (if any) that would have been paid for
such year if no such termination had occurred, times a fraction, the numerator
of which is the number of months in such year through the end of the month in
which such termination occurs, and the denominator of which is twelve (12).
(b) In the event that the Executive shall become Disabled, the
Corporation shall have the right to terminate the Executive's employment
hereunder by giving him written notice of such termination. Upon receipt of such
notice, the Executive's employment hereunder shall terminate. In the event of
such termination, the Corporation shall pay to the Executive (i) the unpaid Base
Salary owing to the Executive through the end of the month of such termination,
in a lump sum within five (5) business days of such termination, and (ii) a
Bonus for the year in which such termination occurs, equal to the Bonus (if any)
that would have been paid for such year if no such termination had occurred,
times a fraction, the numerator of which is the number of months in such year
through the end of the month in which such termination occurs, and the
denominator of which is twelve (12).
(c) If the Executive has made interim draws against his Bonus,
in accordance with Section 6(b) hereof, for any fiscal year prior to the date of
his death or termination for disability for which a year-end reconciliation has
not been made in accordance with clause (iv) of such Section, any Bonus payment
required pursuant to Section 8(a) or 8(b) shall be adjusted, and the Corporation
shall make a payment to the Executive or his estate or the Executive or his
estate shall make a payment to the Corporation, as required by Section 6(b)(iv).
9. Termination for Cause by Corporation.
(a) The Executive's employment hereunder may be terminated by
the Corporation for Cause upon compliance with the provisions of Section 9(b)
hereof. In the event that Executive's employment hereunder shall validly be
terminated by the Corporation for Cause pursuant to this Section 9, the
Corporation shall promptly pay accrued but unpaid Base Salary to the date of
termination and reimburse or pay any other accrued but unpaid amounts due under
Sections 6 and 13 hereof as of the date of termination, and thereafter shall
have no further obligations under this Agreement. Upon termination of the
Executive's employment hereunder for Cause, the Executive shall nonetheless
remain bound by the obligations provided for in Sections 11 and 12 hereof. For
purposes of this Section 9(a), the amount accrued to the Executive under Section
6 hereof shall mean
-8-
<PAGE>
a Bonus accrued but unpaid for all fiscal years prior to the fiscal year in
which the termination of the Executive occurs. If the Executive has made interim
draws against his Bonus, in accordance with Section 6(b) hereof, for the fiscal
year during which his termination occurs, the Executive shall promptly repay the
amount of all such draws to the Corporation, and, to the extent not repaid, such
amount may be offset by the Corporation against any amounts owing to the
Executive under this Section 9(a).
(b) Termination for Cause shall be effected only by action of
a majority of the Board then in office (excluding the Executive) at a meeting
duly called and held upon at least ten (10) days' prior written notice to the
Executive specifying the particulars of the action or inaction alleged to
constitute "Cause" (and at which meeting the Executive and his counsel were
entitled to be present and given reasonable opportunity to be heard).
10. Termination for Good Reason by the Executive or Without Cause
by the Corporation; Change of Control; Non-Renewal.
(a) Termination by Executive for Good Reason. The Executive's
employment hereunder may be terminated by the Executive for Good Reason by
providing written notice to the Corporation to such effect (such termination to
be effective on the date specified in such notice, which date shall not be more
than sixty (60) days nor less than thirty (30) days after the date of such
notice).
(b) Severance. If at any time (other than following a Change
of Control) the Executive terminates his employment for Good Reason or the
Corporation terminates the Executive's employment without Cause, then, in lieu
of any other amounts that might otherwise have been payable hereunder, the
Corporation shall promptly pay to the Executive:
(i) all accrued but unpaid Base Salary and any other accrued
but unpaid amounts due under Sections 6 and 13 hereof as of the date of
termination; and
(ii) (I) if the termination occurs at any prior to the second
anniversary of the Effective Date, an amount equal to twice the Base
Salary in effect on the date of termination for each year or partial
year remaining during the Term; or (II) if the termination occurs on or
after the second anniversary of the Effective Date, an amount equal to
(x) twice the Base Salary in effect on the date of termination, plus
(y) the amount of the Bonus, if any, payable to the Executive in
respect of the second year of the Term.
If the employment of the Executive is terminated as provided in this Section
9(b) or Section 9(c) below and the Executive has made interim draws against his
Bonus, in accordance with Section 6(b) hereof, for the fiscal year during which
such termination occurs, the Executive shall promptly repay the amount of all
such draws to the Corporation, and, to the extent not repaid, such amount may be
offset by the Corporation against any amounts owing to the Executive under this
Section 9(b) or Section 9(c) below.
-9-
<PAGE>
(c) Change of Control. If a Change of Control occurs and
thereafter the Executive terminates his employment for Good Reason or the
Corporation terminates the Executive's employment without Cause, the Corporation
shall promptly pay to the Executive an amount equal to the greater of:
(i) the maximum amount that may be paid to the Executive
which, when taken together with all other amounts that would be deemed
to be "parachute payments" under Section 280G of the Code (disregarding
Section 280G(b)(2)(A)(ii) thereof), would not cause the Corporation to
make an "excess parachute payment" to the Executive, within the meaning
of Section 280G of the Code; and
(ii) the sum of (x) the amount payable to the Executive under
Section 10(b) above, and (y) the Gross-Up Payment.
(d) Gross-Up Payment.
(i) For purposes of Section 10(c), "Gross-Up Payment" means an
additional amount such that the net amount retained by the Executive, after
deduction of the Excise Tax (as defined below) on any payments or benefits under
this Agreement and/or under any option plan or agreement of the Corporation
received by the Executive from the Corporation as a result of a Change of
Control (within the meaning of section 280G(b)(2) of the Code) (collectively,
the "Payments") and any federal, state and local income tax and the Excise Tax
upon the Gross-Up Payment, and any interest, penalties or additions to tax
payable by the Executive with respect thereto (other than such interest,
penalties or additions to tax payable solely as a result of action or inaction
by the Executive), shall be equal to the total amount of the Payments. "Excise
Tax" means the tax imposed by Section 4999 of the Code. For purposes of
determining whether any of the Payments will be subject to the Excise Tax and
the amounts of such Excise Tax, (x) the total amount of the Payments shall be
treated as "parachute payments" within the meaning of section 280G(b)(2) of the
Code, and all "excess parachute payments" within the meaning of section
280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to
the extent that, in the opinion of independent counsel selected by the
Corporation and reasonably acceptable to the Executive ("Independent counsel"),
a Payment (in whole or in part) does not constitute a "parachute payment" within
the meaning of section 280G(b)(2) of the Code, or such "excess parachute
payments" (in whole or in part) are not subject to the Excise Tax; (y) the
amount of the Payments that shall be treated as subject to the Excise Tax shall
be equal to the lesser of (A) the total amount of the Payments or (B) the amount
of "excess parachute payments" within the meaning of section 280G(b)(1) of the
Code (after applying clause (1) hereof); and (z) the value of any noncash
benefits or any deferred payment or benefit shall be determined by Independent
Counsel in accordance with the principles of sections 280G(d)(3) and (4) of the
Code. For purposes of determining the amount of the Gross-Up Payment, the
Executive shall be deemed to pay federal income taxes at the highest marginal
rates of federal income taxation applicable to the individuals in the calendar
year in which the Gross-Up Payment is to be made and state and local income
taxes at the highest marginal rates of taxation applicable to individuals as are
in effect in the state and locality of the Executive's residence in the calendar
year in which the Gross-Up Payment
-10-
<PAGE>
is to be made, net of the maximum reduction in federal income taxes that can be
obtained from deduction of such state and local taxes, taking into account any
limitations applicable to individuals subject to federal income tax at the
highest marginal rates.
(ii) The Gross-Up Payments referred to in Section 10(d)(i)
hereof shall be made, subject to applicable withholding requirements, upon the
earlier of (x) the payment to the Executive of any Payment or (y) the imposition
upon the Executive or payment by the Executive of any Excise Tax.
(iii) If it is established pursuant to a final determination
of a court or an Internal Revenue Service proceeding or the opinion of
Independent Counsel that the Excise Tax exceeds the amount taken into account
hereunder (including by reasons of any payment the existence or amount of which
cannot be determined at the time of the Gross-Up Payment), the Corporation shall
make an additional Gross-Up Payment in respect of such excess within thirty (30)
days of the Corporation's receipt of notice of such final determination or
opinion.
(iv) In the event that the Internal Revenue Service makes any
claim, gives notice of any potential claim or institutes a proceeding against
the Executive asserting that any Excise Tax or additional Excise Tax is due in
respect of the Payments, the Executive shall promptly give the Corporation
notice of any such claim, potential claim or proceeding. The Corporation shall
have the right to conduct all discussions, negotiations, defenses, actions and
proceedings solely to the extent relating to any Excise Tax payable in respect
of the Payments, and the Executive shall cooperate with and assist the
Corporation, at the Corporation's expense, in any such discussions,
negotiations, defenses, actions and proceedings, to the extent reasonably
requested by the Corporation. The Executive will not settle any claim or
proceeding solely to the extent relating to the Excise Tax payable in respect of
the Payments without the consent of the Corporation, which consent shall not be
unreasonably withheld. The Executive shall file, at the Corporation's expense,
all requests for refunds of the Gross-Up Amount, or any portion thereof, paid to
any taxing authority as shall be reasonably requested by the Corporation and
shall pay over to the Corporation (net of any tax payable thereon) any such
refunds, together with any interest thereon, when and as such refunds and
interest are received by the Executive.
(v) All fees and expenses of Independent Counsel shall be
borne by the Corporation.
(e) Non-Renewal. In the event that the employment of the
Executive is not renewed by the Corporation following the end of the Term on
terms that are no less favorable to the Executive than the terms of this
Agreement, the Corporation shall pay to the Executive, promptly after the end of
the Term, an amount equal to (x) twice the Base Salary in effect at the end of
the Term, plus (y) the amount of the Bonus, if any, payable to the Executive in
respect of the third year of the Term; provided that such payment shall not be
less than three times the Base Salary in effect at the end of the Term. If the
Corporation is willing to renew the employment of the Executive at the end of
the Term on terms no less favorable to the Executive than the terms of this
Agreement but
-11-
<PAGE>
the Executive is unwilling to accept such employment, no amount shall be payable
to the Executive under this Section 10(d).
11. Confidential Information. In addition to any other confidentiality
obligation the Executive may have to the date hereof, and until the end of the
original Term, the Executive shall keep secret and retain in strictest
confidence, and shall not use for his benefit or the benefit of others, any and
all confidential information relating to the Corporation and its subsidiaries,
including, without limitation, customer lists, financial plans or projections,
pricing policies, marketing plans or strategies, business acquisition or
divestiture plans, new personnel acquisition plans, designs, and, except in
connection with the performance of his duties hereunder, the Executive shall not
disclose any such information to anyone outside the Corporation and any of its
subsidiaries, except as required by law (provided prior written notice thereof
is given by the Executive to the Corporation) or except with the Corporation's
prior consent, unless such information is known generally to the public or the
trade through sources other than the Executive's unauthorized disclosure.
12. Competitive Activity. The Executive hereby agrees that, during his
employment hereunder, and, following a termination of his employment, for the
balance of the Term (if any), the Executive shall not, without the prior consent
of the Board (i) directly or indirectly, engage or be interested in (as owner,
partner, shareholder, employee, director, officer, agent, consultant or
otherwise), with or without compensation, any business wherever located in the
world engaged in the manufacture, distribution, design marketing or sale of
women's apparel, if such business is a material competitor of the Corporation,
or (ii) induce or attempt to persuade any employee of the Corporation or of any
subsidiary of the Corporation, or any person who was employed by the Corporation
or any subsidiary of the Corporation within the preceding six months, to leave
the employ of the Corporation or any subsidiary of the Corporation (but the
foregoing shall not be deemed to prevent the Executive in his capacity as Chief
Executive Officer of the Corporation from hiring or dismissing any employee of
the Corporation or any subsidiary for the benefit of the Corporation). The
provisions of clause (i) of the preceding sentence shall not apply in the case
of a termination by the Executive for Good Reason or by the Corporation without
Cause. Nothing in this Section 12 shall prohibit the Executive from acquiring or
holding not more than five percent (5%) of any class of publicly traded
securities of any business.
13. Expenses. The Corporation shall reimburse the Executive for all
reasonable expenses incurred by the Executive in the performance of the
Executive's duties hereunder; provided, however, that, in connection with such
reimbursement, the Executive shall account to the Corporation for such expenses
in the manner customarily prescribed by the Corporation for its senior
executives.
14. Directors' and Officers' Insurance; Indemnification. The Executive
shall be provided with directors' and officers' insurance in connection with his
employment hereunder and service as a Director as contemplated hereby with such
coverage (including with respect to unpaid wages and taxes not remitted when
done) as shall be reasonably satisfactory to the Executive and with aggregate
limits of liability for all covered officers and directors of not less than
Thirty-Five Million Dollars ($35,000,000), and the Corporation shall maintain
such insurance in effect for the period of the
-12-
<PAGE>
Executive's employment hereunder and for not less than five (5) years
thereafter; provided, however, that, in the event that the Corporation shall not
obtain such insurance, it shall provide or cause the Executive to be provided
with indemnity (or a combination of indemnity and directors' and officers'
insurance) in connection with his employment hereunder with substantially
equivalent coverage and amounts, and the Corporation shall maintain such
indemnity (or combination of indemnity and directors' and officers' insurance)
or cause such indemnity (or such combination) to be maintained for the period of
the Executive's employment hereunder and for not less than five (5) years
thereafter.
15. No Duty to Mitigate. The Executive shall have no duty to mitigate
the severance amounts or any other amounts payable to the Executive hereunder,
and such amounts shall not be subject to reduction for any compensation received
by the Executive from employment in any capacity or other source following the
termination of Executive's employment with the Corporation and its subsidiaries.
16. Entire Agreements; Amendments; No Waiver. This Agreement contains
the entire understanding between the parties hereto with respect to the subject
matter hereof. This Agreement may not be changed orally, but only by an
instrument in writing signed by the party against whom enforcement of any
waiver, change, modification, extension or discharge is sought. No failure on
the part of either party to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof, nor shall any partial exercise of
any right hereunder preclude any further exercise thereof.
17. Survival of Provisions. The provisions of Sections 10(d), 11, 12,
23, 25 and 26(a) shall survive the termination or expiration of this Agreement
as provided therein. Such provisions are unique and extraordinary, which give
them a value peculiar to the Corporation, and cannot be reasonably or adequately
compensated in damages for its loss and any breach by the Executive of such
provisions shall cause the Corporation irreparable injury and damage. Therefore,
the Corporation, in addition to all other remedies available to it, shall be
entitled to injunctive and other available equitable relief in any court of
competent jurisdiction to prevent or otherwise restrain a breach of such
provisions for the purposes of enforcing such provisions.
18. Withholding. The Corporation shall be entitled to withhold from any
and all amounts payable to the Executive hereunder such amounts as may from time
to time be required to be withheld pursuant to applicable tax laws and
regulations.
19. Succession, Assignability and Binding Effect. (a) The Corporation
will require any successor or successors (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Corporation expressly to assume and agree to
perform this Agreement in the same manner and to the same extent that the
Corporation would be required to perform it if no such succession had taken
place. Failure of the Corporation to obtain such agreement prior to the
effectiveness of any such succession shall constitute Good Reason for
resignation by the Executive.
-13-
<PAGE>
(b) This Agreement shall inure to the benefit of and shall be
binding upon the Corporation and its successors and permitted assigns and upon
the Executive and his heirs, executors, legal representatives, successors and
permitted assigns; provided, however, that neither party may assign, transfer,
pledge, encumber, hypothecate or otherwise dispose of this Agreement or any of
its or his rights hereunder without the prior written consent of the other
party, and any such attempted assignment, transfer, pledge, encumbrance,
hypothecation or other disposition without such consent shall be null and void
and without effect.
20. Headings. The paragraph headings contained herein are included
solely for convenience of reference and shall not control or affect the meaning
or interpretation of any of the provisions of this Agreement.
21. Notices. Any notices or other communications hereunder by either
party shall be in writing and shall be deemed to have been duly given if
delivered personally to the other party or, if sent by registered or certified
mail, upon receipt, to the other party at his or its address set forth at the
beginning of this Agreement or at such other address as such other party may
designate in conformity with the foregoing.
22. Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of New York, without
giving effect to the principles thereof relating to the conflict of laws.
23. Legal Fees and Expenses. In order to induce the Executive to enter
into this Agreement and to provide the Executive with reasonable assurance that
the purposes of this Agreement shall not be frustrated by the cost of its
enforcement, the Corporation shall pay and be solely responsible for any
attorneys' fees and expenses and court costs incurred by the Executive as a
result of the failure by the Corporation to perform this Agreement or any
provision hereof to be performed by it or in connection with any action which
may be brought, by or in the name or for the benefit of the Corporation or any
subsidiary contesting the validity or enforceability of this Agreement or any
provision hereof to be performed by the Corporation, which action shall have
been dismissed by a final, nonappealable court order.
24. Opportunity to Review. The Executive acknowledged that he has been
given the opportunity to discuss this Agreement, including this Section 24, with
his private legal counsel and has availed himself of that opportunity to the
extent he wishes to do so.
25. Arbitration.
(a) Disputes Subject to Arbitration. In the event that the
Corporation terminates the Executive's employment on the grounds set forth in
clause (iii) of the definition of "Cause", the Corporation and the Executive
mutually consent to the resolution by arbitration of any dispute between the
Corporation and the Executive as to whether such Cause has occurred. Unless the
Corporation and the Executive otherwise agree, no other disputes, issues, claims
or controversies
-14-
<PAGE>
arising out of the Executive's employment (or its termination), or any other
matter whatsoever, shall be submitted to or resolved by arbitration.
(b) Arbitration Procedures.
(i) The Corporation and the Executive agree that, except as
provided in this Agreement, any arbitration shall be in accordance with
the then current Model Employment Arbitration Procedures of the
American Arbitration Association ("AAA") before an arbitrator who is
licensed to practice law in the state in which the arbitration is
convened (the "Arbitrator"). The arbitration shall take place in or
near the city in which the Executive is or was last employed by the
Corporation.
(ii) Upon designation as a Dispute, the AAA shall give each
party a list of eleven (11) arbitrators drawn from its panel of labor
and employment arbitrators. The Corporation and the Executive may
strike all names on the list which it deems unacceptable. If only one
common name remains on the lists of all parties, said individual shall
be designated as the Arbitrator. If more than one common name remains
on the lists of all parties, the parties shall strike names
alternatively until only one remains. If no common name remains on the
lists of all parties, the AAA shall furnish an additional list and the
parties shall alternate striking names on such second list until an
arbitrator is selected.
(iii) The Arbitrator shall apply the law of the State of New
York applicable to contracts made and to be performed wholly in that
state (without giving effect to the principles thereof relating to
conflicts of law). The Federal Rules of Evidence shall apply. The
Arbitrator, and not any federal, state, or local court or agency, shall
have exclusive authority to resolve any dispute relating to the
interpretation, applicability or formation of the term "Cause". The
Arbitrator shall render a decision within thirty (30) days of the date
upon which the Arbitrator is selected pursuant to Section 25(b)(ii),
which decision shall be final and binding upon the parties. In the
event that the Arbitrator decides that Material Insubordination has (x)
occurred, then the Executive's employment shall be deemed to have been
terminated for cause pursuant to Section 9(a) hereof or (y) not
occurred, then the Executive's employment shall be deemed to have been
terminated without Cause pursuant to Section 10(b) hereof.
(iv) The Arbitrator shall have jurisdiction to hear and rule
on pre-hearing disputes and is authorized to hold prehearing
conferences by telephone or in person as the Arbitrator deems
necessary. The Arbitrator shall have the authority to entertain a
motion to dismiss and/or a motion for summary judgment by any party and
shall apply the standards governing such motions under the Federal
Rules of Civil Procedure.
(v) Either party, at its expense, may arrange for and pay the
costs of a court reporter to provide a stenographic report of
proceedings.
-15-
<PAGE>
(vi) Either party, upon request at the close of hearing, shall
be given leave to file a post-hearing brief. The time for filing such a
brief shall be set by the Arbitrator.
(vii) Either party may bring an action in any court of
competent jurisdiction to compel arbitration under this Section 25.
Except as otherwise provided in this Section 25, both the Corporation
and the Executive agree that neither such party shall initiate or
prosecute any lawsuit or administrative action in any way related to
any Dispute covered by this Section 25.
(viii) The arbitrator shall render an opinion in the form
typically rendered in labor arbitrations.
(c) Arbitration Fees and Costs. The Corporation and the
Executive shall equally share the fees and costs of the Arbitrator. Each party
shall deposit funds or post other appropriate security for its share of the
Arbitrator's fee, in an amount and manner determined by the Arbitrator, ten (10)
days before the first day of hearing. Each party shall pay for its own costs and
attorneys' fees, if any. However, if any party prevails on a statutory claim
that affords the prevailing party attorneys' fees, the Arbitrator may award
reasonable fees to the prevailing party.
(d) Opportunity to Review. The Executive acknowledged that he
has been given the opportunity to discuss this Agreement, including this Section
25, with his private legal counsel and has availed himself of that opportunity
to the extent he wishes to do so.
(e) Law Governing. The parties agree that the arbitration
provisions set forth in this Section 25 shall be governed by the Federal
Arbitration Act, 9 U.S.C.ss.ss. 1-16, ("FAA"). The parties further agree that
all Disputes, whether arising under state or federal law, shall be subject to
the FAA, notwithstanding any state or local laws to the contrary.
26. Other Matters.
(a) Health Insurance. So long as the annual cost thereof does
not exceed Twenty Thousand Dollars ($20,000), and unless the employment of the
Executive shall be terminated by the Corporation for Cause or by the Executive
without Good Reason, the Corporation shall continue in effect, for the rest of
the Executive's life, the health insurance provided for the Executive by Old
Leslie Fay as of the Effective Date.
(b) Prior Employment Agreement. The employment agreement,
dated as of June 2, 1997 between the Executive and the Corporation is hereby
terminated as of the Effective Date, except that the provisions of section 26(b)
of such employment agreement in respect of the Executive's employment contract
with Old Leslie Fay shall survive.
-16-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the day and year first above written.
THE LESLIE FAY COMPANY, INC.
By: /s/ John A. Ward
-------------------------------
Name: John A. Ward
Title: President
/s/ John J. Pomerantz
-------------------------------
John J. Pomerantz
Executive
-17-
Three Cities Offshore II C.V.
Three Cities Fund II, L.P.
c/o Three Cities Research, Inc.
650 Madison Avenue
New York, New York 10022
July 26, 1999
Mr. John J. Pomerantz
President and Chief Executive Officer
The Leslie Fay Company, Inc.
1412 Broadway
New York, NY 10018
Directors
---------
Dear Mr. Pomerantz:
The New Stockholders (as defined below) have agreed to acquire
up to approximately 65% of the outstanding capital stock through a stock
purchase and subsequent merger of The Leslie Fay Company, Inc., a Delaware
corporation (the "Company"). You and the Company are parties to an employment
agreement, dated as of January 4, 1998 (the "Executive Employment Agreement").
Capitalized terms used and not otherwise defined shall have
the meanings set forth in the Registration Rights Agreement, dated as of May 12,
1999, among the Company and Three Cities Fund II, L.P., a Delaware limited
partnership ("TCF II"), and Three Cities Offshore II C.V., a Netherlands
Antilles limited partnership (together with TCF II, the "New Stockholders").
The New Stockholders and you agree (i) to vote the respective
shares of Common Stock owned by the New Stockholders and you in favor of the
nominees for the Board of Directors at the next annual meeting of stockholders
of the Company scheduled for August 24, 1999 (the "Upcoming Meeting") who will
be the directors of the Company who were directors of the Company at the time of
the public announcement of the Merger and (ii) not to take any actions to change
the size or composition of the Board of Directors until at least the next annual
meeting of stockholders of the Company following the Upcoming Meeting.
With respect to nominees for the Board of Directors at
Subsequent Annual Meetings, for so long as you have the contractual right to
designate at least one nominee to the Board of Directors of the Company, the New
Stockholders and you
<PAGE>
2
shall mutually agree on the identity of all of the nominees to serve as
directors (the "Joint Slate") of the Company (other than any nominee of other
persons who have a contractual right to designate such nominee). If the New
Stockholders and you do not agree on the Joint Slate within a reasonable period
of time prior to the date regularly set for the mailing of the proxy statement
for a Subsequent Annual Meeting, you shall have the right to designate at least
28% of the nominees to the Board of Directors of the Company in accordance with
the Executive Employment Agreement (the "Pomerantz Nominees"), and the New
Stockholders shall have the right to designate at least their Proportionate
Percentage of the Board of Directors of the Company (the "New Stockholder
Nominees"); provided, that before the New Stockholders shall designate any
individual, you shall have a reasonable opportunity to meet with such individual
and such individual must be reasonably satisfactory to you. You acknowledge that
any officer of Three Cities Research, Inc. is deemed to be reasonably
satisfactory as a nominee to serve as a director of the Company.
Notwithstanding any of the foregoing, the New Stockholders and
you acknowledge that any of the nominees designated in accordance with this
letter shall be subject to the approval of a majority of the Board of Directors
of the Company voting on the matter in accordance with the Company's By-laws;
provided, however, that if the Joint Slate or such other nominees are not so
approved, the New Stockholders and you shall take such reasonable further action
in their capacity as stockholders of the Company as may be reasonably necessary
to effect a stockholder election of the Joint Slate or such other nominees at
such Subsequent Annual Meeting; provided, further, that notwithstanding anything
to the contrary contained herein, neither the New Stockholders nor you shall be
obligated or otherwise required to effect a proxy contest to have any or all of
the Joint Slate or such nominees elected as directors of the Company.
The New Stockholders and you each agree as follows:
(A) to appear, or cause the holder of record (the
"Record Holder") of any shares of Common Stock beneficially owned by the New
Stockholders and you, as the case may be, on any applicable record date to
appear, for the purpose of obtaining a quorum at any annual or special meeting
of stockholders of the Company and at any adjournment thereof, at which matters
relating to the nomination of directors are considered; and
(B) at any meeting of the stockholders of the
Company, however called, and in any action by consent of the stockholders of the
Company, to vote, or cause to be voted by the Record Holder, any shares of
Common Stock then owned by the New Stockholders and you, as the case may be, (i)
(x) if the New Stockholders and you agree on the Joint Slate and the Joint Slate
is put to a vote of stockholders of the Company, in favor of the adoption of the
Joint Slate or (y) if a Joint
<PAGE>
3
Slate is not agreed or put to such a vote, in favor of the election of the
Pomerantz Nominees and the New Stockholder Nominees to the extent such Nominees
are put to a vote of stockholders of the Company and (ii) against any competing
slate of directors.
<PAGE>
4
This letter shall be governed by and construed in accordance
with the laws of the State of Delaware.
If the foregoing accurately sets forth your understanding with
regard to the matter specified herein, please so indicate your agreement by
signing a copy of this letter and returning an original to us at the address set
forth above.
Sincerely,
THREE CITIES OFFSHORE II C.V.
By: THREE CITIES ASSOCIATES N.V.,
its general partner
By: /s/ J. William Uhrig
--------------------------------
J. William Uhrig
Managing Director
THREE CITIES FUND II, L.P.
By: TCR ASSOCIATES, L.P.,
its general partner
By: /s/ Thomas G. Weld
--------------------------------
Thomas G. Weld
Treasurer
ACCEPTED AND AGREED as of the date first written above:
/s/ John J. Pomerantz
- -----------------------------
John J. Pomerantz
