<PAGE> 1
As filed with the Securities and Exchange Commission on October 30, 1997.
Subject to amendment.
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
----------
NORTON MCNAUGHTON, INC.
(Exact name of issuer as specified in its charter)
DELAWARE 13-3747173
(State or other jurisdiction (I.R.S. Employer
of incorporation Identification No.)
or organization)
----------
463 Seventh Avenue
New York, New York 10018
(Address of principal executive offices)
----------
ME ACQUISITION CORP.
BONUS PLAN FOR SENIOR EXECUTIVES
(Full title of the plan)
----------
PETER BONEPARTH
President
Norton McNaughton, Inc.
463 Seventh Avenue
New York, New York 10018
(212) 947-2960
(Name, address and telephone number,
including area code, of agent for service)
----------
Copy to:
BRADLEY P. COST, ESQ.
Haythe & Curley
237 Park Avenue
New York, New York 10017
----------
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the
Registration Statement becomes effective.
----------
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed
Title of Proposed maximum maximum Amount of
securities to Amount to offering aggregate registration
be registered be registered price per share* offering price* fee
------------- ------------- ---------------- --------------- ------------
Common Stock 640,000 $5.875 $3,760,000 $1,241.00
($.01 par
value)
================================================================================
* Estimated solely for purposes of calculating the registration fee on the
basis of the average high and low prices of the Common Stock on October
27, 1997, as reported on the NASDAQ National Market System.
================================================================================
Page 1 of 147 pages
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Company hereby states that (i) the documents listed in (a)
through (e) below are incorporated by reference in this Registration Statement
and (ii) all documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended November 2, 1996.
(b) Quarterly Report on Form 10-Q for the quarter ended February 1,
1997.
(c) Quarterly Report on Form 10-Q for the quarter ended May 3, 1997.
(d) Quarterly Report on Form 10-Q for the quarter ended August 2,
1997.
(e) The description of the Company's Common Stock contained in the
Company's registration statement on Form 8-A (No. 34-23440) filed February 17,
1994.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Bradley P. Cost, Esq., a partner in the law firm of Haythe & Curley,
the Company's counsel, is a director of the Company. As of October 20, 1997, Mr.
Cost held 5,000 shares of the Company's Common Stock and options under the
Company's 1994 Stock Option Plan to purchase an aggregate of 25,000 shares of
the Company's Common Stock.
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<PAGE> 3
Item 6. Indemnification of Directors and Officers.
Under Section 145 of the Delaware General Corporation Law, as
amended, the Company has the power to indemnify directors and officers under
certain prescribed circumstances and subject to certain limitations against
certain costs and expenses, including attorney's fees, actually and reasonably
incurred in connection with any action, suit or proceeding, whether civil,
criminal, administrative or investigative, to which any of them is a party by
reason of such person's being a director or officer of the Company if it is
determined that such person acted in accordance with the applicable standard of
conduct set forth in such statutory provisions.
The Company's Certificate of Incorporation contains a provision
which eliminates the personal liability of a director of the Company to the
Company or to any of its stockholders for monetary damages for a breach of his
fiduciary duty as a director, except in the case where the director breached his
duty of loyalty, failed to act in good faith, engaged in intentional misconduct
or knowingly violated a law, authorized the payment of a dividend or approved a
stock repurchase in violation of Delaware corporate law, or obtained an improper
personal benefit.
The Company's Certificate of Incorporation also provides that the
Company will indemnify and hold harmless any director, officer, employee or
agent of the Company from and against any and all expenses and liabilities that
may be imposed upon or incurred by him in connection with, or as a result of,
any proceeding in which he may become involved, as a party or otherwise, by
reason of the fact that he is or was such a director, officer, employee or agent
of the Company, whether or not he continues to be such at the time such expenses
and liabilities shall have been imposed or incurred, to the extent permitted by
the laws of the State of Delaware, as they may be amended from time to time.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibits required to be filed as part of this Registration
Statement are listed in the attached Index to Exhibits.
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<PAGE> 4
Item 9. Undertakings.
The undersigned Registrant hereby undertakes, except as otherwise
specifically provided in the rules of the Securities and Exchange Commission
promulgated under the Securities Act of 1933:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment hereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this Registration
Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if this
Registration Statement is on Form S-3 or Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in
this Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of
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<PAGE> 5
the Securities Exchange Act of 1934 that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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<PAGE> 6
POWER OF ATTORNEY
The Registrant and each person whose signature appears below hereby
appoints Sanford Greenberg and Peter Boneparth as attorneys-in-fact with full
power of substitution, severally, to execute in the name and on behalf of the
Registrant and each such person, individually and in each capacity stated below,
one or more post-effective amendments to this Registration Statement as the
attorney-in-fact acting in the premises deems appropriate and to file any such
amendment to this Registration Statement with the Securities and Exchange
Commission.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York on the 22nd day of
October, 1997.
NORTON MCNAUGHTON, INC.
By /s/ Sanford Greenberg
-----------------------------------
Sanford Greenberg
Chief Executive Officer and
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Sanford Greenberg Chairman of the Board, October 22, 1997
- -------------------------- Chief Executive Officer
Sanford Greenberg and Director (Principal
Executive Officer)
/s/ Peter Boneparth President, Chief Operating October 22, 1997
- -------------------------- Officer and Director
Peter Boneparth
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Signature Title Date
--------- ----- ----
/s/ Norton Sperling Vice Chairman of the Board October 22, 1997
- -------------------------- and Director
Norton Sperling
/s/ Amanda J.Bokman Chief Financial October 22, 1997
- -------------------------- Officer and Director
Amanda J. Bokman (Principal Financial
Officer and Principal
Accounting Officer)
/s/ David M. Blumberg Director October 22, 1997
- --------------------------
David M. Blumberg
/s/ Bradley P. Cost Director October 22, 1997
- --------------------------
Bradley P. Cost
/s/ Jerald S. Politzer Director October 22, 1997
- --------------------------
Jerald S. Politzer
/s/ Stuart Bregman
- --------------------------
Stuart Bregman Director October 22, 1997
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CONSENT OF COUNSEL
The consent of Haythe & Curley is contained in their opinion filed
as Exhibit 5 to this Registration Statement.
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CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the ME Acquisition Corp. Bonus Plan for
Senior Executives of our report dated December 16, 1996, with respect to the
consolidated financial statements and schedule of Norton McNaughton, Inc.
included in its Annual Report (Form 10-K) for the year ended November 2, 1996,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
New York, New York
October 28, 1997
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INDEX TO EXHIBITS
Number Description of Exhibit Page
------ ---------------------- ----
4.1 - ME Acquisition Corp. Bonus Plan --
for Senior Executives
4.2 - Employment Agreement dated --
August 29, 1997 between ME
Acquisition Corp. and Stuart
Bregman
4.3 - Employment Agreement dated --
August 29, 1997 between ME
Acquisition Corp. and Howard
Zwilling
4.4 - Employment Agreement dated --
August 29, 1997 between ME
Acquisition Corp. and Roberta
Ciacci
4.5 - Employment Agreement dated --
August 29, 1997 between ME
Acquisition Corp. and Samuel
Glaser
4.6 - Employment Agreement dated --
August 29, 1997 between ME
Acquisition Corp. and Elizabeth
Moser
4.7 - Employment Agreement dated --
August 29, 1997 between ME
Acquisition Corp. and Kenny Tse
5 - Opinion of Haythe & Curley --
23.1 - Consent of Ernst & Young LLP, --
Independent Auditors (see
"Consent of Independent
Auditors" in the Registration
Statement)
23.2 - Consent of Haythe & Curley --
(contained in Exhibit 5)
24 - Power of Attorney (see "Power of --
Attorney" in the Registration
Statement)
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<PAGE> 1
EXHIBIT 4.1
ME ACQUISITION CORP. BONUS PLAN
FOR SENIOR EXECUTIVES
1. Establishment. This Plan, which shall be known as the ME
Acquisition Corp. Bonus Plan for Senior Executives (the "Bonus Plan"), is hereby
established by ME Acquisition Corp. (the "Company") to provide incentives for
senior executives providing services to the Company and to aid the Company in
retaining such senior executives upon whose efforts the Company's success and
future growth depends.
2. Administration. The Bonus Plan shall be administered by the Board
of Directors of the Company (the "Board"). For purposes of administration, the
Board, subject to the terms of the Bonus Plan, shall have plenary authority to
establish such rules and regulations, to make such determinations and
interpretations, and to take such other administrative actions as it deems
necessary or advisable.
3. Participants. The participants in the Plan shall be Stuart
Bregman, Howard Zwilling, Roberta Ciacci, Elizabeth Moser, Kenneth Tse and
Samuel Glaser, in each case for so long as such individual is employed by the
Company pursuant to an Employment Agreement (as defined in the Agreement, as
defined in Section 4 below) (each, a "Participant" and collectively, the
"Participants"); provided, however, that nothing contained herein shall be
construed as creating a contract or guarantee of employment for any Participant.
4. Bonus Pool.
4.1 For each of the fiscal years of the Company, provided that the
EBITDA Target (as hereinafter defined) for such fiscal year shall have been
attained, the Company shall establish a bonus pool in an amount equal to a
percentage of EBITDA (as hereinafter defined) for such fiscal year as determined
by the Board in consultation with Stuart Bregman and Howard Zwilling for so long
as they are employed by the Company (the "Bonus Pool"); provided, however, that
the Bonus Pool for any fiscal year shall not exceed that amount which, when
deducted from EBITDA, would result in EBITDA for such fiscal year net of the
Bonus Pool of less than $5,500,000.
4.2 Notwithstanding the foregoing, in the event that the EBITDA
Target is not achieved in any fiscal year,
<PAGE> 2
2
but EBITDA (calculated as otherwise provided herein) for such fiscal year and
for the subsequent fiscal year equals or exceeds $11,000,000, then the Company
shall establish a bonus pool in an amount equal to a percentage to be determined
by the Board in consultation with Stuart Bregman and Howard Zwilling for so long
as they are employed by the Company of combined EBITDA for such two fiscal
years, which percentage of the combined EBITDA shall for purposes hereof
constitute the Bonus Pool for such two fiscal years; provided, however, that the
Bonus Pool for such two fiscal years shall not exceed that amount which, when
deducted from the combined EBITDA, would result in the combined EBITDA for such
two fiscal years net of the Bonus Pool of less than $11,000,000.
4.3 As used herein: (i) EBITDA shall have the meaning set forth in
the Agreement of Purchase and Sale dated as of September 3, 1997 (the
"Agreement"), by and among the Company and the other parties thereto (which
parties include certain of the Participants) for the appropriate fiscal year,
without reduction for the Bonus Pool for such fiscal year contemplated by this
Bonus Plan or for any expense attributable to the Bonus Options; and (ii) EBITDA
Target shall mean, for each fiscal year, achievement of EBITDA of not less than
$5,500,000. In the event of any change in the fiscal year of the Company,
appropriate adjustments shall be made to the EBITDA Target in order to carry out
the intent and principles of the Bonus Plan.
5. Allocation of Bonus Pool. The Bonus Pool shall be allocated as
specified in each Participant's Employment Agreement.
6. Payment of Bonus. The bonus payable to each Participant (or his
or her estate or other legal representative) for any fiscal year of the Company
pursuant to this Bonus Plan shall be paid by the Company within 120 days
following the close of such fiscal year.
7. Termination of Employment.
7.1 In the event of termination of the employment of a Participant
pursuant to Section 6.1, 6.2, 6.4, 6.5 or 6.6 of his or her Employment Agreement
prior to the end of any fiscal year of the Company, such Participant (or his or
her estate or other legal representative) shall be entitled to a bonus for such
fiscal year only as provided in this Section 7.1. The bonus to which the
Participant (or his estate or other legal representative) shall be entitled for
such fiscal year (which shall be payable at the time other Participants are paid
their portion of the Bonus Pool for
<PAGE> 3
3
such fiscal year) shall be (i) in the event that the Bonus Pool is calculated
pursuant to Section 4.1 of this Bonus Plan, an amount equal to the product of
(x) the bonus, if any, which would have been payable to the Participant pursuant
to Sections 4.1 and 5 of this Bonus Plan for such fiscal year if the employment
of the Participant had not so terminated, multiplied by (y) a fraction, the
numerator of which is the number of days from the beginning of such fiscal year
to the date of termination, and the denominator of which is 365; or (ii) in the
event that the Bonus Pool is calculated pursuant to Section 4.2 of this Bonus
Plan, an amount equal to the product of (x) the bonus, if any, which would have
been payable to the Participant pursuant to Sections 4.2 and 5 of this Bonus
Plan for such two fiscal years if the employment of the Participant had not so
terminated, multiplied by (y) a fraction, the numerator of which is the number
of days from the beginning of the first of such two fiscal years to the date of
termination, and the denominator of which is 730.
7.2 In the event of termination of the employment of a Participant
pursuant to Section 6.3 of his or her Employment Agreement, such Participant
shall not be entitled to a bonus for the fiscal year of the Company in which
such termination occurs.
7.3 In the event of termination of the employment of a Participant
by the Participant for any reason, other than pursuant to Section 6.1, 6.2 or
6.6 of his or her Employment Agreement, such Participant shall not be entitled
to a bonus for the fiscal year of the Company in which such termination occurs.
7.4 No Participant shall be entitled to a bonus for any fiscal year
of the Company subsequent to the fiscal year in which his or her termination of
employment (for any or no reason) occurs.
7.5 If any portion of the Bonus Pool shall not be allocated or paid
by reason of this Section 7, such portion shall be retained by the Company or
paid to other Participants or to new participants, all as determined by the
Board in its discretion, after consideration of any recommended course of action
submitted to the Board by the Chief Executive Officer and Chief Operating
Officer of the Company.
8. Bonus Options.
8.1 Grant. For each $500,000 of EBITDA in excess of $6,000,000
attained by the Company in each of the fiscal
<PAGE> 4
4
years of the Company beginning with the fiscal year ending October 31, 1998, the
Company shall cause to be granted to the Participants by the Board of Directors
of Norton McNaughton, Inc., a Delaware corporation ("Norton"), options (the
"Bonus Options") to purchase an aggregate of 28,000 (or such lesser number as
shall be necessary to allocated Bonus Options in accordance with Section 8.2
below) shares of common stock, par value $.01 per share, of Norton (the "Common
Stock"). The Bonus Options shall be granted, if at all, as of the last day of
the applicable fiscal year and shall have an exercise price per share equal to
the fair market value of the Common Stock on the date of grant.
8.2 Allocation of Bonus Options. The Bonus Options shall be
allocated 10,000 to Bregman, 10,000 to Zwilling, 3,000 to Ciacci, 2,000 to
Moser, 2,000 to Tse and 1,000 to Glazer.
8.3 Exercise. The Bonus Options shall be fully vested and
exercisable on and after the date of grant.
8.4 Term of Options. Except as provided below, the term of the Bonus
Options shall be ten years.
(i) If a Participant's employment with the Company terminates
pursuant to Section 6.1 of his or her Employment Agreement, is terminated by the
Company or by the Participant pursuant to Section 6.2 of his or her Employment
Agreement, is terminated by the Company pursuant to Section 6.4 of his or her
Employment Agreement, is terminated by the Employee pursuant to Section 6.6 of
his or her Employment Agreement, or terminated for any other reason (except as
provided in clause (ii) below), the Bonus Options may be exercised by the
Participant (or his estate or legal representative) within one (1) year after
such termination; and
(ii) In the event of termination of the employment of a
Participant (a) by the Company pursuant to Section 6.3 of his or her Employment
Agreement or (b) by the Participant other than pursuant to Sections 6.1, 6.2 or
6.6 of his or her Employment Agreement, no Bonus Options shall be exercisable.
8.5 Adjustments. In the event of any dividend or other distribution
(whether in the form of cash, Common Stock, other securities or other property),
recapitalization, stock split, reverse stock split, reorganization, merger,
consolidation, split-up, spin-off, combination, repurchase or exchange of Common
Stock or other securities of Norton, issuance of warrants or other rights
<PAGE> 5
5
to purchase Common Stock, the Board of Directors shall, in such manner as it may
deem equitable, adjust the number of shares of Common Stock (or other securities
or property) subject to the Bonus Options, the exercise price with respect to
any Bonus Options, or both.
8.6 No Participant shall be entitled to Bonus Options for any fiscal
year of the Company subsequent to the fiscal year in which his or her
termination of employment (for any or no reason) occurs.
8.7 In the event of termination of the employment of a Participant
prior to the end of a fiscal year, pursuant to Sections 6.1, 6.2, 6.4, 6.5 or
6.6 of his or her Employment Agreement, such Participant (or his or her estate
or other legal representative) shall be granted such Bonus Options for such
fiscal year only as provided in this Section 8.7. The number of Bonus Options to
which the Participant (or his or her estate or legal representative) shall be
entitled for such fiscal year (which shall be granted at the time that the Bonus
Options are granted to the other Participants) shall be equal to the product of
(x) the number of Bonus Options, if any, which would have been granted to the
Participant pursuant to Sections 8.1 and 8.2 of this Bonus Plan for such fiscal
year if the employment of the Participant had not so terminated, multiplied by
(y) a fraction, the numerator of which is the number of days from the beginning
of such fiscal year to the date of termination, and the denominator of which is
365. The terms and conditions of any such Bonus Options shall be as otherwise
provided in this Section 8.
8.8 If any portion of the Bonus Options shall not be allocated or
granted by reason of this Section 8, such Bonus Options shall be retained by the
Company or granted to other Participants or to new participants, all as
determined by the Board in its discretion, after consideration of any
recommended course of action submitted to the Board by the Chief Executive
Officer and Chief Operating Officer of the Company.
<PAGE> 1
EXHIBIT 4.2
EMPLOYMENT AGREEMENT
AGREEMENT dated as of the 29th day of August 1997 by and between ME
ACQUISITION CORP., a Delaware corporation (the "Company"), and Stuart Bregman
(the "Employee").
W I T N E S S E T H:
WHEREAS, the Company, a wholly owned subsidiary of Norton
McNaughton, Inc., a Delaware corporation ("Norton"), and certain other parties
(which parties include the Employee) simultaneously herewith are entering into
an Agreement of Purchase and Sale dated as of August 29, 1997 (the "Purchase
Agreement"), providing, inter alia, for the purchase by the Company of
substantially all of the assets of Miss Erika, Inc., a Delaware corporation
("Miss Erika"); and
WHEREAS, the Employee desires to continue in the employ of the
Company subsequent to the consummation of the transactions contemplated by the
Purchase Agreement; and
WHEREAS, in order to induce the Company to enter into, and to
consummate the transactions contemplated by, the Purchase Agreement, the
Employee desires to enter into this Agreement; and
WHEREAS, the Company desires to secure the employment of the
Employee with the Company subsequent to the consummation of the transactions
contemplated by the Purchase Agreement, and to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereto hereby agree as follows:
1. Employment, Term.
1.1 The Company agrees to employ the Employee, and the Employee
agrees to serve in the employ of the Company, for the term set forth in Section
1.2, in the positions and with the responsibilities, duties and authority set
forth in Section 2 and on the other terms and conditions set forth in this
Agreement.
1.2 The term of the Employee's employment under this Agreement (the
"Term") shall commence on the Closing Date (as defined in the Purchase
Agreement) and, unless sooner terminated in accordance with this Agreement,
shall expire (a) if the Company does not attain EBITDA (as defined
<PAGE> 2
2
in the Executive Bonus Plan, as defined in Section 3.2 below, except that EBITDA
for purposes of this Section 1.2 shall be determined after reduction for the
Bonus Pool (as defined in the Executive Bonus Plan) for the applicable fiscal
year) averaged for the fiscal years ending October 31, 1998 and November 6, 1999
of $5,500,000 or more (the "EBITDA 2-Year Target"), on such date (the "Notice
Date"), not earlier than November 6, 1999, on which the Chairman of the Board,
the President or the Chief Financial Officer of Norton delivers to the Employee
a written statement that the EBITDA 2-Year Target has not been achieved (the
Closing Date through the Notice Date, hereinafter the "Initial Term"); or (b) if
the Company attains the EBITDA 2-Year Target, on October 31, 2001 (November 7,
1999 through October 31, 2001, hereinafter the "Extended Term").
2. Positions, Duties. The Employee shall serve in the position of
Chief Executive Officer of the Company. As such, subject to the ultimate control
of the Chairman of the Board of the Company, the Vice Chairman of the Board of
the Company, and the Board of Directors of the Company, the Employee, together
with the Chief Operating Officer of the Company, shall have day-to-day
management control over the Company's business and operations, including without
limitation, sales practices, price of merchandise, inventory matters, mark-down
allowances, customer discounts, and the hiring, firing and compensation
(including levels of participation by employees of the Company in any profit
sharing plan established by the Company) of other employees of the Company, all
with authority and discretion consistent with past practices of Miss Erika. The
Employee shall perform, faithfully and diligently, such duties, and, subject to
the prior sentence, shall have such other responsibilities, appropriate to said
position, as shall be assigned to him from time to time by the Chairman, the
Vice Chairman or the Board of Directors of the Company. The Employee shall
report to the Chairman and the Vice Chairman of the Company. The Employee shall
devote his complete and undivided attention to the performance of his duties and
responsibilities hereunder during the normal working hours of executive
employees of Norton. As of the Closing Date and during the Term, the Company
shall use its best efforts to cause the Employee to be elected to the Board of
Directors of Norton and to be included in the management slate of directors for
election as a director of Norton at each stockholder's meeting of Norton at
which his term as a director of Norton would expire during the Term.
<PAGE> 3
3
3. Compensation.
3.1 Salary. During the Term, in consideration of the performance by
the Employee of the services set forth in Section 2 and his observance of the
other covenants set forth herein, the Company shall pay the Employee, and the
Employee shall accept, a salary at a rate of $425,000 per annum, payable in
accordance with the standard payroll practices of the Company. If the Company
attains EBITDA for any full fiscal year ending during the Term of $6,000,000 or
more (the "EBITDA Target"), the salary beginning on the first day of the
immediately succeeding fiscal year during the Term, if any, shall be increased
to $460,000 per annum, and if the Company attains an average EBITDA for any two
consecutive full fiscal years ending during the Term of $6,000,000 or more, the
salary beginning on the first day of the immediately succeeding fiscal year
during the Term, if any, shall be increased to $500,000 per annum.
3.2 Bonus. During the Term, in addition to the salary provided for
in Section 3.1, (i) the Employee shall be eligible to participate in the ME
Acquisition Corp. Bonus Plan for Senior Executives (the "Executive Bonus Plan"),
a copy of which is attached hereto as Exhibit A and the terms of which are
incorporated herein by reference, (ii) the Employee shall be allocated a
percentage of the Bonus Pool (as defined in the Executive Bonus Plan), which
percentage shall be not less than 33.335% of the Bonus Pool, subject to the
terms and conditions of the Executive Bonus Plan and this Agreement; provided,
however, that the Employee may, upon written notice to the Company, elect to
transfer all or a portion of his allocation of the Bonus Pool to the other
participants in the Executive Bonus Plan, and the Company agrees to pay such
transferred allocation to the other participants in the Executive Bonus Plan in
accordance with the written direction of the Employee and otherwise in
accordance with terms and conditions of the Executive Bonus Plan, and (iii)
either (a) the Employee shall receive a cash bonus in an amount which, net of
taxes payable by the Employee in respect of such amount, shall be equal to the
amount which would have been contributed on behalf of the Employee with respect
to the Miss Erika, Inc. Profit Sharing Plan (the "Miss Erika Plan"), as in
effect on the date hereof and as administered in accordance with the past
practices of Miss Erika, which cash bonus shall be payable within 120 days
following the close of each full fiscal year of the Company ending during the
Term or (b) the Employee shall be eligible to participate in a tax-advantaged
profit sharing plan of the Company established on substantially similar terms
and conditions (including levels of contributions) as the Miss Erika Plan. It is
understood and
<PAGE> 4
4
agreed by the parties that, during the Term, the percentage referred to in
Sections 4.1 and 4.2 of the Executive Bonus Plan shall be fifteen percent (15%).
3.3 Stock Options.
(a) Grant. On the Closing Date, the Company shall cause to be
granted to the Employee by the Board of Directors of Norton as of the Closing
Date, options to purchase an aggregate of 50,000 shares of common stock, par
value $.01 per share (the "Common Stock"), of Norton, at an exercise price per
share equal to the fair market value of the Common Stock on the Closing Date
(the "Options"). The Options shall be fully vested and exercisable on and after
the Closing Date.
(b) Term of Options. Except as provided below, the term of the
Options shall be ten years.
(i) If the Employee's employment with the Company terminates
pursuant to Section 6.1, is terminated by the Company or the Employee pursuant
to Section 6.2, is terminated by the Company pursuant to Section 6.4, is
terminated by the Employee pursuant to Section 6.6, or terminates for any other
reason (except as provided in clause (ii) below) the Options may be exercised by
the Employee (or his estate or legal representative) within one year after such
termination; and
(ii) In the event of termination of the employment of the
Employee with the Company (a) by the Company pursuant to Section 6.3 or (b) by
the Employee other than pursuant to Sections 6.1, 6.2 or 6.6, no Options shall
be exercisable.
(c) Adjustments. In the event of any dividend or other
distribution (whether in the form of cash, Common Stock, other securities or
other property), recapitalization, stock split, reverse stock split,
reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase or exchange of Common Stock or other securities of Norton, issuance
of warrants or other rights to purchase Common Stock, the Board of Directors
shall, in such manner as it may deem equitable, adjust the number of shares of
Common Stock (or other securities or property) subject to the Options, the
exercise price with respect to any Options, or all of the foregoing.
(d) Registration of Shares. Norton shall, as promptly as
practicable following the commencement of the Employee's employment hereunder,
file a registration
<PAGE> 5
5
statement on Form S-8, or any successor to such Form, with respect to the shares
of Common Stock covered by the Options.
3.4 Bonus Options. During the Term, in addition to the salary
provided for in Section 3.1, the Employee shall be eligible to receive Bonus
Options (as defined in the Executive Bonus Plan) in accordance with the terms
set forth in the Executive Bonus Plan.
4. Expense Reimbursement. During the Term, (i) the Company shall
reimburse the Employee for all reasonable and necessary out-of-pocket expenses
incurred by him in connection with the performance of his duties hereunder, upon
the presentation of proper accounts therefor in accordance with Norton's
policies and (ii) the Company shall pay for the benefit of the Employee all
reasonable and necessary expenses incurred by him in the ordinary and usual
course of business and in accordance with Norton's policies (in any case, as
such policies are adopted from time to time by the Compensation Committee of
Norton).
5. Benefits.
5.1 Benefit Plans. During the Term, the Employee shall be entitled
to participate in all employee benefit plans and programs offered by Norton,
subject to the provisions of such plans and programs as in effect from time to
time.
5.2 Life Insurance. During the Term, provided that such is available
on commercially reasonable terms, the Company will provide the Employee with $1
million term life insurance coverage. The beneficiary of such coverage shall be
the Employee's estate or other beneficiary designated by the Employee.
5.3 Disability Insurance. During the Term, the Company shall provide
the Employee with disability insurance providing the same monthly disability
benefit as provided to the Employee by Miss Erika.
5.4 Medical Insurance. For the period commencing on the termination
of the Term (other than as a result of the termination of the Term by the
Company pursuant to Section 6.3 and other than as a result of the termination of
the Term by the Employee other than pursuant to Sections 6.1, 6.2 or 6.6) until
the death of the Employee, the Company agrees to provide the Employee and the
Employee's wife with coverage under the medical plan of the
<PAGE> 6
6
Company on the same terms and conditions that coverage is generally available to
employees of the Company.
5.5 Vacation. During the Term, the Employee shall be entitled to
paid vacation in accordance with Norton's policy for its executive employees.
6. Termination of Employment.
6.1 Death. In the event of the death of the Employee during the
Term, the Company shall pay to the estate or other legal representative of the
Employee (a) the salary provided for in Section 3.1 accrued to the date of the
Employee's death and not theretofore paid to the Employee and (b) any bonus
payable in accordance with the terms of the Executive Bonus Plan. Rights and
benefits of the estate or other legal representative of the Employee (a) with
respect to the Options or the Bonus Options shall be determined in accordance
with Section 3.3(b) or the Executive Bonus Plan, as applicable and (b) under the
benefit plans and programs of the Company shall be determined in accordance with
the provisions of such plans and programs. Neither the estate or other legal
representative of the Employee nor the Company shall have any further rights or
obligations under this Agreement.
6.2 Disability. If during the Term the Employee shall become
incapacitated by reason of physical or mental disability and shall be unable to
perform his normal duties hereunder for a cumulative period of six (6) months in
any period of twelve (12) consecutive months, the employment of the Employee
hereunder may be terminated by the Company or the Employee upon notice to the
other. In the event of such termination, the Company shall pay to the Employee
(a) the salary provided for in Section 3.1 accrued to the date of such
termination and not theretofore paid to the Employee and (b) any bonus payable
in accordance with the terms of the Executive Bonus Plan. Rights and benefits of
the Employee (a) with respect to the Options or the Bonus Options shall be
determined in accordance with Section 3.3(b) or the Executive Bonus Plan, as
applicable and (b) under the benefit plans and programs of the Company shall be
determined in accordance with the provisions of such plans and programs. Neither
the Employee nor the Company shall have any further rights or obligations under
this Agreement, except as provided in Sections 7, 8, 9 and 10.
6.3 Due Cause. The employment of the Employee hereunder may be
terminated by the Company at any time during the Term for Due Cause (as
hereinafter defined). In the event of such termination, the Company shall pay to
the
<PAGE> 7
7
Employee the salary provided for in Section 3.1 accrued to the date of such
termination and not theretofore paid to the Employee and no bonus. Rights and
benefits of the Employee (a) with respect to the Options or the Bonus Options
shall be determined in accordance with Section 3.3(b) or the Executive Bonus
Plan, as applicable and (b) under the benefit plans and programs of the Company
shall be determined in accordance with the provisions of such plans and
programs. After the satisfaction of any claim of the Company against the
Employee incidental to such Due Cause, neither the Employee nor the Company
shall have any further rights or obligations under this Agreement, except as
provided in Sections 7, 8, 9 and 10. For purposes hereof, "Due Cause" shall mean
(a) the Employee's gross negligence or willful misconduct in bad faith in the
discharge of his duties and responsibilities to Norton, the Company and any of
their respective parent, subsidiary or affiliate corporations (collectively, the
"Norton Group"), as determined by the Board of Directors of the Company, (b) the
Employee's material and repeated failure to obey appropriate directions from the
Chairman, Vice Chairman or Board of Directors of the Company, (c) any willful or
purposeful act or omission of the Employee taken or omitted in bad faith and
intended to materially injure, and which had the effect of materially injuring,
the business or business relationships of any member of the Norton Group or (d)
the Employee's conviction or other adjudication of (1) a felony or (2) any crime
or offense involving fraud; provided, however, that the Employee shall be given
written notice by a majority of the Board of Directors of the Company that it
intends to terminate the Employee's employment for Due Cause under this Section,
which written notice shall specify the act or acts upon the basis of which the
majority of the Board of Directors of the Company intends so to terminate the
Employee's employment, and the Employee shall then be given the opportunity,
within fifteen (15) days of his receipt of such notice, to have a meeting with
the Board of Directors of the Company to discuss such act or acts.
6.4 Other Termination by the Company. The Company may terminate the
Employee's employment at any time during the Term for whatever reason it deems
appropriate or without reason; provided, however, that in the event that such
termination is not pursuant to Section 6.1, 6.2, 6.3 or 6.5, the Company shall,
except as provided in Section 9(c), (a) pay to the Employee the Severance Amount
(as hereinafter defined) in equal installments on a monthly basis over the
Severance Term (as hereinafter defined), (b) pay to the Employee any bonus
payable in accordance with the terms of the Executive Bonus Plan and (c) provide
the Employee for the Severance Term with the same benefits then in effect
<PAGE> 8
8
under Section 5. The Employee shall not be required to seek subsequent
employment. Rights and benefits of the Employee with respect to the Options or
the Bonus Options shall be determined in accordance with Section 3.3(b) or the
Executive Bonus Plan, as applicable. Neither the Employee nor the Company shall
have any further rights or obligations under this Agreement, except as provided
in Sections 7, 8, 9 and 10. Any termination of this Agreement by the Company
after the date hereof and prior to the Closing Date shall be treated as a
termination of employment pursuant to this Section 6.4 as of the day following
the Closing Date, provided that the Closing (as defined in the Purchase
Agreement) shall have occurred.
For purposes hereof, Severance Amount shall mean an amount equal to
the sum of (i) the annual salary then in effect under Section 3.1 and (ii) the
Average Bonus (as hereinafter defined), multiplied by the Severance Factor.
Average Bonus shall mean the average of the bonuses, if any, paid to the
Employee by the Company and/or Miss Erika in the two (2) full fiscal years of
the Company and/or Miss Erika, as applicable, prior to the date of termination
of employment of the Employee. Severance Factor shall mean a fraction, the
numerator of which is the number of days remaining in the then-current Term plus
365, and the denominator of which is 365. Severance Term shall mean the number
of days remaining in the then-current Term plus 365 days. For purposes of the
foregoing, in determining the number of days remaining in the then-current Term,
if termination under this Section 6.4 occurs during (i) the Initial Term, the
then-current Term shall be determined without regard to the Extended Term;
provided, however, that if following such termination the Company attains the
EBITDA 2-Year Target for the fiscal years ending October 31, 1998 and November
6, 1999, the then-current Term shall be determined with regard to the Extended
Term and appropriate adjustments shall be made in the then remaining monthly
installments of the Severance Amount to be paid over the extended Severance Term
to take into account such determination or (ii) the Extended Term, the
then-current Term shall be the remaining number of days in the Extended Term.
6.5 Non-Extension. If (A) the Initial Term is not extended for the
Extended Term as a result of the failure to achieve the EBITDA 2-Year Target or
if (B) the Initial Term is extended for the Extended Term pursuant to Section
1.2 and, upon the expiration of such Extended Term, the Company shall fail to
offer employment to the Employee in the same position and with the same salary
then in effect under Section 3.1 and participation in the Executive Bonus
<PAGE> 9
9
Plan on the same terms then in effect for an additional period of one year, in
either case, the Company shall, except as provided in Section 9(c), (a) continue
to pay to the Employee the salary then in effect under Section 3.1 for one year
from the date of expiration of the Extended Term, (b) pay to the Employee the
Average Bonus in equal monthly installments over such one year period (the
amounts set forth in clauses (a) and (b), the "Section 6.5 Amount") and (c)
provide the Employee with the same Benefits then in effect under Section 5 for
such one year period. The Employee shall not be required to seek subsequent
employment. Rights and benefits of the Employee (a) with respect to the Options
or the Bonus Options shall be determined in accordance with Section 3.3(b) or
the Executive Bonus Plan, as applicable and (b) subject to this Section 6.5,
under the benefit plans and programs of the Company shall be determined in
accordance with the provisions of such plans and programs. Neither the Employee
nor the Company shall have any further rights or obligations under this
Agreement, except as provided in Sections 7, 8, 9 and 10.
6.6 Termination by the Employee with Good Reason. The Employee may
at any time terminate his employment with the Company with Good Reason (as
hereinafter defined) and may treat such as a termination of employment pursuant
to and with the effects set forth in Section 6.4. For purposes hereof, Good
Reason shall mean (i) the continued breach by the Company of a material
provision of this Agreement for a period of 30 days after written notice of such
breach by the Employee to the Company or (ii) a material and adverse diminution
in the Employee's title or scope of duties as set forth in Section 2, which
diminution shall continue for a period of 30 days after written notice thereof
by the Employee to the Company.
6.7 Termination by the Employee without Good Reason. The Employee
may at any time upon at least 120 days prior written notice to the Company
terminate his employment with the Company without Good Reason. Such termination
shall be treated as a termination of employment pursuant to, including with the
effects set forth in, Section 6.3; provided, however, that the Company hereby
waives any claim it may have against the Employee incidental to the Employee's
termination of his employment pursuant to this Section 6.7.
7. Confidential Information.
7.1 The Employee shall, during the Term and at all times thereafter,
treat as confidential and, except as
<PAGE> 10
10
required in the performance of his duties and responsibilities under this
Agreement, not disclose, publish or otherwise make available to the public or to
any individual, firm or corporation any confidential material (as hereinafter
defined), except, on a need to know basis, to the Employee's attorney,
accountant or personal advisor. The Employee agrees that all confidential
material, together with all notes and records of the Employee relating thereto,
and all copies or facsimiles thereof in the possession of the Employee, are the
exclusive property of the Company and the Employee agrees to return such
material to the Company promptly upon the termination of the Employee's
employment with the Company.
7.2 For the purposes hereof, the term "confidential material" shall
mean all information acquired by the Employee in the course of the Employee's
prior employment with Miss Erika and in the course of the Employee's employment
with the Company in any way concerning the products, projects, activities,
business or affairs of the Company or any member of the Norton Group or the
customers, suppliers or agents of the Company or any member of the Norton Group,
including, without limitation, all information concerning trade secrets and the
preparation of raw material for, manufacture of, and/or finishing processes
utilized in the production of, the products or projects of the Company or any
member of the Norton Group and/or any improvements therein, all sales and
financial information concerning the Company or any member of the Norton Group,
all customer and supplier lists, all information concerning projects in research
and development or marketing plans for any such products or projects, and all
information in any way concerning the products, projects, activities, business
or affairs of customers of the Company or any member of the Norton Group which
is furnished to the Employee by the Company or any of its employees (current or
former), agents or customers, as such; provided, however, that the term
"confidential material" shall not include information which (a) becomes
generally available to the public or the apparel industry in general other than
as a result of a disclosure by the Employee, (b) was available to the Employee
on a non-confidential basis prior to his employment with the Company or (c)
becomes available to the Employee on a non-confidential basis from a source
other than the Company or any of its agents, franchisees, creditors, suppliers,
lessors, lessees or customers provided that the Employee has no knowledge that
such source is not bound by a confidentiality agreement with the Company or any
of such agents or customers.
<PAGE> 11
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8. Inventions. Any and all inventions, innovations or improvements
("inventions") made, developed or created by the Employee (whether at the
request or suggestion of the Company 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 Employee to the Board of Directors of the
Company and shall be the Company's exclusive property as against the Employee,
and the Employee shall promptly deliver to an appropriate representative of the
Company as designated by the Board of Directors all papers, drawings, models,
data and other material relating to any inventions made, developed or created by
him as aforesaid. The Employee 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 Employee or to vest in the Company title to such
inventions as against the Employee. The expense of securing any such patent or
copyright shall be borne by the Company.
9. Non-Competition. (a) The Employee acknowledges that the services
to be rendered by him to the Company are of a special and unique character.
(b) In consideration of his employment hereunder, the Employee
agrees, for the benefit of the Company, that he will not, during the period of
his employment with the Company and thereafter for a period (A) of one (1) year
commencing on the date of termination of his employment with the Company
pursuant to Section 6.2 or 6.3, (B) of the greater of one (1) year commencing on
the date of termination of his employment with the Company pursuant to Section
6.7 or the remainder of the then-current Term (without regard to the Extended
Term if such termination occurs during the Initial Term), (C) during which the
Employee receives payments of the Severance Amount pursuant to Section 9(c)(i)
(in the case of a termination under Section 6.4 or 6.6) or (D) during which the
Employee receives payments of the Section 6.5 Amount pursuant to Section
9(c)(ii) or 9(c)(iii) (in the case of a termination under Section 6.5), (1)
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) one percent (1%)
of the stock or equity of any corporation the capital stock of which is publicly
traded or
<PAGE> 12
12
(ii) five percent (5%) of the ownership interest of any limited partnership or
other entity) or otherwise, anywhere in the United States, in any activity or
business venture which is in competition with the business then conducted by the
Company and any of its subsidiaries, (2) solicit or entice or endeavor to
solicit or entice away from any member of the Norton Group any person who was an
officer, employee, agent or consultant of any member of the Norton Group, either
for his own account or for any individual, firm or corporation, and, if
applicable, whether or not such person would commit any breach of his contract
of employment by reason of leaving the service of a member of the Norton Group,
and the Employee agrees not to employ, directly or indirectly, any person who
was an officer or employee of any member of the Norton Group 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 any member of the Norton Group, or (3) solicit or entice or endeavor to
solicit or entice away from any member of the Norton Group any customer or
prospective customer of any member of the Norton Group, either for his own
account or for any individual, firm or corporation (the activities set forth in
clauses (1), (2) and (3) above, the "Non-Competition Activities").
(c) In the event of termination of the employment of the Employee,
(i) pursuant to Section 6.4 or 6.6, the Company shall pay to
the Employee the Severance Amount and other benefits set forth in Section 6.4 or
6.6 in which event the Employee shall not engage in the Non-Competition
Activities for the Severance Term; provided, however, if the Employee engages in
the Non-Competition Activities during the Severance Term, the Employee shall
immediately notify the Company that he is engaging in the Non-Competition
Activities, and the Company's obligation to pay the Severance Amount shall
immediately cease. From and after the date on which the Employee engages in the
Non-Competition Activities, the Company shall continue to pay to the Employee
the salary in effect on the date of termination of the employment of the
Employee under Section 3.1 for the remainder of the Severance Term and shall
offset any amounts earned as a result of the Employee's engaging in the
Non-Competition Activities (whether as an employee, consultant or otherwise)
against such salary continuation by the Company which becomes payable after the
first date on which the Employee engages in the Non-Competition Activities.
(ii) pursuant to clause (A) of the first sentence of Section
6.5, the Company shall pay to the
<PAGE> 13
13
Employee the Section 6.5 Amount and other benefits set forth in Section 6.5 in
which event the Employee shall not engage in the Non-Competition Activities for
one year; provided, however, if the Employee engages in the Non-Competition
Activities during such one year period, the Employee shall immediately notify
the Company that he is engaging in the Non-Competition Activities, and the
Company's obligation to pay the Section 6.5 Amount shall immediately cease.
(iii) pursuant to clause (B) of the first sentence of Section
6.5, the Company shall pay to the Employee or the Section 6.5 Amount and other
benefits set forth in Section 6.5 in which event the Employee shall not engage
in the Non-Competition Activities for one year; provided, however, if the
Employee engages in the Non-Competition Activities during such one year period,
the Employee shall immediately notify the Company that he is engaging in the
Non-Competition Activities, and the Company's obligation to pay the Section 6.5
Amount shall immediately cease. From and after the date on which the Employee
engages in the Non-Competition Activities, the Company shall continue to pay to
the Employee the salary in effect on the date of termination of the employment
of the Employee under Section 3.1 for the remainder of such one year period and
shall offset any amounts earned as a result of the Employee's engaging in the
Non-Competition Activities (whether as an employee, consultant or otherwise)
against such salary continuation by the Company which becomes payable after the
first date on which the Employee engages in the Non-Competition Activities.
10. Equitable Relief, Etc.
10.1 In the event of a breach or threatened breach by the Employee
of any of the provisions of Sections 7, 8 or 9, the Employee hereby consents and
agrees that the Company shall be entitled to an injunction or similar equitable
relief from any court of competent jurisdiction restraining the Employee from
committing or continuing any such breach or threatened breach or granting
specific performance of any act required to be performed by the Employee under
any of such provisions, without the necessity of showing any actual damage or
that money damages would not afford an adequate remedy and without the necessity
of posting any bond or other security. Nothing herein shall be construed as
prohibiting the Company from pursuing any other remedies at law or in equity
which it may have with respect to any such breach or threatened breach.
10.2 The Company and the Employee understand and agree that in any
lawsuit or other proceeding between any of
<PAGE> 14
14
them with respect to Sections 7, 8 or 9 hereof, the prevailing party in such
lawsuit or proceeding shall be entitled to recover from the other party in such
lawsuit or proceeding, and such other party hereby agrees to pay such prevailing
party, for all costs and expenses, including attorneys' fees, incurred by such
prevailing party in the defense, prosecution or investigation of the matters
which are the subject of such lawsuit or proceeding.
11. Successors and Assigns.
11.1 Assignment by the Company. The Company shall require any
successors (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform if no such
succession had taken place. As used in this Section, the "Company" shall mean
the Company as hereinbefore defined and any successor to its business and/or
assets as aforesaid which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law and this Agreement shall be
binding upon, and inure to the benefit of, the Company, as so defined.
11.2 Assignment by the Employee. The Employee may not assign this
Agreement or any part thereof without the prior written consent of a majority of
the Board of Directors of the Company (other than the Employee if he is a member
of such Board at the time); provided, however, that nothing herein shall
preclude one or more beneficiaries of the Employee from receiving any amount
that may be payable following the occurrence of his legal incompetency or his
death and shall not preclude the legal representative of his estate from
receiving such amount or from assigning any right hereunder to the person or
persons entitled thereto under his will or, in the case of intestacy, to the
person or persons entitled thereto under the laws of intestacy applicable to his
estate. The term "beneficiaries", as used in this Agreement, shall mean a
beneficiary or beneficiaries so designated to receive any such amount or, if no
beneficiary has been so designated, the legal representative of the Employee (in
the event of his incompetency) or the Employee's estate.
12. Governing Law. This Agreement shall be deemed a contract made
under, and for all purposes shall be construed in accordance with, the laws of
the State of New York applicable to contracts to be performed entirely within
such State.
<PAGE> 15
15
13. Entire Agreement. This Agreement contains all the understandings
and representations between the parties hereto pertaining to the subject matter
hereof. This Agreement supersedes all understandings and agreements, whether
oral or in writing, if any, previously entered into by the Company with the
Employee in any way relating to the employment of the Employee by the Company,
including without limitation, the Purchase Agreement, all of which agreements
and understandings are hereby terminated and all rights and entitlements
thereunder are hereby waived and released.
14. Amendment, Modification, Waiver. No provision of this Agreement
may be amended or modified unless such amendment or modification is agreed to in
writing and signed by the Employee and by a representative of the Company (other
than the Employee) who have been duly authorized by the Board of Directors of
the Company to do so (other than the Employee if he is a member of such Board at
the time). Except as otherwise specifically provided in this Agreement, no
waiver by either party hereto of any breach by the other party hereto of any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of a similar or dissimilar provision or condition at
the same or any prior or subsequent time, nor shall the failure of or delay by
either party hereto in exercising any right, power or privilege hereunder
operate as a waiver thereof to preclude any other or further exercise thereof or
the exercise of any other such right, power or privilege.
15. Notices. Any notice to be given hereunder shall be in writing
and delivered personally or sent by certified mail, postage prepaid, return
receipt requested, addressed to the party concerned at the address indicated
below or at such other address as such party may subsequently designate by like
notice:
If to the Company:
c/o Norton McNaughton, Inc.
463 Seventh Avenue
New York, New York 10018
Attention: Chief Executive Officer
If to the Employee:
Stuart Bregman
30 West 86th Street
New York, New York 10024
<PAGE> 16
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16. Arbitration. Any controversy or claim arising out of or relating
to this Agreement, or any breach thereof, shall, except as provided in Section
10, be settled by binding arbitration in accordance with the rules of the
American Arbitration Association then in effect and judgment upon such award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitration shall be held in New York, New York. The arbitration
award shall include an award of attorneys' fees and costs to the prevailing
party as determined by the arbitrator.
17. Severability. Should any provision of this Agreement be held by
a court or arbitration panel of competent jurisdiction to be enforceable only if
modified, such holding shall not affect the validity of the remainder of this
Agreement, the balance of which shall continue to be binding upon the parties
hereto with any such modification to become a part hereof and treated as though
originally set forth in this Agreement. The parties further agree that any such
court or arbitration panel is expressly authorized to modify any such
unenforceable provision of this Agreement in lieu of severing such unenforceable
provision from this Agreement in its entirety, whether by rewriting the
offending provision, deleting any or all of the offending provision, adding
additional language to this Agreement, or by making such other modifications as
it deems warranted to carry out the intent and agreement of the parties as
embodied herein to the maximum extent permitted by law. The parties expressly
agree that this Agreement as so modified by the court or arbitration panel shall
be binding upon and enforceable against each of them. In any event, should one
or more of the provisions of this Agreement be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions hereof, and if such provision or
provisions are not modified as provided above, this Agreement shall be construed
as if such invalid, illegal or unenforceable provisions had never been set forth
herein.
18. Authority. The Company represents and warrants to the Employee
that the execution and delivery of this Agreement by the Company and the
performance by the Company of its covenants and agreements hereunder have been
duly authorized by all necessary corporate action and that this Agreement has
been duly executed and delivered on behalf of the Company.
19. Withholding. Anything to the contrary notwithstanding, all
payments required to be made by the Company hereunder to the Employee or his
beneficiaries, including his estate, shall be subject to withholding of
<PAGE> 17
17
such amounts relating to taxes as the Company may reasonably determine it should
withhold pursuant to any applicable law or regulation. In lieu of withholding
such amounts, in whole or in part, the Company, may, in its sole discretion,
accept other provision for payment of taxes as permitted by law, provided it is
satisfied in its sole discretion that all requirements of law affecting its
responsibilities to withhold such taxes have been satisfied.
20. Subsidiaries, etc. The Employee shall be deemed to resign as an
officer and director of the Company or of any parent, subsidiary or affiliate of
the Company upon termination of his employment with the Company for any or no
reason.
21. Survivorship. The respective rights and obligations of the
Employee and the Company hereunder shall survive any termination of this
Agreement to the extent necessary to the intended preservation of such rights
and obligations.
22. Titles. Titles of the sections of this Agreement are intended
solely for convenience and no provision of this Agreement is to be construed by
reference to the title of any section.
23. Counterparts. This Agreement may be executed in two or more
counterpart copies, each of which shall be deemed to be an original and all of
which taken together shall be deemed one document.
* * *
<PAGE> 18
18
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
ME ACQUISITION CORP.
By /s/ Sanford Greenberg
------------------------------------
Title: Chairman of the Board
EMPLOYEE:
/s/ Stuart Bregman
------------------------------------
Stuart Bregman
<PAGE> 19
EXHIBIT A
ME ACQUISITION CORP. BONUS PLAN
FOR SENIOR EXECUTIVES
1. Establishment. This Plan, which shall be known as the ME
Acquisition Corp. Bonus Plan for Senior Executives (the "Bonus Plan"), is hereby
established by ME Acquisition Corp. (the "Company") to provide incentives for
senior executives providing services to the Company and to aid the Company in
retaining such senior executives upon whose efforts the Company's success and
future growth depends.
2. Administration. The Bonus Plan shall be administered by the Board
of Directors of the Company (the "Board"). For purposes of administration, the
Board, subject to the terms of the Bonus Plan, shall have plenary authority to
establish such rules and regulations, to make such determinations and
interpretations, and to take such other administrative actions as it deems
necessary or advisable.
3. Participants. The participants in the Plan shall be Stuart
Bregman, Howard Zwilling, Roberta Ciacci, Elizabeth Moser, Kenneth Tse and
Samuel Glaser, in each case for so long as such individual is employed by the
Company pursuant to an Employment Agreement (as defined in the Agreement, as
defined in Section 4 below) (each, a "Participant" and collectively, the
"Participants"); provided, however, that nothing contained herein shall be
construed as creating a contract or guarantee of employment for any Participant.
4. Bonus Pool.
4.1 For each of the fiscal years of the Company, provided that the
EBITDA Target (as hereinafter defined) for such fiscal year shall have been
attained, the Company shall establish a bonus pool in an amount equal to a
percentage of EBITDA (as hereinafter defined) for such fiscal year as determined
by the Board in consultation with Stuart Bregman and Howard Zwilling for so long
as they are employed by the Company (the "Bonus Pool"); provided, however, that
the Bonus Pool for any fiscal year shall not exceed that amount which, when
deducted from EBITDA, would result in EBITDA for such fiscal year net of the
Bonus Pool of less than $5,500,000.
4.2 Notwithstanding the foregoing, in the event that the EBITDA
Target is not achieved in any fiscal year,
<PAGE> 20
2
but EBITDA (calculated as otherwise provided herein) for such fiscal year and
for the subsequent fiscal year equals or exceeds $11,000,000, then the Company
shall establish a bonus pool in an amount equal to a percentage to be determined
by the Board in consultation with Stuart Bregman and Howard Zwilling for so long
as they are employed by the Company of combined EBITDA for such two fiscal
years, which percentage of the combined EBITDA shall for purposes hereof
constitute the Bonus Pool for such two fiscal years; provided, however, that the
Bonus Pool for such two fiscal years shall not exceed that amount which, when
deducted from the combined EBITDA, would result in the combined EBITDA for such
two fiscal years net of the Bonus Pool of less than $11,000,000.
4.3 As used herein: (i) EBITDA shall have the meaning set forth in
the Agreement of Purchase and Sale dated as of September 3, 1997 (the
"Agreement"), by and among the Company and the other parties thereto (which
parties include certain of the Participants) for the appropriate fiscal year,
without reduction for the Bonus Pool for such fiscal year contemplated by this
Bonus Plan or for any expense attributable to the Bonus Options; and (ii) EBITDA
Target shall mean, for each fiscal year, achievement of EBITDA of not less than
$5,500,000. In the event of any change in the fiscal year of the Company,
appropriate adjustments shall be made to the EBITDA Target in order to carry out
the intent and principles of the Bonus Plan.
5. Allocation of Bonus Pool. The Bonus Pool shall be allocated as
specified in each Participant's Employment Agreement.
6. Payment of Bonus. The bonus payable to each Participant (or his
or her estate or other legal representative) for any fiscal year of the Company
pursuant to this Bonus Plan shall be paid by the Company within 120 days
following the close of such fiscal year.
7. Termination of Employment.
7.1 In the event of termination of the employment of a Participant
pursuant to Section 6.1, 6.2, 6.4, 6.5 or 6.6 of his or her Employment Agreement
prior to the end of any fiscal year of the Company, such Participant (or his or
her estate or other legal representative) shall be entitled to a bonus for such
fiscal year only as provided in this Section 7.1. The bonus to which the
Participant (or his estate or other legal representative) shall be entitled for
such fiscal year (which shall be payable at the time other Participants are paid
their portion of the Bonus Pool for
<PAGE> 21
3
such fiscal year) shall be (i) in the event that the Bonus Pool is calculated
pursuant to Section 4.1 of this Bonus Plan, an amount equal to the product of
(x) the bonus, if any, which would have been payable to the Participant pursuant
to Sections 4.1 and 5 of this Bonus Plan for such fiscal year if the employment
of the Participant had not so terminated, multiplied by (y) a fraction, the
numerator of which is the number of days from the beginning of such fiscal year
to the date of termination, and the denominator of which is 365; or (ii) in the
event that the Bonus Pool is calculated pursuant to Section 4.2 of this Bonus
Plan, an amount equal to the product of (x) the bonus, if any, which would have
been payable to the Participant pursuant to Sections 4.2 and 5 of this Bonus
Plan for such two fiscal years if the employment of the Participant had not so
terminated, multiplied by (y) a fraction, the numerator of which is the number
of days from the beginning of the first of such two fiscal years to the date of
termination, and the denominator of which is 730.
7.2 In the event of termination of the employment of a Participant
pursuant to Section 6.3 of his or her Employment Agreement, such Participant
shall not be entitled to a bonus for the fiscal year of the Company in which
such termination occurs.
7.3 In the event of termination of the employment of a Participant
by the Participant for any reason, other than pursuant to Section 6.1, 6.2 or
6.6 of his or her Employment Agreement, such Participant shall not be entitled
to a bonus for the fiscal year of the Company in which such termination occurs.
7.4 No Participant shall be entitled to a bonus for any fiscal year
of the Company subsequent to the fiscal year in which his or her termination of
employment (for any or no reason) occurs.
7.5 If any portion of the Bonus Pool shall not be allocated or paid
by reason of this Section 7, such portion shall be retained by the Company or
paid to other Participants or to new participants, all as determined by the
Board in its discretion, after consideration of any recommended course of action
submitted to the Board by the Chief Executive Officer and Chief Operating
Officer of the Company.
8. Bonus Options.
8.1 Grant. For each $500,000 of EBITDA in excess of $6,000,000
attained by the Company in each of the fiscal
<PAGE> 22
4
years of the Company beginning with the fiscal year ending October 31, 1998, the
Company shall cause to be granted to the Participants by the Board of Directors
of Norton McNaughton, Inc., a Delaware corporation ("Norton"), options (the
"Bonus Options") to purchase an aggregate of 28,000 (or such lesser number as
shall be necessary to allocated Bonus Options in accordance with Section 8.2
below) shares of common stock, par value $.01 per share, of Norton (the "Common
Stock"). The Bonus Options shall be granted, if at all, as of the last day of
the applicable fiscal year and shall have an exercise price per share equal to
the fair market value of the Common Stock on the date of grant.
8.2 Allocation of Bonus Options. The Bonus Options shall be
allocated 10,000 to Bregman, 10,000 to Zwilling, 3,000 to Ciacci, 2,000 to
Moser, 2,000 to Tse and 1,000 to Glazer.
8.3 Exercise. The Bonus Options shall be fully vested and
exercisable on and after the date of grant.
8.4 Term of Options. Except as provided below, the term of the Bonus
Options shall be ten years.
(i) If a Participant's employment with the Company terminates
pursuant to Section 6.1 of his or her Employment Agreement, is terminated by the
Company or by the Participant pursuant to Section 6.2 of his or her Employment
Agreement, is terminated by the Company pursuant to Section 6.4 of his or her
Employment Agreement, is terminated by the Employee pursuant to Section 6.6 of
his or her Employment Agreement, or terminated for any other reason (except as
provided in clause (ii) below), the Bonus Options may be exercised by the
Participant (or his estate or legal representative) within one (1) year after
such termination; and
(ii) In the event of termination of the employment of a
Participant (a) by the Company pursuant to Section 6.3 of his or her Employment
Agreement or (b) by the Participant other than pursuant to Sections 6.1, 6.2 or
6.6 of his or her Employment Agreement, no Bonus Options shall be exercisable.
8.5 Adjustments. In the event of any dividend or other distribution
(whether in the form of cash, Common Stock, other securities or other property),
recapitalization, stock split, reverse stock split, reorganization, merger,
consolidation, split-up, spin-off, combination, repurchase or exchange of Common
Stock or other securities of Norton, issuance of warrants or other rights
<PAGE> 23
5
to purchase Common Stock, the Board of Directors shall, in such manner as it may
deem equitable, adjust the number of shares of Common Stock (or other securities
or property) subject to the Bonus Options, the exercise price with respect to
any Bonus Options, or both.
8.6 No Participant shall be entitled to Bonus Options for any fiscal
year of the Company subsequent to the fiscal year in which his or her
termination of employment (for any or no reason) occurs.
8.7 In the event of termination of the employment of a Participant
prior to the end of a fiscal year, pursuant to Sections 6.1, 6.2, 6.4, 6.5 or
6.6 of his or her Employment Agreement, such Participant (or his or her estate
or other legal representative) shall be granted such Bonus Options for such
fiscal year only as provided in this Section 8.7. The number of Bonus Options to
which the Participant (or his or her estate or legal representative) shall be
entitled for such fiscal year (which shall be granted at the time that the Bonus
Options are granted to the other Participants) shall be equal to the product of
(x) the number of Bonus Options, if any, which would have been granted to the
Participant pursuant to Sections 8.1 and 8.2 of this Bonus Plan for such fiscal
year if the employment of the Participant had not so terminated, multiplied by
(y) a fraction, the numerator of which is the number of days from the beginning
of such fiscal year to the date of termination, and the denominator of which is
365. The terms and conditions of any such Bonus Options shall be as otherwise
provided in this Section 8.
8.8 If any portion of the Bonus Options shall not be allocated or
granted by reason of this Section 8, such Bonus Options shall be retained by the
Company or granted to other Participants or to new participants, all as
determined by the Board in its discretion, after consideration of any
recommended course of action submitted to the Board by the Chief Executive
Officer and Chief Operating Officer of the Company.
<PAGE> 1
EXHIBIT 4.3
EMPLOYMENT AGREEMENT
AGREEMENT dated as of the 29th day of August 1997 by and between ME
ACQUISITION CORP., a Delaware corporation (the "Company"), and Howard Zwilling
(the "Employee").
W I T N E S S E T H:
WHEREAS, the Company, a wholly owned subsidiary of Norton
McNaughton, Inc., a Delaware corporation ("Norton"), and certain other parties
(which parties include the Employee) simultaneously herewith are entering into
an Agreement of Purchase and Sale dated as of August 29, 1997 (the "Purchase
Agreement"), providing, inter alia, for the purchase by the Company of
substantially all of the assets of Miss Erika, Inc., a Delaware corporation
("Miss Erika"); and
WHEREAS, the Employee desires to continue in the employ of the
Company subsequent to the consummation of the transactions contemplated by the
Purchase Agreement; and
WHEREAS, in order to induce the Company to enter into, and to
consummate the transactions contemplated by, the Purchase Agreement, the
Employee desires to enter into this Agreement; and
WHEREAS, the Company desires to secure the employment of the
Employee with the Company subsequent to the consummation of the transactions
contemplated by the Purchase Agreement, and to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereto hereby agree as follows:
1. Employment, Term.
1.1 The Company agrees to employ the Employee, and the Employee
agrees to serve in the employ of the Company, for the term set forth in Section
1.2, in the positions and with the responsibilities, duties and authority set
forth in Section 2 and on the other terms and conditions set forth in this
Agreement.
1.2 The term of the Employee's employment under this Agreement (the
"Term") shall commence on the Closing Date (as defined in the Purchase
Agreement) and, unless sooner terminated in accordance with this Agreement,
shall expire (a) if the Company does not attain EBITDA (as defined
<PAGE> 2
2
in the Executive Bonus Plan, as defined in Section 3.2 below, except that EBITDA
for purposes of this Section 1.2 shall be determined after reduction for the
Bonus Pool (as defined in the Executive Bonus Plan) for the applicable fiscal
year) averaged for the fiscal years ending October 31, 1998 and November 6, 1999
of $5,500,000 or more (the "EBITDA 2-Year Target"), on such date (the "Notice
Date"), not earlier than November 6, 1999, on which the Chairman of the Board,
the President or the Chief Financial Officer of Norton delivers to the Employee
a written statement that the EBITDA 2-Year Target has not been achieved (the
Closing Date through the Notice Date, hereinafter the "Initial Term"); or (b) if
the Company attains the EBITDA 2-Year Target, on October 31, 2001 (November 7,
1999 through October 31, 2001, hereinafter the "Extended Term").
2. Positions, Duties. The Employee shall serve in the position of
President and Chief Operating Officer of the Company. As such, subject to the
ultimate control of the Chairman of the Board of the Company, the Vice Chairman
of the Board of the Company, and the Board of Directors of the Company, the
Employee, together with the Chief Executive Officer of the Company, shall have
day-to-day management control over the Company's business and operations,
including without limitation, sales practices, price of merchandise, inventory
matters, mark-down allowances, customer discounts, and the hiring, firing and
compensation (including levels of participation by employees of the Company in
any profit sharing plan established by the Company) of other employees of the
Company, all with authority and discretion consistent with past practices of
Miss Erika. The Employee shall perform, faithfully and diligently, such duties,
and, subject to the prior sentence, shall have such other responsibilities,
appropriate to said position, as shall be assigned to him from time to time by
the Chairman, the Vice Chairman or the Board of Directors of the Company. The
Employee shall report to the Chairman and the Vice Chairman of the Company. The
Employee shall devote his complete and undivided attention to the performance of
his duties and responsibilities hereunder during the normal working hours of
executive employees of Norton.
3. Compensation.
3.1 Salary. During the Term, in consideration of the performance by
the Employee of the services set forth in Section 2 and his observance of the
other covenants set forth herein, the Company shall pay the Employee, and the
Employee shall accept, a salary at a rate of $425,000 per annum, payable in
accordance with the standard payroll practices of the Company. If the Company
attains EBITDA for
<PAGE> 3
3
any full fiscal year ending during the Term of $6,000,000 or more (the "EBITDA
Target"), the salary beginning on the first day of the immediately succeeding
fiscal year during the Term, if any, shall be increased to $460,000 per annum,
and if the Company attains an average EBITDA for any two consecutive full fiscal
years ending during the Term of $6,000,000 or more, the salary beginning on the
first day of the immediately succeeding fiscal year during the Term, if any,
shall be increased to $500,000 per annum.
3.2 Bonus. During the Term, in addition to the salary provided for
in Section 3.1, (i) the Employee shall be eligible to participate in the ME
Acquisition Corp. Bonus Plan for Senior Executives (the "Executive Bonus Plan"),
a copy of which is attached hereto as Exhibit A and the terms of which are
incorporated herein by reference, (ii) the Employee shall be allocated a
percentage of the Bonus Pool (as defined in the Executive Bonus Plan), which
percentage shall be not less than 33.335% of the Bonus Pool, subject to the
terms and conditions of the Executive Bonus Plan and this Agreement; provided,
however, that the Employee may, upon written notice to the Company, elect to
transfer all or a portion of his allocation of the Bonus Pool to the other
participants in the Executive Bonus Plan, and the Company agrees to pay such
transferred allocation to the other participants in the Executive Bonus Plan in
accordance with the written direction of the Employee and otherwise in
accordance with terms and conditions of the Executive Bonus Plan, and (iii)
either (a) the Employee shall receive a cash bonus in an amount which, net of
taxes payable by the Employee in respect of such amount, shall be equal to the
amount which would have been contributed on behalf of the Employee with respect
to the Miss Erika, Inc. Profit Sharing Plan (the "Miss Erika Plan"), as in
effect on the date hereof and as administered in accordance with the past
practices of Miss Erika, which cash bonus shall be payable within 120 days
following the close of each full fiscal year of the Company ending during the
Term or (b) the Employee shall be eligible to participate in a tax-advantaged
profit sharing plan of the Company established on substantially similar terms
and conditions (including levels of contributions) as the Miss Erika Plan. It is
understood and agreed by the parties that, during the Term, the percentage
referred to in Sections 4.1 and 4.2 of the Executive Bonus Plan shall be fifteen
percent (15%).
3.3 Stock Options.
(a) Grant. On the Closing Date, the Company shall cause to be
granted to the Employee by the Board of Directors of Norton as of the Closing
Date, options to
<PAGE> 4
4
purchase an aggregate of 50,000 shares of common stock, par value $.01 per share
(the "Common Stock"), of Norton, at an exercise price per share equal to the
fair market value of the Common Stock on the Closing Date (the "Options"). The
Options shall be fully vested and exercisable on and after the Closing Date.
(b) Term of Options. Except as provided below, the term of the
Options shall be ten years.
(i) If the Employee's employment with the Company terminates
pursuant to Section 6.1, is terminated by the Company or the Employee pursuant
to Section 6.2, is terminated by the Company pursuant to Section 6.4, is
terminated by the Employee pursuant to Section 6.6, or terminates for any other
reason (except as provided in clause (ii) below) the Options may be exercised by
the Employee (or his estate or legal representative) within one year after such
termination; and
(ii) In the event of termination of the employment of the
Employee with the Company (a) by the Company pursuant to Section 6.3 or (b) by
the Employee other than pursuant to Sections 6.1, 6.2 or 6.6, no Options shall
be exercisable.
(c) Adjustments. In the event of any dividend or other
distribution (whether in the form of cash, Common Stock, other securities or
other property), recapitalization, stock split, reverse stock split,
reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase or exchange of Common Stock or other securities of Norton, issuance
of warrants or other rights to purchase Common Stock, the Board of Directors
shall, in such manner as it may deem equitable, adjust the number of shares of
Common Stock (or other securities or property) subject to the Options, the
exercise price with respect to any Options, or all of the foregoing.
(d) Registration of Shares. Norton shall, as promptly as
practicable following the commencement of the Employee's employment hereunder,
file a registration statement on Form S-8, or any successor to such Form, with
respect to the shares of Common Stock covered by the Options.
3.4 Bonus Options. During the Term, in addition to the salary
provided for in Section 3.1, the Employee shall be eligible to receive Bonus
Options (as defined in the Executive Bonus Plan) in accordance with the terms
set forth in the Executive Bonus Plan.
<PAGE> 5
5
4. Expense Reimbursement. During the Term, (i) the Company shall
reimburse the Employee for all reasonable and necessary out-of-pocket expenses
incurred by him in connection with the performance of his duties hereunder, upon
the presentation of proper accounts therefor in accordance with Norton's
policies and (ii) the Company shall pay for the benefit of the Employee all
reasonable and necessary expenses incurred by him in the ordinary and usual
course of business and in accordance with Norton's policies (in any case, as
such policies are adopted from time to time by the Compensation Committee of
Norton).
5. Benefits.
5.1 Benefit Plans. During the Term, the Employee shall be entitled
to participate in all employee benefit plans and programs offered by Norton,
subject to the provisions of such plans and programs as in effect from time to
time.
5.2 Life Insurance. During the Term, provided that such is available
on commercially reasonable terms, the Company will provide the Employee with $1
million term life insurance coverage. The beneficiary of such coverage shall be
the Employee's estate or other beneficiary designated by the Employee.
5.3 Disability Insurance. During the Term, the Company shall provide
the Employee with disability insurance providing the same monthly disability
benefit as provided to the Chief Executive Officer of Norton; notwithstanding
the foregoing, the annual expenditure by the Company for disability insurance
premiums for the Employee shall not exceed the annual expenditure by Norton for
disability insurance premiums for the Chief Executive Officer of Norton.
5.4 Medical Insurance. For the period commencing on the termination
of the Term (other than as a result of the termination of the Term by the
Company pursuant to Section 6.3 and other than as a result of the termination of
the Term by the Employee other than pursuant to Sections 6.1, 6.2 or 6.6) until
the death of the Employee, the Company agrees to provide the Employee and the
Employee's wife with coverage under the medical plan of the Company on the same
terms and conditions that coverage is generally available to employees of the
Company.
5.5 Vacation. During the Term, the Employee shall be entitled to
paid vacation in accordance with Norton's policy for its executive employees.
<PAGE> 6
6
6. Termination of Employment.
6.1 Death. In the event of the death of the Employee during the
Term, the Company shall pay to the estate or other legal representative of the
Employee (a) the salary provided for in Section 3.1 accrued to the date of the
Employee's death and not theretofore paid to the Employee and (b) any bonus
payable in accordance with the terms of the Executive Bonus Plan. Rights and
benefits of the estate or other legal representative of the Employee (a) with
respect to the Options or the Bonus Options shall be determined in accordance
with Section 3.3(b) or the Executive Bonus Plan, as applicable and (b) under the
benefit plans and programs of the Company shall be determined in accordance with
the provisions of such plans and programs. Neither the estate or other legal
representative of the Employee nor the Company shall have any further rights or
obligations under this Agreement.
6.2 Disability. If during the Term the Employee shall become
incapacitated by reason of physical or mental disability and shall be unable to
perform his normal duties hereunder for a cumulative period of six (6) months in
any period of twelve (12) consecutive months, the employment of the Employee
hereunder may be terminated by the Company or the Employee upon notice to the
other. In the event of such termination, the Company shall pay to the Employee
(a) the salary provided for in Section 3.1 accrued to the date of such
termination and not theretofore paid to the Employee and (b) any bonus payable
in accordance with the terms of the Executive Bonus Plan. Rights and benefits of
the Employee (a) with respect to the Options or the Bonus Options shall be
determined in accordance with Section 3.3(b) or the Executive Bonus Plan, as
applicable and (b) under the benefit plans and programs of the Company shall be
determined in accordance with the provisions of such plans and programs. Neither
the Employee nor the Company shall have any further rights or obligations under
this Agreement, except as provided in Sections 7, 8, 9 and 10.
6.3 Due Cause. The employment of the Employee hereunder may be
terminated by the Company at any time during the Term for Due Cause (as
hereinafter defined). In the event of such termination, the Company shall pay to
the Employee the salary provided for in Section 3.1 accrued to the date of such
termination and not theretofore paid to the Employee and no bonus. Rights and
benefits of the Employee (a) with respect to the Options or the Bonus Options
shall be determined in accordance with Section 3.3(b) or the Executive Bonus
Plan, as applicable and (b) under the benefit plans and programs of the Company
shall be
<PAGE> 7
7
determined in accordance with the provisions of such plans and programs. After
the satisfaction of any claim of the Company against the Employee incidental to
such Due Cause, neither the Employee nor the Company shall have any further
rights or obligations under this Agreement, except as provided in Sections 7, 8,
9 and 10. For purposes hereof, "Due Cause" shall mean (a) the Employee's gross
negligence or willful misconduct in bad faith in the discharge of his duties and
responsibilities to Norton, the Company and any of their respective parent,
subsidiary or affiliate corporations (collectively, the "Norton Group"), as
determined by the Board of Directors of the Company, (b) the Employee's material
and repeated failure to obey appropriate directions from the Chairman, Vice
Chairman or Board of Directors of the Company, (c) any willful or purposeful act
or omission of the Employee taken or omitted in bad faith and intended to
materially injure, and which had the effect of materially injuring, the business
or business relationships of any member of the Norton Group or (d) the
Employee's conviction or other adjudication of (1) a felony or (2) any crime or
offense involving fraud; provided, however, that the Employee shall be given
written notice by a majority of the Board of Directors of the Company that it
intends to terminate the Employee's employment for Due Cause under this Section,
which written notice shall specify the act or acts upon the basis of which the
majority of the Board of Directors of the Company intends so to terminate the
Employee's employment, and the Employee shall then be given the opportunity,
within fifteen (15) days of his receipt of such notice, to have a meeting with
the Board of Directors of the Company to discuss such act or acts.
6.4 Other Termination by the Company. The Company may terminate the
Employee's employment at any time during the Term for whatever reason it deems
appropriate or without reason; provided, however, that in the event that such
termination is not pursuant to Section 6.1, 6.2, 6.3 or 6.5, the Company shall,
except as provided in Section 9(c), (a) pay to the Employee the Severance Amount
(as hereinafter defined) in equal installments on a monthly basis over the
Severance Term (as hereinafter defined), (b) pay to the Employee any bonus
payable in accordance with the terms of the Executive Bonus Plan and (c) provide
the Employee for the Severance Term with the same benefits then in effect under
Section 5. The Employee shall not be required to seek subsequent employment.
Rights and benefits of the Employee with respect to the Options or the Bonus
Options shall be determined in accordance with Section 3.3(b) or the Executive
Bonus Plan, as applicable. Neither the Employee nor the Company shall have any
further rights or obligations under this Agreement, except as provided in
Sections 7, 8, 9
<PAGE> 8
8
and 10. Any termination of this Agreement by the Company after the date hereof
and prior to the Closing Date shall be treated as a termination of employment
pursuant to this Section 6.4 as of the day following the Closing Date, provided
that the Closing (as defined in the Purchase Agreement) shall have occurred.
For purposes hereof, Severance Amount shall mean an amount equal to
the sum of (i) the annual salary then in effect under Section 3.1 and (ii) the
Average Bonus (as hereinafter defined), multiplied by the Severance Factor.
Average Bonus shall mean the average of the bonuses, if any, paid to the
Employee by the Company and/or Miss Erika in the two (2) full fiscal years of
the Company and/or Miss Erika, as applicable, prior to the date of termination
of employment of the Employee. Severance Factor shall mean a fraction, the
numerator of which is the number of days remaining in the then-current Term plus
365, and the denominator of which is 365. Severance Term shall mean the number
of days remaining in the then-current Term plus 365 days. For purposes of the
foregoing, in determining the number of days remaining in the then-current Term,
if termination under this Section 6.4 occurs during (i) the Initial Term, the
then-current Term shall be determined without regard to the Extended Term;
provided, however, that if following such termination the Company attains the
EBITDA 2-Year Target for the fiscal years ending October 31, 1998 and November
6, 1999, the then-current Term shall be determined with regard to the Extended
Term and appropriate adjustments shall be made in the then remaining monthly
installments of the Severance Amount to be paid over the extended Severance Term
to take into account such determination or (ii) the Extended Term, the
then-current Term shall be the remaining number of days in the Extended Term.
6.5 Non-Extension. If (A) the Initial Term is not extended for the
Extended Term as a result of the failure to achieve the EBITDA 2-Year Target or
if (B) the Initial Term is extended for the Extended Term pursuant to Section
1.2 and, upon the expiration of such Extended Term, the Company shall fail to
offer employment to the Employee in the same position and with the same salary
then in effect under Section 3.1 and participation in the Executive Bonus Plan
on the same terms then in effect for an additional period of one year, in either
case, the Company shall, except as provided in Section 9(c), (a) continue to pay
to the Employee the salary then in effect under Section 3.1 for one year from
the date of expiration of the Extended Term, (b) pay to the Employee the Average
Bonus in equal monthly installments over such one year period (the amounts set
<PAGE> 9
9
forth in clauses (a) and (b), the "Section 6.5 Amount") and (c) provide the
Employee with the same Benefits then in effect under Section 5 for such one year
period. The Employee shall not be required to seek subsequent employment. Rights
and benefits of the Employee (a) with respect to the Options or the Bonus
Options shall be determined in accordance with Section 3.3(b) or the Executive
Bonus Plan, as applicable and (b) subject to this Section 6.5, under the benefit
plans and programs of the Company shall be determined in accordance with the
provisions of such plans and programs. Neither the Employee nor the Company
shall have any further rights or obligations under this Agreement, except as
provided in Sections 7, 8, 9 and 10.
6.6 Termination by the Employee with Good Reason. The Employee may
at any time terminate his employment with the Company with Good Reason (as
hereinafter defined) and may treat such as a termination of employment pursuant
to and with the effects set forth in Section 6.4. For purposes hereof, Good
Reason shall mean (i) the continued breach by the Company of a material
provision of this Agreement for a period of 30 days after written notice of such
breach by the Employee to the Company or (ii) a material and adverse diminution
in the Employee's title or scope of duties as set forth in Section 2, which
diminution shall continue for a period of 30 days after written notice thereof
by the Employee to the Company.
6.7 Termination by the Employee without Good Reason. The Employee
may at any time upon at least 120 days prior written notice to the Company
terminate his employment with the Company without Good Reason. Such termination
shall be treated as a termination of employment pursuant to, including with the
effects set forth in, Section 6.3; provided, however, that the Company hereby
waives any claim it may have against the Employee incidental to the Employee's
termination of his employment pursuant to this Section 6.7.
7. Confidential Information.
7.1 The Employee shall, during the Term and at all times thereafter,
treat as confidential and, except as required in the performance of his duties
and responsibilities under this Agreement, not disclose, publish or otherwise
make available to the public or to any individual, firm or corporation any
confidential material (as hereinafter defined), except, on a need to know basis,
to the Employee's attorney, accountant or personal advisor. The Employee agrees
that all confidential material, together
<PAGE> 10
10
with all notes and records of the Employee relating thereto, and all copies or
facsimiles thereof in the possession of the Employee, are the exclusive property
of the Company and the Employee agrees to return such material to the Company
promptly upon the termination of the Employee's employment with the Company.
7.2 For the purposes hereof, the term "confidential material" shall
mean all information acquired by the Employee in the course of the Employee's
prior employment with Miss Erika and in the course of the Employee's employment
with the Company in any way concerning the products, projects, activities,
business or affairs of the Company or any member of the Norton Group or the
customers, suppliers or agents of the Company or any member of the Norton Group,
including, without limitation, all information concerning trade secrets and the
preparation of raw material for, manufacture of, and/or finishing processes
utilized in the production of, the products or projects of the Company or any
member of the Norton Group and/or any improvements therein, all sales and
financial information concerning the Company or any member of the Norton Group,
all customer and supplier lists, all information concerning projects in research
and development or marketing plans for any such products or projects, and all
information in any way concerning the products, projects, activities, business
or affairs of customers of the Company or any member of the Norton Group which
is furnished to the Employee by the Company or any of its employees (current or
former), agents or customers, as such; provided, however, that the term
"confidential material" shall not include information which (a) becomes
generally available to the public or the apparel industry in general other than
as a result of a disclosure by the Employee, (b) was available to the Employee
on a non-confidential basis prior to his employment with the Company or (c)
becomes available to the Employee on a non-confidential basis from a source
other than the Company or any of its agents, franchisees, creditors, suppliers,
lessors, lessees or customers provided that the Employee has no knowledge that
such source is not bound by a confidentiality agreement with the Company or any
of such agents or customers.
8. Inventions. Any and all inventions, innovations or improvements
("inventions") made, developed or created by the Employee (whether at the
request or suggestion of the Company 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
<PAGE> 11
11
and fully disclosed by the Employee to the Board of Directors of the Company and
shall be the Company's exclusive property as against the Employee, and the
Employee shall promptly deliver to an appropriate representative of the Company
as designated by the Board of Directors all papers, drawings, models, data and
other material relating to any inventions made, developed or created by him as
aforesaid. The Employee 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 Employee or to vest in the Company title to such inventions as
against the Employee. The expense of securing any such patent or copyright shall
be borne by the Company.
9. Non-Competition. (a) The Employee acknowledges that the services
to be rendered by him to the Company are of a special and unique character.
(b) In consideration of his employment hereunder, the Employee
agrees, for the benefit of the Company, that he will not, during the period of
his employment with the Company and thereafter for a period (A) of one (1) year
commencing on the date of termination of his employment with the Company
pursuant to Section 6.2 or 6.3, (B) of the greater of one (1) year commencing on
the date of termination of his employment with the Company pursuant to Section
6.7 or the remainder of the then-current Term (without regard to the Extended
Term if such termination occurs during the Initial Term), (C) during which the
Employee receives payments of the Severance Amount pursuant to Section 9(c)(i)
(in the case of a termination under Section 6.4 or 6.6) or (D) during which the
Employee receives payments of the Section 6.5 Amount pursuant to Section
9(c)(ii) or 9(c)(iii) (in the case of a termination under Section 6.5), (1)
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) one percent (1%)
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, anywhere in the United States, in any
activity or business venture which is in competition with the business then
conducted by the Company and any of its subsidiaries, (2) solicit or entice or
endeavor to solicit or entice away from any member of the Norton Group any
person who was an officer, employee, agent or consultant of any member of the
Norton Group,
<PAGE> 12
12
either for his own account or for any individual, firm or corporation, and, if
applicable, whether or not such person would commit any breach of his contract
of employment by reason of leaving the service of a member of the Norton Group,
and the Employee agrees not to employ, directly or indirectly, any person who
was an officer or employee of any member of the Norton Group 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 any member of the Norton Group, or (3) solicit or entice or endeavor to
solicit or entice away from any member of the Norton Group any customer or
prospective customer of any member of the Norton Group, either for his own
account or for any individual, firm or corporation (the activities set forth in
clauses (1), (2) and (3) above, the "Non-Competition Activities").
(c) In the event of termination of the employment of the Employee,
(i) pursuant to Section 6.4 or 6.6, the Company shall pay to
the Employee the Severance Amount and other benefits set forth in Section 6.4 or
6.6 in which event the Employee shall not engage in the Non-Competition
Activities for the Severance Term; provided, however, if the Employee engages in
the Non-Competition Activities during the Severance Term, the Employee shall
immediately notify the Company that he is engaging in the Non-Competition
Activities, and the Company's obligation to pay the Severance Amount shall
immediately cease. From and after the date on which the Employee engages in the
Non-Competition Activities, the Company shall continue to pay to the Employee
the salary in effect on the date of termination of the employment of the
Employee under Section 3.1 for the remainder of the Severance Term and shall
offset any amounts earned as a result of the Employee's engaging in the
Non-Competition Activities (whether as an employee, consultant or otherwise)
against such salary continuation by the Company which becomes payable after the
first date on which the Employee engages in the Non-Competition Activities.
(ii) pursuant to clause (A) of the first sentence of Section
6.5, the Company shall pay to the Employee the Section 6.5 Amount and other
benefits set forth in Section 6.5 in which event the Employee shall not engage
in the Non-Competition Activities for one year; provided, however, if the
Employee engages in the Non-Competition Activities during such one year period,
the Employee shall immediately notify the Company that he is engaging in the
Non-Competition Activities, and the Company's obligation to pay the Section 6.5
Amount shall immediately cease.
<PAGE> 13
13
(iii) pursuant to clause (B) of the first sentence of Section
6.5, the Company shall pay to the Employee or the Section 6.5 Amount and other
benefits set forth in Section 6.5 in which event the Employee shall not engage
in the Non-Competition Activities for one year; provided, however, if the
Employee engages in the Non-Competition Activities during such one year period,
the Employee shall immediately notify the Company that he is engaging in the
Non-Competition Activities, and the Company's obligation to pay the Section 6.5
Amount shall immediately cease. From and after the date on which the Employee
engages in the Non-Competition Activities, the Company shall continue to pay to
the Employee the salary in effect on the date of termination of the employment
of the Employee under Section 3.1 for the remainder of such one year period and
shall offset any amounts earned as a result of the Employee's engaging in the
Non-Competition Activities (whether as an employee, consultant or otherwise)
against such salary continuation by the Company which becomes payable after the
first date on which the Employee engages in the Non-Competition Activities.
10. Equitable Relief, Etc.
10.1 In the event of a breach or threatened breach by the Employee
of any of the provisions of Sections 7, 8 or 9, the Employee hereby consents and
agrees that the Company shall be entitled to an injunction or similar equitable
relief from any court of competent jurisdiction restraining the Employee from
committing or continuing any such breach or threatened breach or granting
specific performance of any act required to be performed by the Employee under
any of such provisions, without the necessity of showing any actual damage or
that money damages would not afford an adequate remedy and without the necessity
of posting any bond or other security. Nothing herein shall be construed as
prohibiting the Company from pursuing any other remedies at law or in equity
which it may have with respect to any such breach or threatened breach.
10.2 The Company and the Employee understand and agree that in any
lawsuit or other proceeding between any of them with respect to Sections 7, 8 or
9 hereof, the prevailing party in such lawsuit or proceeding shall be entitled
to recover from the other party in such lawsuit or proceeding, and such other
party hereby agrees to pay such prevailing party, for all costs and expenses,
including attorneys' fees, incurred by such prevailing party in the defense,
prosecution or investigation of the matters which are the subject of such
lawsuit or proceeding.
<PAGE> 14
14
11. Successors and Assigns.
11.1 Assignment by the Company. The Company shall require any
successors (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform if no such
succession had taken place. As used in this Section, the "Company" shall mean
the Company as hereinbefore defined and any successor to its business and/or
assets as aforesaid which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law and this Agreement shall be
binding upon, and inure to the benefit of, the Company, as so defined.
11.2 Assignment by the Employee. The Employee may not assign this
Agreement or any part thereof without the prior written consent of a majority of
the Board of Directors of the Company (other than the Employee if he is a member
of such Board at the time); provided, however, that nothing herein shall
preclude one or more beneficiaries of the Employee from receiving any amount
that may be payable following the occurrence of his legal incompetency or his
death and shall not preclude the legal representative of his estate from
receiving such amount or from assigning any right hereunder to the person or
persons entitled thereto under his will or, in the case of intestacy, to the
person or persons entitled thereto under the laws of intestacy applicable to his
estate. The term "beneficiaries", as used in this Agreement, shall mean a
beneficiary or beneficiaries so designated to receive any such amount or, if no
beneficiary has been so designated, the legal representative of the Employee (in
the event of his incompetency) or the Employee's estate.
12. Governing Law. This Agreement shall be deemed a contract made
under, and for all purposes shall be construed in accordance with, the laws of
the State of New York applicable to contracts to be performed entirely within
such State.
13. Entire Agreement. This Agreement contains all the understandings
and representations between the parties hereto pertaining to the subject matter
hereof. This Agreement supersedes all understandings and agreements, whether
oral or in writing, if any, previously entered into by the Company with the
Employee in any way relating to the employment of the Employee by the Company,
including without limitation, the Purchase Agreement, all of which agreements
<PAGE> 15
15
and understandings are hereby terminated and all rights and entitlements
thereunder are hereby waived and released.
14. Amendment, Modification, Waiver. No provision of this Agreement
may be amended or modified unless such amendment or modification is agreed to in
writing and signed by the Employee and by a representative of the Company (other
than the Employee) who have been duly authorized by the Board of Directors of
the Company to do so (other than the Employee if he is a member of such Board at
the time). Except as otherwise specifically provided in this Agreement, no
waiver by either party hereto of any breach by the other party hereto of any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of a similar or dissimilar provision or condition at
the same or any prior or subsequent time, nor shall the failure of or delay by
either party hereto in exercising any right, power or privilege hereunder
operate as a waiver thereof to preclude any other or further exercise thereof or
the exercise of any other such right, power or privilege.
15. Notices. Any notice to be given hereunder shall be in writing
and delivered personally or sent by certified mail, postage prepaid, return
receipt requested, addressed to the party concerned at the address indicated
below or at such other address as such party may subsequently designate by like
notice:
If to the Company:
c/o Norton McNaughton, Inc.
463 Seventh Avenue
New York, New York 10018
Attention: Chief Executive Officer
If to the Employee:
Howard Zwilling
11 Wenwood Drive
Brookville, New York 11545
16. Arbitration. Any controversy or claim arising out of or relating
to this Agreement, or any breach thereof, shall, except as provided in Section
10, be settled by binding arbitration in accordance with the rules of the
American Arbitration Association then in effect and judgment upon such award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitration shall be held in New York, New York. The arbitration
award
<PAGE> 16
16
shall include an award of attorneys' fees and costs to the prevailing party as
determined by the arbitrator.
17. Severability. Should any provision of this Agreement be held by
a court or arbitration panel of competent jurisdiction to be enforceable only if
modified, such holding shall not affect the validity of the remainder of this
Agreement, the balance of which shall continue to be binding upon the parties
hereto with any such modification to become a part hereof and treated as though
originally set forth in this Agreement. The parties further agree that any such
court or arbitration panel is expressly authorized to modify any such
unenforceable provision of this Agreement in lieu of severing such unenforceable
provision from this Agreement in its entirety, whether by rewriting the
offending provision, deleting any or all of the offending provision, adding
additional language to this Agreement, or by making such other modifications as
it deems warranted to carry out the intent and agreement of the parties as
embodied herein to the maximum extent permitted by law. The parties expressly
agree that this Agreement as so modified by the court or arbitration panel shall
be binding upon and enforceable against each of them. In any event, should one
or more of the provisions of this Agreement be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions hereof, and if such provision or
provisions are not modified as provided above, this Agreement shall be construed
as if such invalid, illegal or unenforceable provisions had never been set forth
herein.
18. Authority. The Company represents and warrants to the Employee
that the execution and delivery of this Agreement by the Company and the
performance by the Company of its covenants and agreements hereunder have been
duly authorized by all necessary corporate action and that this Agreement has
been duly executed and delivered on behalf of the Company.
19. Withholding. Anything to the contrary notwithstanding, all
payments required to be made by the Company hereunder to the Employee or his
beneficiaries, including his estate, shall be subject to withholding of such
amounts relating to taxes as the Company may reasonably determine it should
withhold pursuant to any applicable law or regulation. In lieu of withholding
such amounts, in whole or in part, the Company, may, in its sole discretion,
accept other provision for payment of taxes as permitted by law, provided it is
satisfied in its sole discretion that all requirements of law affecting its
responsibilities to withhold such taxes have been satisfied.
<PAGE> 17
17
20. Subsidiaries, etc. The Employee shall be deemed to resign as an
officer and director of the Company or of any parent, subsidiary or affiliate of
the Company upon termination of his employment with the Company for any or no
reason.
21. Survivorship. The respective rights and obligations of the
Employee and the Company hereunder shall survive any termination of this
Agreement to the extent necessary to the intended preservation of such rights
and obligations.
22. Titles. Titles of the sections of this Agreement are intended
solely for convenience and no provision of this Agreement is to be construed by
reference to the title of any section.
23. Counterparts. This Agreement may be executed in two or more
counterpart copies, each of which shall be deemed to be an original and all of
which taken together shall be deemed one document.
* * *
<PAGE> 18
18
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
ME ACQUISITION CORP.
By /s/ Sanford Greenberg
----------------------------------
Title: Chairman of the Board
EMPLOYEE:
/s/ Howard Zwilling
----------------------------------
Howard Zwilling
<PAGE> 19
EXHIBIT A
ME ACQUISITION CORP. BONUS PLAN
FOR SENIOR EXECUTIVES
1. Establishment. This Plan, which shall be known as the ME
Acquisition Corp. Bonus Plan for Senior Executives (the "Bonus Plan"), is hereby
established by ME Acquisition Corp. (the "Company") to provide incentives for
senior executives providing services to the Company and to aid the Company in
retaining such senior executives upon whose efforts the Company's success and
future growth depends.
2. Administration. The Bonus Plan shall be administered by the Board
of Directors of the Company (the "Board"). For purposes of administration, the
Board, subject to the terms of the Bonus Plan, shall have plenary authority to
establish such rules and regulations, to make such determinations and
interpretations, and to take such other administrative actions as it deems
necessary or advisable.
3. Participants. The participants in the Plan shall be Stuart
Bregman, Howard Zwilling, Roberta Ciacci, Elizabeth Moser, Kenneth Tse and
Samuel Glaser, in each case for so long as such individual is employed by the
Company pursuant to an Employment Agreement (as defined in the Agreement, as
defined in Section 4 below) (each, a "Participant" and collectively, the
"Participants"); provided, however, that nothing contained herein shall be
construed as creating a contract or guarantee of employment for any Participant.
4. Bonus Pool.
4.1 For each of the fiscal years of the Company, provided that the
EBITDA Target (as hereinafter defined) for such fiscal year shall have been
attained, the Company shall establish a bonus pool in an amount equal to a
percentage of EBITDA (as hereinafter defined) for such fiscal year as determined
by the Board in consultation with Stuart Bregman and Howard Zwilling for so long
as they are employed by the Company (the "Bonus Pool"); provided, however, that
the Bonus Pool for any fiscal year shall not exceed that amount which, when
deducted from EBITDA, would result in EBITDA for such fiscal year net of the
Bonus Pool of less than $5,500,000.
4.2 Notwithstanding the foregoing, in the event that the EBITDA
Target is not achieved in any fiscal year,
<PAGE> 20
2
but EBITDA (calculated as otherwise provided herein) for such fiscal year and
for the subsequent fiscal year equals or exceeds $11,000,000, then the Company
shall establish a bonus pool in an amount equal to a percentage to be determined
by the Board in consultation with Stuart Bregman and Howard Zwilling for so long
as they are employed by the Company of combined EBITDA for such two fiscal
years, which percentage of the combined EBITDA shall for purposes hereof
constitute the Bonus Pool for such two fiscal years; provided, however, that the
Bonus Pool for such two fiscal years shall not exceed that amount which, when
deducted from the combined EBITDA, would result in the combined EBITDA for such
two fiscal years net of the Bonus Pool of less than $11,000,000.
4.3 As used herein: (i) EBITDA shall have the meaning set forth in
the Agreement of Purchase and Sale dated as of September 3, 1997 (the
"Agreement"), by and among the Company and the other parties thereto (which
parties include certain of the Participants) for the appropriate fiscal year,
without reduction for the Bonus Pool for such fiscal year contemplated by this
Bonus Plan or for any expense attributable to the Bonus Options; and (ii) EBITDA
Target shall mean, for each fiscal year, achievement of EBITDA of not less than
$5,500,000. In the event of any change in the fiscal year of the Company,
appropriate adjustments shall be made to the EBITDA Target in order to carry out
the intent and principles of the Bonus Plan.
5. Allocation of Bonus Pool. The Bonus Pool shall be allocated as
specified in each Participant's Employment Agreement.
6. Payment of Bonus. The bonus payable to each Participant (or his
or her estate or other legal representative) for any fiscal year of the Company
pursuant to this Bonus Plan shall be paid by the Company within 120 days
following the close of such fiscal year.
7. Termination of Employment.
7.1 In the event of termination of the employment of a Participant
pursuant to Section 6.1, 6.2, 6.4, 6.5 or 6.6 of his or her Employment Agreement
prior to the end of any fiscal year of the Company, such Participant (or his or
her estate or other legal representative) shall be entitled to a bonus for such
fiscal year only as provided in this Section 7.1. The bonus to which the
Participant (or his estate or other legal representative) shall be entitled for
such fiscal year (which shall be payable at the time other Participants are paid
their portion of the Bonus Pool for
<PAGE> 21
3
such fiscal year) shall be (i) in the event that the Bonus Pool is calculated
pursuant to Section 4.1 of this Bonus Plan, an amount equal to the product of
(x) the bonus, if any, which would have been payable to the Participant pursuant
to Sections 4.1 and 5 of this Bonus Plan for such fiscal year if the employment
of the Participant had not so terminated, multiplied by (y) a fraction, the
numerator of which is the number of days from the beginning of such fiscal year
to the date of termination, and the denominator of which is 365; or (ii) in the
event that the Bonus Pool is calculated pursuant to Section 4.2 of this Bonus
Plan, an amount equal to the product of (x) the bonus, if any, which would have
been payable to the Participant pursuant to Sections 4.2 and 5 of this Bonus
Plan for such two fiscal years if the employment of the Participant had not so
terminated, multiplied by (y) a fraction, the numerator of which is the number
of days from the beginning of the first of such two fiscal years to the date of
termination, and the denominator of which is 730.
7.2 In the event of termination of the employment of a Participant
pursuant to Section 6.3 of his or her Employment Agreement, such Participant
shall not be entitled to a bonus for the fiscal year of the Company in which
such termination occurs.
7.3 In the event of termination of the employment of a Participant
by the Participant for any reason, other than pursuant to Section 6.1, 6.2 or
6.6 of his or her Employment Agreement, such Participant shall not be entitled
to a bonus for the fiscal year of the Company in which such termination occurs.
7.4 No Participant shall be entitled to a bonus for any fiscal year
of the Company subsequent to the fiscal year in which his or her termination of
employment (for any or no reason) occurs.
7.5 If any portion of the Bonus Pool shall not be allocated or paid
by reason of this Section 7, such portion shall be retained by the Company or
paid to other Participants or to new participants, all as determined by the
Board in its discretion, after consideration of any recommended course of action
submitted to the Board by the Chief Executive Officer and Chief Operating
Officer of the Company.
8. Bonus Options.
8.1 Grant. For each $500,000 of EBITDA in excess of $6,000,000
attained by the Company in each of the fiscal
<PAGE> 22
4
years of the Company beginning with the fiscal year ending October 31, 1998, the
Company shall cause to be granted to the Participants by the Board of Directors
of Norton McNaughton, Inc., a Delaware corporation ("Norton"), options (the
"Bonus Options") to purchase an aggregate of 28,000 (or such lesser number as
shall be necessary to allocated Bonus Options in accordance with Section 8.2
below) shares of common stock, par value $.01 per share, of Norton (the "Common
Stock"). The Bonus Options shall be granted, if at all, as of the last day of
the applicable fiscal year and shall have an exercise price per share equal to
the fair market value of the Common Stock on the date of grant.
8.2 Allocation of Bonus Options. The Bonus Options shall be
allocated 10,000 to Bregman, 10,000 to Zwilling, 3,000 to Ciacci, 2,000 to
Moser, 2,000 to Tse and 1,000 to Glazer.
8.3 Exercise. The Bonus Options shall be fully vested and
exercisable on and after the date of grant.
8.4 Term of Options. Except as provided below, the term of the Bonus
Options shall be ten years.
(i) If a Participant's employment with the Company terminates
pursuant to Section 6.1 of his or her Employment Agreement, is terminated by the
Company or by the Participant pursuant to Section 6.2 of his or her Employment
Agreement, is terminated by the Company pursuant to Section 6.4 of his or her
Employment Agreement, is terminated by the Employee pursuant to Section 6.6 of
his or her Employment Agreement, or terminated for any other reason (except as
provided in clause (ii) below), the Bonus Options may be exercised by the
Participant (or his estate or legal representative) within one (1) year after
such termination; and
(ii) In the event of termination of the employment of a
Participant (a) by the Company pursuant to Section 6.3 of his or her Employment
Agreement or (b) by the Participant other than pursuant to Sections 6.1, 6.2 or
6.6 of his or her Employment Agreement, no Bonus Options shall be exercisable.
8.5 Adjustments. In the event of any dividend or other distribution
(whether in the form of cash, Common Stock, other securities or other property),
recapitalization, stock split, reverse stock split, reorganization, merger,
consolidation, split-up, spin-off, combination, repurchase or exchange of Common
Stock or other securities of Norton, issuance of warrants or other rights
<PAGE> 23
5
to purchase Common Stock, the Board of Directors shall, in such manner as it may
deem equitable, adjust the number of shares of Common Stock (or other securities
or property) subject to the Bonus Options, the exercise price with respect to
any Bonus Options, or both.
8.6 No Participant shall be entitled to Bonus Options for any fiscal
year of the Company subsequent to the fiscal year in which his or her
termination of employment (for any or no reason) occurs.
8.7 In the event of termination of the employment of a Participant
prior to the end of a fiscal year, pursuant to Sections 6.1, 6.2, 6.4, 6.5 or
6.6 of his or her Employment Agreement, such Participant (or his or her estate
or other legal representative) shall be granted such Bonus Options for such
fiscal year only as provided in this Section 8.7. The number of Bonus Options to
which the Participant (or his or her estate or legal representative) shall be
entitled for such fiscal year (which shall be granted at the time that the Bonus
Options are granted to the other Participants) shall be equal to the product of
(x) the number of Bonus Options, if any, which would have been granted to the
Participant pursuant to Sections 8.1 and 8.2 of this Bonus Plan for such fiscal
year if the employment of the Participant had not so terminated, multiplied by
(y) a fraction, the numerator of which is the number of days from the beginning
of such fiscal year to the date of termination, and the denominator of which is
365. The terms and conditions of any such Bonus Options shall be as otherwise
provided in this Section 8.
8.8 If any portion of the Bonus Options shall not be allocated or
granted by reason of this Section 8, such Bonus Options shall be retained by the
Company or granted to other Participants or to new participants, all as
determined by the Board in its discretion, after consideration of any
recommended course of action submitted to the Board by the Chief Executive
Officer and Chief Operating Officer of the Company.
<PAGE> 1
EXHIBIT 4.4
EMPLOYMENT AGREEMENT
AGREEMENT dated as of the 29th day of August, 1997 by and between ME
ACQUISITION CORP., a Delaware corporation (the "Company"), and Roberta Ciacci
(the "Employee").
W I T N E S S E T H:
WHEREAS, the Company, a wholly owned subsidiary of Norton
McNaughton, Inc., a Delaware corporation ("Norton"), and certain other parties
(which parties include the Employee) simultaneously herewith are entering into
an Agreement of Purchase and Sale dated as of August 29, 1997 (the "Purchase
Agreement"), providing, inter alia, for the purchase by the Company of
substantially all of the assets of Miss Erika, Inc., a Delaware corporation
("Miss Erika"); and
WHEREAS, the Employee desires to continue in the employ of the
Company subsequent to the consummation of the transactions contemplated by the
Purchase Agreement; and
WHEREAS, in order to induce the Company to enter into, and to
consummate the transactions contemplated by, the Purchase Agreement, the
Employee desires to enter into this Agreement; and
WHEREAS, the Company desires to secure the employment of the
Employee with the Company subsequent to the consummation of the transactions
contemplated by the Purchase Agreement, and to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereto hereby agree as follows:
1. Employment, Term.
1.1 The Company agrees to employ the Employee, and the Employee
agrees to serve in the employ of the Company, for the term set forth in Section
1.2, in the positions and with the responsibilities, duties and authority set
forth in Section 2 and on the other terms and conditions set forth in this
Agreement.
1.2 The term of the Employee's employment under this Agreement (the
"Term") shall commence on the Closing Date (as defined in the Purchase
Agreement) and, unless sooner terminated in accordance with this Agreement,
shall expire (a) if the Company does not attain EBITDA (as defined
<PAGE> 2
2
in the Executive Bonus Plan, as defined in Section 3.2 below, except that EBITDA
for purposes of this Section 1.2 shall be determined after reduction for the
Bonus Pool (as defined in the Executive Bonus Plan) for the applicable fiscal
year) averaged for the fiscal years ending October 31, 1998 and November 6, 1999
of $5,500,000 or more (the "EBITDA 2-Year Target"), on such date (the "Notice
Date"), not earlier than November 6, 1999, on which the Chairman of the Board,
the President or the Chief Financial Officer of Norton delivers to the Employee
a written statement that the EBITDA 2-Year Target has not been achieved (the
Closing Date through the Notice Date, hereinafter the "Initial Term"); or (b) if
the Company attains the EBITDA 2-Year Target, on October 31, 2001 (November 7,
1999 through October 31, 2001, hereinafter the "Extended Term").
2. Positions, Duties. The Employee shall serve in the position of
Executive Vice President - Design of the Company. The Employee shall perform,
faithfully and diligently, such duties, and shall have such responsibilities,
appropriate to said position, as shall be assigned to her from time to time by
the Chief Executive Officer or Chief Operating Officer of the Company. The
Employee shall report to the Chief Executive Officer or the Chief Operating
Officer of the Company. The Employee shall devote her complete and undivided
attention to the performance of her duties and responsibilities hereunder during
the normal working hours of executive employees of Norton.
3. Compensation.
3.1 Salary. During the Term, in consideration of the performance by
the Employee of the services set forth in Section 2 and her observance of the
other covenants set forth herein, the Company shall pay the Employee, and the
Employee shall accept, a salary at a rate of $280,000 per annum, payable in
accordance with the standard payroll practices of the Company. The salary set
forth in this Section 3.1 shall be reviewed annually during the Term by the
Board of Directors of the Company in consultation with the Chief Executive
Officer and Chief Operating Officer of the Company and shall be subject to
upward adjustments, if any, as determined by the Board of Directors of the
Company in its discretion, in consultation with the Chief Executive Officer and
Chief Operating Officer of the Company.
3.2 Bonus. During the Term, in addition to the salary provided for
in Section 3.1, (i) the Employee shall be eligible to participate in the ME
Acquisition Corp. Bonus Plan for Senior Executives (the "Executive Bonus Plan"),
a
<PAGE> 3
3
copy of which is attached hereto as Exhibit A and the terms of which are
incorporated herein by reference, (ii) the Employee shall be allocated a
percentage of the Bonus Pool (as defined in the Executive Bonus Plan) as shall
be determined by the Board in consultation with the Chief Executive Officer and
Chief Operating Officer of the Company, subject to the terms and conditions of
the Executive Bonus Plan and this Agreement and (iii) either (a) the Employee
shall receive a cash bonus in an amount which, net of taxes payable by the
Employee in respect of such amount, shall be equal to the amount which would
have been contributed on behalf of the Employee with respect to the Miss Erika,
Inc. Profit Sharing Plan (the "Miss Erika Plan"), as in effect on the date
hereof and as administered in accordance with the past practices of Miss Erika,
which cash bonus shall be payable within 120 days following the close of each
full fiscal year of the Company ending during the Term or (b) the Employee shall
be eligible to participate in a tax-advantaged profit sharing plan of the
Company established on similar terms and conditions (including levels of
contributions) as the Miss Erika Plan.
3.3 Stock Options.
(a) Grant. On the Closing Date, the Company shall cause to be
granted to the Employee by the Board of Directors of Norton as of the Closing
Date, options to purchase an aggregate of 15,000 shares of common stock, par
value $.01 per share (the "Common Stock"), of Norton, at an exercise price per
share equal to the fair market value of the Common Stock on the Closing Date
(the "Options"). The Options shall be fully vested and exercisable on and after
the Closing Date.
(b) Term of Options. Except as provided below, the term of the
Options shall be ten years.
(i) If the Employee's employment with the Company terminates
pursuant to Section 6.1, is terminated by the Company or the Employee pursuant
to Section 6.2, is terminated by the Company pursuant to Section 6.4, is
terminated by the Employee pursuant to Section 6.6, or terminates for any other
reason (except as provided in clause (ii) below) the Options may be exercised by
the Employee (or her estate or legal representative) within one year after such
termination; and
(ii) In the event of termination of the employment of the
Employee with the Company (a) by the Company pursuant to Section 6.3 or (b) by
the Employee other
<PAGE> 4
4
than pursuant to Sections 6.1, 6.2 or 6.6, no Options shall be exercisable.
(c) Adjustments. In the event of any dividend or other
distribution (whether in the form of cash, Common Stock, other securities or
other property), recapitalization, stock split, reverse stock split,
reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase or exchange of Common Stock or other securities of Norton, issuance
of warrants or other rights to purchase Common Stock, the Board of Directors
shall, in such manner as it may deem equitable, adjust the number of shares of
Common Stock (or other securities or property) subject to the Options, the
exercise price with respect to any Options, or all of the foregoing.
(d) Registration of Shares. Norton shall, as promptly as
practicable following the commencement of the Employee's employment hereunder,
file a registration statement on Form S-8, or any successor to such Form, with
respect to the shares of Common Stock covered by the Options.
3.4 Bonus Options. During the Term, in addition to the salary
provided for in Section 3.1, the Employee shall be eligible to receive Bonus
Options (as defined in the Executive Bonus Plan) in accordance with the terms
set forth in the Executive Bonus Plan.
4. Expense Reimbursement. During the Term, (i) the Company shall
reimburse the Employee for all reasonable and necessary out-of-pocket expenses
incurred by her in connection with the performance of her duties hereunder, upon
the presentation of proper accounts therefor in accordance with Norton's
policies and (ii) the Company shall pay for the benefit of the Employee all
reasonable and necessary expenses incurred by her in the ordinary and usual
course of business and in accordance with Norton's policies (in any case, as
such policies are adopted from time to time by the Compensation Committee of
Norton).
5. Benefits.
5.1 Benefit Plans. During the Term, the Employee will be entitled to
participate in all employee benefit plans and programs offered by Norton,
subject to the provisions of such plans and programs as in effect from time to
time.
<PAGE> 5
5
5.2 Vacation. During the Term, the Employee shall be entitled to
paid vacation in accordance with Norton's policy for its executive employees.
6. Termination of Employment.
6.1 Death. In the event of the death of the Employee during the
Term, the Company shall pay to the estate or other legal representative of the
Employee (a) the salary provided for in Section 3.1 accrued to the date of the
Employee's death and not theretofore paid to the Employee and (b) any bonus
payable in accordance with the terms of the Executive Bonus Plan. Rights and
benefits of the estate or other legal representative of the Employee (a) with
respect to the Options or the Bonus Options shall be determined in accordance
with Section 3.3(b) or the Executive Bonus Plan, as applicable and (b) under the
benefit plans and programs of the Company shall be determined in accordance with
the provisions of such plans and programs. Neither the estate or other legal
representative of the Employee nor the Company shall have any further rights or
obligations under this Agreement.
6.2 Disability. If during the Term the Employee shall become
incapacitated by reason of physical or mental disability and shall be unable to
perform her normal duties hereunder for a cumulative period of six (6) months in
any period of twelve (12) consecutive months, the employment of the Employee
hereunder may be terminated by the Company or the Employee upon notice to the
other. In the event of such termination, the Company shall pay to the Employee
(a) the salary provided for in Section 3.1 accrued to the date of such
termination and not theretofore paid to the Employee and (b) any bonus payable
in accordance with the terms of the Executive Bonus Plan. Rights and benefits of
the Employee (a) with respect to the Options or the Bonus Options shall be
determined in accordance with Section 3.3(b) or the Executive Bonus Plan, as
applicable and (b) under the benefit plans and programs of the Company shall be
determined in accordance with the provisions of such plans and programs. Neither
the Employee nor the Company shall have any further rights or obligations under
this Agreement, except as provided in Sections 7, 8, 9 and 10.
6.3 Due Cause. The employment of the Employee hereunder may be
terminated by the Company at any time during the Term for Due Cause (as
hereinafter defined). In the event of such termination, the Company shall pay to
the Employee the salary provided for in Section 3.1 accrued to the date of such
termination and not theretofore paid to the Employee and no bonus. Rights and
benefits of the
<PAGE> 6
6
Employee (a) with respect to the Options or the Bonus Options shall be
determined in accordance with Section 3.3(b) or the Executive Bonus Plan, as
applicable and (b) under the benefit plans and programs of the Company shall be
determined in accordance with the provisions of such plans and programs. After
the satisfaction of any claim of the Company against the Employee incidental to
such Due Cause, neither the Employee nor the Company shall have any further
rights or obligations under this Agreement, except as provided in Sections 7, 8,
9 and 10. For purposes hereof, "Due Cause" shall mean (a) the Employee's gross
negligence or willful misconduct in bad faith in the discharge of her duties and
responsibilities to Norton, the Company and any of their respective parent,
subsidiary or affiliate corporations (collectively, the "Norton Group"), as
determined by the Board of Directors of the Company, (b) the Employee's material
and repeated failure to obey appropriate directions from the Chief Executive
Officer or Chief Operating Officer the Company, (c) any willful or purposeful
act or omission of the Employee taken or omitted in bad faith and intended to
materially injure, and which had the effect of materially injuring, the business
or business relationships of any member of the Norton Group or (d) the
Employee's conviction or other adjudication of (1) a felony or (2) any crime or
offense involving fraud; provided, however, that the Employee shall be given
written notice by a majority of the Board of Directors of the Company that it
intends to terminate the Employee's employment for Due Cause under this Section,
which written notice shall specify the act or acts upon the basis of which the
majority of the Board of Directors of the Company intends so to terminate the
Employee's employment, and the Employee shall then be given the opportunity,
within fifteen (15) days of her receipt of such notice, to have a meeting with
the Board of Directors of the Company to discuss such act or acts.
6.4 Other Termination by the Company. The Company may terminate the
Employee's employment at any time during the Term for whatever reason it deems
appropriate or without reason; provided, however, that in the event that such
termination is not pursuant to Section 6.1, 6.2, 6.3 or 6.5, the Company shall,
except as provided in Section 9(c), (a) pay to the Employee the Severance Amount
(as hereinafter defined) in equal installments on a monthly basis over the
Severance Term (as hereinafter defined), (b) pay to the Employee any bonus
payable in accordance with the terms of the Executive Bonus Plan and (c) provide
the Employee for the Severance Term with the same benefits then in effect under
Section 5. The Employee shall not be required to seek subsequent employment.
Rights and benefits of the Employee with respect to the Options or the Bonus
Options shall be
<PAGE> 7
7
determined in accordance with Section 3.3(b) or the Executive Bonus Plan, as
applicable. Neither the Employee nor the Company shall have any further rights
or obligations under this Agreement, except as provided in Sections 7, 8, 9 and
10. Any termination of this Agreement by the Company after the date hereof and
prior to the Closing Date shall be treated as a termination of employment
pursuant to this Section 6.4 as of the day following the Closing Date, provided
that the Closing (as defined in the Purchase Agreement) shall have occurred.
For purposes hereof, Severance Amount shall mean an amount equal to
the sum of (i) the annual salary then in effect under Section 3.1 and (ii) the
Average Bonus (as hereinafter defined), multiplied by the Severance Factor.
Average Bonus shall mean the average of the bonuses, if any, paid to the
Employee by the Company and/or Miss Erika in the two (2) full fiscal years of
the Company and/or Miss Erika, as applicable, prior to the date of termination
of employment of the Employee. Severance Factor shall mean a fraction, the
numerator of which is the number of days remaining in the then-current Term plus
365, and the denominator of which is 365. Severance Term shall mean the number
of days remaining in the then-current Term plus 365 days. For purposes of the
foregoing, in determining the number of days remaining in the then-current Term,
if termination under this Section 6.4 occurs during (i) the Initial Term, the
then-current Term shall be determined without regard to the Extended Term;
provided, however, that if following such termination the Company attains the
EBITDA 2-Year Target for the fiscal years ending October 31, 1998 and November
6, 1999, the then-current Term shall be determined with regard to the Extended
Term and appropriate adjustments shall be made in the then remaining monthly
installments of the Severance Amount to be paid over the extended Severance Term
to take into account such determination or (ii) the Extended Term, the
then-current Term shall be the remaining number of days in the Extended Term.
6.5 Non-Extension by the Company. If (A) the Initial Term is not
extended for the Extended Term as a result of the failure to achieve the EBITDA
2-Year Target or if (B) the Initial Term is extended for the Extended Term
pursuant to Section 1.2 and, upon the expiration of such Extended Term, the
Company shall fail to offer employment to the Employee in the same position and
with the same salary then in effect under Section 3.1 and participation in the
Executive Bonus Plan on the same terms then in effect for an additional period
of one year, in either case, the Company shall, except as provided in Section
9(c), (a) continue to
<PAGE> 8
8
pay to the Employee the salary then in effect under Section 3.1 for one year
from the date of expiration of the Extended Term, (b) pay to the Employee the
Average Bonus in equal monthly installments over such one year period (the
amounts set forth in clauses (a) and (b), the "Section 6.5 Amounts") and (c)
provide the Employee with the same Benefits then in effect under Section 5 for
such one year period. The Employee shall not be required to seek subsequent
employment. Rights and benefits of the Employee (a) with respect to the Options
or the Bonus Options shall be determined in accordance with Section 3.3(b) or
the Executive Bonus Plan, as applicable and (b) subject to this Section 6.5,
under the benefit plans and programs of the Company shall be determined in
accordance with the provisions of such plans and programs. Neither the Employee
nor the Company shall have any further rights or obligations under this
Agreement, except as provided in Sections 7, 8, 9 and 10.
6.6 Termination by the Employee with Good Reason. The Employee may
at any time terminate her employment with the Company with Good Reason (as
hereinafter defined) and may treat such as a termination of employment pursuant
to and with the effects set forth in Section 6.4. For purposes hereof, Good
Reason shall mean (i) the continued breach by the Company of a material
provision of this Agreement for a period of 30 days after written notice of such
breach by the Employee to the Company or (ii) a material and adverse diminution
in the Employee's title or scope of duties as set forth in Section 2, which
diminution shall continue for a period of 30 days after written notice thereof
by the Employee to the Company.
6.7 Termination by the Employee without Good Reason. The Employee
may at any time upon at least 120 days prior written notice to the Company
terminate her employment with the Company without Good Reason. Such termination
shall be treated as a termination of employment pursuant to, including with the
effect set forth in, Section 6.3; provided, however, that the Company hereby
waives any claim it may have against the Employee incidental to the Employee's
termination of her employment pursuant to this Section 6.7.
7. Confidential Information.
7.1 The Employee shall, during the Term and at all times thereafter,
treat as confidential and, except as required in the performance of her duties
and responsibilities under this Agreement, not disclose, publish or otherwise
make available to the public or to any
<PAGE> 9
9
individual, firm or corporation any confidential material (as hereinafter
defined), except, on a need to know basis, to the Employee's attorney,
accountant or personal advisor. The Employee agrees that all confidential
material, together with all notes and records of the Employee relating thereto,
and all copies or facsimiles thereof in the possession of the Employee, are the
exclusive property of the Company and the Employee agrees to return such
material to the Company promptly upon the termination of the Employee's
employment with the Company.
7.2 For the purposes hereof, the term "confidential material" shall
mean all information acquired by the Employee in the course of the Employee's
prior employment with Miss Erika and in the course of the Employee's employment
with the Company in any way concerning the products, projects, activities,
business or affairs of the Company or any member of the Norton Group or the
customers, suppliers or agents of the Company or any member of the Norton Group,
including, without limitation, all information concerning trade secrets and the
preparation of raw material for, manufacture of, and/or finishing processes
utilized in the production of, the products or projects of the Company or any
member of the Norton Group and/or any improvements therein, all sales and
financial information concerning the Company or any member of the Norton Group,
all customer and supplier lists, all information concerning projects in research
and development or marketing plans for any such products or projects, and all
information in any way concerning the products, projects, activities, business
or affairs of customers of the Company or any member of the Norton Group which
is furnished to the Employee by the Company or any of its employees (current or
former), agents or customers, as such; provided, however, that the term
"confidential material" shall not include information which (a) becomes
generally available to the public or the apparel industry in general other than
as a result of a disclosure by the Employee, (b) was available to the Employee
on a non-confidential basis prior to her employment with the Company or (c)
becomes available to the Employee on a non-confidential basis from a source
other than the Company or any of its agents, franchisees, creditors, suppliers,
lessors, lessees or customers provided that the Employee has no knowledge that
such source is not bound by a confidentiality agreement with the Company or any
of such agents or customers.
8. Inventions. Any and all inventions, innovations or improvements
("inventions") made, developed or created by the Employee (whether at the
request or suggestion of the Company or otherwise, whether alone or in
<PAGE> 10
10
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 Employee to the Board of Directors of the
Company and shall be the Company's exclusive property as against the Employee,
and the Employee shall promptly deliver to an appropriate representative of the
Company as designated by the Board of Directors all papers, drawings, models,
data and other material relating to any inventions made, developed or created by
her as aforesaid. The Employee 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 Employee or to vest in the Company title to such
inventions as against the Employee. The expense of securing any such patent or
copyright shall be borne by the Company.
9. Non-Competition. (a) The Employee acknowledges that the services
to be rendered by her to the Company are of a special and unique character.
(b) In consideration of her employment hereunder, the Employee
agrees, for the benefit of the Company, that she will not, during the period of
her employment with the Company and thereafter for a period (A) of one (1) year
commencing on the date of termination of her employment with the Company
pursuant to Section 6.2 or 6.3, (B) of the greater of one (1) year commencing on
the date of termination of her employment with the Company pursuant to Section
6.7 or the remainder of the then-current Term (without regard to the Extended
Term if such termination occurs during the Initial Term) or (C) during which the
Employee receives payments of the Severance Amount pursuant to Section 9(c) (in
the case of a termination under Section 6.4 or 6.6), (1) 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) one percent (1%) 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, anywhere in the United States, in any activity or business
venture which is in competition with the business then conducted by the Company
and any of its subsidiaries, (2) solicit or entice or endeavor to solicit or
entice away from any member of the Norton Group any person who was an officer,
employee, agent
<PAGE> 11
11
or consultant of any member of the Norton Group, either for her own account or
for any individual, firm or corporation, and, if applicable, whether or not such
person would commit any breach of his contract of employment by reason of
leaving the service of a member of the Norton Group, and the Employee agrees not
to employ, directly or indirectly, any person who was an officer or employee of
any member of the Norton Group 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 any member of the Norton
Group, or (3) solicit or entice or endeavor to solicit or entice away from any
member of the Norton Group any customer or prospective customer of any member of
the Norton Group, either for her own account or for any individual, firm or
corporation (the activities set forth in clauses (1), (2) and (3) above, the
"Non-Competition Activities").
(c) In the event of termination of the employment of the Employee,
pursuant to Section 6.4 or 6.6, the Company shall pay to the Employee the
Severance Amount and other benefits set forth in Section 6.4 or 6.6 in which
event the Employee shall not engage in the Non-Competition Activities for the
Severance Term; provided, however, if the Employee engages in the
Non-Competition Activities during the Severance Term, the Employee shall
immediately notify the Company that she is engaging in the Non-Competition
Activities, and the Company's obligation to pay the Severance Amount shall
immediately cease. From and after the date on which the Employee engages in the
Non-Competition Activities, the Company shall continue to pay to the Employee
the salary in effect on the date of termination of the employment of the
Employee under Section 3.1 for the remainder of the Severance Term and shall
offset any amounts earned as a result of the Employee's engaging in the
Non-Competition Activities (whether as an employee, consultant or otherwise)
against such salary continuation by the Company which becomes payable after the
first date on which the Employee engages in the Non-Competition Activities.
(d) Notwithstanding the foregoing, the provisions of this Section 9
shall not be effective on or after November 7, 1999.
10. Equitable Relief, Etc.
10.1 In the event of a breach or threatened breach by the Employee
of any of the provisions of Sections 7, 8 or 9, the Employee hereby consents and
agrees that the Company shall be entitled to an injunction or similar equitable
relief from any court of competent jurisdiction restraining
<PAGE> 12
12
the Employee from committing or continuing any such breach or threatened breach
or granting specific performance of any act required to be performed by the
Employee under any of such provisions, without the necessity of showing any
actual damage or that money damages would not afford an adequate remedy and
without the necessity of posting any bond or other security. Nothing herein
shall be construed as prohibiting the Company from pursuing any other remedies
at law or in equity which it may have with respect to any such breach or
threatened breach.
10.2 The Company and the Employee understand and agree that in any
lawsuit or other proceeding between any of them with respect to Sections 7, 8 or
9 hereof, the prevailing party in such lawsuit or proceeding shall be entitled
to recover from the other party in such lawsuit or proceeding, and such other
party hereby agrees to pay such prevailing party, for all costs and expenses,
including attorneys' fees, incurred by such prevailing party in the defense,
prosecution or investigation of the matters which are the subject of such
lawsuit or proceeding.
11. Successors and Assigns.
11.1 Assignment by the Company. The Company shall require any
successors (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform if no such
succession had taken place. As used in this Section, the "Company" shall mean
the Company as hereinbefore defined and any successor to its business and/or
assets as aforesaid which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law and this Agreement shall be
binding upon, and inure to the benefit of, the Company, as so defined.
11.2 Assignment by the Employee. The Employee may not assign this
Agreement or any part thereof without the prior written consent of a majority of
the Board of Directors of the Company (other than the Employee if she is a
member of such Board at the time); provided, however, that nothing herein shall
preclude one or more beneficiaries of the Employee from receiving any amount
that may be payable following the occurrence of her legal incompetency or her
death and shall not preclude the legal representative of her estate from
receiving such amount or from assigning any right hereunder to the person or
persons entitled thereto under her will or, in the case of intestacy, to the
person or persons entitled thereto under the laws of intestacy
<PAGE> 13
13
applicable to her estate. The term "beneficiaries", as used in this Agreement,
shall mean a beneficiary or beneficiaries so designated to receive any such
amount or, if no beneficiary has been so designated, the legal representative of
the Employee (in the event of her incompetency) or the Employee's estate.
12. Governing Law. This Agreement shall be deemed a contract made
under, and for all purposes shall be construed in accordance with, the laws of
the State of New York applicable to contracts to be performed entirely within
such State.
13. Entire Agreement. This Agreement contains all the understandings
and representations between the parties hereto pertaining to the subject matter
hereof. This Agreement supersedes all understandings and agreements, whether
oral or in writing, if any, previously entered into by the Company with the
Employee in any way relating to the employment of the Employee by the Company,
including without limitation, the Purchase Agreement, all of which agreements
and understandings are hereby terminated and all rights and entitlements
thereunder are hereby waived and released.
14. Amendment, Modification, Waiver. No provision of this Agreement
may be amended or modified unless such amendment or modification is agreed to in
writing and signed by the Employee and by a representative of the Company (other
than the Employee) who have been duly authorized by the Board of Directors of
the Company to do so (other than the Employee if she is a member of such Board
at the time). Except as otherwise specifically provided in this Agreement, no
waiver by either party hereto of any breach by the other party hereto of any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of a similar or dissimilar provision or condition at
the same or any prior or subsequent time, nor shall the failure of or delay by
either party hereto in exercising any right, power or privilege hereunder
operate as a waiver thereof to preclude any other or further exercise thereof or
the exercise of any other such right, power or privilege.
15. Notices. Any notice to be given hereunder shall be in writing
and delivered personally or sent by certified mail, postage prepaid, return
receipt requested, addressed to the party concerned at the address indicated
below or at such other address as such party may subsequently designate by like
notice:
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14
If to the Company:
c/o Norton McNaughton, Inc.
463 Seventh Avenue
New York, New York 10018
Attention: Chief Executive Officer
If to the Employee:
Roberta Ciacci
1272 East 29th Street
Brooklyn, New York 11201
16. Arbitration. Any controversy or claim arising out of or relating
to this Agreement, or any breach thereof, shall, except as provided in Section
10, be settled by binding arbitration in accordance with the rules of the
American Arbitration Association then in effect and judgment upon such award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitration shall be held in New York, New York. The arbitration
award shall include an award of attorneys' fees and costs to the prevailing
party as determined by the arbitrator.
17. Severability. Should any provision of this Agreement be held by
a court or arbitration panel of competent jurisdiction to be enforceable only if
modified, such holding shall not affect the validity of the remainder of this
Agreement, the balance of which shall continue to be binding upon the parties
hereto with any such modification to become a part hereof and treated as though
originally set forth in this Agreement. The parties further agree that any such
court or arbitration panel is expressly authorized to modify any such
unenforceable provision of this Agreement in lieu of severing such unenforceable
provision from this Agreement in its entirety, whether by rewriting the
offending provision, deleting any or all of the offending provision, adding
additional language to this Agreement, or by making such other modifications as
it deems warranted to carry out the intent and agreement of the parties as
embodied herein to the maximum extent permitted by law. The parties expressly
agree that this Agreement as so modified by the court or arbitration panel shall
be binding upon and enforceable against each of them. In any event, should one
or more of the provisions of this Agreement be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions hereof, and if such provision or
provisions are not modified as provided above, this Agreement shall be construed
as if such invalid, illegal or unenforceable provisions had never been set forth
herein.
<PAGE> 15
15
18. Authority. The Company represents and warrants to the Employee
that the execution and delivery of this Agreement by the Company and the
performance by the Company of its covenants and agreements hereunder have been
duly authorized by all necessary corporate action and that this Agreement has
been duly executed and delivered on behalf of the Company.
19. Withholding. Anything to the contrary notwithstanding, all
payments required to be made by the Company hereunder to the Employee or her
beneficiaries, including her estate, shall be subject to withholding of such
amounts relating to taxes as the Company may reasonably determine it should
withhold pursuant to any applicable law or regulation. In lieu of withholding
such amounts, in whole or in part, the Company, may, in its sole discretion,
accept other provision for payment of taxes as permitted by law, provided it is
satisfied in its sole discretion that all requirements of law affecting its
responsibilities to withhold such taxes have been satisfied.
20. Subsidiaries, etc. The Employee shall be deemed to resign as an
officer and director of the Company or of any parent, subsidiary or affiliate of
the Company upon termination of her employment with the Company for any or no
reason.
21. Survivorship. The respective rights and obligations of the
Employee and the Company hereunder shall survive any termination of this
Agreement to the extent necessary to the intended preservation of such rights
and obligations.
22. Titles. Titles of the sections of this Agreement are intended
solely for convenience and no provision of this Agreement is to be construed by
reference to the title of any section.
23. Counterparts. This Agreement may be executed in two or more
counterpart copies, each of which shall be deemed to be an original and all of
which taken together shall be deemed one document.
* * *
<PAGE> 16
16
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
ME ACQUISITION CORP.
By /s/ Sanford Greenberg
----------------------------------
Title: Chairman of the Board
EMPLOYEE:
/s/ Roberta Ciacci
----------------------------------
Roberta Ciacci
<PAGE> 17
EXHIBIT A
ME ACQUISITION CORP. BONUS PLAN
FOR SENIOR EXECUTIVES
1. Establishment. This Plan, which shall be known as the ME
Acquisition Corp. Bonus Plan for Senior Executives (the "Bonus Plan"), is hereby
established by ME Acquisition Corp. (the "Company") to provide incentives for
senior executives providing services to the Company and to aid the Company in
retaining such senior executives upon whose efforts the Company's success and
future growth depends.
2. Administration. The Bonus Plan shall be administered by the Board
of Directors of the Company (the "Board"). For purposes of administration, the
Board, subject to the terms of the Bonus Plan, shall have plenary authority to
establish such rules and regulations, to make such determinations and
interpretations, and to take such other administrative actions as it deems
necessary or advisable.
3. Participants. The participants in the Plan shall be Stuart
Bregman, Howard Zwilling, Roberta Ciacci, Elizabeth Moser, Kenneth Tse and
Samuel Glaser, in each case for so long as such individual is employed by the
Company pursuant to an Employment Agreement (as defined in the Agreement, as
defined in Section 4 below) (each, a "Participant" and collectively, the
"Participants"); provided, however, that nothing contained herein shall be
construed as creating a contract or guarantee of employment for any Participant.
4. Bonus Pool.
4.1 For each of the fiscal years of the Company, provided that the
EBITDA Target (as hereinafter defined) for such fiscal year shall have been
attained, the Company shall establish a bonus pool in an amount equal to a
percentage of EBITDA (as hereinafter defined) for such fiscal year as determined
by the Board in consultation with Stuart Bregman and Howard Zwilling for so long
as they are employed by the Company (the "Bonus Pool"); provided, however, that
the Bonus Pool for any fiscal year shall not exceed that amount which, when
deducted from EBITDA, would result in EBITDA for such fiscal year net of the
Bonus Pool of less than $5,500,000.
4.2 Notwithstanding the foregoing, in the event that the EBITDA
Target is not achieved in any fiscal year,
<PAGE> 18
2
but EBITDA (calculated as otherwise provided herein) for such fiscal year and
for the subsequent fiscal year equals or exceeds $11,000,000, then the Company
shall establish a bonus pool in an amount equal to a percentage to be determined
by the Board in consultation with Stuart Bregman and Howard Zwilling for so long
as they are employed by the Company of combined EBITDA for such two fiscal
years, which percentage of the combined EBITDA shall for purposes hereof
constitute the Bonus Pool for such two fiscal years; provided, however, that the
Bonus Pool for such two fiscal years shall not exceed that amount which, when
deducted from the combined EBITDA, would result in the combined EBITDA for such
two fiscal years net of the Bonus Pool of less than $11,000,000.
4.3 As used herein: (i) EBITDA shall have the meaning set forth in
the Agreement of Purchase and Sale dated as of September 3, 1997 (the
"Agreement"), by and among the Company and the other parties thereto (which
parties include certain of the Participants) for the appropriate fiscal year,
without reduction for the Bonus Pool for such fiscal year contemplated by this
Bonus Plan or for any expense attributable to the Bonus Options; and (ii) EBITDA
Target shall mean, for each fiscal year, achievement of EBITDA of not less than
$5,500,000. In the event of any change in the fiscal year of the Company,
appropriate adjustments shall be made to the EBITDA Target in order to carry out
the intent and principles of the Bonus Plan.
5. Allocation of Bonus Pool. The Bonus Pool shall be allocated as
specified in each Participant's Employment Agreement.
6. Payment of Bonus. The bonus payable to each Participant (or his
or her estate or other legal representative) for any fiscal year of the Company
pursuant to this Bonus Plan shall be paid by the Company within 120 days
following the close of such fiscal year.
7. Termination of Employment.
7.1 In the event of termination of the employment of a Participant
pursuant to Section 6.1, 6.2, 6.4, 6.5 or 6.6 of his or her Employment Agreement
prior to the end of any fiscal year of the Company, such Participant (or his or
her estate or other legal representative) shall be entitled to a bonus for such
fiscal year only as provided in this Section 7.1. The bonus to which the
Participant (or his estate or other legal representative) shall be entitled for
such fiscal year (which shall be payable at the time other Participants are paid
their portion of the Bonus Pool for
<PAGE> 19
3
such fiscal year) shall be (i) in the event that the Bonus Pool is calculated
pursuant to Section 4.1 of this Bonus Plan, an amount equal to the product of
(x) the bonus, if any, which would have been payable to the Participant pursuant
to Sections 4.1 and 5 of this Bonus Plan for such fiscal year if the employment
of the Participant had not so terminated, multiplied by (y) a fraction, the
numerator of which is the number of days from the beginning of such fiscal year
to the date of termination, and the denominator of which is 365; or (ii) in the
event that the Bonus Pool is calculated pursuant to Section 4.2 of this Bonus
Plan, an amount equal to the product of (x) the bonus, if any, which would have
been payable to the Participant pursuant to Sections 4.2 and 5 of this Bonus
Plan for such two fiscal years if the employment of the Participant had not so
terminated, multiplied by (y) a fraction, the numerator of which is the number
of days from the beginning of the first of such two fiscal years to the date of
termination, and the denominator of which is 730.
7.2 In the event of termination of the employment of a Participant
pursuant to Section 6.3 of his or her Employment Agreement, such Participant
shall not be entitled to a bonus for the fiscal year of the Company in which
such termination occurs.
7.3 In the event of termination of the employment of a Participant
by the Participant for any reason, other than pursuant to Section 6.1, 6.2 or
6.6 of his or her Employment Agreement, such Participant shall not be entitled
to a bonus for the fiscal year of the Company in which such termination occurs.
7.4 No Participant shall be entitled to a bonus for any fiscal year
of the Company subsequent to the fiscal year in which his or her termination of
employment (for any or no reason) occurs.
7.5 If any portion of the Bonus Pool shall not be allocated or paid
by reason of this Section 7, such portion shall be retained by the Company or
paid to other Participants or to new participants, all as determined by the
Board in its discretion, after consideration of any recommended course of action
submitted to the Board by the Chief Executive Officer and Chief Operating
Officer of the Company.
8. Bonus Options.
8.1 Grant. For each $500,000 of EBITDA in excess of $6,000,000
attained by the Company in each of the fiscal
<PAGE> 20
4
years of the Company beginning with the fiscal year ending October 31, 1998, the
Company shall cause to be granted to the Participants by the Board of Directors
of Norton McNaughton, Inc., a Delaware corporation ("Norton"), options (the
"Bonus Options") to purchase an aggregate of 28,000 (or such lesser number as
shall be necessary to allocated Bonus Options in accordance with Section 8.2
below) shares of common stock, par value $.01 per share, of Norton (the "Common
Stock"). The Bonus Options shall be granted, if at all, as of the last day of
the applicable fiscal year and shall have an exercise price per share equal to
the fair market value of the Common Stock on the date of grant.
8.2 Allocation of Bonus Options. The Bonus Options shall be
allocated 10,000 to Bregman, 10,000 to Zwilling, 3,000 to Ciacci, 2,000 to
Moser, 2,000 to Tse and 1,000 to Glazer.
8.3 Exercise. The Bonus Options shall be fully vested and
exercisable on and after the date of grant.
8.4 Term of Options. Except as provided below, the term of the Bonus
Options shall be ten years.
(i) If a Participant's employment with the Company terminates
pursuant to Section 6.1 of his or her Employment Agreement, is terminated by the
Company or by the Participant pursuant to Section 6.2 of his or her Employment
Agreement, is terminated by the Company pursuant to Section 6.4 of his or her
Employment Agreement, is terminated by the Employee pursuant to Section 6.6 of
his or her Employment Agreement, or terminated for any other reason (except as
provided in clause (ii) below), the Bonus Options may be exercised by the
Participant (or his estate or legal representative) within one (1) year after
such termination; and
(ii) In the event of termination of the employment of a
Participant (a) by the Company pursuant to Section 6.3 of his or her Employment
Agreement or (b) by the Participant other than pursuant to Sections 6.1, 6.2 or
6.6 of his or her Employment Agreement, no Bonus Options shall be exercisable.
8.5 Adjustments. In the event of any dividend or other distribution
(whether in the form of cash, Common Stock, other securities or other property),
recapitalization, stock split, reverse stock split, reorganization, merger,
consolidation, split-up, spin-off, combination, repurchase or exchange of Common
Stock or other securities of Norton, issuance of warrants or other rights
<PAGE> 21
5
to purchase Common Stock, the Board of Directors shall, in such manner as it may
deem equitable, adjust the number of shares of Common Stock (or other securities
or property) subject to the Bonus Options, the exercise price with respect to
any Bonus Options, or both.
8.6 No Participant shall be entitled to Bonus Options for any fiscal
year of the Company subsequent to the fiscal year in which his or her
termination of employment (for any or no reason) occurs.
8.7 In the event of termination of the employment of a Participant
prior to the end of a fiscal year, pursuant to Sections 6.1, 6.2, 6.4, 6.5 or
6.6 of his or her Employment Agreement, such Participant (or his or her estate
or other legal representative) shall be granted such Bonus Options for such
fiscal year only as provided in this Section 8.7. The number of Bonus Options to
which the Participant (or his or her estate or legal representative) shall be
entitled for such fiscal year (which shall be granted at the time that the Bonus
Options are granted to the other Participants) shall be equal to the product of
(x) the number of Bonus Options, if any, which would have been granted to the
Participant pursuant to Sections 8.1 and 8.2 of this Bonus Plan for such fiscal
year if the employment of the Participant had not so terminated, multiplied by
(y) a fraction, the numerator of which is the number of days from the beginning
of such fiscal year to the date of termination, and the denominator of which is
365. The terms and conditions of any such Bonus Options shall be as otherwise
provided in this Section 8.
8.8 If any portion of the Bonus Options shall not be allocated or
granted by reason of this Section 8, such Bonus Options shall be retained by the
Company or granted to other Participants or to new participants, all as
determined by the Board in its discretion, after consideration of any
recommended course of action submitted to the Board by the Chief Executive
Officer and Chief Operating Officer of the Company.
<PAGE> 1
EXHIBIT 4.5
EMPLOYMENT AGREEMENT
AGREEMENT dated as of the 29th day of August, 1997 by and between ME
ACQUISITION CORP., a Delaware corporation (the "Company"), and Samuel Glaser
(the "Employee").
W I T N E S S E T H:
WHEREAS, the Company, a wholly owned subsidiary of Norton
McNaughton, Inc., a Delaware corporation ("Norton"), and certain other parties
(which parties include the Employee) simultaneously herewith are entering into
an Agreement of Purchase and Sale dated as of August 29, 1997 (the "Purchase
Agreement"), providing, inter alia, for the purchase by the Company of
substantially all of the assets of Miss Erika, Inc., a Delaware corporation
("Miss Erika"); and
WHEREAS, the Employee desires to continue in the employ of the
Company subsequent to the consummation of the transactions contemplated by the
Purchase Agreement; and
WHEREAS, in order to induce the Company to enter into, and to
consummate the transactions contemplated by, the Purchase Agreement, the
Employee desires to enter into this Agreement; and
WHEREAS, the Company desires to secure the employment of the
Employee with the Company subsequent to the consummation of the transactions
contemplated by the Purchase Agreement, and to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereto hereby agree as follows:
1. Employment, Term.
1.1 The Company agrees to employ the Employee, and the Employee
agrees to serve in the employ of the Company, for the term set forth in Section
1.2, in the positions and with the responsibilities, duties and authority set
forth in Section 2 and on the other terms and conditions set forth in this
Agreement.
1.2 The term of the Employee's employment under this Agreement (the
"Term") shall commence on the Closing Date (as defined in the Purchase
Agreement) and shall terminate on November 6, 1999, unless sooner terminated in
accordance with this Agreement. Notwithstanding the foregoing, the Company may,
in its discretion, extend the
<PAGE> 2
2
Term for an additional six (6) month period upon written notice to the Employee
at least thirty (30) days prior to expiration of the Term.
2. Positions, Duties. The Employee shall serve in the position of
Executive Vice President - Finance of the Company. The Employee shall perform,
faithfully and diligently, such duties, and shall have such responsibilities,
appropriate to said position, as shall be assigned to him from time to time by
the Chief Executive Officer or Chief Operating Officer of the Company. The
Employee shall report to the Chief Executive Officer or Chief Operating Officer
of the Company. The Employee shall devote his complete and undivided attention
to the performance of his duties and responsibilities hereunder during the
normal working hours of executive employees of Norton.
3. Compensation.
3.1 Salary. During the Term, in consideration of the performance by
the Employee of the services set forth in Section 2 and his observance of the
other covenants set forth herein, the Company shall pay the Employee, and the
Employee shall accept, a salary at a rate of $115,000 per annum, payable in
accordance with the standard payroll practices of the Company. The salary set
forth in this Section 3.1 shall be reviewed annually during the Term by the
Board of Directors of the Company in consultation with the Chief Executive
Officer and Chief Operating Officer of the Company and shall be subject to
upward adjustments, if any, as determined by the Board of Directors of the
Company in its discretion, in consultation with the Chief Executive Officer and
Chief Operating Officer of the Company.
3.2 Bonus. During the Term, in addition to the salary provided for
in Section 3.1, (i) the Employee shall be eligible to participate in the ME
Acquisition Corp. Bonus Plan for Senior Executives (the "Executive Bonus Plan"),
a copy of which is attached hereto as Exhibit A and the terms of which are
incorporated herein by reference and (ii) the Employee shall be allocated a
percentage of the Bonus Pool (as defined in the Executive Bonus Plan) as shall
be determined by the Board in consultation with the Chief Executive Officer and
Chief Operating Officer of the Company, subject to the terms and conditions of
the Executive Bonus Plan and this Agreement.
<PAGE> 3
3
3.3 Stock Options.
(a) Grant. On the Closing Date, the Company shall cause to be
granted to the Employee by the Board of Directors of Norton as of the Closing
Date, options to purchase an aggregate of 5,000 shares of common stock, par
value $.01 per share (the "Common Stock"), of Norton, at an exercise price per
share equal to the fair market value of the Common Stock on the Closing Date
(the "Options"). The Options shall be fully vested and exercisable on and after
the Closing Date.
(b) Term of Options. Except as provided below, the term of the
Options shall be ten years.
(i) If the Employee's employment with the Company terminates
pursuant to Section 6.1, is terminated by the Company or the Employee pursuant
to Section 6.2, is terminated by the Company pursuant to Section 6.4, is
terminated by the Employee pursuant to Section 6.5, or terminates for any other
reason (except as provided in clause (ii) below) the Options may be exercised by
the Employee (or his estate or legal representative) within one year after such
termination; and
(ii) In the event of termination of the employment of the
Employee with the Company (a) by the Company pursuant to Section 6.3 or (b) by
the Employee other than pursuant to Sections 6.1, 6.2 or 6.5, no Options shall
be exercisable.
(c) Adjustments. In the event of any dividend or other
distribution (whether in the form of cash, Common Stock, other securities or
other property), recapitalization, stock split, reverse stock split,
reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase or exchange of Common Stock or other securities of Norton, issuance
of warrants or other rights to purchase Common Stock, the Board of Directors
shall, in such manner as it may deem equitable, adjust the number of shares of
Common Stock (or other securities or property) subject to the Options, the
exercise price with respect to any Options, or all of the foregoing.
(d) Registration of Shares. Norton shall, as promptly as
practicable following the commencement of the Employee's employment hereunder,
file a registration statement on Form S-8, or any successor to such Form, with
respect to the shares of Common Stock covered by the Options.
<PAGE> 4
4
3.4 Bonus Options. During the Term, in addition to the salary
provided for in Section 3.1, the Employee shall be eligible to receive Bonus
Options (as defined in the Executive Bonus Plan) in accordance with the terms
set forth in the Executive Bonus Plan.
4. Expense Reimbursement. During the Term, (i) the Company shall
reimburse the Employee for all reasonable and necessary out-of-pocket expenses
incurred by him in connection with the performance of his duties hereunder, upon
the presentation of proper accounts therefor in accordance with Norton's
policies and (ii) the Company shall pay for the benefit of the Employee all
reasonable and necessary expenses incurred by him in the ordinary and usual
course of business and in accordance with Norton's policies (in any case, as
such policies are adopted from time to time by the Compensation Committee of
Norton).
5. Benefits.
5.1 Benefit Plans. During the Term, the Employee will be entitled to
participate in all employee benefit plans and programs offered by Norton,
subject to the provisions of such plans and programs as in effect from time to
time.
5.2 Vacation. During the Term, the Employee shall be entitled to
paid vacation in accordance with Norton's policy for its executive employees.
6. Termination of Employment.
6.1 Death. In the event of the death of the Employee during the
Term, the Company shall pay to the estate or other legal representative of the
Employee (a) the salary provided for in Section 3.1 accrued to the date of the
Employee's death and not theretofore paid to the Employee and (b) any bonus
payable in accordance with the terms of the Executive Bonus Plan. Rights and
benefits of the estate or other legal representative of the Employee (a) with
respect to the Options or the Bonus Options shall be determined in accordance
with Section 3.3(b) or the Executive Bonus Plan, as applicable and (b) under the
benefit plans and programs of the Company shall be determined in accordance with
the provisions of such plans and programs. Neither the estate or other legal
representative of the Employee nor the Company shall have any further rights or
obligations under this Agreement.
6.2 Disability. If during the Term the Employee shall become
incapacitated by reason of physical or mental
<PAGE> 5
5
disability and shall be unable to perform his normal duties hereunder for a
cumulative period of six (6) months in any period of twelve (12) consecutive
months, the employment of the Employee hereunder may be terminated by the
Company or the Employee upon notice to the other. In the event of such
termination, the Company shall pay to the Employee (a) the salary provided for
in Section 3.1 accrued to the date of such termination and not theretofore paid
to the Employee and (b) any bonus payable in accordance with the terms of the
Executive Bonus Plan. Rights and benefits of the Employee (a) with respect to
the Options or the Bonus Options shall be determined in accordance with Section
3.3(b) or the Executive Bonus Plan, as applicable and (b) under the benefit
plans and programs of the Company shall be determined in accordance with the
provisions of such plans and programs. Neither the Employee nor the Company
shall have any further rights or obligations under this Agreement, except as
provided in Sections 7, 8 and 10.
6.3 Due Cause. The employment of the Employee hereunder may be
terminated by the Company at any time during the Term for Due Cause (as
hereinafter defined). In the event of such termination, the Company shall pay to
the Employee the salary provided for in Section 3.1 accrued to the date of such
termination and not theretofore paid to the Employee and no bonus. Rights and
benefits of the Employee (a) with respect to the Options or the Bonus Options
shall be determined in accordance with Section 3.3(b) or the Executive Bonus
Plan, as applicable and (b) under the benefit plans and programs of the Company
shall be determined in accordance with the provisions of such plans and
programs. After the satisfaction of any claim of the Company against the
Employee incidental to such Due Cause, neither the Employee nor the Company
shall have any further rights or obligations under this Agreement, except as
provided in Sections 7, 8 and 10. For purposes hereof, "Due Cause" shall mean
(a) the Employee's gross negligence or willful misconduct in bad faith in the
discharge of his duties and responsibilities to Norton, the Company and any of
their respective parent, subsidiary or affiliate corporations (collectively, the
"Norton Group"), as determined by the Board of Directors of the Company, (b) the
Employee's material and repeated failure to obey appropriate directions from the
Chief Executive Officer or Chief Operating Officer of the Company, (c) any
willful or purposeful act or omission of the Employee taken or omitted in bad
faith and intended to materially injure, and which had the effect of materially
injuring, the business or business relationships of any member of the Norton
Group or (d) the Employee's conviction or other adjudication of (1) a felony or
(2) any crime or offense involving fraud;
<PAGE> 6
6
provided, however, that the Employee shall be given written notice by a majority
of the Board of Directors of the Company that it intends to terminate the
Employee's employment for Due Cause under this Section, which written notice
shall specify the act or acts upon the basis of which the majority of the Board
of Directors of the Company intends so to terminate the Employee's employment,
and the Employee shall then be given the opportunity, within fifteen (15) days
of his receipt of such notice, to have a meeting with the Board of Directors of
the Company to discuss such act or acts.
6.4 Other Termination by the Company. The Company may terminate the
Employee's employment at any time during the Term for whatever reason it deems
appropriate or without reason; provided, however, that in the event that such
termination is not pursuant to Section 6.1, 6.2 or 6.3, the Company shall (a)
continue to pay to the Employee the salary provided for in Section 3.1 for the
remainder of the then-current Term and for one year thereafter and (b) pay to
the Employee any bonus payable in accordance with the terms of the Executive
Bonus Plan. The Employee shall not be required to seek subsequent employment;
provided, however, that if the Employee obtains subsequent employment, the
Employee shall inform the Company that he obtained such employment, and the
Company shall offset any amounts earned from such subsequent employment (whether
as an employee, a consultant or otherwise) against such salary continuation by
the Company which becomes payable after the date the Employee obtains subsequent
employment. If, upon expiration of the Term, the Company shall fail to offer
employment to the Employee in the same position and with the same salary then in
effect under Section 3.1 and participation in the Executive Bonus Plan on the
same terms then in effect for an additional period of six (6) months pursuant to
Section 1.2, the Company shall continue to pay to the Employee the salary then
in effect under Section 3.1 for six (6) months from the date of expiration of
the Term. Rights and benefits of the Employee (a) with respect to the Options or
the Bonus Options shall be determined in accordance with Section 3.3(b) or the
Executive Bonus Plan, as applicable and (b) under the benefit plans and programs
of the Company shall be determined in accordance with the provisions of such
plans and programs. Neither the Employee nor the Company shall have any further
rights or obligations under this Agreement, except as provided in Sections 7, 8
and 10. Any termination of this Agreement by the Company after the date hereof
and prior to the Closing Date shall be treated as a termination of employment
pursuant to this Section 6.4 as of the day following the Closing Date, provided
that the Closing (as defined in the Purchase Agreement) shall have occurred.
<PAGE> 7
7
6.5 Termination by the Employee with Good Reason. The Employee may
at any time terminate his employment with the Company with Good Reason (as
hereinafter defined) and may treat such as a termination of employment pursuant
to and with the effects set forth in Section 6.4. For purposes hereof, Good
Reason shall mean (i) the continued breach by the Company of a material
provision of this Agreement for a period of 30 days after written notice of such
breach by the Employee to the Company or (ii) a material and adverse diminution
in the Employee's title or scope of duties as set forth in Section 2, which
diminution shall continue for a period of 30 days after written notice thereof
by the Employee to the Company.
6.6 Termination by the Employee without Good Reason. The Employee
may at any time upon at least 120 days prior written notice to the Company
terminate his employment with the Company without Good Reason. Such termination
shall be treated as a termination of employment pursuant to, including with the
effects set forth in, Section 6.3; provided, however, that the Company hereby
waives any claim it may have against the Employee incidental to the Employee's
termination of his employment pursuant to this Section 6.6.
7. Confidential Information.
7.1 The Employee shall, during the Term and at all times thereafter,
treat as confidential and, except as required in the performance of his duties
and responsibilities under this Agreement, not disclose, publish or otherwise
make available to the public or to any individual, firm or corporation any
confidential material (as hereinafter defined), except, on a need to know basis,
to the Employee's attorney, accountant or personal advisor. The Employee agrees
that all confidential material, together with all notes and records of the
Employee relating thereto, and all copies or facsimiles thereof in the
possession of the Employee, are the exclusive property of the Company and the
Employee agrees to return such material to the Company promptly upon the
termination of the Employee's employment with the Company.
7.2 For the purposes hereof, the term "confidential material" shall
mean all information acquired by the Employee in the course of the Employee's
prior employment with Miss Erika and in the course of the Employee's employment
with the Company in any way concerning the products, projects, activities,
business or affairs of the Company or any member of the Norton Group or the
customers, suppliers or agents of the Company or any member
<PAGE> 8
8
of the Norton Group, including, without limitation, all information concerning
trade secrets and the preparation of raw material for, manufacture of, and/or
finishing processes utilized in the production of, the products or projects of
the Company or any member of the Norton Group and/or any improvements therein,
all sales and financial information concerning the Company or any member of the
Norton Group, all customer and supplier lists, all information concerning
projects in research and development or marketing plans for any such products or
projects, and all information in any way concerning the products, projects,
activities, business or affairs of customers of the Company or any member of the
Norton Group which is furnished to the Employee by the Company or any of its
employees (current or former), agents or customers, as such; provided, however,
that the term "confidential material" shall not include information which (a)
becomes generally available to the public or the apparel industry in general
other than as a result of a disclosure by the Employee, (b) was available to the
Employee on a non-confidential basis prior to his employment with the Company or
(c) becomes available to the Employee on a non-confidential basis from a source
other than the Company or any of its agents, franchisees, creditors, suppliers,
lessors, lessees or customers provided that the Employee has no knowledge that
such source is not bound by a confidentiality agreement with the Company or any
of such agents or customers.
8. Inventions. Any and all inventions, innovations or improvements
("inventions") made, developed or created by the Employee (whether at the
request or suggestion of the Company 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 Employee to the Board of Directors of the
Company and shall be the Company's exclusive property as against the Employee,
and the Employee shall promptly deliver to an appropriate representative of the
Company as designated by the Board of Directors all papers, drawings, models,
data and other material relating to any inventions made, developed or created by
him as aforesaid. The Employee 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 Employee or to vest in the Company title to such
inventions
<PAGE> 9
9
as against the Employee. The expense of securing any such patent or copyright
shall be borne by the Company.
9. Equitable Relief, Etc.
9.1 In the event of a breach or threatened breach by the Employee of
any of the provisions of Sections 7 or 8, the Employee hereby consents and
agrees that the Company shall be entitled to an injunction or similar equitable
relief from any court of competent jurisdiction restraining the Employee from
committing or continuing any such breach or threatened breach or granting
specific performance of any act required to be performed by the Employee under
any of such provisions, without the necessity of showing any actual damage or
that money damages would not afford an adequate remedy and without the necessity
of posting any bond or other security. Nothing herein shall be construed as
prohibiting the Company from pursuing any other remedies at law or in equity
which it may have with respect to any such breach or threatened breach.
9.2 The Company and the Employee understand and agree that in any
lawsuit or other proceeding between any of them with respect to Sections 7 or 8
hereof, the prevailing party in such lawsuit or proceeding shall be entitled to
recover from the other party in such lawsuit or proceeding, and such other party
hereby agrees to pay such prevailing party, for all costs and expenses,
including attorneys' fees, incurred by such prevailing party in the defense,
prosecution or investigation of the matters which are the subject of such
lawsuit or proceeding.
10. Successors and Assigns.
10.1 Assignment by the Company. The Company shall require any
successors (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform if no such
succession had taken place. As used in this Section, the "Company" shall mean
the Company as hereinbefore defined and any successor to its business and/or
assets as aforesaid which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law and this Agreement shall be
binding upon, and inure to the benefit of, the Company, as so defined.
10.2 Assignment by the Employee. The Employee may not assign this
Agreement or any part thereof without the prior written consent of a majority of
the Board of
<PAGE> 10
10
Directors of the Company (other than the Employee if he is a member of such
Board at the time); provided, however, that nothing herein shall preclude one or
more beneficiaries of the Employee from receiving any amount that may be payable
following the occurrence of his legal incompetency or his death and shall not
preclude the legal representative of his estate from receiving such amount or
from assigning any right hereunder to the person or persons entitled thereto
under his will or, in the case of intestacy, to the person or persons entitled
thereto under the laws of intestacy applicable to his estate. The term
"beneficiaries", as used in this Agreement, shall mean a beneficiary or
beneficiaries so designated to receive any such amount or, if no beneficiary has
been so designated, the legal representative of the Employee (in the event of
his incompetency) or the Employee's estate.
11. Governing Law. This Agreement shall be deemed a contract made
under, and for all purposes shall be construed in accordance with, the laws of
the State of New York applicable to contracts to be performed entirely within
such State.
12. Entire Agreement. This Agreement contains all the understandings
and representations between the parties hereto pertaining to the subject matter
hereof. This Agreement supersedes all understandings and agreements, whether
oral or in writing, if any, previously entered into by the Company with the
Employee in any way relating to the employment of the Employee by the Company,
including without limitation, the Purchase Agreement, all of which agreements
and understandings are hereby terminated and all rights and entitlements
thereunder are hereby waived and released.
13. Amendment, Modification, Waiver. No provision of this Agreement
may be amended or modified unless such amendment or modification is agreed to in
writing and signed by the Employee and by a representative of the Company (other
than the Employee) who have been duly authorized by the Board of Directors of
the Company to do so (other than the Employee if he is a member of such Board at
the time). Except as otherwise specifically provided in this Agreement, no
waiver by either party hereto of any breach by the other party hereto of any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of a similar or dissimilar provision or condition at
the same or any prior or subsequent time, nor shall the failure of or delay by
either party hereto in exercising any right, power or privilege hereunder
operate as a waiver thereof to preclude any other
<PAGE> 11
11
or further exercise thereof or the exercise of any other such right, power or
privilege.
14. Notices. Any notice to be given hereunder shall be in writing
and delivered personally or sent by certified mail, postage prepaid, return
receipt requested, addressed to the party concerned at the address indicated
below or at such other address as such party may subsequently designate by like
notice:
If to the Company:
c/o Norton McNaughton, Inc.
463 Seventh Avenue
New York, New York 10018
Attention: Chief Executive Officer
If to the Employee:
Samuel Glaser
98 Cooper Avenue
Montclair, New Jersey 07043
15. Arbitration. Any controversy or claim arising out of or relating
to this Agreement, or any breach thereof, shall, except as provided in Section
9, be settled by binding arbitration in accordance with the rules of the
American Arbitration Association then in effect and judgment upon such award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitration shall be held in New York, New York. The arbitration
award shall include an award of attorneys' fees and costs to the prevailing
party as determined by the arbitrator.
16. Severability. Should any provision of this Agreement be held by
a court or arbitration panel of competent jurisdiction to be enforceable only if
modified, such holding shall not affect the validity of the remainder of this
Agreement, the balance of which shall continue to be binding upon the parties
hereto with any such modification to become a part hereof and treated as though
originally set forth in this Agreement. The parties further agree that any such
court or arbitration panel is expressly authorized to modify any such
unenforceable provision of this Agreement in lieu of severing such unenforceable
provision from this Agreement in its entirety, whether by rewriting the
offending provision, deleting any or all of the offending provision, adding
additional language to this Agreement, or by making such other modifications as
it deems warranted to carry out the intent and agreement of the parties as
embodied herein to the maximum extent permitted by law. The
<PAGE> 12
12
parties expressly agree that this Agreement as so modified by the court or
arbitration panel shall be binding upon and enforceable against each of them. In
any event, should one or more of the provisions of this Agreement be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions hereof, and if such
provision or provisions are not modified as provided above, this Agreement shall
be construed as if such invalid, illegal or unenforceable provisions had never
been set forth herein.
17. Authority. The Company represents and warrants to the Employee
that the execution and delivery of this Agreement by the Company and the
performance by the Company of its covenants and agreements hereunder have been
duly authorized by all necessary corporate action and that this Agreement has
been duly executed and delivered on behalf of the Company.
18. Withholding. Anything to the contrary notwithstanding, all
payments required to be made by the Company hereunder to the Employee or his
beneficiaries, including his estate, shall be subject to withholding of such
amounts relating to taxes as the Company may reasonably determine it should
withhold pursuant to any applicable law or regulation. In lieu of withholding
such amounts, in whole or in part, the Company, may, in its sole discretion,
accept other provision for payment of taxes as permitted by law, provided it is
satisfied in its sole discretion that all requirements of law affecting its
responsibilities to withhold such taxes have been satisfied.
19. Subsidiaries, etc. The Employee shall be deemed to resign as an
officer and director of the Company or of any parent, subsidiary or affiliate of
the Company upon termination of his employment with the Company for any or no
reason.
20. Survivorship. The respective rights and obligations of the
Employee and the Company hereunder shall survive any termination of this
Agreement to the extent necessary to the intended preservation of such rights
and obligations.
21. Titles. Titles of the sections of this Agreement are intended
solely for convenience and no provision of this Agreement is to be construed by
reference to the title of any section.
22. Counterparts. This Agreement may be executed in two or more
counterpart copies, each of which shall be
<PAGE> 13
13
deemed to be an original and all of which taken together shall be deemed one
document.
* * *
<PAGE> 14
14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
ME ACQUISITION CORP.
By /s/ Sanford Greenberg
-----------------------------------
Title: Chairman of the Board
EMPLOYEE:
/s/ Samuel Glaser
-----------------------------------
Name: Samuel Glaser
<PAGE> 15
EXHIBIT A
ME ACQUISITION CORP. BONUS PLAN
FOR SENIOR EXECUTIVES
1. Establishment. This Plan, which shall be known as the ME
Acquisition Corp. Bonus Plan for Senior Executives (the "Bonus Plan"), is hereby
established by ME Acquisition Corp. (the "Company") to provide incentives for
senior executives providing services to the Company and to aid the Company in
retaining such senior executives upon whose efforts the Company's success and
future growth depends.
2. Administration. The Bonus Plan shall be administered by the Board
of Directors of the Company (the "Board"). For purposes of administration, the
Board, subject to the terms of the Bonus Plan, shall have plenary authority to
establish such rules and regulations, to make such determinations and
interpretations, and to take such other administrative actions as it deems
necessary or advisable.
3. Participants. The participants in the Plan shall be Stuart
Bregman, Howard Zwilling, Roberta Ciacci, Elizabeth Moser, Kenneth Tse and
Samuel Glaser, in each case for so long as such individual is employed by the
Company pursuant to an Employment Agreement (as defined in the Agreement, as
defined in Section 4 below) (each, a "Participant" and collectively, the
"Participants"); provided, however, that nothing contained herein shall be
construed as creating a contract or guarantee of employment for any Participant.
4. Bonus Pool.
4.1 For each of the fiscal years of the Company, provided that the
EBITDA Target (as hereinafter defined) for such fiscal year shall have been
attained, the Company shall establish a bonus pool in an amount equal to a
percentage of EBITDA (as hereinafter defined) for such fiscal year as determined
by the Board in consultation with Stuart Bregman and Howard Zwilling for so long
as they are employed by the Company (the "Bonus Pool"); provided, however, that
the Bonus Pool for any fiscal year shall not exceed that amount which, when
deducted from EBITDA, would result in EBITDA for such fiscal year net of the
Bonus Pool of less than $5,500,000.
4.2 Notwithstanding the foregoing, in the event that the EBITDA
Target is not achieved in any fiscal year,
<PAGE> 16
2
but EBITDA (calculated as otherwise provided herein) for such fiscal year and
for the subsequent fiscal year equals or exceeds $11,000,000, then the Company
shall establish a bonus pool in an amount equal to a percentage to be determined
by the Board in consultation with Stuart Bregman and Howard Zwilling for so long
as they are employed by the Company of combined EBITDA for such two fiscal
years, which percentage of the combined EBITDA shall for purposes hereof
constitute the Bonus Pool for such two fiscal years; provided, however, that the
Bonus Pool for such two fiscal years shall not exceed that amount which, when
deducted from the combined EBITDA, would result in the combined EBITDA for such
two fiscal years net of the Bonus Pool of less than $11,000,000.
4.3 As used herein: (i) EBITDA shall have the meaning set forth in
the Agreement of Purchase and Sale dated as of September 3, 1997 (the
"Agreement"), by and among the Company and the other parties thereto (which
parties include certain of the Participants) for the appropriate fiscal year,
without reduction for the Bonus Pool for such fiscal year contemplated by this
Bonus Plan or for any expense attributable to the Bonus Options; and (ii) EBITDA
Target shall mean, for each fiscal year, achievement of EBITDA of not less than
$5,500,000. In the event of any change in the fiscal year of the Company,
appropriate adjustments shall be made to the EBITDA Target in order to carry out
the intent and principles of the Bonus Plan.
5. Allocation of Bonus Pool. The Bonus Pool shall be allocated as
specified in each Participant's Employment Agreement.
6. Payment of Bonus. The bonus payable to each Participant (or his
or her estate or other legal representative) for any fiscal year of the Company
pursuant to this Bonus Plan shall be paid by the Company within 120 days
following the close of such fiscal year.
7. Termination of Employment.
7.1 In the event of termination of the employment of a Participant
pursuant to Section 6.1, 6.2, 6.4, 6.5 or 6.6 of his or her Employment Agreement
prior to the end of any fiscal year of the Company, such Participant (or his or
her estate or other legal representative) shall be entitled to a bonus for such
fiscal year only as provided in this Section 7.1. The bonus to which the
Participant (or his estate or other legal representative) shall be entitled for
such fiscal year (which shall be payable at the time other Participants are paid
their portion of the Bonus Pool for
<PAGE> 17
3
such fiscal year) shall be (i) in the event that the Bonus Pool is calculated
pursuant to Section 4.1 of this Bonus Plan, an amount equal to the product of
(x) the bonus, if any, which would have been payable to the Participant pursuant
to Sections 4.1 and 5 of this Bonus Plan for such fiscal year if the employment
of the Participant had not so terminated, multiplied by (y) a fraction, the
numerator of which is the number of days from the beginning of such fiscal year
to the date of termination, and the denominator of which is 365; or (ii) in the
event that the Bonus Pool is calculated pursuant to Section 4.2 of this Bonus
Plan, an amount equal to the product of (x) the bonus, if any, which would have
been payable to the Participant pursuant to Sections 4.2 and 5 of this Bonus
Plan for such two fiscal years if the employment of the Participant had not so
terminated, multiplied by (y) a fraction, the numerator of which is the number
of days from the beginning of the first of such two fiscal years to the date of
termination, and the denominator of which is 730.
7.2 In the event of termination of the employment of a Participant
pursuant to Section 6.3 of his or her Employment Agreement, such Participant
shall not be entitled to a bonus for the fiscal year of the Company in which
such termination occurs.
7.3 In the event of termination of the employment of a Participant
by the Participant for any reason, other than pursuant to Section 6.1, 6.2 or
6.6 of his or her Employment Agreement, such Participant shall not be entitled
to a bonus for the fiscal year of the Company in which such termination occurs.
7.4 No Participant shall be entitled to a bonus for any fiscal year
of the Company subsequent to the fiscal year in which his or her termination of
employment (for any or no reason) occurs.
7.5 If any portion of the Bonus Pool shall not be allocated or paid
by reason of this Section 7, such portion shall be retained by the Company or
paid to other Participants or to new participants, all as determined by the
Board in its discretion, after consideration of any recommended course of action
submitted to the Board by the Chief Executive Officer and Chief Operating
Officer of the Company.
8. Bonus Options.
8.1 Grant. For each $500,000 of EBITDA in excess of $6,000,000
attained by the Company in each of the fiscal
<PAGE> 18
4
years of the Company beginning with the fiscal year ending October 31, 1998, the
Company shall cause to be granted to the Participants by the Board of Directors
of Norton McNaughton, Inc., a Delaware corporation ("Norton"), options (the
"Bonus Options") to purchase an aggregate of 28,000 (or such lesser number as
shall be necessary to allocated Bonus Options in accordance with Section 8.2
below) shares of common stock, par value $.01 per share, of Norton (the "Common
Stock"). The Bonus Options shall be granted, if at all, as of the last day of
the applicable fiscal year and shall have an exercise price per share equal to
the fair market value of the Common Stock on the date of grant.
8.2 Allocation of Bonus Options. The Bonus Options shall be
allocated 10,000 to Bregman, 10,000 to Zwilling, 3,000 to Ciacci, 2,000 to
Moser, 2,000 to Tse and 1,000 to Glazer.
8.3 Exercise. The Bonus Options shall be fully vested and
exercisable on and after the date of grant.
8.4 Term of Options. Except as provided below, the term of the Bonus
Options shall be ten years.
(i) If a Participant's employment with the Company terminates
pursuant to Section 6.1 of his or her Employment Agreement, is terminated by the
Company or by the Participant pursuant to Section 6.2 of his or her Employment
Agreement, is terminated by the Company pursuant to Section 6.4 of his or her
Employment Agreement, is terminated by the Employee pursuant to Section 6.6 of
his or her Employment Agreement, or terminated for any other reason (except as
provided in clause (ii) below), the Bonus Options may be exercised by the
Participant (or his estate or legal representative) within one (1) year after
such termination; and
(ii) In the event of termination of the employment of a
Participant (a) by the Company pursuant to Section 6.3 of his or her Employment
Agreement or (b) by the Participant other than pursuant to Sections 6.1, 6.2 or
6.6 of his or her Employment Agreement, no Bonus Options shall be exercisable.
8.5 Adjustments. In the event of any dividend or other distribution
(whether in the form of cash, Common Stock, other securities or other property),
recapitalization, stock split, reverse stock split, reorganization, merger,
consolidation, split-up, spin-off, combination, repurchase or exchange of Common
Stock or other securities of Norton, issuance of warrants or other rights
<PAGE> 19
5
to purchase Common Stock, the Board of Directors shall, in such manner as it may
deem equitable, adjust the number of shares of Common Stock (or other securities
or property) subject to the Bonus Options, the exercise price with respect to
any Bonus Options, or both.
8.6 No Participant shall be entitled to Bonus Options for any fiscal
year of the Company subsequent to the fiscal year in which his or her
termination of employment (for any or no reason) occurs.
8.7 In the event of termination of the employment of a Participant
prior to the end of a fiscal year, pursuant to Sections 6.1, 6.2, 6.4, 6.5 or
6.6 of his or her Employment Agreement, such Participant (or his or her estate
or other legal representative) shall be granted such Bonus Options for such
fiscal year only as provided in this Section 8.7. The number of Bonus Options to
which the Participant (or his or her estate or legal representative) shall be
entitled for such fiscal year (which shall be granted at the time that the Bonus
Options are granted to the other Participants) shall be equal to the product of
(x) the number of Bonus Options, if any, which would have been granted to the
Participant pursuant to Sections 8.1 and 8.2 of this Bonus Plan for such fiscal
year if the employment of the Participant had not so terminated, multiplied by
(y) a fraction, the numerator of which is the number of days from the beginning
of such fiscal year to the date of termination, and the denominator of which is
365. The terms and conditions of any such Bonus Options shall be as otherwise
provided in this Section 8.
8.8 If any portion of the Bonus Options shall not be allocated or
granted by reason of this Section 8, such Bonus Options shall be retained by the
Company or granted to other Participants or to new participants, all as
determined by the Board in its discretion, after consideration of any
recommended course of action submitted to the Board by the Chief Executive
Officer and Chief Operating Officer of the Company.
<PAGE> 1
EXHIBIT 4.6
EMPLOYMENT AGREEMENT
AGREEMENT dated as of the 29th day of August, 1997 by and between ME
ACQUISITION CORP., a Delaware corporation (the "Company"), and Elizabeth Moser
(the "Employee").
W I T N E S S E T H:
WHEREAS, the Company, a wholly owned subsidiary of Norton
McNaughton, Inc., a Delaware corporation ("Norton"), and certain other parties
(which parties include the Employee) simultaneously herewith are entering into
an Agreement of Purchase and Sale dated as of August 29, 1997 (the "Purchase
Agreement"), providing, inter alia, for the purchase by the Company of
substantially all of the assets of Miss Erika, Inc., a Delaware corporation
("Miss Erika"); and
WHEREAS, the Employee desires to continue in the employ of the
Company subsequent to the consummation of the transactions contemplated by the
Purchase Agreement; and
WHEREAS, in order to induce the Company to enter into, and to
consummate the transactions contemplated by, the Purchase Agreement, the
Employee desires to enter into this Agreement; and
WHEREAS, the Company desires to secure the employment of the
Employee with the Company subsequent to the consummation of the transactions
contemplated by the Purchase Agreement, and to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereto hereby agree as follows:
1. Employment, Term.
1.1 The Company agrees to employ the Employee, and the Employee
agrees to serve in the employ of the Company, for the term set forth in Section
1.2, in the positions and with the responsibilities, duties and authority set
forth in Section 2 and on the other terms and conditions set forth in this
Agreement.
1.2 The term of the Employee's employment under this Agreement (the
"Term") shall commence on the Closing Date (as defined in the Purchase
Agreement) and, unless sooner terminated in accordance with this Agreement,
shall expire (a) if the Company does not attain EBITDA (as defined
<PAGE> 2
2
in the Executive Bonus Plan, as defined in Section 3.2 below, except that EBITDA
for purposes of this Section 1.2 shall be determined after reduction for the
Bonus Pool (as defined in the Executive Bonus Plan) for the applicable fiscal
year) averaged for the fiscal years ending October 31, 1998 and November 6, 1999
of $5,500,000 or more (the "EBITDA 2-Year Target"), on such date (the "Notice
Date"), not earlier than November 6, 1999, on which the Chairman of the Board,
the President or the Chief Financial Officer of Norton delivers to the Employee
a written statement that the EBITDA 2-Year Target has not been achieved (the
Closing Date through the Notice Date, hereinafter the "Initial Term"); or (b) if
the Company attains the EBITDA 2-Year Target, on October 31, 2001 (November 7,
1999 through October 31, 2001, hereinafter the "Extended Term").
2. Positions, Duties. The Employee shall serve in the position of
Executive Vice President - Woven Production of the Company. The Employee shall
perform, faithfully and diligently, such duties, and shall have such
responsibilities, appropriate to said position, as shall be assigned to her from
time to time by the Chief Executive Officer or Chief Operating Officer of the
Company. The Employee shall report to the Chief Executive Officer or Chief
Operating Officer of the Company. The Employee shall devote her complete and
undivided attention to the performance of her duties and responsibilities
hereunder during the normal working hours of executive employees of Norton.
3. Compensation.
3.1 Salary. During the Term, in consideration of the performance by
the Employee of the services set forth in Section 2 and her observance of the
other covenants set forth herein, the Company shall pay the Employee, and the
Employee shall accept, a salary at a rate of $266,000 per annum, payable in
accordance with the standard payroll practices of the Company. The salary set
forth in this Section 3.1 shall be reviewed annually during the Term by the
Board of Directors of the Company in consultation with the Chief Executive
Officer and Chief Operating Officer of the Company and shall be subject to
upward adjustments, if any, as determined by the Board of Directors of the
Company in its discretion, in consultation with the Chief Executive Officer and
Chief Operating Officer of the Company.
3.2 Bonus. During the Term, in addition to the salary provided for
in Section 3.1, (i) the Employee shall be eligible to participate in the ME
Acquisition Corp. Bonus Plan for Senior Executives (the "Executive Bonus Plan"),
a
<PAGE> 3
3
copy of which is attached hereto as Exhibit A and the terms of which are
incorporated herein by reference, (ii) the Employee shall be allocated a
percentage of the Bonus Pool (as defined in the Executive Bonus Plan) as shall
be determined by the Board in consultation with the Chief Executive Officer and
Chief Operating Officer of the Company, subject to the terms and conditions of
the Executive Bonus Plan and this Agreement and (iii) either (a) the Employee
shall receive a cash bonus in an amount which, net of taxes payable by the
Employee in respect of such amount, shall be equal to the amount which would
have been contributed on behalf of the Employee with respect to the Miss Erika,
Inc. Profit Sharing Plan (the "Miss Erika Plan"), as in effect on the date
hereof and as administered in accordance with the past practices of Miss Erika,
which cash bonus shall be payable within 120 days following the close of each
full fiscal year of the Company ending during the Term or (b) the Employee shall
be eligible to participate in a tax-advantaged profit sharing plan of the
Company established on similar terms and conditions (including levels of
contributions) as the Miss Erika Plan.
3.3 Stock Options.
(a) Grant. On the Closing Date, the Company shall cause to be
granted to the Employee by the Board of Directors of Norton as of the Closing
Date, options to purchase an aggregate of 10,000 shares of common stock, par
value $.01 per share (the "Common Stock"), of Norton, at an exercise price per
share equal to the fair market value of the Common Stock on the Closing Date
(the "Options"). The Options shall be fully vested and exercisable on and after
the Closing Date.
(b) Term of Options. Except as provided below, the term of the
Options shall be ten years.
(i) If the Employee's employment with the Company terminates
pursuant to Section 6.1, is terminated by the Company or the Employee pursuant
to Section 6.2, is terminated by the Company pursuant to Section 6.4, is
terminated by the Employee pursuant to Section 6.6, or terminates for any other
reason (except as provided in clause (ii) below) the Options may be exercised by
the Employee (or her estate or legal representative) within one year after such
termination; and
(ii) In the event of termination of the employment of the
Employee with the Company (a) by the Company pursuant to Section 6.3 or (b) by
the Employee other
<PAGE> 4
4
than pursuant to Sections 6.1, 6.2 or 6.6, no Options shall be exercisable.
(c) Adjustments. In the event of any dividend or other
distribution (whether in the form of cash, Common Stock, other securities or
other property), recapitalization, stock split, reverse stock split,
reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase or exchange of Common Stock or other securities of Norton, issuance
of warrants or other rights to purchase Common Stock, the Board of Directors
shall, in such manner as it may deem equitable, adjust the number of shares of
Common Stock (or other securities or property) subject to the Options, the
exercise price with respect to any Options, or all of the foregoing.
(d) Registration of Shares. Norton shall, as promptly as
practicable following the commencement of the Employee's employment hereunder,
file a registration statement on Form S-8, or any successor to such Form, with
respect to the shares of Common Stock covered by the Options.
3.4 Bonus Options. During the Term, in addition to the salary
provided for in Section 3.1, the Employee shall be eligible to receive Bonus
Options (as defined in the Executive Bonus Plan) in accordance with the terms
set forth in the Executive Bonus Plan.
4. Expense Reimbursement. During the Term, (i) the Company shall
reimburse the Employee for all reasonable and necessary out-of-pocket expenses
incurred by her in connection with the performance of her duties hereunder, upon
the presentation of proper accounts therefor in accordance with Norton's
policies and (ii) the Company shall pay for the benefit of the Employee all
reasonable and necessary expenses incurred by her in the ordinary and usual
course of business and in accordance with Norton's policies (in any case, as
such policies are adopted from time to time by the Compensation Committee of
Norton).
5. Benefits.
5.1 Benefit Plans. During the Term, the Employee will be entitled to
participate in all employee benefit plans and programs offered by Norton,
subject to the provisions of such plans and programs as in effect from time to
time.
<PAGE> 5
5
5.2 Vacation. During the Term, the Employee shall be entitled to
paid vacation in accordance with Norton's policy for its executive employees.
6. Termination of Employment.
6.1 Death. In the event of the death of the Employee during the
Term, the Company shall pay to the estate or other legal representative of the
Employee (a) the salary provided for in Section 3.1 accrued to the date of the
Employee's death and not theretofore paid to the Employee and (b) any bonus
payable in accordance with the terms of the Executive Bonus Plan. Rights and
benefits of the estate or other legal representative of the Employee (a) with
respect to the Options or the Bonus Options shall be determined in accordance
with Section 3.3(b) or the Executive Bonus Plan, as applicable and (b) under the
benefit plans and programs of the Company shall be determined in accordance with
the provisions of such plans and programs. Neither the estate or other legal
representative of the Employee nor the Company shall have any further rights or
obligations under this Agreement.
6.2 Disability. If during the Term the Employee shall become
incapacitated by reason of physical or mental disability and shall be unable to
perform her normal duties hereunder for a cumulative period of six (6) months in
any period of twelve (12) consecutive months, the employment of the Employee
hereunder may be terminated by the Company or the Employee upon notice to the
other. In the event of such termination, the Company shall pay to the Employee
(a) the salary provided for in Section 3.1 accrued to the date of such
termination and not theretofore paid to the Employee and (b) any bonus payable
in accordance with the terms of the Executive Bonus Plan. Rights and benefits of
the Employee (a) with respect to the Options or the Bonus Options shall be
determined in accordance with Section 3.3(b) or the Executive Bonus Plan, as
applicable and (b) under the benefit plans and programs of the Company shall be
determined in accordance with the provisions of such plans and programs. Neither
the Employee nor the Company shall have any further rights or obligations under
this Agreement, except as provided in Sections 7, 8, 9 and 10.
6.3 Due Cause. The employment of the Employee hereunder may be
terminated by the Company at any time during the Term for Due Cause (as
hereinafter defined). In the event of such termination, the Company shall pay to
the Employee the salary provided for in Section 3.1 accrued to the date of such
termination and not theretofore paid to the Employee and no bonus. Rights and
benefits of the
<PAGE> 6
6
Employee (a) with respect to the Options or the Bonus Options shall be
determined in accordance with Section 3.3(b) or the Executive Bonus Plan, as
applicable and (b) under the benefit plans and programs of the Company shall be
determined in accordance with the provisions of such plans and programs. After
the satisfaction of any claim of the Company against the Employee incidental to
such Due Cause, neither the Employee nor the Company shall have any further
rights or obligations under this Agreement, except as provided in Sections 7, 8,
9 and 10. For purposes hereof, "Due Cause" shall mean (a) the Employee's gross
negligence or willful misconduct in bad faith in the discharge of her duties and
responsibilities to Norton, the Company and any of their respective parent,
subsidiary or affiliate corporations (collectively, the "Norton Group"), as
determined by the Board of Directors of the Company, (b) the Employee's material
and repeated failure to obey appropriate directions from the Chief Executive
Officer or Chief Operating Officer of the Company, (c) any willful or purposeful
act or omission of the Employee taken or omitted in bad faith and intended to
materially injure, and which had the effect of materially injuring, the business
or business relationships of any member of the Norton Group or (d) the
Employee's conviction or other adjudication of (1) a felony or (2) any crime or
offense involving fraud; provided, however, that the Employee shall be given
written notice by a majority of the Board of Directors of the Company that it
intends to terminate the Employee's employment for Due Cause under this Section,
which written notice shall specify the act or acts upon the basis of which the
majority of the Board of Directors of the Company intends so to terminate the
Employee's employment, and the Employee shall then be given the opportunity,
within fifteen (15) days of her receipt of such notice, to have a meeting with
the Board of Directors of the Company to discuss such act or acts.
6.4 Other Termination by the Company. The Company may terminate the
Employee's employment at any time during the Term for whatever reason it deems
appropriate or without reason; provided, however, that in the event that such
termination is not pursuant to Section 6.1, 6.2, 6.3 or 6.5, the Company shall,
except as provided in Section 9(c), (a) pay to the Employee the Severance Amount
(as hereinafter defined) in equal installments on a monthly basis over the
Severance Term (as hereinafter defined), (b) pay to the Employee any bonus
payable in accordance with the terms of the Executive Bonus Plan and (c) provide
the Employee for the Severance Term with the same benefits then in effect under
Section 5. The Employee shall not be required to seek subsequent employment.
Rights and benefits of the Employee
<PAGE> 7
7
with respect to the Options or the Bonus Options shall be determined in
accordance with Section 3.3(b) or the Executive Bonus Plan, as applicable.
Neither the Employee nor the Company shall have any further rights or
obligations under this Agreement, except as provided in Sections 7, 8, 9 and 10.
Any termination of this Agreement by the Company after the date hereof and prior
to the Closing Date shall be treated as a termination of employment pursuant to
this Section 6.4 as of the day following the Closing Date, provided that the
Closing (as defined in the Purchase Agreement) shall have occurred.
For purposes hereof, Severance Amount shall mean an amount equal to
the sum of (i) the annual salary then in effect under Section 3.1 and (ii) the
Average Bonus (as hereinafter defined), multiplied by the Severance Factor.
Average Bonus shall mean the average of the bonuses, if any, paid to the
Employee by the Company and/or Miss Erika in the two (2) full fiscal years of
the Company and/or Miss Erika, as applicable, prior to the date of termination
of employment of the Employee. Severance Factor shall mean a fraction, the
numerator of which is the number of days remaining in the then-current Term plus
365, and the denominator of which is 365. Severance Term shall mean the number
of days remaining in the then-current Term plus 365 days. For purposes of the
foregoing, in determining the number of days remaining in the then-current Term,
if termination under this Section 6.4 occurs during (i) the Initial Term, the
then-current Term shall be determined without regard to the Extended Term;
provided, however, that if following such termination the Company attains the
EBITDA 2-Year Target for the fiscal years ending October 31, 1998 and November
6, 1999, the then-current Term shall be determined with regard to the Extended
Term and appropriate adjustments shall be made in the then remaining monthly
installments of the Severance Amount to be paid over the extended Severance Term
to take into account such determination or (ii) the Extended Term, the
then-current Term shall be the remaining number of days in the Extended Term.
6.5 Non-Extension by the Company. If (A) the Initial Term is not
extended for the Extended Term as a result of the failure to achieve the EBITDA
2-Year Target or if (B) the Initial Term is extended for the Extended Term
pursuant to Section 1.2 and, upon the expiration of such Extended Term, the
Company shall fail to offer employment to the Employee in the same position and
with the same salary then in effect under Section 3.1 and participation in the
Executive Bonus Plan on the same terms then in effect for an additional period
of one year, in either case, the Company
<PAGE> 8
8
shall, except as provided in Section 9(c), (a) continue to pay to the Employee
the salary then in effect under Section 3.1 for one year from the date of
expiration of the Extended Term, (b) pay to the Employee the Average Bonus in
equal monthly installments over such one year period (the amounts set forth in
clauses (a) and (b), the "Section 6.5 Amounts") and (c) provide the Employee
with the same Benefits then in effect under Section 5 for such one year period.
The Employee shall not be required to seek subsequent employment. Rights and
benefits of the Employee (a) with respect to the Options or the Bonus Options
shall be determined in accordance with Section 3.3(b) or the Executive Bonus
Plan, as applicable and (b) subject to this Section 6.5, under the benefit plans
and programs of the Company shall be determined in accordance with the
provisions of such plans and programs. Neither the Employee nor the Company
shall have any further rights or obligations under this Agreement, except as
provided in Sections 7, 8, 9 and 10.
6.6 Termination by the Employee with Good Reason. The Employee may
at any time terminate her employment with the Company with Good Reason (as
hereinafter defined) and may treat such as a termination of employment pursuant
to and with the effects set forth in Section 6.4. For purposes hereof, Good
Reason shall mean (i) the continued breach by the Company of a material
provision of this Agreement for a period of 30 days after written notice of such
breach by the Employee to the Company or (ii) a material and adverse diminution
in the Employee's title or scope of duties as set forth in Section 2, which
diminution shall continue for a period of 30 days after written notice thereof
by the Employee to the Company.
6.7 Termination by the Employee without Good Reason. The Employee
may at any time upon at least 120 days prior written notice to the Company
terminate her employment with the Company without Good Reason. Such termination
shall be treated as a termination of employment pursuant to, including with the
effect set forth in, Section 6.3; provided, however, that the Company hereby
waives any claim it may have against the Employee incidental to the Employee's
termination of her employment pursuant to this Section 6.7.
7. Confidential Information.
7.1 The Employee shall, during the Term and at all times thereafter,
treat as confidential and, except as required in the performance of her duties
and responsibilities under this Agreement, not disclose, publish
<PAGE> 9
9
or otherwise make available to the public or to any individual, firm or
corporation any confidential material (as hereinafter defined), except, on a
need to know basis, to the Employee's attorney, accountant or personal advisor.
The Employee agrees that all confidential material, together with all notes and
records of the Employee relating thereto, and all copies or facsimiles thereof
in the possession of the Employee, are the exclusive property of the Company and
the Employee agrees to return such material to the Company promptly upon the
termination of the Employee's employment with the Company.
7.2 For the purposes hereof, the term "confidential material" shall
mean all information acquired by the Employee in the course of the Employee's
prior employment with Miss Erika and in the course of the Employee's employment
with the Company in any way concerning the products, projects, activities,
business or affairs of the Company or any member of the Norton Group or the
customers, suppliers or agents of the Company or any member of the Norton Group,
including, without limitation, all information concerning trade secrets and the
preparation of raw material for, manufacture of, and/or finishing processes
utilized in the production of, the products or projects of the Company or any
member of the Norton Group and/or any improvements therein, all sales and
financial information concerning the Company or any member of the Norton Group,
all customer and supplier lists, all information concerning projects in research
and development or marketing plans for any such products or projects, and all
information in any way concerning the products, projects, activities, business
or affairs of customers of the Company or any member of the Norton Group which
is furnished to the Employee by the Company or any of its employees (current or
former), agents or customers, as such; provided, however, that the term
"confidential material" shall not include information which (a) becomes
generally available to the public or the apparel industry in general other than
as a result of a disclosure by the Employee, (b) was available to the Employee
on a non-confidential basis prior to her employment with the Company or (c)
becomes available to the Employee on a non-confidential basis from a source
other than the Company or any of its agents, franchisees, creditors, suppliers,
lessors, lessees or customers provided that the Employee has no knowledge that
such source is not bound by a confidentiality agreement with the Company or any
of such agents or customers.
8. Inventions. Any and all inventions, innovations or improvements
("inventions") made, developed or created by the Employee (whether at the
request or
<PAGE> 10
10
suggestion of the Company 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 Employee to the Board of Directors of the Company and shall be
the Company's exclusive property as against the Employee, and the Employee shall
promptly deliver to an appropriate representative of the Company as designated
by the Board of Directors all papers, drawings, models, data and other material
relating to any inventions made, developed or created by her as aforesaid. The
Employee 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
Employee or to vest in the Company title to such inventions as against the
Employee. The expense of securing any such patent or copyright shall be borne by
the Company.
9. Non-Competition. (a) The Employee acknowledges that the services
to be rendered by her to the Company are of a special and unique character.
(b) In consideration of her employment hereunder, the Employee
agrees, for the benefit of the Company, that she will not, during the period of
her employment with the Company and thereafter for a period (A) of one (1) year
commencing on the date of termination of her employment with the Company
pursuant to Section 6.2 or 6.3, (B) of the greater of one (1) year commencing on
the date of termination of her employment with the Company pursuant to Section
6.7 or the remainder of the then-current Term (without regard to the Extended
Term if such termination occurs during the Initial Term) or (C) during which the
Employee receives payments of the Severance Amount pursuant to Section 9(c) (in
the case of a termination under Section 6.4 or 6.6), (1) 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) one percent (1%) 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, anywhere in the United States, in any activity or business
venture which is in competition with the business then conducted by the Company
and any of its subsidiaries, (2) solicit or entice or endeavor to solicit or
entice away from any member of the
<PAGE> 11
11
Norton Group any person who was an officer, employee, agent or consultant of any
member of the Norton Group, either for her own account or for any individual,
firm or corporation, and, if applicable, whether or not such person would commit
any breach of his contract of employment by reason of leaving the service of a
member of the Norton Group, and the Employee agrees not to employ, directly or
indirectly, any person who was an officer or employee of any member of the
Norton Group 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 any member of the Norton Group, or (3) solicit or
entice or endeavor to solicit or entice away from any member of the Norton Group
any customer or prospective customer of any member of the Norton Group, either
for her own account or for any individual, firm or corporation (the activities
set forth in clauses (1), (2) and (3) above, the "Non-Competition Activities").
(c) In the event of termination of the employment of the Employee
pursuant to Section 6.4 or 6.6, the Company shall pay to the Employee the
Severance Amount and other benefits set forth in Section 6.4 or 6.6 in which
event the Employee shall not engage in the Non-Competition Activities for the
Severance Term; provided, however, if the Employee engages in the
Non-Competition Activities during the Severance Term, the Employee shall
immediately notify the Company that she is engaging in the Non-Competition
Activities, and the Company's obligation to pay the Severance Amount shall
immediately cease. From and after the date on which the Employee engages in the
Non-Competition Activities, the Company shall continue to pay to the Employee
the salary in effect on the date of termination of the employment of the
Employee under Section 3.1 for the remainder of the Severance Term and shall
offset any amounts earned as a result of the Employee's engaging in the
Non-Competition Activities (whether as an employee, consultant or otherwise)
against such salary continuation by the Company which becomes payable after the
first date on which the Employee engages in the Non-Competition Activities.
(d) Notwithstanding the foregoing, the provisions of this Section 9
not be effective on or after November 7, 1999.
10. Equitable Relief, Etc.
10.1 In the event of a breach or threatened breach by the Employee
of any of the provisions of Sections 7, 8 or 9, the Employee hereby consents and
agrees that the Company shall be entitled to an injunction or similar equitable
<PAGE> 12
12
relief from any court of competent jurisdiction restraining the Employee from
committing or continuing any such breach or threatened breach or granting
specific performance of any act required to be performed by the Employee under
any of such provisions, without the necessity of showing any actual damage or
that money damages would not afford an adequate remedy and without the necessity
of posting any bond or other security. Nothing herein shall be construed as
prohibiting the Company from pursuing any other remedies at law or in equity
which it may have with respect to any such breach or threatened breach.
10.2 The Company and the Employee understand and agree that in any
lawsuit or other proceeding between any of them with respect to Sections 7, 8 or
9 hereof, the prevailing party in such lawsuit or proceeding shall be entitled
to recover from the other party in such lawsuit or proceeding, and such other
party hereby agrees to pay such prevailing party, for all costs and expenses,
including attorneys' fees, incurred by such prevailing party in the defense,
prosecution or investigation of the matters which are the subject of such
lawsuit or proceeding.
11. Successors and Assigns.
11.1 Assignment by the Company. The Company shall require any
successors (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform if no such
succession had taken place. As used in this Section, the "Company" shall mean
the Company as hereinbefore defined and any successor to its business and/or
assets as aforesaid which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law and this Agreement shall be
binding upon, and inure to the benefit of, the Company, as so defined.
11.2 Assignment by the Employee. The Employee may not assign this
Agreement or any part thereof without the prior written consent of a majority of
the Board of Directors of the Company (other than the Employee if she is a
member of such Board at the time); provided, however, that nothing herein shall
preclude one or more beneficiaries of the Employee from receiving any amount
that may be payable following the occurrence of her legal incompetency or her
death and shall not preclude the legal representative of her estate from
receiving such amount or from assigning any right hereunder to the person or
persons entitled thereto under her will or, in the case of intestacy, to the
person
<PAGE> 13
13
or persons entitled thereto under the laws of intestacy applicable to her
estate. The term "beneficiaries", as used in this Agreement, shall mean a
beneficiary or beneficiaries so designated to receive any such amount or, if no
beneficiary has been so designated, the legal representative of the Employee (in
the event of her incompetency) or the Employee's estate.
12. Governing Law. This Agreement shall be deemed a contract made
under, and for all purposes shall be construed in accordance with, the laws of
the State of New York applicable to contracts to be performed entirely within
such State.
13. Entire Agreement. This Agreement contains all the understandings
and representations between the parties hereto pertaining to the subject matter
hereof. This Agreement supersedes all understandings and agreements, whether
oral or in writing, if any, previously entered into by the Company with the
Employee in any way relating to the employment of the Employee by the Company,
including without limitation, the Purchase Agreement, all of which agreements
and understandings are hereby terminated and all rights and entitlements
thereunder are hereby waived and released.
14. Amendment, Modification, Waiver. No provision of this Agreement
may be amended or modified unless such amendment or modification is agreed to in
writing and signed by the Employee and by a representative of the Company (other
than the Employee) who have been duly authorized by the Board of Directors of
the Company to do so (other than the Employee if she is a member of such Board
at the time). Except as otherwise specifically provided in this Agreement, no
waiver by either party hereto of any breach by the other party hereto of any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of a similar or dissimilar provision or condition at
the same or any prior or subsequent time, nor shall the failure of or delay by
either party hereto in exercising any right, power or privilege hereunder
operate as a waiver thereof to preclude any other or further exercise thereof or
the exercise of any other such right, power or privilege.
15. Notices. Any notice to be given hereunder shall be in writing
and delivered personally or sent by certified mail, postage prepaid, return
receipt requested, addressed to the party concerned at the address indicated
below or at such other address as such party may subsequently designate by like
notice:
<PAGE> 14
14
If to the Company:
c/o Norton McNaughton, Inc.
463 Seventh Avenue
New York, New York 10018
Attention: Chief Executive Officer
If to the Employee:
Elizabeth Moser
70 Urban Street
Stamford, Connecticut 06905
16. Arbitration. Any controversy or claim arising out of or relating
to this Agreement, or any breach thereof, shall, except as provided in Section
10, be settled by binding arbitration in accordance with the rules of the
American Arbitration Association then in effect and judgment upon such award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitration shall be held in New York, New York. The arbitration
award shall include an award of attorneys' fees and costs to the prevailing
party as determined by the arbitrator.
17. Severability. Should any provision of this Agreement be held by
a court or arbitration panel of competent jurisdiction to be enforceable only if
modified, such holding shall not affect the validity of the remainder of this
Agreement, the balance of which shall continue to be binding upon the parties
hereto with any such modification to become a part hereof and treated as though
originally set forth in this Agreement. The parties further agree that any such
court or arbitration panel is expressly authorized to modify any such
unenforceable provision of this Agreement in lieu of severing such unenforceable
provision from this Agreement in its entirety, whether by rewriting the
offending provision, deleting any or all of the offending provision, adding
additional language to this Agreement, or by making such other modifications as
it deems warranted to carry out the intent and agreement of the parties as
embodied herein to the maximum extent permitted by law. The parties expressly
agree that this Agreement as so modified by the court or arbitration panel shall
be binding upon and enforceable against each of them. In any event, should one
or more of the provisions of this Agreement be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions hereof, and if such provision or
provisions are not modified as provided above, this Agreement shall be construed
as if such invalid, illegal or unenforceable provisions had never been set forth
herein.
<PAGE> 15
15
18. Authority. The Company represents and warrants to the Employee
that the execution and delivery of this Agreement by the Company and the
performance by the Company of its covenants and agreements hereunder have been
duly authorized by all necessary corporate action and that this Agreement has
been duly executed and delivered on behalf of the Company.
19. Withholding. Anything to the contrary notwithstanding, all
payments required to be made by the Company hereunder to the Employee or her
beneficiaries, including her estate, shall be subject to withholding of such
amounts relating to taxes as the Company may reasonably determine it should
withhold pursuant to any applicable law or regulation. In lieu of withholding
such amounts, in whole or in part, the Company, may, in its sole discretion,
accept other provision for payment of taxes as permitted by law, provided it is
satisfied in its sole discretion that all requirements of law affecting its
responsibilities to withhold such taxes have been satisfied.
20. Subsidiaries, etc. The Employee shall be deemed to resign as an
officer and director of the Company or of any parent, subsidiary or affiliate of
the Company upon termination of her employment with the Company for any or no
reason.
21. Survivorship. The respective rights and obligations of the
Employee and the Company hereunder shall survive any termination of this
Agreement to the extent necessary to the intended preservation of such rights
and obligations.
22. Titles. Titles of the sections of this Agreement are intended
solely for convenience and no provision of this Agreement is to be construed by
reference to the title of any section.
23. Counterparts. This Agreement may be executed in two or more
counterpart copies, each of which shall be deemed to be an original and all of
which taken together shall be deemed one document.
* * *
<PAGE> 16
16
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
ME ACQUISITION CORP.
By /s/ Sanford Greenberg
-----------------------------------
Title: Chairman of the Board
EMPLOYEE:
/s/ Elizabeth Moser
-----------------------------------
Elizabeth Moser
<PAGE> 17
EXHIBIT A
ME ACQUISITION CORP. BONUS PLAN
FOR SENIOR EXECUTIVES
1. Establishment. This Plan, which shall be known as the ME
Acquisition Corp. Bonus Plan for Senior Executives (the "Bonus Plan"), is hereby
established by ME Acquisition Corp. (the "Company") to provide incentives for
senior executives providing services to the Company and to aid the Company in
retaining such senior executives upon whose efforts the Company's success and
future growth depends.
2. Administration. The Bonus Plan shall be administered by the Board
of Directors of the Company (the "Board"). For purposes of administration, the
Board, subject to the terms of the Bonus Plan, shall have plenary authority to
establish such rules and regulations, to make such determinations and
interpretations, and to take such other administrative actions as it deems
necessary or advisable.
3. Participants. The participants in the Plan shall be Stuart
Bregman, Howard Zwilling, Roberta Ciacci, Elizabeth Moser, Kenneth Tse and
Samuel Glaser, in each case for so long as such individual is employed by the
Company pursuant to an Employment Agreement (as defined in the Agreement, as
defined in Section 4 below) (each, a "Participant" and collectively, the
"Participants"); provided, however, that nothing contained herein shall be
construed as creating a contract or guarantee of employment for any Participant.
4. Bonus Pool.
4.1 For each of the fiscal years of the Company, provided that the
EBITDA Target (as hereinafter defined) for such fiscal year shall have been
attained, the Company shall establish a bonus pool in an amount equal to a
percentage of EBITDA (as hereinafter defined) for such fiscal year as determined
by the Board in consultation with Stuart Bregman and Howard Zwilling for so long
as they are employed by the Company (the "Bonus Pool"); provided, however, that
the Bonus Pool for any fiscal year shall not exceed that amount which, when
deducted from EBITDA, would result in EBITDA for such fiscal year net of the
Bonus Pool of less than $5,500,000.
4.2 Notwithstanding the foregoing, in the event that the EBITDA
Target is not achieved in any fiscal year,
<PAGE> 18
2
but EBITDA (calculated as otherwise provided herein) for such fiscal year and
for the subsequent fiscal year equals or exceeds $11,000,000, then the Company
shall establish a bonus pool in an amount equal to a percentage to be determined
by the Board in consultation with Stuart Bregman and Howard Zwilling for so long
as they are employed by the Company of combined EBITDA for such two fiscal
years, which percentage of the combined EBITDA shall for purposes hereof
constitute the Bonus Pool for such two fiscal years; provided, however, that the
Bonus Pool for such two fiscal years shall not exceed that amount which, when
deducted from the combined EBITDA, would result in the combined EBITDA for such
two fiscal years net of the Bonus Pool of less than $11,000,000.
4.3 As used herein: (i) EBITDA shall have the meaning set forth in
the Agreement of Purchase and Sale dated as of September 3, 1997 (the
"Agreement"), by and among the Company and the other parties thereto (which
parties include certain of the Participants) for the appropriate fiscal year,
without reduction for the Bonus Pool for such fiscal year contemplated by this
Bonus Plan or for any expense attributable to the Bonus Options; and (ii) EBITDA
Target shall mean, for each fiscal year, achievement of EBITDA of not less than
$5,500,000. In the event of any change in the fiscal year of the Company,
appropriate adjustments shall be made to the EBITDA Target in order to carry out
the intent and principles of the Bonus Plan.
5. Allocation of Bonus Pool. The Bonus Pool shall be allocated as
specified in each Participant's Employment Agreement.
6. Payment of Bonus. The bonus payable to each Participant (or his
or her estate or other legal representative) for any fiscal year of the Company
pursuant to this Bonus Plan shall be paid by the Company within 120 days
following the close of such fiscal year.
7. Termination of Employment.
7.1 In the event of termination of the employment of a Participant
pursuant to Section 6.1, 6.2, 6.4, 6.5 or 6.6 of his or her Employment Agreement
prior to the end of any fiscal year of the Company, such Participant (or his or
her estate or other legal representative) shall be entitled to a bonus for such
fiscal year only as provided in this Section 7.1. The bonus to which the
Participant (or his estate or other legal representative) shall be entitled for
such fiscal year (which shall be payable at the time other Participants are paid
their portion of the Bonus Pool for
<PAGE> 19
3
such fiscal year) shall be (i) in the event that the Bonus Pool is calculated
pursuant to Section 4.1 of this Bonus Plan, an amount equal to the product of
(x) the bonus, if any, which would have been payable to the Participant pursuant
to Sections 4.1 and 5 of this Bonus Plan for such fiscal year if the employment
of the Participant had not so terminated, multiplied by (y) a fraction, the
numerator of which is the number of days from the beginning of such fiscal year
to the date of termination, and the denominator of which is 365; or (ii) in the
event that the Bonus Pool is calculated pursuant to Section 4.2 of this Bonus
Plan, an amount equal to the product of (x) the bonus, if any, which would have
been payable to the Participant pursuant to Sections 4.2 and 5 of this Bonus
Plan for such two fiscal years if the employment of the Participant had not so
terminated, multiplied by (y) a fraction, the numerator of which is the number
of days from the beginning of the first of such two fiscal years to the date of
termination, and the denominator of which is 730.
7.2 In the event of termination of the employment of a Participant
pursuant to Section 6.3 of his or her Employment Agreement, such Participant
shall not be entitled to a bonus for the fiscal year of the Company in which
such termination occurs.
7.3 In the event of termination of the employment of a Participant
by the Participant for any reason, other than pursuant to Section 6.1, 6.2 or
6.6 of his or her Employment Agreement, such Participant shall not be entitled
to a bonus for the fiscal year of the Company in which such termination occurs.
7.4 No Participant shall be entitled to a bonus for any fiscal year
of the Company subsequent to the fiscal year in which his or her termination of
employment (for any or no reason) occurs.
7.5 If any portion of the Bonus Pool shall not be allocated or paid
by reason of this Section 7, such portion shall be retained by the Company or
paid to other Participants or to new participants, all as determined by the
Board in its discretion, after consideration of any recommended course of action
submitted to the Board by the Chief Executive Officer and Chief Operating
Officer of the Company.
8. Bonus Options.
8.1 Grant. For each $500,000 of EBITDA in excess of $6,000,000
attained by the Company in each of the fiscal
<PAGE> 20
4
years of the Company beginning with the fiscal year ending October 31, 1998, the
Company shall cause to be granted to the Participants by the Board of Directors
of Norton McNaughton, Inc., a Delaware corporation ("Norton"), options (the
"Bonus Options") to purchase an aggregate of 28,000 (or such lesser number as
shall be necessary to allocated Bonus Options in accordance with Section 8.2
below) shares of common stock, par value $.01 per share, of Norton (the "Common
Stock"). The Bonus Options shall be granted, if at all, as of the last day of
the applicable fiscal year and shall have an exercise price per share equal to
the fair market value of the Common Stock on the date of grant.
8.2 Allocation of Bonus Options. The Bonus Options shall be
allocated 10,000 to Bregman, 10,000 to Zwilling, 3,000 to Ciacci, 2,000 to
Moser, 2,000 to Tse and 1,000 to Glazer.
8.3 Exercise. The Bonus Options shall be fully vested and
exercisable on and after the date of grant.
8.4 Term of Options. Except as provided below, the term of the Bonus
Options shall be ten years.
(i) If a Participant's employment with the Company terminates
pursuant to Section 6.1 of his or her Employment Agreement, is terminated by the
Company or by the Participant pursuant to Section 6.2 of his or her Employment
Agreement, is terminated by the Company pursuant to Section 6.4 of his or her
Employment Agreement, is terminated by the Employee pursuant to Section 6.6 of
his or her Employment Agreement, or terminated for any other reason (except as
provided in clause (ii) below), the Bonus Options may be exercised by the
Participant (or his estate or legal representative) within one (1) year after
such termination; and
(ii) In the event of termination of the employment of a
Participant (a) by the Company pursuant to Section 6.3 of his or her Employment
Agreement or (b) by the Participant other than pursuant to Sections 6.1, 6.2 or
6.6 of his or her Employment Agreement, no Bonus Options shall be exercisable.
8.5 Adjustments. In the event of any dividend or other distribution
(whether in the form of cash, Common Stock, other securities or other property),
recapitalization, stock split, reverse stock split, reorganization, merger,
consolidation, split-up, spin-off, combination, repurchase or exchange of Common
Stock or other securities of Norton, issuance of warrants or other rights
<PAGE> 21
5
to purchase Common Stock, the Board of Directors shall, in such manner as it may
deem equitable, adjust the number of shares of Common Stock (or other securities
or property) subject to the Bonus Options, the exercise price with respect to
any Bonus Options, or both.
8.6 No Participant shall be entitled to Bonus Options for any fiscal
year of the Company subsequent to the fiscal year in which his or her
termination of employment (for any or no reason) occurs.
8.7 In the event of termination of the employment of a Participant
prior to the end of a fiscal year, pursuant to Sections 6.1, 6.2, 6.4, 6.5 or
6.6 of his or her Employment Agreement, such Participant (or his or her estate
or other legal representative) shall be granted such Bonus Options for such
fiscal year only as provided in this Section 8.7. The number of Bonus Options to
which the Participant (or his or her estate or legal representative) shall be
entitled for such fiscal year (which shall be granted at the time that the Bonus
Options are granted to the other Participants) shall be equal to the product of
(x) the number of Bonus Options, if any, which would have been granted to the
Participant pursuant to Sections 8.1 and 8.2 of this Bonus Plan for such fiscal
year if the employment of the Participant had not so terminated, multiplied by
(y) a fraction, the numerator of which is the number of days from the beginning
of such fiscal year to the date of termination, and the denominator of which is
365. The terms and conditions of any such Bonus Options shall be as otherwise
provided in this Section 8.
8.8 If any portion of the Bonus Options shall not be allocated or
granted by reason of this Section 8, such Bonus Options shall be retained by the
Company or granted to other Participants or to new participants, all as
determined by the Board in its discretion, after consideration of any
recommended course of action submitted to the Board by the Chief Executive
Officer and Chief Operating Officer of the Company.
<PAGE> 1
EXHIBIT 4.7
EMPLOYMENT AGREEMENT
AGREEMENT dated as of the 29th day of August, 1997 by and between ME
ACQUISITION CORP., a Delaware corporation (the "Company"), and Kenny Tse (the
"Employee").
W I T N E S S E T H:
WHEREAS, the Company, a wholly owned subsidiary of Norton
McNaughton, Inc., a Delaware corporation ("Norton"), and certain other parties
(which parties include the Employee) simultaneously herewith are entering into
an Agreement of Purchase and Sale dated as of August 29, 1997 (the "Purchase
Agreement"), providing, inter alia, for the purchase by the Company of
substantially all of the assets of Miss Erika, Inc., a Delaware corporation
("Miss Erika"); and
WHEREAS, the Employee desires to continue in the employ of the
Company subsequent to the consummation of the transactions contemplated by the
Purchase Agreement; and
WHEREAS, in order to induce the Company to enter into, and to
consummate the transactions contemplated by, the Purchase Agreement, the
Employee desires to enter into this Agreement; and
WHEREAS, the Company desires to secure the employment of the
Employee with the Company subsequent to the consummation of the transactions
contemplated by the Purchase Agreement, and to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereto hereby agree as follows:
1. Employment, Term.
1.1 The Company agrees to employ the Employee, and the Employee
agrees to serve in the employ of the Company, for the term set forth in Section
1.2, in the positions and with the responsibilities, duties and authority set
forth in Section 2 and on the other terms and conditions set forth in this
Agreement.
1.2 The term of the Employee's employment under this Agreement (the
"Term") shall commence on the Closing Date (as defined in the Purchase
Agreement) and, unless sooner terminated in accordance with this Agreement,
shall expire (a) if the Company does not attain EBITDA (as defined
<PAGE> 2
2
in the Executive Bonus Plan, as defined in Section 3.2 below, except that EBITDA
for purposes of this Section 1.2 shall be determined after reduction for the
Bonus Pool (as defined in the Executive Bonus Plan) for the applicable fiscal
year) averaged for the fiscal years ending October 31, 1998 and November 6, 1999
of $5,500,000 or more (the "EBITDA 2-Year Target"), on such date (the "Notice
Date"), not earlier than November 6, 1999, on which the Chairman of the Board,
the President or the Chief Financial Officer of Norton delivers to the Employee
a written statement that the EBITDA 2-Year Target has not been achieved (the
Closing Date through the Notice Date, hereinafter the "Initial Term"); or (b) if
the Company attains the EBITDA 2-Year Target, on October 31, 2001 (November 7,
1999 through October 31, 2001, hereinafter the "Extended Term").
2. Positions, Duties. The Employee shall serve in the position of
Executive Vice President - Knit Production of the Company. The Employee shall
perform, faithfully and diligently, such duties, and shall have such
responsibilities, appropriate to said position, as shall be assigned to him from
time to time by the Chief Executive Officer or Chief Operating Officer of the
Company. The Employee shall report to the Chief Executive Officer or Chief
Operating Officer of the Company. The Employee shall devote his complete and
undivided attention to the performance of his duties and responsibilities
hereunder during the normal working hours of executive employees of Norton.
3. Compensation.
3.1 Salary. During the Term, in consideration of the performance by
the Employee of the services set forth in Section 2 and his observance of the
other covenants set forth herein, the Company shall pay the Employee, and the
Employee shall accept, a salary at a rate of $187,000 per annum, payable in
accordance with the standard payroll practices of the Company. The salary set
forth in this Section 3.1 shall be reviewed annually during the Term by the
Board of Directors of the Company in consultation with the Chief Executive
Officer and Chief Operating Officer of the Company and shall be subject to
upward adjustments, if any, as determined by the Board of Directors of the
Company in its discretion, in consultation with the Chief Executive Officer and
Chief Operating Officer of the Company.
3.2 Bonus. During the Term, in addition to the salary provided for
in Section 3.1, (i) the Employee shall be eligible to participate in the ME
Acquisition Corp. Bonus Plan for Senior Executives (the "Executive Bonus Plan"),
a
<PAGE> 3
3
copy of which is attached hereto as Exhibit A and the terms of which are
incorporated herein by reference, (ii) the Employee shall be allocated a
percentage of the Bonus Pool (as defined in the Executive Bonus Plan) as shall
be determined by the Board in consultation with the Chief Executive Officer and
Chief Operating Officer of the Company, subject to the terms and conditions of
the Executive Bonus Plan and this Agreement and (iii) either (a) the Employee
shall receive a cash bonus in an amount which, net of taxes payable by the
Employee in respect of such amount, shall be equal to the amount which would
have been contributed on behalf of the Employee with respect to the Miss Erika,
Inc. Profit Sharing Plan (the "Miss Erika Plan"), as in effect on the date
hereof and as administered in accordance with the past practices of Miss Erika,
which cash bonus shall be payable within 120 days following the close of each
full fiscal year of the Company ending during the Term or (b) the Employee shall
be eligible to participate in a tax-advantaged profit sharing plan of the
Company established on similar terms and conditions (including levels of
contributions) as the Miss Erika Plan.
3.3 Stock Options.
(a) Grant. On the Closing Date, the Company shall cause to be
granted to the Employee by the Board of Directors of Norton as of the Closing
Date, options to purchase an aggregate of 10,000 shares of common stock, par
value $.01 per share (the "Common Stock"), of Norton, at an exercise price per
share equal to the fair market value of the Common Stock on the Closing Date
(the "Options"). The Options shall be fully vested and exercisable on and after
the Closing Date.
(b) Term of Options. Except as provided below, the term of the
Options shall be ten years.
(i) If the Employee's employment with the Company terminates
pursuant to Section 6.1, is terminated by the Company or the Employee pursuant
to Section 6.2, is terminated by the Company pursuant to Section 6.4, is
terminated by the Employee pursuant to Section 6.6, or terminates for any other
reason (except as provided in clause (ii) below) the Options may be exercised by
the Employee (or his estate or legal representative) within one year after such
termination; and
(ii) In the event of termination of the employment of the
Employee with the Company (a) by the Company pursuant to Section 6.3 or (b) by
the Employee other
<PAGE> 4
4
than pursuant to Sections 6.1, 6.2 or 6.6, no Options shall be exercisable.
(c) Adjustments. In the event of any dividend or other
distribution (whether in the form of cash, Common Stock, other securities or
other property), recapitalization, stock split, reverse stock split,
reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase or exchange of Common Stock or other securities of Norton, issuance
of warrants or other rights to purchase Common Stock, the Board of Directors
shall, in such manner as it may deem equitable, adjust the number of shares of
Common Stock (or other securities or property) subject to the Options, the
exercise price with respect to any Options, or all of the foregoing.
(d) Registration of Shares. Norton shall, as promptly as
practicable following the commencement of the Employee's employment hereunder,
file a registration statement on Form S-8, or any successor to such Form, with
respect to the shares of Common Stock covered by the Options.
3.4 Bonus Options. During the Term, in addition to the salary
provided for in Section 3.1, the Employee shall be eligible to receive Bonus
Options (as defined in the Executive Bonus Plan) in accordance with the terms
set forth in the Executive Bonus Plan.
4. Expense Reimbursement. During the Term, (i) the Company shall
reimburse the Employee for all reasonable and necessary out-of-pocket expenses
incurred by him in connection with the performance of his duties hereunder, upon
the presentation of proper accounts therefor in accordance with Norton's
policies and (ii) the Company shall pay for the benefit of the Employee all
reasonable and necessary expenses incurred by him in the ordinary and usual
course of business and in accordance with Norton's policies (in any case, as
such policies are adopted from time to time by the Compensation Committee of
Norton).
5. Benefits.
5.1 Benefit Plans. During the Term, the Employee will be entitled to
participate in all employee benefit plans and programs offered by Norton,
subject to the provisions of such plans and programs as in effect from time to
time.
<PAGE> 5
5
5.2 Vacation. During the Term, the Employee shall be entitled to
paid vacation in accordance with Norton's policy for its executive employees.
6. Termination of Employment.
6.1 Death. In the event of the death of the Employee during the
Term, the Company shall pay to the estate or other legal representative of the
Employee (a) the salary provided for in Section 3.1 accrued to the date of the
Employee's death and not theretofore paid to the Employee and (b) any bonus
payable in accordance with the terms of the Executive Bonus Plan. Rights and
benefits of the estate or other legal representative of the Employee (a) with
respect to the Options or the Bonus Options shall be determined in accordance
with Section 3.3(b) or the Executive Bonus Plan, as applicable and (b) under the
benefit plans and programs of the Company shall be determined in accordance with
the provisions of such plans and programs. Neither the estate or other legal
representative of the Employee nor the Company shall have any further rights or
obligations under this Agreement.
6.2 Disability. If during the Term the Employee shall become
incapacitated by reason of physical or mental disability and shall be unable to
perform his normal duties hereunder for a cumulative period of six (6) months in
any period of twelve (12) consecutive months, the employment of the Employee
hereunder may be terminated by the Company or the Employee upon notice to the
other. In the event of such termination, the Company shall pay to the Employee
(a) the salary provided for in Section 3.1 accrued to the date of such
termination and not theretofore paid to the Employee and (b) any bonus payable
in accordance with the terms of the Executive Bonus Plan. Rights and benefits of
the Employee (a) with respect to the Options or the Bonus Options shall be
determined in accordance with Section 3.3(b) or the Executive Bonus Plan, as
applicable and (b) under the benefit plans and programs of the Company shall be
determined in accordance with the provisions of such plans and programs. Neither
the Employee nor the Company shall have any further rights or obligations under
this Agreement, except as provided in Sections 7, 8, 9 and 10.
6.3 Due Cause. The employment of the Employee hereunder may be
terminated by the Company at any time during the Term for Due Cause (as
hereinafter defined). In the event of such termination, the Company shall pay to
the Employee the salary provided for in Section 3.1 accrued to the date of such
termination and not theretofore paid to the Employee and no bonus. Rights and
benefits of the
<PAGE> 6
6
Employee (a) with respect to the Options or the Bonus Options shall be
determined in accordance with Section 3.3(b) or the Executive Bonus Plan, as
applicable and (b) under the benefit plans and programs of the Company shall be
determined in accordance with the provisions of such plans and programs. After
the satisfaction of any claim of the Company against the Employee incidental to
such Due Cause, neither the Employee nor the Company shall have any further
rights or obligations under this Agreement, except as provided in Sections 7, 8,
9 and 10. For purposes hereof, "Due Cause" shall mean (a) the Employee's gross
negligence or willful misconduct in bad faith in the discharge of his duties and
responsibilities to Norton, the Company and any of their respective parent,
subsidiary or affiliate corporations (collectively, the "Norton Group"), as
determined by the Board of Directors of the Company, (b) the Employee's material
and repeated failure to obey appropriate directions from the Chief Executive
Officer or the Chief Operating Officer of the Company, (c) any willful or
purposeful act or omission of the Employee taken or omitted in bad faith and
intended to materially injure, and which had the effect of materially injuring,
the business or business relationships of any member of the Norton Group or (d)
the Employee's conviction or other adjudication of (1) a felony or (2) any crime
or offense involving fraud; provided, however, that the Employee shall be given
written notice by a majority of the Board of Directors of the Company that it
intends to terminate the Employee's employment for Due Cause under this Section,
which written notice shall specify the act or acts upon the basis of which the
majority of the Board of Directors of the Company intends so to terminate the
Employee's employment, and the Employee shall then be given the opportunity,
within fifteen (15) days of his receipt of such notice, to have a meeting with
the Board of Directors of the Company to discuss such act or acts.
6.4 Other Termination by the Company. The Company may terminate the
Employee's employment at any time during the Term for whatever reason it deems
appropriate or without reason; provided, however, that in the event that such
termination is not pursuant to Section 6.1, 6.2, 6.3 or 6.5, the Company shall,
except as provided in Section 9(c), (a) pay to the Employee the Severance Amount
(as hereinafter defined) in equal installments on a monthly basis over the
Severance Term (as hereinafter defined), (b) pay to the Employee any bonus
payable in accordance with the terms of the Executive Bonus Plan and (c) provide
the Employee for the Severance Term with the same benefits then in effect under
Section 5. The Employee shall not be required to seek subsequent employment.
Rights and benefits of the Employee
<PAGE> 7
7
with respect to the Options or the Bonus Options shall be determined in
accordance with Section 3.3(b) or the Executive Bonus Plan, as applicable.
Neither the Employee nor the Company shall have any further rights or
obligations under this Agreement, except as provided in Sections 7, 8, 9 and 10.
Any termination of this Agreement by the Company after the date hereof and prior
to the Closing Date shall be treated as a termination of employment pursuant to
this Section 6.4 as of the day following the Closing Date, provided that the
Closing (as defined in the Purchase Agreement) shall have occurred.
For purposes hereof, Severance Amount shall mean an amount equal to
the sum of (i) the annual salary then in effect under Section 3.1 and (ii) the
Average Bonus (as hereinafter defined), multiplied by the Severance Factor.
Average Bonus shall mean the average of the bonuses, if any, paid to the
Employee by the Company and/or Miss Erika in the two (2) full fiscal years of
the Company and/or Miss Erika, as applicable, prior to the date of termination
of employment of the Employee. Severance Factor shall mean a fraction, the
numerator of which is the number of days remaining in the then-current Term plus
365, and the denominator of which is 365. Severance Term shall mean the number
of days remaining in the then-current Term plus 365 days. For purposes of the
foregoing, in determining the number of days remaining in the then-current Term,
if termination under this Section 6.4 occurs during (i) the Initial Term, the
then-current Term shall be determined without regard to the Extended Term;
provided, however, that if following such termination the Company attains the
EBITDA 2-Year Target for the fiscal years ending October 31, 1998 and November
6, 1999, the then-current Term shall be determined with regard to the Extended
Term and appropriate adjustments shall be made in the then remaining monthly
installments of the Severance Amount to be paid over the extended Severance Term
to take into account such determination or (ii) the Extended Term, the
then-current Term shall be the remaining number of days in the Extended Term.
6.5 Non-Extension by the Company. If (A) the Initial Term is not
extended for the Extended Term as a result of the failure to achieve the EBITDA
2-Year Target or if (B) the Initial Term is extended for the Extended Term
pursuant to Section 1.2 and, upon the expiration of such Extended Term, the
Company shall fail to offer employment to the Employee in the same position and
with the same salary then in effect under Section 3.1 and participation in the
Executive Bonus Plan on the same terms then in effect for an additional period
of one year, in either case, the Company
<PAGE> 8
8
shall, except as provided in Section 9(c), (a) continue to pay to the Employee
the salary then in effect under Section 3.1 for one year from the date of
expiration of the Extended Term, (b) pay to the Employee the Average Bonus in
equal monthly installments over such one year period (the amounts set forth in
clauses (a) and (b), the "Section 6.5 Amounts") and (c) provide the Employee
with the same Benefits then in effect under Section 5 for such one year period.
The Employee shall not be required to seek subsequent employment. Rights and
benefits of the Employee (a) with respect to the Options or the Bonus Options
shall be determined in accordance with Section 3.3(b) or the Executive Bonus
Plan, as applicable and (b) subject to this Section 6.5, under the benefit plans
and programs of the Company shall be determined in accordance with the
provisions of such plans and programs. Neither the Employee nor the Company
shall have any further rights or obligations under this Agreement, except as
provided in Sections 7, 8, 9 and 10.
6.6 Termination by the Employee with Good Reason. The Employee may
at any time terminate his employment with the Company with Good Reason (as
hereinafter defined) and may treat such as a termination of employment pursuant
to and with the effects set forth in Section 6.4. For purposes hereof, Good
Reason shall mean (i) the continued breach by the Company of a material
provision of this Agreement for a period of 30 days after written notice of such
breach by the Employee to the Company or (ii) a material and adverse diminution
in the Employee's title or scope of duties as set forth in Section 2, which
diminution shall continue for a period of 30 days after written notice thereof
by the Employee to the Company.
6.7 Termination by the Employee without Good Reason. The Employee
may at any time upon at least 120 days prior written notice to the Company
terminate his employment with the Company without Good Reason. Such termination
shall be treated as a termination of employment pursuant to, including with the
effect set forth in, Section 6.3; provided, however, that the Company hereby
waives any claim it may have against the Employee incidental to the Employee's
termination of his employment pursuant to this Section 6.7.
7. Confidential Information.
7.1 The Employee shall, during the Term and at all times thereafter,
treat as confidential and, except as required in the performance of his duties
and responsibilities under this Agreement, not disclose, publish
<PAGE> 9
9
or otherwise make available to the public or to any individual, firm or
corporation any confidential material (as hereinafter defined), except, on a
need to know basis, to the Employee's attorney, accountant or personal advisor.
The Employee agrees that all confidential material, together with all notes and
records of the Employee relating thereto, and all copies or facsimiles thereof
in the possession of the Employee, are the exclusive property of the Company and
the Employee agrees to return such material to the Company promptly upon the
termination of the Employee's employment with the Company.
7.2 For the purposes hereof, the term "confidential material" shall
mean all information acquired by the Employee in the course of the Employee's
prior employment with Miss Erika and in the course of the Employee's employment
with the Company in any way concerning the products, projects, activities,
business or affairs of the Company or any member of the Norton Group or the
customers, suppliers or agents of the Company or any member of the Norton Group,
including, without limitation, all information concerning trade secrets and the
preparation of raw material for, manufacture of, and/or finishing processes
utilized in the production of, the products or projects of the Company or any
member of the Norton Group and/or any improvements therein, all sales and
financial information concerning the Company or any member of the Norton Group,
all customer and supplier lists, all information concerning projects in research
and development or marketing plans for any such products or projects, and all
information in any way concerning the products, projects, activities, business
or affairs of customers of the Company or any member of the Norton Group which
is furnished to the Employee by the Company or any of its employees (current or
former), agents or customers, as such; provided, however, that the term
"confidential material" shall not include information which (a) becomes
generally available to the public or the apparel industry in general other than
as a result of a disclosure by the Employee, (b) was available to the Employee
on a non-confidential basis prior to his employment with the Company or (c)
becomes available to the Employee on a non-confidential basis from a source
other than the Company or any of its agents, franchisees, creditors, suppliers,
lessors, lessees or customers provided that the Employee has no knowledge that
such source is not bound by a confidentiality agreement with the Company or any
of such agents or customers.
8. Inventions. Any and all inventions, innovations or improvements
("inventions") made, developed or created by the Employee (whether at the
request or
<PAGE> 10
10
suggestion of the Company 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 Employee to the Board of Directors of the Company and shall be
the Company's exclusive property as against the Employee, and the Employee shall
promptly deliver to an appropriate representative of the Company as designated
by the Board of Directors all papers, drawings, models, data and other material
relating to any inventions made, developed or created by him as aforesaid. The
Employee 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
Employee or to vest in the Company title to such inventions as against the
Employee. The expense of securing any such patent or copyright shall be borne by
the Company.
9. Non-Competition. (a) The Employee acknowledges that the services
to be rendered by him to the Company are of a special and unique character.
(b) In consideration of his employment hereunder, the Employee
agrees, for the benefit of the Company, that he will not, during the period of
his employment with the Company and thereafter for a period (A) of one (1) year
commencing on the date of termination of his employment with the Company
pursuant to Section 6.2 or 6.3, (B) of the greater of one (1) year commencing on
the date of termination of his employment with the Company pursuant to Section
6.7 or the remainder of the then-current Term (without regard to the Extended
Term if such termination occurs during the Initial Term) or (C) during which the
Employee receives payments of the Severance Amount pursuant to Section 9(c) (in
the case of a termination under Section 6.4 or 6.6), (1) 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) one percent (1%) 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, anywhere in the United States, in any activity or business
venture which is in competition with the business then conducted by the Company
and any of its subsidiaries, (2) solicit or entice or endeavor to solicit or
entice away from any member of the
<PAGE> 11
11
Norton Group any person who was an officer, employee, agent or consultant of any
member of the Norton Group, either for his own account or for any individual,
firm or corporation, and, if applicable, whether or not such person would commit
any breach of his contract of employment by reason of leaving the service of a
member of the Norton Group, and the Employee agrees not to employ, directly or
indirectly, any person who was an officer or employee of any member of the
Norton Group 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 any member of the Norton Group, or (3) solicit or
entice or endeavor to solicit or entice away from any member of the Norton Group
any customer or prospective customer of any member of the Norton Group, either
for his own account or for any individual, firm or corporation (the activities
set forth in clauses (1), (2) and (3) above, the "Non-Competition Activities").
(c) In the event of termination of the employment of the Employee
pursuant to Section 6.4 or 6.6, the Company shall pay to the Employee the
Severance Amount and other benefits set forth in Section 6.4 or 6.6 in which
event the Employee shall not engage in the Non-Competition Activities for the
Severance Term; provided, however, if the Employee engages in the
Non-Competition Activities during the Severance Term, the Employee shall
immediately notify the Company that he is engaging in the Non-Competition
Activities, and the Company's obligation to pay the Severance Amount shall
immediately cease. From and after the date on which the Employee engages in the
Non-Competition Activities, the Company shall continue to pay to the Employee
the salary in effect on the date of termination of the employment of the
Employee under Section 3.1 for the remainder of the Severance Term and shall
offset any amounts earned as a result of the Employee's engaging in the
Non-Competition Activities (whether as an employee, consultant or otherwise)
against such salary continuation by the Company which becomes payable after the
first date on which the Employee engages in the Non-Competition Activities.
(d) Notwithstanding the foregoing, the provisions of this Section 9
shall not be effective on or after November 7, 1999.
10. Equitable Relief, Etc.
10.1 In the event of a breach or threatened breach by the Employee
of any of the provisions of Sections 7, 8 or 9, the Employee hereby consents and
agrees that the Company shall be entitled to an injunction or similar equitable
<PAGE> 12
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relief from any court of competent jurisdiction restraining the Employee from
committing or continuing any such breach or threatened breach or granting
specific performance of any act required to be performed by the Employee under
any of such provisions, without the necessity of showing any actual damage or
that money damages would not afford an adequate remedy and without the necessity
of posting any bond or other security. Nothing herein shall be construed as
prohibiting the Company from pursuing any other remedies at law or in equity
which it may have with respect to any such breach or threatened breach.
10.2 The Company and the Employee understand and agree that in any
lawsuit or other proceeding between any of them with respect to Sections 7, 8 or
9 hereof, the prevailing party in such lawsuit or proceeding shall be entitled
to recover from the other party in such lawsuit or proceeding, and such other
party hereby agrees to pay such prevailing party, for all costs and expenses,
including attorneys' fees, incurred by such prevailing party in the defense,
prosecution or investigation of the matters which are the subject of such
lawsuit or proceeding.
11. Successors and Assigns.
11.1 Assignment by the Company. The Company shall require any
successors (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform if no such
succession had taken place. As used in this Section, the "Company" shall mean
the Company as hereinbefore defined and any successor to its business and/or
assets as aforesaid which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law and this Agreement shall be
binding upon, and inure to the benefit of, the Company, as so defined.
11.2 Assignment by the Employee. The Employee may not assign this
Agreement or any part thereof without the prior written consent of a majority of
the Board of Directors of the Company (other than the Employee if he is a member
of such Board at the time); provided, however, that nothing herein shall
preclude one or more beneficiaries of the Employee from receiving any amount
that may be payable following the occurrence of his legal incompetency or his
death and shall not preclude the legal representative of his estate from
receiving such amount or from assigning any right hereunder to the person or
persons entitled thereto under his will or, in the case of intestacy, to the
person
<PAGE> 13
13
or persons entitled thereto under the laws of intestacy applicable to his
estate. The term "beneficiaries", as used in this Agreement, shall mean a
beneficiary or beneficiaries so designated to receive any such amount or, if no
beneficiary has been so designated, the legal representative of the Employee (in
the event of his incompetency) or the Employee's estate.
12. Governing Law. This Agreement shall be deemed a contract made
under, and for all purposes shall be construed in accordance with, the laws of
the State of New York applicable to contracts to be performed entirely within
such State.
13. Entire Agreement. This Agreement contains all the understandings
and representations between the parties hereto pertaining to the subject matter
hereof. This Agreement supersedes all understandings and agreements, whether
oral or in writing, if any, previously entered into by the Company with the
Employee in any way relating to the employment of the Employee by the Company,
including without limitation, the Purchase Agreement, all of which agreements
and understandings are hereby terminated and all rights and entitlements
thereunder are hereby waived and released.
14. Amendment, Modification, Waiver. No provision of this Agreement
may be amended or modified unless such amendment or modification is agreed to in
writing and signed by the Employee and by a representative of the Company (other
than the Employee) who have been duly authorized by the Board of Directors of
the Company to do so (other than the Employee if he is a member of such Board at
the time). Except as otherwise specifically provided in this Agreement, no
waiver by either party hereto of any breach by the other party hereto of any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of a similar or dissimilar provision or condition at
the same or any prior or subsequent time, nor shall the failure of or delay by
either party hereto in exercising any right, power or privilege hereunder
operate as a waiver thereof to preclude any other or further exercise thereof or
the exercise of any other such right, power or privilege.
15. Notices. Any notice to be given hereunder shall be in writing
and delivered personally or sent by certified mail, postage prepaid, return
receipt requested, addressed to the party concerned at the address indicated
below or at such other address as such party may subsequently designate by like
notice:
<PAGE> 14
14
If to the Company:
c/o Norton McNaughton, Inc.
463 Seventh Avenue
New York, New York 10018
Attention: Chief Executive Officer
If to the Employee:
Kenny Tse
809 Trailing Ridge Road
Franklin Lakes, New Jersey 07417
16. Arbitration. Any controversy or claim arising out of or relating
to this Agreement, or any breach thereof, shall, except as provided in Section
10, be settled by binding arbitration in accordance with the rules of the
American Arbitration Association then in effect and judgment upon such award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitration shall be held in New York, New York. The arbitration
award shall include an award of attorneys' fees and costs to the prevailing
party as determined by the arbitrator.
17. Severability. Should any provision of this Agreement be held by
a court or arbitration panel of competent jurisdiction to be enforceable only if
modified, such holding shall not affect the validity of the remainder of this
Agreement, the balance of which shall continue to be binding upon the parties
hereto with any such modification to become a part hereof and treated as though
originally set forth in this Agreement. The parties further agree that any such
court or arbitration panel is expressly authorized to modify any such
unenforceable provision of this Agreement in lieu of severing such unenforceable
provision from this Agreement in its entirety, whether by rewriting the
offending provision, deleting any or all of the offending provision, adding
additional language to this Agreement, or by making such other modifications as
it deems warranted to carry out the intent and agreement of the parties as
embodied herein to the maximum extent permitted by law. The parties expressly
agree that this Agreement as so modified by the court or arbitration panel shall
be binding upon and enforceable against each of them. In any event, should one
or more of the provisions of this Agreement be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions hereof, and if such provision or
provisions are not modified as provided above, this Agreement shall be construed
as if such invalid, illegal or unenforceable provisions had never been set forth
herein.
<PAGE> 15
15
18. Authority. The Company represents and warrants to the Employee
that the execution and delivery of this Agreement by the Company and the
performance by the Company of its covenants and agreements hereunder have been
duly authorized by all necessary corporate action and that this Agreement has
been duly executed and delivered on behalf of the Company.
19. Withholding. Anything to the contrary notwithstanding, all
payments required to be made by the Company hereunder to the Employee or his
beneficiaries, including his estate, shall be subject to withholding of such
amounts relating to taxes as the Company may reasonably determine it should
withhold pursuant to any applicable law or regulation. In lieu of withholding
such amounts, in whole or in part, the Company, may, in its sole discretion,
accept other provision for payment of taxes as permitted by law, provided it is
satisfied in its sole discretion that all requirements of law affecting its
responsibilities to withhold such taxes have been satisfied.
20. Subsidiaries, etc. The Employee shall be deemed to resign as an
officer and director of the Company or of any parent, subsidiary or affiliate of
the Company upon termination of his employment with the Company for any or no
reason.
21. Survivorship. The respective rights and obligations of the
Employee and the Company hereunder shall survive any termination of this
Agreement to the extent necessary to the intended preservation of such rights
and obligations.
22. Titles. Titles of the sections of this Agreement are intended
solely for convenience and no provision of this Agreement is to be construed by
reference to the title of any section.
23. Counterparts. This Agreement may be executed in two or more
counterpart copies, each of which shall be deemed to be an original and all of
which taken together shall be deemed one document.
* * *
<PAGE> 16
16
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
ME ACQUISITION CORP.
By /s/ Sanford Greenberg
--------------------------------------
Title: Chairman of the Board
EMPLOYEE:
/s/ Kenny Tse
--------------------------------------
Kenny Tse
<PAGE> 17
EXHIBIT A
ME ACQUISITION CORP. BONUS PLAN
FOR SENIOR EXECUTIVES
1. Establishment. This Plan, which shall be known as the ME
Acquisition Corp. Bonus Plan for Senior Executives (the "Bonus Plan"), is hereby
established by ME Acquisition Corp. (the "Company") to provide incentives for
senior executives providing services to the Company and to aid the Company in
retaining such senior executives upon whose efforts the Company's success and
future growth depends.
2. Administration. The Bonus Plan shall be administered by the Board
of Directors of the Company (the "Board"). For purposes of administration, the
Board, subject to the terms of the Bonus Plan, shall have plenary authority to
establish such rules and regulations, to make such determinations and
interpretations, and to take such other administrative actions as it deems
necessary or advisable.
3. Participants. The participants in the Plan shall be Stuart
Bregman, Howard Zwilling, Roberta Ciacci, Elizabeth Moser, Kenneth Tse and
Samuel Glaser, in each case for so long as such individual is employed by the
Company pursuant to an Employment Agreement (as defined in the Agreement, as
defined in Section 4 below) (each, a "Participant" and collectively, the
"Participants"); provided, however, that nothing contained herein shall be
construed as creating a contract or guarantee of employment for any Participant.
4. Bonus Pool.
4.1 For each of the fiscal years of the Company, provided that the
EBITDA Target (as hereinafter defined) for such fiscal year shall have been
attained, the Company shall establish a bonus pool in an amount equal to a
percentage of EBITDA (as hereinafter defined) for such fiscal year as determined
by the Board in consultation with Stuart Bregman and Howard Zwilling for so long
as they are employed by the Company (the "Bonus Pool"); provided, however, that
the Bonus Pool for any fiscal year shall not exceed that amount which, when
deducted from EBITDA, would result in EBITDA for such fiscal year net of the
Bonus Pool of less than $5,500,000.
4.2 Notwithstanding the foregoing, in the event that the EBITDA
Target is not achieved in any fiscal year,
<PAGE> 18
2
but EBITDA (calculated as otherwise provided herein) for such fiscal year and
for the subsequent fiscal year equals or exceeds $11,000,000, then the Company
shall establish a bonus pool in an amount equal to a percentage to be determined
by the Board in consultation with Stuart Bregman and Howard Zwilling for so long
as they are employed by the Company of combined EBITDA for such two fiscal
years, which percentage of the combined EBITDA shall for purposes hereof
constitute the Bonus Pool for such two fiscal years; provided, however, that the
Bonus Pool for such two fiscal years shall not exceed that amount which, when
deducted from the combined EBITDA, would result in the combined EBITDA for such
two fiscal years net of the Bonus Pool of less than $11,000,000.
4.3 As used herein: (i) EBITDA shall have the meaning set forth in
the Agreement of Purchase and Sale dated as of September 3, 1997 (the
"Agreement"), by and among the Company and the other parties thereto (which
parties include certain of the Participants) for the appropriate fiscal year,
without reduction for the Bonus Pool for such fiscal year contemplated by this
Bonus Plan or for any expense attributable to the Bonus Options; and (ii) EBITDA
Target shall mean, for each fiscal year, achievement of EBITDA of not less than
$5,500,000. In the event of any change in the fiscal year of the Company,
appropriate adjustments shall be made to the EBITDA Target in order to carry out
the intent and principles of the Bonus Plan.
5. Allocation of Bonus Pool. The Bonus Pool shall be allocated as
specified in each Participant's Employment Agreement.
6. Payment of Bonus. The bonus payable to each Participant (or his
or her estate or other legal representative) for any fiscal year of the Company
pursuant to this Bonus Plan shall be paid by the Company within 120 days
following the close of such fiscal year.
7. Termination of Employment.
7.1 In the event of termination of the employment of a Participant
pursuant to Section 6.1, 6.2, 6.4, 6.5 or 6.6 of his or her Employment Agreement
prior to the end of any fiscal year of the Company, such Participant (or his or
her estate or other legal representative) shall be entitled to a bonus for such
fiscal year only as provided in this Section 7.1. The bonus to which the
Participant (or his estate or other legal representative) shall be entitled for
such fiscal year (which shall be payable at the time other Participants are paid
their portion of the Bonus Pool for
<PAGE> 19
3
such fiscal year) shall be (i) in the event that the Bonus Pool is calculated
pursuant to Section 4.1 of this Bonus Plan, an amount equal to the product of
(x) the bonus, if any, which would have been payable to the Participant pursuant
to Sections 4.1 and 5 of this Bonus Plan for such fiscal year if the employment
of the Participant had not so terminated, multiplied by (y) a fraction, the
numerator of which is the number of days from the beginning of such fiscal year
to the date of termination, and the denominator of which is 365; or (ii) in the
event that the Bonus Pool is calculated pursuant to Section 4.2 of this Bonus
Plan, an amount equal to the product of (x) the bonus, if any, which would have
been payable to the Participant pursuant to Sections 4.2 and 5 of this Bonus
Plan for such two fiscal years if the employment of the Participant had not so
terminated, multiplied by (y) a fraction, the numerator of which is the number
of days from the beginning of the first of such two fiscal years to the date of
termination, and the denominator of which is 730.
7.2 In the event of termination of the employment of a Participant
pursuant to Section 6.3 of his or her Employment Agreement, such Participant
shall not be entitled to a bonus for the fiscal year of the Company in which
such termination occurs.
7.3 In the event of termination of the employment of a Participant
by the Participant for any reason, other than pursuant to Section 6.1, 6.2 or
6.6 of his or her Employment Agreement, such Participant shall not be entitled
to a bonus for the fiscal year of the Company in which such termination occurs.
7.4 No Participant shall be entitled to a bonus for any fiscal year
of the Company subsequent to the fiscal year in which his or her termination of
employment (for any or no reason) occurs.
7.5 If any portion of the Bonus Pool shall not be allocated or paid
by reason of this Section 7, such portion shall be retained by the Company or
paid to other Participants or to new participants, all as determined by the
Board in its discretion, after consideration of any recommended course of action
submitted to the Board by the Chief Executive Officer and Chief Operating
Officer of the Company.
8. Bonus Options.
8.1 Grant. For each $500,000 of EBITDA in excess of $6,000,000
attained by the Company in each of the fiscal
<PAGE> 20
4
years of the Company beginning with the fiscal year ending October 31, 1998, the
Company shall cause to be granted to the Participants by the Board of Directors
of Norton McNaughton, Inc., a Delaware corporation ("Norton"), options (the
"Bonus Options") to purchase an aggregate of 28,000 (or such lesser number as
shall be necessary to allocated Bonus Options in accordance with Section 8.2
below) shares of common stock, par value $.01 per share, of Norton (the "Common
Stock"). The Bonus Options shall be granted, if at all, as of the last day of
the applicable fiscal year and shall have an exercise price per share equal to
the fair market value of the Common Stock on the date of grant.
8.2 Allocation of Bonus Options. The Bonus Options shall be
allocated 10,000 to Bregman, 10,000 to Zwilling, 3,000 to Ciacci, 2,000 to
Moser, 2,000 to Tse and 1,000 to Glazer.
8.3 Exercise. The Bonus Options shall be fully vested and
exercisable on and after the date of grant.
8.4 Term of Options. Except as provided below, the term of the Bonus
Options shall be ten years.
(i) If a Participant's employment with the Company terminates
pursuant to Section 6.1 of his or her Employment Agreement, is terminated by the
Company or by the Participant pursuant to Section 6.2 of his or her Employment
Agreement, is terminated by the Company pursuant to Section 6.4 of his or her
Employment Agreement, is terminated by the Employee pursuant to Section 6.6 of
his or her Employment Agreement, or terminated for any other reason (except as
provided in clause (ii) below), the Bonus Options may be exercised by the
Participant (or his estate or legal representative) within one (1) year after
such termination; and
(ii) In the event of termination of the employment of a
Participant (a) by the Company pursuant to Section 6.3 of his or her Employment
Agreement or (b) by the Participant other than pursuant to Sections 6.1, 6.2 or
6.6 of his or her Employment Agreement, no Bonus Options shall be exercisable.
8.5 Adjustments. In the event of any dividend or other distribution
(whether in the form of cash, Common Stock, other securities or other property),
recapitalization, stock split, reverse stock split, reorganization, merger,
consolidation, split-up, spin-off, combination, repurchase or exchange of Common
Stock or other securities of Norton, issuance of warrants or other rights
<PAGE> 21
5
to purchase Common Stock, the Board of Directors shall, in such manner as it may
deem equitable, adjust the number of shares of Common Stock (or other securities
or property) subject to the Bonus Options, the exercise price with respect to
any Bonus Options, or both.
8.6 No Participant shall be entitled to Bonus Options for any fiscal
year of the Company subsequent to the fiscal year in which his or her
termination of employment (for any or no reason) occurs.
8.7 In the event of termination of the employment of a Participant
prior to the end of a fiscal year, pursuant to Sections 6.1, 6.2, 6.4, 6.5 or
6.6 of his or her Employment Agreement, such Participant (or his or her estate
or other legal representative) shall be granted such Bonus Options for such
fiscal year only as provided in this Section 8.7. The number of Bonus Options to
which the Participant (or his or her estate or legal representative) shall be
entitled for such fiscal year (which shall be granted at the time that the Bonus
Options are granted to the other Participants) shall be equal to the product of
(x) the number of Bonus Options, if any, which would have been granted to the
Participant pursuant to Sections 8.1 and 8.2 of this Bonus Plan for such fiscal
year if the employment of the Participant had not so terminated, multiplied by
(y) a fraction, the numerator of which is the number of days from the beginning
of such fiscal year to the date of termination, and the denominator of which is
365. The terms and conditions of any such Bonus Options shall be as otherwise
provided in this Section 8.
8.8 If any portion of the Bonus Options shall not be allocated or
granted by reason of this Section 8, such Bonus Options shall be retained by the
Company or granted to other Participants or to new participants, all as
determined by the Board in its discretion, after consideration of any
recommended course of action submitted to the Board by the Chief Executive
Officer and Chief Operating Officer of the Company.
<PAGE> 1
EXHIBIT 5
October 28, 1997
Norton McNaughton, Inc.
463 Seventh Avenue
New York, New York 10018
Dear Sir or Madam:
We have acted as counsel for Norton McNaughton, Inc., a Delaware
corporation (the "Company"), in connection with the registration statement on
Form S-8 being filed by the Company under the Securities Act of 1933, as
amended, with respect to 640,000 shares (the "Stock Option Shares") of the
Company's common stock, $.01 par value, which have been or are to be offered to
certain executives of ME Acquisition Corp., a Delaware corporation and wholly
owned subsidiary of the Company ("MEAC"), pursuant to the MEAC Bonus Plan for
Senior Executives and to each of Stuart Bregman, Howard Zwilling, Roberta
Ciacci, Samuel Glaser, Elizabeth Moser and Kenny Tse pursuant to their
respective Employment Agreements dated as of August 29, 1997 with the Company
(collectively, the "Stock Option Plan").
In connection with such registration statement, we have examined
such records and documents and such questions of law as we have deemed
appropriate for purposes of this opinion. On the basis of such examination, we
advise you that in our opinion:
(1) the Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State
of Delaware; and
(2) the Stock Option Shares have been duly and validly authorized
and, when issued and paid
<PAGE> 2
Norton McNaughton, Inc.
October 28, 1997
Page 2
for in accordance with the terms of the Stock Option Plan, and
stock options duly granted or to be granted thereunder, will
be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
aforesaid registration statement.
Very truly yours,
/s/ Haythe & Curley
