Exhibit 10.48


 


AMENDED AND RESTATED EMPLOYMENT
AGREEMENT


 


AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”),
dated as of October 13, 2010 (the “Effective Date”),
between Rafaella Apparel Group, Inc. (the “Company”)
and Richard Metzger (the “Executive”, and
together with the Company, the “Parties”).


 


WHEREAS,
the Executive is currently employed by the Company pursuant to the terms of a
letter agreement between the Company and the Executive, dated as of September 12,
2007 (the “Prior Agreement”); and


 


WHEREAS,
the Company desires to amend and restate the terms of the Prior Agreement and
the Executive wishes to continue his employment with the Company on the terms
and conditions set forth herein.


 


NOW,
THEREFORE, in consideration of the premises and mutual agreements hereinafter
contained, the Parties hereto agree as follows:


 


1.             Term.  This Agreement and the employment
relationship hereunder shall commence on the Effective Date and continue until
the Executive’s employment terminates in accordance with Section 4.  As used in this Agreement, the “Term” shall refer to the period beginning on the Effective
Date and ending on the date the Executive’s employment terminates in accordance
with Section 4.  In the event
that the Executive’s employment with the Company terminates, the Company’s
obligation to continue to pay all base salary, as adjusted, bonus and other
benefits then accrued shall terminate except as may be provided for in Section 5.


 


2.             Duties and
Title.


 


2.1           Title.  The Company shall employ the Executive to
render exclusive and full-time services to the Company and its
subsidiaries.  The Executive shall serve
in the capacity of Executive Vice-President of Design of the Company and shall
report to the Chief Executive Officer of the Company (the “CEO”)
or any other executive officer of the Company as may be directed by the CEO or
the Board of Directors of the Company (the “Board”).


 


2.2           Duties.  The Executive will have such authority and
responsibilities and will perform such duties customarily performed by an
executive vice-president of design of a company in similar lines of business as
the Company and its subsidiaries or as may be assigned to the Executive by the
CEO.  The Executive will devote all his
full working-time and attention to the performance of such duties and to the
promotion of the business and interests of the Company and its subsidiaries; provided,
that the Executive may engage in philanthropic activities and passive
investment activities as long as such activities do not conflict with or
materially interfere with the performance of his duties, as reasonably
determined by the Board.


 


3.             Compensation
and Benefits by the Company.  As compensation for all services performed by
the Executive for the Company and its subsidiaries, the Company shall provide
the Executive the following during the Term:


 

















 


3.1           Base Salary.  The Company will pay to the Executive an
annual base salary of $375,000, payable in accordance with the customary
payroll practices of the Company (“Base Salary”).  The then current Base Salary shall be
reviewed annually.


 


3.2           Bonuses.  The Executive will be eligible to receive an
annual bonus (“Bonus”) based on annual pre-tax
profits under a plan established by the Company.  The Executive’s target bonus shall be fifty
percent (50%) of Base Salary, with the actual amount of each Bonus being
determined as provided under such plan. 
For any partial fiscal years, the Bonus will be prorated based on the
number of days of actual employment during a three hundred and sixty five (365)-day
fiscal year.  The Bonus will be paid on September 30th
of the Company’s immediately subsequent fiscal year in which the services
required for payment have been performed.


 


3.3           Participation in Employee
Benefit Plans.  The
Executive shall be entitled, if and to the extent eligible, to participate in
all of the applicable benefit plans of the Company that are available to other
senior executives of the Company, on terms which are at least as favorable as
the terms for other senior executives. 
The Company may at any time or from time to time amend, modify, suspend
or terminate any employee benefit plan, program or arrangement for any reason
without the Executive’s consent if such amendment, modification, suspension or
termination is consistent with the amendment, modification, suspension or
termination for other executives of the Company.


 


3.4           Vacation.  The Executive shall be entitled to a paid
vacation schedule on terms at least as favorable as for other executives of the
Company; provided, however that such vacation shall be a minimum of four
(4) weeks of paid vacation annually. 
Vacation carry-over policy shall be the same terms as those enforced for
other executives of the Company.


 


3.5           Expense Reimbursement.  The Executive shall be entitled to receive
reimbursement for all appropriate business expenses incurred by him in
connection with his duties under this Agreement in accordance with the policies
of the Company as in effect from time to time.


 


3.6           Equity Grant.  The Executive shall be eligible to
participate in the Company’s Equity Incentive Plan (the “Equity
Incentive Plan”).  The
Executive shall receive an equity grant to be determined by the Board
subsequent to the execution hereof.  The
equity award shall be subject to the terms and conditions of the Equity
Incentive Plan and the Company’s customary documentation with respect thereto.


 


4.             Termination of
Employment.


 


4.1           Due to Death of the
Executive.  The
Executive’s employment shall terminate immediately upon his death.


 


4.2           Due to Disability of the
Executive.  The
Executive’s employment shall terminate upon the Executive’s “Disability.”  For the purposes of this Agreement, “Disability” means a determination by the Company in
accordance with applicable law that as a result of a physical or mental injury
or illness, the Executive is unable to perform the essential functions of his
job with or without reasonable accommodation for a period of ninety (90)
consecutive days in any three hundred and sixty (360)-day period.


 


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4.3           By the Company.  The Company may terminate the Executive’s
employment at any time during the Term with or without “Cause,” upon written
notice by the Company to the Executive, and the Executive’s employment will
terminate on the date specified in such written notice.


 


For the purposes of this Agreement, “Cause”
means (i) commission of a felony by the Executive or embezzlement from the
Company; (ii) other acts of dishonesty by the Executive resulting or
intending to result in personal gain or enrichment at the expense of the
Company or its subsidiaries; (iii) the Executive’s material breach of his
obligations under this Agreement; (iv) conduct by the Executive in
connection with his duties hereunder that is fraudulent, unlawful or grossly
negligent, including, but not limited to, acts of discrimination; (v) engaging
in personal conduct by the Executive (including but not limited to employee
harassment or discrimination, the use or possession at work of any illegal
controlled substance) which seriously discredits or damages the Company or its
subsidiaries; (vi) contravention of specific lawful direction from the CEO
(or from any other executive officer of the Company to who the Executive
reports) or continuing inattention to or continuing failure to adequately
perform the duties to be performed by the Executive under the terms of Section 2.2;
or (vii) breach of the Executive’s covenants set forth in Section 6
below before termination of employment; provided, that solely with
respect to sub-clauses (iii) and (vi) immediately preceding, the
Executive shall have fifteen (15) days after notice from the Company to cure
the deficiency (if such deficiency is curable) leading to any such
determination of Cause.  A termination
for “Cause” shall be effective immediately (or on such other date set forth by
the Company).


 


4.4           By the Executive.  The Executive may terminate his employment
with the Company at any time during the Term for any reason, upon thirty (30)
days written notice by the Executive to the Company.


 


4.5           Automatic Termination of
Other Positions.  Upon the
Executive no longer being employed by the Company for any reason whatsoever,
the Executive shall automatically be deemed to have resigned as an officer and
director of all subsidiaries of the Company without any further action being
required by the Executive, the Company or any subsidiary of the Company.


 


5.             Severance
Payment.


 


5.1           By the Company for Cause or
by the Executive for any reason or Due to Death or Disability.  If: (i) the Executive’s employment
terminates due to his death; (ii) the Company terminates the Executive’s
employment with the Company for Cause; (iii) the Company terminates the
Executive’s employment with the Company due to the Executive’s Disability; or (iv) the
Executive terminates his employment for any reason, then the Executive or the
Executive’s legal representatives (as appropriate), shall be entitled to
receive the following:


 


(a)           the Executive’s accrued but
unpaid Base Salary, if any, to the date of termination, payable within thirty
(30) days after the termination of the Executive’s employment;


 


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(b)           the unpaid portion of the
Bonus, if any, relating to the fiscal year immediately prior to the fiscal year
of the Executive’s death, Disability, resignation or termination by the Company
for Cause payable in accordance with Section 3.2;


 


(c)           expenses reimbursable under Section 3.5
incurred but not yet reimbursed to the Executive to the date of termination,
payable within thirty (30) days after the termination of the Executive’s
employment; and


 


(d)           any rights the Executive may
have under the Company’s benefit plans and the Consolidated Omnibus Budget
Reconciliation Act.


 


5.2           By the Company Without Cause.  If during the Term the Company terminates the
Executive’s employment without Cause (which may be done at any time without
prior notice), then, in addition to the payments upon termination specified in Section 5.1,
the Executive shall receive, upon execution without revocation of a valid
release agreement in a form acceptable to the Company, continued payment of
Base Salary for a period of six (6) months following the date of
termination.


 


6.             Restrictions
and Obligations of the Executive.


 


6.1           Confidentiality.


 


(a)           During the course of the
Executive’s service relationship with the Company and its affiliates, the
Executive will  have access to certain trade
secrets and confidential information relating to the Company and its
subsidiaries (the “Protected Parties”)
which is not readily available from sources outside the Company.  The confidential and proprietary information
and trade secrets of the Protected Parties are among their most valuable
assets, including but not limited to, their customer, supplier and vendor lists,
databases, competitive strategies, computer programs, frameworks, or models,
their marketing programs, their sales, financial, marketing, training and
technical information, their product development (and proprietary product data)
and any other information, whether communicated orally, electronically, in
writing or in other tangible forms concerning how the Protected Parties create,
develop, acquire or maintain their products and marketing plans, target their
potential customers and operate their retail and other businesses.  The Protected Parties invested, and continue
to invest, considerable amounts of time and money in their process, technology,
know-how, obtaining and developing the goodwill of their customers, their other
external relationships, their data systems and data bases, and all the
information described above (hereinafter collectively referred to as “Confidential Information”), and any misappropriation or
unauthorized disclosure of Confidential Information in any form would
irreparably harm the Protected Parties. 
The Executive acknowledges that such Confidential Information
constitutes valuable, highly confidential, special and unique property of the
Protected Parties.  The Executive shall
hold in a fiduciary capacity for the benefit of the Protected Parties all
Confidential Information relating to the Protected Parties and their
businesses, which shall have been obtained by the Executive during the
Executive’s employment by the Company or its subsidiaries and which shall not
be or become public knowledge (other than by acts by the Executive or
representatives of the Executive in violation of this 


 


4

















 


Agreement).  Except as required by law or an order of a
court or governmental agency with jurisdiction or a subpoena or other legal
process, the Executive shall not, during the period the Executive is employed
by the Company or its subsidiaries or at any time thereafter, disclose any
Confidential Information, directly or indirectly, to any person or entity for
any reason or purpose whatsoever, nor shall the Executive use it in any way,
except in the course of the Executive’s employment with, and for the benefit
of, the Protected Parties or to enforce any rights or defend any claims
hereunder or under any other agreement to which the Executive is a party; provided,
that such disclosure is relevant to the enforcement of such rights or defense
of such claims and is only disclosed in the formal proceedings related
thereto.  The Executive shall take all
reasonable steps to safeguard the Confidential Information and to protect it
against disclosure, misuse, espionage, loss and theft.  The Executive understands and agrees that the
Executive shall acquire no rights to any such Confidential Information.


 


(b)           All files, records, documents, drawings,
specifications, data, computer programs, evaluation mechanisms and analytics
and similar items relating thereto or to the Business (for the purposes of this
Agreement, “Business” shall be as defined in Section 6.3),
as well as all customer lists, specific customer information, compilations of
product research and marketing techniques of the Company and its subsidiaries,
whether prepared by the Executive or otherwise coming into the Executive’s
possession, shall remain the exclusive property of the Company and its
subsidiaries, and the Executive shall not remove any such items from the
premises of the Company and its subsidiaries, except in furtherance of the
Executive’s duties under any employment agreement.


 


(c)           It is understood that while employed by the Company
or its subsidiaries, the Executive will promptly disclose to it, and assign to
it the Executive’s interest in any invention, improvement or discovery made or
conceived by the Executive, either alone or jointly with others, which arises
out of the Executive’s employment.  At
the Company’s request and expense, the Executive will assist the Company and
its subsidiaries during the period of the Executive’s employment by the Company
or its subsidiaries and thereafter in connection with any controversy or legal
proceeding relating to such invention, improvement or discovery and in
obtaining domestic and foreign patent or other protection covering the same.


 


(d)           As requested by the Company and at the Company’s
expense, from time to time and upon the termination of the Executive’s
employment with the Company for any reason, the Executive will promptly deliver
to the Company and its subsidiaries all copies and embodiments, in whatever
form, of all Confidential Information in the Executive’s possession or within
his control (including, but not limited to, memoranda, records, notes, plans,
photographs, manuals, notebooks, documentation, program listings, flow charts,
magnetic media, disks, diskettes, tapes and all other materials containing any
Confidential Information) irrespective of the location or form of such
material.  If requested by the Company,
the Executive will provide the Company with written confirmation that all such
materials have been delivered to the Company as provided herein.


 


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6.2           Non-Solicitation or Hire.  During the Term and for a
period of six (6) months following the termination of the Executive’s
employment for any reason, the Executive shall not, directly or indirectly (i) solicit
or attempt to solicit or induce, directly or indirectly, any party who is a
customer of the Company or its subsidiaries, or who was a customer of the
Company or its subsidiaries at any time during the twelve (12) month period
immediately prior to the date the Executive’s employment terminates, for the
purpose of marketing, selling or providing to any such party any services or
products offered by or available from the Company or its subsidiaries (or
services or products that were contemplated or planned to be offered by the
Company or any of its subsidiaries during the Term of the Executive’s
employment), (b) solicit or attempt to solicit or induce, directly or
indirectly, any supplier to the Company or any subsidiary to terminate, reduce
or alter negatively its relationship with the Company or any subsidiary or in
any manner interfere with any agreement or contract between the Company or any
subsidiary and such supplier, (c) hire, directly or indirectly, any
employee of the Company or any of its subsidiaries or any person who was an
employee of the Company or any of its subsidiaries during the twelve (12) month
period immediately prior to the date the Executive’s employment terminates, or (d) solicit
or attempt to solicit, directly or indirectly, any person who was an employee
of the Company or any of its subsidiaries or any person who was an employee of
the Company or any of its subsidiaries during the twelve (12) month period
immediately prior to the date the termination of the Executive’s employment, to
terminate such employee’s employment relationship and/or to enter into a
similar relationship with the Executive, or any other person or any other
person or entity.


 


6.3           Non-Competition.  During the Term and for a period of six (6) months
following the termination of the Executive’s employment by the Company (for any
reason), the Executive shall not, whether individually, as a director, manager,
member, stockholder, partner, owner, employee, consultant or agent of any
business, or in any other capacity, other than on behalf of the Company or a
subsidiary, organize, establish, own, operate, manage, control, engage in,
participate in, invest in, permit his name to be used by, act as a consultant
or advisor to, render services for (alone or in association with any person,
firm, corporation or business organization), or otherwise assist any person or
entity that engages in or owns, invests in, operates, manages or controls any
venture or enterprise which engages or proposes to engage in the women’s career
and casual separates clothing business in the geographic locations where the
Company and its subsidiaries engage or propose to engage in such business (the “Business”). 
Notwithstanding the foregoing, nothing in this Agreement shall prevent
the Executive from owning for passive investment purposes not intended to
circumvent this Agreement, less than five percent (5%) of the publicly traded
common equity securities of any company engaged in the Business (so long as the
Executive has no power to manage, operate, advise, consult with or control the
competing enterprise and no power, alone or in conjunction with other
affiliated parties, to select a director, manager, general partner, or similar
governing official of the competing enterprise other than in connection with
the normal and customary voting powers afforded the Executive in connection
with any permissible equity ownership).


 


6.4           Property.  The Executive acknowledges that all originals
and copies of materials, records and documents generated by him or coming into
his possession during his employment by the Company or its subsidiaries are the
sole property of the Company and its subsidiaries (“Company
Property”).  During the Term,
and at all times thereafter, the Executive shall not remove, or cause to be
removed, from the premises of the Company or its subsidiaries, copies of 


 


6

















 


any record, file, memorandum, document, computer
related information or equipment, or any other item relating to the business of
the Company or its subsidiaries, except in furtherance of his duties under this
Agreement.  When the Executive’s
employment with the Company terminates, or upon request of the Company at any
time, the Executive shall promptly deliver to the Company all copies of Company
Property in his possession or control.


 


7.             Nondisparagement.  The Executive agrees that he will not at any
time (whether during or after the Term) publish or communicate to any person or
entity any Disparaging (as defined below) remarks, comments or statements
concerning the Company, Cerberus Capital Management, L.P., their parents,
subsidiaries and affiliates, and their respective present and former members,
partners, directors, officers, shareholders, employees, agents, attorneys,
successors and assigns.  “Disparaging” remarks, comments or statements are those that
impugn the character, honesty, integrity or morality or business acumen or
abilities in connection with any aspect of the operation of business of the
individual or entity being disparaged.


 


8.             Remedies; Specific
Performance.  The Parties
acknowledge and agree that the Executive’s breach or threatened breach of any
of the restrictions set forth in Section 6 and Section 7
will result in irreparable and continuing damage to the Protected Parties for
which there may be no adequate remedy at law and that the Protected Parties
shall be entitled to equitable relief, including specific performance and
injunctive relief as remedies for any such breach or threatened or attempted
breach without the necessity of the posting of a bond or surety therefor.  The Executive hereby consents to the granting
of equitable relief, including but limited to the granting of injunctive relief
(temporary or otherwise) against the Executive or the entry of any other court
order against the Executive prohibiting and enjoining him from violating, or
directing him to comply with any provision of Section 6 or Section 7.  The Executive also agrees that such remedies
shall be in addition to any and all remedies, including damages, available to
the Protected Parties against him for such breaches or threatened or attempted
breaches.  In addition, without limiting
the Protected Parties’ remedies for any breach of any restriction on the
Executive set forth in Section 6 or Section 7, except
as required by law, the Executive shall not be entitled to any payments set
forth in Section 5.2 hereof if the Executive has breached the
covenants applicable to the Executive contained in Section 6 or Section 7,
the Executive will immediately return to the Protected Parties any such
payments previously received under Section 5.2 upon such a breach,
and, in the event of such breach, the Protected Parties will have no obligation
to pay any of the amounts that remain payable by the Company under Section 5.2.


 


9.             Indemnification. The Company
agrees, to the extent permitted by applicable law and its organizational
documents, to indemnify, defend and hold harmless the Executive from and
against any and all losses, suits, actions, causes of action, judgments,
damages, liabilities, penalties, fines, costs or claims of any kind or nature (“Indemnified Claim”), including reasonable legal fees and
related costs incurred by the Executive in connection with the preparation for
or defense of any Indemnified Claim, whether or not resulting in any liability,
to which the Executive may become subject or liable or which may be
incurred by or assessed against the Executive, relating to or arising out of
his employment by the Company or the services to be performed pursuant to this
Agreement; provided, that the Company shall only defend, but not
indemnify or hold the Executive harmless, from and against an Indemnified Claim
in the event there is a final, non-appealable, determination that the Executive’s
liability with respect to such Indemnified Claim resulted from the Executive’s
willful misconduct or gross 


 


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negligence.
The Company’s obligations under this Section shall be in addition to any
other right, remedy or indemnification which the Executive may have or be
entitled to at common law or otherwise.


 


10.           Other
Provisions.


 


10.1         Notices.  Any notice or other communication required or
which may be given hereunder shall be in writing and shall be delivered
personally, sent by facsimile transmission or sent by certified, registered or
express mail, postage prepaid or overnight mail and shall be deemed given when
so delivered personally, or sent by facsimile transmission or, if mailed, four (4) days
after the date of mailing or one (1) day after overnight mail, as follows:


 


(a)           If the Company, to:


 


Rafaella Apparel Group, Inc.


1411 Broadway


New York, New York 10018


Attention:  Secretary


Telephone:  (212) 403-0300


Fax:  (212) 764-9275


 


(b)           If the Executive, to the
Executive’s home address reflected in the Company’s records.


 


10.2         Entire Agreement.  This Agreement contains the entire agreement
between the Parties with respect to the subject matter hereof and supersedes
all prior agreements, written or oral, with respect thereto, including, but not
limited to the Prior Agreement.


 


10.3         Representations and
Warranties by the Executive.  The Executive represents and warrants that he
is not a party to or subject to any restrictive covenants, legal restrictions
or other agreements in favor of any entity or person which would in any way
preclude, inhibit, impair or limit the Executive’s ability to perform his
obligations under this Agreement, including, but not limited to,
non-competition agreements, non-solicitation agreements or confidentiality
agreements.


 


10.4         Waiver and Amendments.  This Agreement may be amended, modified,
superseded, canceled, renewed or extended, and the terms and conditions hereof
may be waived, only by a written instrument signed by the Parties or, in the
case of a waiver, by the party waiving compliance.  No delay on the part of any party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver on the part of any right, power or privilege
hereunder, nor any single or partial exercise of any right, power or privilege
hereunder, preclude any other or further exercise thereof or the exercise of
any other right, power or privilege hereunder.


 


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10.5         Governing Law, Dispute
Resolution and Venue.


 


(a)           This Agreement shall be
governed and construed in accordance with the laws of the State of New York
applicable to agreements made and not to be performed entirely within such
state, without regard to conflicts of laws principles.


 


(b)           The parties agree
irrevocably to submit to the exclusive jurisdiction of the federal courts or,
if no federal jurisdiction exists, the state courts, located in the City of New
York, Borough of Manhattan, for the purposes of any suit, action or other
proceeding brought by any party arising out of any breach of any of the
provisions of this Agreement and hereby waive, and agree not to assert by way
of motion, as a defense or otherwise, in any such suit, action, or proceeding,
any claim that it is not personally subject to the jurisdiction of the
above-named courts, that the suit, action or proceeding is brought in an
inconvenient forum, that the venue of the suit, action or proceeding is
improper, or that the provisions of this Agreement may not be enforced in or by
such courts.  In addition, the parties
agree to the waiver of a jury trial.


 


10.6         Assignability by the Company
and the Executive.  This
Agreement, and the rights and obligations hereunder, may not be assigned by the
Company or the Executive without written consent signed by the other party; provided,
that the Company may assign this Agreement to any successor that continues the
business of the Company.


 


10.7         Counterparts.  This Agreement may be executed in one or more
original, facsimile or electronic counterparts, each of which shall be deemed
an original but all of which shall constitute one and the same instrument.


 


10.8         Headings.  The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein.


 


10.9         Severability.  If any term, provision, covenant or
restriction of this Agreement, or any part thereof, is held by a court of
competent jurisdiction of any foreign, federal, state, county or local
government or any other governmental, regulatory or administrative agency or
authority to be invalid, void, unenforceable or against public policy for any
reason, the remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be affected
or impaired or invalidated.  The
Executive acknowledges that the restrictive covenants contained in Section 6
and Section 7 constitute a condition to the Company’s entry into
this Agreement and are reasonable and valid in temporal scope and in all other
respects.


 


10.10       Judicial Modification.  If any court determines that any of the
covenants in Section 6 or Section 7, or any part of any
of them, is invalid or unenforceable, the remainder of such covenants and parts
thereof shall not thereby be affected and shall be given full effect, without
regard to the invalid portion.  If any
court determines that any of such covenants, or any part thereof, is invalid or
unenforceable because of the geographic or temporal scope of such provision,
such court shall reduce such scope to the minimum extent necessary to make such
covenants valid and enforceable.


 


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10.11       Tax Withholding.  The Company or other payor is authorized to
withhold from any benefit provided or payment due hereunder, the amount of
withholding taxes due any federal, state or local authority in respect of such
benefit or payment and to take such other action as may be necessary in the
opinion of the Board to satisfy all obligations for the payment of such
withholding taxes.


 


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IN WITNESS WHEREOF, the Parties hereto, intending to
be legally bound hereby, have executed this Amended and Restated Employment
Agreement as of the day and year first above mentioned.


 


 


	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  Richard Metzger

  
	
   

  	
  Richard
  Metzger

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  RAFAELLA
  APPAREL GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Christa Michalaros

  
	
   

  	
   

  	
  Name:
  Christa Michalaros

  
	
   

  	
   

  	
  Title:
  Chief Executive Officer