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
14
New York, New York 10018
Attention:
Secretary
Telephone:
(212) 403-0300
Fax:
(212) 764-9275
With copies to:
Milbank, Tweed, Hadley & McCloy LLP
One Chase Manhattan Plaza
New York, NY 10005
Attention:
Roland Hlawaty
Telephone:
(212) 530-5735
Fax:
(212) 822-5735
and
Cerberus Capital Management, L.P.
299 Park Avenue
New York, NY 10171
Attention:
George Kollitides
Fax:
(212) 284-7916
(B)
IF TO THE EXECUTIVE, TO THE EXECUTIVE'S HOME
ADDRESS REFLECTED IN THE COMPANY'S RECORDS,
With a copy to:
Epstein Becker & Green, P.C
250 Park Avenue
New York, NY 10177-1211
Attention:
Howard Pianko, Esq.
Fax:
(212) 878-8691
10.2
ENTIRE AGREEMENT.
THIS AGREEMENT, INCLUDING
EXHIBIT A HERETO, 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.
TO THE EXTENT THAT ANY PROVISION OF THIS AGREEMENT
CONFLICTS WITH ANY CURRENT OR FUTURE POLICY OR PROCEDURE OF THE COMPANY, THE
PROVISIONS OF THIS AGREEMENT SHALL PREVAIL.
10.3
REPRESENTATIONS AND WARRANTIES BY 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.
15
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AMENDED, MODIFIED, SUPERSEDED, CANCELED, RENEWED OR EXTENDED, AND THE TERMS AND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 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.
10.5
GOVERNING LAW 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 CONFLICT OF LAW 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 THIS AGREEMENT AND HEREBY WAIVE, AND