Exhibit 10.38
AMENDED AND RESTATED AGREEMENT
FOR CHAIRMAN OF BOARD OF DIRECTORS
This AMENDED AND RESTATED AGREEMENT FOR CHAIRMAN OF BOARD OF DIRECTORS (this
"Agreement") is dated as of May 21, 2010, between Rafaella Apparel Group, Inc.
(the "Company") and John Kourakos, an individual ("Director") (the Company and
Director, together, the "Parties").
WHEREAS, the Parties wish to amend and restate the terms of Director's service
as Chairman of the Board of Directors of the Company (the "Board") set forth in
the Agreement for Chairman of Board of Directors between the Parties, dated as
of October 1, 2007 (the "Prior Agreement"); and
WHEREAS, the Company desires to amend and restate the terms of the Prior
Agreement and the Director wishes to continue his service with the Company on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of Director agreeing to
serve the Company and intending to be legally bound hereby, the Parties hereto
agree as follows:
1.
SERVICE AS DIRECTOR. DIRECTOR HEREBY
AGREES TO BE ELECTED AND TO SERVE AS CHAIRMAN OF THE BOARD AND TO ASSUME THE
FOLLOWING OBLIGATIONS AND RESPONSIBILITIES:
1.1
DIRECTOR SHALL PROVIDE ACTIVE STRATEGIC AND
MANAGEMENT LEADERSHIP AND OVERSIGHT FOR THE COMPANY (AS OPPOSED TO HAVING
RESPONSIBILITIES FOR THE DAY-TO-DAY OPERATIONS OF THE COMPANY) AND SHALL PERFORM
SUCH OTHER DUTIES AND RESPONSIBILITIES AS MAY BE REASONABLY REQUESTED BY THE
BOARD OR AS ARE NORMALLY RELATED TO THE POSITION OF CHAIRMAN OF THE BOARD IN
ACCORDANCE WITH THE COMPANY'S BYLAWS AND APPLICABLE LAW, INCLUDING THOSE
SERVICES DESCRIBED ON EXHIBIT A (THE "SERVICES"). DIRECTOR HEREBY AGREES TO USE
REASONABLE EFFORTS TO PROVIDE THE SERVICES. DIRECTOR SHALL NOT ALLOW ANY OTHER
PERSON OR ENTITY TO PERFORM ANY OF THE SERVICES FOR OR INSTEAD OF DIRECTOR.
DIRECTOR SHALL, BASED UPON ADVICE FROM COUNSEL TO THE COMPANY, COMPLY WITH THE
STATUTES, RULES, REGULATIONS AND ORDERS OF ANY GOVERNMENTAL OR
QUASI-GOVERNMENTAL AUTHORITY, WHICH ARE APPLICABLE TO THE PERFORMANCE OF THE
SERVICES, AND THE COMPANY'S RULES, REGULATIONS, AND PRACTICES AS THEY MAY FROM
TIME-TO-TIME BE ADOPTED OR MODIFIED.
1.2
DIRECTOR MAY BE EMPLOYED BY ANOTHER COMPANY,
MAY SERVE ON OTHER BOARDS OF DIRECTORS AND MAY ENGAGE IN ANY OTHER BUSINESS
ACTIVITY (WHETHER OR NOT PURSUED FOR PECUNIARY ADVANTAGE), AS LONG AS SUCH
OUTSIDE ACTIVITIES DO NOT VIOLATE DIRECTOR'S OBLIGATIONS UNDER THIS AGREEMENT OR
DIRECTOR'S FIDUCIARY OBLIGATIONS TO THE SHAREHOLDERS. THE OWNERSHIP OF LESS THAN
A FIVE PERCENT (5%) INTEREST IN A PUBLIC COMPANY, BY ITSELF, SHALL NOT
CONSTITUTE A VIOLATION OF THIS DUTY. EXCEPT AS SET FORTH IN EXHIBIT B. DIRECTOR
REPRESENTS THAT HE HAS NO OUTSTANDING AGREEMENT OR OBLIGATION THAT IS IN
CONFLICT WITH ANY OF THE PROVISIONS OF THIS AGREEMENT, AND DIRECTOR AGREES TO
USE REASONABLE EFFORTS TO AVOID OR MINIMIZE ANY SUCH CONFLICT AND AGREES NOT TO
ENTER INTO ANY AGREEMENT OR OBLIGATION THAT COULD CREATE SUCH A CONFLICT,
WITHOUT THE APPROVAL OF A MAJORITY OF THE BOARD OF DIRECTORS, WHICH SHALL NOT BE
UNREASONABLY WITHHELD, CONDITIONED OR DELAYED. IF, AT ANY TIME, DIRECTOR