FIRST AMENDMENT dated as of April 4, 1994 to AGREEMENT
(the "Agreement") dated as of March 23, 1992, between Collins &
Aikman Group, Inc. (the "Company") and David J. McKittrick
("Employee").
WHEREAS, the Company and Employee desire to amend the
Agreement as hereinafter provided;
NOW, THEREFORE, in consideration of the premises and
mutual covenants contained herein and for other good and valuable
consideration, the parties hereto hereby agree as follows:
1. Section 1 of the Agreement is hereby amended by
changing "March 24, 1994" to "July 30, 1994".
2. The first sentence of Section 2 of the Agreement is
hereby deleted and replaced with the following:
"From March 23, 1992 until April 4, 1994, Employee
shall be the Vice Chairman and Chief Operating Officer of
the Company. From April 4, 1994 until further notice from
the Company, Employee shall be the Principal Financial and
Accounting Officer of the Company, and thereafter Employee
shall have such other title consistent with his limited
responsibilities as the Company and Employee shall agree.
During the term of this Agreement, Employee shall perform
such services for the Company and its subsidiaries as may be
assigned to him from time to time by the Vice-Chairman and
the Co-Chairman of the Board of Directors of the Company."
3. The third sentence of Section 2 of the Agreement is
hereby amended by adding the following at the end thereof after
the words "his duties in such positions":
"; provided, however, that during the period from April 4,
1994 until July 30, 1994, Employee shall be permitted to
initiate a job search."
4. The first sentence of Section 3.2(a) of the Agreement
is hereby amended by adding the following at the end thereof
after the words "January 29, 1994":
"and a cash bonus of not less than $87,500 for the six
months ending July 30, 1994."
5. The last sentence of Section 3.2(a) of the Agreement is
hereby amended to add the following at the end thereof after the
word "relate":
"except that the bonus for the period ending July 30, 1994
shall be payable to the extent of 50% not later than August
30, 1994 and to the extent of 50% not later than November
30, 1994."
6. Clause (i) of Section 3.2(b) is hereby amended by
adding the words "or portion thereof" after the words "fiscal
year" the first time they appear and by changing the words "the
last day of such fiscal year" to "July 1, 1994".
7. Clause (ii) of Section 3.2(b) of the Agreement is
hereby
amended to read in its entirety as follows:
"(ii) if Employee is employed hereunder for less than the
period from January 30, 1994 to July 30, 1994 for any reason
other than a voluntary termination by Employee (excluding,
however, a voluntary termination by Employee after July 1,
1994) or a termination for Cause by the Company, Employee
shall be entitled to receive, in lieu of any bonus under
Section 3.2(a) for such period, a pro rata portion (based on
the number of weeks of such period during which Employee was
actually employed hereunder over 26) of $87,500.
8. Sections 3.3 (a) through (e) of the Agreement are
hereby amended to read in their entirety as follows:
"(a) Subject to the vesting provisions set forth
herein, Employee shall receive an award (the
"Investment") having an aggregate "Value" equal to
$1,000,000.
(b) The Investment that Employee is eligible to
receive shall vest as follows: (i) 20% of the
aggregate Value shall vest at the end of each of
the first two 12-month periods during which
Employee is employed by the Company and its
affiliates and (ii) an amount equal to $547.95
shall vest daily thereafter for the period during
which Employee is employed by the Company and its
affiliates, provided that Employee is so employed
until July 1, 1994 or is involuntarily terminated
by the Company without Cause prior to that date,
until 100% of the aggregate Value is vested.
(c) Upon termination of Employee's employment with the
Company and its affiliates for any reason other
than termination for Cause, Employee shall receive
the vested Value of the Investment calculated
pursuant to Section 3.3 (a) and (b).
(d) Employee's rights with respect to the Investment
shall not continue after Employee's termination of
employment with the Company and its affiliates,
except for rights to payment under Section 3.3(c)
with respect to Employee's termination of
employment.
(e) Payments under this Section 3.3 shall be made in a
lump sum cash payment upon Employee's termination
of employment without Cause."
2
9. Section 3.4(a) of the Agreement is hereby amended to
read in its entirety as follows:
"(a) If Employee's employment with the Company and its
affiliates terminates after March 23, 1994, for whatever
reason (including, without limitation, termination at the
end of the term of employment under Section 1, as extended
by written mutual agreement) other than termination for
Cause, Employee shall receive as a retirement severance
benefit $17,000 payable in cash promptly after such
termination. In addition, the Company hereby acknowledges
that if Employee's employment with the Company terminates
after March 24, 1994, Employee shall be fully vested under
the Collins & Aikman Corporation Profit Sharing Plan and the
Collins & Aikman Corporation Employees' Pension Account Plan
and will receive the value of his vested accounts in a lump
sum following termination of employment."
10. The third sentence of Section 3.4(b) of the Agreement
is hereby amended to read in its entirety as follows:
"Upon termination of Employee's employment with the Company,
provided that such termination is after July 1, 1994 or is
an involuntary termination by the Company without Cause,
Employee shall be given ownership of such automobile and
shall not be required to pay any purchase price in
connection therewith."
11. Section 3.4(c) of the Agreement is hereby amended to
read in its entirety as follows:
"Employee shall be entitled to four weeks of paid vacation
per 12 month period of his employment hereunder, which shall
accrue on a continuous basis (i.e. 1.67 vacation days for
every month of employment). Upon termination of Employee's
employment with the Company, provided that such termination
is after July 1, 1994 or is an involuntary termination by
the Company without Cause, Employee shall be entitled to
cash in a lump sum for any unused vacation days (rounded up
to the nearest whole day)."
12. Section 5.3 of the Agreement is hereby amended to add
the following at the end thereof:
"Upon termination of Employee's employment with the Company,
provided that such termination is after July 1, 1994 or is
an involuntary termination by the Company without Cause,
Employee shall be given ownership of his personal office
equipment, including his computer and peripherals, home fax
and cellular phone, and shall not be required to pay any
purchase price in connection therewith."
3
13. Clauses II and III of Section 6.1 are hereby amended to
read in their entirety as follows:
"(ii) any unpaid cash bonus that Employee may be entitled to
receive pursuant to Section 3.2, and (iii) any amounts that
may be due to Employee pursuant to Sections 3.3, 3.4(a) and
3.4(c)."
14. The validity, interpretation and performance of this
Amendment shall be governed by the internal laws of the State of
New York, regardless of the laws that might be applied under
applicable principles of conflicts of laws. Each of the parties
hereby waives any right such party may have to a trial by jury.
15. All references in the Agreement to this "Agreement"
shall mean the Agreement, as amended hereby. Except as expressly
amended hereby, the Agreement shall continue in full force and
effect in accordance with the provisions thereof.
16. In consideration of the Company entering into this
Amendment, Employee unconditionally releases the Company and its
subsidiaries and affiliates and directors, officers, employees
and stockholders thereof, from any and all claims, liabilities
and obligations of any nature pertaining to the termination of
his employment, other than those explicitly provided for by the
Agreement as amended hereby and amounts payable with respect to
Employee under benefit plans covering Employee, including,
without limitation, any claims arising out of alleged legal
restrictions on the Company's rights to terminate its employees,
such as any termination contrary to public policy or to laws
prohibiting discrimination (including, without limitation, the
Age Discrimination in Employment Act).
IN WITNESS WHEREOF, the parties hereto have executed
this Amendment as of the day and year first above written.
/s/ David J. McKittrick [L.S.]
David J. McKittrick
COLLINS & AIKMAN GROUP, INC.
By /s/ David A. Stockman
David A. Stockman
Title: Co-Chairman and Co-Chief
Executive Officer
By /s/ Randall J. Weisenburger
Randall J. Weisenburger
Title: Vice Chairman
4