EXHIBIT 10.33
EMPLOYMENT AGREEMENT
BETWEEN ▇▇▇▇▇*S CORP.
AND
▇▇▇▇▇▇ ▇▇▇▇▇
DATED AS OF MAY 7, 2001
▇▇▇▇▇*s Corp. (the "Company"), a Delaware corporation, and ▇▇▇▇▇▇ ▇▇▇▇▇
(the "Executive") agree as follows:
1. EMPLOYMENT AND DUTIES.
(a) The Company shall employ the Executive, and the Executive shall serve
the Company, as the President of the Company for the Employment Period (as
defined below) as the Company's board of directors (the "Board") may from time
to time direct. The Executive shall report directly to, and be subject to the
authority of, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ either in his role as chief executive officer of
the Company or in his role as chairman of the Board. Except for vacation,
personal and sick days in accordance with the Company's policies applicable to
comparable senior executives, the Executive shall devote her full business time
and attention and use her best efforts to promote the interests of the Company,
and shall perform such duties, commensurate with the duties that presidents of
similar companies typically perform, as the person to whom she reports directs,
and shall perform such duties faithfully and diligently, consistent with sound
business practices. The Executive acknowledges that, at least initially during
the Employment Period (as defined below), the finance department, the legal
department and the investor communications department shall report directly to
▇▇. ▇▇▇▇.
(b) The Company shall cause the Executive to be appointed a director at
the first meeting of the board of directors following the Commencement Date (as
defined below) and shall cause the Executive to be nominated for re-election at
the first meeting of the stockholders of the Company following the Commencement
Date and, in the event that her term as director shall expire while she remains
in the employ of the Company under this agreement, at any subsequent meeting of
the stockholders of the Company at which the Executive's directorship is up for
re-election, PROVIDED that the Company shall not have delivered a notice of
termination of employment as contemplated in Section 3(a) or (b) and the
Executive shall not have delivered a notice of termination as contemplated in
Section 3(c).
(c) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ shall cause all shares of common stock of the Company
that he owns directly or over which he holds the power to vote to be voted in
favor of the election or re-election of the Executive at all meetings of the
stockholders of the Company at which the Executive has been nominated for
election or re-election pursuant to Section 1(b) of this Agreement.
2. COMPENSATION
(a) As compensation for all services to be rendered by the Executive
during her employment under this agreement, the Executive shall be entitled to a
base salary ("Base Salary") at the rate of $400,000 per annum (payable in equal
installments at least twice a month), subject to adjustment as provided in
Sections 2(b) and (c). At the Executive's request, payment of the Base Salary
from the Commencement Date (as defined in Section 3(a) below) through February
2, 2002 shall be deferred until, and paid in full (subject to applicable
withholding tax and other ordinary deductions) on, the first scheduled payday
following February 2, 2002.
(b) The Base Salary shall be increased to no less than $450,000 on
the first anniversary of the Commencement Date and to no less than $475,000 on
the second anniversary of the Commencement Date.
(c) The Executive's Base Salary shall be reviewed at least
annually and subject to additional increases by the compensation committee of
the Board (the "Committee"), in its sole and absolute discretion.
(d) PERFORMANCE BONUS.
(i) The Executive shall be eligible for a maximum bonus of
100% of the portion of the Base Salary actually earned in each fiscal year,
whether or not paid to the Executive, payable on or before March 31 of the
following fiscal year. Payment of all or a portion of the bonus shall be
contingent on (i) the Company meeting reasonable financial performance targets
for the Company (the "Performance Targets") set by mutual agreement between the
Committee and the Executive after negotiation in good faith and consultation
with the chief financial officer and the chief executive officer of the Company,
and, if the Company has a performance-based bonus plan for other officers of the
Company, the Performance Targets shall be based on the same financial
projections used to determine performance targets in such plan, and (ii) the
Executive meeting reasonable personal goals (the "Personal Goals") set by mutual
agreement between the Committee and the Executive after negotiation in good
faith. The Committee shall use their best efforts to set the Performance Targets
and Personal Goals for the applicable fiscal year by March 31 of such fiscal
year. Twenty percent of the Executive's bonus shall be payable based on the
attainment of the Personal Goals and the remaining 80% based on the attainment
of the Performance Targets.
(ii) One hundred percent of the Executive's bonus covering
fiscal year 2001 shall be guaranteed (the "2001 Guaranteed Bonus"). The parties
agree that the 2001 Guaranteed Bonus shall be $291,208.79.
(iii) Twenty percent of the Executive's bonus covering fiscal
year 2002 shall be guaranteed (the "2002 Guaranteed Bonus") and the remaining
80% shall be payable only in the event that the Company shall have attained the
Performance Targets for fiscal year 2002. The parties agree that the 2002
Guaranteed Bonus shall be $87,013.70.
3. TERM.
(a) The "Employment Period" shall commence on May 14, 2001 (the
"Commencement Date") and continue until the third anniversary thereof; provided
that the Employment Period shall terminate earlier: (i) upon Executive's
resignation, death or permanent disability or incapacity (if in the good faith
determination of the Board, such disability or incapacity has prevented the
Executive from substantially performing her duties and obligations under this
agreement during any period of nine consecutive calendar months and the Company
gives notice to the Executive not later than 90 days after the expiration of the
nine months, in which case the Executive's employment under this agreement shall
terminate when that notice is given) ("Disability"); (ii) in accordance with
subparagraph (c) below; (iii) on the fifteenth day following receipt of written
notice by the Company to Executive, at any time, for Cause (as defined below);
or (iv) on the thirtieth day following receipt of written notice by the Company
to Executive, at any time, without Cause.
(b) For purposes of this agreement, "Cause" shall mean, as
reasonably determined in good faith by resolution of the Board, (i) a material
breach of this agreement by Executive that results in,
or is reasonably expected by the Board to result in, material harm to the
Company and that, if capable of being remedied, Executive fails to commence to
remedy within 15 days after written notice by the Company or fails to continue
to use her best efforts to remedy promptly thereafter, (ii) a material breach of
the Executive's representation in Section 8 of the Agreement, (iii) any breach
of Executive's duty of loyalty to the Company or any of its affiliates or act of
fraud or intentional dishonesty with respect to the Company or any of its
Affiliates, which, with respect to any of the foregoing, causes, or may
reasonably be expected to cause, material harm to the Company's business, (iv)
the indictment of the Executive for commission of a felony or crime involving
moral turpitude or other wrongful act or omission causing material harm to the
standing and reputation of the Company and its Affiliates, (v) failure by the
Executive to report for work for ten (10) consecutive business days other than
for vacation, sick leave and personal leave in accordance with the Company's
policies applicable to comparable senior executives and for other reasonable
personal excuses, which failure Executive fails to cure after written notice,
(vi) willful misconduct or gross negligence in the performance of Executive's
duties to the Company that results in, or is reasonably expected by the Board to
result in, material harm to the Company, and which, if capable of being
remedied, Executive fails to commence to remedy within 15 days after written
notice by the Company or fails to continue to use her best efforts to remedy
promptly thereafter.
(c) (i) Executive may, at any time during the Employment Period by
written notice to the Company, terminate the Employment Period for "Good Reason"
effective upon such notice. "Good Reason" means (A) a material breach by the
Company of any provision of this agreement that the Company fails to commence to
remedy or cease within 15 days after written notice thereof to the Company or
fails to continue to use its best efforts to remedy promptly thereafter, (B)
failure by the Company to pay, or cause to be paid, any amounts payable to the
Executive hereunder when due, other than failures due to unintentional errors or
circumstances beyond the control of the Company that, in either case, are
remedied within three business days of notice thereof or (C) a Change in Control
shall have occurred.
(ii) For purposes of this Agreement, a "Change in Control" shall be
deemed to have occurred: (A) upon any "person" as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (other than the Company, any trustee or other fiduciary holding
securities under any employee benefit plan of the Company, any company owned,
directly or indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of Common Stock of the Company, or as a
group or individually ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, his spouse and their issue any trusts for
the benefit of any of them and parties to the Family Stockholders Agreement,
dated November 30, 1996 among ▇▇▇▇▇*s Inc., ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ and the Parties
listed on Exhibit A thereto), becoming the owner (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company
representing fifty percent (50%) or more of the combined voting power of the
Company's then outstanding securities (including, without limitation, securities
owned at the time of any increase in ownership); (B) a breach of the provision
in Section 1(a) that the Executive shall report to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ either in his
role as chief executive officer of the Company or in his role as chairman of the
Board; (C) a change in the composition of the Board such that the individuals
who, as of the date hereof, comprise the Board (the "Incumbent Board") cease for
any reason to constitute at least a majority of the Board; provided, however,
for purposes of this subsection that any individual who becomes a member of an
Incumbent Board subsequent to the date hereof whose election, or nomination for
election by the Company's stockholders, was approved in advance or
contemporaneously with such election by a vote of at least a majority of those
individuals who are members of the Incumbent Board (or deemed to be such
pursuant to this proviso) shall be considered as though such individual were a
member of the Incumbent Board; but, provided further, that any such individual
whose initial assumption of office occurs as a result of either an actual or
threatened election contest (as such terms are used in Rule 14a-12 of Regulation
14A promulgated under the Exchange Act) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board or actual or threatened tender offer
for shares of the Company or similar transaction or other contest for corporate
control (other than a tender offer by the Company) shall not be so considered as
a member of the Incumbent Board; (D) upon the merger or consolidation of the
Company with any other corporation, other than a merger or consolidation which
would result in the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) more than fifty
percent (50%) of the combined voting power of the voting securities of the
Company or such surviving entity outstanding immediately after such merger or
consolidation; provided, however, that a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in which no
person (other than those covered by the exceptions in (a) above) acquires more
than fifty percent (50%) of the combined voting power of the Company's then
outstanding securities shall not constitute a Change in Control of the Company;
or (E) upon the stockholder's of the Company approval of a plan of complete
liquidation of the Company or an agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets other than the sale
of all or substantially all of the assets of the Company to a person or persons
who beneficially own, directly or indirectly, at least fifty percent (50%) or
more of the combined voting power of the outstanding voting securities of the
Company at the time of the sale.
(d) The Executive shall begin fulltime work for the Company on May
14, 2001.
4. SEPARATION PAYMENTS.
(a) In the event of termination of the Employment Period upon the
death or Disability of the Executive, the Company shall promptly pay to
Executive (i) all sums in respect of Base Salary and benefits accrued and unpaid
to the date of termination (ii) the 2001 Guaranteed Bonus and the 2002
Guaranteed Bonus, if not previously paid, on the dates those bonuses would have
otherwise been payable, and (iii) if the Company meets the Performance Targets
for the fiscal year in which such termination takes place, a share of the
Performance Target-related bonus that the Executive would otherwise have
received, such share to be proportional to the period of the fiscal year covered
by the Employment Period. Executive shall not be entitled to receive her Base
Salary, any severance pay or any fringe benefits for periods after such
termination of the Employment Period upon death or Disability.
(b) In the event of termination of the Employment Period by the
Company for Cause or upon Executive's resignation (other than for Good Reason),
the Company shall promptly pay to Executive all sums in respect of Base Salary
and benefits accrued and unpaid to the date of termination. Within five business
days following a termination of the Employment Period by the Company for Cause
or upon Executive's resignation (other than for Good Reason), the Company may,
in its sole discretion, notify the Executive in writing of its decision to
release the Executive from her obligations under sections 6(a)-(c) of this
Agreement. In the event the Company fails to elect to release the Executive as
provided in the immediately preceding sentence, the Company shall continue to
pay the Executive the Base Salary in effect on the date of termination through
the last day of the Non-Competition Period (as defined in Section 6(a) of this
Agreement). Except as provided in the immediately preceding sentence, Executive
shall not be entitled to receive her Base Salary, any severance pay or any
fringe benefits for periods after such termination of the Employment Period or
any bonus not previously paid, irrespective of whether such bonus is guaranteed
under this Agreement.
(c) If the Employment Period is terminated by the Company without
Cause or by the Executive for Good Reason in accordance with Section 3(c), then
(i) the Company shall pay to Executive within 15 days of such termination an
amount equal to the amount the Executive would have earned if she continued to
receive the Base Salary in effect at the time of termination until the later of
(A) the first anniversary of the effective date of termination, and (B) the
third anniversary of the Commencement
Date, (ii) the Company shall pay to Executive within ten days thereof all sums
accrued and unpaid to the date of termination, (iii) the 2001 Guaranteed Bonus
and the 2002 Guaranteed Bonus, if not previously paid, on the dates those
bonuses would have otherwise been payable, and (iv) the Company shall pay to
Executive, on or before March 31 of the following fiscal year, a share of the
Performance Target-related bonus that the Executive would otherwise have
received, such share to be in proportion to the period of the fiscal year
covered by the Employment Period. In the event that the Executive is terminated
on or after the first anniversary of the Commencement Date, all amounts payable
under this Section 4(c) shall be paid in a lump sum within 15 days of the
effective date of termination. The provisions of this Section 4(c) shall
constitute Executive's sole and exclusive remedy in connection with termination
of the Employment Period by the Company without Cause or by the Executive for
Good Reason.
5. EXPENSES; FRINGE BENEFITS. During the Employment Period:
(a) The Company shall reimburse Executive for all reasonable and
customary expenses incurred by her in the course of performing her duties under
this agreement which are consistent with the Company's policies in effect from
time to time with respect to travel, entertainment and other business expenses,
subject to the Company's requirements with respect to reporting and
documentation of such expenses.
(b) The Executive shall be entitled to four weeks vacation each year
in accordance with the Company's vacation policies.
(c) The Company shall pay for, or reimburse, the Executive's round
trip economy-class airfare for commuting between work and her home in Florida
for the weekend and for vacation, personal and sick leave.
(d) The Company shall provide the Executive and members of her
immediate family with health insurance, dental insurance, disability insurance,
life insurance, pension plans (including 401(k) plans) and any similar benefits
under policies no less favorable to the Executive than the ones (i) currently in
effect for the Company's senior executive officers (if any) and (ii) offered
from time to time to the Company's other senior executive officers. During the
term of the Agreement, the Company shall maintain term life insurance coverage
on the life of the Executive in the amount of $3,000,000, the proceeds of which
shall be payable to the beneficiary or beneficiaries designated by the
Executive. The Executive agrees to undergo any reasonable physical examination
and other procedures as may be necessary to maintain such policy. If the Company
is not able to obtain such policy due to Executive's physical examination
results, an AD&D (accidental death and dismemberment) policy of an equivalent
amount will be obtained in lieu of the term life insurance coverage. In
addition, the Company may obtain key-man term life insurance on the life of the
Executive and the Company shall be the beneficiary under such policy.
(e) The Company shall pay the Executive's COBRA costs for her
current health benefits until the earlier of the commencement of the Executive's
coverage under the Company's health benefits or the thirtieth day following the
date on which the Executive becomes eligible for coverage under the Company's
health benefits.
(f) The Company shall reimburse the Executive for up to $1,000 per
month for expenses reasonably incurred in connection with her use of an
automobile.
(g) The Company shall reimburse the Executive for reasonable legal
fees incurred in connection with the negotiation of this agreement.
(h) The Company shall provide the Executive with use of a cellular
telephone, a laptop computer and two fax machine for use in connection with the
Executive's home offices in New York and Florida, and shall reimburse the
Executive for expenses reasonably incurred in connection with the use of such
home offices, including but not limited to the installation a separate phone
line for the fax and computer modem if no second line currently exists, expenses
related to business telephone calls and office supplies.
6. NON-COMPETITION
(a) So long as the Company shall not have (i) committed a material
breach of any provision of this agreement that the Company fails to commence to
remedy or cease within 15 days after written notice thereof to the Company or
fails to continue to use its best efforts to remedy such breach promptly
thereafter or (ii) failed to pay, or cause to be paid, any amounts payable to
the Executive hereunder when due, other than failures due to unintentional
errors or circumstances beyond the control of the Company that, in either case,
are remedied within three business days of notice thereof, Executive agrees that
during the Non-Competition Period, she will not directly, either for her own
account or for the benefit of any person, firm or corporation, engage in any
business focused on the sale of apparel intended for ultimate use primarily by
junior high school and high school-age girls (a "Competing Business Activity").
To illustrate this definition, the Executive and the Company agree that current
businesses engaged in a Competing Business Activity include, without limitation,
Pacific Sunwear, Hot Topic, Limited Too and Alloy. As used herein, the
"Non-Competition Period" means the Employment Period and the 90-day period
following the termination or expiration of the Employment Period.
(b) Executive agrees that during the Non-Competition Period,
Executive shall not accept any relationship, whether as a consultant,
representative, employee, executive, officer, director, manager or otherwise,
with any person, firm or corporation which is engaged in a Competing Business
Activity.
(c) During the Non-Competition Period, Executive shall not directly
or indirectly own or be a stockholder, partner of, or otherwise participate in
any company that is engaged in a Competing Business Activity. Notwithstanding
the above, Executive may hold up to a one percent (1%) interest in any publicly
held or traded company and shall have an unlimited right to invest in any mutual
fund which is publicly traded or managed by a major financial institution.
(d) Executive agrees that during the Non-Solicitation Period, she
shall not directly or indirectly through another person or entity (i) induce or
attempt to induce any employee of the Company or any Affiliate to leave the
employ of the Company or such Affiliate, or in any way interfere with the
relationship between the Company or any Affiliate and any employee thereof, (ii)
hire any person who was, at any time during the four months prior to such
hiring, an employee of the Company or any Affiliate at any time during the
Employment Period or (iii) induce or attempt to induce any customer, supplier,
licensee, licensor, franchisee, consultant or other business relation of the
Company or Affiliate to cease doing business with the Company or such Affiliate,
or in any way interfere with the relationship between any such customer,
supplier, licensee, consultant or business relation and the Company or any
Affiliate (including, without limitation, making any negative statements or
communications about the Company or its Affiliates). The foregoing shall not
apply to any personal secretary or assistant of the Executive. Nothing herein
shall limit the authority of the Executive to manage employees while she is
employed by the Company, including her authority to fire or discipline
employees. As used herein, "Non-Solicitation Period" shall mean the one-year
period from the date of termination or expiration of the Employment Period.
(e) In the event any covenant made in this agreement shall be more
restrictive than permitted by applicable law, it shall be limited to the extent
necessary to render it enforceable under applicable law.
(f) Notwithstanding anything to the contrary contained in this
Section 6, (i) nothing contained in this Section 6 shall be construed so as to
prohibit the Executive from being employed by a company or entity that engages
in a Competing Business Activity so long as Executive is not responsible for,
does not report to or have any involvement, whether direct or indirect, with any
division or unit of said company engaged in such Competing Business Activity,
(ii) this Section 6 shall be of no force or effect in the event the Employment
Period is terminated by the Company without Cause and (iii) Sections 6(a)-(c)
shall be of no force or effect in the event the Employment Period is terminated
by the Executive for Good Reason.
7. CONFIDENTIALITY. Executive acknowledges that the information, trade
secrets, confidential knowledge and data obtained by her while employed by the
Company concerning the business, new, planned or existing products and services,
or affairs of the Company, its customers, any affiliate of the Company or third
parties entering into confidentiality agreements with the Company or its
affiliates (but only to the extent such information is protected by such
confidentiality agreements) ("Confidential Information") are the property of the
Company, such affiliate or such third party. Therefore, the Executive agrees
that she shall not, at any time during or after her employment under this
agreement, disclose to any third party except in the performance of her duties
hereunder or as may be required by law, any Confidential Information except for
such information which has become publicly available other than by an act or
omission of the Executive. Executive shall deliver to the Company at the
termination of the Employment Period, or at any other time the Company may
request, all memoranda, notes, plans, records, reports, computer files,
printouts and software and other documents and data (and all copies thereof)
relating to the Confidential Information, work product or the business of the
Company or any affiliate which she may then possess or have under her control.
In no event shall the Executive's general business knowledge acquired prior to
and during the employment with the Company be deemed Confidential Information.
8. EXECUTIVE'S REPRESENTATIONS. Executive hereby represents and
warrants to the Company that (i) the execution, delivery and performance of this
agreement by Executive do not and shall not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which Executive is bound, (ii)
Executive is not a party to or bound by any non-compete agreement with any other
person or entity, and (iii) upon the execution and delivery of this agreement by
the Company, this agreement shall be the valid and binding obligation of
Executive, enforceable in accordance with its terms. Executive hereby
acknowledges and represents that she has been given the opportunity to consult
with independent legal counsel regarding her rights and obligations under this
agreement and that she fully understands the terms and conditions contained
herein.
9. INITIAL STOCK OPTION.
(a) OPTION GRANT. Effective on the date hereof, the Company shall
grant the Executive an option (the "Signing Option"), as approved by the
Committee on or prior to the date hereof, to purchase 300,000 shares of the
Class A Common Stock of the Company at the closing price reported on The Nasdaq
Stock Market for such shares on the date hereof (the "Signing Option Exercise
Price"). The Signing Option shall be an "incentive stock option," as defined
under the Internal Revenue Code of 1986, as amended (the "Code"), to the maximum
extent permitted by law. The Signing Option shall be governed by the Stock
Option Agreement referred to below, except as otherwise expressly provided in
this agreement.
(b) VESTING. The Signing Option shall vest in four installments of
40%, 30%, 20% and 10% respectively on the first, second, third and fourth
anniversary of the Commencement Date.
(c) AGREEMENT. Immediately following the execution of this
Agreement, the Company and the Executive shall enter into a stock option
agreement in the form attached hereto as EXHIBIT A reflecting the terms of this
Section 9 (the "Stock Option Agreement") and setting forth the Signing Option
Exercise Price. The actual division between incentive stock options and
non-incentive stock options shall be determined at the time of the option grant.
10. ADDITIONAL STOCK OPTIONS.
(a) YEAR 2 GRANT. On the first anniversary of the Commencement Date,
the Company shall grant the Executive an option (the "Year 2 Option") , as
approved by the Committee on or prior to the date hereof, to purchase 100,000
shares of the Class A Common Stock of the Company at the closing price reported
on The Nasdaq Stock Market for such shares on the first anniversary of the
Commencement Date (the "Exercise Price"). The Year 2 Option shall be an
"incentive stock option," as defined under the Code, to the maximum extent
permitted by law. The Year 2 Option shall be issued under, and governed by the
terms of, a stock option agreement with terms substantially similar to the Stock
Option Agreement, except as otherwise expressly provided in this agreement.
(b) YEAR 2 VESTING. The Year 2 Option shall vest in four equal
installments on the second, third, fourth and fifth anniversary of the
Commencement Date.
(c) SUBSEQUENT OPTIONS. The Board or the Committee shall review the
Executive's equity incentives on or about the second anniversary of the
Commencement Date and may, in their sole discretion, award additional options or
restricted stock to the Executive.
11. RESTRICTED STOCK. Upon the Commencement Date, the Company shall
grant the Executive 300,000 shares of the Class A Common Stock of the Company
(the "Restricted Stock") subject to a restricted stock agreement in the form of
EXHIBIT B hereto. The Restricted Stock shall vest in four installments of 40%,
30%, 20% and 10% respectively on the first, second, third and fourth anniversary
of the Commencement Date.
12. INDEMNIFICATION. The Company shall indemnify the Executive in her
capacity as an officer, employee, director, agent or fiduciary of the Company or
its subsidiaries to the fullest extent permitted by applicable law in effect on
the date hereof or as such laws may from time to time be amended. The Company
agrees to reimburse the Executive for, or pay on her behalf, all reasonable
expenses and costs incurred by the Executive (including her reasonable
attorneys' fees, retainers and disbursements) incurred in connection with the
defense of a claim for which indemnification under this Section 12 is available.
The Company shall be entitled to appoint counsel reasonably acceptable to the
Executive and to assume the defense in any action for which the Executive may be
entitled to indemnification hereunder and to which the Company or an affiliate
of the Company is a party; PROVIDED, that the Executive shall be entitled to be
indemnified for the reasonable costs of her own counsel if, in the reasonable
written opinion of counsel, there exists a conflict of interest between the
Executive and the Company in the defense of the action.
13. MISCELLANEOUS
(a) The failure of a party to this agreement to insist on any
occasion upon strict adherence to any term of this agreement shall not be
considered a waiver or deprive that party of the right
thereafter to insist upon strict adherence to that term or any other term of
this agreement. Any waiver must be in writing. No waiver of any term or
condition of this agreement shall be deemed to be a waiver of any subsequent
breach of that term or condition or any breach of any other term or condition of
this agreement.
(b) Nothing in this agreement shall be construed as to prevent the
Company from pursuing any and all remedies available to it for the breach or
threatened breach of covenants made in this agreement, including recovery of
money damages or temporary or permanent injunctive relief. Accordingly,
Executive acknowledges that the remedy at law for breach of the provisions of
this agreement may be inadequate and agrees that, in addition to any other
remedy the Company may have, it shall be entitled to an injunction restraining
any breach or threatened breach, without any bond or other security being
required and without the necessity of showing actual damages.
(c) All notices and other communications under this agreement shall
be in writing and shall be deemed given when delivered personally or five days
after mailed by registered mail, return receipt requested, to a party at her or
its address as follows (or at such other address as a party may designate in any
notice under this agreement) or one day after mailed for overnight delivery by a
nationally recognized overnight delivery service:
If to the Executive:
▇▇▇▇▇▇ ▇▇▇▇▇
Sorrento Oaks Farm
▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Company:
▇▇▇▇▇*s Corp.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Legal Department
(d) This agreement shall be assigned to and shall inure to the
benefit of any successor to substantially all the assets and business of the
Company as a going concern, whether by merger, consolidation, liquidation or
sale of substantially all the assets of the Company or otherwise, and the
Company shall cause any such successor to assume the Company's obligations under
this agreement (but no such assignment shall relieve the Company of its
obligations under this agreement).
(e) This agreement constitutes the entire understanding of the
parties with respect to the subject matter of this agreement and cannot be
changed or terminated except by a written agreement executed by the parties.
(f) This agreement may be executed in two or more counterparts, each
of which shall be deemed an original but all of which shall be considered one
and the same agreement.
(g) This agreement shall be governed and construed and the legal
relationships of the parties determined in accordance with the internal laws of
the State of New York (regardless of the law that might otherwise govern under
applicable New York principles of conflict laws). Subject to Section 13(h)
below, the State and federal courts located in the county of New York in the
State of New York shall have exclusive jurisdiction over any dispute arising
hereunder.
(h) At the election of either party, any controversy or claim
arising out of or relating to this contract, or the breach thereof, other than a
claim for injunctive relief under Sections 6 or 7 of this agreement, shall be
settled by arbitration administered by the American Arbitration Association
under its National Rules for the Resolution of Employment Disputes, and judgment
upon the award rendered by the arbitrator(s) may be entered by any court having
jurisdiction thereof. The exclusive venue for any such arbitration shall be the
county of New York in the State of New York.
(i) In the event of a dispute under this agreement, the prevailing
party shall be entitled to recover reasonable attorney's fees. If the prevailing
party receives only a portion of the original damages sought by such party (the
"Claimed Damages"), the prevailing party shall be entitled to recover an amount
equal to such party's reasonable attorney's fees multiplied by a fraction, the
numerator of which is equal to the Claimed Damages and the denominator of which
is equal to the amount of damages actually awarded to the prevailing party.
(j) For purposes of this agreement, "Affiliate" shall mean any
corporation or other entity of which the Company (or any corporation or entity
controlling the Company) has at least a 49% equity or voting interest.
[SIGNATURE PAGE FOLLOWS]
[SIGNATURE PAGE TO EMPLOYMENT AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
executed as of the date first written above.
▇▇▇▇▇*s CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Its Authorized Signatory
▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Agreed with respect to Section 1(c),
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
EXHIBIT A TO EMPLOYMENT AGREEMENT
NOTICE OF GRANT OF STOCK OPTIONS
AND OPTION AGREEMENT
▇▇▇▇▇*S CORP.
ID: ▇▇-▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ OPTION NUMBER: 00001206
Sorrento Oaks Farm
▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
PLAN: 99A
ID: XXX
Effective 5/7/01, you have been granted a(n) Non-Qualified Stock Option to buy
300,000 shares of ▇▇▇▇▇*s Corp. (the Company) stock at $________ per share.
The total option price of the shares granted is $___________.
Shares in each period will become fully vested on the date shown.
Shares Vest Type Full Vest Expiration
120,000.00 On Vest Date 5/14/02 5/14/11
90,000.00 On Vest Date 5/14/03 5/14/11
60,000.00 On Vest Date 5/14/04 5/14/11
30,000.00 On Vest Date 5/14/05 5/14/11
By your signature and the Company's signature below, you and the Company agree
that these options are governed by the terms and conditions of the Company's
Stock Option Plan as amended and the Option Agreement, all of which are attached
and made a part of this document.
___________________________
▇▇▇▇▇*s Corp. Date
___________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Date
NOTICE OF GRANT OF STOCK OPTIONS
AND OPTION AGREEMENT
▇▇▇▇▇*S CORP.
ID: ▇▇-▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ OPTION NUMBER: 00001205
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇: 99A
APARTMENT 10K
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ID: XXX
Effective 5/[ ]/02, you have been granted a(n) Incentive Stock Option to buy
100,000 shares of ▇▇▇▇▇*s Corp. (the Company) stock at $____________ per share.
The total option price of the shares granted is $____________.
Shares in each period will become fully vested on the date shown.
Shares Vest Type Full Vest Expiration
25,000.00 On Vest Date 5/14/03 5/14/11
25,000.00 On Vest Date 5/14/04 5/14/11
25,000.00 On Vest Date 5/14/05 5/14/11
25,000.00 On Vest Date 5/14/06 5/14/11
By your signature and the Company's signature below, you and the Company agree
that these options are granted under and governed by the terms and conditions of
the Company's Stock Option Plan as amended and the Option Agreement, all of
which are attached and made a part of this document.
_________________________
▇▇▇▇▇*s Corp. Date
_________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Date
▇▇▇▇▇*S CORP.
STOCK OPTION AGREEMENT
TERMS AND CONDITIONS
1. GRANT OF OPTION. Subject in all respects to the Amended and Restated
iTurf 1999 Stock Incentive Plan (the "Plan") and the terms and conditions set
forth herein and therein, the Participant is hereby granted an option (the
"Option") to purchase from ▇▇▇▇▇*s Corp. (the "Company") the number of Option
Shares at the Option Price set forth on the attached Notice of Grant. The Option
may only be exercised in accordance with the Company's ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
regulations then in effect.
2. AUTHORITY FOR GRANT. The Company hereby represents and warrants that
all necessary corporate action has been taken to authorize the grant of the
Option pursuant to, and to take all other actions contemplated by, this
agreement.
3. TAX MATTERS. The Option granted hereby is intended to qualify as an
"incentive stock option" under Section 422 of the Internal Revenue Code of 1986,
as amended to the extent permissible by law. Notwithstanding the foregoing, the
Option will not qualify as an "incentive stock option," among other cases, if
(i) the Participant disposes of the Common Stock acquired pursuant to the Option
at any time during the two (2) year period following the date of this Agreement
or the one year period following the date of exercise, or (ii) the Participant
is not employed by the Company or a subsidiary thereof at all times during the
period beginning on the date of this Agreement and ending on the day three (3)
months before the date of exercise of the Option. To the extent that the Option
does not qualify as an "incentive stock option" for any reason, it shall
constitute a separate Non-Qualified Stock Option.
4. VESTING. (a) Except as provided in this Section 4, the Option shall
become fully vested and exercisable on the Vesting Date set forth on the
attached Notice of Grant, provided the Participant has not incurred a
Termination of Employment prior to the Vesting Date. To the extent that the
Option has become exercisable, the Option may thereafter be exercised by the
Participant, in whole or in part, at any time or from time to time prior to the
expiration of the Option as provided herein. Except as otherwise provided
herein, in the Notice of Grant or in the Plan, there shall be no proportionate
or partial vesting in the period prior to the Vesting Date and all vesting shall
occur only on the Vesting Date.
(b) There shall be no vesting upon a Participant's Termination
of Employment by reason of Retirement.
(c) Section 11.1(c) of the Plan notwithstanding, upon the occurrence
of a Change in Control (as defined in the Employment Agreement, dated as of May
7, 2001, between the Company and the Participant (the "Employment Agreement")),
the Option shall immediately become fully vested and exercisable with respect to
all shares of Common Stock subject thereto.
(e) Upon the Participant's Termination of Employment by the Company
without Cause (as defined in the Employment Agreement) or upon resignation of
the Participant for Good Reason (as defined in the Employment Agreement), other
than upon a Change in Control, at any time prior to the first anniversary of the
date of this agreement, then this Option shall automatically vest and become
immediately exerciseable with respect to 120,000 of the shares of Common Stock
covered by the Option and the Participants right to purchase the other 180,000
shares of Common Stock covered by the Option shall automatically lapse and shall
become immediately void.
(f) In the event of a "Rule 13e-3 transaction", as defined in Rule
13e-3 of the Exchange Act, involving the Company, the Option shall immediately
become fully vested and exercisable with respect to all shares of Common Stock
subject thereto.
5. EXERCISE FOLLOWING TERMINATION WITHOUT CAUSE OR WITH GOOD Reason.
Section 6.4(d) of the Plan notwithstanding, upon a Termination of Employment
without Cause (as defined in the Employment Agreement) or with Good Reason (as
defined in the Employment Agreement), Participant shall be permitted to
exercise, at any time on or prior to the earlier of the 180th day following the
date of termination of the expiration date of the Option set forth on the
Notice of Grant, that portion of the Option that has vested pursuant to Section
4 of this Agreement as of the date of termination.
6. OPTION TERM. Unless terminated as provided in Section 4 above or
otherwise pursuant to the Plan (including, without limitation, Section 6.4 of
the Plan), the Option shall expire on the Expiration Date set forth on the
attached Notice of Grant.
7. RIGHTS AS A STOCKHOLDER. The Participant shall not have any rights
as a stockholder with respect to any shares covered by the Option unless and
until the Participant has become the holder of record of the shares, and no
adjustments shall be made for dividends in cash or other property, distributions
or other rights in respect of any such shares, except as otherwise specifically
provided for in the Plan.
8. PROVISIONS OF PLAN CONTROL. This Agreement is subject to all the
terms, conditions and provisions of the applicable Plan, including, without
limitation, the amendment provisions thereof, and to such rules, regulations and
interpretations relating to such Plan as may be adopted by the Committee and as
may be in effect from time to time. Any capitalized term used but not defined
herein shall have the meaning ascribed to such term in such Plan. The Plan is
incorporated herein by reference and a copy is available from the Company's
Corporate Secretary. Except as provided in Sections 3 and 4 of this Agreement,
if and to the extent that this Agreement conflicts or is inconsistent with the
terms, conditions and provisions of the Plan, the Plan shall control, and this
Agreement shall be deemed to be modified accordingly. The foregoing
notwithstanding, the parties hereto acknowledge that the Option granted pursuant
to this Agreement is not issued under the Plan.
9. REGISTRATION OF SHARES ISSUED PURSUANT TO OPTION. The Company shall
use its best efforts to cause a registration statement on Form S-3 or S-8
covering the sale of the shares issued upon exercise of the Option to become
effective within 90 days of the date hereof.
EXHIBIT B TO EMPLOYMENT AGREEMENT
▇▇▇▇▇*S CORP. RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is made as of May 1, 2001 (the "Grant Date"), by and
between ▇▇▇▇▇*s Corp., a Delaware corporation with its principal office at ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Company"), and ▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Participant"). The Company and the Participant agree as follows:
1. DEFINITIONS. Capitalized terms used herein but not otherwise
defined herein shall have the meanings ascribed to such terms in the iTurf
Amended and Restated 1999 Stock Incentive Plan (the "1999 Plan").
2. GRANT OF RESTRICTED STOCK. Subject to the terms and conditions of
this agreement and the 1999 Plan, which are incorporated herein by reference,
the Company hereby grants (the "Award") to the Participant 300,000 shares of the
Common Stock ("Restricted Stock"). The foregoing notwithstanding, the parties
hereto acknowledge that the Award made pursuant to this Agreement is not made
under the Plan.
3. RESTRICTIONS ON TRANSFER. The Participant shall not sell, transfer,
pledge, hypothecate, assign or otherwise dispose of any Restricted Stock, except
as set forth in the 1999 Plan or this agreement. Any attempted sale, transfer,
pledge, hypothecation, assignment or other disposition of the Restricted Stock
in violation of the 1999 Plan or this agreement shall be void and of no effect
and the Company shall have the right to disregard the same on its books and
records.
4. RESTRICTED STOCK.
4.1 RETENTION OF CERTIFICATE. Promptly after the date of this
agreement, the Company shall either (i) issue a certificate representing the
Restricted Stock in the name of the Participant or (ii) cause the restricted
stock to be reflected on the books of its transfer agent in book-entry form in
the name of the Participant. Any certificate representing unvested Restricted
Stock shall be registered in the Participant's name and shall bear any legend
required under the 1999 Plan and applicable law. Any such certificate shall be
held in custody by the Company (or its designated agent) until the restrictions
thereon shall have lapsed. The Participant shall deliver to the Company any
documents relating to the Restricted Stock that the Committee requires in order
to arrange custody of such Restricted Stock. In no event shall the Participant
receive any other awards, securities, moneys or property representing a
distribution in respect of any Restricted Stock, or resulting from a
reclassification or other like changes of the Restricted Stock, or otherwise
received in exchange therefor, and any rights issued to the Participant in
respect of the Restricted Stock (collectively "RS Property") until and unless
the Restriction Period expires except as the Company may in its sole and
absolute discretion otherwise decide. During the Restriction Period, such RS
Property shall be deemed credited to a book-entry account held on behalf of the
Participant, but shall be subject to the same restrictions, including those
under Section 3 of this agreement and Section 7.3 of the 1999 Plan, as the
Restricted Stock with regard to which they are issued and shall herein be
encompassed within the term "Restricted Stock."
4.2 RIGHTS WITH REGARD TO RESTRICTED STOCK. Until the vesting period
with respect to the Restricted Stock has expired, the Restricted Stock shall be
subject to the restrictions set forth in Section 7.3 of the 1999 Plan. From and
after the date of issuance of the Restricted Stock to the Participant, (i) the
Participant will not be entitled to delivery of the certificate representing the
Restricted Stock or receive any RS Property until the Restriction Period shall
have expired and unless all other vesting requirements with respect thereto
shall have been fulfilled, (ii) the Company (or its designated agent) will
retain custody of the certificate representing the Restricted Stock and the
other RS Property during the Restriction Period, and (iii) the Participant may
not sell, assign, transfer, pledge, exchange, encumber or dispose of the
Restricted Stock during the Restriction Period.
5. VESTING.
5.1 VESTING DATES. Except as provided otherwise in this Section 5,
the Restriction Period with respect to Restricted Stock shall end and the
restrictions applicable to Restricted Stock shall lapse on the Vesting Date set
forth below, provided the Participant has not incurred a Termination of
Employment prior to the Vesting Date:
VESTING DATE SHARES VESTING
------------ --------------
May 14, 2002 120,000
May 14, 2003 90,000
May 14, 2004 60,000
May 14, 2005 30,000
5.2 RETIREMENT. There shall be no vesting upon Participant's
Termination of Employment by reason of Retirement.
5.3 CHANGE IN CONTROL. Section 11.1(c) of the 1999 Plan
notwithstanding, upon the occurrence of a Change in Control, the restrictions to
which any shares of Restricted Stock of Participant granted prior to the Change
in Control are subject shall lapse as if the applicable Restriction Period had
ended upon such Change in Control.
5.4 TERMINATION WITHOUT CAUSE OR FOR GOOD REASON. Upon the
Participant's Termination of Employment by the Company without Cause (as defined
in the Employment Agreement, dated as of May 7, 2001, between the Company and
the Participant (the "Employment Agreement")) or upon resignation of the
Participant for Good Reason (as defined in the Employment Agreement), other than
upon a Change in Control, at any time prior to the first anniversary of the date
of this agreement, then 120,000 shares of Restricted Stock awarded hereunder
shall immediately and automatically vest and the remaining 180,000 shares of
unvested Restricted Stock shall immediately and automatically be rescinded and
cancelled by the Company.
5.5 GOING PRIVATE TRANSACTION. In the event of a "Rule 13e-3
transaction", as defined in Rule 13e-3 of the Securities Exchange Act of 1934,
as amended, involving the Company, the Option shall immediately become fully
vested and exercisable with respect to all shares of Common Stock subject
thereto.
5.6 NEW CERTIFICATES. When any Restricted Stock becomes vested, the
Company shall, promptly upon the written request of the Participant, issue and
deliver to the Participant a new certificate registered in the name of the
Participant for such Common Stock without the legend set forth in Section 4
hereof and deliver to the Participant any other related RS Property.
6. FORFEITURE. In the event of a Termination of Employment, except
as provided in section 5, the Participant shall forfeit to the Company,
without compensation, all Restricted Stock still subject to restriction.
7. TAX WITHHOLDING.
7.1 PAYMENT OF WITHHOLDING TAX. Participant authorizes the Company
or a subsidiary of the Company to (a) withhold and deduct from future wages of
Participant (or from other amounts that may be due and owing to Participant from
the Company or a subsidiary of the Company), deduct from any Restricted Stock
vesting a number of shares sufficient to pay, or make other arrangements for the
collection of, all amounts deemed by the Company to be necessary to satisfy any
and all federal, state, and local withholding and employment-related tax
requirements ("Withholding Tax") attributable to the Award, or (b) require
Participant to remit the amount of such Withholding Tax to the Company within
one business day following the ending of the Restriction Period with respect to
shares of Restricted Stock, before taking any action with respect to the
transfer of any Restricted Stock to the Participant.
7.2 PARTICIPANT ELECTION. Provided the Participant shall have given
written notice of her election on or within 30 days prior to the Vesting Date,
Participant may elect to pay the Company for any Withholding Tax by (i)
authorizing the Company to deduct from any vesting Restricted Stock a number of
shares sufficient, as determined in good faith by the Company, to pay the
Withholding Tax, or (ii) remitting to the Company funds (in the form of cash,
wire transfer of immediately available funds, money order or personal check)
sufficient, as determined in good faith by the Company, to pay the Withholding
Tax. In the event that the
Participant elects to pay the Withholding Tax in cash or by wire transfer, money
order or personal check, the Company shall be entitled to retain from any
vesting Restricted Stock a number of shares sufficient, as determined in good
faith by the Company, to pay the Withholding Tax until such funds are actually
received by the Company, and, if it has not received payment for the Withholding
Tax within three business days of the applicable Vesting Date, may, in its sole
discretion, retire or sell such shares pursuant to Section 7.3 below.
7.3 SHARES RETAINED BY THE COMPANY. In the event that the Company
retains unrestricted common stock from the Participant in payment of withholding
and employment-related tax requirements, the Company may, at its option, retire
any shares of unrestricted Common Stock or sell any shares of unrestricted
Common Stock in a public or private sale and apply the net proceeds of such sale
to the payment of withholding tax. If the net proceeds of such sale exceed the
amount of the withholding tax payable by the Participant in respect of the
shares of Common Stock vesting at such time, the Company shall remit such excess
proceeds to the Participant by check within 5 business days of such sale.
8. SPECIAL INCENTIVE COMPENSATION. The Participant acknowledges that
the Award hereunder, any distributions paid with respect to the Restricted Stock
and any other RS Property will not be taken into account as "salary" or
"compensation" or "bonus" in determining the amount of any payment under any
pension, retirement or profit-sharing plan of the Company or any life insurance,
disability or other benefit plan of the Company.
9. DELIVERY DELAY. The delivery of any certificate representing any
share of Common Stock or other RS Property may be postponed by the Company for
such period as may be required for it to comply with any applicable federal or
state law and the Company is not obligated to issue or deliver any share of
Common Stock if, in the opinion of counsel for the Company, the issuance of such
share of Common Stock shall constitute a violation by the Participant or the
Company of any provisions of any law or of any regulations of any governmental
authority.
10. REPRESENTATIONS. The Award and this agreement are being made by the
Company in reliance upon the following express representations and warranties of
the Participant. The Participant acknowledges, represents and warrants that:
(a) she understands that no public trading market exists for
any Restricted Stock;
(b) she is accepting the Restricted Stock for his own account
and not with a view to resale or distribution;
(c) she understands that no Restricted Stock may be transferred
prior to the date on which any applicable restriction
lapses;
(d) except as otherwise provided herein or in the 1999 Plan, she
may not offer, market, issue, grant, sell, assign, transfer,
bequeath or otherwise encumber or dispose of all or a portion
of his Restricted Stock without the consent of the Committee,
which consent may be given or withheld in the Committee's sole
discretion; and
(e) she has consulted her own legal or tax advisors regarding the
taxation of restricted stock grants and is not relying on any
representations of the Company regarding the tax effect of the
Award or the vesting of the Restricted Stock on the
Participant.
11. NOT AN EMPLOYMENT AGREEMENT. The Award hereunder does not constitute
an agreement by the Company to continue to employ the Participant during the
entire, or any portion of the, term of this agreement, including but not limited
to any period during which any Restricted Stock is outstanding.
12. POWER OF ATTORNEY. The Company, its successors and assigns, is
hereby appointed the attorney-in-fact, with full power of substitution, of the
Participant for the purpose of carrying out the provisions of this agreement and
taking any action and executing any instruments which such attorney-in-fact may
deem necessary or advisable to accomplish the purposes hereof, which appointment
as attorney-in-fact is irrevocable and coupled with
an interest. The Company, as attorney-in-fact for the Participant, may in the
name and stead of the Participant, make and execute all conveyances, assignments
and transfers of any Restricted Stock, related RS Property and other property
provided for herein, and the Participant hereby ratifies and confirms all that
the Company, as said attorney-in-fact, shall do by virtue hereof. Nevertheless,
the Participant shall, if so requested by the Company, execute and deliver to
the Company all such instruments as may, in the judgment of the Company, be
advisable for the purpose.
13. REGISTRATION OF SHARES. The Company shall use its best efforts to
cause a registration statement on Form S-3 or S-8 covering the sale of the
Restricted Stock to become effective within 90 days of the date hereof.
14. MISCELLANEOUS. This agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, legal
representatives, successors and assigns. No modification or waiver of any of the
provisions of this agreement shall be effective unless in writing and signed by
the party against whom it is sought to be enforced. The failure of any party
hereto at any time to require performance by another party of any provision of
this agreement shall not affect the right of such party to require performance
of that provision, and any waiver by any party of any breach of any provision of
this agreement shall not be construed as a waiver of any continuing or
succeeding breach of such provision, a waiver of the provision itself, or a
waiver of any right under this agreement. This agreement is subject to all the
terms, conditions and provisions of the 1999 Plan, including, without
limitation, the amendment provisions thereof, and to such rules, regulations and
interpretations relating to the 1999 Plan as may be adopted by the Committee and
as may be in effect from time to time. The 1999 Plan is incorporated herein by
reference and a copy is available from the Company's Corporate Secretary. If and
to the extent that this agreement conflicts or is inconsistent with the terms,
conditions and provisions of the 1999 Plan, the 1999 Plan shall control, and
this agreement shall be deemed to be modified accordingly. This agreement may be
executed in two or more counterparts, each of which shall be deemed an original
but all of which shall be considered one and the same agreement. This agreement
shall be governed and construed and the legal relationships of the parties
determined in accordance with the internal laws of the State of Delaware
(regardless of the law that might otherwise govern under applicable Delaware
principles of conflict laws). Subject to the following two sentences, the State
and federal courts located in the State of New York and the State courts located
in the State of Delaware shall have exclusive jurisdiction over any dispute
arising hereunder. At the election of either party, any controversy or claim
arising out of or relating to this contract, or the breach thereof, shall be
settled by arbitration administered by the American Arbitration Association
under its National Rules for the Resolution of Employment Disputes, and judgment
upon the award rendered by the arbitrator(s) may be entered by any court having
jurisdiction thereof. The exclusive venue for any such arbitration shall be the
county of New York in the state of New York.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to
be duly executed as of the day and year first above written.
▇▇▇▇▇*s CORP.
By_________________________________
Its Authorized Signatory
▇▇▇▇▇▇ ▇▇▇▇▇
___________________________________
