dELiA*s, INC. Employment Agreement for Dyan Jozwick
Exhibit 10.1
▇▇▇▇▇*s, INC.
Employment Agreement for ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇*s, INC.
Employment Agreement for ▇▇▇▇ ▇▇▇▇▇▇▇
| Page | ||||
| 1. Definitions |
1 | |||
| 2. Term of Employment |
3 | |||
| 3. Position, Duties and Responsibilities |
3 | |||
| 4. Base Salary |
4 | |||
| 5. Annual Incentive Awards |
4 | |||
| 6. Long-Term Stock Incentive Programs |
4 | |||
| 7. Employee Benefit Programs |
5 | |||
| 8. Disability |
5 | |||
| 9. Reimbursement of Business and Other Expenses |
6 | |||
| 10. Termination of Employment |
6 | |||
| 11. Confidentiality; Cooperation with Regard to Litigation |
10 | |||
| 12. Non-competition |
11 | |||
| 13. Non-solicitation |
11 | |||
| 14. Remedies |
11 | |||
| 15. Resolution of Disputes |
12 | |||
| 16. Indemnification |
12 | |||
| 17. Effect of Agreement on Other Benefits |
12 | |||
| 18. Assignability; Binding Nature |
12 | |||
| 19. Representation |
13 | |||
| 20. Entire Agreement. |
13 | |||
| 21. Amendment or Waiver |
13 | |||
| 22. Severability |
13 | |||
| 23. Survivorship |
13 | |||
| 24. Beneficiaries/References |
13 | |||
| 25. Governing Law/Jurisdiction |
14 | |||
| 26. Notices |
14 | |||
| 27. Headings |
14 | |||
| 28. Counterparts |
14 | |||
| 29. Tax Matters |
14 | |||
AGREEMENT, made and entered into as of the 16th day of June, 2011 by and between ▇▇▇▇▇*s, Inc., a Delaware corporation (together with its successors and assigns permitted under this Agreement, the “Company”), and ▇▇▇▇ ▇▇▇▇▇▇▇ (the “Executive”).
W I T N E S S E T H :
WHEREAS, the Company desires to employ the Executive pursuant to an agreement embodying the terms of such employment (this “Agreement”) and the Executive desires to enter into this Agreement and to accept such employment, subject to the terms and provisions of this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and for other good and valuable consideration, the receipt of which is mutually acknowledged, the Company and the Executive (individually a “Party” and together the “Parties”) agree as follows:
| 1. | Definitions. |
| (a) | “Amended and Restated 2005 Stock Incentive Plan” shall have the meaning set forth in Section 6 below. |
| (b) | “Base Salary” shall have the meaning set forth in Section 4 below. |
| (c) | “Board” shall mean the Board of Directors of the Company. |
| (d) | “Cause” shall have the meaning set forth in Section 10(b) below. |
| (e) | “Change in Control” shall be deemed to have occurred as of the first day that any one or more of the following conditions is satisfied: |
(i) Any person or “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), other than the Company, any subsidiary of the Company, the Executive, or any of their respective Affiliates (each, an “Affiliated Entity”), becomes the “beneficial owner”(as that term is defined in Rule 13d-3 under the Exchange Act) of securities of the Company representing 50% or more of the combined voting power of the Company’s then outstanding securities ordinarily (and apart from rights accruing under special circumstances) having the right to vote in the election of directors;
(ii) any one of the following occurs: (A) any merger or consolidation of the Company with or into another entity (other than an Affiliated Entity), except a merger or consolidation (x) in which persons who were stockholders of the Company immediately prior to the merger or consolidation own, immediately thereafter, directly or indirectly, more than 20% of the combined voting power ordinarily (and apart from rights accruing under special circumstances) having the right to vote in the election of directors of the continuing or surviving entity or (y) in which the directors of the Company immediately prior to such merger or consolidation would, immediately thereafter, constitute at least a majority of the directors of the continuing or surviving entity; (B) any
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sale, exchange, lease, transfer or other disposition (in a single transaction or a series of related transactions) of all or substantially all of the assets of the Company on a consolidated basis to any person or group other than an Affiliated Entity; or (C) any complete liquidation or dissolution of the Company; or
(iii) individuals who, during any period of 12 consecutive months, are members of the Board of Directors of the Company at the beginning of such period (the “Existing Directors”), cease, for any reason, to constitute a majority of the number of directors of the Company as determined in the manner prescribed in the Company’s Certificate of Incorporation and Bylaws; provided, however, that if the election or nomination for election of any new director was approved by a vote of at least 50% of the Existing Directors, such new director shall be . considered an Existing Director.
| (f) | “Confidential Information” shall have the meaning set forth in Section 11 below. |
| (g) | “Constructive Termination Without Cause” shall have the meaning set forth in Section 10(c) below. |
| (h) | “Effective Date” shall have the meaning set forth in Section 2 below. |
| (i) | “MIP” shall have the meaning set forth in Section 5 below. |
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| (j) | “Restriction Period” shall have the meaning set forth in Section 12 below. |
| (k) | “Severance Period” shall have the meaning set forth in Section 10(c)(ii) below. |
| (l) | “Subsidiary” shall have the meaning set forth in Section 11 below. |
| (m) | “Term of Employment” shall have the meaning set forth in Section 2 below. |
| (n) | “Termination Without Cause” shall have the meaning set forth in Section 10(c) below. |
| 2. | Term of Employment. |
(a) The term of the Executive’s employment under this Agreement shall commence on June 16, 2011 (the “Effective Date”) and end on the third anniversary of such date, unless Executive’s employment ceases earlier pursuant to the terms of this Agreement (the “Term of Employment”).
(b) Notwithstanding anything in this Agreement to the contrary, at least 90 days prior to the expiration of the Term of Employment, the Parties shall meet to discuss this Agreement and attempt to negotiate a mutually acceptable new employment agreement or amendment to this Agreement, governing the period subsequent to the Term of Employment. Nothing in this subparagraph 2(b) shall obligate Company or Executive to enter into a new employment agreement or an amendment of this Agreement.
| 3. | Position, Duties and Responsibilities. |
(a) Generally. Executive shall serve as President of the Company’s ▇▇▇▇▇*s Brand (Retail and Direct) reporting to the Company’s Chief Executive Officer at the Company’s office located at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. Executive shall be responsible for all ▇▇▇▇▇*s Brand merchandise whether in the catalog, on ▇▇▇▇▇*s website or in the stores. Executive shall be responsible for all fashion and styling direction, visual merchandising of the stores, trend and color direction, as well as all creative and design elements as they pertain to the design and creative direction of the ▇▇▇▇▇*s catalog and website. Executive shall have and perform such duties, responsibilities, and authorities as shall be reasonably assigned by the Company from time to time and as are consistent with the above-mentioned position, which may be modified as the Company and Executive deem necessary in their reasonable discretion. Executive shall devote substantially all of Executive’s business time and attention (except for periods of vacation or absence due to illness), and Executive’s best efforts, abilities, experience, and talent to Executive’s position and the businesses of the Company in accordance with all Company policies. Company agrees that Executive’s title shall not be changed subordinate to the title of President of the Company’s ▇▇▇▇▇*s Brand.
(b) Other Activities. Anything herein to the contrary notwithstanding, nothing in this Agreement shall preclude the Executive from (i) engaging in reasonable charitable activities and community affairs and (ii) managing Executive’s personal investments and affairs, provided that such activities do not materially interfere with the proper performance of Executive’s duties and responsibilities under this Agreement and not otherwise detrimental to the interests of the Company. Unless approved in writing by the Board of the Company, such approval not to be unreasonably withheld, the Executive may not serve on the board of directors of any corporation or the board of any association and/or charitable organization.
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| 4. | Base Salary. |
The Executive shall be paid an annualized salary, payable in accordance with the regular payroll practices (including bi-weekly pay periods) of the Company, of not less than $500,000, less applicable withholdings, subject to annual review thereafter at the start of each fiscal year for increase at the discretion of the Compensation Committee of the Board (“Base Salary”). Executive’s first annual review is expected to occur on or about April, 2012. Base Salary at any time shall not be reduced by more than ten percent (10%).
| 5. | Annual Incentive Awards. |
(a) Subject to the terms and conditions of the plan that shall govern eligibility and participation, Executive shall participate in the Company’s Management Incentive Plan each year during the Term of Employment (the “MIP”) with a target annual incentive award opportunity of no less than 60% of Base Salary or in a successor plan to the MIP that provides the Executive with a substantially equivalent opportunity and Company agrees that Executive’s target annual incentive award opportunity shall not be less than 60% of Base Salary. Payment of annual incentive awards shall be made at the same time that other participants in the MIP receive their incentive awards.
(b) Additionally, the minimum amount of the annual incentive award payable to Executive under the 2011 MIP for the Company’s fiscal year ending January 28, 2012 shall be ($200,000), subject to the terms and conditions of the plan that shall govern eligibility and participation. Such amount shall be payable as follows: 50% of the minimum amount of the annual incentive award ($100,000) will be paid within thirty (30) days after the Effective Date (the “First MIP Payment”) and the remaining 50% of the minimum bonus amount ($100,000) (the “Second MIP Payment”) will be paid on or about April 1, 2012 at the conclusion of the Company’s annual performance review process. Notwithstanding the foregoing to the contrary, if Employee voluntarily terminates her employment with the Company on or prior to April 1, 2012, then upon such termination Employee shall pay to Company an amount equal to the pro-rated amount of the First MIP Payment based on a 10 month period and the time remaining from the date of voluntary termination to April 1, 2012.
| 6. | Long-Term Stock Incentive Programs. |
(a) General/Options. Subject to the terms and conditions of the Amended and Restated 2005 Stock Incentive Plan governing eligibility and participation, Executive shall be eligible to participate in and to receive stock incentive awards under the Amended and Restated 2005 Stock Incentive Plan and any successor plan. Executive shall also receive an initial stock option grant of 300,000 stock options at an exercise price equal to the closing price of ▇▇▇▇▇*s stock on NASDAQ on the day of the Effective Date. 100,000 of such stock options shall vest on the day immediately succeeding the Effective Date and 200,000 of such stock options shall vest in four equal installments of 50,000 on each of the 1st, 2nd, 3rd and 4th anniversaries of the Effective Date. In addition, upon a Change in Control the tranche of 50,000 stock options which are scheduled to vest on the next succeeding anniversary of the Effective Date shall vest as of the date of such Change in Control
(b) In addition, Employee shall receive a minimum grant of 50,000 stock options as part of the Company’s annual performance review process for each of the next two annual performance review processes provided Employee receives a “meets expectations” review score. If Employee receives a higher review score than “meets expectations”, subject to Compensation Committee approval, the grant of stock options may be increased above such amount.
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| 7. | Employee Benefit Programs; Relocation. |
(a) During the Term of Employment, the Executive shall be entitled to participate in such employee pension and welfare benefit plans and programs of the Company as are made available to the Company’s employees generally, as such plans or programs may be in effect or modified from time to time, including, without limitation, health, medical, dental, long-term disability, life insurance, 401(k) with Company match and employee discounts. Executive will be eligible for four (4) weeks paid vacation as well as Company observed holidays, five (5) sick days and three (3) personal days in accordance with Company policy. The terms of the Company’s official plan documents shall govern the terms of Executive’s eligibility and participation in Company’s benefit plans.
(b) In addition, the Company shall provide Employee the following through July 31, 2011 to assist with her relocation from California to New York, (i) a $6,000 per month housing/living allowance and up to (ii) four (4) round trip coach class flights per month between New York and California.
| 8. | Disability. |
(a) During the Term of Employment, and subject to the terms and conditions on eligibility and participation as set forth in the Company’s Long-Term Disability Plan documents, the Executive shall be entitled to disability coverage as described in this Section 8(a). In the event the Executive becomes disabled, as that term is currently defined under the Company’s Long-Term Disability Plan the Executive shall be entitled to receive benefits pursuant to the Company’s Long-Term Disability Plan, in place of Executive’s Base Salary and any other employee benefits other than for disabled employees in an amount pursuant to the Company’s Long-Term Disability Plan in effect at the commencement date of the disability (“Commencement Date”) for a period beginning on the Commencement Date and ending with the Executive’s attainment of age 65. If (i) the Executive ceases to be disabled (as determined in accordance with the terms of the Long-Term Disability Plan) during the Term of Employment, (ii) Executive’s position or another senior executive position is then vacant and (iii) the Company requests in writing that Executive resume such position, Executive may elect to resume such position by written notice to the Company within 15 days after the Company delivers its request. If Executive resumes such position, Executive shall thereafter be entitled to Executive’s Base Salary at the annual rate in effect at the Commencement Date and, for the year Executive resumes Executive’s position, a pro rata annual incentive award and to participate in any other employee benefit programs outlined in Section 6 and 7 of this Agreement that are then in effect. If Executive ceases to be disabled and does not resume Executive’s position in accordance with the preceding sentence, Executive shall be treated as if Executive voluntarily terminated Executive’s employment pursuant to Section 10(e) as of the date the Executive ceases to be disabled. If the Executive is not offered Executive’s position or another executive position after Executive ceases to be disabled during the Term of Employment, Executive shall be treated as if Executive’s employment was terminated without Cause pursuant to Section 10(c) as of the date the Executive ceases to be disabled.
(b) Subject to the applicable plan documents, during the period the Executive is receiving disability benefits pursuant to Section 8(a) above, Executive shall continue to be treated as an employee for purposes of all employee benefits and entitlements in which Executive was participating on the Commencement Date, including without limitation, the benefits and entitlements referred to in Sections 6 and 7 above, except that the Executive shall not be entitled to receive any annual salary increases or any new stock incentive awards following the Commencement Date.
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| 9. | Reimbursement of Business and Other Expenses. |
The Executive is authorized to incur reasonable expenses in carrying out Executive’s duties and responsibilities under this Agreement, and the Company shall promptly reimburse Executive for all business expenses incurred in connection therewith, subject to documentation in accordance with the Company’s travel and expense reimbursement policy.
| 10. | Termination of Employment. |
(a) Termination_Due_to_Death. In the event the Executive’s employment with the Company is terminated due to Executive’s death, Executive’s estate or Executive’s beneficiaries, as the case may be, shall be entitled to and their sole contractual remedies under this Agreement shall be:
(i) Base Salary through the date of death, which shall be paid in a single lump sum not later than 15 days following the Executive’s death;
(ii) the right to exercise all outstanding stock options that are vested as of the date of death for a period of one year following death or for the remainder of the exercise period, if less;
(iii) the restrictions shall lapse on all shares of restricted stock awarded where restrictions have not yet lapsed; and
(iv) other or additional benefits then due or earned in accordance with applicable plans and programs of the Company.
(b) Termination by the Company for Cause.
(i) “Cause” shall mean:
(A) Executive’s conviction of, entrance of a plea of guilty or nolo contendere to, a felony unless the Executive’s conduct is so plainly severe or the threat to the Company’s reputation that in the Company’s reasonable business judgment requires the Company to terminate the Executive immediately in its reasonable discretion or business judgment; or
(B) fraudulent conduct by Executive in connection with the business affairs of the Company; or
(C) theft, embezzlement, or other criminal misappropriation of funds by Executive from the Company (other than good faith expense account disputes); or
(D) Executive’s willful misconduct, which has, or would if generally known, material adversely affect the goodwill, business, or reputation of the Company; or
(E) Executive’s material breach of this Agreement that is not cured within fifteen (15) days of receipt of written notice from the Company detailing such alleged material breach.
For purposes of this Agreement, an act or failure to act on Executive’s part shall be considered “willful” if it was done or omitted to be done by Executive not in good faith, and shall not include any act or failure to act resulting from any incapacity of Executive.
(ii) In the event the Company terminates the Executive’s employment for Cause, Executive shall be entitled to and Executive’s sole remedies under this
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Agreement shall be:
(A) Base Salary through the date of the termination of Executive’s employment for Cause, which shall be paid in a single lump sum not later than 15 days following the Executive s termination of employment; and
(B) other or additional benefits, to the extent then due or earned in accordance with applicable plans or programs of the Company.
(c) Termination Without Cause or Constructive Termination Without Cause. In the event the Executive’s employment with the Company is terminated without Cause (which termination shall be effective as of the date specified by the Company in a written notice to the Executive), other than due to death, or in the event there is a Constructive Termination Without Cause (as defined below), the Executive shall be entitled to and Executive’s sole remedies under this Agreement shall be:
(i) Base Salary through the date of termination of the Executive’s employment, which shall be paid in a single lump sum not later than 15 days following the Executive’s termination of employment;
(ii) Base Salary, at the annualized rate in effect immediately prior to the date of communication (verbal or otherwise) from Company to Executive of termination of the Executive’s employment (or in the event a reduction in Base Salary is the basis for a Constructive Termination Without Cause, then the Base Salary in effect immediately prior to such reduction), for a period of 6 months following such termination to be paid, less applicable withholdings, in accordance with the Company’s standard payroll cycle (the “Initial Severance Period”) to the extent that such payment is non-qualified deferred compensation as defined in Code Section 409A (as defined below) such payments to commence on the sixtieth (60th) day following the Executive’s termination of employment; provided that if and only if for the seventh (7th) month through the end of the twelfth (12th) month after termination or the portion thereof that Executive does not engage in Competition with the Company as defined in Section 12 below (the “Secondary Severance Period”), then Executive shall receive Base Salary for the Secondary Severance Period in the same manner as paid for the Initial Severance Period; provided further that the salary continuation payment under this Section 10(c)(ii) shall be in lieu of any salary continuation arrangements under any other severance program of the Company or any other agreement between the Executive and the Company;
(iii) (A) all unvested stock options shall vest as of the date of termination and (B) the right to exercise all outstanding stock options that are vested as of the date of termination during the 90-day period following termination or for the remainder of the exercise period, if less;
(iv) continued participation in all medical, and dental plans at the same benefit and rate level at which Executive was participating on the date of the termination of Executive’s employment, subject to the terms and conditions of the official plan documents, until the and the end of the Severance Period with the continuation under this section being provided through COBRA;
(v) if the termination occurs prior to April 1, 2012, the Second MIP Payment to be paid in a single lump sum not later than fifteen (15) days after termination; and
(vi) other or additional benefits then due or earned in accordance with applicable plans and programs of the Company.
“Termination Without Cause” shall mean the Executive’s employment is terminated by the Company for any reason other than Cause (as defined in Section
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10 (b)) or due to death.
“Constructive Termination Without Cause” shall mean a termination of the Executive’s employment at Executive’s initiative as provided in this Section 10(c) following the occurrence, without the Executive’s written consent, of one or more of the following events (except as a result of a prior termination):
(A) a material diminution in Executive’s authority, duties or job responsibilities ;
(B) a material diminution in annual Base Salary; or
(C) a change in the geographic location in which the Executive performs the functions set forth in Section 3(a) above by more than 50 miles from ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇; or
(D) a failure by the Company to perform any material obligation under, or breach by the Company of any material provision of, this Agreement that is not cured within 30 days of receipt of written notice from Executive, including, but not limited to, the provisions of Sections 3(a) and 5(a) and the last sentence of Section 4.
The Executive must provide notice to the Company of the condition described in (A), (B), (C) or (D) above within a period not to exceed 120 days of the initial existence of the condition, upon the notice of which the Company shall be provided 30 days during which it may remedy the condition and not be required to pay any amount pursuant to Section 10(c). In addition, the Executive must terminate employment with the Company within 120 days after the initial existence of the condition.
(d) Change in Control. In the event the Executive’s employment with the Company is terminated without Cause (which termination shall be effective as of the date specified by the Company in a written notice to the Executive), other than due to death, or in the event there is a Constructive Termination Without Cause (as defined above), in either case within one (1) year following a Change in Control, the Executive shall be entitled to and Executive’s sole remedies under this Agreement shall be:
(i) Base Salary through the date of termination of the Executive’s employment, which shall be paid in a single lump sum not later than 15 days following the Executive’s termination of employment;
(ii) Base Salary, at the annualized rate in effect immediately prior to the date of communication (verbal or otherwise) from Company to Executive of termination of the Executive’s employment (or in the event a reduction in Base Salary is the basis for a Constructive Termination Without Cause, then the Base Salary in effect immediately prior to such reduction), for a period of 6 months following such termination to be paid, less applicable withholdings, in accordance with the Company’s standard payroll cycle (the “Initial Section 10 (d) Severance Period”); provided that if and only if for the Secondary Severance Period Executive does not engage in Competition with the Company as defined in Section 12 below, then Executive shall receive Base Salary for the Secondary Severance Period in the same manner as paid for the Initial Section 10(d) Severance Period; provided further that the salary continuation payment under this Section 10(d)(ii) shall be in lieu of any salary continuation arrangements under any other severance program of the Company or any other agreement between the Executive and the Company;
(iii) (A) all unvested options shall vest as of the date of termination; and (B) the right to exercise all outstanding stock options that are vested as of the date of termination during the ninety (90) day period following termination or for the remainder of the
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exercise period if less;
(iv) continued participation in all medical, and dental plans at the same benefit and rate level at which Executive was participating on the date of the termination of Executive’s employment, subject to the terms and conditions of the official plan documents, until the end of the Section 10 (d) Severance Period with the continuation under this section being provided through COBRA;
(v) if the termination occurs prior to April 1, 2012, the Second MIP Payment to be paid in a single lump sum not later than fifteen (15) days after termination; and
(vi) other or additional benefits then due or earned in accordance with applicable plans and programs of the Company.
(e) Voluntary_Termination.
(i) In the event of a termination of employment by the Executive on Executive’s own initiative after delivery of 60 days advance written notice, other than a termination due to death or Constructive Termination Without Cause, the Executive shall have the same entitlements as provided in Section 10(b)(ii) above for a termination for Cause. Notwithstanding any implication to the contrary, the Executive shall not have the right to terminate Executive’s employment with the Company during the Term of Employment except in the event of a Constructive Termination Without Cause. Any voluntary termination of employment during the Term of Employment shall entitle the Executive to the same entitlements as provided in Section 10(b)(ii) above for a termination for Cause. In the event the Executive becomes disabled, as that term is defined under the Company’s Long Term Disability Plan, the Executive’s termination of employment shall be governed by the terms of Section 8 of this Agreement.
(f) No Mitigation; No Offset. In the event of any termination of employment under this Section 10, the Executive shall not be obligated to seek other employment; amounts due the Executive under this Agreement shall not be offset by any remuneration attributable to any subsequent employment that Executive may obtain.
(g) Nature of Payments. Any amounts due under this Section 10 are in the nature of severance payments considered to be reasonable by the Company and are not in the nature of a penalty.
(h) Exclusivity of Severance Payments; Remedies Under this Agreement. Upon termination of the Executive’s employment during the Term of Employment, other than amounts due as provided in this Section 10, Executive shall not be entitled to any severance payments or severance benefits from the Company. Should Executive accept such severance payments, such payment shall be in lieu of any payments by the Company on account of any claim by Executive of wrongful termination, including, but not limited to, claims under any federal, state or local human and civil rights or labor laws. The parties agree that the phrase “sole remedies under this Agreement” as used in this Agreement does not include any statutory or common law remedies as to which Executive is be entitled to pursue provided Executive does not accept any payment under this Section 10.
(i) Release of Employment Claims. The Executive agrees, as a condition to receipt of the termination payments and benefits provided for in this Section 10, that Executive will execute (and not revoke) a release agreement within the time period required by the Company and applicable law, in a form reasonably satisfactory to the Company and the Executive, releasing any and all claims arising out of the Executive’s employment (other than enforcement of this Agreement).
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| 11. | Confidentiality; Cooperation with Regard to Litigation. |
(a) During the Term of Employment and thereafter, the Executive shall not, without the prior written consent of the Company, disclose to anyone or make use of any Confidential Information, except when required to do so in the normal course of conducting business on behalf of the Company, by legal process, by any governmental agency having supervisory authority over the business of the Company or by any administrative or legislative body (including a committee thereof) that requires Executive to divulge, disclose or make accessible such information. In the event that the Executive is so ordered, Executive shall give prompt prior written notice to the Company in order to allow the Company the opportunity to object to or otherwise resist such order and consents and will not object to the Company’s standing to consent or seek protection relating to any such order.
(b) During the Term of Employment and thereafter, Executive shall not disclose the existence or contents of this Agreement beyond what is disclosed in the proxy statement or documents filed with the government unless and to the extent such disclosure is required by law, by a governmental agency, or in a document required by law to be filed with a governmental agency or in connection with enforcement of her rights under this Agreement. In the event that disclosure is so required, the Executive shall give prompt prior written notice to the Company in order to allow the Company the opportunity to object to or otherwise resist such requirement. This restriction shall not apply to such disclosure by Executive to members of Executive’s immediate family, Executive’s tax, legal or financial advisors, any lender or tax authorities or to potential future employers to the extent necessary, each of whom shall be advised not to disclose such information. Similarly, Executive acknowledges that the Company shall have the right to advise potential or actual future employers of Executive of her post-employment obligations under this Agreement.
(c) “Confidential Information” shall mean all information that is not known or available to the public concerning the business of the Company or any Subsidiary relating to any of their products, product development, designs, costing, marketing plans and strategies, expansion plans and strategies, trade secrets, customers, suppliers, finances, and business plans and strategies. For this purpose, information known or available generally within the trade or industry of the Company or any Subsidiary shall be deemed to be known or available to the public. Confidential Information shall include information that is, or becomes, known to the public as a result of a breach by the Executive of the provisions of Section 11(a) above.
(d) “Subsidiary” shall mean any corporation controlled directly or indirectly by the Company and any affiliate of the Company.
(e) At any time during the Term of Employment when requested by the Company, or immediately upon Executive’s cessation of employment with the Company, Executive shall return all Company property to the Company, including, without limitation all Company issued computers, laptops, PDAs, Blackberries or other Company property or Confidential Information.
(f) The Executive agrees to cooperate with the Company, during the Term of Employment and thereafter (including following the Executive’s termination of employment for any reason), by making herself available to testify on behalf of the Company or any Subsidiary or affiliate of the Company, in any action, suit, or proceeding, whether civil, criminal, administrative, or investigative, and to assist the Company, or any Subsidiary or affiliate of the Company, in any such action, suit, or proceeding, by providing information and meeting and consulting with the Board or its representatives or counsel, or representatives or counsel to the Company, or any Subsidiary or affiliate of the Company, requesting Executive’s provision of testimony or assistance. Notwithstanding anything to the contrary herein, Executive shall only be obligated to comply with this Section 11(f) if such cooperation or assistance does not materially
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interfere with her professional or personal obligations and the Company secures at its own cost, reasonable travel and lodging expenses to be incurred by Executive in providing such cooperation and assistance.
| 12. | Non-competition. |
(a) During the Restriction Period (as defined in Section 12(b) below) and in consideration for any payments pursuant to Section 10, the Executive shall not engage in Competition with the Company or any Subsidiary. “Competition” shall mean engaging in any activity, except as provided below, for a Competitor of the Company or any Subsidiary, whether as an employee, consultant, principal, agent, officer, director, partner, shareholder (except as a less than one percent shareholder of a publicly traded company) or otherwise. A “Competitor” shall mean the entities on Exhibit A annexed hereto and/or any store based, catalog or internet retailer which principally markets or sells in the United States specialty apparel, clothing or accessories to girls and women between the ages of 13 and 20 and that first commences to exist and/or operate in Competition with the Company after the Effective Date (a “Competitive Business”). If the Executive commences employment or becomes a consultant, principal, agent, officer, director, partner, or shareholder of any entity that is not a Competitor at the time the Executive initially becomes employed or becomes a consultant, principal, agent, officer, director, partner, or shareholder of the entity, future activities of such entity shall not result in a violation of this provision unless (x) such activities were contemplated at the time the Executive initially became employed or becomes a consultant, principal, agent, officer, director, partner, or shareholder of the entity (and the contemplation of such activities was known to the Executive) or (y) the Executive commences directly or indirectly overseeing or managing the activities which are competitive with the activities of the Company or Subsidiary.
(b) For the purposes of this Section 12 and Section 13 below, “Restriction Period” shall mean the period beginning with the Effective Date and ending six (6) months after termination.
| 13. | Non-solicitation |
(a) Employees. During the Restriction Period, Executive shall not induce and/or solicit employees of the Company or any Subsidiary to terminate their employment. During the portion of the Restriction Period following the termination of the Executive’s employment, the Executive shall not directly or indirectly hire any employee of the Company or any Subsidiary or any person who was employed by the Company or any Subsidiary within 180 days of such hiring.
(b) Vendors/Business Partners. Executive promises and agrees that during the Restriction Period, Executive will not influence or attempt to influence vendors, or business partners of the Company or any of its present or future subsidiaries, either directly or indirectly, to divert from the Company their business to any individual, partnership, firm, corporation or other entity then in competition with the business of the Company or any subsidiary or the Company.
| 14. | Remedies. |
In addition to whatever other rights and remedies the Company may have at equity or in law, if the Executive breaches any of the provisions contained in Sections 11, 12 or 13 above or any other obligations of Executive to the Company under this Agreement, the Company (a) shall have the right to immediately terminate all payments and benefits due under this Agreement (b) shall have the right to seek injunctive relief without the necessity for posting a bond and (c) shall have the right to seek attorneys’ fees and costs associated with enforcing its rights under this Agreement. The Executive acknowledges that such a breach would cause irreparable injury and that money damages would not provide an adequate remedy for the
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Company and that the Company retains its rights to seek all other available relief in addition to the relief set forth in this Section.
| 15. | Resolution of Disputes. |
Any disputes arising under or in connection with this Agreement shall be submitted to the federal or state courts in the State of New York, New York County. Pending the resolution of any court proceeding, the Company shall continue payment of all amounts and benefits due the Executive under this Agreement.
| 16. | Indemnification. |
(a) Company Indemnity. The Company agrees that if the Executive is made a party, or is threatened to be made a party, to any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”), by reason of the fact that Executive is or was a director, officer or employee of the Company or any Subsidiary or is or was serving at the request of the Company or any Subsidiary as a director, officer, member, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether or not the basis of such Proceeding is the Executive’s alleged action in an official capacity while serving as a director, officer, member, employee or agent, the Executive shall be defended in the first instance at the Company’s sole cost and expense, indemnified and held harmless by the Company to the fullest extent legally permitted or authorized by the Company’s certificate of incorporation or bylaws or resolutions of the Company’s Board of Directors or, if greater, by the laws of the State of Delaware, against all cost, expense, liability and loss (including, without limitation, attorney’s fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by the Executive in connection therewith, and such indemnification shall continue as to the Executive even if Executive has ceased to be a director, member, officer, employee or agent of the Company or other entity and shall inure to the benefit of the Executive s heirs, executors and administrators.
(b) No Presumption Regarding Standard of Conduct. Neither the failure of the Company (including its board of directors, independent legal counsel or stockholders) to have made a determination prior to the commencement of any proceeding concerning payment of amounts claimed by the Executive under Section 16(a) above that indemnification of the Executive is proper because Executive has met the applicable standard of conduct, nor a determination by the Company (including its board of directors, independent legal counsel or stockholders) that the Executive has not met such applicable standard of conduct, shall create a presumption that the Executive has not met the applicable standard of conduct.
(c) Liability Insurance. The Company agrees to continue and maintain a directors and officers liability insurance policy covering the Executive to the extent the Company provides such coverage for its other executive officers.
| 17. | Effect of Agreement on Other Benefits. |
Except as specifically provided in this Agreement, the existence of this Agreement shall not be interpreted to preclude, prohibit or restrict the Executive’s participation in any other employee benefit or other plans or programs in which Executive currently participates.
| 18. | Assignability; Binding Nature. |
This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs (in the case of the Executive) and permitted assigns. No rights or obligations of the Company under this Agreement may be assigned or transferred by the Company except that such rights or obligations may be assigned or transferred to a subsidiary of
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the Company or in connection with the sale or transfer of all or substantially all of the assets of the Company, provided that the assignee or transferee is the successor to all or substantially all of the assets of the Company and such assignee or transferee assumes the liabilities, obligations and duties of the Company, as contained in this Agreement, either contractually or as a matter of law. The Company further agrees that, in the event of a sale or transfer of assets as described in the preceding sentence, it shall use reasonable efforts in order to cause such assignee or transferee to expressly assume the liabilities, obligations and duties of the Company hereunder. No rights or obligations of the Executive under this Agreement may be assigned or transferred by the Executive other than Executive’s rights to compensation and benefits, which may be transferred only by will or operation of law, except as provided in Section 24 below.
| 19. | Representation. |
Each Party represents and warrants that it is fully authorized and empowered to enter into this Agreement and that the performance of its obligations under this Agreement will not violate any agreement between it and any other person, firm or organization.
| 20. | Entire Agreement. |
This Agreement contains the entire understanding and agreement between the Parties concerning the subject matter hereof and supersedes all prior agreements, understandings, discussions, negotiations and undertakings, whether written or oral, between the Parties with respect thereto.
| 21. | Amendment or Waiver. |
No provision in this Agreement may be amended unless such amendment is agreed to in writing and signed by the Executive and an authorized officer of the Company. No waiver by either Party of any breach by the other Party of any condition or provision contained in this Agreement to be performed by such other Party shall be deemed a waiver of a similar or dissimilar condition or provision at the same or any prior or subsequent time. Any waiver must be in writing and signed by the Executive or an authorized officer of the Company, as the case may be.
| 22. | Severability and Modification. |
In the event that any provision or portion of this Agreement shall be determined to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by law. In the event that a court or other tribunal determines that the restraints in Sections 11, 12 and 13 are in any way overbroad or unenforceable, the Parties acknowledge and agree that the court or tribunal shall have the right to modify or sever the restraints in order to enforce them to the fullest extent permitted by applicable law.
| 23. | Survivorship. |
The respective rights and obligations of the Parties hereunder shall survive any termination of the Executive’s employment to the extent necessary to the intended preservation of such rights and obligations.
| 24. | Beneficiaries/References. |
The Executive shall be entitled, to the extent permitted under any applicable law, to select and change a beneficiary or beneficiaries to receive any compensation or benefit payable hereunder following the Executive’s death by giving the Company written notice thereof. In the event of the Executive’s death or a judicial determination of Executive’s incompetence, reference in this Agreement to the Executive shall be deemed, where appropriate, to refer to Executive’s
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beneficiary, estate or other legal representative.
| 25. | Governing Law/Jurisdiction. |
This Agreement shall be governed by and construed and interpreted in accordance with the laws of New York without reference to principles of conflict of laws. Subject to Section 15, the Company and the Executive hereby consent to the exclusive jurisdiction of any or all of the following courts for purposes of resolving any dispute under this Agreement: (i) the United States District Court for New York and (ii) the Supreme Court of the State of New York, New York County. The Company and the Executive hereby waive, to the fullest extent permitted by applicable law, any objection which it or he may now or hereafter have to such jurisdiction and any defense of inconvenient forum.
| 26. | Notices. |
Any notice given to a Party shall be in writing and shall be deemed to have been given when delivered personally or sent by certified or registered mail, postage prepaid, return receipt requested, or via nationally recognized overnight courier prepaid, duly addressed to the Party concerned at the address indicated below or to such changed address as such Party may subsequently give such notice of:
| If to the Company: |
▇▇▇▇▇*s, Inc. | |
| ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇. | ||
| ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ | ||
| Attention: Vice President Human Resources and Vice President and General Counsel | ||
| If to the Executive: |
▇▇▇▇ ▇▇▇▇▇▇▇ | |
| ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ | ||
| ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||
| With a copy to: |
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. | |
| ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, P.C. | ||
| ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ | ||
| 27. | Headings. |
The headings of the sections contained in this Agreement are for convenience only and shall not be deemed to control or affect the meaning or construction of any provision of this Agreement.
| 28. | Counterparts |
This Agreement may be executed in two or more counterparts.
| 29. | Tax Matters |
(a) Tax Withholding. The Company shall withhold from any amounts payable under this Agreement such federal, state and local taxes as may be required to be withheld pursuant to any applicable law or regulation.
(b) Section 409A Compliance. The intent of the parties is that payments and benefits under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidelines promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. If Executive notifies the Company (with specificity as to the reason
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therefore) that Executive believes that any provision of this Agreement (or of any award of compensation, including equity compensation or benefits) would cause Executive to incur any additional tax or interest under Code Section 409A, the Company shall, after consulting with Executive, reform such provision to try to comply with Code Section 409A through good faith modifications to the minimum extent reasonably appropriate to conform with Code Section 409A. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to Executive and the Company of the applicable provision without violating the provision of Code Section 409A.
(c) Special Section 409A Rules. This paragraph shall apply to all or any portion of any payment or benefit a payable under the Agreement as a result of termination of Executive’s employment that is not exempted from Code Section 409A (“409A Severance Compensation”).
(i) Separation from Service. If the termination of the Employee’s employment does not qualify as a “separation from service” within the meaning of Treasury Regulation section 1.409A-1(h) from the “Company’s Controlled Group”, then any 409A Severance Compensation will not commence until a “separation from service” occurs or, if earlier, the earliest other date as is permitted under Code Section 409A. For this purpose, the “Company’s Controlled Group” means the Company (i) any corporation which is a member of a controlled group of corporations (as defined in Code Section 414(b)) which includes the Company and (ii) any trade or business (whether or not incorporated) which is under common control (as defined in Code Section 414(c)) with the Company.
(ii) Six-Month Delay for “Specified Employees”. Notwithstanding any provisions to the contrary in this Agreement, if the Executive is deemed on the date of termination to be a “specified employee” within the meaning of that term under Code Section 409A (a)(2)(B), then with regard to any payment or the provision of any benefit that is specified as subject to this Section, such payment or benefit shall not be made or provided prior to the earlier or (i) the expiration of six (6)-month period measured from the date of Executive’s “separation from service” (as such term is defined under Code Section 409A), and (ii) the date of Executive’s death (the “Delay Period”). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 30(c) (whether they would have otherwise been payable in a single sum or in installments in absence of such delay) shall be reimbursed to the Executive in a lump sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.
| ▇▇▇▇▇*s, INC. | ||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| Title: | Chief Executive Officer | |
| EXECUTIVE | ||
| /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | ||
| ▇▇▇▇ ▇▇▇▇▇▇▇ | ||
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EXHIBIT A
Aeropostale, Inc.
Abercrombie & Fitch, Co.
American Eagle Outfitters, Inc.
Wet Seal, Inc.
Pacific Sunwear of California, Inc.
Hot Topic, Inc.
The Buckle, Inc.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Holding, Inc.
Forever 21
H & M
Garage
All subsidiaries, divisions, affiliates and successors of the above-named entities are included.
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