TRANSFER AND ASSIGNMENT AGREEMENT
Exhibit 10.1
TRANSFER AND ASSIGNMENT AGREEMENT (“Agreement”), dated as of March 17, 2008 (the “Effective
Date”), by and among DSW Inc., an Ohio corporation (“Buyer” or “DSW”), and Retail Ventures, Inc.,
an Ohio corporation (“RVI”), Retail Ventures Services, Inc., an Ohio corporation (“RVSI”) and
wholly owned subsidiary of RVI, and Filene’s Basement, Inc., a Delaware corporation (“FB”) and
wholly owned subsidiary of RVI (RVI, RVSI, and FB, collectively, “Seller” or “RVI Entities”).
WHEREAS, Seller currently provides certain services on behalf of or for DSW and its
subsidiaries, including (i) General Corporate and Financial Services and (ii) Human Resources
Services (collectively, the “Provided Services”), pursuant to an Amended and Restated Shared
Services Agreement entered into effective as of October 29, 2006, by and between DSW and RVI (the
“Shared Services Agreement”);
WHEREAS, pursuant to the Shared Services Agreement, Buyer or its wholly owned subsidiary,
Brand Technology Services LLC, an Ohio limited liability company (“BTS”), provide certain
information technology services to the RVI Entities as well as to Value City Department Stores LLC,
an Ohio limited liability company (“VC”) and ▇.▇. ▇▇▇▇▇▇▇▇, Inc. and Retail Ventures Jewelry, Inc.,
previously wholly owned by RVI;
WHEREAS, RVI transferred all of the issued and outstanding units of the membership interests
of VC to Value City Holdings, Inc. (“VCHI”) and subsequently sold, as of January 23, 2008, 81% of
its ownership in VCHI to VCHI Acquisition Co. (“VCHIA”) (the “VC Sale”);
WHEREAS, (i) Seller desires to transfer certain assets and contracts related to the Provided
Services to Buyer, and Buyer desires to acquire such assets and assume such contracts, (ii) Buyer
desires to employ certain employees of Sellers currently engaged in providing the Provided
Services, (iii) following the consummation of the transactions contemplated by this Agreement,
Buyer desires to provide the Provided Services on behalf of or for the RVI Entities, (iv) Buyer has
agreed to provide Transition Services to VCHI and VC as provided in the Purchase Agreement, dated
as of January 23, 2008 entered into by and between RVI and VCHIA and (v) Buyer and RVI desire to
amend the Shared Services Agreement to reflect the foregoing transactions;
WHEREAS, capitalized terms used herein without definition have the respective meanings
assigned thereto in Section 21;
NOW, THEREFORE, Buyer, Seller and RVI agree as follows:
1.
ASSIGNMENT OF ASSETS AND CONTRACTS; ASSUMPTION OF LIABILITIES
1.1. Assignment of Assets and Contracts; Assumption of Liabilities
(a) (i) On the terms and subject to the conditions herein expressed, Seller agrees to transfer,
assign and deliver to Buyer, and Buyer agrees to acquire and accept from Seller, on and as of the
Effective Date, all of Seller’s right, title and interest in and to the assets described on
Schedule 1.1(a)(i) (the “Acquired Assets”) Buyer shall pay Seller the net book value for
the Acquired Assets.
(ii) On the terms and subject to the conditions herein expressed, Seller agrees to transfer,
assign and deliver to Buyer, and Buyer agrees to acquire and accept from Seller, on and as of
January 31, 2009, all of Seller’s right, title and interest in and to the assets described on
Schedule 1.1(a)(ii) (the “IT Acquired Assets”) Buyer shall pay Seller the net book value
for the Acquired Assets as of January 31, 2009.
(b) As of the Effective Date, Buyer shall assume only the liabilities and obligations of Seller set
forth below:
(i) The debts, liabilities and obligations of Seller to be performed after the Effective Date
under the contracts, agreements, arrangements and understandings set forth and described on
Schedule 2 (the “Assigned Contracts”), other than in each case debts, liabilities and
obligations on account of breaches or violations by Seller that occurred on or prior to the
Effective Date).
(ii) The executive employment agreements listed on Schedule 1.1(b), including the
debts, liabilities and obligations of Seller to be performed after the Effective Date under such
executive employment agreements.
(iii) The debts, liabilities and obligations incurred after the Effective Date by Buyer with
respect to the New Buyer Employees (provided that Buyer shall also assume the liabilities relating
to vacation pay accrued prior to the Effective Date as provided in Section 10.1.1(a) below).
Except as specified in this Section 1, Buyer shall not assume or be deemed to assume any debts,
liabilities or obligations of Seller, including, without limitation, any debts, liabilities or
obligations of Seller for acts or omissions of Seller on or before the Effective Date with respect
to the Acquired Assets or the New Buyer Employees.
1.2. Restricted Contracts
The parties understand and agree that, without limiting any representation, warranty, condition,
covenant or indemnification contained in this Agreement, if, as of the Closing, Seller shall not
have effectively obtained any or all consents of any third party(ies) to the assignment of the
Assigned Contracts (each a “Restricted Contract”), in respect of which such third party’s consent
to assign is required in order to preserve the value of such Restricted Contract for Seller or
otherwise, then (a) the assignment by Seller and the assumption by Buyer of such Restricted
Contract shall not become effective at Closing or thereafter until Seller shall have obtained the
requisite consent to assign (which Seller shall use commercially reasonable efforts to obtain,
together with the cooperation of Buyer), (b) such assignment and assumption shall become effective
as aforesaid subsequent to Closing pursuant to such documentation as shall be reasonably acceptable
to Buyer and Seller, and (c) Seller shall not take nor permit any action which would impair the
full force and effect of such Restricted Contract, or otherwise cause or permit the modification,
amendment, or termination of such Restricted Contract (except insofar as consented to by Buyer,
which consent shall not be unreasonably withheld or delayed) until the effective assignment thereof
as aforesaid. The parties understand and agree that Seller, subsequent to the Closing, shall not
be entitled to any of the rights and privileges under any Restricted Contract, all of which shall
accrue to the benefit of Buyer, and Seller shall be deemed to hold such Restricted Contract in
trust for Buyer. To the extent that Buyer is able to receive the economic rights and privileges
under any Restricted Contract, Buyer shall be responsible for the liabilities assumed by Buyer
pursuant to Section 1.1 arising under such Restricted Contract.
2. REPRESENTATIONS AND WARRANTIES BY RVI ENTITIES
The RVI Entities, jointly and severally, represent and warrant to Buyer as follows:
2.1. Organization and Standing
(a) RVSI is a corporation duly organized, validly existing and in good standing under the laws of
the State of Ohio. RVSI has all the requisite corporate power and authority to enter into and
perform the terms of this Agreement, the other Seller Documents to which it is a party and the
transactions contemplated hereby and thereby.
(b) RVI is a corporation duly organized, validly existing and in good standing under the laws of
the State of Ohio. RVI has all the requisite corporate power and authority to enter into and
perform the terms of this Agreement, the other Seller Documents to which it is a party and the
transactions contemplated hereby and thereby.
(c) FB is a corporation duly organized, validly existing and in good standing under the laws of the
State of Delaware. FB has all the requisite corporate power and authority to enter into and
perform the terms of this Agreement, the other Seller Documents to which it is a party and the
transactions contemplated hereby and thereby.
2.2. Authorization
(a) The execution, delivery and performance of this Agreement and of the other Seller Documents to
which it is a party, and the consummation of the transactions contemplated hereby and thereby have
been duly and validly authorized by all necessary actions of Seller (none of which actions has been
modified or rescinded and all of which actions are in full force and effect). This Agreement
constitutes, and upon execution and delivery of each other Seller Document to which it is a party
will constitute, a valid and binding agreement and obligation of Seller, enforceable in accordance
with their respective terms. Except as specified in Section 2.3, the execution, delivery and
performance by Seller of this Agreement and of the other Seller Documents to which it is a party
will not require the consent, approval or authorization of any person, entity or governmental
authority.
(b) The execution, delivery and performance of this Agreement and of the other Seller Documents to
which it is a party, and the consummation of the transactions contemplated hereby and thereby have
been duly and validly authorized by all necessary actions of RVI (none of which actions has been
modified or rescinded and all of which actions are in full force and effect). This Agreement
constitutes, and upon execution and delivery of each other Seller Document to which it is a party
will constitute, a valid and binding agreement and obligation of RVI, enforceable in accordance
with their respective terms. Except as specified in Section 2.3, the execution, delivery and
performance by RVI of this Agreement and of the other Seller Documents to which it is a party will
not require the consent, approval or authorization of any person, entity or governmental authority.
2.3. Conflicts and Consents
Except as set forth on Schedule 2.3, the execution and delivery of this Agreement and
the other Seller Documents to which it is a party, the fulfillment of and the compliance with the
respective terms and provisions of each, and the consummation of the transactions described in
each, do not and will not conflict with or violate any law, ordinance, regulation, order, award,
judgment, injunction or decree applicable to any of the RVI Entities, or conflict with or result in
a breach of or constitute a default under any of the terms, conditions or provisions of each of the
RVI Entities’ respective articles of incorporation or bylaws, or any contract, agreement, lease,
commitment,
or understanding to which any of the RVI Entities is a party or by which any of the RVI
Entities is bound.
2.4 Assets; Contracts and Agreements
(a) Seller has, and pursuant to this Agreement will convey, transfer and assign to Buyer, good
and marketable title to the Acquired Assets and IT Acquired Assets, free and clear of Encumbrances.
(b) Schedule 2 contains a complete list, as of the date hereof, of each Assigned
Contracts. All of the Assigned Contracts are fully and validly executed by one of the RVI Entities
and have been executed by the other parties thereto, and all of the Assigned
Contracts are in full
force and effect, constitute legal, valid and binding obligations of the respective parties
thereto, and are enforceable in accordance with their respective terms. Seller has performed in
all material respects all of the obligations required to be performed by it to date under each such
Assigned Contract. No event has occurred which, with or without notice or the passage of time or
both, constitutes or would constitute a material breach or default by Seller or any other party
under any Assigned Contract or permit any other party to accelerate, terminate, cancel or modify
such Assigned Contract. There have been no threatened cancellations by any third person of any
Assigned Contract.
2.5 Disclosure
No representation or warranty or other statement made by Seller any of the RVI Entites in this
Agreement, the Schedules or otherwise in connection with the transactions contemplated by this
Agreement contains any untrue statement or omits to state a material fact necessary to make any of
them, in light of the circumstances in which it was made, not misleading.
3.
REPRESENTATIONS AND WARRANTIES BY BUYER
Buyer represents and warrants to the RVI Entities as follows:
3.1. Organization and Standing
Buyer is an Ohio corporation duly organized, validly existing and in good standing under the laws
of the State of Ohio. Buyer has all the requisite corporate power and authority to enter into and
perform the terms of this Agreement and the other Buyer Documents and to carry out the transactions
contemplated hereby and thereby.
3.2. Authorization
The execution, delivery and performance of this Agreement and of the other Buyer Documents, and the
consummation of the transactions contemplated hereby and thereby, have been duly and validly
authorized by all necessary actions of Buyer (none of which actions has been modified or rescinded
and all of which actions are in full force and effect). This Agreement constitutes, and upon
execution and delivery each such other Buyer Document will constitute, a valid and binding
agreement and obligation of Buyer, enforceable in accordance with their respective terms. The
execution, delivery and performance by Buyer of this Agreement and the other Buyer Documents will
not require the consent, approval or authorization of any person, entity or governmental authority.
3.3. Conflicts and Consents
The execution and delivery of this Agreement and the other Buyer Documents, the fulfillment of and
the compliance with the respective terms and provisions of each, and the consummation of the
transactions described in each, do not and will not conflict with or violate
any law, ordinance,
regulation, order, award, judgment, injunction or decree applicable to Buyer, or conflict with or
result in a breach of or constitute a default under any of the terms, conditions or provisions of
Buyer’s organizational documents, or any contract, agreement, lease, commitment, or understanding
to which Buyer is a party or by which Buyer is bound.
4. COVENANTS OF SELLER
Seller covenants and agrees with Buyer that Seller will use commercially reasonable efforts to
obtain all third party consents required to assign to Buyer the Acquired Assets and Assigned
Contracts set forth on Schedule 2.3. Buyer shall cooperate with Seller with respect to
obtaining all such third party consents. All costs incurred or relating to the obtaining of all
such third party consents or otherwise arising from the assignment of the Acquired Assets and
Assigned Contracts shall be considered an expense and treated as a shared expensed pursuant to the
terms of the Shared Services Agreement.
5. CONDITIONS PRECEDENT TO BUYER’S OBLIGATION TO CLOSE
The obligations of Buyer to proceed with the Closing are subject to the satisfaction (or waiver by
Buyer) at or prior to the Closing of each of the following conditions:
5.1. Representations and Covenants
The representations and warranties of the RVI Entities made in this Agreement shall have been true
and correct in all material respects when made, and shall be true and correct in all material
respects on the Closing Date as though such representations and warranties were made on and as of
the Closing Date; and the RVI Entities shall have performed and complied in all material respects
with all covenants and agreements required by this Agreement to be performed or complied with by
the RVI Entities prior to the Closing.
5.2. Consents
The parties shall have obtained prior to the Closing all consents necessary to effect valid
assignments to Buyer of all of the Acquired Assets specified in Schedule 2.3 and all other
consents necessary to consummate the transactions contemplated hereby.
5.3. Delivery by the RVI Entities
The RVI Entities shall have delivered to Buyer all consents, agreements and instruments required to
be delivered to Buyer pursuant to Section 7.2.
5.4. Legal Proceedings
No action or proceeding by or before any governmental authority shall have been instituted or
threatened (and not subsequently dismissed, settled or otherwise terminated) that
might restrain,
prohibit or invalidate the transactions contemplated by this Agreement or any other Seller
Document, other than an action or proceeding instituted or threatened by Buyer or DSW.
6. CONDITIONS PRECEDENT TO SELLER’S OBLIGATION TO CLOSE
The obligations of Seller to proceed with the Closing are subject to the satisfaction (or waiver by
Seller) at or prior to the Closing of each of the following conditions:
6.1. Representations and Covenants
The representations and warranties of Buyer made in this Agreement or in any other Buyer Document
shall have been true and correct in all material respects when made, and shall be true and correct
in all material respects on the Closing Date as though such representations and warranties were
made on and as of the Closing Date; and Buyer shall have performed and complied
in all material respects with all covenants and agreements required to be performed or complied
with by Buyer prior to the Closing.
6.2. Delivery by Buyer
Buyer shall have delivered to the RVI Entities all agreements and instruments required to be
delivered to the RVI Entities pursuant to Section 7.3.1.
6.3. Legal Proceedings
No action or proceeding by or before any governmental authority shall have been instituted or
threatened (and not subsequently dismissed, settled or otherwise terminated) that might restrain,
prohibit or invalidate the transactions contemplated by this Agreement or any other Buyer Document,
other than an action or proceeding instituted or threatened by Seller or RVI.
7. THE CLOSING
7.1. Closing
The Closing hereunder shall be held on the date hereof (the “Closing Date”).
7.2. Delivery by the RVI Entities
At or before the Closing, the RVI Entities shall deliver to Buyer:
7.2.1. Agreements and Instruments
The following documents, dated as of the Closing Date, in form satisfactory to Buyer:
(i) ▇▇▇▇ of Sale and the Assumption Agreement; and
(ii) such other instruments or documents as Buyer may reasonably request in order to effect
and document the transactions contemplated hereby.
7.2.2. Consents
Copies of all consents listed on Schedule 2.3.
7.2.3. Amendment No. 1 to Shared Services Agreement
Executed Amendment No.1 to Shared Services Agreement.
7.2.4. Release of Encumbrances
Evidence of release of Encumbrances, if any, in form and substance reasonably acceptable to Buyer.
| 7.3. Delivery by Buyer |
At or before the Closing, Buyer shall deliver to the RVI Entities:
7.3.1. Agreements and Instruments
The following agreements and instruments:
(i) Amendment No. 1 to Shared Services Agreement;
(ii) the Assumption Agreement; and
(iii) such other instruments or documents as Seller may reasonably request in order to effect
and document the transactions contemplated hereby.
8. SURVIVAL; INDEMNIFICATION
8.1. Survival of RVI Entities’ Representations
The representations and warranties made by the RVI Entities in this Agreement or pursuant hereto
shall survive the Closing Date for a period of one (1) year.
8.2. Indemnification by Seller
Subject to the conditions and provisions of Section 8.5, Seller agrees to indemnify, defend and
hold harmless Buyer and its affiliates from and against any and all demands, claims, complaints,
actions or causes of action, suits, proceedings, investigations, arbitrations, assessments, losses,
damages, liabilities, costs and expenses, including, but not limited to, interest, penalties and
reasonable attorneys’ fees and disbursements, asserted against, imposed upon or incurred by Buyer
and/or its affiliates, directly or indirectly, by reason of or resulting from (a) any debt,
liability or obligation of or claim against Seller (whether absolute, accrued, contingent or
otherwise and whether a contractual, tax or any other type of liability or obligation or claim) not
expressly assumed by Buyer pursuant to Section 1.1, (b) any misrepresentation or breach of the
representations and warranties of the RVI Entities contained in or made pursuant to this Agreement
or any other Seller Document, or (c) any noncompliance by the RVI Entities with any covenants,
agreements or undertakings of Seller or RVI contained in or made pursuant to this Agreement or any
other Seller Document.
8.3. Survival of Buyer’s Representations
The representations and warranties made by Buyer in this Agreement or pursuant hereto shall survive
the Closing Date for a period of one (1) year.
8.4. Indemnification by Buyer
Subject to the conditions and provisions of Section 8.5, Buyer agrees to indemnify, defend and hold
harmless Seller and its affiliates from and against any and all demands, claims, complaints,
actions or causes of action, suits, proceedings, investigations, arbitrations, assessments, losses,
damages, liabilities, costs and expenses, including, but not limited to, interest, penalties and
reasonable attorneys’ fees and disbursements, asserted against, imposed upon or incurred by Seller
and/or its affiliates, directly or indirectly, by reason of or resulting from (a) any debt,
liability or obligation of or claim against Seller (whether absolute, accrued, contingent or
otherwise and whether a contractual, tax or any other type of liability or obligation or claim)
expressly assumed by Buyer pursuant to Section 1.1, (b) any misrepresentation or breach of the
representations and warranties of Buyer contained in or made pursuant to this Agreement or any
other Buyer Document, or (c) any noncompliance by Buyer with any covenants, agreements or
undertakings of Buyer contained in or made pursuant to this Agreement or any other Buyer Document.
8.5. Conditions of Indemnification
The obligations and liabilities of Seller and Buyer hereunder with respect to their respective
indemnities pursuant to this Section 8, resulting from any claim or other assertion of liability by
third parties (hereinafter called collectively, “Claims”), shall be subject to the following terms
and conditions:
(a) The party seeking indemnification (the “Indemnified Party”) must give the other party or
parties, as the case may be (the “Indemnifying Party”), notice of any such Claim
promptly after the
Indemnified Party receives notice thereof; provided, however, that failure to give such notice
promptly shall not relieve the Indemnifying Party of its obligations under this Section 8 except to
the extent that the Indemnifying Party is prejudiced thereby.
(b) The Indemnifying Party shall have the right to undertake, by counsel or other representatives
of its own choosing, the defense of such Claim.
(c) In the event that the Indemnifying Party shall elect not to undertake such defense, or within a
reasonable time after notice of any such Claim from the Indemnified Party shall fail to defend,
the Indemnified Party (upon further written notice to the Indemnifying Party) shall have the right
to undertake the defense, compromise or settlement of such Claim, by counsel or other
representatives of its own choosing, on behalf of and for the account and risk of the Indemnifying
Party (subject to the right of the Indemnifying Party to assume defense of such Claim at any time
prior to settlement, compromise or final determination thereof).
(d) Anything in this Section 8.5 to the contrary notwithstanding, if there is a reasonable
probability that a Claim may materially and adversely affect the Indemnified Party other than as a
result of money damages or other money payments, (i) the Indemnified Party shall have the right, at
its own cost and expense, to participate in the defense, compromise or settlement of the Claim,
(ii) the Indemnifying Party shall not, without the Indemnified Party’s written consent, settle or
compromise any Claim or consent to entry of any judgment which does not include as an unconditional
term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from
all liability in respect of such Claim, and (iii) in the event that the Indemnifying Party
undertakes defense of any Claim, the Indemnified Party, by counsel or other representative of its
own choosing and at its sole cost and expense, shall have the right to consult with the
Indemnifying Party and its counsel or other representatives concerning such Claim and the
Indemnifying Party and the Indemnified Party and their respective counsel or other representatives
shall cooperate with respect to such Claim.
9. ADDITIONAL COVENANTS OF THE PARTIES
9.1. Mutual Covenants
9.1.1. Additional Actions and Documents
Each of the parties hereto agrees that it will, at any time, prior to, at or after the Closing
Date, take or cause to be taken such further actions, and execute, deliver and file or cause to be
executed, delivered and filed such further documents and instruments, and obtain such consents, as
may be necessary or reasonably requested in connection with the consummation of the purchase and
sale contemplated by this Agreement or in order to fully effectuate the purposes, terms and
conditions of this Agreement.
9.1.2. Public Announcements
Each of Seller and Buyer agrees that it shall consult with the other before issuing any press
release or making any public announcement with respect to the sale of the Acquired Assets and shall
not issue any such press release or make any such public announcements (either before or after the
Closing Date) prior to such consultation unless otherwise required by any applicable laws or stock
listing requirements.
9.2. Covenants of RVI Entities
9.2.1. Certain Third Party Warranties
If Seller shall have recourse to a warranty, representation or indemnity or similar
contractual protective provision made by a third party to Seller that relates to the transactions
contemplated by this Agreement, Seller shall use its commercially reasonable efforts from and after
the Closing to provide the benefit of such warranty, representation or indemnity or similar
provision, to Buyer upon Buyer’s request.
9.3 Northland Furniture
Buyer shall pay to Seller $110,000 as full settlement of its share of the allocated
depreciation for the furniture associated with the Northland building (cost center 01109).
10. EMPLOYEES AND EMPLOYEE BENEFITS
10.1.1. Employment of New Buyer Employees
(a) As of the Effective Date, the employees listed on Schedule 3 (the “New Buyer
Employees”) shall become employees of Buyer. Buyer shall be responsible for the payment of all
wages and other remuneration due to New Buyer Employees with respect to their services as employees
of Buyer from and after the Effective Date; provided, however that Buyer shall also be responsible
for any accrued vacation pay of a New Buyer Employee earned prior to the Effective Date but not
payable prior to the Effective Date. Nothing in this Agreement establishes any right in the New
Buyer Employees to payments of any kind relating to termination of employment.
(b) Seller shall be responsible for the payment of all wages and other remuneration due to New
Buyer Employees with respect to their services as employees of Seller until the Effective Date
(excluding pro rata bonus payments, if any) and all accrued vacation pay earned and due to be paid
prior to the Effective Date.
(c) Seller or, as applicable, the appropriate employee benefit plans shall be liable for any
claims made or incurred by New Buyer Employees and their beneficiaries through the Effective Date
under any employee benefit plans in which the New Buyer Employees
participate. For purposes of the
immediately preceding sentence, a charge will be deemed incurred, in the case of hospital, medical
or dental benefits, when the services that are the subject of the charge are performed and, in the
case of other benefits (such as disability or life insurance), when an event has occurred or when a
condition has been diagnosed that entitles the employee to the benefit.
(d) It is the intent of the parties that any equity awards granted (stock options, SARs, etc.)
by the RVI Entities to the New Buyer Employees prior to the Effective Date shall remain
outstanding, and New Buyer Employees will remain subject to the terms and conditions of those
awards and underlying plans.
(e) Immediately following the transactions contemplated hereby, all reasonable efforts will be
made to quickly transition payroll records and systems from Seller to Buyer, so that all applicable
payments are made on Buyer’s behalf.
10.1.2. Retirement and Welfare Plans
Following the Effective Date, to the extent permitted by law and applicable tax qualification
requirements, and subject to any generally applicable break in service or similar rule, and the
approval of any insurance carrier, third party provider or the like with commercially reasonable
efforts of the RVI Entities and Buyer, each New Buyer Employee shall continue to participate in
retirement and welfare benefit plans in which he or she was participating prior to the Closing Date
and shall receive service credit for purposes of eligibility to participate and vesting (but not
for benefit accrual purposes) for employment, compensation, and employee benefit plan purposes with
the Seller prior to the Effective Date. Notwithstanding any of the foregoing to the contrary, none
of the provisions contained herein shall operate to duplicate any benefit provided to any New Buyer
Employees or the funding of any such benefit. The RVI Entities and Buyer will also cause all (a)
pre-existing conditions and proof of insurability provisions, for all conditions that all New Buyer
Employees and their covered dependents have as of the Effective Date, and (b) waiting periods under
each plan that would otherwise be applicable to newly hired employees to be waived in the case of
clause (a) or clause (b) with respect to New Buyer Employees to the same extent waived or satisfied
under the RVI Entities’ employee benefit plans; provided that nothing in this sentence shall limit
the ability of the RVI Entities or the Buyer from amending or entering into new or different
employee
benefit plans or arrangements provided such plans or arrangements treat the New Buyer
Employees in a substantially similar manner as employees of Buyer are treated.
10.1.3. General Employee Provisions
(a) Buyer will set its own initial terms and conditions of employment for the New Buyer
Employees and others it may hire, including work rules, benefits and salary and wage structure, all
as permitted by law; provided, however, that Buyer shall not reduce the job title or compensation
of any New Buyer Employee for a period of eighteen (18) months from the Effective Date unless such
change is related to a request by a New Buyer Employee in job scope/responsibility. Buyer shall
provide Seller with advance notice of the termination of employment by Buyer of any New Buyer
Employee employed at a director level or higher who provides shared services.
(b) Seller and Buyer shall give any notices required by applicable law and take whatever other
actions with respect to the plans, programs and policies described in this Section 10 as may be
necessary to carry out the arrangements described in this Section 10.
(c) Seller and Buyer shall provide each other with such plan documents and summary plan
descriptions, employee data or other information as may be reasonably required to carry out the
arrangements described in this Section 10.
(d) With respect to any claims arising based on acts by Seller in the time period prior to the
Effective Date, Buyer shall not have any responsibility, liability or obligation, whether to New
Buyer Employees, former employees, their beneficiaries or to any other person, with respect to any
employee benefit plans, practices, programs or arrangements (including the establishment, operation
or termination thereof and the notification and provision of COBRA coverage extension) maintained
by Seller.
10.1.4. Employee Severance Costs
Except as otherwise expressly set forth herein, Seller and Buyer shall share equally (50/50)
with respect to any claim or liability relating to the termination of an employee (not including
New Buyer Employees) from any of the RVI Entities as the result of the VC Sale and subsequent
transfer of New Buyer Employees to Buyer.
11. SALES, TRANSFER AND OTHER TAXES
Buyer and Seller shall pay all sales, transfer or other taxes, if any, arising from the
transactions contemplated by this Agreement, regardless of the person on whom any such taxes are
imposed by law. Such payment will be apportioned based upon the Percent of Sales Billing ratio (as
outlined in the Shared Services Agreement) existing at the date of Closing.
12. TERMINATION
The parties may terminate this Agreement by mutual written agreement at any time prior to the
Closing. In addition, either Buyer, on the one hand, or Seller and RVI, on the other hand, may
terminate this Agreement if the Closing shall not have occurred on or before June 30, 2008. In the
event that this Agreement is terminated pursuant to this Section 12, such termination shall be
without any liability or obligation to any party or parties and all further obligations of the
parties hereunder shall terminate.
13. NOTICES
All notices, demands, requests or other communications which may be or are required to be given or
made by any party to any other party pursuant to this Agreement shall be in writing and shall be
hand delivered, mailed by first-class registered or certified mail, return receipt requested,
postage
prepaid, delivered by overnight air courier, or transmitted by telegram, telex or facsimile
transmission addressed as follows:
(i) If to Buyer:
DSW Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Telecopier Number: 614/872-1475
▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Telecopier Number: 614/872-1475
with a copy (which shall not constitute notice) to:
(ii) If to Seller or RVI:
Retail Ventures, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Telecopier Number: 614/473-2721
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Telecopier Number: 614/473-2721
with a copy (which shall not constitute notice) to:
Retail Ventures, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Telecopier Number: 614/337-4682
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Telecopier Number: 614/337-4682
or such other address as the addressee may indicate by written notice to the other party.
Each notice, demand, request or communication which shall be given or made in the manner described
above shall be deemed sufficiently given or made for all purposes at such time as it is delivered
to the addressee (with the return receipt, the delivery receipt, the affidavit of messenger or
(with respect to a telex) the answerback being deemed conclusive but not exclusive evidence of such
delivery) or at such time as delivery is refused by the addressee upon presentation.
14. WAIVER
No delay or failure on the part of any party hereto in exercising any right, power or privilege
under this Agreement or under any other instrument or document given in connection with or pursuant
to this Agreement shall impair any such right, power or privilege or
be construed as a waiver of
any default or any acquiescence therein. No single or partial exercise of any such right, power or
privilege shall preclude the further exercise of such right, power or privilege, or the exercise of
any other right, power or privilege. No waiver shall be valid against any party hereto unless made
in
writing and signed by the party against whom enforcement of such waiver is sought and then only to
the extent expressly specified therein.
15. BENEFIT AND ASSIGNMENT
Except as hereinafter specifically provided in this Section 15, no party hereto shall assign this
Agreement, in whole or in part, whether by operation of law or otherwise, without the prior written
consent of Seller (if the assignor is Buyer) or Buyer (if the assignor is Seller or RVI); and any
purported assignment contrary to the terms hereof shall be null, void and of no force and effect.
In no event shall any assignment by Seller or RVI of its rights and obligations under this
Agreement, whether before or after the Closing, release Seller or RVI from its liabilities
hereunder. Notwithstanding the foregoing, Buyer or any permitted assignee of Buyer may assign this
Agreement and any and all rights hereunder, in whole or in part, to any direct or indirect
subsidiary of DSW.
This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns as permitted hereunder. No person or entity other than the
parties hereto is or shall be entitled to bring any action to enforce any provision of this
Agreement against any of the parties hereto, and the covenants and agreements set forth in this
Agreement shall be solely for the benefit of, and shall be enforceable only by, the parties hereto
or their respective successors and assigns as permitted hereunder.
16. REMEDIES CUMULATIVE
Except as specifically provided herein, the remedies provided herein shall be cumulative and shall
not preclude the assertion by a party of any other rights or the seeking of any other remedies
against the other parties, or their successors or assigns. Nothing contained herein shall preclude
a party from seeking equitable relief, where appropriate.
17. ENTIRE AGREEMENT; AMENDMENT
This Agreement, including the Schedules and Exhibits hereto and the other instruments and documents
referred to herein or delivered pursuant hereto, contains the entire agreement among the parties
with respect to the subject matter hereof and supersedes all prior oral or written agreements,
commitments or understandings with respect to such matters. No amendment, modification or
discharge of this Agreement shall be valid or binding unless set forth in writing and duly executed
by the party against whom enforcement of the amendment, modification or discharge is sought.
18. SEVERABILITY
If any part of any provision of this Agreement or any other agreement, document or writing given
pursuant to or in connection with this Agreement shall be invalid or unenforceable under applicable
law, such part shall be ineffective to the extent of such invalidity or unenforceability only,
without in any way affecting the remaining parts of such provisions or the remaining provisions of
said agreement.
19. HEADINGS
The headings of the sections and subsections contained in this Agreement are inserted for
convenience only and do not form a part or affect the meaning, construction or scope thereof.
20. GOVERNING LAW
This Agreement, the rights and obligations of the parties hereto, and any claims or disputes
relating thereto, shall be governed by and construed under and in accordance with the laws of the
State of Ohio, excluding the choice of law rules thereof.
21. DEFINITIONS AND REFERENCES
As used herein, the following terms shall have the meanings set forth below, unless the context
otherwise requires:
“Agreement” shall have the meaning set forth in the Preamble.
“Amendment No. 1 to Amended and Restated Shared Services Agreement” means that certain Amendment
No. 1 to Amended and Restated Shared Services Agreement, dated as of the Closing Date and executed
by DSW and RVI, substantially in the form attached hereto as Exhibit B.
“Acquired Assets” shall have the meaning set forth in Section 1.1.
“Assigned Contracts” shall have the meaning set forth in Section 1.1.
“Assumption Agreement” means that certain Assumption Agreement, dated as of the Closing Date and
executed by Buyer and Seller, substantially in the form attached hereto as Exhibit A.
“▇▇▇▇ of Sale” shall mean a ▇▇▇▇ of sale in such form as is mutually agreed upon by the parties to
evidence the transfer of the Acquired Assets.
“Buyer” shall have the meaning set forth in the Preamble.
“Buyer Documents” shall mean, together, this Agreement and the Assumption Agreement.
“Claims” shall have the meaning set forth in Section 8.5.
“Closing” means the closing of the transactions contemplated hereunder.
“Closing Date” means the time and date on which the Closing takes place, as established by
Section 7.1.
“DSW” shall have the meaning set forth in the Preamble.
“Encumbrances” shall mean any mortgages, pledges, liens, claims, security interests, restrictions,
defects in title, easements, taxes, encumbrances or charges.
“Indemnified Party” and “Indemnifying Party” shall have the respective meanings set forth in
Section 8.5(a).
“New Buyer Employees” shall have the meaning set forth in Section 10.1.1(a).
“Restricted Contract” shall have the meaning set forth in Section 1.2.
“RVI” shall have the meaning set forth in the Preamble.
“RVI Entities” shall have the meaning set forth in the Preamble.
“Seller” shall have the meaning set forth in the Preamble.
“Seller Documents” shall mean, collectively, this Agreement, the ▇▇▇▇ of Sale, and the Assumption
Agreement.
“Shared Services Agreement” shall have the meaning set forth in the Preamble.
All references to clauses, Sections, Exhibits and Schedules are to Sections of, and Exhibits and
Schedules to, this Agreement. For purposes of this Agreement, DSW and its subsidiaries shall not
be deemed to be “affiliates” of RVI or Seller.
22. SIGNATURE IN COUNTERPARTS
This Agreement may be executed in separate counterparts, none of which need contain the signatures
of all parties, each of which shall be deemed to be an original, and all of which taken together
constitute one and the same instrument. It shall not be necessary in making proof of this
Agreement to produce or account for more than the number of counterparts containing the respective
signatures of, or on behalf of, all of the parties hereto.
IN WITNESS WHEREOF, each of the parties hereto has executed and delivered this Agreement, or has
caused this Agreement to be duly executed and delivered in its name on its behalf, all as of the
day and year first above written.
| DSW INC. | ||||
By:
|
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||
| Title: Senior Vice President, General Counsel | ||||
| RETAIL VENTURES, INC. | ||||
By:
|
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|||
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||
| Title: Executive Vice President, Chief Financial Officer | ||||
| RETAIL VENTURES SERVICES, INC. | ||||
By:
|
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|||
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||
| Title: Executive Vice President, Chief Financial Officer | ||||
| FILENE’S BASEMENT, INC. | ||||
By:
|
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|||
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||
| Title: Executive Vice President, Chief Financial Officer | ||||