MARYANNE MORIN AGREEMENT WITH STEIN MART, INC.

Exhibit 10.1

▇▇▇▇▇▇▇▇ ▇▇▇▇▇

AGREEMENT

WITH

▇▇▇▇▇ MART, INC.

This Agreement (this “Agreement”) is entered into on May 7, 2019 in the City of Jacksonville and State of Florida between ▇▇▇▇▇ Mart, Inc., a Florida corporation and its divisions, subsidiaries and affiliates (the “Company”), and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, President, Chief Merchandising Officer (“Executive”), to be effective as of December 5, 2018 (the “Effective Date”).

In consideration of the promises and mutual covenants contained herein, the parties, intending to be legally bound, agree as follows:

SECTION 1.          TERM OF EMPLOYMENT

(a)       Term. The Company agrees to employ Executive, and Executive agrees to be employed by the Company, for a period of two (2) year(s) beginning on the Effective Date (the “Initial Term”) After the end of the Initial Term and any successive Renewal Term (as defined herein), this Agreement shall automatically renew for another two (2) year term (each, a “Renewal Term” and together with the Initial Term and any other Renewal Term, the “Term”), unless either party gives written notice that this Agreement shall not renew upon sixty (60) days notice before the end of the Initial Term or any Renewal Term.

SECTION 2.          DEFINITIONS

“Board of Directors” means the Board of Directors of ▇▇▇▇▇ Mart, Inc. and any of its divisions, affiliates or subsidiaries.

“Cause” means the occurrence of any one or more of the following:

(a)       Executive has been convicted of, or pleads guilty or nolo contendere to, a felony involving dishonesty, theft, misappropriation, embezzlement, fraud crimes against property or person, or moral turpitude which negatively impacts the Company; or

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(b)      Executive intentionally furnishes materially false, misleading, or omissive information concerning a substantial matter to the Company or persons to whom the Executive reports; or

(c)       Executive intentionally fails to fulfill any assigned responsibilities for compliance with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or violates the same; or

(d)       Executive intentionally and wrongfully damages material assets of the Company; or

(e)      Executive intentionally and wrongfully discloses material Confidential Information of the Employer; or

(f)       Executive intentionally and wrongfully engages in any competitive business activity which would constitute a material breach of the duty of loyalty; or

(g)       Executive intentionally breaches any stated material employment policy or any material provision of the Company’s Ethics Policy which could reasonably be expected to expose the Company to liability, or

(h)       Executive intentionally commits a material breach of this Agreement, or

(i)      Executive intentionally engages in acts or omissions which constitute failure to follow reasonable, material, and lawful directives of the Company, provided, however, that such acts or omissions are not cured within five (5) days following the Company’s giving notice to Executive that the Company considers such acts or omissions to be “Cause” under this Agreement.

No act, or failure to act, on the part of Executive shall be deemed “intentional” if it was due primarily to an error in judgment or simple negligence, but shall be deemed “intentional” only if done, or omitted to be done, by the Executive not in good faith and without reasonable belief that his or her action or omission was in or not opposed to the best interests of the Company. Failure to meet performance standards or objectives, unless as set forth in 2(i) above, shall not constitute Cause for purposes hereof.

“Change in Control” means the occurrence of any of the following: (a) the Board approves the sale of all or substantially all of the assets of the Company in a single transaction or series of related transactions; (b) the Company sells and/or one or more shareholders sells a sufficient amount of its capital stock (whether by tender offer, original issuance, or a single or series of related stock purchase and sale agreements and/or transactions) sufficient to confer on the purchaser or purchasers thereof (whether individually or a group acting in concert) beneficial ownership of at least 35% of the combined voting power of the voting securities of the Company; (c) the Company is party to a merger, consolidation or combination, other than any merger, consolidation or

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combination that would result in the holders of the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the Company (or such surviving entity) outstanding immediately after such merger, consolidation or combination; or (d) a majority of the board of directors consists of individuals who are not Continuing Directors (for this purpose, a Continuing Director is an individual who (i) was a director of the Company on January 1, 2014 or (ii) whose election or nomination as a director of the Company is approved by a vote of at least a majority of the directors then comprising the Continuing Directors). For purposes hereof, the definition of a Change of Control shall be construed and interpreted so as to comply with the definition contained in Code Section 409A.

“Code” means the Internal Revenue Code of 1986, as amended. Any reference to a specific provision of the Code shall be deemed to refer to any successor provision thereto and the regulations promulgated thereunder.

“Commencement Date” means February 6, 2017, the date the Executive shall report for work and assume Executive’s responsibilities hereunder.

“Compensation Committee” means the Company’s Compensation Committee or, if no such committee exists, the term Compensation Committee shall mean the Company’s Board of Directors.

“Continuation Period” means a period following the Termination Date of the Executive’s employment with the company equal to:

(a) twelve (12) months (i) following a termination by the Company due to a non-renewal of the Term of this Agreement under §5(a) hereof, or (ii) following a termination by the Company without Cause or by the Executive for Good Reason under §5(b) hereof, or

(b) twenty-four (24) months following a termination (i) by the Company without Cause following a Change in Control under §5(f)(i) hereof, or (ii) by the Executive for Good Reason following a Change in Control under §5(b) as the definition of Good Reason is expanded in §5(b)(i) hereof.

The Continuation Period is zero months following (i) a termination by the Company for Cause, (ii) a termination by the Executive without Good Reason, or (iii) a failure of the Executive to accept the Company’s offer of renewal of the Term of this Agreement under §5(a) hereof.

“Current Insurance Coverage” means medical, dental, life and accident and disability insurance with coverage consistent with the lesser of (i) the coverage in effect

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at Executive’s termination, or (ii) the coverage in effect from time to time as applied to persons in positions similar to the position held by Executive at the time of termination.

“Disability” means Executive’s incapacity due to physical or mental illness or cause, which results in the Executive being unable to perform her duties, with or without a reasonable accommodation, with the Company on a full-time basis for a period of six (6) consecutive months. Any dispute as to disability shall be conclusively determined by written opinions rendered by two qualified physicians, one selected by Executive, and one selected by Company; provided that if such opinions are conflicting, then such physicians shall select a mutually agreeable third physician whose opinion shall be conclusive and binding.

“Earned Bonus” means the bonus paid, if any, pursuant to the Company’s incentive compensation plans in effect from time to time. Earned Bonus shall be prorated based on the ratio of the number of days during such year that Executive was employed to 365.

“Good Reason” means the occurrence of any one or more of the following:

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(vii) If following the appointment by the Board of Directors of a CEO or Interim CEO other than ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, or Executive, there occurs a material change in Executive’s duties, roles, or responsibilities. For purposes of this subsection, “material change” shall be of such a character that a reasonable person serving in a like or similar executive capacity would feel compelled to resign from employment. Examples of “material change” include, but are not limited to substantial reduction of Executive’s authority to make decisions relating to his or her business responsibilities; Executive being required to assume or perform substantially greater responsibilities (without additional compensation) than previously required to perform; substantial reduction of Executive’s responsibilities for personnel matters relating to his or her business operations; substantial alteration or change in Executive’s work schedule; any restructuring or reassignment of any of the Executive’s responsibilities, in a manner that diminishes them or is materially adverse to the Executive, from that which was in effect at the time of the appointment; and other substantial changes in Executive’s terms or conditions of employment not related to Executive’s principal business responsibilities. Good Reason pursuant to this subsection shall not exist unless (a) the Executive’s “material change” has existed for a period of at least six (6) months; (b) Executive has consulted with management

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senior to Executive and his or her supervisor, in a good faith effort to resolve the issues giving Executive reason to believe a “material change” has occurred; and (c) Executive gives sixty (60) days written notice of Executive’s resignation for Good Reason under this paragraph within fifteen months of the commencement of the “material change”.

“Termination Date” means the date of Executive’s termination of employment, or if the Executive continues to provide services to ▇▇▇▇▇ Mart, Inc. or its 409A affiliates following his or her termination of employment, such later date as is considered a separation from service from ▇▇▇▇▇ Mart, Inc. and its 409A affiliates within the meaning of Code Section 409A. For purposes of this Agreement, the Executive’s “termination of employment” shall be presumed to occur when ▇▇▇▇▇ Mart, Inc. and the Executive reasonably anticipate that no further services will be performed by the Executive for ▇▇▇▇▇ Mart, Inc. and its 409A affiliates or that the level of bona fide services the Executive will perform as an employee of ▇▇▇▇▇ Mart, Inc. and its 409A affiliates will permanently decrease to no more than 20% of the average level of bona fide services performed by the Executive (whether as an employee or independent contractor) for ▇▇▇▇▇ Mart, Inc. and its 409A affiliates over the immediately preceding 36-month period (or such lesser period of services). Whether the Executive has experienced a termination of employment shall be determined by ▇▇▇▇▇ Mart, Inc. in good faith and consistent with Section 409A of the Code. Notwithstanding the foregoing, if the Executive takes a leave of absence for purposes of military leave, sick leave or other bona fide reason, the Executive will not be deemed to have experienced a termination of employment for the first six (6) months of the leave of absence, or if longer, for so long as the Executive’s right to reemployment is provided either by statute or by contract, including this Agreement; provided that if the leave of absence is due to a medically determinable physical or mental impairment that can be expected to result in death or last for a continuous period of not less than six (6) months, where such impairment causes the Executive to be unable to perform the duties of his or her position of employment or any substantially similar position of employment, with or without a reasonable accommodation, the leave may be extended by ▇▇▇▇▇ Mart, Inc. for up to 29 months without causing a termination of employment. For purposes hereof, the term “409A affiliate” means each entity that is required to be included in ▇▇▇▇▇ Mart, Inc.’s controlled group of corporations within the meaning of Section 414(b) of the Code, or that is under common control with ▇▇▇▇▇ Mart, Inc. within the meaning of Section 414(c) of the Code; provided, however, that the phrase “at least 50 percent” shall be used in place of the phrase “at least 80 percent” each place it appears therein or in the regulations thereunder.

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SECTION 3.                TITLE, POWERS AND RESPONSIBILITIES

(a)       Title. Executive shall be President and Chief Merchandise Officer of the Company or such other title as designated by the Chief Executive Officer or the Company’s Board of Directors. Executive shall assume those duties on the Commencement Date.

(b)       Powers and Responsibilities.

SECTION 4.                COMPENSATION AND BENEFITS

(a)       Annual Base Salary. Executive’s base salary shall be $750,000.00 per year (“Annual Base Salary”) beginning on the Commencement Date, which amount may be periodically reviewed at the discretion of the Compensation Committee. The Annual Base Salary and any payments to the Executive during any Continuation Period shall be payable in accordance with the Company’s standard payroll practices and policies (unless otherwise expressly provided herein) and shall be subject to such withholdings as required by law or as otherwise permissible under such practices or policies.

(b)       Earned Bonus; Incentive Compensation; Executive shall be eligible to receive an Earned Bonus. Executive shall also be eligible to participate in such annual and long term incentive plans as are in effect from time to time as applicable

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to persons at Executive’s level of authority and position. Nothing in this Section 4(b) guarantees that any Earned Bonus or other incentive compensation will be paid.

(c)       Employee Benefit Plans. Executive shall be entitled to receive the benefits described in Schedule A attached hereto, if and for as long as the Company sponsors such plans and such plans remain in effect for other executives with the same level of status as Executive.

(d)       Stock Options. The Board of Directors, in its discretion, may grant rights to Executive under the ▇▇▇▇▇ Mart, Inc. Omnibus Plan (the “Option Plan”) on terms set by the Board of Directors or the Compensation Committee.

(e)       Deferred Compensation. Executive will be eligible to participate in the ▇▇▇▇▇ Mart Executive Deferred Compensation Plan (the “Deferred Compensation Plan”). The Company reserves the right to alter, modify, revise or eliminate the Deferred Compensation Plan provided that any such change to the terms will apply to Executive and similarly situated participants.

(f)       Vacation, Holidays and Salary Continuation. Executive shall receive a total of 25 days of paid vacation, or holidays on a pro rata basis during any 365 day period of the Term. The amount may be adjusted in accordance with the Company’s standard policy or as directed by the Company’s Board of Directors. Any vacation or holiday leave time not used during any 365 day period of the Term will not carry forward to the next 365 period and will be forfeited.

(g)       Expense Reimbursements. Executive shall have the right to expense reimbursements in accordance with the Company’s standard policy on expense reimbursements as in effect from time to time.

(h)       Indemnification. With respect to Executive’s acts or failures to act during his or her employment in Executive’s capacity as an officer, employee or agent of the Company, Executive shall be entitled to indemnification from the Company, and to liability insurance coverage (if any), on the same basis as other officers of the Company. Executive shall be indemnified by Company, and Company shall pay Executive’s related expenses when and as incurred, all to the full extent permitted by law. Subject to applicable law, the Company reserves the right to discontinue indemnification in the event the Executive has advances, or intends to advance, a business or legal position contrary to the Company’s interests. Notwithstanding the foregoing, Executive shall not be entitled to any indemnification if a judgment or other final adjudication establishes that any act or omission of Executive was material to the cause of action so adjudicated and that such act or omission constituted: (i) a criminal violation, unless Executive had reasonable cause to believe that Executive’s conduct was lawful or had no reasonable cause to believe that such conduct was unlawful, (ii) a transaction from which Executive derived an

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improper personal benefit, or (iii) willful misconduct or a conscious disregard for the best interests of the Company.

(i)       Automobile Allowance. The Company will pay Executive $13,200 per year (paid quarterly) which shall be used for the lease, purchase, maintenance and/or operation of a vehicle that Executive is to use for business travel or may use for personal travel. Executive shall be solely responsible for any taxes associated with the automobile allowance afforded to her. Executive shall be expected to maintain a valid driver’s license and retain appropriate automobile and liability insurance coverage.

(j)       Other Perquisites. The Company will provide Executive with such other perquisites as may be made generally available to others in a similar level of executive position within the Company.

SECTION 5.          TERMINATION OF EMPLOYMENT

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Notwithstanding the Executive’s Disability, during the period of Disability leave, Executive shall be paid in full (net of insurance) as if he or she were actively performing services. Executive agrees to simultaneously utilize available leave under the Family and Medical Leave Act of 1993 during such disability leave of absence. During the period of such Disability leave of absence, the Board of Directors may designate someone to perform Executive’s duties. Executive shall have the right to return to full-time service so long as he or she is able to resume and faithfully perform Executive full-time duties.

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(i)       pay to Executive’s estate Executive’s Annual Base Salary through the end of the month in which Executive’s employment terminates as soon as practicable after Executive’s death;

(ii)       pay to Executive’s estate his or her Earned Bonus, when actually determined, for the year in which Executive’s death occurs;

(iii)       make such payment and provide such benefits as otherwise called for under the terms of each other employee benefit plan, program and policy in which Executives was a participant; provided no payments made under Section 5(e)(ii); and

(iv)       in the event the Executive has any options or restricted shares (but excluding “performance shares” which shall be governed by the terms set forth in the grant as to such shares) which are not vested on the date of termination for death, then pay to the Executive’s estate (i) as to any unvested options, the net value of the excess, if any, of the closing price of the Company’s shares on the NASDAQ for the day on which the death occurred and the exercise price of such unvested options multiplied by the number of shares subject to options which failed to vest; and (ii) as to any unvested restricted shares, the value of the closing price of the Company’s shares on the NASDAQ for the day on which the death occurred multiplied by the number of restricted shares if any, which failed to vest due to such termination of employment for death.

Any amounts payable to Executive under this Agreement which are unpaid at the date of Executive’s death or payable hereunder or otherwise by reason of Executive’s death, shall be paid in accordance with the terms of this Agreement to Executive’s estate; provided that if there is a specific beneficiary in place for any specific amount payable, then payment of such amount shall be made to such beneficiary.

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SECTION 6.          COVENANTS BY EXECUTIVE

(a)       Company Property. Upon the termination of Executive’s employment for any reason, Executive shall promptly return all Company Property which had been entrusted or made available to Executive by the Company. “Property” means all records, files, memoranda, communication, reports, price lists, plans for current or prospective business operations, customer lists, drawings, plans, sketches, keys, codes, computer hardware and software and other property of any kind or description prepared, used or possessed by Executive during Executive’s employment by the Company (and any duplicates of any such Property) together with any and all information, ideas, concepts, discoveries, processes, intellectual property, inventions and the like conceived, made, developed or acquired at any time by Executive individually or with others during Executive’s employment which relate to the Company or its products or services or operations. For elimination of doubt, Company Property does not include Executive’s Rolodex.

(b)      Trade Secrets. Executive agrees that Executive shall hold in a fiduciary capacity for the benefit of the Company and shall not directly or indirectly use or disclose any Trade Secret that Executive may have acquired during the term of Executive’s employment by the Company for so long as such information remains a Trade Secret. “Trade Secret” means information, including, but not limited to, technical or non-technical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing or a process that (1) derives economic value, actual or potential, from not being generally known to, and not being generally readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and (2) is the subject of reasonable efforts by the Company to maintain its secrecy. This Section 6(b) is intended to provide rights to the Company which are in addition to, not in lieu of, those rights the Company has under the common law or applicable statutes for the protection of trade secrets.

(c)      Confidential Information. During the Employment Term and continuing thereafter indefinitely, Executive shall hold in a fiduciary capacity for the benefit of the Company, and shall not directly or indirectly use or disclose, any Confidential Information that Executive may have acquired (whether or not developed or compiled by Executive and whether or not Executive is authorized to have access to such information) during the term of, and in the course of, or as a result of Executive’s employment by the Company without the prior written consent of the Board of Directors unless and except to the extent that such disclosure is (i) made in the ordinary course of Executive’s performance of his duties under this Agreement or (ii) required by any subpoena or other legal process (in which event Executive will give the Company prompt notice of such subpoena or other legal process in order to permit the Company to seek appropriate protective orders); provided, however, that nothing contained in this Agreement shall limit Executive’s ability to communicate with any federal or state government agency or otherwise participate in any

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investigation or proceeding that may be conducted by any such federal or state government agency, including by providing documents or other Confidential Information, without notice to the Company or the Board of Directors. This Agreement does not limit Executive’s right to receive an award for any information provided to any federal or state government agency. “Confidential Information” means any secret, confidential or proprietary information possessed by the Company or any of its subsidiaries or affiliates, including, without limitation, trade secrets, customer or supplier lists, details of client or consultant contracts, current and anticipated customer requirements, pricing policies, price lists, market studies, business plans, operational methods, marketing plans or strategies, advertising campaigns, information regarding customers or suppliers, computer software programs (including object code and source code), data and documentation data, base technologies, systems, structures and architectures, inventions and ideas, past current and planned research and development, compilations, devices, methods, techniques, processes, financial information and data, business acquisition plans and new personnel acquisition plans and the terms and conditions of this Agreement that has not become generally available to the public. Notwithstanding anything to the contrary contained herein, the term “Confidential Information” shall in no event apply to any information which (x) was generally available to or known by the public prior to the Commencement Date; (y) has become generally available to or known by the public after the Commencement Date other than as the result of a direct or indirect disclosure by Executive; and (z) was rightfully known by Executive prior to the Commencement Date.

(d)       Remedies. Executive recognizes that his or her duties will entail the receipt of Trade Secrets and Confidential Information as defined in this Section 6. Those Trade Secrets and Confidential Information have been developed by the Company at substantial cost and constitute valuable and unique property of the Company. Accordingly, the Executive acknowledges that protection of Trade Secrets and Confidential Information is a legitimate business interest. If the Executive shall breach the covenants contained in this Section 6, the Company shall have no further obligation to make any payment to the Executive pursuant to this Agreement, other than any accrued wages earned and owed to Executive at the time of termination and/or Severance Payments due prior to the breach, and may recover from the Executive all such damages as it may be entitled to at law or in equity. In addition, the Executive acknowledges that any such breach is likely to result in irreparable harm to the Company. The Company shall be entitled to seek specific performance of the covenants in this Section 6, including entry of a temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in addition to any damages and legal expenses which the Company may be legally entitled to recover. Executive acknowledges and agrees that the covenants in this Section 6 shall be construed as agreements independent of any other provision of

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this Agreement or any other agreement between the Company and Executive, and that the existence of any claim or cause of action by Executive against the Company, whether predicated upon this Agreement or any other agreement, shall not constitute a defense to the enforcement by the Company of such covenants.

(e)       Non-Solicitation. During the Employment Term and for a period of two years hereafter (such period is referred to as the “No Recruit Period”), the Executive will not solicit or attempt to solicit, either directly or indirectly, any person that he knows or should reasonably know to be an employee of the Company, whether any such employees are now or hereafter through the No Recruit Period so employed or engaged by the Company, to terminate or alter their employment with the Company. The foregoing is not intended to limit any legal rights or remedies that any employee of the Company may have under common law with regard to any interference by Executive at any time with the contractual relationship the Company may have with any of its employees.

(f)      Reasonable and Continuing Obligations. Executive agrees that Executive’s obligations under this Section 6 are obligations which will continue beyond the date Executive’s employment terminates and that such obligations are reasonable, fair and equitable in scope. The terms and duration are necessary to protect the Company’s legitimate business interests and are a material inducement to the Company to enter into this Agreement. Executive further acknowledges that the consideration for this Section 6 is his employment or continued employment. Executive will not be paid any additional compensation during this Restricted Period for application or enforcement of the restrictive covenants contained in this Section 6.

(g)       Work Product. The term “Work Product” includes any and all information, programs, concepts, processes, discoveries, improvements, formulas, know-how and inventions, in any form whatsoever, relating to the business or activities of the Company, or resulting from or suggested by any work developed by the Executive in connection with the Company, or by the Executive at the Company’s request. Executive acknowledges that all Work Product developed during the Term is property of the Company and accordingly, Executive does hereby irrevocably assign all Work Product developed by the Executive to the Company and agrees: (a) to assign to the Company, free from any obligation of the Company to the Executive, all of the Executive’s right, title and interest in and to Work Product conceived, discovered, researched, or developed by the Executive either solely or jointly with others during the term of this Agreement; and (b) to disclose to the Company promptly and in writing such Work Product upon the Executive’s acquisition thereof.

(h)       Cooperation. During and subsequent to termination of the employment of the Executive, the Executive will cooperate with Company and furnish any and all

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complete and truthful information, testimony or affidavits in connection with any matter that arose during the Executive’s employment, that in any way relates to the business or operations of the Company or any of its subsidiary corporations, divisions or affiliates, or of which the Executive may have any knowledge or involvement; and will consult with and provide information to Company and its representatives concerning such matters. Subsequent to the termination of the employment of the Executive, the parties will make their best efforts to have such cooperation performed at reasonable times and places and in a manner as not to unreasonably interfere with any other employment in which Executive may then be engaged. Nothing in this Agreement shall be construed or interpreted as requiring the Executive to provide any testimony, sworn statement or declaration that is not complete and truthful. If Company requires the Executive to travel outside the metropolitan area in the United States where the Executive then resides to provide any testimony or otherwise provide any such assistance, then Company will reimburse the Executive for any reasonable, ordinary and necessary travel and lodging expenses incurred by Executive to do so provided the Executive submits all documentation required under Company’s standard travel expense reimbursement policies and as otherwise may be required to satisfy any requirements under applicable tax laws for Company to deduct those expenses. Nothing in this Agreement shall be construed or interpreted as requiring the Executive to provide any testimony or affidavit that is not complete and truthful.

SECTION 7.          MISCELLANEOUS

(a)       Notices. Notices and all other communications shall be in writing and shall be deemed to have been duly given when personally delivered or when mailed by United States registered or certified mail. Notices to the Company shall be sent to:

▇▇▇▇▇ MART, INC

Attention: ▇▇▇ ▇▇▇▇▇▇, Chief Legal Officer

▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇

▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇

Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇

Notices and communications to Executive shall be sent to the address Executive most recently provided to the Company.

(b)       No Waiver. No failure by either the Company or Executive at any time to give notice of any breach by the other of, or to require compliance with, any condition or provision of this Agreement shall be deemed a waiver of any provisions or conditions of this Agreement.

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(c)      Governing Law. This Agreement shall be governed by Florida law without reference to the choice of law principles thereof.

(d)       Assignment. This Agreement shall be binding upon and inure to the benefit of the Company and any successor in interest to the Company. The Company may assign this Agreement to any affiliate or successor that acquires all or substantially all of the assets and business of the Company or a majority of the voting interests of the Company. The Company will require any successor (whether direct or indirect, by operation of law, by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of Company) to expressly assume and agree to perform this Agreement in the same manner and to the same extent that Company would be required to perform it if no such succession had taken place. As used in this Agreement, “Company” shall mean Company as defined above and, unless the context otherwise requires, any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise. Executive’s rights and obligations under this Agreement are personal and shall not be assigned or transferred.

(e)       Other Agreements. This Agreement replaces and merges any and all previous agreements and understandings regarding all the terms and conditions of Executive’s employment relationship with the Company, and this Agreement constitutes the entire agreement between the Company and Executive with respect to such terms and conditions.

(f)      Amendment. No amendment to this Agreement shall be effective unless it is in writing and signed by the Company and by Executive.

(g)       Invalidity and Severability. If any part of this Agreement is held by a court of competent jurisdiction to be invalid or otherwise unenforceable, the remaining part shall be unaffected and shall continue in full force and effect, and the invalid or otherwise unenforceable part shall be deemed not to be part of this Agreement.

(h)      Litigation. In the event that either party to this Agreement institutes litigation against the other party to enforce his or its respective rights under this Agreement, each party shall pay its own costs and expenses incurred in connection with such litigation. As a material part of the consideration for this Agreement, BOTH PARTIES HERETO WAIVE ANY RIGHT TO A TRIAL BY A JURY in the event of any litigation arising from this Agreement. All legal actions arising out of or connected with this Agreement must be instituted solely in the Circuit Court of ▇▇▇▇▇ County, Florida, or in the Federal District Court for the Middle District of Florida, Jacksonville Division, and all parties hereto do hereby agree to submit to the exclusive personal jurisdiction of such courts. Each of the parties hereby expressly and irrevocably submits to the jurisdiction of such courts for the purposes of any

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such action and expressly and irrevocably waives, to the fullest extent permitted by law, any objection which it may have or hereafter may have to the laying of venue of any such action brought in any such court and any claim that any such action has been brought in an inconvenient forum.

(i)      Counterparts. This Agreement may be executed in counterparts each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

(j)      Offer Letter. The terms of the Offer Letter dated November 29, 2016 are incorporated herein by reference. In the event of a conflict between the terms of the Offer Letter and this Agreement, the terms of this Agreement will control.

(k)        Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with, or be exempt from, Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and administered consistent with such intent.

For purposes of Code Section 409A, your right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within sixty calendar days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company. In no event may you, directly or indirectly, designate the calendar year of any payment to be made under this Agreement that is considered non-qualified deferred compensation.

In addition, notwithstanding anything in this Agreement to the contrary, if at the time of your “separation from service”, the Company determines that you are a “specified employee” (such terms within the meaning of Code Section 409A(a)), then to the extent any payment or benefit that you become entitled to under this Agreement on account of your separation from service would be considered deferred compensation otherwise subject to the twenty percent (20%) additional tax imposed pursuant to Code Section 409A, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six (6) months and one day after your separation from service, or (B) your death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.

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With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit; (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year; provided, that this clause (ii) shall not be violated with regard to expenses reimbursed under any arrangement covered by Internal Revenue Code Section 105(b) solely because such expenses are subject to a limit related to the period the arrangement is in effect; and (iii) such payments shall be made on or before the last day of the taxable year following the taxable year in which the expense was incurred.

IN WITNESS WHEREOF, the Company and Executive have executed this Agreement effective as of the Effective Date.

(SIGNATURES CONTAINED ON FOLLOWING PAGE)

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SCHEDULE A

BENEFITS

The Executive shall be entitled to participate in all retirement plans and will be entitled to life insurance and AD&D benefits which other senior executives of the Company or affiliates of the Company are eligible.

The Executive shall be entitled to participate in all Long-Term and Life Time Disability plans which other senior executives of the Company or affiliates of the Company are eligible.

The Executive shall be entitled to medical/dental benefits which other senior executives of the Company or affiliates of the Company are eligible.

A-1