The Dress Barn, Inc. Suffern, NY 10901 June 24, 2009
The Dress
Barn, Inc.
00
Xxxxxxxx Xxxxx
Suffern,
NY 10901
June 24,
2009
Xxxxxxx
Xxxxxx
c/o Tween
Brands, Inc.
0000
Xxxxxx Xxxxxxx
New
Albany, Ohio 43054
Dear
Xxxxxxx:
On the date hereof, The Dress Barn,
Inc. (“Parent”), Thailand Acquisition Corp. (“Acquisition Sub”) and Tween
Brands, Inc. (the “Company”) are entering into an Agreement and Plan of Merger
dated June 24, 2009 (the “Merger Agreement”), pursuant to which Acquisition Sub
will be merged with and into the Company, with the Company surviving the Merger
as a wholly owned subsidiary of Parent. Capitalized terms used and
not defined herein shall have the meanings ascribed thereto in the Merger
Agreement.
Reference is also made to the
Employment Agreement effective as of December 3, 2008, between the Company and
you (the “Employment Agreement”) and the Executive Agreement effective as of
December 3, 2008, between the Company and you (the “Executive Agreement” and,
together with the Employment Agreement, the “Rayden Agreements”).
Effective upon the Effective Time,
Parent, the Company and you hereby agree as follows:
1. Prior to the Closing, but
having effect at the Effective Time, the Board of Directors of Parent shall
adopt a resolution and shall take all other action necessary to appoint you to
the Board of Directors of Parent, to serve as a director of Parent for a term
expiring in 2010 or your earlier death, resignation or removal. For
at least one additional term ending no earlier than 2012, so long as you shall
continue to be employed by the Company, the Board of Directors of Parent shall
nominate you for re-election to the Board of Directors of Parent by the
stockholders at the expiration of each term of your service on the Board of
Directors of Parent.
2. By your execution of this
letter agreement, effective upon the Effective Time, you hereby irrevocably
tender your resignation as a director of Parent, such resignation to take effect
immediately upon termination of your employment with the Company for any reason
without any further writing, act or action by you. You acknowledge
and agree that such resignation is irrevocable and coupled with an interest, and
that Parent would not enter into this letter agreement without your agreement as
set forth in this paragraph 2. You further acknowledge and agree
that, notwithstanding anything to the contrary contained in the Rayden
Agreements, including, without limitation, Section 18 of the Employment
Agreement and Section 8 of the Executive Agreement, in the event that you shall
refuse to resign as a director of Parent immediately upon termination of your
employment with the Company for any reason or shall otherwise seek to maintain
your position as a director of Parent thereafter, neither the Company nor Parent
shall have any obligation to make any payments otherwise due to you under the
Rayden Agreements until your effective resignation as a director of
Parent.
Xxxxxxx
Xxxxxx
June 24,
2009
Page
2
3. You further agree that,
effective upon the Effective Time, the first paragraph of Section 12(b) of the
Employment Agreement is hereby deleted in its entirety, and the following shall
be inserted in lieu thereof:
“(b)
Non-Competition. During the Non-Competition Period defined
below, the Executive shall not, directly or indirectly, without the prior
written consent of the Board, own, manage, operate, join, control, be employed
by, consult with or participate in the ownership, management, operation or
control of, or be connected with (as a stockholder, partner or otherwise), any
business, individual, partner, firm, corporation, or other entity that competes
or plans to compete, directly or indirectly, with the Company, its products, or
any division, subsidiary or affiliate of the Company (other than dressbarn,
maurices or any other business acquired by Parent after the Effective Time and
not engaged in the same business as the Company); provided, however, that the
“beneficial ownership” by the Executive after termination of employment with the
Company, either individually or as a member of a “group,” as such terms are used
in Rule 13d of the General Rules and Regulations under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), of not more than two percent (2%)
of the voting stock of any publicly held corporation, shall not be a violation
of Section 12 of this Agreement.”
4. You further agree that
the second paragraph of Section 12(b) of the Employment Agreement is hereby
amended, effective upon the Effective Time, to delete the last sentence
thereof.
5. You further agree that,
effective upon the Effective Time, the first paragraph of Section 12(c) of the
Employment Agreement is hereby deleted in its entirety, and the following shall
be inserted in lieu thereof:
“(c)
Non-Solicitation. During the No-Raid Period defined below, the
Executive shall not, either directly or indirectly, alone or in conjunction with
another party, recruit or hire, or attempt to recruit or hire, interfere with or
harm, or attempt to interfere with or harm, the relationship of the Company,
and/or its subsidiaries with, any person who at any time was an employee,
customer or supplier of the Company and/or its subsidiaries or otherwise had a
business relationship with the Company and/or its subsidiaries.
Xxxxxxx
Xxxxxx
June 24,
2009
Page
3
6. Parent hereby agrees to
cause the Surviving Corporation, as successor to the Company, to assume and
perform the obligations of the Company under the Employment Agreement and the
Executive Agreement and the Surviving Corporation shall be entitled to enforce
all of the Company’s rights under the Employment Agreement and Executive
Agreement, in each case, in the same manner and to the same
extent that the Company would be required to perform and entitled to
enforce as if no such succession had taken place. In addition, Parent
hereby agrees to cause the Surviving Corporation, as successor to the Company,
for a two-year period ending on the second anniversary of the Effective Time,
not to (a) seek to amend the Employment Agreement or the Executive Agreement or
(b) reduce, without your consent, any employee benefit, fringe benefit or
perquisite that you currently receive from the Company and that is disclosed (to
the extent required by Securities and Exchange Commission regulations) in the
Company’s most recent proxy statement.
7. You agree to take such
further action and execute such further documents as Parent may reasonably
request to effectuate the foregoing agreements.
If the Merger Agreement shall be
terminated without the Merger having been consummated, this letter agreement
shall automatically terminate and be of no further force or effect.
Xxxxxxx
Xxxxxx
June 24,
2009
Page
4
Please
acknowledge your agreement with this letter by signing below.
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Sincerely,
THE
DRESS BARN, INC.
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By:
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/s/ Xxxxx X. Xxxxx
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| Name: Xxxxx X. Xxxxx | |||
| Title: President and Chief Executive Officer | |||
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ACKNOWLEDGED
AND AGREED:
TWEEN
BRANDS, INC.
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By:
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/s/ Xxxxxxx Xxxxxx | |
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Name: Xxxxxxx
Xxxxxx
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Title: Chairman
and Chief Executive Officer
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| /s/ Xxxxxxx Xxxxxx | ||
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Xxxxxxx
Xxxxxx
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