RETIREMENT AGREEMENT
Exhibit 10.24
This RETIREMENT AGREEMENT, together with Exhibit A (“General Release”) (attached)
(collectively, the “Agreement”) reflects the mutual agreement between XXXXXX XXXXX, including his
heirs, executors and assigns (“You” or “Your”) and AMERICAN EAGLE OUTFITTERS, INC., including its
parents, subsidiaries, affiliates and related businesses (“the Company”), regarding the terms of
your retirement from employment with the Company.
In exchange for the terms, promises and obligations set forth in this Agreement, you and the
Company agree as follows:
1. Retirement Date. You shall continue full-time employment with the Company through November
30, 2010 (the “Retirement Date”), upon which date you shall voluntarily resign your employment.
Until the Retirement Date, you will continue to receive: (i) salary payments at the annual base
salary rate you are receiving as of the date you sign this Agreement, less applicable withholdings
and deductions, paid in accordance with the Company’s payroll practices in the ordinary course; and
(ii) benefits at the level and of the type you are receiving as of the date you sign this
Agreement.
2. Acknowledgment of Retirement. As of the Retirement Date, you will cease to be an employee
or officer of the Company and the only benefits you will receive from the Company are those
described in this Agreement; provided, however, that this Agreement does not waive any benefits you
may be eligible to receive under any of the Company’s retirement plans, profit sharing plans, stock
option plans, or similar employee benefits plans. You acknowledge and agree that as of the
Retirement Date, you shall have no authority or permission to hold yourself out as being in any way
connected with or interested in the business of the Company and you will have no authority to take
any action on behalf of or otherwise bind the Company except as directed in writing by the
Company’s Chief Executive Officer or his designee. You acknowledge and agree that as of the
Retirement Date, you are resigning your position as an officer of the Company.
3. Retirement Benefits. If you sign the General Release in the form attached as Exhibit A,
and it becomes effective as described in its Exhibit A, Section 6, you will receive the
following payments and benefits in the manner and time frames described in this Section. You
acknowledge and agree that certain of the payments and benefits differ from and/or are greater than
benefits you would otherwise be eligible to receive upon retirement or resignation, absent this
Agreement.
X. Xxxxxxxxx Pay. You shall be entitled to Severance Pay in a gross amount equal to
$666,281.00. The Severance Pay will be paid in a lump-sum payment, less applicable withholdings
and deductions, on the Company’s next regularly scheduled pay day following the Effective Date of
the General Release. The Company shall pay you the Severance Pay regardless of any future
employment you obtain.
B. Health Insurance Reimbursement. If you make a timely election to continue medical, dental
and/or vision insurance coverage under the Company’s group medical, dental and/or vision plans
pursuant to federal law (COBRA), the Company will reimburse you for up to fifteen (15) months of
your COBRA payments, ending on February 29, 2012. If you secure employment before February 29,
2012, and medical, dental and/or vision coverage is available as a result of that employment, the
Company’s obligation to reimburse COBRA shall immediately cease. After February 29, 2012, you may
continue COBRA coverage, subject to applicable law, at your sole expense. To receive
reimbursement, you must mail proof of payment to the Company’s Benefits Department, 00 Xxx Xxxxx
Xxxxxx, Xxxxxxxxxx, XX, 00000, or send proof of payment via fax to the Benefits Department at
000-000-0000.
C. Company Automobile. You will have continued use of your current Company-leased automobile
from the Retirement Date through February 29, 2012 (the “Company Lease Period”). The Company will
make the monthly lease payments by the 30th of each month during the term of the Company Lease
Period. All other expenses associated with use of the vehicle during the Company Lease Period,
such as gas, maintenance and/or insurance, shall be paid at your sole expense. At the conclusion
of the Company Lease Period, you will have the option of returning the automobile to the Company or
purchasing the automobile at your own expense.
4. Equity. You acknowledge and agree that the equity awards granted to you under the terms of
the Company’s benefit plans will be administered as follows, all in accordance with the terms of
their respective plans
A. Stock Options.
1. Stock Option Grants Awarded in 2006, 2007, 2008 and 2009. You were awarded stock
option grants under the Company’s 2005 Stock Award and Incentive Plan (“2005 Plan”) on February 28,
2006, March 6, 2007, March 5, 2008 and February 2, 2009. All unvested options awarded under these
grants shall vest automatically on the Retirement Date. These options, together with all
previously vested options, shall remain exercisable from the Retirement Date through November 30,
2011. Any stock options that remain unexercised as of that date will be forfeited.
2. Stock Option Grant Awarded in 2010. You were awarded a stock option grant under
the Company’s 2005 Stock Award and Incentive Plan, as amended (“2005A Plan”), on March 2, 2010.
All unvested options awarded in the March 2, 2010 grant shall vest according to the grant’s
original vesting schedule (1st third on March 2, 2011, 2nd third on March 2, 2012, and final third
on March 2, 2013). These options will remain exercisable for one calendar year from each individual
tranche’s vesting date (1st third on March 2, 2012, 2nd third on March 2, 2013, and final third on
March 2, 2014). Any stock options that remain unexercised as of its individual expiration date
will be forfeited.
B. Restricted Stock (Time-based). You currently have 1 outstanding, time-based
Restrict Stock Unit award under the Company’s Long-term Restricted Stock Unit Incentive Plan,
identified as follows: March 2, 2010 (“RSU Time-Based Award”). Upon certification of fiscal year
2010 performance and vesting, you are eligible for a pro-rata portion of your RSU Time-based Award
based on your months of service in the one-year performance period or three-year vesting period as
of the Retirement Date. Payment will be made no sooner than the date on which other participants
are paid their awards, if any payments are made, in accordance with the terms of the plan
(anticipated March, 2011). The payment will be made less any applicable withholdings or
deductions. The balance of the Restricted Stock Unit award is forfeited, per the terms of the plan,
as of the retirement date.
C. Restricted Stock (Performance-Based). You currently have 2 outstanding,
performance-based Restricted Stock Unit awards under the Company’s Long-term Restricted Stock Unit
Incentive Plan, identified as follows: March 3, 2009 and March 2, 2010 (“RSU Performance-based
Awards”). You are eligible for a pro-rata portion of your RSU Performance-based Awards if the
Company achieves the fiscal year 2011 and 2012 performance goals established by the plan. The
pro-rata amount you may be eligible for will be based on your months of service in each performance
period as of the Retirement Date. Payment will be made no sooner than the date on which other
participants are paid their awards, if any payments are made, in accordance with the terms of the
plan (anticipated March, 2012 and March, 2013). The payment will be made less any applicable
withholdings or deductions. If the Company does not achieve the fiscal year 2011 and 2012
performance goals established by the plan, your RSU Performance-based Awards will be forfeited.
The balance of the Long-term Performance Share Restricted Stock Unit award is forfeited, per the
terms of the plan, as of the retirement date.
5. 401k. The Company agrees to pay you all amounts due to you under the Company’s 401k Plan
in accordance with the terms of the plan.
6. Incentive Compensation Bonus. You are not eligible for payment of any amount under any
incentive or bonus plan(s) for the Company’s current or future fiscal years.
7. Consulting Services. From February 1, 2011 through January 31, 2012, the Company may, but
has no obligation to, engage you from time to time, at its discretion, to perform consulting
services for the Company on dates that are mutually agreed upon. The Company will pay you
$2,000.00 per day, plus expenses, for such consulting. You agree that any consulting services you
provide to the Company will be performed as an independent contractor and not as an employee.
Subject to the restrictions in Section 12 below, nothing in this Agreement prohibits you from
engaging in such other business activities as you desire so long as the performance of such
services does not interfere with the timely completion of your consulting services. You will
receive a 1099 for the performance of consulting services to the Company, and you expressly agree
that you are obligated to pay all taxes on any moneys paid.
8. 409A Agreement. You acknowledge and agree that you and the Company are party to a “409A
Addendum” signed by you on December 25, 2008 a copy of which is attached as Exhibit A to this
Agreement. You acknowledge and agree that all of the terms of the 409A Agreement remain in full
force and effect and shall survive the termination of your employment with the Company and the
execution of this Agreement.
9. Reasonable Cooperation. You acknowledge and agree that your agreement to fully cooperate
with the Company with respect to the provisions of this Section 9 in its entirety is a material
term of this Agreement. The failure by you to cooperate fully with the Company in accordance with
this Section 9 is a material breach of the terms of this Agreement that will result in the
forfeiture of all compensation and benefits described in this Agreement.
A. Transfer of Job Responsibilities. You shall fully cooperate in transferring all of
your responsibilities and duties with regard to the Company’s business operations as directed by
the Company’s management at its sole discretion.
B. Fiduciary Obligations. You acknowledge and agree that at all times until and
through the Retirement Date, you will carry out your duties in a manner consistent with and in
compliance with all present and future requirements of: (i) applicable federal, state and local
laws and regulations; (ii) Company policies and procedures; and (iii) the directives and
instructions of the Company’s management. You acknowledge and fully understand that you have a
fiduciary relationship with the Company and, as a fiduciary, you are under an obligation to use due
care and act in the best interest of the Company at all times.
C. Legal Matters. You agree to cooperate with the Company and its attorneys as may be
reasonably required concerning any past, present or future legal matters that relate to or arise
out of your employment with the Company, with the understanding that any meetings you are required
to attend are scheduled during normal business hours at mutually agreeable times. You acknowledge
that you have advised the Company’s General Counsel of all facts of which you are aware that
constitutes or might constitute violations of the Company’s Code of Ethics or legal obligations.
The Company agrees to reimburse you for any and all reasonable costs and expenses you may incur in
connection with such cooperation.
D. Indemnification. You shall be indemnified for acts and omissions occurring on or
prior to the Retirement Date to the fullest extent permitted under applicable law and Company rules
and regulations.
10. Death. Notwithstanding anything to the contrary in this Agreement, in the event of your
death, the Company will pay to your beneficiary all remaining compensation and benefits described
in this Agreement subject to the terms and conditions set forth herein.
11. Confidentiality of this Agreement. You agree that this Agreement, the compensation and
benefits, and all other terms of this Agreement are each confidential information and shall not be
disclosed or revealed to any person other than your attorney, accountant, tax advisor, and
immediate family members (who each must be informed of and agree to be bound by the terms of this
Section 11), and any governmental taxing authority.
12. Restrictive Covenants. You acknowledge and reaffirm that you and the Company are parties
to an “RSU Confidentiality, Non-Solicitation, Non-Competition And Intellectual Property Agreement”
signed by you on March 17, 2009 the “Confidentiality Agreement,” a copy of which is attached as
Exhibit B to this Agreement). You acknowledge and agree that all of your obligations under the
Confidentiality Agreement remain in full force and effect and shall survive the retirement of your
employment with the Company and the execution of this Agreement.
13. Non-Disparagement. You agree not to disparage or denigrate the Company or its directors,
officers or employees orally or in writing. The Company agrees to use its reasonable best efforts
to cause its directors, officers and managers not to disparage you orally or in writing.
Notwithstanding this mutual, non-disparagement provision, it shall not be a violation of this
Section 13 for any person to make truthful statements when required by court order or as otherwise
required by law.
14. No Admission of Liability. Neither this Agreement, nor any of its terms, is intended to
constitute and should not be construed as constituting an admission of fault, wrongdoing or
liability by either party, but rather reflects the parties’ desire to fairly and amicably separate
your employment, as well as to resolve fairly and amicably any disputes or claims.
15. Representations & Warranties. You represent and warrant that you have no interest or
obligation that is inconsistent with or in conflict with this Agreement or that would prevent,
limit or impair your performance of any part of this Agreement. You represent that as of the date
you have signed this Agreement, you have not filed, directly or indirectly, nor caused to be filed,
any “Claims” (as defined in the General Release) against the Company or the “Releasees” (as defined
in the General Release) in any forum, including federal, state or local court, in arbitration, or
in any administrative proceeding with any governmental agency.
16. Breach of this Agreement. You agree that in the event you breach any of the terms of this
Agreement or the General Release, you will forfeit all benefits and compensation described in this
Agreement, plus you will pay any expenses or damages incurred by the Company and/or its agents,
officers, directors or employees as a result of the breach, including reasonable attorneys’ fees.
17. Dispute Resolution. All disputes, claims or controversies arising out of or in connection
with this Agreement, your employment or its termination, including but not limited to those
concerning workplace discrimination and all other statutory claims shall be submitted exclusively
to and determined by final and binding arbitration before a single arbitrator (“Arbitrator”) of the
American Arbitration Association (“AAA”) in accordance with the Association’s then current rules
for the resolution of employment disputes. The parties consent to the authority of the Arbitrator,
if the Arbitrator so determines, to award fees and expenses (including reasonable attorneys’ fees)
to the prevailing party in the arbitration. Excluded from this agreement to arbitrate are claims
you may have for workers’ compensation and unemployment compensation benefits, as well as claims
the Company may have for injunctive relief to enforce Section 12 of this Agreement, which includes
claims for injunctive relief to enforce the underlying Confidentiality Agreements.
18. Entire Agreement.
A. Except as provided in Sections 8 and 12 of this Agreement, this Agreement constitutes the
entire understanding between you and the Company relating to the subject matter contained herein
and this Agreement supersedes any previous agreement(s) that may have been made in connection with
your employment with the Company. This Agreement may not be changed, modified, or altered without
the express written consent of you and a senior officer of the Company.
B. The Company’s failure to insist upon strict adherence to any term of this Agreement on any
occasion shall not be considered a waiver of, or deprive the Company of its right thereafter to
insist upon strict adherence to that term or any other term of this Agreement. To be effective,
any waiver must be in writing and signed by a senior officer of the Company.
19. Governing Law. This Agreement shall be construed in accordance with the laws of the
Commonwealth of Pennsylvania, without giving effect to conflicts of laws principles.
20. Severability. If any part or section of this Agreement is found to be contrary to law or
unenforceable, the remainder shall remain in full force and effect. Furthermore, it is expressly
understood and agreed that if a final determination is made by a court of law that the time or any
other restriction contained in Section 12 of this Agreement, or the underlying Confidentiality
Agreements, is an unenforceable restriction against you, then the provisions of Section 12 and/or
the Confidentiality Agreements shall not be rendered void but shall be deemed amended to apply as
to such maximum time and to such other maximum extent as such court may determine or indicate to be
enforceable. Alternatively, if any such court finds that any restriction contained in Section 12
and/or the Confidentiality Agreements is unenforceable, and such restriction cannot be amended so
as to make it enforceable, such finding shall not affect the enforceability of any other provision
of this Agreement.
21. Period for Review of this Agreement.
A. You are hereby advised and encouraged to consult with an attorney prior to executing this
Agreement. You acknowledge that if you have executed this Agreement without consulting an
attorney, you have done so knowingly and voluntarily.
B. You acknowledge that you have been given at least twenty-one (21) days from the date you
first received this Agreement, which was on or about October 25, 2010, during which to consider its
terms. You understand that the offer made to you under this Agreement remains open for at least
twenty-one (21) days, and that you may accept the offer at any time between October 25, 2010 and
November 15, 2010. If you do not accept this Agreement on or before that date, the offer set forth
in this Agreement is automatically rescinded unless the Company otherwise expressly notifies you in
writing.
22. Period for Review of the General Release.
A. You are hereby advised and encouraged to consult with an attorney prior to executing the
General Release. You acknowledge that if you execute the General without consulting an attorney,
you have done so knowingly and voluntarily. You acknowledge and agree that the compensation and
benefits provided for in this Agreement are contingent upon you signing the General Release and it
becoming effective.
B. You acknowledge and agree and that you have been given at least twenty-one (21) days from
the date you first received the General Release, which was on or about October 25, 2010, during
which to consider its terms. You acknowledge and agree that you will not sign the General
Release until on or after the Retirement Date.
C. You acknowledge and agree that you have the right to revoke your acceptance of the General
Release if you notify the Company in writing within seven (7) calendar days following the date you
sign it. You acknowledge that in order for your revocation to be effective, it must be in writing,
signed by you, and either postmarked within seven (7) days of the date you signed the General
Release and addressed to the Company’s Executive Vice President of Human Resources, American Eagle
Outfitters, Inc., 00 Xxx Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx, 00000; or hand delivered within
seven (7) calendar days of the date you signed the General Release to the Company’s Executive Vice
President of Human Resources. The General Release will become effective on the 8th day after
you sign it (the “Effective Date”); provided that you have not timely revoked it in accordance with
this Section.
23. Transferability. This Agreement shall be binding upon any successor to the Company,
whether by merger, consolidation, purchase of assets or otherwise. No provision of this Agreement
is intended to confer any rights, benefits, remedies, obligations or liability hereunder upon any
person or entity, other than the parties hereto and their respective successors and assigns, which
in your case will include your heirs and/or your estate.
24. Counterparts. This Agreement may be executed in counterparts.
25. Ambiguities. You and the Company agree that the general rule that ambiguities shall be
construed against the drafting party shall not apply to any interpretation of this Agreement.
26. Interpretation. Whenever possible, each provision of this Agreement shall be interpreted
in such a manner as to be valid and effective under applicable law. All captions are for
convenience of reference only and shall be disregarded in interpreting this Agreement.
* * * *
— SIGNATURE BLOCK ON NEXT PAGE —
YOU ACKNOWLEDGE AND AGREE THAT YOU WERE ADVISED THAT THIS AGREEMENT IS A LEGAL DOCUMENT; THAT YOU
WERE ADVISED TO CONSULT WITH AN ATTORNEY CONCERNING THIS AGREEMENT; THAT YOU WERE GIVEN TWENTY-ONE
(21) DAYS WITHIN WHICH TO CONSIDER THE TERMS OF THIS AGREEMENT, WHICH YOU AGREE WAS A REASONABLE,
ADEQUATE TIME WITHIN WHICH TO DO SO; AND THAT YOU EXECUTE IT KNOWINGLY AND VOLUNTARILY AND WITH
FULL UNDERSTANDING OF ITS CONSEQUENCES.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the dates indicated
below.
Dated: November 24, 2010
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/s/ Xxx Xxxxx
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| XXX XXXXX |
| AMERICAN EAGLE OUTFITTERS, INC. | ||||||||
Dated: November 24, 2010
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By: | /s/ Xxxxxx XxXxxxxx
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| Its: | Executive Vice President, Human Resources
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EXHIBIT A
GENERAL RELEASE
In exchange for the promises and benefits set forth in the Retirement Agreement between
American Eagle Outfitters, Inc., including its parents, subsidiaries, affiliates and related
businesses (the “Company”) and me, Xxx Xxxxx, including my heirs, executors and assigns, dated
November 24, 2010 (the “Agreement”), and to be provided to me following the Effective Date
of this General Release, I hereby acknowledge, understand and agree as follows:
1. On behalf of myself and my family, heirs, executors, administrators, personal
representatives, agents, employees, assigns, legal representatives, accountants, affiliates and for
any partnerships, corporations, sole proprietorships, or other entities owned or controlled by me,
I fully release, acquit, and forever discharge the Company, its past, present and future officers,
directors, shareholders, agents, representatives, insurers, employees, attorneys, subsidiaries,
affiliated corporations, and assigns (collectively, the “Releasees”), from any and all charges,
actions, causes of action, claims, grievances, damages, obligations, suits, agreements, costs,
expenses, attorneys’ fees, or any other liability of any kind whatsoever, suspected or unsuspected,
known or unknown, which have or could have arisen out of my employment with the Company and/or
termination of my employment with the Company (collectively, “Claims”), including:
a. Claims arising under Title VII of the Civil Rights Act of 1964 (as amended), the Civil
Rights Acts of 1866 and 1991, the Americans With Disabilities Act, the Family and Medical Leave
Act, the Employee Retirement Income Security Act, the Fair Labor Standards Act, the Occupational
Safety and Health Act, the Xxxxxxxx-Xxxxx Act, and/or any other state, federal, local or municipal
statute; and/or
b. Claims for age discrimination arising under the Age Discrimination in Employment Act of
1967 (as amended) and the Older Workers Benefit Protection Act, except age discrimination claims
that may arise after the Effective Date of this General Release; and/or
c. Claims arising out of any other federal, state, or local statute, law constitution,
ordinance or regulation; and/or
d. Any other employment related Claim whatsoever including, but not limited to, claims
relating to implied or express employment contract, public policy or tort claims, retaliatory
discharge claims, negligent hiring, retention, or supervision claims, defamation claims, wrongful
discharge claims, intentional infliction of emotional distress claims, invasion of privacy claims,
intentional interference with contract claims, intentional interference with business relations
claims, detrimental reliance claims, loss of consortium claims, promissory estoppel claims, common
law claims, claims for compensatory or punitive damages, claims for back pay, claims relating to
legal restrictions on the Company’s right to terminate employees or pursuant to any other claim
whatsoever, arising out of or relating to my employment with the Company and/or termination of
employment from the Company.
e. Excluded from this General Release are any Claim for breach of the Agreement and any Claim
that cannot be released or waived by law, including but not limited to the right to file a charge
with or participate in an investigation conducted by certain government agencies. I acknowledge
and agree, however, that I am releasing and waiving my right to any monetary recovery should any
government agency pursue any claims on my behalf that arose prior to the Effective Date of this
General Release. I also agree that I have been properly paid for all hours worked, have not
suffered any on-the-job injury for which I have not already filed a claim and I have been properly
provided any leaves of absence because of my own health condition or a family member’s health
condition.
2. Release of Other Claims. In further consideration of the promises made by the
Company in this General Release, I, for myself and my family, heirs, executors, administrators,
personal representatives, agents, employees, assigns, legal representatives and accounts,
affiliates and for any partnerships, corporations, sole proprietorships, or other entities owned or
controlled by you, fully release, acquit, and forever discharge the Releasees from any and all
Claims of which I have knowledge as of the Effective Date of this General Release.
3. Certification Regarding Other Claims. By my signature below, I certify that I
have no knowledge of any Claim that I may have against the Releasees, that I have no present
intention to file any claims of any character against the Releasees, and that I have not consulted
with any attorney or counselor of any kind regarding any such potential claim
against the Releasees as of the date I sign this General Release. I agree that if the above
certification is found to be false, any claims of which I have knowledge, an intention to file a
claim regarding, or about which I have consulted an attorney will be deemed released by operation
of this General Release.
4. Consultation with an Attorney. I am hereby advised and encouraged to consult with
an attorney prior to executing this General Release. I acknowledge that if I have executed this
General Release without consulting an attorney, I have done so knowingly and voluntarily.
5. Period for Review. I acknowledge that I have been given at least twenty-one (21)
days from the date I first received this General Release, which was on or about October 25, 2010,
during which to consider its terms. I understand that if I do not sign this General Release, or if
I revoke my signature, I am not entitled to any of the compensation and benefits provided for under
the terms of the Agreement.
6. Revocation. I acknowledge and agree that I have the right to revoke my execution
of this General Release if I notify the Company in writing within seven (7) calendar days following
the date I sign it. I acknowledge that any revocation, to be effective, must be in writing, signed
by me, and either postmarked within seven (7) days of the date I signed this General Release and
addressed to the Company’s Executive Vice President of Human Resources, American Eagle Outfitters,
Inc., 00 Xxx Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx, 00000; or hand delivered within seven (7)
calendar days of the date I signed this General Release to the Company’s Executive Vice President
of Human Resources. This General Release will become effective on the 8th day after I sign it (the
“Effective Date”); provided that I have not revoked it.
I ACKNOWLEDGE AND AGREE THAT I HAVE BEEN ADVISED THAT THIS GENERAL RELEASE IS A LEGAL DOCUMENT, AND
HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY CONCERNING THIS GENERAL RELEASE. I ACKNOWLEDGE AND
AGREE THAT I HAVE CAREFULLY READ AND FULLY UNDERSTAND ALL PROVISIONS OF THIS GENERAL RELEASE, AND
AM VOLUNTARILY AND KNOWINGLY SIGNING IT.
By:
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/s/ Xxxxxx X. Xxxxx
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Date: November 30, 2010 | ||||
| Xxx Xxxxx |
EXHIBIT A
Executive: Xxxxxx Xxxxx
409A Addendum
Both the undersigned officer (the “Executive”) of American Eagle Outfitters, Inc. and/or its direct
or indirect subsidiaries (collectively, the “Company”) and the Company desire to amend any
outstanding offer letter and/or any other written terms of employment between the Executive and the
Company (“written employment terms”) to comply with the requirements of Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”).
In consideration of the mutual promises in this amendment the parties agree to amend the written
employment terms as follows:
Notwithstanding anything in the written employment terms to the contrary, if Executive is a
“specified employee” as defined in Section 409A of the Code and the Company determines that any
amounts to be paid to Executive under the written employment terms could be subject to penalty
taxes under Section 409A of the Code, then the Company shall not commence payment of such amounts
until the earlier of (a) the date that is six months after the Executive’s Termination Date or (b)
the date of the Executive’s death. Any amount that otherwise would have been payable to Executive
by the Company but for the delay described above shall be aggregated and paid with the first
payment under this provision. For purposes of this Addendum, ‘Termination Date’ shall mean the date
on which a ‘separation from service’ occurs, as defined in Treasury Regulation Section 1.409A-1(h).
Except as modified by this Addendum, the written employment terms remain in full force and effect
in accordance with the stated terms.
In witness whereof, the undersigned have executed this Addendum effective the 29th day of
December, 2008.
American Eagle Outfitters, Inc.,
for itself and its direct and indirect subsidiaries
By:
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/s/ Xxxx Xxxxxx, Xx.
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Its:
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Vice President | |||
Executive:
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/s/ Xxxxxx X. Xxxxx
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EXHIBIT B
AMERICAN EAGLE OUTFITTERS, INC.
RSU Confidentiality, Non-Solicitation, Non- Competition And
Intellectual Property Agreement
Intellectual Property Agreement
As an officer of American Eagle Outfitters, Inc. or one of its subsidiaries or affiliates
(collectively, the “Company”), the undersigned is a participant in the Company Long Term Incentive
Compensation Plan (the “Old LTICP”) and is eligible to participate in the new Company Long Term
Restricted Stock Unit Incentive Plan (the “RSU Plan”) and has access to or may develop trade
secrets, intellectual property, and other confidential or proprietary information (“Confidential
Information”) of the Company.
NOW, THEREFORE, in recognition of the highly competitive nature of the business conducted by
the Company and in exchange for and in consideration of:
| • | my continued employment with the Company; | ||
| • | the benefit of being able as a “Contract Participant” to receive the distribution of my full account balance under the LTICP in two annual installments; and | ||
| • | to be eligible to receive a pro rated award under the RSU Plan after termination of my employment, based on actual days worked and performance goals being met for the full period, but not an amount above the “target” award level; |
I agree as follows:
1. I will at all times during and after my employment with the Company faithfully hold the
Company’s Confidential Information in the strictest confidence, and I will use my best efforts and
diligence to guard against its disclosure to anyone other than as required in the performance of my
duties to the Company. I will not use Confidential Information for my own personal benefit or for
the benefit of any competitor or other person. I understand that Confidential Information includes
all information and materials relating to Intellectual Property, as defined below, the Company’s
trade secrets and all information relating to the Company that the Company does not make available
to the public. By way of example, Confidential Information includes information about the
Company’s products, designs, processes, systems, marketing, promotional plans, technical
procedures, strategies, costs, financial information, and many other types of information and
materials. Upon termination of my employment with the Company, regardless of the reason for such
termination, I will return to the Company all computers, data storage devices, documents and other
materials of any kind that contain Confidential Information. I will not use any confidential
information of any third party, including any prior employer, in breach of a legal obligation to
that third party in the course of my work for the Company.
2. If I decide to resign my employment with the Company, I will provide the Company with
thirty (30) days prior written notice.
3. If I leave the Company for any reason whatsoever, then for a period of eighteen (18) months
after my separation from the Company, I will not directly or indirectly solicit, induce or attempt
to influence any associate to leave the employment of the Company, nor will I in any way assist
anyone else in doing so.
4. I agree that all inventions, designs and ideas conceived, produced, created, or reduced to
practice, either solely or jointly with others, during my employment with the Company, including
those developed on my own time, which relate to or are useful in the Company’s business
(“Intellectual Property”) shall be owned solely by the Company. I understand that whether in
preliminary or final form, such Intellectual Property includes, for example, all ideas, inventions,
discoveries, designs, innovations, improvements, trade secrets, and other intellectual property.
All Intellectual Property is either work made for hire for the Company within the meaning of the U.
S. Copyright Act, or, if such Intellectual Property is determined not to be work made for hire,
then I irrevocably assign all right, title and interest in and to the Intellectual Property to the
Company, including all copyrights, patents, and/or trademarks. I will, without any additional
consideration, execute all documents and take all other actions needed to convey my complete
ownership of the Intellectual Property to the Company so that the Company may own and protect such
Intellectual Property and obtain patent, copyright and trademark registrations for it. I agree
that the Company may alter or modify the Intellectual Property at the Company’s sole discretion,
and I waive all right to
claim or disclaim authorship. I represent and warrant that any Intellectual Property that I
assign to the Company, except as otherwise disclosed in writing at the time of assignment, will be
my sole, exclusive, original work. I have not previously invented any Intellectual Property or I
have advised the Company in writing of any prior inventions or ideas.
5. If I leave the Company for any reason whatsoever, then for a period of twelve (12) months
after my separation from the Company, I will not, directly or indirectly, work for or contribute to
the efforts of any business organization or entity that competes, or plans to compete, with the
Company or its products and services. I understand that the Company at its discretion may waive
this provision or shorten the twelve month period by giving me a written waiver. I also understand
that the Company shall continue to pay me my base salary during the period I am required not to
work for a competitor, except that in no case will the Company pay me my base salary for any
portion of the period that I am employed or work for someone other than a competitor.
6. I understand and agree that if I breach any provision of this Agreement as determined in
the sole discretion of the Company, then the Company may refrain from paying to me my account
balance under the LTICP or the RS Plan, all of which I will forfeit in that event.
7. I understand and agree that the Company has the right to suspend or terminate the RS Plan
at any time in the future, provided that such suspension or termination does not decrease the value
of my then-current account balance.
8. I understand and agree that the Company is entitled, in addition to other remedies, to
obtain an injunction against any potential or actual violation of this Agreement. This Agreement
is in addition to and does not replace any other agreement between me and the Company relating to
the subject matter hereof, and I acknowledge that the Company is entitled to enforce any such other
agreement in addition to the provisions of this Agreement.
9. Notwithstanding the foregoing, if I am a “specified employee” as defined in Section 409A of
the Internal Revenue Code of 1986, as amended (the “Code”) and the Company determines that any
amounts to be paid to me under this Agreement could be subject to penalty taxes under Section 409A
of the Code, then the Company shall not commence payment of such amounts until the earlier of (a)
the date that is six months after my Termination Date or (b) the date of my death. Any amount that
otherwise would have been payable but for the delay described above shall be aggregated and paid
with the first payment under this Section 9. For purposes of this Agreement, ‘Termination Date’
shall mean the date on which a ‘separation from service’ occurs, as defined in Treasury Regulation
Section 1.409A-1(h) and the guidance promulgated there under.
10. This Agreement cannot be changed in any way unless the Company agrees in writing. This
Agreement will be governed by and interpreted in accordance with Pennsylvania law.
| American Eagle Outfitters, Inc. | ||||||||
Date: April 20, 2009
|
By: | /s/ Xxxxx X. X’Xxxxxxx
|
||||||
| Xxxxx X. X’Xxxxxxx, CEO | ||||||||
Date: March 17, 2009
|
/s/ Xxxxxx X. Xxxxx
|
|||||||
| Officer signature | ||||||||
