Exhibit 10.11
THE TALBOTS, INC.
CHANGE IN CONTROL AGREEMENT
Xxxx Xxxxx
c/o The Talbots, Inc.
Xxx Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Dear Xx. Xxxxx:
This agreement (the "Agreement") reflects our mutual understanding
regarding payments to be made to, and benefits to be received by, you in the
event that your employment with The Talbots, Inc., a Delaware corporation
("Talbots"), is terminated by Talbots within twelve (12) months following a
Change in Control. This Agreement shall become effective on April 1, 2007. The
capitalized terms used in this Agreement that are not otherwise defined herein
shall have the meanings given to such terms in Appendix A hereto, incorporated
herein by this reference and hereby made a part hereof.
1. Termination after Change in Control. In the event that Talbots
terminates your employment Without Cause within twelve (12) months after the
occurrence of a Change in Control, then the following shall occur:
(a) Talbots shall pay to you on the effective date of such termination: (i)
salary for services rendered up to and including the date of termination, (ii)
any and all compensation to which you may be entitled as of the date of
termination pursuant to The Talbots, Inc. 2003 Executive Stock Based Incentive
Plan (the "Plan") or any other compensation or benefit plan to the extent
permitted by such plans, and (iii) reimbursement for outstanding ordinary and
reasonable expenses incurred by you in connection with the performance of your
duties for Talbots up to and including the date on which your employment is
terminated;
(b) Talbots shall pay to you, within thirty (30) days after the effective
date of such termination, an amount equal to the sum of:
(i) your annual base salary at the rate in effect on the date of such
termination, and
(ii) an amount equal to the product of
(w) the amount determined to be payable under clause (i) above,
multiplied by
(x) your Target Incentive Rate in effect on the date of
termination (which is currently 33%), multiplied by
(y) your Individual Performance Rating, multiplied by
(z) the Company Performance Rating
(the terms referred to in clauses (x), (y) and (z) having the
definitions set forth in Talbots' Management Incentive Program),
assuming an Individual Performance Rating and a Company Performance
Rating of 1.0; and
(c) you shall continue to participate, on the same terms and conditions, in
any benefit programs of Talbots in which you participated immediately prior to
such termination (including, without limitation, as applicable, any disability
insurance benefit program, any medical insurance program, and dental insurance
program, and any life insurance program) from the time of such termination until
the earlier of: (i) the end of the one (1) year period beginning from the
effective date of the termination of your employment, or (ii) such time as you
are eligible to be covered by a comparable program of a subsequent employer. You
hereby agree to notify Talbots promptly if and when you begin employment with
another employer and if and when you become eligible to participate in any
pension or other benefit plans, programs or arrangements of another employer.
2. Assignment. None of the parties hereto shall, without the consent of the
other, assign or transfer this Agreement or any rights or obligations hereunder.
This Agreement and all of the provisions hereof shall be binding upon, and inure
to the benefit of, the parties hereto, and their successors (including
successors by merger, consolidation or similar transactions), permitted assigns,
executors, administrators, personal representatives, heirs and distributees.
3. Miscellaneous.
(a) Entire Agreement. This Agreement contains the entire understanding
between and among the parties hereto with respect to the subject matter hereof
and supersedes any prior or contemporaneous understandings and agreements,
written or oral, between us respecting such subject matter; provided, however,
that this Agreement shall not be construed to impair or otherwise adversely
affect the grant of any Award (as such term is defined in the Plan) heretofore
made or hereafter made to you under the Plan or the Grant Agreement dated March
1, 2007 between Talbots and you or your Agreement to Protect Corporate Property
dated February 8, 2005, all of which remain in full force and effect.
(b) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts applicable to
contracts made and to be wholly performed in that state.
If this letter sets forth our agreement on the subject matter hereof,
kindly sign, date and
return to The Talbots, Inc. the enclosed copy of this letter which will then
constitute our binding agreement on the subject.
Sincerely,
THE TALBOTS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Senior Vice President,
Human Resources
Executive:
/s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Dated as of: March 1, 2007
APPENDIX A
Definitions. As used in the Change in Control Agreement:
(a) "Change in Control" shall mean (i) the acquisition (including as a
result of a merger) by any "person" (as such term is used in Sections 3(a) (9),
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or persons "acting in concert" (which for purposes of this
Agreement shall include two (2) or more persons voting together on a consistent
basis pursuant to an agreement or understanding between them to act in concert
and/or as a "group" within the meaning of Sections 13(d) (3) and 14(d) (2) of
the Exchange Act), other than The Talbots, Inc. ("Talbots") or any of its
subsidiaries, or AEON Co., Ltd. (U.S.A.), Inc. or any of its subsidiaries,
parent entities, or "affiliates" (as such term is defined in Rule 12b-2 under
the Exchange Act) (collectively, an "Acquiring Person"), of beneficial ownership
(within the meaning of Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of Talbots representing more than 25 percent of the
combined voting power of the then outstanding securities of Talbots entitled to
then vote generally in the election of directors of Talbots, and no other
stockholder is the beneficial owner (within the meaning of Rule 13d-3 under the
Exchange Act), directly or indirectly, of a percentage of such securities higher
than that held by the Acquiring Person; or (ii) individuals, who, as of the
Effective Date, constitute the Board of Directors (the "Board") of Talbots (the
"Incumbent Board") cease for any reason to constitute at least a majority of the
Board; provided that any individual becoming a director subsequent to the
Effective Date, whose election, or nomination for election by Talbots
stockholders, was approved by a vote of at least two-thirds of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, as a member of
the Incumbent Board, any such individual whose initial assumption of office is
in connection with an actual or threatened election contest relating to the
election of the directors of Talbots (as such terms are used in Rule 14a-11 of
Regulation 14A under the Exchange Act) and further excluding any individual who
is an "affiliate", "associate" (as such terms are defined in Rule 12b-2 under
the Exchange Act) or designee of an Acquiring Person having or proposing to
acquire beneficial ownership (within the meaning of Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of Talbots representing
more than 10 percent of the combined voting power of the then outstanding
securities of Talbots entitled to then vote generally in the election of
directors of Talbots.
(b) "Without Cause" shall mean termination by Talbots of your
employment as a result of an event or condition other than the following:
(i) your death;
(ii) your failure substantially to perform your employment duties
as a result of physical incapacity for a continuous period of at least six (6)
months after you have become eligible for Talbots' long-term disability benefits
(any dispute as to your incapacitation shall be resolved by an independent
physician, reasonably acceptable to you and the Board, whose determination shall
be final and binding upon you and Talbots);
(iii) your conviction for theft or public drunkenness;
(iv) your commission of repeated acts of material misconduct,
which acts have a materially adverse effect on Talbots;
(v) your conviction of a felony, which conviction has a
materially adverse effect on Talbots;
(vi) any material breach of your employment duties, which remains
uncured after twenty (20) days' written notice from Talbots; or
(vii) any material breach by you of any non-disclosure agreement
made by you.
