EXHIBIT 10.77
AGREEMENT
THIS AGREEMENT made as of March 19, 2001, by and between Xxxxxxxx-Sonoma,
Inc., a California corporation, having its principal place of business at 0000
Xxx Xxxx Xxx., Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 (the "Company"), and Xxxxx Xxxxx
(the "Executive").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company presently employs the Executive as the Executive
Vice President of Pottery Barn;
WHEREAS, the Company and the Executive desire to set forth certain terms
and conditions of such employment in a formal agreement, with the understanding
that, except as specifically set forth herein, Executive's employment continues
to be on the same terms and conditions as prior to the execution of this
Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, the Company and the Executive agree
as follows:
1. Employment. The Company hereby agrees to continue to employ the
Executive as the Executive Vice President of Pottery Barn and the Executive
hereby agrees to continue such employment on the same terms and conditions as
are currently in effect except as to the terms and conditions herein contained.
The term of this Agreement (the "Employment Period") shall be for an initial
period of three years from the date hereof with additional terms thereafter of
one year, until the Executive terminates her employment or her employment is
terminated by the Company.
2. Termination. The Executive's employment shall terminate upon the
earliest of the following:
(a) The Executive's death:
(b) The Executive's disability in accordance with Section 4:
(c) The Executive's termination for cause in accordance with
Section 5;
(d) The termination of the Executive by the Company without cause;
or
(e) The termination by the Executive in accordance with Section 7.
3. Death. The death of the Executive shall serve to terminate the
Executive's employment, in which event the Company shall have no liability or
further obligation except as follows:
(a) The Company shall pay the Executive's estate (or, if properly
designated under an applicable plan or arrangement, her beneficiary) when
otherwise due any unpaid base salary through the date of her death at the rate
at which she was compensated prior to such termination, any declared but unpaid
bonuses, any declared but unpaid amounts due under any incentive plan, any
accrued vacation pay and any other unpaid amounts due the Executive under
employee benefit, fringe benefit or incentive plans ("Entitlements").
(b) The Executive's estate or her designated beneficiary shall
have such rights under any employee benefit, fringe benefit or incentive plan,
including any stock option plan, as provided in such plans ("Rights").
(c) The Executive's estate or her designated beneficiary shall be
entitled to receive those benefits afforded by the Company under its then
existing policies in effect for employees who die while employed by the Company.
4. Disability. If the Company reasonably shall determine that the
Executive has become physically or mentally incapable of performing her duties
("disabled") and the Company reasonably determines that such incapacity is
likely to last for a period of at least 180 days from the onset of such
disability, the Company may, at its election at any time after the date of such
onset while the Executive remains disabled, terminate the Executive's employment
hereunder effective immediately by giving the Executive written notice of such
termination. In such event, the Company shall continue the Executive as an
employee on payroll (but not as an officer hereunder) under its short term
disability policy at the base salary then paid to her for thirteen (13) weeks
and shall continue such payments thereafter in accordance with the Company's
long
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term disability policy, provided that she qualifies for coverage, and the
Company shall have no other obligation to the Executive or her dependents other
than Entitlements, Rights, accrued vacation pay and amounts due under the
Company's long term disability plan, and any benefits offered by the Company
under its then policy to employees who become disabled while employed by the
Company.
5. Cause.
(a) If the Company's Chief Executive Officer shall reasonably
determine that there are grounds for terminating Executive's employment and
discharging the Executive for "cause" (as hereinafter defined), the Company may,
at its election at any time within three months after the Company shall obtain
knowledge of the grounds for termination, give the Executive notice of its
intention to terminate the Executive for cause, stating the grounds for
termination and specifying a reasonable date on which the Executive shall be
given an opportunity if she desires to discuss such grounds for termination at a
meeting with the Chief Executive Officer.
(b) If the grounds for termination are those specified in clause
(ii)(X), (iv) or (vi) of paragraph (d) hereof, the Executive shall have a period
of ten days from giving of the notice to cure the neglect, refusal, or breach,
as the case may be, provided that if similar grounds arise again within one year
of such cure, no new notice need be given and the Company, at its option, may
immediately terminate the Executive for cause. The Chief Executive Officer shall
determine whether the Executive has effected a cure within the ten-day period.
(c) If the grounds for termination are those specified in clauses
(i), (ii)(Y), (ii)(Z), (iii) or (v) of paragraph (d) hereof, it is understood
and agreed that no satisfactory cure is available and such termination shall be
effective immediately upon notice by the Company.
(d) For purposes of this Section 5 and Section 7 hereof, the term
"cause" shall mean:
(i) the conviction (or plea of guilty or nolo contendere)
of the Executive of any felony, or of any crime involving fraud, dishonesty or
misappropriation, or moral turpitude or, if any of the foregoing involves the
Company or any subsidiary or affiliate
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companies (collectively the "Control Group"), the commission of any of the
foregoing (other than good faith disputes involving expense account items or de
minimus issues);
(ii) the Executive's (X) continued willful neglect of her
duties and responsibilities as Executive Vice President of Pottery Barn; (Y)
grossly negligent conduct in connection with her duties and responsibilities as
Executive Vice President of Pottery Barn; or (Z) gross negligence in connection
with her handling of the assets of the Control Group;
(iii) the Executive's willful misconduct with regard to the
Control Group;
(iv) the Executive's willful failure to comply with the
covenants in Section 8 hereof; or
(v) material breach of any of the provision of this
Agreement by the Executive.
(e) If the Company shall terminate the Executive's employment
pursuant to this Section 5, it shall have no liability or obligation to her
except as follows:
(i) The Company shall promptly pay the Executive her then
current base salary through the effective date of such termination plus any
accrued vacation pay;
(ii) The Executive shall receive the benefits, if any, and
have the rights afforded by the Company under its then existing policies for "at
will" employees whose employment is terminated for cause.
6. Good Reason. In the event that the Company shall (i) fail to continue
the appointment of the Executive as Executive Vice President of Pottery Barn, or
(ii) reduce the Executive's annual salary below her current base salary, or
(iii) locate the Executive other than at the Company's principal executive
offices, or (iv) relocate the Company's principal executive offices outside the
San Francisco metropolitan area, or (v) breach any material provision of this
Agreement (each of the foregoing hereinafter referred to as a "Triggering
Event"), then the Executive may give notice to the Company of her election to
terminate her employment with the Company pursuant to this Section 6, effective
thirty (30) days from the date of such notice,
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unless the Company shall have cured within such thirty (30) day period the
default giving rise to her notice of election to terminate. Such notice from the
Executive shall state the Triggering Event which provides the grounds for her
termination, and such notice must be given, if at all, within 90 days of the
date the Executive obtains knowledge of the Triggering Event referred to as
providing such grounds for termination. Within the 30 day period specified in
the Executive's notice to the Company, the Company shall have the opportunity to
cure the default involved in the Triggering Event specified by the Executive. If
the Executive's employment is terminated pursuant to this Section 6, the Company
shall have no liability or further obligation hereunder except as provided in
Section 7 hereof. If the Executive does not give notice to the Company of her
election to terminate within 90 days following the occurrence of a Triggering
Event, then the Executive shall be deemed to have waived her right to terminate
her employment based on such Triggering Event, but such waiver shall not
prejudice her right to terminate pursuant to this Section 6 based on the
occurrence of another Triggering Event occurring subsequent in time, whether of
the same or a different type.
7. Termination for Good Reason or Without Cause. In the event of a
termination of the Executive's employment pursuant to Section 6 hereof, or in
the event the Company shall terminate the Executive's employment without cause,
then the Company shall have no obligation to Executive except as follows:
(a) The Executive shall receive her Entitlements and have her
Rights. In addition, from the date of such termination until the earliest of (i)
the Severance Period Termination Date, as hereinafter defined, (ii) the
Executive's death, or (iii) the Executive's material violation of the post
employment requirements of Section 8 hereof, following the date of such
termination (hereinafter referred as the "Severance Period"), the Company shall
make payments to the Executive, either bi-weekly or monthly as the Company shall
elect, calculated at the annual rate of base salary which the Executive was
receiving immediately prior to such termination. As used herein the "Severance
Period Termination Date" shall mean that date which is the later of the date
which is three years from the date of this Agreement or the first anniversary of
the date of termination of Executive's employment with the Company.
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(b) During the Severance Period the Executive shall not be an
employee and shall not be entitled to receive any fringes, perquisites or
benefits from the Company, except the Company shall pay the premiums for her and
her dependents' health coverage under COBRA until the earliest of (i) such time
as she commences other employment or (ii) such time as she or a dependent, as
the case may be, is no longer entitled to COBRA coverage.
(c) The Company shall provide the Executive, at no cost to the
Executive, with out-placement services at a level commensurate with the
Executive's position.
(d) The Executive shall not be required to mitigate the amount of
any payment provided for in the second sentence of paragraph (a) or in paragraph
(b) by seeking other employment nor shall any amounts to be received by the
Executive hereunder be reduced by any other compensation earned.
(e) The Company shall be entitled to withhold from any payments
made to the Executive under this Section 7 any amounts required to be withheld
by applicable federal, state or local tax law.
8. Confidentiality; Nondisparagement; Nonsolicitation; Intellectual
Property.
(a) In consideration of the covenants by the Company contained
herein, the Executive undertakes and agrees that during the Employment Period
and thereafter she shall hold in a fiduciary capacity for the benefit of the
Control Group all secret or confidential information, knowledge, or data
relating to the Control Group or its business (which shall be defined as all
such information, knowledge, and data coming to the Executive's attention by
virtue of her employment at the Company except that which is otherwise public
knowledge or generally known within the Company's industry). During the
Employment Period and thereafter, the Executive shall not, without prior written
consent of the Company, unless compelled pursuant to the order of a court or
other body having jurisdiction over such matter or unless required by lawful
process or subpoena, communicate or divulge any such information, knowledge or
data to anyone other than the Control Group and those designated by it, or use
any such information, knowledge or data other than for the benefit of the
Control Group. The foregoing shall not limit
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the disclosure by the Executive of such information in the course of the
performance of her duties as Executive Vice President of Pottery Barn so long as
such disclosure is in good faith.
(b) During the Employment Period and thereafter while the
Executive is receiving any amounts pursuant to Section 7(a) hereof, the
Executive shall not make any statements or comments (i) to any form of media or
likely to come to the attention of any form of media of a negative nature that
reasonably could be considered to have an adverse impact on the business or
reputation of the Control Group, the Board or any senior officer of the Control
Group, or (ii) to any employee of the Control Group or to any supplier or
customer of the Control Group of a negative nature that reasonably could be
considered to have an adverse impact on the business or reputation of the
Control Group or the Board or any senior officer of the Control Group, provided
that in no event shall the foregoing limitation apply to (i) compliance with
legal process or subpoena, (ii) statements in response to inquiry from a court
or regulatory body, (iii) in direct rebuttal of media stories with regard to the
Executive, (iv) directly or indirectly (e.g., through an employment agency) to a
possible future employer in connection with employment discussions, or (v) in
response to inquiry from the Board.
(c) During the Employment Period and thereafter while the
Executive is receiving any amounts pursuant to Section 7(a) hereof, the
Executive will not directly or indirectly recruit, solicit or induce, or attempt
to induce, any employee, consultant or vendor of the Control Group to terminate
employment or any other relationship with the Control Group. The Executive
acknowledges that the restrictions contained in this paragraph are necessary for
the protection of the business and goodwill of the Control Group and are
considered by the Executive to be reasonable for such purpose.
(d) The Executive acknowledges and agrees that all intellectual
property created, made or conceived by the Executive (solely or jointly), at any
time while she was employed by the Company (either before or during the
Employment Period), shall be owned exclusively by the Company.. In addition, the
Executive agrees that this Agreement shall constitute an assignment to the
Company of the Executive's residual intellectual property rights, if any, in all
such work, and agrees to assist the Company with securing patents, registering
copyrights and trademarks, and obtaining any other forms of intellectual
property protection in the United States
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and in other countries. For purposes of this Agreement, "intellectual property"
includes business ideas and methods, confidential information, inventions,
product designs, artwork, graphic designs (including, for example, catalog
designs, in-store signage and posters), web page designs, audio/visual works,
package designs, store interior and exterior designs, trademarks, and any other
works of authorship, any of which relates to the actual or anticipated business
of the Control Group or results from or is suggested by any work performed by
employees for or on behalf of the Control Group.
(e) Notwithstanding any other provision of this Agreement, in the
event of a breach or threatened breach by the Executive of any provision of this
Section, the Executive and the Company agree that the Company shall be entitled
to injunctive and declaratory relief from a court of competent jurisdiction to
restrain the Executive from committing such breach of the Agreement.
(f) The provisions of this Section shall survive the termination
the Executive's employment by the Company for any reason.
9. Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, heirs (in the
case of the Executive) and permitted assigns. This Agreement is personal to the
Executive and neither this Agreement nor any rights hereunder may be assigned by
the Executive. No rights or obligations of the Company under this Agreement may
be assigned or transferred by the Company except that such rights or obligations
may be assigned or transferred pursuant to a merger or consolidation in which
the Company is not the continuing entity, or pursuant to a sale of all or
substantially all of the assets of the Company, provided that the assignee or
transferee is the successor to all or substantially all of the assets of the
Company and such assignee or transferee assumes the liabilities, obligations and
duties of the Company, as contained in this Agreement, either contractually or
as a matter of law. The Company further agrees that, in the event of a sale as
described in the preceding sentence, it shall use its best efforts to cause such
assignee or transferee to expressly assume the liabilities, obligations, and
duties of the Company hereunder.
10. Arbitration. Any claim or controversy between the parties which the
parties are unable to resolve themselves, including any claim arising out of
Executive's employment or the
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termination of that employment, and including any claim arising out of,
connected with, or related to the formation, interpretation, performance or
breach of this Agreement, and any claim or dispute as to whether a claim is
subject to arbitration, shall be submitted to and resolved exclusively by
expedited arbitration by a single arbitrator in accordance with the following
procedures:
(a) In the event of a claim or controversy subject to this
arbitration provision, the complaining party shall promptly send written notice
to the other party identifying the matter in dispute and the proposed remedy.
Following the giving of such notice, the parties shall meet and attempt in good
faith to resolve the matter. In the event the parties are unable to resolve the
matter within 21 calendar days, the parties shall submit the controversy to a
mutually-selected mediator and attempt in good faith to resolve the matter
through mediation. If the controversy is not resolved through mediation, the
parties shall meet and attempt in good faith to select a single arbitrator
acceptable to both parties. If a single arbitrator is not selected by mutual
consent within 10 business days following the failure to resolve the controversy
by mediation, an arbitrator shall be selected from a list of nine persons each
of whom shall be an attorney who is either engaged in the active practice of law
or a recognized arbitrator and who, in either event, is experienced in serving
as an arbitrator in disputes between employers and executives, which list shall
be provided by the main San Francisco office of the American Arbitration
Association ("AAA"). If, within three business days of the parties' receipt of
such list, the parties are unable to agree upon an arbitrator from the list,
then the parties shall each strike names alternatively from the list, with the
first to strike being determined by the flip of a coin. After each party has had
four strikes, the remaining name on the list shall be the arbitrator. If such
person is unable to serve for any reason, the parties shall repeat this process
until an arbitrator is selected.
(b) Unless the parties agree otherwise, within 120 calendar days
of the selection of the arbitrator, a hearing shall be conducted before such
arbitrator at a time and a place in the city of San Francisco agreed upon by the
parties. In the event the parties are unable to agree upon the time or place of
the arbitration, the time and place within the city of San Francisco shall be
designated by the arbitrator after consultation with the parties. Within 30
calendar days of the conclusion of the arbitration hearing, the arbitrator shall
issue an award, accompanied by a written decision explaining the basis for the
arbitrator's award.
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(c) In any arbitration hereunder, the Company shall pay all
administrative fees of the arbitration and all fees of the arbitrator, except
that Executive may, if she wishes, pay up to one-half of those amounts. Each
party shall pay its own attorneys' fees, costs, and expenses, unless the
arbitrator orders otherwise. The prevailing party in such arbitration, as
determined by the arbitrator, and in any enforcement or other court proceedings,
shall be entitled, to the extent permitted by law, to reimbursement from the
other party for all of the prevailing party's costs (including but not limited
to the arbitrator's compensation), expenses, and attorneys' fees. The arbitrator
shall have no authority to add to or to modify this Agreement, shall apply all
applicable law, and shall have no lesser and no greater remedial authority than
would a court of law resolving the same claim or controversy. The arbitrator
shall, upon an appropriate motion, dismiss any claim without an evidentiary
hearing if the party bringing the motion establishes that it would be entitled
to summary judgment if the matter had been pursued in court litigation. The
parties shall be entitled to reasonable discovery subject to the discretion of
the arbitrator.
(d) The decision of the arbitrator shall be final, binding, and
non-appealable, except as otherwise permitted by law, and may be enforced as a
final judgment in any court of competent jurisdiction.
(e) This agreement to resolve any disputes by arbitration shall
extend to claims against any parent, subsidiary, or affiliate of the Company,
and, when acting within such capacity, any officer, director, shareholder,
employee or agent of the Company, or of any of the above, and shall apply as
well to claims arising out of state and federal statutes and local ordinances as
well as to claims arising under the common law or under this Agreement. This
Agreement, however, shall not apply to claims for workers' compensation or
unemployment compensation benefits.
(f) Notwithstanding the foregoing, and unless otherwise agreed
between the parties, either party may, in an appropriate matter, apply to a
court for provisional relief, including a temporary restraining order or
preliminary injunction, on the ground that the arbitration award to which the
applicant may be entitled may be rendered ineffectual without provisional
relief.
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(g) Any arbitration hereunder shall be conducted in accordance
with the employment rules and procedures of the AAA then in effect; provided,
however, that, in the event of any inconsistency between the rules and
procedures of the AAA and the terms of this Agreement, the terms of this
Agreement shall prevail.
(h) If any of the provisions of this Section 10 is determined to
be unlawful or otherwise unenforceable, in whole or in part, such determination
shall not affect the validity of the remainder of this Section 10, and this
Section 10 shall be reformed to the extent necessary to carry out its provisions
to the greatest extent possible and to ensure that the resolution of all
conflicts between the parties, including those arising out of statutory claims,
shall be resolved by neutral, binding arbitration. If a court should find that
the provisions of this Section 10 are not absolutely binding, then the parties
intend any arbitration decision and award to be fully admissible in evidence in
any subsequent action, given great weight by any finder of fact, and treated as
determinative to the maximum extent permitted by law.
11. Notice. Any notice to either party hereunder shall be in writing, and
shall be deemed to be sufficiently given to or served on such party, for all
purposes, if the same shall be personally delivered to such party, or sent to
such party by registered mail, postage prepaid, at, in the case of the Company,
the address first given above and, in the case of the Executive, her principal
residence address as shown in the records of the Company. Notices to the Company
shall be addressed to the General Counsel. Either party hereto may change the
address to which notices are to be sent to such party hereunder by written
notice of such new address given to the other party hereto. Notices shall be
deemed given when received if delivered personally or three days after mailing
if mailed as aforesaid.
12. Applicable Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of California applicable
to contracts to be performed therein.
13. Miscellaneous.
(a) This Agreement represents the entire understanding of the
parties hereto with respect to the matters set forth herein, supersedes any
prior understandings or
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agreements between the parties with respect thereto, and the terms and
provisions of this Agreement may not be modified or amended except in a writing
signed by both parties.
(b) No waiver by either party of any breach by the other party of
any condition or provision contained in this Agreement to be fulfilled or
performed by such other party shall be deemed a waiver of a similar or
dissimilar condition or provision at the same or any prior or subsequent time.
Except to the extent otherwise specifically provided herein, any waiver must be
in writing and signed by the Executive or an authorized officer of the Company,
as the case may be.
(c) Nothing in this Agreement shall be construed as prohibiting
the Company from pursuing any other remedy or remedies not specified herein,
including, without limitation, the recovery of damages.
14. Beneficiary. The Executive shall be entitled to select (and change,
to the extent permitted under any applicable law) a beneficiary or beneficiaries
to receive any compensation or benefits payable under this Agreement following
her death by giving the Company written notice thereof in accordance with
applicable Company policies. In the event of the Executive's death or a judicial
determination of her incompetence, reference in this Agreement to the Executive
shall be deemed, where appropriate, to refer to her beneficiary, estate or other
legal representative.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
Xxxxxxxx-Sonoma, Inc.
By: /s/ XXXX X. XXXXXXX
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/s/ XXXXX XXXXX
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Xxxxx Xxxxx
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