EXHIBIT 10.63
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is dated as of May 1, 1996 and
is entered into between Brylane, L.P., a Delaware limited partnership (the
"Partnership") and ________________ (the "Executive").
R E C I T A L S
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WHEREAS, the Partnership desires to employ the Executive, and the Executive
desires to be so employed by the Partnership, on the terms and subject to the
conditions hereinafter set forth.
A G R E E M E N T
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NOW, THEREFORE, the parties hereto have agreed, and do hereby mutually
agree, as follows:
1. Employment. Subject to the other terms and conditions set forth
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herein, the Partnership hereby employs the Executive, and the Executive agrees
to be employed by the Partnership, as [Title], for a term commencing on May 1,
1996 and continuing until the earlier of April 30, 1997 or the date such
employment shall have been terminated as provided in Section 3 hereof.
Beginning May 1, 1997, this Agreement shall renew automatically for an
additional one year term until the Partnership gives Executive written notice at
least 14 calendar days prior to the end of a term, of its intention to terminate
this Agreement; provided, however, that this Agreement may terminate earlier
than the end of a term as provided in Section 3 hereof. In his capacity as
[Title], the Executive shall faithfully perform to the best of his ability and
in a satisfactory manner all services and acts necessary or advisable as may be
assigned to him by the Chief Executive Officer. Throughout the term hereof the
Executive shall, except as may from time to time be otherwise agreed in writing
by the Partnership, devote his full-time working hours to his duties hereunder.
2. Compensation.
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(a) For all services to be rendered by Executive hereunder, and for
all rights granted the Partnership hereunder, the Executive shall be paid by the
Partnership a base salary at the annual rate of $________ for each 12-month
period of the term hereof, prorated for any portion thereof, payable in
substantially equal bimonthly installments, less required withholdings. This
base salary shall be reviewed for any adjustments annually by the Board of
Representatives of the Partnership (the "Board") or, at the Board's option, a
compensation committee thereof (the "Committee"), provided that any adjustments
shall be in the sole discretion of the Board or the Committee.
(b) The Executive shall be entitled to paid vacations, personal and
sick days consistent with the policies of the Partnership for management
employees. The Executive shall receive such other compensation as shall be
approved by the Board and shall participate in all fringe benefits (including,
without limitation, group medical, life, disability and accidental death and
dismemberment insurance), bonus and benefit plans which shall be generally
available from time to time to management employees of the Partnership.
(c) The Executive shall be reimbursed in accordance with the policies
of the Partnership as adopted by the Board from time to time for his reasonable
travel, entertainment, business, meeting and similar expenditures, incurred for
the benefit of the Partnership and subject to approval of the Chief Executive
Officer of the Partnership or the Board. As an additional condition to the
reimbursement of such expenses by the Partnership to the Executive, the
Executive shall provide the Partnership with copies of all available invoices
and receipts, and otherwise account to the Partnership in sufficient detail and
with adequate documentation to allow the Partnership to confirm the business
nature of the expenses and claim an income tax deduction for such paid items, if
such items are deductible.
(d) The Partnership agrees that the Partnership shall provide the
Executive with a benefits package substantially similar (which is not materially
less favorable to the Executive in the aggregate) to those coverages and
benefits provided or made available by the previous employer of the Executive
(the "Prior Employer") or its affiliates to the Executive (and his dependents)
immediately prior to the consummation of the transactions contemplated by that
certain Transaction Agreement dated as of July 13, 1993, by and among VGP
Corporation, VLP Corporation and the Transferors (including the Prior Employer)
referred to therein. In addition, the Partnership shall provide a bonus or
incentive compensation plan which provides the Executive with the opportunity to
earn the right to be paid additional compensation as set forth on Exhibit A
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hereto. This subsection (d) shall not be implemented so as to limit any rights
or benefits to which the Executive or his dependents may be entitled under any
employee benefit plan maintained by or contributed to by the Partnership.
3. Termination.
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(a) The employment of the Executive hereunder may be terminated by
the Partnership on at least 30 days' prior written notice if the Board
determines that the Executive has become permanently disabled (as hereinafter
defined). Such written notice shall provide reasonable detail regarding the
basis for such determination. The Executive shall be deemed to be "permanently
disabled," as used in this subsection, if the Executive has been substantially
unable to discharge his duties and obligations hereunder by reason of illness,
accident or disability for a period of 180 days in any twelve-month period.
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(b) The employment of the Executive hereunder may be terminated
forthwith by the Partnership for cause (as hereinafter defined) upon written
notice from the Board to the Executive. Such written notice shall provide
reasonable detail regarding the basis for such determination. The Partnership
shall have "cause" to terminate the Executive, as used in this subsection, only
if the Board shall determine that the Executive has, (i) refused or failed
within a reasonable period of time to carry out any reasonable and material
direction from the Chief Executive Officer of the Partnership or the Board
(other than a failure resulting from the Executive's incapacity due to physical
or mental illness), (ii) been guilty of a material and willful breach of the
terms of this Agreement, (iii) demonstrated gross negligence or willful
misconduct in the execution of his assigned duties, (iv) been convicted of a
felony or other serious crime involving moral turpitude, (v) engaged in fraud,
embezzlement or other illegal conduct to the detriment of the Partnership, (vi)
intentionally imparted confidential information relating to the Partnership to a
third party, other than in the course of carrying out the Executive's duties, or
(vii) materially and willfully breached any of his obligations pursuant to the
Stock Subscription Agreement dated as of August 30, 1993 between VP Holding
Corporation and the Executive if such breach has not been cured 5 days after
receipt of written notice to the Executive.
(c) The employment of the Executive hereunder shall be automatically
terminated on the date of the Executive's death.
(d) In addition to the circumstances set forth in subsections (a),
(b) and (c) of this Section 3, the Partnership may terminate the Executive's
employment for any reason or no reason and with or without cause upon 30 days'
prior written notice to the Executive.
(e) The Executive may terminate his employment hereunder forthwith at
any time for good reason (as hereinafter defined) upon written notice to the
Partnership. For purposes of this subsection, "good reason" shall mean the
occurrence of any of the following: (i) a reduction by the Partnership in the
Executive's base salary herein provided or as the same may be increased from
time to time or (ii) a material and willful breach by the Partnership of any of
its obligations to the Executive hereunder, including, without limitation, the
Partnership's failure to obtain the written assumption agreement described in
Section 10(a) if such agreement is not obtained within 5 days after written
notice that a written assumption agreement required under Section 10(a) has not
been obtained.
(f) In addition to the circumstances described in subsection (e) of
this Section 3, the Executive may terminate his employment hereunder for any
reason or no reason upon 30 days' prior written notice to the Partnership.
(g) If the Executive's employment is terminated pursuant to this
Section 3, the Executive shall be entitled to, and the Partnership's obligation
hereunder shall
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be limited to, (i) the payment of the compensation accrued under Section 2
hereof to the effective date of such termination and (for any termination other
than pursuant to Section 3(b)) a pro rata portion of any bonuses or incentive
compensation payable with respect to any period commencing prior to the
termination date, and (ii) in the case of termination under subsections (a),
(c), (d) or (e) of this Section 3, the additional compensation provided in
subsection (h) of this Section 3.
(h) (i) if the Executive's employment is terminated by the
Partnership pursuant to subsection (a) of this Section 3 the Executive will get
the benefit of any Partnership disability plans; provided, however, that for a
period of 12 consecutive months after the effective date of the termination the
Partnership will pay the Executive the difference (if any) between the level of
annualized salary provided for in Section 2 hereof, less required withholdings,
and the amounts provided under such disability plans; or
(ii) if the Executive's employment is automatically terminated
pursuant to subsection (c) of this Section 3, the Partnership shall continue to
pay to the Executive (or, if applicable, to his executor, administrator or
heirs) the Executive's salary in equal monthly installments at the level of
annualized salary provided for in Section 2 hereof being paid to the Executive
at the time of such termination, less required withholdings, for a period of 12
consecutive months after the effective date of the termination; and
(iii) if the Executive's employment is terminated by the
Partnership pursuant to subsection (d) of this Section 3 or if the Executive
terminates his employment pursuant to subsection (e) of this Section 3, the
Partnership shall continue to pay to the Executive the Executive's salary in
equal monthly installments at the level of annualized salary provided for in
Section 2 hereof being paid to the Executive at the time of such termination,
less required withholdings, for the greater of (A) the nine consecutive months
after the effective date of the termination, and (B) the period after the
effective date of the termination, through and including the April 30th
immediately following the effective date of the termination.
(i) The Executive shall not be required to mitigate the amount of any
payment provided for in this Section 3 by seeking other employment or otherwise;
but the amount of any payment provided for in this Section 3, other than amounts
set forth in subsection (g)(i) of this Section 3, shall be reduced by any
compensation earned by the Executive as the result of employment by another
employer after the effective date of termination of the Executive's employment
by the Partnership.
(j) Nothing in this Agreement shall be deemed a release or waiver of
right to any medical or other employee benefits available to the Executive on or
after the effective date of termination of the executive's employment by the
Partnership under federal,
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state or local law which provides for the continuation of any medical or other
employee benefits after such termination date.
4. Noncompetition. If the Executive is terminated by the Partnership for
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cause in accordance with Subsection 3(b) hereof, or if the Executive terminates
his employment other than for "good reason" in accordance with Subsection 3(e)
hereof, then except as provided in the next sentence, for a period of 12 months
after such termination, the Executive will not carry on (as an employee, agent,
consultant, independent contractor, stockholder, partner, owner or otherwise)
any trade or business competing with the then trade or business of the
Partnership (or its affiliates) in any state in which the Partnership (or its
affiliates) is carrying on such trade or business as of the effective date of
such termination. The foregoing provisions of this Section 4 notwithstanding,
the Executive may own not more than 5% of the issued and outstanding shares of
any class of securities of an issuer whose securities are listed on a national
securities exchange or registered pursuant to Section 12(g) of the Securities
Exchange Act of 1934, as amended.
5. Trade Secrets. During the term of this Agreement and at all times
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thereafter, the Executive shall hold in secrecy all trade secrets and
confidential information relating to the Partnership's (and its affiliates')
business and affairs that may come to his knowledge or have come to his
knowledge while employed by the Partnership or its predecessors (excluding
information that is or becomes publicly known or available for use through no
fault of the Executive), including but not limited to (i) matters of a business
nature, such as information about costs, profits, markets, sales, lists of
customers and other information of a similar nature, (ii) plans or strategies
for development of the business of the Partnership and (iii) matters of a
technical nature. Except as required in the performance of his duties to the
Partnership under this Agreement, the Executive shall not use for his own
benefit or disclose to any person, directly or indirectly, such matters unless
such use or disclosure has been specifically authorized in writing by the
Partnership in advance.
6. Executive's Representation. The Executive shall be, and he represents
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that he is, free to enter into this Agreement and not under any contractual
restraint which would prohibit his satisfactorily performing his duties to the
Partnership hereunder.
7. Governing Law. This Agreement shall be governed by and construed and
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enforced in accordance with the internal substantive laws (and not the laws of
conflicts of laws) of the State of Indiana.
8. Costs. If either party brings any legal action against the other to
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enforce its rights under this Agreement, the prevailing party in such dispute
shall be entitled to recover from the other party all reasonable fees, costs and
expenses actually incurred in enforcing its rights under this Agreement
including, without limitation, the reasonable fees
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and expenses of attorneys, accountants and expert witnesses, which shall
include, without limitation, all fees, costs and expenses of appeals and of
enforcement.
9. Entire Agreement. This Agreement constitutes the whole agreement of
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the parties hereto in reference to any employment of the Executive by the
Partnership and in reference to the subject matter hereof, and all prior
agreements, promises, representations and understandings relative thereto are
merged herein.
10. Assignability.
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(a) In the event that the Partnership shall merge or consolidate with
any other corporation, partnership or business entity or all or substantially
all the Partnership's business or assets shall be transferred in any manner to
any other corporation, partnership or business entity, including (without
limitation) any entity that succeeds to the business of the Partnership pursuant
to Article X of that certain Partnership Agreement dated August 30, 1993, as
amended, such successor shall thereupon succeed to, and be subject to, all
rights, interests, duties and obligations of, and shall thereafter be deemed for
all purposes hereof to be, the Partnership hereunder and the Partnership shall
obtain a written assumption agreement from such successor prior to completion of
any such merger, consolidation or sale of assets.
(b) This Agreement is personal in nature and neither of the parties
hereto shall, without the written consent of the other party hereto, assign or
transfer this Agreement or any rights or obligations hereunder, except by
operation of law or pursuant to the terms of Section 10(a).
(c) Nothing expressed or implied herein is intended or shall be
construed to confer upon or give to any person, other than the parties hereto,
any right, remedy or claim under or by reason of this Agreement or of any term,
covenant or condition hereof.
11. Remedies. Any material breach, violation or evasion by the Executive
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of the terms of this Agreement, including specifically, but not limited to,
Sections 4 and 5, will result in immediate and irreparable injury and harm to
the Partnership, and will cause damage to the Partnership in amounts difficult
to ascertain. Accordingly, the Partnership shall be entitled to, and Executive
hereby consents to the entry of, the remedies or injunction and specific
performance, or either of such remedies, as well as all other remedies to which
the Partnership may be entitled, at law, in equity or otherwise.
12. Amendments; Waivers. This Agreement may be amended, modified,
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superseded, canceled, renewed or extended and the terms or covenants hereof may
be waived only by a written instrument executed by the parties hereto or, in the
case of a waiver, by the party waiving compliance. The failure of any party at
any time or times to require
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performance of any provision hereof shall in no manner affect the right at a
later time to enforce the same. No waiver by any party of the breach of any
term or provision contained in this Agreement, whether by conduct or otherwise,
in any one or more instances, shall be deemed to be, or construed as, a further
or continuing waiver of any such breach, or a waiver of the breach of any other
term or covenant contained in this Agreement.
13. Notice. All notices, requests and other communications hereunder
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shall be in writing and, if given by facsimile, telegram, telecopy or telex,
shall be deemed to have been validly served, given or delivered when sent, if
given by personal delivery, shall be deemed to have been validly served, given
or delivered upon actual delivery and, if mailed or delivered by overnight
courier, shall be deemed to have been validly served, given or delivered when
deposited in the United States mail, as registered or certified mail, with
proper postage prepaid, or when deposited with the courier service, and
addressed to the party or parties to be notified, at the following addresses (or
such other address(es) as a party may designate for itself by like notice):
If to the Partnership:
Brylane, L.P.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Senior Vice President-Human Resources
If to the Executive:
_____________________________
_____________________________
_____________________________
14. Severability. Any provision of this Agreement that is prohibited or
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unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
only to the extent of such prohibition or unenforceability without invalidating
or affecting the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent that a
restrictive covenant contained herein may, at any time, be more restrictive than
permitted under the laws of any jurisdiction where this Agreement may be subject
to review and interpretation, the terms of such restrictive covenant shall be
those allowed by law and the covenant shall be deemed to have been revised
accordingly. Each and every term of this Agreement shall be enforced to the
fullest extent permitted by law.
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15. Counterparts. This Agreement may be executed in two counterparts,
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each of which shall be deemed an original and both of which together shall be
deemed one Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
The "Partnership": BRYLANE, L.P.
By: VGP Corporation
Its: General Partner
By:
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Title: President
The "Executive": [NAME]
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Signature
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EXHIBIT A
Brylane has a semi-annual performance bonus program based upon goals
relating to Brylane's operating profit. Such goals will be established at the
beginning of each six-month season based upon a review by the Board of
management's operating budget for that season. Each participant in such program
may receive a bonus for each semi-annual bonus period equal to a certain
percentage of his or her annual salary. The actual bonus amount will be based
upon the extent to which the operating profit goals for that season are met or
exceeded. Operating profit shall exclude any charge resulting from the
formation of the Partnership, such as the write-up of inventory to fair market
value on August 30, 1993 and the amortization of the cost of intangibles
resulting from the purchase accounting relating to the acquisition. Except as
otherwise determined by the Board, or the Committee, in its sole discretion,
operating profit for any given six-month season will also exclude any and all
operating profit that is attributable to transactions entered into by Brylane or
its affiliates during that six-month season. The Executive's individual
participant percentage under such plan will be ___%, subject to any adjustments
by the Board, or the Committee, as it may see fit in its sole discretion.
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