EXHIBIT 10.9
RETIREMENT AGREEMENT
This Agreement ("Agreement") is made by and between Xxxx X. Xxxxxxx
("Employee") and ABERCROMBIE & FITCH CO., a Delaware corporation (the "Company")
(hereinafter collectively "the parties").
WHEREAS, Employee has been employed by the Company in various
capacities and is currently an officer and director of the Company holding the
position of Executive Vice President;
WHEREAS, the parties acknowledge it is in their individual and
mutual best interests for Employee to retire as an officer and employee of the
Company effective June 18, 2004 and to resign from the Company's Board of
Directors prior to July 26, 2004;
WHEREAS, the parties wish to define the terms and conditions of
Employee's retirement and separation from employment with the Company;
NOW, THEREFORE, in exchange for and in consideration of the
following mutual covenants and promises, the undersigned parties, intending to
be legally bound, hereby agree as follows:
1. Retirement. Employee agrees to retire from, and thereby
terminate, his employment with the Company effective June 18, 2004 ("Retirement
Date"). On the Retirement Date, Employee's employment with the Company and all
further compensation, remuneration, and eligibility of Employee under Company
benefit plans shall terminate, except as otherwise provided in this Agreement or
by applicable law.
2. Resignation from Board of Directors. Employee further agrees to
resign from any position he may hold on the Company's Board of Directors no
later than July 26, 2004.
3. Employment Prior to Retirement Date. Until the Retirement Date,
Employee shall continue to be employed by the Company in the position of
Executive Vice President, and shall receive 110% of his current ($825,000 per
year) base salary, adjusted retroactively to March 1, 2004, plus his current
benefits. Any retroactive payment in connection with the adjustment of base
salary provided in this Paragraph 3 shall be paid to Employee on or before June
18, 2004.
4. Severance Benefits Following Retirement Date. For the two year
period commencing on the Retirement Date and ending June 18, 2006, the Company
will pay to Employee, in 104 normal weekly payroll installments, a total sum
equal to two (2) years of his base salary immediately prior to the Retirement
Date, less ordinary and necessary withholding taxes (i.e., 104 weekly payments
of $17,451.93 each, less withholding). The Company further agrees to reimburse
the Employee's cost of continuing medical and dental insurance benefits for
Employee and Employee's eligible dependents, if any, under the Comprehensive
Budget Reconciliation Act of 1986 ("COBRA") for so long as Employee is eligible
for and elects such continuation of benefits under COBRA, up to a maximum period
of eighteen (18) months following the Retirement Date.
5. Additional Consideration. In addition to the severance payments
under Paragraph 3, the Company shall also pay to Employee the following:
(a) A pro rata portion of Employee's 2004 Incentive Compensation
program bonus attributable to the period commencing on the first day of fiscal
2004 through June 18, 2004 (to be paid in normal course after calculations are
finalized per program);
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(b) After the Effective Date of this Agreement or June 21, 2004,
whichever is later, a cash payment equal to the market value (at the close of
the market on June 18, 2004) of Employee's unvested restricted stock shares;
(c) Two additional cash payments to be paid on June 20, 2005, and on
June 19, 2006, the first of which (on June 20, 2005) shall equal the market
value as of the close of the market on June 17, 2005, of 25,000 common stock
shares of the Company, and the second of which (on June 19, 2006) shall equal
the market value as of the close of the market on June 16, 2006, of 45,000
common stock shares of the Company, both of which payments shall be adjusted as
appropriate for any stock splits or dividends;
(d) Accrued but unused vacation for 2004 and any unreimbursed
employment related expenses incurred by Employee prior to the Retirement Date to
be paid on or before June 18, 2004.
6. Use of Company Aircraft. Employee shall be entitled to the use of
aircraft owned or leased by the Company for the period of two (2) years
following the Retirement Date for no more than 35 total hours of aircraft time
and under same rules of priority as Employee's personal use of such aircraft
prior to his retirement; provided that Employee's rights to use of such aircraft
shall cease in the event the Company sells or otherwise discontinues its
ownership or leasing of, access to, and use of private aircraft. The Company
further agrees to annually reimburse Employee for his increased income taxes
incurred as a result of the use of such aircraft, and as a result of all
payments made pursuant to this sentence.
7. No Mitigation. With the sole exception of the reimbursement for
COBRA premium costs (which will terminate upon Employee's acceptance of new
employment which provides health insurance coverage), none of the foregoing
benefits provided in Paragraphs 3, 4,
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5 or 6 will: (a) be subject to any mitigation obligation on Employee's part; or
(b) be terminated or diminished if Employee should accept other employment prior
to June 18, 2006, otherwise in accordance with this Agreement.
8. Employee Covenants.
(a) Unauthorized Disclosure. The Employee shall not, during his
employment with the Company and thereafter, make any Unauthorized Disclosure.
For purposes of this Agreement, "Unauthorized Disclosure" shall mean disclosure
by the Employee without the prior written consent of the Company to any person,
other than an employee of the Company or a person to whom disclosure is
reasonably necessary or appropriate in connection with the performance by the
Employee of duties as an employee or director of the Company or as may be
legally required, of any confidential information with respect to any of the
Company's customers, products, methods of distribution, strategies, business and
marketing plans, business policies and practices, litigation strategies or
defenses, and plans for new business concepts; provided, however, that such term
shall not include the use or disclosure by the Employee, without consent, of any
information known generally to the public (other than as a result of disclosure
by the Employee in violation of this Paragraph 8(a)). This confidentiality
covenant has no temporal, geographical or territorial restriction.
(b) Non-Solicitation. During the No-Raid Period described below, the
Employee shall not, either directly or indirectly, alone, or in conjunction with
another party, intentionally interfere with or harm, or intentionally attempt to
interfere with or harm, the relationship of the Company, its subsidiaries and/or
affiliates, with any person who at any time was an employee, customer or
supplier of the Company, its subsidiaries and/or affiliates or
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otherwise had a business relationship with the Company, its subsidiaries and/or
affiliates, nor shall Employee knowingly hire or cause to be hired any person
who is employed by Company.
The "No-Raid Period" means the one year period following the
Retirement Date.
(c) Non-Competition. During the one (1) year period following the
Retirement Date, the Employee shall not, directly or indirectly, without the
prior written consent of the Company, own, manage, operate, join, control, be
employed by, consult with or participate in the ownership, management, operation
or control of, or be connected with (as a stockholder, partner, or otherwise),
any business, individual, partner, firm, corporation, or other entity that
competes, directly or indirectly, with the Company or any division, subsidiary
or affiliate of the Company ("Competing Entity"); provided, however, that the
"beneficial ownership" by the Employee after termination of employment with the
Company, either individually or as a member of a "group," as such terms are used
in Rule 13d of the General Rules and Regulations under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), of not more than two percent (2%)
of the voting stock of any publicly held corporation shall not be a violation of
Paragraph 8 of this Agreement. For purposes of this Agreement, Competing Entity
includes: (1) any entity listed on Appendix A attached to this Agreement; (2)
any entity which, in the future, shall plan, attempt or engage in any activities
with the object, goal or purpose of competing with the Company or any of the
entities listed on Appendix A. Employee shall provide advance written notice to
Company of any proposed or contemplated employment, consulting or similar
activities during the Non-Competition Period.
(d) Remedies. The Employee agrees that any breach of the terms of
this Paragraph 8 or of Paragraph 9 of this Agreement would result in irreparable
injury and damage to the Company for which the Company would have no adequate
remedy at law. The Employee
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therefore also agrees that in the event of Employee violating Paragraph 8(c) of
this Agreement, the Company shall be entitled to immediately cease further
payments to Employee under this Agreement. Furthermore, the Company shall be
entitled to an immediate injunction and restraining order to prevent breach
and/or threatened breach and/or continued breach by the Employee and/or any and
all persons and/or entities acting for and/or with the Employee, of said
Paragraphs 8 or 9, without having to prove damages, and to all costs and
expenses, including reasonable attorneys' fees and costs, in addition to any
other remedies to which the Company may be entitled at law or in equity. The
terms of this subparagraph shall not prevent the Company from pursuing any other
available remedies for any breach or threatened breach hereof including but not
limited to the recovery of damages from the Employee. The Employee and the
Company further agree that the provisions of the covenants not to compete and
solicit are reasonable and that the Company would not have entered into this
Agreement but for the inclusion of such covenants herein. Should a court or
arbitrator determine, however, that any provision of the covenants is
unreasonable, either in period of time, geographical area, or otherwise, the
parties hereto agree that the covenant should be interpreted and enforced to the
maximum extent which such court or arbitrator deems reasonable.
9. Cooperation, Non-Disparagement, and Indemnity. Neither the
Employee nor the officers of the Company shall state or otherwise publish
anything about the other party which would adversely affect the reputation,
image or business relationships and goodwill of the other party in its/his
market and community at large. Employee shall fully cooperate with the Company
in defense of legal claims asserted against the Company and other matters
requiring the testimony or input and knowledge of Employee, and the Company
agrees to reimburse Employee for reasonable costs and expenses incurred as a
result thereof. Employee agrees that he will not
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speak or communicate with any party or representative of any party, who is known
to Employee to be either adverse to the Company in litigation or administrative
proceedings or to have threatened to commence litigation or administrative
proceedings against the Company, with respect to the pending or threatened legal
action, unless given express permission to do so by the Company, or is otherwise
compelled by law to do so, and then only after advance notice to the Company.
Additionally, for a period of one year following the Retirement Date, Employee
agrees to be bound by and follow the same standards and duty of loyalty to the
Company as are required of the Company's employees and officers, except that
Employee may engage in other employment and related activities so long as such
activities do not violate paragraph 8 of this Agreement. The Company agrees to
indemnify Employee for liabilities and costs incurred by Employee by reason of
his employment with the Company, on the same basis as it does in similar
circumstances with other employees and officers.
10. Confidentiality. Employee agrees not to at any time talk about,
write about, or otherwise publicize or disclose to any third party the terms of
this Agreement or any fact concerning its negotiation, execution or
implementation, except with (1) an attorney, accountant, or other advisor
engaged by Employee to advise him; (2) the Internal Revenue Service or other
governmental agency upon proper request and as required by law; and (3) his
immediate family, providing that all such persons agree in advance to keep said
information confidential and not to disclose it to others. Nothing in this
paragraph shall be construed to prohibit Employee from disclosing to potential
employers the existence of Paragraph 8 of this Agreement.
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11. Release of All Claims.
(a) Release of Company by Employee. In consideration of the
receipt of the sums and covenants stated herein, Employee does hereby, on behalf
of himself, his heirs, administrators, executors, agents, and assigns, forever
release, requite, and discharge the Company and its agents, parents,
subsidiaries, affiliates, divisions, officers, directors, employees,
predecessors, successors, and assigns ("Released Parties"), from any and all
charges, claims, demands, judgments, actions, causes of action, damages,
expenses, costs, attorneys' fees, and liabilities of any kind whatsoever,
whether known or unknown, vested or contingent, in law, equity or otherwise,
which Employee has ever had, now has, or may hereafter have against said
Released Parties for or on account of any matter, cause or thing whatsoever
which has occurred prior to the date of his signing this Agreement. This release
of claims includes, without limitation of the generality of the foregoing, any
and all claims which are related to Employee's employment with the Company and
his retirement from his officer position and his employment on June 18, 2004,
and his resignation from the Board of Directors on or before July 26, 2004; and
any and all rights which Employee has or may have had under the following laws:
Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment
Opportunity Act of 1972, the Civil Rights Act of 1991; the Employee Retirement
Income Security Act, 29 U.S.C. Section. 1001 et seq.; the Americans With
Disabilities Act; the Age Discrimination in Employment Act, as amended; Ohio
Revised Code Section 4112.01 et seq.; and all other federal, state, and local
statutes, regulations or public policies, as well as the laws of contract,
torts, and all other subjects; provided, however, that nothing herein shall be
deemed to affect any rights of Employee under this Agreement or to any pension,
employee welfare benefits, stock options, or restricted shares which were vested
prior to the Termination Date; and provided further that
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nothing herein shall be deemed to affect any rights of Employee to indemnity for
liabilities incurred for acts taken in good faith in the course and scope of
employment with the Company which acts are otherwise covered under the terms and
conditions of Directors and Officers liability insurance maintained by Company
during the employment of Employee.
(B) Age Discrimination Claims and Older Worker's Benefit
Protection Act Terms. Employee specifically acknowledges that the release of his
claims under this Agreement includes, without limitation, waiver and release of
all claims against the Company and Released Parties under the federal Age
Discrimination in Employment Act ("ADEA"), and Employee further acknowledges and
agrees that:
i. the Employee waives his claims under ADEA knowingly and
voluntarily in exchange for the commitments made herein
by the Company, and that certain of the benefits
provided thereby constitute consideration of value to
which the Employee would not otherwise have been
entitled;
ii. the Employee was and is hereby advised to consult an
attorney in connection with this Agreement;
iii. the Employee has been given a period of 21 days within
which to consider the terms of this Agreement;
iv. the Employee may revoke his signature on this Agreement
for a period of 7 days following his execution of this
Agreement, rendering the Agreement null and void;
v. this Agreement is written in plain and understandable
language which Employee fully understands; and
vi. this Agreement complies in all respects with Section
7(f) of ADEA and the waiver provisions of the federal
Older Worker Benefit Protection Act.
(c) Release of Employee by Company. The Company does hereby,
on behalf of itself and its agents, parents, subsidiaries, affiliates,
divisions,
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officers, directors, employees, predecessors, successors and assigns, forever
release, requite, and discharge the Employee and his heirs, administrators,
executors, agents and assigns, from any and all charges, claims, demands,
judgments, actions, causes of action, damages, expenses, costs, attorneys' fees,
and liabilities of any kind whatsoever, whether known or unknown, vested or
contingent, in law, equity or otherwise, which the Company ever had, now has, or
may hereafter have against Employee for or on account of any matter, cause or
thing whatsoever which has occurred prior to the date of Employee's signing this
Agreement; provided, however, that nothing herein shall be deemed to release or
affect any rights of the Company pursuant to this Agreement.
12. Complete and Absolute Defense. This Agreement constitutes, among
other things, a full and complete release of any and all claims released by
either party, and it is the intention of the parties hereto that this Agreement
is and shall be a complete and absolute defense to anything released hereunder.
The parties expressly and knowingly waive their respective rights to assert any
claims against the other which are released hereunder, and covenant not to xxx
the other party or Released Parties based upon any claims released hereunder.
The parties further represent and warrant that no charges, claims or suits of
any kind have been filed by either against the other as of the date of this
Agreement.
13. Non-Admission. It is understood that this Agreement is, among
other things, an accommodation of the desires of each party, and the
above-mentioned payments and covenants are not, and should not be construed as,
an admission or acknowledgment by either party of any liability whatsoever to
the other party or any other person or entity.
14. Return of Property. Employee agrees that on or before his
Retirement Date, he shall promptly return to the Company all Company documents
and property in his
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possession or control including, but not limited to, Personal Computer(s) and
all Software, Security Keys and Badges, Price Lists, Supplier and Customer
Lists, Files, Reports, all correspondence both internal and external (memo's,
letters, quotes, etc.), Business Plans, Budgets, Designs, and any and all other
property of the Company.
15. Knowing and Voluntary Execution. Each of the parties hereto
further states and represents that he or it has carefully read the foregoing
Agreement, consisting of 12 pages, and knows the contents thereof, and that he
or it has executed the same as his or its own free act and deed. Employee
further acknowledges that he has been and is hereby advised to consult with an
attorney concerning this Agreement and that he had adequate opportunity to seek
the advice of legal counsel in connection with this Agreement. Employee also
acknowledges that he has had the opportunity to ask questions about each and
every provision of this Agreement and that he fully understands the effect of
the provisions contained herein upon his legal rights.
16. Executed Counterparts. This Agreement may be executed in one or
more counterparts, and any executed copy of this Agreement shall be valid and
have the same force and effect as the originally-executed Agreement.
17. Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Ohio.
18. Modification. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by the Employee and the Company.
19. Assignability. Employee's obligations and agreements under this
Agreement shall be binding on the Employee's heirs, executors, legal
representatives and assigns and shall inure to the benefit of any successors and
assigns of the Company. The Company may
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assign this Agreement or any of its rights or obligations arising hereunder to
any party, as part of a sale of its assets or other similar change of control.
20. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto in respect of the subject matter hereof,
and this Agreement supersedes all prior and contemporaneous agreements between
the parties hereto in connection with the subject matter hereof.
21. Effective Date. This Agreement will become effective on the
eighth day following signature by Employee, unless sooner revoked by Employee by
written revocation delivered to the Company's Chief Executive Officer.
IN WITNESS WHEREOF, the undersigned has hereto set his hand this
20th day of May, 2004.
WITNESSED:
/s/ Xxxx Xxxxx /s/ Xxxx X. Xxxxxxx
-------------------------------- ------------------------------------------
EMPLOYEE
/s/ Xxxx X. Xxxxx
--------------------------------
IN WITNESS WHEREOF, the undersigned has hereto set its hand this
20th day of May, 2004.
WITNESSED: ABERCROMBIE & FITCH CO.
/s/ Xxxx Xxx Xxxxxxx By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------- ------------------------------------------
Its: Chairman and Chief Executive Officer
--------------------------------
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Appendix A
Aeropostale J. Crew
American Eagle J. Xxxx
Xxx Xxxxxx Limited (all divisions)
Chico's Limited Too
Delias Pacific Sunwear
Xxxxxx'x (sic) Urban Outfitter/Anthropologie
Gap (all divisions) Wet Seal
