EMPLOYMENT AGREEMENT
Exhibit
10.1
EMPLOYMENT
AGREEMENT
THIS
EMPLOYMENT AGREEMENT (this “Agreement”) is made as of June 1, 2007, by
and between Burlington Coat Factory Warehouse Corporation, a Delaware
corporation (the “Company”), and Xxxx X. Xxxxx, Xx.
(“Executive”).
WHEREAS,
the Company desires to employ Executive during the Employment Period, and
Executive is willing to accept employment with the Company, on the terms and
conditions set forth herein; and
WHEREAS,
the agreements of Executive in Sections 5, 6
and 7 are a material inducement to enter into
this
Agreement.
In
consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. In
this Agreement:
“Base
Salary” has the meaning given to that term in Section 3(a).
“Board”
means the Board of Directors of the Company.
“Cause”
means Executive (i) is convicted of a felony or other crime involving dishonesty
towards the Company or any of its Subsidiaries or material misuse of property
of
the Company or any of its Subsidiaries; (ii) engages in willful misconduct
or
fraud with respect to the Company or any of its Subsidiaries or any of their
customers or suppliers or an intentional act of dishonesty or disloyalty in
the
course of Executive’s employment; (iii) refuses to perform Executive’s material
obligations under this Agreement (except in connection with a Disability) as
reasonably directed by the Board or the Company’s chief executive officer, which
failure is not cured within 15 days after written notice thereof to Executive;
(iv) misappropriates one or more of the Company’s or any of its Subsidiaries
material assets or business opportunities; or (v) breaches Sections 5, 6
or 7 hereof which breach, if capable of being
cured, is not cured within 10 days of written notice thereof has been delivered
to Executive. The Company may allow Executive an extension of time to
cure a breach if the Board, in its sole discretion, determines that such
extension is appropriate under the circumstances.
“Company”
has the meaning set forth in the preamble above; together with its Subsidiaries
and affiliates and includes all predecessor entities.
“Confidential
Information” has the meaning given to that term in Section 5(a).
“Court”
has the meaning given to that term in Section 7(b).
“Disability”
means Executive’s inability to perform the essential duties, responsibilities
and functions of Executive’s position with the Company and its Subsidiaries for
a continuous period of 180 days as a result of any mental or physical disability
or incapacity, as determined under the definition of disability in the Company’s
long-term disability plan so as to qualify Executive for benefits under the
terms of that plan or as determined by an independent physician to the extent
no
such plan is then in effect. Executive shall cooperate in all
respects with the Company if a question arises as to whether Executive has
become disabled (including, without limitation, submitting to an examination
by
a medical doctor or other health care specialists selected by the Company and
authorizing such medical doctor or such other health care specialist to discuss
Executive’s condition with the Company).
“Employment
Period” means the period commencing on June 4, 2007 (the “Commencement
Date”) and ending on the Expiration Date or such earlier date as contemplated in
the proviso to Section 4(a).
“Expiration
Date” means the third anniversary of the Commencement Date; provided,
that if a written notice is not given by the Company at least ninety (90) days
prior to such anniversary (or any subsequent
anniversary
if this Agreement is extended) stating that such party is electing not to extend
the Employment Period, then the Expiration Date will automatically be extended
to the next anniversary of the date hereof.
“Expiration
Year” means the calendar year in which the Employment Period
expires.
“Good
Reason” means the occurrence of any of the following events without the
written consent of Executive: (i) a material diminution of Executive’s duties or
the assignment to Executive of duties that are inconsistent in any substantial
respect with the position, authority or responsibilities associated with
Executive’s position as set forth pursuant to Section 2(b), other than any such authorities,
duties
or responsibilities assigned at any time which are by their nature, or which
are
identified at the time of assignment, as being temporary or short-term; (ii)
the
Company’s requiring Executive to be based at a location which is fifty (50) or
more miles from Executive’s principal office location on the Commencement Date;
or (iii) a material breach by the Company of its obligations pursuant to this
Agreement (including, without limitation, its obligations pursuant to Section
3) (which such breach goes uncured
after
notice and a reasonable opportunity to cure).
“Termination
Year” means the calendar year in which the Employment Period is
terminated.
“Subsidiaries”
means any corporation or other entity of which the securities or other ownership
interests having the voting power to elect a majority of the board of directors
or other governing body are, at the time of determination, owned by the Company,
directly or through one of more Subsidiaries.
“Work
Product” has the meaning given to that term in Section 6.
2. Employment,
Position and Duties.
(a) The
Company shall employ Executive and Executive hereby accepts employment with
the
Company, upon the terms and conditions set forth in this Agreement for the
Employment Period.
(b) During
the Employment Period, Executive shall serve as the President of Merchandising,
Planning and Allocation and Marketing of the Company and shall perform the
normal duties, responsibilities and functions of an executive officer of a
company of a similar size and type and shall have such power and authority
as
shall reasonably be required to enable Executive to perform Executive’s duties
hereunder, subject to the power and authority of the Board to expand or limit
such duties, responsibilities, functions, power and authority and to overrule
actions of officers of the Company in a manner consistent with the traditional
responsibilities of such office.
(c) During
the Employment Period, Executive shall (i) render such administrative, financial
and other executive and managerial services to the Company and its Subsidiaries
which are consistent with Executive’s position as the Board may from time to
time direct, (ii) report to the Board or the Company’s chief executive officer
and shall devote Executive’s best efforts and Executive’s full business time and
attention (except for permitted vacation periods and reasonable periods of
illness or other incapacity) to the business and affairs of the Company and
its
Subsidiaries and (iii) submit to the Board all business, commercial and
investment opportunities presented to Executive or of which Executive becomes
aware which relate to the business of the Company and its Subsidiaries, and
unless approved by the Board in writing, Executive shall not pursue, directly
or
indirectly, any such opportunities on Executive’s own
behalf. Executive shall perform Executive’s duties, responsibilities
and functions to the Company and its Subsidiaries hereunder to the best of
Executive’s abilities in a diligent, trustworthy and professional
manner.
3. Compensation
and Benefits.
(a) During
the Employment Period, Executive’s base salary shall be a minimum of Five
Hundred Thousand Dollars ($500,000) per annum (as increased or decreased in
accordance with this Agreement from time to time, the “Base Salary”),
which salary shall be payable by the Company in regular
(b) installments
in accordance with the Company’s general payroll practices (in effect from time
to time). Executive’s Base Salary will be subject to annual review
and increase or decrease (but not below the Base Salary in effect on the date
of
this Agreement) by the Board during the Employment Period.
(c) Executive
shall be entitled to participate in the Company’s Senior Management Bonus Plan
approved by the Board or a committee thereof, as in effect from time to
time. Notwithstanding the preceding, provided Executive remains
continuously in the employment of the Corporation, on the first anniversary
of
the Commencement Date, Executive will be entitled to receive a bonus equal
to
not be less than Two Hundred Fifty Thousand Dollars
($250,000.00). Such bonus shall be in lieu of participation in the
Senior Management Bonus Plan for the first year of employment and will be
payable to Executive at the same time bonus awards are payable to other members
of Senior Management pursuant to the Company’s fiscal 2008 Senior Management
Bonus Plan. Thereafter, Executive will participate in the Senior
Management Bonus Plan to the same extent as other members of senior management
of the Corporation.
(d) The
Board, or a committee or appointee thereof, during the term of this Agreement,
shall review annually, or at more frequent intervals which the Board determines
is appropriate, Executive’s compensation and may award Executive compensation as
the Board deems appropriate in its sole discretion; provided,
however, that Executive’s base salary shall not be reduced pursuant to
any such review or otherwise.
(e) Executive
shall be entitled to twenty days of paid vacation each calendar year in
accordance with the Company’s policies, which if not taken in any year may not
be carried forward to any subsequent calendar year and no compensation shall
be
payable in lieu thereof. Such vacation will accrue as of January 1 of
each year, except that during the remainder of the 2007 calendar year, Executive
shall accrue twenty days of paid vacation pro rated for the number of full
calendar months remaining in the calendar year in which the Employment Period
commences.
(f) During
the Employment Period, the Company shall reimburse Executive for all reasonable
business expenses incurred by Executive in the course of performing Executive’s
duties, responsibilities and functions under this Agreement which are consistent
with the Company’s policies in effect from time to time with respect to travel,
entertainment and other business expenses, subject to the Company’s requirements
with respect to reporting and documentation of such expenses.
(g) Executive
shall be entitled to participate, on the same basis as other executives of
comparable level in the Company, in any compensation, bonus, incentive, award,
deferred compensation, pension, retirement, stock award, stock option or other
benefit, plan or arrangement of the Company (including, without limitation,
any
plan sponsored by the entity owning or controlling the Company, or any affiliate
of such entity) now existing or hereafter adopted; provided,
however, the Company may restrict or exclude Executive’s participation in
any such plan, or the benefits thereunder, on such terms and conditions as
the
Company shall in its sole discretion determine, if at any time Executive shall
be working fewer than five days a week or on other part-time basis during
regular business days. Executive also shall be entitled to hospital,
health, disability, medical and life insurance, and any other benefits enjoyed,
from time to time, by other salaried employees of the Company of comparable
level, all upon terms as favorable as those enjoyed by other salaried employees
of comparable level of the Company. Notwithstanding anything in this
Section 3(f) to the contrary, if the
Company adopts any change in the benefits provided for other salaried employees
of the Company of comparable level, and such policy is uniformly applied to
all
such employees of the Company (and any successor or acquirer of the Company,
if
any), then no such change shall be deemed a breach by the Company of this
Section 3(f).
(h) Executive
will be indemnified and defended for acts performed (or omissions made) in
Executive’s capacity as an officer or director of the Company to the fullest
extent specified in the Company’s certificate of incorporation and bylaws and as
permitted under Delaware law.
(i) For
the
period from the Commencement Date to the earlier of (x) eighteen months after
the Commencement Date and (y) the time Executive sells his current residence
in
Franklin Lakes, New Jersey (the “Current Home”) and relocates to a residence
within reasonable commuting distance from the Company’s principal offices in
Burlington, New Jersey (the “New Home”), the Company will pay Executive
a
(j) reasonable
housing allowance in an amount to be agreed between the Company and
Executive. In addition, upon presentation by Executive to the Company
of such written documentation as the Company may reasonably request, the Company
will pay, or reimburse Executive for, the reasonable costs incurred by Executive
in relocating his personal residence from the Current Home to the New Home,
including: (A) the costs of moving his personal and household items (inclusive
of temporary storage for a period not to exceed eighteen months); (B) real
estate brokerage commissions incurred in selling the Current Home (not to exceed
four percent of the selling price of the Current Home); (C) the costs of
temporary housing for Executive’s family to the extent they cannot immediately
be housed in the New Home (but not for more than four weeks from the date they
vacate the Current Home); (D) one-half of the amount (but not more than Three
Hundred Sixty Thousand Dollars ($360,000.00)) by which the selling price of
the
Current Home is less than and the purchase price thereof and (E) other
reasonable closing costs (such as attorneys fees) and relocation expenses
approved by the Company’s Chief Executive Officer. Notwithstanding
anything herein to the contrary, in the event Executive’s employment with the
Company is terminated either voluntarily by Executive or for Cause by the
Company within eighteen (18) months after Executive has sold the Current Home,
Executive shall immediately repay to the Company all amounts paid on Executive’s
behalf by the Company or reimbursed to Executive by the Company pursuant to
this
Section 3(h). In addition, the Company shall reimburse
Executive for any applicable federal and state income taxes paid by Executive
resulting from the inclusion in his taxable income of any of the amounts paid,
or reimbursed to him, by the Company under this Section
3(h). Such reimbursement shall be paid at the same time that
Executive files his federal and state income tax returns for the year in which
reimbursed amounts are included in Executive’s taxable income and will be based
on Executive’s effective income tax rates for such year, as certified to the
Company by Executive’s certified public accountant or attorney. The
obligation of the Company to provide reimbursement for Executive’s federal tax
liability will be adjusted to take into account the federal tax benefit, if
any,
of state income taxes applicable to the inclusion in taxable income of the
amount of such amounts paid or reimbursed, regardless of the year in which
such
federal tax benefit is realized by Executive. Notwithstanding the
foregoing, the Company’s obligation for reimbursement of applicable federal and
state income taxes shall not extend to any taxes imposed on the tax
reimbursement provided pursuant to the foregoing.
(k) For
the
period from the Commencement Date to the time Executive shall become eligible
for participation in the Company’s health and medical plans, the Company shall
reimburse Executive for the excess of the costs paid by Executive to his former
employer for the purchase of continuation of health benefits under the
Consolidated Omnibus Budget Reconciliation Act as administered by such company
over the Executive’s current contributions to such plans.
4. Termination
and Payment Terms.
(a) The
Employment Period shall end on the Expiration Date; provided, that (i)
the Employment Period shall terminate prior to such date immediately upon
Executive’s resignation, death or Disability and (ii) the Employment Period may
be terminated by resolution of the Board, with or without Cause at any time
prior to such date. Except as otherwise provided herein, any
termination of the Employment Period by the Company shall be effective as
specified in a written notice from the Company to Executive.
(b) If
the
Employment Period is terminated prior to the Expiration Date:
(i) (A)
by
resolution of the Board (other than for Cause) or by Executive resigning for
Good Reason or (B) if the Employment Period expires on the Expiration Date,
Executive shall be entitled to receive (1) all previously earned and accrued
but
unpaid Base Salary and vacation and unpaid business expenses up to the date
of
such termination or the Expiration Date, as applicable, (2) any bonus (if any)
earned by Executive for the fiscal year prior to the Termination Year or the
Expiration Year, as applicable, but then unpaid, (3) the pro rata portion of
Executive’s target bonus during the Termination Year or the Expiration Year, as
applicable, to the extent targets thereunder are achieved for such year, after
such termination or expiration, pro rated based on the number of days of the
Termination Year or the Expiration Year, as applicable, prior to the date of
termination or the Expiration Date, as applicable, which payment shall be made
when the bonus payments for such Termination Year or the Expiration Year, as
applicable, are otherwise due; (4) severance pay in the full amount of Base
Salary at the time of termination or expiration from the date of termination
or
the Expiration Date, as applicable, through the period ending on the first
anniversary of the date of termination or the Expiration Date, as applicable;
(5) full continuation of Executive’s hospital, health, disability, medical and
life insurance benefits during the one year
(ii) severance
period (to the extent any of those benefits cannot be provided by Company during
the one year severance period, the Company will provide Executive with a sum
of
money calculated to permit Executive to obtain the same benefits individually,
grossed up for tax purposes so that Executive remains whole) and (6) upon
expiration of the one year period during which payments or benefits are made
or
provided, as the case may be, under the preceding sub-clause (5) of this
Section 4(d) of this Agreement, Executive shall be entitled to purchase
continuation of health benefits under the Consolidated Omnibus Budget
Reconciliation Act (“COBRA”) to the extent then legally permissible and upon the
same terms and conditions as made available to other former employees of the
Company.
(iii) for
any
other reason, including as a result of Executive’s death, Disability, voluntary
resignation for other than Good Reason or by resolution of the Board for Cause,
Executive’s sole entitlement shall be to receive all previously earned and
accrued but unpaid Base Salary, vacation and unpaid business expenses up to
the
date of such termination or expiration and Executive shall not be entitled
to
any further Base Salary, bonus payments or benefits for that year or any future
year, except as required by law, or to any other severance compensation of
any
kind.
(c) Executive
agrees that: (i) Executive shall be entitled to the payments and
services provided for in Sections 4(b)(i)(3), 4(b)(i)(4),4(b)(i)(5)
and 4(b)(i)(6), if
any, if and only if Executive has executed and delivered the Release attached
as
Exhibit A and seven (7) days have elapsed since such execution without
any revocation thereof by Executive and Executive has not breached as of the
date of termination of the Employment Period the provisions of Sections
5, 6
and 7 hereof and does not breach such
sections or such covenants at any time during the period for which such payments
or services are to be made; and (ii) the Company’s obligation to make such
payments and services will terminate upon the occurrence of any such breach
during such period.
(d) Except
as
stated above, any payments pursuant to Section 4(b) shall be paid by the Company
in regular
installments in accordance with the Company’s general payroll practices, and
following such payments the Company shall have no further obligation to
Executive pursuant to this Section 4
except as provided by law. All amounts payable to Executive as
compensation hereunder shall be subject to all customary withholding, payroll
and other taxes. The Company shall be entitled to deduct or withhold
from any amounts payable to Executive any federal, state, local or foreign
withholding taxes, excise tax, or employment taxes imposed with respect to
Executive’s compensation or other payments or Executive’s ownership interest in
the Company (including, without limitation, wages, bonuses, dividends, the
receipt or exercise of equity options and/or the receipt or vesting of
restricted equity).
(e) Executive
hereby agrees that except as expressly provided herein, no severance
compensation of any kind, nature or amount shall be payable to Executive and
except as expressly provided herein, Executive hereby irrevocably waives any
claim for severance compensation.
(f) Except
as
provided in Sections 4(b)(i) and 4(b)(ii)
above, all of Executive’s rights
pursuant to Sections 3(d), 3(d), 3(e),
3(f),3(h) and 3(f) shall cease
upon the termination of the Employment Period.
5. Confidential
Information.
(a) Executive
acknowledges and agrees that the information, observations and data (including
trade secrets) obtained by Executive while employed by the Company and its
Subsidiaries concerning the business or affairs of the Company and its
Subsidiaries are the confidential information (“Confidential
Information”), and the property, of the Company and/or its
Subsidiaries. Without limiting the foregoing, the term “Confidential
Information” shall be interpreted as broadly as possible to include all
observations, data and other information of any sort that are (i) related to
any
past, current or potential business of the Company or any of its Subsidiaries
or
any of their respective predecessors, and any other business related to any
of
the foregoing, and (ii) not generally known to and available for use by those
within the line of business or industry of the Company or by the public (except
to the extent such information has become generally known to and available
for
use by the public as a direct or indirect result of Executive’s acts or
omissions) including all (A) Work Product (as defined below); (B) information
concerning development, acquisition or investment opportunities in or reasonably
related to the business
(b) or
industry of the Company or any of its Subsidiaries of which Executive is aware
or becomes aware during the term of his employment; (C) information identifying
or otherwise concerning any current, former or prospective suppliers,
distributors, contractors, agents or customers of the Company or any of its
Subsidiaries; (D) development, transition, integration and transformation plans,
methodologies, processes and methods of doing business; (E) strategic,
marketing, promotional and financial information (including all financial
statements), business and expansion plans, including plans and information
regarding planned, projected and/or potential sales, pricing, discount and
cost
information; (F) information identifying or otherwise concerning employees,
independent contractors and consultants; (G) information on new and existing
programs and services, prices, terms, and related information; (H) the terms
of
this Agreement; (I) all information marked, or otherwise designated, as
confidential by the Company or any of its Subsidiaries or which Executive should
reasonably know is confidential or proprietary information of the Company or
any
of its Subsidiaries; (J) all information or materials similar or related to
any
of the foregoing, in whatever form or medium, whether now existing or arising
hereafter (and regardless of whether merely stored in the mind of Executive
or
employees or consultants of the Company or any of its Subsidiaries, or embodied
in a tangible form or medium); and (K) all tangible embodiments of any of the
foregoing.
(c) Therefore,
Executive agrees that, except as required by law or court order, including,
without limitation, depositions, interrogatories, court testimony, and the
like
(and in such case provided that Executive must give the Company and/or its
Subsidiaries, as applicable, prompt written notice of any such legal
requirement, disclose no more information than is so required and seek, at
the
Company’s sole cost and expense, confidential treatment where available and
cooperate fully with all efforts by the Company and/or its Subsidiaries to
obtain a protective order or similar confidentiality treatment for such
information), Executive shall not disclose to any unauthorized person or entity
or use for Executive’s own purposes any Confidential Information without the
prior written consent of the Board, unless and to the extent that the
Confidential Information becomes generally known to and available for use by
the
public other than as a direct or indirect result of Executive’s acts or
omissions. Executive shall deliver to the Company at the termination
or expiration of the Employment Period, or at any other time the Company may
request, all memoranda, notes, plans, records, reports, computer tapes,
printouts and software and other documents and data (and copies thereof)
embodying or relating to the Confidential Information (including any Work
Product (as defined below)) or the business of the Company and its Subsidiaries
which Executive may then possess or have under Executive’s control and if, at
any time thereafter, any such materials are brought to Executive’s attention or
Executive discovers them in his possession or control, Executive shall deliver
such materials to the Company immediately upon such notice or
discovery.
6. Intellectual
Property, Inventions and Patents. Executive acknowledges and
agrees that all discoveries, concepts, ideas, inventions, innovations,
improvements, developments, methods, specifications, designs, analyses,
drawings, reports, patents and patent applications, processes, programs,
systems, software, firmware, materials, plans, sketches, models, know-how,
devices, developments, data, databases, technology, trade secrets, works of
authorship, copyrightable works and mask works (whether or not including any
confidential information) and all registrations or applications related thereto,
all other intellectual property or proprietary information and all similar
or
related information (whether or not patentable or copyrightable and whether
or
not reduced to tangible form or practice) which relate to the Company’s or any
of its Subsidiaries’ actual or anticipated business, research and development or
existing or future products or services and which are conceived, developed
or
made by Executive (whether alone or jointly with others) while employed by
the
Company or its predecessors and its Subsidiaries (“Work Product”) shall
be deemed to be “work made for hire” (as defined in the Copyright Act, 17
U.S.C.A. §101 et seq., as amended) and owned exclusively by the
Company. To the extent that any Work Product is not deemed to be
“work made for hire” under applicable law, and all right, title and interest in
and to such Work Product have not automatically vested in the Company, Executive
hereby (A) irrevocably assigns, transfers and conveys, and shall assign transfer
and convey, to the full extent permitted by applicable law, all right, title
and
interest in and to the Work Product on a worldwide basis to the Company (or
such
other person or entity as the Company shall designate), without further
consideration, and (B) waives all moral rights in or to all Work Product, and
to
the extent such rights may not be waived, agrees not to assert such rights
against the Company or its respective licensees, successors or
assigns. Executive shall, at the Company’s expense, execute all
documents and perform all actions reasonably requested by the Board (whether
during or after the Employment Period) to establish, confirm, evidence,
effectuate, maintain, protect, enforce, perfect, record, patent or register
any
of the Company’s rights hereunder (including, without limitation, assignments,
consents, powers of attorney and other instruments).
7. Non-Compete,
Non-Solicitation.
(a) In
further consideration of the compensation to be paid to Executive hereunder,
Executive acknowledges and agrees that during the course of Executive’s
employment with the Company and its Subsidiaries Executive shall become
familiar, and during Executive’s employment with the predecessors of the Company
and its Subsidiaries, Executive has become familiar, with the Company’s trade
secrets and with other Confidential Information and that Executive’s services
have been and shall be of special, unique and extraordinary value to the Company
and its Subsidiaries, and therefore, Executive agrees that, during his or her
employment with the Company and for a period of one year thereafter (the
“Non-Compete Period”; provided, that if Executive’s employment is
terminated by the Company with Cause, the Non-Compete Period shall terminate
on
the date of such termination), Executive shall not directly or indirectly
(whether as an owner, partner, shareholder, agent, officer, director, employee,
independent contractor, consultant or otherwise) own any interest in, operate,
invest in, manage, control, participate in, consult with, render services for
(alone or in association with any person or entity), in any manner engage in
any
business activity on behalf of a Competing Business within any geographical
area
in which the Company or its Subsidiaries operates or plan to
operate. Nothing herein shall prohibit Executive from being a passive
owner of not more than 2% of the outstanding stock of any class of a corporation
which is publicly traded, so long as Executive has no active participation
in
the business of such corporation. For purposes of this paragraph,
“Competing Business” means each of the following entities, together with their
respective subsidiaries and affiliates: TJ Maxx, Marshalls, Xxxx
Stores, Xxxxx Mart, Century 21, Xxxxxx Xxxxx, Xxxxxxxxxxxxx Stores and Daffy
Dan’s.
(b) During
the Non-Compete Period, Executive shall not, directly or indirectly, and shall
ensure that any person or entity controlled by Executive does not, (i) induce
or
attempt to induce any employee of the Company or any Subsidiary to leave the
employ of the Company or such Subsidiary, or in any way interfere with the
relationship between the Company or any Subsidiary and any employee thereof,
(ii) hire, directly or through another person, any person (whether or not
solicited) who was an executive of the Company or any Subsidiary at any time
within the one year period before Executive’s termination from employment, (iii)
induce or attempt to induce any customer, supplier, licensee, licensor,
franchisee or other business relation of the Company or any Subsidiary to cease
doing business with the Company or such Subsidiary, engage in or assist any
person or entity in engaging in any Competing Business or in any way interfere
with the relationship between any such customer, supplier, licensee or business
relation and the Company or any Subsidiary (Executive understands that any
person or entity that Executive contacted during the one year period prior
to
the date of Executive’s termination of employment for the purpose of soliciting
sales from such person or entity shall be regarded as a “potential customer” of
the Company and its Subsidiaries as to whom the Company has a protectible
proprietary interest) or (iv) make or solicit or encourage others to make or
solicit directly or indirectly any defamatory statement or communication about
the Company or any of its Subsidiaries or any of their respective businesses,
products, services or activities (it being understood that such restriction
shall not prohibit truthful testimony compelled by valid legal
process).
8. Enforcement.
(a) Executive
acknowledges and agrees that the Company entered into this Agreement in reliance
on the provisions of Sections 5, 6
and 7 and
the enforcement of this Agreement is necessary to ensure the preservation,
protection and continuity of the business of the Company and its Subsidiaries
and other Confidential Information and goodwill of the Company and its
Subsidiaries to the extent and for the periods of time expressly agreed to
herein. Executive acknowledges and agrees that he has carefully read
this Agreement and has given careful consideration to the restraints imposed
upon Executive by this Agreement, and is in full accord as to their necessity
for the reasonable and proper protection of confidential and proprietary
information of the Company and its Subsidiaries now existing or to be developed
in the future. Executive expressly acknowledges and agrees that each
and every restraint imposed by this Agreement is reasonable with respect to
subject matter, time period and geographical area.
(b) Notwithstanding
any provision to the contrary herein, the Company or its Subsidiaries may
pursue, at its discretion, enforcement of Sections 5, 6
and 7 in any court of competent jurisdiction
(each
a “Court”).
(c) Whenever
possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of
this
Agreement is held to be
(d) invalid,
illegal or unenforceable in any respect under any applicable law or rule in
any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained
herein. More specifically, if any Court determines that any of the
covenants set forth in Sections 5, 6
and 7 are
overbroad or unreasonable under applicable law in duration, geographical area
or
scope, the parties to this Agreement specifically agree and authorize such
Court
to rewrite this Agreement to reflect the maximum duration, geographical area
and/or scope permitted under applicable law.
(e) Because
Executive’s services are unique and because Executive has intimate knowledge of
and access to Confidential Information and Work Product, the parties hereto
agree that money damages would not be an adequate remedy for any breach of
Sections 5, 6
and 7,
and any breach of the terms of Sections 5, 6
and 7 would result in irreparable injury and
damage
to the Company and its Subsidiaries for which the Company and its Subsidiaries
would have no adequate remedy at law. Therefore, in the event of a
breach or threatened breach of Sections 5, 6
and 7, the Company or its successors or assigns,
in
addition to any other rights and remedies existing in their favor at law or
in
equity, shall be entitled to specific performance and/or immediate injunctive
or
other equitable relief from a Court in order to enforce, or prevent any
violations of, the provisions hereof (without posting a bond or other security),
without having to prove damages. The terms of this Section 8 shall not prevent the Company
or any of its
Subsidiaries from pursuing any other available remedies for any breach or
threatened breach of this Agreement, including the recovery of damages from
Executive.
9. Executive’s
Representations. Executive hereby represents and warrants to the
Company that (i) the execution, delivery and performance of this Agreement
by
Executive do not and shall not conflict with, breach, violate or cause a default
under any contract, agreement, instrument, order, judgment or decree to which
Executive is a party or by which he is bound, (ii) Executive is not a party
to or bound by any employment agreement, noncompete agreement or confidentiality
agreement with any other person or entity and (iii) upon the execution and
delivery of this Agreement by the Company, this Agreement shall be the valid
and
binding obligation of Executive, enforceable in accordance with its
terms. EXECUTIVE HEREBY ACKNOWLEDGES, AGREES AND REPRESENTS
THAT EXECUTIVE HAS CONSULTED WITH INDEPENDENT LEGAL COUNSEL REGARDING
EXECUTIVE’S RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT AND THE TERMS OF THE
RELEASE ATTACHED AS EXHIBIT A AND THAT
EXECUTIVE FULLY UNDERSTANDS THE TERMS AND CONDITIONS CONTAINED HEREIN AND
THEREIN.
10. Survival. The
last sentence of Section 3(h) and the provisions of Section 3(g)
and Sections 4 through 20,
inclusive, shall survive and continue in
full force in accordance with their terms notwithstanding the termination of
the
Employment Period.
11. Notices. Any
notice provided for in this Agreement shall be in writing and shall be either
personally delivered, sent by reputable overnight courier service with
confirmation of delivery, sent by facsimile (with evidence of transmission)
or
mailed by first class mail, return receipt requested, to the recipient at the
address below indicated:
To
Executive:
Xxxx
X.
Xxxxx
000
Xxxxxx Xxxxx
Xxxxxxxx
Xxxxx, Xxx Xxxxxx 00000
Facsimile
No.: (___)
___-_____
with
a
copy (which shall not constitute notice) to:
[_______________]
[_______________]
[_______________]
Facsimile
No.: (___)
___-_____
To
the
Company:
Burlington
Coat Factory Warehouse Corporation
0000
Xxxxx 000
Xxxxxxxxxx,
Xxx Xxxxxx 00000
Attention:
General Counsel
Facsimile
No.: (000) 000-0000
with
copies (which shall not constitute notice) to:
Xxxx
Capital Partners, LLC
000
Xxxxxxxxxx Xxxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Attention:
Jordan Hitch
Facsimile
No.: (000) 000-0000
Xxxxxxxx
& Xxxxx LLP
000
Xxxx
00xx Xxxxxx
Xxx
Xxxx,
XX 00000
Attention: Xxxx
Xxxxx, Esq.
Facsimile
No.: (000) 000-0000
or
such
other address or to the attention of such other person as the recipient party
shall have specified by prior written notice to the sending
party. Any notice under this Agreement shall be deemed to have been
given when personally delivered, one (1) business day following delivery to
the
overnight courier service, if given by facsimile, when such facsimile is
transmitted to the applicable fax number specified above and the appropriate
facsimile confirmation is received, or if so mailed, on receipt.
12. Complete
Agreement. This Agreement and those other documents expressly
referred to herein embody the complete agreement and understanding among the
parties hereto and supersede and preempt any prior understandings, agreements
or
representations by or among the parties hereto, written or oral, which may
have
related to the subject matter hereof in any way.
13. Counterparts. This
Agreement may be executed in separate counterparts, each of which is deemed
to
be an original and all of which taken together constitute one and the same
agreement.
14. Successors
and Assigns. This Agreement is intended to bind and inure to the
benefit of and be enforceable by Executive, the Company and their respective
heirs, successors and assigns; provided, that the services provided by
Executive under this Agreement are of a personal nature and rights and
obligations of Executive under this Agreement shall not be
assignable.
15. Choice
of Law. All issues and questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed
by,
and construed in accordance with, the laws of the State of New York, without
giving effect to any choice of law or conflict of law rules or provisions
(whether of the State of New York or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of New
York. In furtherance of the foregoing, the internal law of the State
of New York shall control the interpretation and construction of this Agreement,
even though under that jurisdiction’s choice of law or conflict of law analysis,
the substantive law of some other jurisdiction would ordinarily
apply.
16. Consent
to Jurisdiction. EACH OF THE PARTIES IRREVOCABLY SUBMITS TO THE
EXCLUSIVE JURISDICTION OF THE STATE OR FEDERAL COURTS LOCATED IN THE CITY AND
STATE OF NEW YORK IN THE BOROUGH OF MANHATTAN FOR THE PURPOSES OF ANY SUIT,
ACTION OR OTHER PROCEEDING ARISING OUT OF THIS AGREEMENT, ANY RELATED AGREEMENT
OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY. EACH OF THE
PARTIES HERETO FURTHER AGREES THAT SERVICE OF ANY PROCESS, SUMMONS, NOTICE
OR
DOCUMENT BY U.S.
17. REGISTERED
MAIL TO SUCH PARTY’S RESPECTIVE ADDRESS SET FORTH IN SECTION 11 SHALL BE EFFECTIVE SERVICE OF
PROCESS FOR
ANY ACTION, SUIT OR PROCEEDING WITH RESPECT TO ANY MATTERS TO WHICH IT HAS
SUBMITTED TO JURISDICTION IN THIS SECTION 16. EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION TO THE LAYING OF VENUE
OF
ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF THIS AGREEMENT, ANY RELATED
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY IN THE STATE OR
FEDERAL COURTS LOCATED IN THE CITY AND STATE OF NEW YORK IN THE BOROUGH OF
MANHATTAN AND HEREBY AND THEREBY FURTHER IRREVOCABLY AND UNCONDITIONALLY WAIVES
AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION, SUIT
OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
18. Waiver
of Jury Trial. AS A SPECIFICALLY BARGAINED FOR INDUCEMENT FOR
EACH OF THE PARTIES HERETO TO ENTER INTO THIS AGREEMENT AFTER HAVING THE
OPPORTUNITY TO CONSULT WITH COUNSEL, EACH PARTY HERETO EXPRESSLY WAIVES THE
RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING TO OR ARISING
IN
ANY WAY FROM THIS AGREEMENT OR THE MATTERS CONTEMPLATED HEREBY.
19. Amendment
and Waiver. The provisions of this Agreement may be amended or
waived only with the prior written consent of the Company (as approved by the
Board) and Executive, and no course of conduct or course of dealing or failure
or delay by any party hereto in enforcing or exercising any of the provisions
of
this Agreement (including, without limitation, the Company’s right to terminate
the Employment Period for Cause) shall affect the validity, binding effect
or
enforceability of this Agreement or be deemed to be an implied waiver of any
provision of this Agreement.
20. Key
Man Life Insurance. The Company may apply for and obtain and
maintain a key man life insurance policy in the name of Executive together
with
other executives of the Company in an amount deemed sufficient by the Board,
the
beneficiary of which shall be the Company. Executive shall submit to
physical examinations and answer reasonable questions in connection with the
application and, if obtained, the maintenance of, as may be required, such
insurance policy.
21. Executive’s
Cooperation. During the Employment Period and thereafter,
Executive shall cooperate with the Company and its Subsidiaries in any internal
investigation or administrative, regulatory or judicial proceeding as reasonably
requested by the Company (including, without limitation, Executive being
available to the Company upon reasonable notice for interviews and factual
investigations, appearing at the Company’s request to give testimony without
requiring service of a subpoena or other legal process, volunteering to the
Company all pertinent information and turning over to the Company all relevant
documents which are or may come into Executive’s possession, all at times and on
schedules that are reasonably consistent with Executive’s other permitted
activities and commitments). In the event the Company requires
Executive’s cooperation in accordance with this section after the termination of
the Employment Period, the Company shall reimburse Executive for all of
Executive’s reasonable costs and expenses incurred, in connection therewith,
plus pay Executive a reasonable amount per day for Executive’s time
spent.
22. Initial
Option Grant and Purchase of Equity Executive shall be entitled
to an option grant of 40,000 Units of the securities of Burlington Coat Factory
Holdings, Inc. (“Holdings”), each Unit consisting of nine shares of Class A
Common Stock and one share of Class L Common Stock of Holdings, as such
securities may be constituted at the time of grant or modified by Holdings
from
time to time. Such grant shall be in three tranches. The
first tranche shall consist of 13,333 Units and be exercisable at the fair
market value of the underlying securities on the date of the grant as determined
by the Board of Directors of the Company (or its Compensation Committee); the
second tranche shall consist of 13,333 Units and shall be exercisable at $180
per Unit; and the third tranche shall consist of 13,334 Units and shall be
exercisable at $270 per Unit. Such grant shall also be subject to the
terms and conditions of the plan under which such options may be granted and
the
terms and conditions of the grant award. In addition, for a period of
sixty days commencing with the Commencement Date, Executive shall have the
opportunity to purchase equity in Holdings in an amount to be mutually agreed
at
the fair market value thereof as determined by the board of directors of
Holdings.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first written above.
BURLINGTON
COAT FACTORY WAREHOUSE CORPORATION
By: _/s/
Xxxx Nesci_________________
Name:
Title:
_/s/
Xxxx
X. Xxxxx, Xx.___________________
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EXECUTIVE:
Xxxx X. Xxxxx, Xx.
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Exhibit
A
GENERAL
RELEASE
I,
[__________], in consideration of and subject to the performance by Burlington
Coat Factory Warehouse Corporation, a Delaware corporation (together with its
subsidiaries, the “Company”), of its obligations with respect to the
payment of severance pursuant to Sections 4(b)(i)(3), 4(b)(i)(4)
and 4(b)(i)(5) of the Employment Agreement,
dated as of [ ], 2007
(the “Agreement”) and this General Release (the “General
Release”), do hereby release and forever discharge as of the date hereof the
Company, its subsidiaries and affiliates and all present and former directors,
officers, agents, representatives, employees, successors and assigns of the
Companies and their subsidiaries and affiliates and the Company’s direct and
indirect owners (collectively, the “Released Parties”) to the extent
provided below.
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1.
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I
understand that any payments paid to me under Sections 4(b)(i)(3), 4(b)(i)(4)
and 4(b)(i)(5) of the Agreement
represent consideration for signing this General Release and are
not
salary or wages to which I was already entitled. I understand and
agree
that I will not receive the payments specified in Sections 4(b)(i)(3), 4(b)(i)(4)
and 4(b)(i)(5) of the Agreement unless
I execute this General Release and do not revoke this General Release
within the time period permitted hereafter or breach this General
Release
or Sections 5, 6
or 7 of the Agreement. Such
payments will not be considered compensation for purposes of any
employee
benefit plan, program, policy or arrangement maintained or hereafter
established by the Company or its affiliates. I also
acknowledge and represent that I have received all salary, wages
and
bonuses that I am entitled to receive (as of the date hereof) by
virtue of
any employment by the Company.
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2.
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Except
as provided in paragraphs 4, 12 and 13 below and except for the provisions
of the Agreement which expressly survive the termination of my employment
with the Company, I knowingly and voluntarily (for myself, my heirs,
executors, administrators and assigns) release and forever discharge
the
Company and the other Released Parties from any and all claims, suits,
controversies, actions, causes of action, cross-claims, counter-claims,
demands, debts, compensatory damages, liquidated damages, punitive
or
exemplary damages, other damages, claims for costs and attorneys’ fees, or
liabilities of any nature whatsoever in law and in equity, both past
and
present (through the date this General Release becomes effective
and
enforceable) and whether known or unknown, suspected, or claimed
against
the Company or any of the Released Parties which I, my spouse, or
any of
my heirs, executors, administrators or assigns, may have, which arise
out
of or are connected with my employment with, or my separation or
termination from, the Company (including, but not limited to, any
allegation, claim or violation, arising under: Title VII of the Civil
Rights Act of 1964, as amended; the Civil Rights Act of 1991; the
Age
Discrimination in Employment Act of 1967, as amended (including the
Older
Workers Benefit Protection Act); the Equal Pay Act of 1963, as amended;
the Americans with Disabilities Act of 1990; the Family and Medical
Leave
Act of 1993; the Worker Adjustment Retraining and Notification Act;
any
applicable Executive Order Programs; the Fair Labor Standards Act;
or
their state or local counterparts; or under any other federal, state
or
local civil or human rights law, or under any other local, state,
or
federal law, regulation or ordinance; or under any public policy,
contract
or tort, or under common law; or arising under any policies, practices
or
procedures of the Company; or any claim for wrongful discharge, breach
of
contract, infliction of emotional distress, defamation; or any claim
for
costs, fees, or other expenses, including attorneys’ fees incurred in
these matters) (all of the foregoing collectively referred to herein
as
the “Claims”).
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3.
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I
represent that I have made no assignment or transfer of any right,
claim,
demand, cause of action, or other matter covered by paragraph 2
above.
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4.
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I
agree that this General Release does not waive or release any rights
or
claims that I may have under the Age Discrimination in Employment
Act of
1967 which arise after the date I execute this General Release. I
acknowledge and agree that my engagement and employment by, and separation
from employment with the Company in compliance with the terms of
the
Agreement shall not serve as the basis for any claim or action (including,
without limitation, any claim under the Age Discrimination in Employment
Act of 1967).
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5.
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In
signing this General Release, I acknowledge and intend that it shall
be
effective as a bar to each and every one of the Claims hereinabove
mentioned or implied. I expressly consent that this General Release
shall
be given full force and effect according to each and all of its express
terms and provisions, including those
relating
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6.
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to
unknown and unsuspected Claims (notwithstanding any state statute
that
expressly limits the effectiveness of a general release of unknown,
unsuspected and unanticipated Claims), if any, as well as those relating
to any other Claims hereinabove mentioned or implied. I acknowledge
and
agree that this waiver is an essential and material term of this
General
Release and that without such waiver the Company would not have agreed
to
make any payments pursuant to the terms of Sections 4(b)(i)(3), 4(b)(i)(4)
and 4(b)(i)(5) of the
Agreement. I further agree that in the event I should bring a
Claim seeking damages against the Company or any other Released Party,
or
in the event I should seek to recover against the Company or any
other
Released Party in any Claim brought by a governmental agency on my
behalf,
this General Release shall serve as a complete defense to such Claims.
I
further agree that I am not aware of any pending charge or complaint
of
the type described in paragraph 2 as of the execution of this General
Release.
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7.
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I
agree that neither this General Release, nor the furnishing of the
consideration for this General Release, shall be deemed or construed
at
any time to be an admission by the Company, any Released Party or
myself
of any improper or unlawful
conduct.
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8.
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I
agree that I will forfeit all amounts payable by the Company pursuant
to
Sections 4(b)(i)(3), 4(b)(i)(4)
and 4(b)(i)(5) of the Agreement if
I
challenge the validity of this General Release. I also agree
that if I violate this General Release by suing the Company or the
other
Released Parties, I will return all severance payments received by
me
pursuant to Sections 4(b)(i)(3), 4(b)(i)(4)
and 4(b)(i)(5) of the
Agreement.
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9.
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I
agree that this General Release is confidential and agree not to
disclose
any information regarding the terms of this General Release, except
to my
immediate family and any tax, legal or other advisor I have consulted
regarding the meaning or effect hereof or as required by law, and
I will
instruct each of the foregoing not to disclose the same to
anyone.
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10.
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Any
non-disclosure provision in this General Release does not prohibit
or
restrict me (or my attorney) from responding to any inquiry about
this
General Release or its underlying facts and circumstances by the
Securities and Exchange Commission (SEC), the National Association
of
Securities Dealers, Inc. (NASD), any other self-regulatory organization
or
governmental entity.
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11.
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I
agree that, as of the date hereof, I have returned to the Company
any and
all property, tangible or intangible, relating to its business, which
I
possessed or had control over at any time (including, but not limited
to,
company-provided credit cards, building or office access cards, keys,
computer equipment, manuals, files, documents, records, software,
customer
data base and other data) and that I shall not retain any copies,
compilations, extracts, excerpts, summaries or other notes of any
such
manuals, files, documents, records, software, customer data base
or other
data other than such documents as are generally or publicly known;
provided, that such documents are not known as a result of my
breach or actions in violation of the Agreement or this General
Release.
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12.
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Notwithstanding
anything in this General Release to the contrary, this General Release
shall not relinquish, diminish, or in any way affect any rights or
claims
arising out of any breach by the Company or by any Released Party
of the
Agreement after the date hereof or any other rights or claims I may
have
against the Company or any Released Party arising after the date
hereof.
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13.
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Whenever
possible, each provision of this General Release shall be interpreted
in
such manner as to be effective and valid under applicable law, but
if any
provision of this General Release is held to be invalid, illegal
or
unenforceable in any respect under any applicable law or rule in
any
jurisdiction, such invalidity, illegality or unenforceability shall
not
affect any other provision or any other jurisdiction, but this General
Release shall be
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reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.
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14.
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BY
SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE THAT:
I
HAVE
READ IT CAREFULLY;
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(i)
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I
UNDERSTAND ALL OF ITS TERMS AND KNOW THAT I AM GIVING UP IMPORTANT
RIGHTS,
INCLUDING BUT NOT LIMITED TO, RIGHTS UNDER THE AGE DISCRIMINATION
IN
EMPLOYMENT ACT OF 1967, AS AMENDED, TITLE VII OF THE CIVIL RIGHTS
ACT OF
1964, AS AMENDED; THE EQUAL PAY ACT OF 1963 AND THE AMERICANS WITH
DISABILITIES ACT OF 1990;
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(ii)
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I
VOLUNTARILY CONSENT TO EVERYTHING IN
IT;
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(iii)
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I
HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING IT
AND I
HAVE DONE SO OR, AFTER CAREFUL READING AND CONSIDERATION I HAVE CHOSEN
NOT
TO DO SO OF MY OWN VOLITION;
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(iv)
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I
HAVE HAD AT LEAST 21 DAYS (OR 45 DAYS, AS REQUIRED BY LAW) FROM THE
DATE
OF MY RECEIPT OF THIS RELEASE SUBSTANTIALLY IN ITS FINAL FORM ON
_______________ __, _____ TO CONSIDER IT AND THE CHANGES MADE SINCE
THE
_______________ __, _____ VERSION OF THIS RELEASE ARE NOT MATERIAL
AND
WILL NOT RESTART THE REQUIRED 21-DAY (OR 45-DAY, AS APPLICABLE)
PERIOD;
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(v)
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ANY
CHANGES TO THE AGREEMENT SINCE [_______, 2007] EITHER ARE
NOT MATERIAL OR WERE MADE AT MY
REQUEST.
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(vi)
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I
UNDERSTAND THAT I HAVE SEVEN DAYS AFTER THE EXECUTION OF THIS RELEASE
TO
REVOKE IT AND THAT THIS RELEASE SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE
UNTIL THE REVOCATION PERIOD HAS EXPIRED WITHOUT NOTICE OF ANY SUCH
REVOCATION HAVING BEEN RECEIVED BY THE
COMPANY;
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(vii)
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I
HAVE SIGNED THIS GENERAL RELEASE KNOWINGLY AND VOLUNTARILY AND WITH
THE
ADVICE OF ANY COUNSEL RETAINED TO ADVISE ME WITH RESPECT TO IT;
AND
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(viii)
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I
AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT BE AMENDED,
WAIVED, CHANGED OR MODIFIED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED
BY
AN AUTHORIZED REPRESENTATIVE OF THE COMPANY AND BY
ME.
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DATE: _____________ ____________________________________
