AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
Exhibit
10.1
AMENDMENT
NO. 1
TO
AMENDMENT NO. 1 (“Amendment”)
effective as of the 1st day of
January, 2009 to the employment agreement (the “Employment Agreement”) dated as
of May 2, 2002, by and between The Dress Barn, Inc. (the “Company”) and
Xxxxx X. Xxxxx (the “Executive”).
WHEREAS, the Company and the
Executive have previously entered into the Employment Agreement;
and
WHEREAS, the Company and the
Executive desire to amend the Employment Agreement.
NOW, THEREFORE, solely for the
purpose of making changes that are necessary or desirable to reflect Section
409A of the Internal Revenue Code of 1986, as amended, effective as of the date
set forth above, the Employment Agreement is hereby amended as
follows:
1. The
last sentence of Section 6(a) and the second sentence of Section 7(b) of the
Employment Agreement are hereby amended to include the following at the end
thereof:
“,
subject to the Delay Period under Section 11(b) of the Agreement”
2. The
second sentence of Section 6(b) of the Employment Agreement is hereby amended to
read as follows:
“In the
event Executive’s employment is terminated by reason of a Notice of Termination
following a Change in Control, Dress Barn shall pay the Executive an amount
equal to two times the Base Salary at the rate in effect on the date of the
Notice of Termination, which amount shall be payable pro-ratably over a period
equal to what would have otherwise been the period remaining in the applicable
term, but not less than one year, subject to the Delay Period under Section
11(b) of the Agreement.”
3. The
Employment Agreement is hereby amended to include a new Section 11 immediately
following Section 10 thereof to read as follows:
“11. Code
Section 409A.
(a) Although Dress Barn does
not guarantee to the Executive any particular tax treatment relating to the
payments and benefits paid in accordance with the terms and conditions of this
Agreement, it is the intent of the parties that payments and benefits under this
Agreement comply with or be exempt from Section 409A of the Internal Revenue
Code of 1986, as amended, and the regulations and guidance promulgated
thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum
extent permitted, this Agreement shall be interpreted to be in compliance
therewith. The parties agree to reasonably cooperate to take all
further actions necessary to satisfy the requirements of Code Section
409A.
(b) A
termination of employment shall not be deemed to have occurred for purposes of
any provision of this Agreement providing for the payment of any amounts or
benefits that are considered “nonqualified deferred compensation” under Code
Section 409A upon or following a termination of employment unless such
termination is also a “separation from service” within the meaning of Code
Section 409A and, for purposes of any such provision of this Agreement,
references to a “termination,” “termination of employment” or like terms shall
mean “separation from service.” If the Executive is deemed on the
date of termination to be a “specified employee” within the meaning of that term
under Code Section 409A(a)(2)(B), then with regard to any payment or the
providing of any benefit made subject to this Section 11(b), to the extent
required to be delayed in compliance with Code Section 409A(a)(2)(B), such
payment or benefit shall be made or provided at the date which is the later of
(i) eighteen (18) months following January 1, 2009 and (ii) the earlier of (A)
expiration of the six (6)-month period measured from the date of the Executive’s
“separation from service,” and (B) the date of the Executive’s death (the “Delay
Period”). Upon the expiration of the Delay Period, all payments and
benefits delayed pursuant to this provision (whether they would have otherwise
been payable in a single sum or in installments in the absence of such delay)
shall be paid or reimbursed to the Executive in a lump sum on the first business
day following the end of the Delay Period, and any remaining payments and
benefits due under this Agreement shall be paid or provided in accordance with
the normal payment dates specified for them herein.
(c) All
expenses or other reimbursements paid pursuant to this Agreement that are
taxable income to the Executive shall be paid at the time provided by Dress
Barn’s applicable policies and customary practices, but in no event shall be
paid later than the end of the calendar year next following the calendar year in
which the Executive incurs such expense. With regard to any provision
herein that provides for reimbursement of costs and expenses or in-kind
benefits, except as permitted by Section 409A, (i) the right to reimbursement or
in-kind benefits shall not be subject to liquidation or exchange for another
benefit, (ii) the amount of expenses eligible for reimbursement, of in-kind
benefits, provided during any taxable year shall not affect the expenses
eligible for reimbursement, or in-kind benefits to be provided, in any other
taxable year, provided that the foregoing clause (ii) shall not be violated with
regard to expenses reimbursed under any arrangement covered by Code Section
105(b) solely because such expenses are subject to a limit related to the period
the arrangement is in effect and (iii) such payments shall be made on or before
the last day of the Executive’s taxable year following the taxable year in which
the expense occurred.”
IN WITNESS WHEREOF, the
undersigned has caused this Amendment to be executed this 2 day of June,
2010.
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EXECUTIVE
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/s/
Xxxxx X. Xxxxx
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Xxxxx
X. Xxxxx
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THE
DRESS BARN, INC.
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By:
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/s/
Xxxxxx Xxxxxxx
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Title:
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Executive
Vice President and
Chief
Financial Officer
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