EXHIBIT 10.2.17
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") dated as of March 12, 2003 between
Charming Shoppes, Inc., a Pennsylvania corporation (the "Company") and Xxxx Xxxx
("Executive").
1. Employment. The Company hereby employs Executive and Executive hereby
accepts such employment and agrees to perform her duties and
responsibilities hereunder, in accordance with the terms and conditions
hereinafter set forth.
1.1 Employment Term. The term of this Agreement (the "Employment Term") shall
commence April 1, 2003 and shall continue until and end on March 31, 2004,
unless terminated prior thereto in accordance with Section 8 hereof.
1.2 Duties and Responsibilities.
(a) During the Employment Term, Executive shall serve as Executive Vice
President - Sourcing of the Company and shall perform all duties and accept
all responsibilities incidental to such position or as may be assigned to
her by the Company's Chief Executive Officer or its Board of Directors, and
she shall cooperate fully with the Board of Directors and other executive
officers of the Company. During the Employment Term, Executive shall also
be available to perform the aforementioned duties and responsibilities for
subsidiaries or divisions of the Company as assigned by the Chief Executive
Officer. Executive will be assigned to perform these duties outside the
United States and will be assigned initially to perform these duties in
Hong Kong.
(b) Executive represents to the Company that she is not subject or a party
to any employment agreement, non-competition covenant, non-disclosure
agreement or other agreement, covenant, understanding or restriction which
would prohibit Executive from executing this Agreement and performing her
duties and responsibilities hereunder, or which would in any manner,
directly or indirectly, limit or affect the duties and responsibilities
which may now or in the future be assigned to Executive by the Company or
the scope of assistance to which she may now or in the future provide to
subsidiaries or divisions of the Company.
1.3 Extent of Service. During the Employment Term, Executive agrees to use her
best efforts to carry out her duties and responsibilities under Section 1.2
hereof and to devote her full time, attention and energy thereto. Except as
provided in Section 7 hereof, the foregoing shall not be construed as
preventing Executive
from making investments in other businesses or enterprises in compliance
with Business Conduct Policies that may be issued by the Company from time
to time (a copy of the Company's current Business Conduct Policy is
attached hereto as Exhibit "A") provided that Executive agrees not to
become engaged in any other business activity which may interfere with her
ability to discharge her duties and responsibilities to the Company.
Executive further agrees not to work either on a part time or independent
contracting basis for any other business or enterprise during the
Employment Term without the prior written consent of the Chief Executive
Officer of the Company.
1.4 Base Compensation. For all the services rendered by Executive hereunder,
the Company shall pay Executive an annual salary at the rate of Four
Hundred Thousand U.S. Dollars ($400,000.00) for each full year of the
Employment Term, plus such additional amounts, if any, as may be approved
by the Company's Board of Directors, less withholding required by law or
agreed to by Executive, payable in installments at such times as the
Company customarily pays its other senior officers (but in any event no
less often than monthly). The Company agrees that the Executive's salary
will be reviewed at least annually by the Company's Board of Directors to
determine if an increase is appropriate, which increase shall be in the
sole discretion of the Company's Board of Directors.
1.5 Performance Compensation. In addition to annual base salary, beginning with
the fiscal year commencing February 3, 2003, Executive shall be eligible to
receive additional compensation ("Performance Compensation") within ninety
(90) days of the end of each of the Company's fiscal years during the term
of this Agreement, including fiscal year ending January 31, 2004, if the
Company achieves certain performance criteria established under the
Company's Executive Incentive Plan ("EIP"). The formula and standards for
determining Executive's Performance Compensation shall be determined by the
Compensation Committee of the Board of Directors but may not exceed 100% of
Executive's annual base salary for the applicable year.
1.6 Executive Benefits. During the Executive's employment by the Company:
(a) Vacation and Holidays: Executive shall be eligible for at least four
(4) weeks paid vacation per year (20 days) and shall be eligible for time
off with pay for all public holidays in Hong Kong or in such other location
into which the principal place of business of the Company's sourcing
operation may be relocated;
(b) Housing Allowance: The Company will pay Executive a housing allowance
of Fifteen Thousand Three Hundred Thirty Three and 33/100 U.S. Dollars
($15,333.33) per month during Executive's employment by the Company;
(c) Car: The Company will provide for Executive's use an automobile, the
make and year to be agreed upon by the Company and the Executive, and will
defray all operating costs regarding same including annual license fees,
business parking charges, gasoline, tunnel fees, maintenance, repairs and
insurance;
(d) Club Fees: The Company will pay Executive's membership fees to the
Royal Hong Kong Jockey Club and The Ladies Recreation Club or any other
club which Executive chooses to substitute therefore with prior approval by
the Company;
(e) Medical, Dental and Disability Insurance: Executive shall be eligible
to participate in the Company's medical plans and disability insurance
programs available to other Company associates in the Company's sourcing
operation. If Executive opts out of medical plan coverage, the Company will
contribute to the cost Executive incurs for individual health care coverage
to the same extent the Company would have contributed to the cost of group
insurance
(f) Life Insurance: Executive shall be eligible to participate in the
Company's life insurance program;
(g) Retirement Plans: Executive shall have the right to participate in any
retirement plans (qualified and non-qualified), 401(k) plan, profit sharing
plan, or any other pension plan adopted by the Company pursuant to the
terms of any such plan;
(h) Travel Insurance: Executive shall be covered by the Company's travel
insurance policy at the level of One Million U.S. Dollars ($1,000,000.00);
(i) Home Leave: The Company will provide Executive with one first-class
round-trip airline ticket per year to Europe or the United States in
connection with Annual Leave, which, when possible, shall coincide with a
business trip;
(j) Business Expenses: The Company will reimburse Executive for all
reasonable business expenses incurred by Executive in the performance of
her assigned duties and responsibilities;
(k) Tax Preparation: The Company will provide Executive with outside tax
counsel at the Company's expense to assist in preparing Executive's tax
returns.
(l) Relocation Expenses: The Company will reimburse Executive for
repatriation expenses of Executive, including a single air ticket and
expenses for insuring and shipping household goods to her home country,
following any termination of Executive's employment hereunder for whatever
reason except any termination by the Company for cause.
2. Termination of Employment and Severance. The Company may terminate this
Agreement and Executive's employment without liability to Executive at any
time during the term hereof upon immediate written notice to Executive for
cause, which for the purposes of this Agreement shall mean: (i) a material
breach by Executive of the provisions of this Agreement; (ii) the
commission by Executive of fraud against the Company or the conviction of
Executive for aiding or abetting, or the commission of, a felony or of a
fraud or a crime involving moral turpitude or a business crime; or (iii)
the possession or use of illegal drugs or prohibited substances, the
excessive drinking of alcoholic beverages, or the appearance (reasonably
determined) during hours of employment of being under the influence of such
drugs, substances or alcohol, which materially impairs Executive's ability
to perform her duties hereunder.
The Company may terminate this Agreement and Executive's employment at any
time during the term hereof upon prior written notice to Executive for any
reason that does not constitute cause as defined above provided that the
Company pays to Executive the lesser of the amount to be paid during the
remainder of the term hereof or one year's base salary (severance) at the
rate in effect on the date of any such termination, such sum to be paid in
equal weekly, monthly or quarterly installments or in one installment
within thirty (30) days of any such termination, at the Company's
discretion, and continues those benefits to be paid to Executive by the
Company under Section 1.6, paragraphs (a) through (l) above for the amount
of time covered by said severance.
3. In the event of the death of Executive during the term hereof, this
Agreement and the employment of Executive hereunder shall terminate and
come to an end on the date of the death of the Executive. The estate of
Executive shall be entitled to receive, and the Company agrees to pay, the
base salary of Executive computed up to the end of the month in which death
occurred and an amount equal to all other expenses incurred by the
Executive for which the Company is responsible pursuant to Section 1.6.
4. In the event that Executive shall, because of illness or incapacity,
physical or mental, be unable to perform the duties and services to be
performed by her hereunder for a consecutive period of more than four (4)
months, the Company shall not be obligated to pay the compensation of
Executive during the period of illness or incapacity in excess of four (4)
months and may terminate this Agreement without liability after the
expiration of such four (4) month period.
5. Developments. All developments, including inventions, whether patentable or
otherwise, trade secrets, discoveries, improvements, ideas and writings
which either directly or indirectly relate to or may be useful in the
business of the Company or any of its affiliates (the "Developments") which
Executive, either by herself or in conjunction with any other person or
persons, has conceived, made, developed, acquired or acquired knowledge of
during her employment by the Company or which Executive, either by herself
or in conjunction with any other person or persons, shall conceive, make,
develop, acquire or acquire knowledge
of during the Employment Term or at any time thereafter during which she is
employed by the Company, shall become and remain the sole and exclusive
property of the Company.
Executive hereby assigns, transfers and conveys and agrees to assign,
transfer and convey, all of her right, title and interest in and to any and
all such Developments and to disclose fully as soon as practicable, in
writing, all such Developments to the Chief Executive Officer of the
Company. At any time and from time to time, upon the request and at the
expense of the Company, Executive will execute and deliver any and all
instruments, documents and papers, give evidence and do any and all other
acts which, in the opinion of counsel for the Company, are or may be
necessary or desirable to document such transfer or to enable the Company
to file and prosecute applications for and to acquire, maintain and enforce
any and all patents, trademark registrations or copyrights under United
States or foreign law with respect to any such Developments or to obtain
any extension, validation, re-issue, continuance or renewal of any such
patent, trademark or copyright. The Company will be responsible for the
preparation of any such instruments, documents and papers and for the
prosecution of any such proceedings and will reimburse Executive for all
reasonable expenses incurred by her in compliance with the provisions of
this Section.
6. Confidential Information. Executive recognizes and acknowledges that by
reason of her employment and service to the Company, she has had and will
continue to have access to confidential information of the Company and its
affiliates, including, without limitation, information and knowledge
pertaining to products and services offered, inventions, innovations,
designs, ideas, plans, trade secrets, proprietary information,
manufacturing, packaging, advertising, distribution and sales methods and
systems, sales and profit figures, customer and client lists, and
relationships between the Company and its affiliates and dealers,
distributors, wholesalers, customers, clients, suppliers and others who
have business dealings with the Company and its affiliates ("Confidential
Information"). Executive acknowledges that such Confidential Information is
a valuable and unique asset and covenants that she will not, either during
or after the Employment Term of this Agreement, disclose any such
Confidential Information to any person for any reason whatsoever (except as
her duties as Executive Vice President - Sourcing may require ) without the
prior written authorization of the Company's Chief Executive Officer,
unless such information is in the public domain through no fault of
Executive or except as may be required by law.
7. Non-Competition.
(a) During the Employment Term, Executive will not, unless acting pursuant
hereto or with the prior written consent of the Chief Executive
Officer of
the Company, directly or indirectly, own, manage, operate, join,
control, finance or participate in the ownership, management,
operation, control or financing of, or be connected as an officer,
director, employee, partner, principal, agent, representative,
consultant or otherwise with or use or permit her name to be used in
connection with, any business or enterprise in competition with the
Company;
(b) The foregoing restriction shall not be construed to prohibit the
ownership by Executive of not more than five (5%) percent of any class
of securities of any corporation which is engaged in any of the
foregoing businesses having a class of securities registered pursuant
to the Securities Exchange Act of 1934, provided that such ownership
represents a passive investment and that neither Executive nor any
group of persons including Executive in any way, either directly or
indirectly, manages or exercises control of any such corporation,
guarantees any of its financial obligations, otherwise takes any part
in its business, other than exercising her rights as a shareholder, or
seeks to do any of the foregoing.
8. No Solicitation. Executive agrees that, for a period of one (1) year after
the employment of Executive by the Company or any of its affiliates or
subsidiaries has ended (whether or not such employment is pursuant to this
Agreement), she will not, either directly or indirectly, solicit the
employment of any person who was employed by the Company or any of its
affiliates or subsidiaries on a full or part-time basis at the time of the
Executive's termination unless such person was involuntarily discharged by
the Company or such affiliate or subsidiary, without the prior written
consent of the Company's Executive Vice President - Human Resources.
9. Termination. This Agreement shall terminate on March 31, 2004 unless
terminated earlier under Sections 2, 3 or 4 above.
10. Governing Law. This Agreement shall be governed and interpreted under the
laws of the Commonwealth of Pennsylvania without giving effect to any
conflicts of law provisions.
11. Notices. All notices and other communications required or permitted
hereunder or necessary or convenient in connection herewith shall be in
writing and shall be deemed to have been given when hand delivered or
within seven (7) days of mailing by registered or certified mail, as
follows (provided that notice of change of address shall be deemed given
only when received): If to the Company, to :
Dorrit Bern
President/Chief Executive Officer
Charming Shoppes, Inc.
000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
With a required copy to: Xxxxxxx X. XxXxxxxx, Esquire
Executive Vice President - Human Resources
Charming Shoppes, Inc.
000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
If to Executive, to Xxxx Xxxx
Apt. XX00X, Xxxxx 00, Xxxxxx Xxxx
31 Xx Xxx Road
Tai Po, N.T.
Hong Kong
With a required copy to: X.X. Xxxxxx
c/o Xxxxxxx Xxxxx
Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0Xx
or to such other names or addresses as the Company or Executive, as the case may
be, shall designate by notice to each other person entitled to receive notices
in the manner specified in this Section.
12. Contents of Agreement; Amendment and Assignment. Executive Severance
Agreement
(a) This Agreement supersedes all prior agreements between the parties
except for the Charming Shoppes, Inc. Executive Severance Agreement
between the parties dated July 15, 1999 attached hereto as Exhibit
"B", which is incorporated herein and sets forth the entire
understanding among the parties hereto with respect to the subject
matter hereof and cannot be changed, modified, extended or terminated
except upon written amendment approved by the Board of Directors of
the Company and executed on its behalf by a duly authorized officer.
Without limitation, nothing in this Agreement shall be construed as
giving Executive any right to be retained in the employ of the Company
beyond the expiration of the Employment Term until such time (if at
all) that Executive enters into a new written Employment Agreement
with the Company, and Executive specifically acknowledges that she
shall be an employee-at-will of the Company thereafter, and thus
subject to discharge by the Company with or without cause and without
compensation of any nature;
(b) Executive acknowledges that from time to time, the Company may
establish, maintain and distribute employee manuals or handbooks or
personnel policy manuals, and officers or other representatives of the
Company may make written or oral statements relating to personnel
policies and procedures. Such manuals, handbooks and statements are
intended only for general guidance. No policies, procedures or
statements of any nature by or on behalf of the Company (whether
written or oral, and whether or not contained in any employee manual
or handbook or personnel policy manual), and no acts or practices of
any nature, shall be construed to modify this Agreement or to create
express or implied obligations of any nature to Executive.
(c) All of the terms and provisions of this Agreement shall be binding
upon and inure to the benefit of and be enforceable by the respective
heirs, executors, administrators, legal representatives, successors
and assigns of the parties hereto, except that the duties and
responsibilities of Executive hereunder are of a personal nature and
shall not be assignable or delegatable in whole or in part by
Executive.
13. Severability. If any provision of this Agreement or application thereof to
anyone or under any circumstance is adjudicated to be invalid or
unenforceable in any jurisdiction, such invalidity or unenforcability shall
not affect any other provision or application of this Agreement which can
be given effect without the invalid or unenforceable provision or
application and shall not invalidate or render unenforceable such provision
or application in any other jurisdiction.
14. Miscellaneous. All section headings are for convenience only. This
Agreement may be executed in several counterparts, each of which is an
original. It shall not be necessary in marking proof of this Agreement or
any counterpart to produce or account for any of the other counterparts.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have
executed this Agreement as of the date first above written.
FOR THE COMPANY: FOR THE EXECUTIVE:
__________________________________________ __________________________
Xxxxxxx X. XxXxxxxx Xxxx Xxxx
Executive Vice President - Human Resources
Date: _______________________ Date: ___________________
WITNESS: WITNESS:
_____________________________ __________________________
