SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.1
SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”) is entered into and
made effective as of October 1, 2005, by and between THE MEN’S WEARHOUSE, INC., a Texas corporation
(the “Company”), and XXXXX X. XXXXX (“Employee”), amending and restating the Employment Agreement
dated February 3, 2002, as amended and restated by the Amended and Restated Employment Agreement
dated February 3, 2003 (the “First Amended and Restated Agreement”).
WHEREAS, the Company and Employee desire to amend the First Amended and Restated Agreement to
restate it in its entirety to read as set forth herein;
NOW THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth,
the Company and Employee hereby agree to amend and restate the First Amended and Restated Agreement
to read as follows:
1. Employment and Duties. The Company hereby agrees to employ Employee as Vice
Chairman of the Board, and Employee hereby accepts such employment and agrees to serve the Company
in such capacity on the terms and subject to the conditions set forth in this Agreement. Subject
to the ultimate direction and control of the Chairman of the Board and Chief Executive Officer and
to the Company’s Board of Directors, Employee shall assist the Chairman of the Board and Chief
Executive Officer with the strategic direction of the Company and assist with the implementation of
the business plan of the Company and, in connection therewith, will interact with and provide
guidance to the other executive officers of the Company. During his employment hereunder and to
and including the Conversion Date (as hereinafter defined), Employee shall devote his full business
time, energy, and ability principally to the business and interests of the Company and shall not,
without the Company’s prior written consent, render to others services of any kind for
compensation, or engage in any other business activity that would materially interfere with the
performance of his duties under this Agreement. After the Conversion Date, Employee may render
services for compensation and engage in other business activity without the prior consent of the
Company, provided rendering such services or engaging in such activity does not violate Section 11
or 12 of this Agreement and provided that Employee must continue to devote more of his working time
to the Company than to any other single business or group of related businesses.
2. Compensation and Benefits of Employment.
(a) As compensation for the services to be rendered by Employee hereunder, the Company shall
pay to Employee a base annual salary (“Annual Salary”) of (i) $560,000.00 per year, in equal
installments in accordance with the customary payroll practices of the Company to and including
February 6, 2006 (or such earlier date as shall be agreed to in writing referring to this Agreement
and executed by the Company and the Employee, the “Conversion Date”) and thereafter (ii) $300,000
per year. The parties shall comply with all applicable withholding requirements in connection with
all compensation payable to Employee. The Company’s Board of Directors may, in its sole
discretion, review and adjust upward Employee’s Base Salary (as defined below) from time to time,
but no downward adjustment in Employee’s Base Salary may be made during the term of this Agreement.
(b) To and including the Conversion Date, Employee shall receive annually a stipulated amount
of up to $40,000 (“Discretionary Amount” and together with Annual Salary, collectively referred to
herein as “Base Salary”) which will be expended by the Company on behalf of Employee to cover, or
paid to Employee to reimburse Employee for, various business-related expenses such as monthly dues
for country, luncheon or social clubs, automobile expenses, upgraded travel beyond that of the
Company’s regular employee policy and other personal travel expenses not covered by Section 3
hereof and financial and tax planning expenses. The Company agrees that Employee shall be entitled
to reimbursement of all such business-related expenses incurred by Employee; provided, however,
that payment of such reimbursement shall be made only against proper receipts or other documentary
evidence of such expenses. In the event that less than $40,000 is expended during the course of
any one-year period, Employee shall not be entitled to receive directly the remainder of such
amount. This reimbursement shall be in addition to any reimbursement provided pursuant to Section
3 below.
(c) Employee shall be entitled to participate in and have the benefits under the terms of all
life, accident, disability and health insurance plans, pension, profit sharing, incentive
compensation and savings plans and all other similar plans and benefits, including the split dollar
insurance program, which the Company from time to time makes available to its senior management
executives in the same manner and at least at the same participation level as other senior
management executives, excluding, however, the Company’s annual cash bonus program for executive
officers and grants and awards under the Company’s key employee equity incentive plans, awards
under which to the Employee, if any, shall be wholly at the discretion of the Company.
(d) The Company shall make the premium payments on the insurance policies (the “Existing Life
Insurance Policies”) referred to in and covered by the Split Dollar Agreement dated May 25, 1995,
between the Employee, Xxxxxx Xxxxxx, as Trustee of the Xxxxx X. Xxxxx 1995 Irrevocable Trust, and
the Company on behalf of, and as compensation to, the Employee and shall make an additional
payment to the Employee at such time as the Employee shall owe any income tax in respect to such
compensation (including any estimated payment of such income tax) such that the payment shall equal
as nearly as possible the federal and state income tax payable (including Medicare tax) with
respect to such compensation paid on behalf of the Employee plus all federal and state income taxes
(including Medicare tax) owed as a result of such additional payment. For purposes of determining
the amount owed, the payment to Employee shall be deemed to be subject to the highest marginal
federal, state and local income tax rate applicable to individuals and there shall be taken into
consideration the deductibility of state and local income taxes as applicable to Employee for
purposes of determining federal income tax (including Medicare tax). If and when no longer
prohibited by law from doing so as a result of Section 13(k)(i) of the Securities Exchange Act of
1934 or other legal prohibitions, the Company may elect to revert to loaning the premiums to the
Employee on a non recourse basis other than secured by the proceeds of the insurance policies in
lieu of the foregoing provisions of this Section 2(f), provided the Company elects to treat all
executives with similar split-dollar insurance arrangements in the same manner.
3. Business Expenses. The Company shall promptly reimburse Employee for all
appropriately documented, reasonable business expenses incurred by Employee in accordance with the
Company’s policies related thereto.
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4. Term. This Agreement shall commence effective as of the date hereof, and if not
terminated earlier as herein provided, shall terminate on February 6, 2011 (the “Stated Termination
Date”).
5. Termination by the Company Without Cause or Termination by Employee for “Good
Reason”.
(a) The Company may, by delivering 30 days prior written notice to Employee, terminate
Employee’s employment at any time without cause, and Employee may, by delivering 30 days prior
written notice to the Company, terminate Employee’s employment for “good reason”, as defined below.
If such termination without cause or for good reason occurs, Employee shall be entitled (i) to
receive a lump sum payment equal to all amounts owed through the date of termination and (ii) to
continue to receive (a) his Base Salary at the then current rate and (b) all benefits to which
Employee is entitled hereunder, until the earlier of the Stated Termination Date or two years
following the date of termination. In addition, the Company shall continue to pay the premiums on
the Existing Life Insurance Policies and make the other payments provided in Section 2(d) for such
period.
(b) For purposes of this Section 5, “good reason” shall mean the occurrence of any of the
following events:
(i) Removal, without the consent of Employee in writing, from the office of Vice Chairman of
the Board or a material reduction in Employee’s authority or responsibility, except (x) a reduction
in responsibilities, not including removal from the office of Vice Chairman of the Board, incident
to and consistent with the reduction in his time commitment effective the day after the Conversion
Date or (y) upon a proper termination of Employee for “cause”, as defined in Section 7; or
(ii) The Company otherwise commits a material breach of this Agreement.
(c) The Company shall pay any attorney fees incurred by Employee in reasonably seeking to
enforce the terms of this Section 5.
6. Termination Upon Death or Disability. If Employee’s employment is terminated
because of death or on account of his becoming permanently disabled (as defined in Section 7),
Employee, or his estate, if applicable, shall be entitled to receive a lump sum payment equal to
all amounts owed through the date of termination and all other benefits to which Employee would
have been entitled pursuant to Section 2(c) if his employment had continued, in each case until the
earlier of the Stated Termination Date or two years following the date of termination. In
addition, in the event Employee becomes permanently disabled, the Company shall continue to pay the
premiums on the Existing Life Insurance Policies and make the other payments provided in Section
2(d) to the Stated Termination Date.
7. Termination by the Company for Cause. The Company may terminate this Agreement at
any time if such termination is for “cause”, as defined below, by delivering to Employee written
notice describing the cause of termination 30 days before the effective date of such termination
and by granting Employee 30 days to cure the cause. In the event that the
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employment of Employee is terminated for “cause”, Employee shall be entitled only to all amounts
owed through the date of termination. “For cause” shall be limited to the occurrence of the
following events:
(a) Conviction of or a plea of nolo contendere to the charge of a felony (which, through lapse
of time or otherwise, is not subject to appeal);
(b) Willful refusal without proper legal cause to perform, or gross negligence in performing,
Employee’s duties and responsibilities after 30 days written notice and an opportunity to cure;
(c) Material breach of fiduciary duty to the Company through the misappropriation of Company
funds or property; or
(d) The unauthorized absence of Employee from work (other than for sick leave or personal
disability) for a period of 60 working days or more during a period of 90 working days.
For purposes of this Agreement, Employee shall be deemed to “permanently disabled” if Employee
shall be considered to be permanently and totally disabled in accordance with the Company’s
disability plan, if any, for a period of 180 days or more. If there should be a dispute between
the Company and Employee as to Employee’s physical or mental disability for purposes of this
Agreement, the question shall be settled by the opinion of an impartial reputable physician or
psychiatrist agreed upon by the parties or their representatives, or if the parties cannot agree
within ten (10) calendar days after a request for designation of such party, then a physician or
psychiatrist shall be designated by the Valley Hospital in Northern New Jersey. The parties agree
to be bound by the final decision of such physician or psychiatrist.
8. Voluntary Termination by Employee. Employee may terminate this Agreement at any
time upon delivering 30 days written notice to the Company. In the event of such voluntary
termination other than for “good reason” as defined in Section 5, Employee shall be entitled only
to all amounts owed through the date of termination. On or after the date the Company receives
notice of Employee’s resignation, the Company may, at its option, pay Employee all amounts owed to
Employee pursuant to this Section 8 through the effective date of his resignation and terminate his
employment immediately.
9. Exclusivity of Termination Provisions. The termination provisions of this
Agreement regarding the parties’ respective obligations in the event Employee’s employment is
terminated are intended to be exclusive and in lieu of any other rights or remedies to which
Employee or the Company may otherwise be entitled at law, in equity or otherwise. It is also
agreed that, although the personnel policies and fringe benefit programs of the Company may be
unilaterally modified from time to time, the termination provisions of this Agreement are not
subject to modification, whether orally, impliedly or in writing, unless any such modification is
mutually agreed upon and signed by the parties.
10. Surrender of Certain Options and Substitution of Restricted Stock Grants.
Simultaneously with the execution of this Agreement, the Company is granting to the Employee 96,800
shares of restricted stock (the “Restricted Stock”) under the Company’s 1996 Long-Term
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Incentive Plan, which shall vest in equal numbers of 19,360 on each February 6th in 2007
through 2011 and Employee is agreeing to the cancellation of the options to purchase 15,000 shares
of the Company’s common stock held by Employee with an exercise price of $15.75 per share vesting
on February 1, 2007 and options to purchase an aggregate of 150,000 shares vesting on each January
27th in the years 2008 through 2012 and on July 27, 2012 with an exercise price of
$14.24. The terms of the Restricted Stock shall provide that in the event of termination of
employment, other than for cause or by reason of voluntary termination, a number of unvested
Restricted Shares shall immediately vest equal to 19,360 times a fraction the numerator of which
shall be the number of days from and including the most recent February 6 to and including the
termination date and the denominator of which shall be 365.
11. Non-Competition. Employee acknowledges that he has and, while employed, will
acquire unique and valuable experience with respect to the businesses, operations, plans and
strategies of the Company and its subsidiaries. Employee hereby covenants and agrees that during
the term of this Agreement and for a period of one year thereafter, he will not directly or
indirectly compete with the business of the Company or its subsidiaries. For purposes of this
Agreement, the term “compete with the business of the Company and its subsidiaries” shall include
Employee’s participation in any operations whose primary business competes with any business now
conducted by the Company or its subsidiaries, including the sale of menswear or shoes at retail, or
the sale of corporate logo merchandise, or any material line of business proposed to be conducted
by the Company or one or more of its subsidiaries known to Employee and with respect to which the
Employee devoted time to as part of his employment hereunder on behalf of the Company or one or
more of its subsidiaries, including but not limited to the business of dry cleaning, whether such
participation is individually or as an officer, director, joint venturer, agent, or holder of an
interest (except as a holder of a less than 1% interest in a publicly traded entity or mutual fund)
of any individual, corporation, association, partnership, joint venture or other business entity so
engaged. This non-competition covenant shall be applicable with respect to the United States and
Canada and any other country in which Employee would be competing with the business of the Company
or its subsidiaries as set forth in this Section 11. Notwithstanding the foregoing, the Company
acknowledges and agrees that the Employee’s activities described in Schedule 11 hereto
shall not constitute a breach of this Section 11. Employee and the Company agree that a monetary
remedy for a breach of this Section 11 or of Section 12 below will be inadequate and will be
impracticable and extremely difficult to prove, and further agree that such a breach would cause
the Company irreparable harm, and that the Company shall be entitled to specific performance and/or
temporary and permanent injunctive relief without the necessity of proving actual damages.
Employee agrees that the Company shall be entitled to such specific performance and/or injunctive
relief, including temporary restraining orders, preliminary injunctions and permanent injunctions,
without the necessity of posting bond or other undertaking in connection therewith. Any such
requirement of bond or undertaking is hereby waived by Employee and Employee acknowledges that in
the absence of such a waiver, a bond or undertaking may be required by the court. In the event of
litigation to enforce this covenant, the courts are hereby specifically authorized to reform this
covenant as and to the extent, but only to such extent, necessary in order to give full force and
effect hereto to the maximum degree permitted by law. Employee also agrees that if Employee is in
breach of this Section 10, the Company may cease all payments required under this Agreement.
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12. Proprietary Information.
(a) Employee acknowledges and agrees that he has acquired, and may in the future acquire as a
result of his employment with the Company or otherwise, Proprietary Information (as defined below)
of the Company which is of a confidential or trade secret nature, and all of which has a great
value to the Company and is a substantial basis and foundation upon which the Company’s business is
predicated. Accordingly, Employee agrees to regard and preserve as confidential at all times all
Proprietary Information and to refrain from publishing or disclosing any part of it to any person
or entity and from using, copying or duplicating it in any way by any means whatsoever, except in
the course of his employment under this Agreement and in furtherance of the business of the Company
or as required by applicable law or legal process, without the prior written consent of the
Company. In the event of a breach or threatened breach of this Section 12, the Company shall be
entitled to the same remedies as provided in Section 11 with respect to a breach thereof.
(b) “Proprietary Information” includes all information and data in whatever form, tangible or
intangible, pertaining in any manner to pricing policy, marketing programs, advertising, employee
training, and specific inventory purchase pricing and any written information, including customer
lists, of the Company or any affiliate thereof, unless the information is or becomes publicly known
through lawful means.
13. Notice. All notices, requests, consents, directions and other instruments and
communications required or permitted to be given under this Agreement shall be in writing and shall
be deemed to have been duly given if delivered in person, by courier, by overnight delivery service
with proof of delivery or by prepaid registered or certified first-class mail, return receipt
requested, addressed to the respective party at the address set forth below, or if sent by
facsimile or other similar form of communication (with receipt confirmed) to the respective party
at the facsimile number set forth below:
To the Company:
|
The Men’s Wearhouse, Inc. | |||
| 0000 Xxxxxxxx Xxxxx | ||||
| Xxxxxxx, Xxxxx 00000 | ||||
| Attention: Neill X. Xxxxx | ||||
| Facsimile: (000) 000-0000 | ||||
| Confirm: (000) 000-0000 | ||||
To Employee:
|
Xxxxx X. Xxxxx | |||
| 0000 Xxxxxxxx, 00xx Xxxxx | ||||
| Xxx Xxxx, XX 00000 | ||||
| Facsimile: (000) 000-0000 | ||||
| Confirm: (000) 000-0000 |
or to such other address or facsimile number and to the attention of such other person as either
party may designate by written notice. All notices and other communication shall be deemed to have
been duly given when delivered personally or three days after mailing or one day after depositing
such notice with an overnight courier or transmission of a facsimile or other similar form of
communication.
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14. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, their respective heirs, executors, administrators, successors and
assigns; provided, however, that neither the Company nor Employee may assign any duties under this
Agreement without the prior written consent of the other.
15. Limitation. The Agreement shall not confer any right or impose any obligation on
the Company to continue the employment of Employee in any capacity, or limit the right of the
Company or Employee to terminate Employee’s employment.
16. Further Assurances. Each party hereto agrees to perform such further actions, and
to execute and deliver such additional documents, as may be reasonably necessary to carry out the
provisions of this Agreement.
17. Severability. In the event that any of the provisions, or portions thereof, of
this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, the
validity and enforceability or the remaining provisions, or portions thereof, shall not be affected
thereby.
18. Arbitration.
(a) Any dispute, controversy, or claim arising out of or relating to this Agreement, or the
breach, termination or invalidity hereof, including claims for tortious interference or other
tortious or statutory claims arising before, during or after termination, providing only that such
claim touches upon matters covered by this contract, shall be finally settled by arbitration
administered by the American Arbitration Association (“AAA”) pursuant to the Commercial Arbitration
Rules as presently in force, except as modified by the specific provisions of this Agreement. The
parties expressly agree that nothing in this Agreement shall prevent the parties from applying to a
court that would otherwise have jurisdiction over the parties for provisional or interim measures,
including injunctive relief. After the arbitration panel is empaneled, it shall have sole
jurisdiction to hear such applications, except that the parties agree that any measures ordered by
the arbitrators may be immediately and specifically enforced by a court otherwise having
jurisdiction over the parties. The parties agree that judgment on the arbitration award may be
entered by any court having jurisdiction thereof.
(b) The parties agree that the federal and state courts located in Houston, Texas shall have
exclusive jurisdiction over an action brought to enforce the rights and obligations created in or
arising from this agreement to arbitrate, and each of the parties hereto irrevocably submits to the
jurisdiction of said courts. Notwithstanding the above, application may be made by a party to any
court of competent jurisdiction wherever situated for enforcement of any judgment and the entry of
whatever orders are necessary for such enforcement. Process in any action arising out of or
relating to this agreement may be served on any party to the agreement anywhere in the world by
delivery in person against receipt or by registered or certified mail, return receipt requested.
(c) The arbitration shall be conducted before a tribunal composed of three neutral arbitrators
drawn from, in the first instance, the Texas Large Complex Claims panel and then, if necessary,
from the Commercial panel. Each arbitrator shall sign an oath agreeing to be bound by the Code of
Ethics for Arbitrators in Commercial Disputes promulgated by the AAA
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for Neutral Arbitrators. It is the intent of the parties to avoid the appearance of impropriety
due to bias or partiality on the part of any arbitrator. Prior to his or her formal appointment,
each arbitrator shall disclose to the parties and to the other members of the tribunal, any
financial, fiduciary, kinship or other relationship between that arbitrator and any party or its
counsel, or between that arbitrator and any individual or entity with any financial, fiduciary,
kinship or other relationship with any party. For the purpose of this agreement, “appearance of
impropriety” shall be defined as such relationship or behavior as would cause a reasonable person
to believe that bias or partiality on the part of the arbitrator may exist in favor of any party.
Any award or portion thereof, whether preliminary or final, shall be in a written opinion
containing findings of fact and conclusions of law signed by each arbitrator. The arbitrator
dissenting from an award or portion thereof shall issue a dissent from the award or portion thereof
in writing, stating the reasons for his dissent. The arbitrators shall hear and determine any
preliminary issue of law asserted by a party to be dispositive of any claim, in whole or part, in
the manner of a court hearing a motion to dismiss for failure to state a claim or for summary
judgment, pursuant to such terms and procedures as the arbitrators deem appropriate.
(d) It is the intent of the parties that, barring extraordinary circumstances, any arbitration
hearing shall be concluded within two months of the date the statement of claim is received by the
AAA. Unless the parties otherwise agree, once commenced, hearings shall be held 5 days a week,
with each hearing day to begin at 9:00 A.M. and to conclude at 5:00 P.M. The parties may upon
agreement extend these time limits, or the chairman of the panel may extend them if he determines
that the interests of justice otherwise requires. The arbitrators shall use their best efforts to
issue the final award or awards within a period of 30 days after closure of the proceedings.
Failure to do so shall not be a basis for challenging the award. The parties and arbitrators shall
treat all aspects of the arbitration proceedings, including without limitation, discovery,
testimony, and other evidence, briefs and the award, as strictly confidential. The place of
arbitration shall be Houston, Texas, USA unless otherwise agreed by the parties.
(e) The parties agree that discovery shall be limited and shall be handled expeditiously.
Discovery procedures available in litigation before the courts shall not apply in an arbitration
conducted pursuant to this agreement. However, each party shall produce relevant and
non-privileged documents or copies thereof requested by the other parties within the time limits
set and to the extent required by order of the arbitrators. All disputes regarding discovery shall
be promptly resolved by the arbitrators. No witness or party may be required to waive any
privilege recognized at law. The parties hereby waive any claim to any damages in the nature of
punitive, exemplary, or statutory damages in excess of compensatory damages, or any form of damages
in excess of compensatory damages, and the arbitration tribunal is specially divested of any power
to award any damages in the nature of punitive, exemplary, or statutory damages in excess of
compensatory damages, or any form of damages in excess of compensatory damages. Except as provided
in Section 5(c), the party prevailing on substantially all of its claims shall be entitled to
recover its costs, including attorneys’ fees, for the arbitration proceedings, as well as for any
ancillary proceeding, including a proceeding to compel arbitration, to request interim measures, or
to confirm or set aside an award.
19. Governing Law. This Agreement shall be governed and construed under and
interpreted in accordance with the laws of the State of Texas without giving effect to the doctrine
of conflict of laws.
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20. Entire Agreement; Waiver; Interpretation. This Agreement constitutes the entire
agreement of the parties, and supersede all prior agreements, oral or written, with respect to the
subject matter of this Agreement. No change, modification or waiver of any provisions of this
Agreement shall be enforceable unless contained in a writing signed by the party against whom
enforcement is sought. The failure at any time to enforce any of the provisions of this Agreement
shall in no way be construed as a waiver of such provisions and shall not affect the right of
either party thereafter to enforce each and every provisions hereof in accordance with its terms.
No presumption shall be construed against the party drafting this Agreement.
21. Employee’s Representation. Employee represents and warrants that (i) he is free
to enter into this Agreement and to perform each of the terms and covenants of it, (ii) he is not
restricted or prohibited, contractually or otherwise, from entering into and performing this
Agreement, (iii) his execution and performance of this Agreement is not a violation or breach of
any other agreement between Employee and any other person or entity and (iv) he has been advised by
legal counsel as to the terms and provisions hereof and the effort thereof and fully understands
the consequences thereof.
22. Company’s Representation. The Company represents and warrants that (i) it is free
to enter into this Agreement and to perform each of the terms and covenants of it, (ii) it is not
restricted or prohibited, contractually or otherwise, from entering into and performing this
Agreement, (iii) its execution and performance of this Agreement is not a violation or breach of
any other agreement between Employee and any other person or entity and (iv) this Agreement is a
legal, valid and binding agreement of the Company, enforceable in accordance with its terms.
23. Return of Company Property. Employee acknowledges that all Proprietary
Information and other property and equipment of the Company or any affiliate which Employee
accumulates during his employment are the property of the Company and shall be returned to the
Company immediately upon his termination of employment.
IN WITNESS WHEREOF, the parties have caused this Agreement as of the date first written above.
| THE MEN’S WEARHOUSE, INC. | ||||||||
| By: | /s/ | XXXXXX XXXXXX | ||||||
| Name: XXXXXX XXXXXX | ||||||||
| Title: CHAIRMAN OF THE BOARD AND CHIEF | ||||||||
| EXECUTIVE OFFICER | ||||||||
| /s/ | XXXXX X. XXXXX | |||||||
| XXXXX X. XXXXX | ||||||||
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Section 11
Activities Excluded from Section 11
Activities Excluded from Section 11
Employee being a board member of, and a member of any committee of the board of, any of the
following business entities shall not be prohibited by Section 11.
1. Aeropostale
2 New York & Company
3. Xxxxxx Xxxxxxxx
4. Seven for All Mankind
5. Transamerican Auto Parts
6. Vitamin Shoppe
In addition, advising Bear Xxxxxxx Merchant Banking with respect to investment opportunities
shall not be prohibited by Section 11.
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