EMPLOYMENT AGREEMENT
EXHIBIT 10.1
THIS EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered into as of the 23rd
day of June, 2006, between Ulta Salon, Cosmetics & Fragrance, Inc., a Delaware corporation (the
“Company”) and Xxx Xxxxx (the “Executive”).
RECITALS
A. The Company and the Executive previously have entered into an Amended and Restated
Employment Agreement, dated as of March 15, 2002 (the “Prior Agreement”), pursuant to which the
Company currently employs the Executive; and
B. The Company and the Executive each have determined that it would be to the advantage and
best interest of the Company and the Executive to terminate the Prior Agreement and enter into this
Agreement as a means of extending Executive’s current employment and modifying certain of the
Executive’s and the Company’s obligations and responsibilities under the Prior Agreement; and
C. The Company and the Executive desire to have the Prior Agreement terminate and that this
Agreement supersedes the Prior Agreement in all respects;
D. It is the desire of the Company to continue employing the Executive as the Company’s
president and chief executive officer as described in this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and of the respective covenants and
agreements set forth below, the parties hereto agree as follows:
ARTICLE I.
SERVICES AND TERM
SERVICES AND TERM
1.1 Services. The Company agrees to continue employing the Executive, and the
Executive accepts such employment upon the terms set forth in this Agreement. The Executive shall
report directly to, and receive direction from, the Board of Directors of the Company (the
“Board”). Executive shall serve as the Company’s President and Chief Executive Officer and will
be primarily responsible for overseeing the implementation of the Company’s business strategy and
such other duties as reasonably determined, from time to time, by the Board. Notwithstanding the
foregoing, the Executive acknowledges and agrees upon request of the Board that she will assist and
cooperate with the Board to establish and implement a successorship strategy in which she will (a)
transition the President and Chief Executive Officer duties to a successor chosen by the Board and
(b) become the Executive Chairman of the Board.
1.2 Services to Subsidiaries. Executive will also serve, without further
compensation, in such capacities of each subsidiary of the Company as specified by the Board.
1.3 Term. The term of employment under this Agreement (the “Term”) shall begin on
February 1, 2006 (the “Commencement Date”) and end on the last day of the
Company’s fiscal year
(the “Fiscal Year”) ending in February 2008, unless otherwise sooner terminated by the parties
under Article III. The Term shall automatically renew for additional one year period(s), unless
either party provides written notice to the other of their intent not to renew the term at least
sixty (60) days prior to the then expiration of the Term or as otherwise terminated as herein
provided.
ARTICLE II.
COMPENSATION PACKAGE
COMPENSATION PACKAGE
2.1 Compensation. The Company shall pay Executive a base salary of $600,000 per year
(the “Base Salary”) in accordance with the normal payment procedures of the Company and subject to
such withholding and other normal employee deductions as may be required by law. The Board shall
perform a performance review of Executive after the end of each Fiscal Year, beginning with the
Fiscal Year ending in 2006. In connection with such review the Board may adjust Executive’s Base
Salary after taking into account Executive’s and the Company’s performance, and such other factors
as the Board deems appropriate; provided, however, Executive’s Base Salary may not be decreased
without Executive’s express written consent unless the decrease is pursuant to a general
compensation reduction applicable to all, or substantially all, officers of the Company.
2.2 Benefits. During the Term, Executive shall be eligible to participate in such
medical, health, pension, welfare, and insurance plans offered by the Company as she elects from
time to time (subject to the terms of such plans), and to receive other fringe benefits that are at
least as favorable as the fringe benefits generally provided to other senior officers of the
Company at the time such other fringe benefits are made available to them.
2.3 Bonus. Each Fiscal Year during the Term, beginning with the Fiscal Year ending in
2007, Executive will be eligible to earn a cash performance bonus targeted at $750,000 (the “Target
Bonus”). Each Fiscal Year the Board shall establish performance targets based on sales, earnings
before interest and taxes, and other pre-established performance objectives. The actual bonus will
be (a) determined based upon the achievement of the performance targets set by the Board, (b)
earned in full by the Executive as of the last day of the related Fiscal Year, if the set
performance targets are in fact met, and (c) paid to Executive no later than April 15 following the
end of the related Fiscal Year, unless it is administratively not practicable to make payment by
April 15 due to unforeseen circumstances, in which case it shall be paid as soon as
administratively practical to make such payment but no later than December 31 of such year. If the
established performance targets are met or exceeded, then the Target Bonus will be paid to
Executive. The Board in its sole discretion may pay Executive an amount in excess of the Target
Bonus. Appendix I sets forth the calculation of bonus payments for the Fiscal Year ending in
February 2007.
2.4 Loan. At the Executive’s request, the Company will loan Executive up to
$4,094,340 in order that Executive may exercise previously granted options to purchase shares of
the Company’s common stock. Such loan will be secured by the shares purchased upon exercise of the
options and will be recourse against the Executive’s other assets. Interest on such loan will be
the minimum interest rate applicable to mid-term obligations in order that such loan will not be
treated as having a below market rate of interest for Federal income tax purposes.
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Executive shall
be obligated to repay interest accrued each year from the proceeds of any bonus paid under Section
2.3. Executive may prepay the loan at anytime, but will be required to repay the loan in full upon
the earliest to occur of: the date (i) immediately prior to the Company becoming an “issuer” under
the Xxxxxxxx-Xxxxx Act of 2002, either by filing a Form S-1 registration statement with the
Securities and Exchange Commission or otherwise (an “IPO”), (ii) expiration of the time period
provided under the terms of her option agreements and the Company’s stockholders’ agreements for
repurchase of shares following termination of employment, or (iii) five years from the date of the
loan. If Executive is required to repay the loan upon an IPO, if not informed of another form of
payment, the Company shall repurchase or offset the loan balance by the amount of shares of Common
Stock necessary to repay the loan at the then fair market value of such shares.
2.5 Business Expenses. The Company will reimburse Executive for reasonable
business-related expenses incurred by her in connection with the performance of her duties
hereunder upon presentation of written documentation, subject, however, to the Company’s reasonable
policies relating to business-related expenses as then in effect from time to time. The Company
will reimburse the Executive for legal expenses incurred in the negotiation and documentation of
this Agreement in an amount not to exceed $10,000.
2.6 Vacation. Executive shall be entitled to four weeks of annual vacation to be
accrued and taken in accordance with the Company’s vacation policy for senior executives.
2.7 Indemnification. Executive shall be entitled to the same indemnification under
the terms of the Company’s By-Laws and Articles of Incorporation as is provided, and such liability
insurance as the Company may from time to time purchase, for its Board members and senior officer.
2.8 Additional Equity. In the event the Board adopts a program for grants of equity
compensation to officers of the Company in connection with or contemplation of an initial public
offering, Executive shall be eligible to be considered for additional equity grants under such
program; provided, however, that nothing contained herein guarantees any level of grant.
ARTICLE III.
TERMINATION OF SERVICES
TERMINATION OF SERVICES
3.1 Automatic Termination. This Agreement, the Executive’s employment with the
Company and the Company’s obligations to the Executive under Article II will terminate:
(a) Death. Automatically, upon the Executive’s death;
(b) Resignation. Upon the date specified by the Executive at the time of her
resignation;
(c) Disability. Upon the date elected by the Company, after the failure of the
Executive to render services to the Company for a continuous period of six (6) months because of
the Executive’s physical or mental disability or illness (“Disability”). If there should be any
dispute between the parties as to the Executive’s physical or mental disability at any time,
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such question shall be settled by the opinion of an impartial reputable physician agreed upon for such
purpose by the parties or their representatives. The certificate of such physician as to the
matter in dispute shall be final and binding on the parties.
(d) Cause. Immediately, upon notice to the Executive that the Company is terminating
her for Cause. For purpose of this Agreement “Cause” means (i) the Executive’s gross misconduct,
including any intentional or grossly negligent breach of the Company’s policies and procedures,
including its policies relating to discrimination, harassment or trading in the Company’s
securities, or any material breach of the Company’s Policy Regarding Noncompetition,
Nonsolicitation and Confidential Information (the “Policy”); (ii) conviction of, or plea of guilty
or nolo contendere by the Executive with respect to a felony; or (iii) any act of
fraud, dishonesty or moral turpitude committed by the Executive which is materially detrimental to
the business or reputation of the Company as determined by the Board.
(e) Termination without Cause. Upon the date specified by the Company, upon written
notice to the Executive that her employment is being terminated without Cause.
(f) Expiration of Term. The expiration or non-renewal of the Term as provided in
Section 1.3 hereof.
3.2 Payment on Termination with Cause or Without Good Reason. In the event that
Executive’s employment is terminated for Cause or by the Executive without Good Reason (as defined
below), Executive shall be entitled to receive (a) all earned but unpaid Base Salary through and
including the date of termination; (b) all earned but unpaid bonus for any Fiscal Year ending prior
to the date of termination; (c) accrued, but unused, vacation time; (d) reimbursement of
unreimbursed business expenses incurred prior to the date of termination; and (e) any vested
benefits under the Company’s employee benefit plans, in accordance with their terms (collectively
the “Accrued Compensation”).
3.3 Payment on Termination without Cause, for Good Reason or Nonrenewal of Term.
Subject to Executive’s continuing compliance with the provisions of Section 4.3 of this Agreement
and the Policy referred to therein and execution by the Executive of a binding general waiver and
release of claims in a form agreed upon by the parties (a “Release”), if Executive’s employment is
terminated by the Company without Cause, by the Executive for Good Reason or upon
expiration/non-renewal of the Term by reason of the Company providing Executive notice of
nonrenewal in accordance with Section 1.3, then in addition to the Accrued Compensation, the
Executive shall be entitled to receive in full settlement of all obligations of the Company under
this Agreement continuation of the Base Salary (at the rate in effect at the termination date) for
a period of one year following the date of termination, which payments shall be made ratably in
accordance with the Company’s ordinary payroll practices in effect during such period.
For purposes of this Agreement, “Good Reason” shall mean: (i) without the consent of the
Executive, an adverse or material change in Executive’s reporting responsibilities and/or
diminution of any material duties or responsibilities previously assigned to Executive by the
Board; (ii) the failure of the Company to pay Executive Base Salary or bonus earned as required by
Article II of this Agreement or to perform its other material obligations hereunder;
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(iii) a significant reduction in Executive’s overall compensation (Base Salary and bonus on a combined
basis), other than based on performance, unless such modification applies generally to the senior
executives of the Company. Executive must give written notice to the Company within thirty (30)
days of the event giving rise to Good Reason and the Company must fail to cure within thirty (30)
days of such notice in order for such event to qualify as a Good Reason termination. In no event
shall implementation of a successorship strategy by the Company under Section 1.1 give rise to Good
Reason under this Agreement.
3.4 Payment upon Death or Disability. In addition to the Accrued Compensation, in the
event that Executive’s employment is terminated by reason of death or Disability, Executive (or in
the event of Executive’s death, Executive’s estate) shall be entitled to receive, subject to the
execution by Executive (or as appropriate the executor of Executive’s estate or Executive’s
guardian) of a binding Release, payment of a lump-sum equal to the Base Salary (at the rate in
effect at the time of death or Disability) for a one year period minus the amount of any payments
that Executive is entitled to receive from any disability insurance that may be provided at such
time by the Company.
ARTICLE IV.
COVENANTS
COVENANTS
4.1 Services as President and Chief Executive Officer. Executive hereby covenants and
agrees that she will faithfully and in conformity with the directions of the Board perform her
duties as President and Chief Executive Officer, and that she shall devote to the performance of
said duties all such time and attention as they shall reasonably require.
4.2 No Detraction From Performance. The Executive hereby consents and agrees that she
will not, without the express consent of the Board, become engaged in any business other than that
of the Company, which interferes with her duties and responsibilities to the Company.
4.3 Policy Regarding Noncompetition, Nonsolicitation and Confidential Information.
Executive has signed the Policy and agrees to continue complying with the terms of the Policy.
4.4 Remedies. The Executive and the Company agree that the Company will be
irreparably harmed by any violation or threatened violation of any of the foregoing provisions of
this Article 4 if such provisions are not specifically enforced and therefore that the Company
shall be entitled to an injunction restraining any violation of such provisions by the Executive,
or any other appropriate decree of specific performance. Such remedies shall not be exclusive and
shall be in addition to any other remedy to which the Company may be entitled under this
Agreement or at law.
4.5 Non-Disparagement. Neither Executive nor the Company shall make defamatory or
disparaging remarks about the other following the termination of Executive’s employment with the
Company.
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ARTICLE V.
MISCELLANEOUS
MISCELLANEOUS
5.1 Successors. This Agreement shall inure to the benefit of the Company and its
successors and assigns, as applicable. If the Company shall merge or consolidate with or into, or
transfer substantially all of its assets, including goodwill, to another corporation or other form
of business organization, this Agreement shall be binding on, and run to the benefit of, the
successor of the Company resulting from such merger, consolidation, or transfer. The Executive
shall not assign, pledge, or encumber her interest in this Agreement, or any part thereof, without
the prior written consent of the Company, and any such attempt to assign, pledge or encumber any
interest in this Agreement shall be null and void and shall have no effect whatsoever.
5.2 Governing Law. This Agreement is being made and executed in and is intended to be
performed in the State of Illinois and shall be governed, construed, interpreted and enforced in
accordance with the substantive laws of the State of Illinois, without regard to the conflict of
laws principles thereof.
5.3 Entire Agreement. This Agreement, the promissory note and pledge agreement
evidencing the loan under Section 2.4 hereof, all option and restricted stock agreements previously
entered into between Executive and the Company and the Policy (collectively the “Governing
Agreements”) comprise the entire agreements between the parties hereto relating to the subject
matter hereof and as of the Commencement Date, this Agreement supersedes, cancels and annuls the
Prior Agreement and all previous agreements between the Company (and/or its predecessors) and the
Executive, as the same may have been amended or modified, and any right of the Executive thereunder
(other than the Governing Agreements) and all other prior oral agreements between the Executive and
the Company or any predecessor to the Company. The terms of this Agreement, including by reference
the Governing Agreements are intended by the parties to be the final expression of their agreement
with respect to the retention of the Executive by the Company and may not be contradicted by
evidence of any prior or contemporaneous agreement.
5.4 Gender. Words in the masculine herein may be interpreted as feminine or neuter,
and words in the singular as plural, and vice versa, where the sense requires.
5.5 Disputes.
(a) Any dispute or controversy arising under, out of, in connection with or in relation to
this Agreement (except with respect to the Policy referred to in Section 4.3, which shall be
governed by the dispute resolution provisions specified therein), including any claims for
discrimination or other similar violation of federal law, shall be finally determined
and settled by arbitration in Chicago, Illinois, in accordance with the rules and procedures
regarding employment contract disputes as established by the American Arbitration Association, and
judgment upon the award may be entered in any court having jurisdiction thereof.
(b) If any arbitration or other proceeding is brought for the enforcement of this Agreement,
or because of an alleged dispute, breach, default or misrepresentation in connection with any of
the provisions of this Agreement, the successful or
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prevailing party shall be entitled to recover
reasonable attorneys’ fees and other costs incurred in that action or proceeding, in addition to
any other relief that may be granted.
5.6 Severability; Enforceability. If any provision of this Agreement, or the
application thereof to any person, place, or circumstance, shall be held to be invalid,
unenforceable, or void by the final determination of a court of competent jurisdiction in any
jurisdiction and all appeals therefrom shall have failed or the time for such appeals shall have
expired, as to that jurisdiction and subject to this Section 5.6, such clause or provision shall be
deemed eliminated from this Agreement but the remaining provisions shall nevertheless be given full
force and effect. In the event this Agreement or any portion hereof is more restrictive than
permitted by the law of the jurisdiction in which enforcement is sought, this Agreement or such
portion shall be limited in that jurisdiction only, and shall be enforced in that jurisdiction as
so limited to the maximum extent permitted by the law of that jurisdiction.
5.7 Validity. The invalidity or unenforceability of any provision or provisions of
this Agreement shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
5.8 Notices. Any notice, request, claim, demand, document and other communication
hereunder to any party shall be effective upon receipt (or refusal of receipt) and shall be in
writing and delivered personally or sent by telex, telecopy, or certified or registered mail,
postage prepaid, as follows:
(a) If to the Company, c/o Global Retail Partners attn: Xxxxxx Xxxxx, at Global Retail
Partners, Suite 1630, 2121 Avenue of the Stars, Xxx Xxxxxxx, Xxxxxxxxxx 00000, with a copy to
Xxxxxx Xxxxxxxx at Xxxxxx & Xxxxxxx, Sears Tower, Suite 5800, 000 Xxxxx Xxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000 (000-000-0000 fax) or to such other address or addresses as the Company may specify
in writing from time to time.
(b) If to the Executive, to her at the address set forth below under her signature or such
other residence as she may designate to the Company as her residence from time to time; or at any
other address as she may specify in writing from time to time.
5.9 Counterparts. This Agreement may be executed in several counterparts, each of
which shall be deemed to be an original, but all of which together will constitute one and the same
Agreement.
5.10 Amendments; Waivers. This Agreement may not be modified, amended, or terminated
except by an instrument in writing, approved by the Board and signed by the Executive and the
Company. By an instrument in writing similarly executed, the Executive or the Company may waive
compliance by the other party or parties with any provision of this
Agreement that such other party was or is obligated to comply with or perform; provided,
however, that such waiver shall not operate as a waiver of, or estoppel with respect to, any other
or subsequent failure. No failure to exercise and no delay in exercising any right, remedy or
power hereunder shall preclude any other or further exercise of any other right, remedy or power
provided herein or by law or in equity. Notwithstanding the foregoing, the Company may amend this
Agreement at anytime without the consent of the Executive and/or take such action as it
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deems necessary and reasonable in order to make any payments pursuant to this Agreement compliant with
the requirements of Section 409A of the Internal Revenue Code of 1986, as amended and any guidance
issued thereunder.
5.11 No Inconsistent Actions. The parties hereto shall not voluntarily undertake or
fail to undertake any action or course of action inconsistent with, or to avoid or evade, the
provisions or essential intent of this Agreement. Furthermore, it is the intent of the parties
hereto to act in a fair and reasonable manner with respect to the interpretation and application of
the provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first
above written.
[Signature Pages Immediately Follow]
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[Signature Page to Employment Agreement Dated June 23, 2006]
| ULTA SALON, COSMETICS & FRAGRANCE, INC. |
EXECUTIVE | |||
By:
|
/s/ Xxxxxx Xxx | /s/ Xxx Xxxxx | ||
Name:
|
Xxxxxx Xxx | Name: Xxx Xxxxx | ||
Title:
|
Non-Executive Chairman | |||
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Appendix I
If 100% of performance target is met, then Executive shall receive her full bonus. If the
performance targets are not met, then Executive shall be eligible for a bonus equal to a percentage
of her Target Bonus only if at least 91% of the performance targets are met. Such percentage shall
equal 12.5% of her Target Bonus for each 1% increase in performance over 90% of the performance
targets.
| Percent of | ||||||||
| Performance Target | ||||||||
| Achieved | Bonus Percentage | Actual Bonus Paid | ||||||
91% |
12.5 | 75,000 | ||||||
92% |
25 | 150,000 | ||||||
93% |
37.5 | 225,000 | ||||||
94% |
50 | 300,000 | ||||||
95% |
62.5 | 375,000 | ||||||
96% |
75 | 450,000 | ||||||
97% |
87.5 | 525,000 | ||||||
98% |
100 | 600,000 | ||||||
99% |
112.5 | 675,000 | ||||||
100% |
125 | 750,000 | ||||||
