EMPLOYMENT AGREEMENT
DRESS BARN, INC. ("Dress Barn"), and XXXXXXX X. XXXXXX ("Executive") agree
to enter into this EMPLOYMENT AGREEMENT dated as of November 15, 2000 as
follows:
1. Employment.
Dress Barn hereby agrees to employ Executive, and Executive hereby agrees
to be employed by Dress Barn, upon the terms and subject to the conditions set
forth in this Agreement.
2. Term of Employment.
The period of Executive's employment under this Agreement shall begin as of
February 5, 2001 (the "Effective Date") and shall continue for a period of two
years thereafter, unless sooner terminated in accordance with Section 5 below
("Initial Term"). The Employment Term shall be extended for successive one (1)
year periods (each a "Renewal Term") unless either party gives written notice of
non-renewal to the other party not less than sixty (60) days prior to the end of
the Initial Term or Renewal Term (as applicable) then in effect. As used in this
Agreement, the phrase "Employment Term" refers to Executive's period of
employment from the date of this Agreement until her "Termination Date" (as
defined in Section 5(g) below).
3. Duties and Responsibilities.
(a) Dress Barn will employ Executive as its President, Retail, and Chief
Merchandising Officer, Retail. In these capacities, Executive shall
perform the customary duties and have the customary responsibilities of
such positions, and shall also perform such other duties as may be
assigned to Executive from time to time by the Chief Executive Officer
and/or Chief Operating Officer of Dress Barn.
(b) Executive agrees to faithfully serve Dress Barn, devote her full
working time, attention and energies to the business of Dress Barn, its
subsidiaries and affiliated entities, and perform the duties under this
Agreement to the best of her abilities. Executive may perform
uncompensated services in connection with either the management of
personal investments or with charitable or civic organizations;
provided, that such activities do not interfere with Executive's duties
pursuant to this Agreement.
(c) Executive agrees (i) to comply with all applicable laws, rules and
regulations, and all requirements of all applicable regulatory,
self-regulatory, and administrative bodies; (ii) to comply with Dress
Barns' rules, procedures, policies, requirements, and directions; and
(iii) not to engage in any other business or employment without the
written consent of Dress Barn except as otherwise specifically provided
herein. Copies of the Dress Barn employee handbook and business conduct
policy (as currently in effect) have been provided to Executive.
4. Compensation and Benefits.
(a) Signing Bonus. As consideration for entering into this Employment
Agreement, Dress Barn shall pay Executive a bonus ("Signing Bonus) as
follows: (i) One Hundred Thousand Dollars ($100,000) shall be paid on
the Effective Date; and (ii) provided Executive's employment hereunder
has not been terminated in accordance with Section 5 hereof, One
Hundred Thousand Dollars ($100,000) shall be paid to Executive on the
first anniversary of the Effective Date.
(b) Base Salary. During the Employment Term, Dress Barn shall pay Executive
a base salary at the annual rate of $500,000 per year or such higher
rate as may be determined from time to time by Dress Barn ("Base
Salary"). Base Salary shall be reviewed in October, 2001 and annually
thereafter. Such Base Salary shall be paid in accordance with Dress
Barn's standard payroll practices for senior executives.
(c) Annual Incentive Compensation Plan. Commencing with the fiscal year
ending July 28, 2001, and during the balance of the Employment Term,
Executive shall be eligible to participate in the Dress Barn Management
Incentive Plan ("Incentive Plan") in accordance with Dress Barn's
standard and customary practices for senior executives. Any bonus
payable to Executive for the fiscal year ending July 28, 2001 shall be
pro-rated for the number of months during such fiscal year that
Executive was in the employ of Dress Barn. A copy of the 2001 Incentive
Plan has been provided to Executive.
(d) Stock Options. During the Employment Term, Executive shall be eligible
to participate in the Dress Barn 1995 Non-Qualified Stock Plan ("Stock
Plan"). Within 90 days of the Effective Date, Dress Barn shall, (i)
subject to approval by Dress Barn's Compensation Committee or Board of
Directors ("Board") and (ii) subject to and in accordance with the
terms of the Stock Plan, grant Executive options ("Options") to
purchase 150,000 shares of Dress Barn common stock at a price to be
determined by Dress Barn within 90 days of the Effective Date. The
Options shall become exercisable in five (5) equal annual installments
beginning one year from the date of issuance. The terms and conditions
of the Options shall be set forth in a stock option agreement prepared
by the Company.
(e) Benefit Plans, Fringe Benefits and Vacations. Executive shall be
eligible to participate in or receive benefits under any 401(k) savings
plan, nonqualified deferred compensation plan, supplemental executive
retirement plan, medical and dental benefits plan, life insurance plan,
short-term and long-term disability plans, supplemental and/or
incentive compensation plans, or any other employee benefit plan,
generally made available by Dress Barn to senior executives in
accordance with the eligibility requirements of such plans and subject
to the terms and conditions set forth in this Agreement. Executive
shall be entitled to four (4) weeks vacation each calendar year during
the Employment Term commencing January 1, 2001.
(f) Expense Reimbursement. Dress Barn shall promptly reimburse Executive
for the ordinary and necessary business expenses incurred by Executive
in the performance of the duties under this Agreement in accordance
with Dress Barn's customary practices applicable to senior executives,
provided that such expenses are incurred and accounted for in
accordance with Dress Barn's policy.
(g) Automobile Allowance. During the Employment Term, Dress Barn shall
provide Executive with (i) use of an automobile with a manufacturers
suggested retail price of up to $50,000; and (ii) payment of gasoline,
maintenance, repairs, insurance, taxes, registration and related
automobile expenses; or (iii) in lieu of (i) and (ii) above, the
payment of a monthly automobile allowance of $1,250. In addition, Dress
Barn shall also pay for a driver selected and engaged by Executive.
Alternatively, instead of any other automobile allowance or benefits,
the Executive may elect to obtain a car service car and driver during
the Employment Term (the cost thereof to be reimbursed by Dress Barn
subject to the limitations set forth in the last sentence of this
Section 4.) Executive shall be responsible for obtaining the car
service and/or driver. The maximum annual cost to Dress Barn of all
costs and expenses under this Section 4(g) shall not exceed $35,000 in
the aggregate.
5. Termination of Employment.
Executive's employment under this Agreement shall terminate at the end of the
Initial Term or Renewal Term by notice of non-renewal by either party in
accordance with Section 2, unless earlier terminated under any of the
circumstances set forth in this Section 5 (a) through (e). For purposes of
clarity, the parties acknowledge that the provisions of Sections 5(d) and (e)
(and corresponding Sections 8 and 9) do not apply to termination by notice of
non-renewal. Upon termination, Executive (or her beneficiary or estate, as the
case may be) shall be entitled to receive the compensation and benefits
described in Section 6 below, and, if applicable, Sections 7, 8, or 9, below.
(a) Death. Executive's employment shall terminate upon Executive's death.
(b) Total Disability. Dress Barn may terminate Executive's employment upon
her becoming "Totally Disabled". For purposes of this Agreement,
Executive shall be "Totally Disabled" if Executive is physically or
mentally incapacitated so as to render Executive incapable of
performing the material and substantial duties of President under this
Agreement for a period of ninety (90) consecutive days or one hundred
twenty (120) non-consecutive days in any twelve (12) month period.
Executive's receipt of disability benefits under Dress Barn's long-term
disability benefits plan (the "LTD Plan") or receipt of Social Security
disability benefits shall be deemed conclusive evidence of Total
Disability (as defined in this Section 5(b)) for purpose of this
Agreement; provided, however, that in the absence of Executive's
receipt of such long-term disability benefits or Social Security
benefits, the Board may determine that Executive is Totally Disabled
(as defined in this Section 5(b)) based upon the opinion of an
impartial reputable physician ("Impartial Physician") selected by
mutual agreement of the parties or their representatives, or failing
agreement within 10 days of a written request therefor by Dress Barn to
Executive, then an Impartial Physician designated by mutual agreement
of a physician selected by Executive (or her representatives) and a
physician selected by Dress Barn; the written opinion of such Impartial
Physician as to the issue of Total Disability shall be final and
binding on the parties.
(c) Termination by Dress Barn for Cause. Dress Barn may terminate
Executive's employment for "Cause". Such termination shall be effective
as of the date specified in the written Notice of Termination provided
to Executive.
(i) For purposes of this Agreement, the term "Cause" shall mean any
of the following: (A) conviction of a crime (including conviction
on a nolo contendere plea) involving the commission by Executive
of a felony or of a criminal act involving, in the good faith
judgment of the Board, fraud, dishonesty, or moral turpitude but
excluding any conviction which results solely from Executive's
title or position with Dress Barn and is not based on her
personal conduct; (B) intentional and willful failure to
satisfactorily perform employment duties reasonably requested by
Dress Barn or an affiliate after thirty (30) days' written notice
of such failure to perform, specifying that the failure
constitutes cause (other than as a result of vacation, sickness,
illness or injury); (C) fraud or embezzlement; (D) gross
misconduct or gross negligence in connection with the business of
Dress Barn or an affiliate which has a substantial adverse effect
on Dress Barn or the affiliate; (E) Executive's intentional and
willful act or omission which is materially detrimental to the
business or reputation of Dress Barn; or (F) breach of any of the
covenants set forth in Section 10 hereof.
(ii) Regardless of whether Executive's employment initially was
considered to be terminated for any reason other than Cause,
Executive's employment will be considered to have been terminated
for Cause for purposes of this Agreement if the Board
subsequently determines that Executive engaged in an act
constituting Cause and provides written notice to Executive of
such determination specifying the act purporting to constitute
cause.
(d) Termination by Dress Barn Without Cause. Dress Barn may terminate
Executive's employment under this Agreement without Cause after
providing Notice of Termination to Executive.
(e) Termination by Executive. Executive may terminate her employment under
this Agreement after providing a Notice of Termination to Dress Barn at
least sixty days prior to the Termination Date.
(f) Notice of Termination. Any termination of Executive's employment by
Dress Barn or by Executive (other than by reason of Executive's death)
shall be communicated by delivery of a written notice of termination to
the other party in accordance with Section 20 below ("Notice of
Termination"). Any notice of non-renewal pursuant to Section 2 shall be
delivered in accordance with Section 20 hereof.
(g) Termination Date. The effective date of Executive's termination of
employment (the "Termination Date") shall be
(i) in the event of termination for non-renewal by Dress Barn or
Executive pursuant to Section 2, at the end of the then current
Initial Term or Renewal Term;
(ii) in the event of her death, the date of death;
(iii)in the event of termination for Total Disability, the date
specified in the Notice of Termination;
(iv) in the event of termination for Cause, the date specified in the
Notice of Termination; and
(v) in the event of any other termination, the last day of the sixty
(60) day period beginning on the date on which written Notice of
Termination is given (the "Notice Period") or such earlier date
as may be specified by Dress Barn or such later date as may be
mutually agreed by the parties.
6. Compensation Following Termination of Employment.
The compensation payable under this Section 6 shall apply to any termination of
Executive's employment. The provisions of Sections 7, 8 and 9 provide for
additional compensation which may be payable under certain circumstances of
termination.
Upon termination of Executive's employment under this Agreement for any reason,
Executive (or her designated beneficiary or estate, as the case may be) shall be
entitled to receive the following compensation:
(a) Earned but Unpaid Compensation. Dress Barn shall pay Executive any
accrued but unpaid Base Salary for services rendered to the date of
termination, any accrued but unpaid expenses required to be reimbursed
under this Agreement, and any vacation accrued to the later of the date
of termination or the end of the Notice Period.
(b) Other Compensation and Benefits. Except as may otherwise be provided
under this Agreement,
(i) any benefits to which Executive may be entitled pursuant to the
Incentive Plan, Stock Plan, or any other plans, policies and
arrangements referred to in Section 4 above shall be determined
and paid in accordance with the terms of such plans, policies and
arrangements, and
(ii) Executive shall have no right to receive any other compensation,
or to participate in any other plan, arrangement or benefit, with
respect to future periods after such termination or resignation.
7. Benefits Payable Following Death or Total Disability.
In addition to the compensation set forth in Section 6 above, in the event that
Executive's employment is terminated by reason of her death or her Total
Disability as determined in accordance with Section 5(b), Executive or her
designated beneficiary or estate (as the case may be) shall receive such life
insurance or disability benefits, if any, to which Executive is entitled under
the plans or policies maintained by the Company; provided that in the event that
disability benefits are not available to Executive (through no fault of
Executive) upon the occurrence of a Total Disability, then Dress Barn shall pay
Executive her full Base Salary as determined under Section 4(a) at the rate in
effect on her Termination Date, as if her employment had continued until one
year following the Termination Date. Such payments shall be made at the same
time and in the same manner as such compensation had been paid prior to such
termination of employment.
8. Additional Compensation Payable Following Termination Without Cause.
(a) Requirements for Additional Compensation. In addition to the
compensation set forth in Section 6 above, and subject to the
provisions of Section 10(b)(B) hereof, Executive will receive the
additional compensation and benefits set forth in paragraph (b) below,
if all of the following requirements are met:
(i) Executive's employment is terminated by Dress Barn pursuant to
Section 5(d) above for reasons other than death, Total Disability
or Cause; and
(ii) Executive executes on or after her Termination Date, a Separation
Agreement and Release prepared by and acceptable to Dress Barn
which shall include a general release of Dress Barn and shall
confirm that Executive shall comply with the restrictive
covenants contained in Section 10 of this Agreement.
(b) Additional Compensation. Dress Barn shall provide Executive with the
following compensation and benefits during Executive's Separation Pay
Period (as determined pursuant to paragraph (c) below):
(i) Base Salary. Dress Barn shall pay Executive her full base salary
as determined under Section 4(b) at the rate in effect on her
Termination Date, as if her employment had continued until the
end of the Separation Pay Period. Such payments shall be made at
the same time and in the same manner as such compensation had
been paid prior to such termination of employment.
(ii) Welfare Benefits. Dress Barn shall provide for Executive's
continued coverage under all life, health, disability, and other
employee welfare benefit plans, programs, or arrangements,
whether group or individual, in which Executive was entitled to
participate immediately prior to the date of her termination,
until the earliest to occur of: (A) the end of the Separation Pay
Period; (B) Executive's death (provided that benefits payable to
her beneficiaries shall continue until the end of the Separation
Pay Period); or (C) with respect to any particular plan, program
or arrangement, the date Executive is afforded a comparable
benefit at a comparable cost to Executive by a subsequent
employer. In the event that Executive's participation in any such
employee welfare benefit plan, program, or arrangement of Dress
Barn is prohibited, Dress Barn shall arrange to provide Executive
with benefits substantially similar to those which Executive
would have been entitled to receive from Dress Barn under such
plan, program, or arrangement, for such period.
(c) Separation Pay Period. Executive's Separation Pay Period shall begin on
the later of Executive's Termination Date, or the end of the Notice
Period, if any, applicable to Executive and shall continue until the
end of the Initial Term or, if applicable, the Renewal Term then in
effect.
9. Discretionary Additional Compensation Payable Following Voluntary
Termination by Executive.
(a) Requirements for Additional Compensation. In addition to the
compensation set forth in Section 6 above, and subject to the
provisions of Section 10(b)(A) hereof, Executive will receive the
additional compensation set forth in paragraph (b) below, if all of the
following requirements are met:
(i) Executive terminates employment pursuant to Section 5(e) above;
(ii) Dress Barn, at its sole discretion, elects to extend the one year
restrictive covenant period applicable to competitive activity by
Executive set forth in Section 10 below; and
(iii)Executive executes on or after her Termination Date, a
Separation Agreement and Release prepared by and acceptable to
Dress Barn which shall include a general release of Dress Barn
and shall confirm that Executive shall comply with the
restrictive covenants contained in Section 10 of this Agreement.
(b) Additional Compensation. Dress Barn shall pay Executive her Base Salary
as determined under Section 4(a) at the rate in effect on her
Termination Date until the end of the Separation Pay Period (as
determined pursuant to Section 8(c) above) or for such shorter period
as may be determined by Dress Barn (the "Restrictive Covenant Period"),
as if her employment had continued until the end of the Restrictive
Covenant Period. Such payments shall be made at the same time and in
the same manner as such compensation had been paid prior to such
termination of employment.
(c) Notwithstanding anything herein to the contrary, if Executive
terminates employment pursuant to Section 5(e) by providing Notice of
Termination within six (6) months from the Effective Date, she shall
immediately forfeit and repay to Dress Barn the Signing Bonus paid to
her pursuant to Section 4(a)(i) hereof; and if Executive fails to
provide a Notice of Termination in connection with a voluntary
termination of employment, such forfeiture and repayment obligation
shall nonetheless apply to Executive if her employment terminates
within eight (8) months from the Effective Date.
10. Restrictive Covenants.
(a) Protected Information. Executive recognizes and acknowledges that she
will have access to various confidential or proprietary information
concerning Dress Barn and its affiliates of a special and unique value
which may include, without limitation, (i) books and records relating
to operation, finance, accounting, sales, merchandising. personnel and
management, (ii) policies and matters relating particularly to
operations such as customer service requirements, costs of providing
service and equipment, operating costs and pricing matters, and (iii)
various trade or business secrets, including business opportunities,
marketing or business diversification plans, business development and
bidding techniques, methods and processes, financial data and the like
(collectively, the "Protected Information"). Executive therefore
covenants and agrees that she will not at any time, either while
employed by Dress Barn or afterwards, make any independent use of, or
disclose to any other person or organization (except as authorized by
Dress Barn) any of the Protected Information.
(b) Competitive Activity. Executive covenants and agrees that at all times
(i) during her period of employment with Dress Barn,
(ii) during the period in which Executive receives compensation and
benefits pursuant to Section 7 (in the event of Total Disability)
or pursuant to Section 8 or 9 above, if applicable, and
(iii) during the period beginning on the later of ----- ---
(x) the Termination Date (whether termination of employment is
voluntary or involuntary, or by non-renewal or otherwise)
or
(y) the last date on which Executive receives compensation and
benefits pursuant to Section 7 (in the event of Total Disability)
or pursuant to Section 8 or 9 above, if applicable, and ending
one (1) year thereafter,
unless Dress Barn (at its sole discretion) gives its prior written
consent to such activity by Executive, she will not, directly or
indirectly, engage in, assist, or have any active interest or
involvement whether as an employee, agent, consultant, creditor,
advisor, officer, director, stockholder (excluding holding of less than
1% of the stock of a public company), partner, proprietor or any type
of principal whatsoever in any person, firm, or business entity which,
directly or indirectly, is engaged in "Competition" with Dress Barn;
except that (A) in the event of a voluntary termination by Executive
pursuant to Section 5(e), if Dress Barn, in its sole discretion, does
not elect to extend the restrictive covenant period pursuant to Section
9(a)(ii), then the provisions of clause (iii) of this Section 10(b)
shall not apply to Executive; if Dress Barn does elect to extend the
restrictive covenant period pursuant to Section 9(a)(ii), the
provisions of clause (iii) of this Section 10(b) shall apply even if
Executive does not execute a Separation Agreement and Release in
accordance with Section 9(a)(iii); and (B) in the event of a
termination by Dress Barn pursuant to Section 5(d), for any reason
other than death, Total Disability or Cause, Executive, shall in her
sole discretion determine whether or not to execute a Separation
Agreement and Release in accordance with Section 8(a)(ii); if Executive
does not execute the same, then Executive will not receive the
additional compensation and benefits set forth in Section 8(b) and the
provisions of clause (iii) of this Section 10(b) shall not apply to
Executive.
For purposes of this Agreement, "Competition" with Dress Barn shall mean (x) the
business of owning and/or operating one or more retail specialty stores that
sell women's apparel, within a three (3) mile radius of the location of any
store then owned by Dress Barn or an affiliate of Dress Barn, or (y) the
business of selling women's apparel through catalogs or internet sales. As used
in this Agreement, the term "affiliate" shall mean, with respect to a particular
person, a person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such person; and "retail specialty stores" shall not include department stores.
(c) Non-Solicitation. Executive covenants and agrees that
(i) during the period in which Executive receives compensation and
benefits pursuant to Section 7 (in the event of Total Disability)
or pursuant to Section 8 or 9 above, if applicable, and
(ii) during the period beginning on the later of the Termination Date
(whether termination of employment is voluntary or involuntary,
or otherwise) or the last date on which Executive receives
compensation and benefits pursuant to Section 7 (in the event of
Total Disability) or pursuant to Section 8 or 9, if applicable,
and ending one (1) year thereafter, she will not directly or
indirectly recruit, solicit, hire, or cause to be hired, any
individual who is then, or who has been within the preceding six
(6) month period, an employee of Dress Barn.
(d) Non-Disparagement. Executive covenants and agrees that during the
course of her employment by Dress Barn or at any time thereafter,
Executive shall not, directly or indirectly, in public or private,
deprecate, impugn, disparage, or make any remarks that would tend to or
be construed to tend to defame Dress Barn or any of its employees,
members of its board of directors or agents, nor shall Executive assist
any other person, firm or company in so doing.
(e) Return of Documents and Other Materials. Executive shall promptly
deliver to Dress Barn, upon termination of her employment, or at any
other time as Dress Barn may so request, all lists of customers, leads
and customer pricing, data processing programs and documentation,
employee information, memoranda, notes, records, reports, tapes,
manuals, drawings, blueprints, programs, and any other documents and
other materials (and all copies thereof) relating to Dress Barns'
business or that of its customers, and all property associated
therewith, which Executive may then possess or have under her control.
(f) Use of Confidential Information of Other Persons. Executive represents
and warrants that Executive has not brought and will not bring with
Executive to Dress Barn or use at Dress Barn any confidential
information, trade secrets, or other information which is proprietary
to another person or entity or which would breach any confidentiality
obligation (whether or not written) owed to another, unless express
written authorization for the possession and use of such confidential
or proprietary information has been obtained.
11. Enforcement of Covenants.
(a) Termination of Employment and Forfeiture of Compensation. Executive
agrees that in the event that Dress Barn determines that she has
breached any of the covenants set forth in Section 10 above during her
employment, Dress Barn shall have the right to terminate her employment
for Cause. In addition, Executive agrees that if Dress Barn determines
that she has breached any of the covenants set forth in Section 10 at
any time, Dress Barn shall have the right to discontinue any or all
remaining compensation and benefits payable pursuant to Section 7, 8 or
9 above, as applicable. Such termination of employment or
discontinuance of compensation and benefits shall be in addition to and
shall not limit any and all other rights and remedies that Dress Barn
may have against Executive.
(b) Right to Injunction. Executive acknowledges that the services to be
rendered by her to Dress Barn are of a special and unique character,
which gives this Agreement a peculiar value to Dress Barn. Executive
acknowledges that a breach of the covenants set forth in Section 10
above will cause irreparable damage to Dress Barn with respect to which
Dress Barn's remedy at law for damages will be inadequate. Therefore,
in the event of breach or anticipatory breach of the covenants set
forth in this section by Executive, Executive and Dress Barn agree that
Dress Barn shall be entitled to the following particular forms of
relief, in addition to remedies otherwise available to it at law or
equity: (i) injunctions, both preliminary and permanent, enjoining or
restraining such breach or anticipatory breach and Executive hereby
consents to the issuance thereof forthwith and without bond by any
court of competent jurisdiction; and (ii) recovery of all reasonable
sums expended and costs, including reasonable attorney's fees, incurred
by Dress Barn to enforce the covenants set forth in Section 10.
(c) Acknowledgments and Separability of Covenants. The parties acknowledge
that the type and periods of restriction imposed in Section 10 are fair
and reasonable and are reasonably required for the protection of Dress
Barn; and that the time, scope and other provisions of such section
have been specifically negotiated by the parties. Executive
specifically acknowledges that the restrictions contemplated by this
Agreement will not prevent her from being employed or earning a
livelihood.
The covenants contained in Section 10 above constitute a series of
separate covenants, one for each applicable State in the United States
and the District of Columbia, and one for each applicable foreign
country. If in any judicial proceeding, a court shall hold that any of
the covenants set forth in Section 10 permitted by applicable laws,
Executive and Dress Barn agree that such provisions shall and are
hereby reformed to the maximum time, geographic, or occupational
limitations permitted by such laws. Further, in the event a court shall
hold unenforceable any of the separate covenants deemed included
herein, then such unenforceable covenant or covenants shall be deemed
eliminated from the provisions of this Agreement for the purpose of
such proceeding to the extent necessary to permit the remaining
separate covenants to be enforced in such proceeding.
(d) Representation by Counsel. Executive acknowledges that she has had the
opportunity to consult with her own independent legal counsel with
respect to this Agreement, including without limitation, the
restrictive covenants contained in Section 10 hereof.
12. Withholding of Taxes.
Dress Barn shall withhold from any compensation and benefits payable under this
Agreement all applicable federal, state, local, or other taxes.
13. Arbitration of Disputes; Forum Selection.
Except as provided in Section 11 above, any controversy or claim arising out of
or relating to this Agreement, or the breach thereof, shall be settled by
arbitration administered by the American Arbitration Association under its
National Rules for the Resolution of Employment Disputes and judgment upon the
award rendered by the arbitrator(s) may be entered by any court having
jurisdiction thereof. Any such arbitration shall take place in the State of New
York. In connection with any legal proceedings pursuant to Section 11 or 14,
each of the parties hereby (i) irrevocably consents and agrees that any legal or
equitable action or proceeding arising under or in connection with this
Agreement shall be brought exclusively in any Federal or state court in the
County of New York, State of New York, and (ii) by execution and delivery of
this Agreement, irrevocably submits to and accepts, with respect to its
properties and assets, generally and unconditionally, the jurisdiction of the
aforesaid courts.
14. Waiver of Jury Trial.
In the event any controversy or claim arising out of Executive's employment or
the termination of Executive's employment is found by a court of competent
jurisdiction not to be subject to final and binding arbitration, Executive and
Dress Barn agree to try such claim or controversy to the court, without use of a
jury or advisory jury.
15. Non-Disclosure of Agreement Terms.
Executive agrees that she will not disclose (a) without the consent of Dress
Barn, prior to the Effective Date, the identity of Dress Barn as her prospective
employer, and (b) at any time, the terms of this Agreement to any third party
other than her immediate family, attorney, accountants, or other consultants or
advisors or except as may be required by any governmental authority. However,
Executive shall inform any person or entity who employs (or engages the services
of) Executive following the Termination Date of the restrictive covenants
contained in Section 10 of this Agreement to enable such person or entity to
take appropriate action to avoid the Executive's breaching the provisions of
Section 10.
16. No Claim Against Assets.
Nothing in this Agreement shall be construed as giving Executive any claim
against any specific assets of Dress Barn or as imposing any trustee
relationship upon Dress Barn in respect of Executive. Dress Barn shall not be
required to establish a special or separate fund or to segregate any of its
assets in order to provide for the satisfaction of its obligations under this
Agreement.
17. Successors and Assignment.
Except as otherwise provided in this Agreement, this Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
heirs, representatives, successors and assigns. This Agreement and the rights
and benefits of Executive under this Agreement shall not be assignable by
Executive; provided, however, that nothing in this Section 17 shall preclude
Executive from designating a beneficiary or beneficiaries to receive any benefit
payable on her death.
18. Entire Agreement; Amendment.
This Agreement shall supersede any and all existing oral or written agreements,
representations, or warranties between Executive and Dress Barn or any of its
affiliates relating to the terms of Executive's employment. It may not be
amended except by a written agreement signed by both parties.
19. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of
the State of New York applicable to agreements made and to be performed in that
State, without regard to its conflict of laws provisions.
20. Notices.
Any notice, consent, request or other communication made or given in connection
with this Agreement shall be in writing and shall be deemed to have been duly
given when delivered or mailed by registered or certified mail, return receipt
requested, or by facsimile or by hand delivery, to those listed below at their
following respective addresses or at such other address as each may specify by
notice to the others:
To Dress Barn:
Dress Barn, Inc.
00 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Chief Executive Officer
To Executive:
00 Xxxxxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
With a copy to:
Attorney Xxx X. Xxxxxxx
Xxxxxxxxxx and Xxxxxxx, LLC
Xxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
21. Miscellaneous.
(a) Waiver. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver
thereof or deprive that party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement.
(b) Separability. If any term or provision of this Agreement is declared
illegal or unenforceable by any court or tribunal of competent
jurisdiction and cannot be modified to be enforceable, such term or
provision shall immediately become null and void, leaving the remainder
of this Agreement in full force and effect.
(c) Headings. Section headings are used herein for convenience of reference
only and shall not affect the meaning of any provision of this
Agreement.
(d) Rules of Construction. Whenever the context so requires, the use of the
singular shall be deemed to include the plural and vice versa.
(e) Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, and such counterparts will together constitute but one
Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year set forth below.
Attachment A
DRESS BARN, INC. EXECUTIVE
By: /S/ XXXXXX X. XXXXX By: /S/ XXXXXXX X. XXXXXX
Name: Xxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
Date: November 15, 2000 Date: November 15, 2000
