EXHIBIT 10.27
EMPLOYMENT SEPARATION AGREEMENT
This Agreement ("Agreement") is made by and between XXXXXX XXXXXX
("Employee") and ABERCROMBIE & FITCH CO., a Delaware corporation (the "Company")
(hereinafter collectively "the parties").
NOW, THEREFORE, in exchange for and in consideration of the
following mutual covenants and promises, the undersigned parties, intending to
be legally bound, hereby agree as follows:
1. Resignation from Employment. Employee intends to resign from, and
thereby terminate, her employment with the Company effective October 29, 2004
("Resignation Date"). On the Resignation Date, Employee's employment with the
Company and all further compensation, remuneration, bonuses, and eligibility of
Employee under Company benefit plans shall terminate, and Employee shall not be
entitled to receive any further payments or benefits of any kind from the
Company except as otherwise provided in this Agreement or by applicable law.
2. Payment of accrued but unused Vacation. The Company agrees to pay
to Employee an amount equal to three (3) weeks of her current base salary for
vacation time earned but not used prior to the Resignation Date. Payment will be
made within ten (10) days of receipt by the Company of the signed original of
this Agreement.
3. Management IC Bonus Payment. The Company agrees to pay the
Employee a pro-rated share of her projected IC Bonus payout (at target) for the
current bonus period (8/1/2004 - 1/31/2005). The pro-rated payment will be
$99,000 (less applicable taxes) and reflects payment for three months of the
current six month bonus period. Payment will be made within ten (10) days of
receipt by the Company of the signed original of this Agreement.
4. Cost of Moving Personal Goods. In addition to the payments under
Paragraphs 2 and 3, the Company shall also pay to Employee an amount of
$15,593.04, which is the full cost of moving the Employee's personal belongings
back to her residence in New York as evidenced by receipts provided by Employee.
Payment will be made within ten (10) days of receipt by the Company of the
signed original of this Agreement.
5. Employee Covenants.
(a) Non-Solicitation. During the No-Raid Period described
below, the Employee shall not, either directly or indirectly, alone, or in
conjunction with another party, intentionally harm, or intentionally attempt to
harm, the relationship of the Company, its subsidiaries and/or affiliates (1),
with any person who is an employee, customer or supplier of the Company, its
subsidiaries and/or affiliates (1) or otherwise has a business relationship with
the Company, its subsidiaries and/or affiliates (1). This paragraph shall not
prohibit Employee, in the normal course of Employee's business or future
employment, from doing business with, or entering into a contractual
relationship with, any customer or supplier of the Company, or any individual or
entity (other than an individual currently employed by the Company, its
subsidiaries and/or affiliates (1), as set forth below) who otherwise has a
business relationship with the Company.
During the "No-Raid Period" Employee shall not hire, solicit for
hire, aid in the hire, or cause to be hired, either as an employee or
contractor, any person who is currently employed by the Company, its
subsidiaries and/or affiliates (1).
The "No-Raid Period" means the one year period following the
Resignation Date.
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(1) Subsidiaries and/or affliates, as used in this Agreement, are those
entities contained in Exhibit A hereto.
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(b) Unauthorized Disclosure. The Employee shall not, during her
employment with the Company and thereafter, make any Unauthorized Disclosure.
For purposes of this Agreement, "Unauthorized Disclosure" shall mean disclosure
by the Employee without the prior written consent of the Company to any person,
other than an employee of the Company, or as may be legally required, of any
confidential information with respect to any of the Company's customers,
products, methods of distribution, strategies, business and marketing plans,
business policies and practices, litigation strategies or defenses, and plans
for new business concepts; provided, however, that such term shall not include
the use or disclosure by the Employee, without consent, of any information known
generally to the public (other than as a result of disclosure by the Employee in
violation of this Paragraph 5(b)). This confidentiality covenant has no
temporal, geographical or territorial restriction.
(c) Cooperation, Non-Disparagement, and Indemnity. The Employee
shall not state or otherwise publish anything about the Company or its officers
which would adversely affect the reputation, image or business relationships and
goodwill of the Company in its market and community at large. Employee shall
fully cooperate with the Company in defense of legal claims asserted against the
Company and other matters requiring the testimony or input and knowledge of
Employee, and the Company agrees to reimburse Employee at a flat rate of $350
per hour in addition to reasonable expenses incurred as a result thereof.
Employee agrees that she will not speak or communicate with any party or
representative of any party, who is known to Employee to be either adverse to
the Company in litigation or administrative proceedings or to have threatened to
commence litigation or administrative proceedings against the Company, with
respect to the pending or threatened legal action, unless given express
permission to do so by the
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Company, or is otherwise compelled by law to do so, and then only after advance
notice to the Company.
(d) Remedies. The Employee agrees that any breach of the terms of
this Paragraph 5(b)-(c) of this Agreement would result in irreparable injury and
damage to the Company for which the Company would have no adequate remedy at
law. The Employee therefore also agrees that in the event of Employee violating
Paragraph 5(b)-(c) of this Agreement, the Company shall be entitled to an
immediate injunction and restraining order to prevent breach and/or threatened
breach and/or continued breach by the Employee and/or any and all persons and/or
entities acting for and/or with the Employee, of said Paragraph 5, without
having to prove damages, in addition to any other remedies to which the Company
may be entitled at law or in equity. The terms of this subparagraph shall not
prevent the Company from pursuing any other available remedies for any breach or
threatened breach hereof including but not limited to the recovery of damages
from the Employee. The Employee and the Company further agree that the
provisions of the covenants not to solicit are reasonable and that the Company
would not have entered into this Agreement but for the inclusion of such
covenants herein. Should a court or arbitrator determine, however, that any
provision of the covenants is unreasonable, either in period of time,
geographical area, or otherwise, the parties hereto agree that the covenant
should be interpreted and enforced to the maximum extent in which such court or
arbitrator deems reasonable.
6. Non-Disparagement by Company. The Company agrees that its
officers shall not state or otherwise publish anything about Employee which
would adversely affect the reputation, image or business relationships and
goodwill of Employee in the community at large. If the Company is asked to
supply a reference for Employee, the Company shall respond by
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providing Employee's dates of employment and title, and will inform the
inquiring party that the Company's policy is not to provide additional
information. Nothing in this Paragraph 6 shall be deemed to apply to or restrict
in any manner internal communications within the Company or communications made
pursuant to Company business operations which are not made to intentionally
harm, or attempt to harm, Employee's reputation, image, or business
relationships and goodwill.
7. Confidentiality. Employee agrees not to at any time talk about,
write about, or otherwise publicize or disclose to any third party the terms of
this Agreement or any fact concerning its negotiation, execution or
implementation, except with (1) an attorney, accountant, or other advisor
engaged by Employee to advise her; (2) the Internal Revenue Service or other
governmental agency upon proper request; and (3) her immediate family, providing
that all such persons agree in advance to keep said information confidential and
not to disclose it to others. Employee may provide to a prospective employer a
copy of the language set forth in paragraphs 5(a) and 5(b) of this Agreement.
Employee must set forth the language in paragraphs 5(a) and 5(b) in a separately
prepared document for this purpose.
8. Release of All Claims.
(a) Release of Company by Employee. In consideration of the
receipt of the sums and covenants stated herein, Employee does hereby, on behalf
of herself, her heirs, administrators, executors, agents, and assigns, forever
release, requite, and discharge the Company and its agents, parents,
subsidiaries, affiliates, divisions, officers, directors, employees,
predecessors, successors, and assigns ("Released Parties"), from any and all
charges, claims, demands, judgments, actions, causes of action, damages,
expenses, costs, attorneys' fees, and liabilities of any kind whatsoever,
whether known or unknown, vested or contingent, in law,
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equity or otherwise, which Employee has ever had, now has, or may hereafter have
against said Released Parties for or on account of any matter, cause or thing
whatsoever which has occurred prior to the date of his signing this Agreement.
This release of claims includes, without limitation of the generality of the
foregoing, any and all claims which are related to Employee's employment with
the Company and her resignation from her officer position and her employment on
October 29, 2004; and any and all rights which Employee has or may have had
under Title VII of the Civil Rights Act of 1964, as amended by the Equal
Employment Opportunity Act of 1972, the Civil Rights Act of 1991; the Employee
Retirement Income Security Act, 29 U.S.C. Section 1001 et seq.; the Americans
With Disabilities Act; the Age Discrimination in Employment Act, as amended;
Ohio Revised Code Section 4112.01 et seq.; and all other federal, state, and
local statutes and regulations, as well as the laws of contract, torts, and all
other subjects; provided, however, that nothing herein shall be deemed to affect
any rights of Employee under this Agreement or to any pension, employee welfare
benefits, stock options, or restricted shares which were vested prior to the
Resignation Date; and provided further that nothing herein shall be deemed to
affect any rights of Employee to indemnity for liabilities incurred for acts
taken in good faith in the course and scope of employment with the Company which
acts are otherwise covered under the terms and conditions of Directors and
Officers liability insurance maintained by Company during the employment of
Employee.
9. Age Discrimination Claims and Older Worker's Benefit Protection
Act Terms. Employee specifically acknowledges that the release of her claims
under this Agreement includes, without limitation, waiver and release of all
claims against the Company and Released Parties under the federal Age
Discrimination in Employment Act ("ADEA"), and Employee further acknowledges and
agrees that: i) Employee waives her claims under ADEA knowingly
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and voluntarily in exchange for the commitments made herein by the Company, and
that certain of the benefits provided thereby constitute consideration of value
to which the Employee would not otherwise have been entitled; ii) Employee was
and is hereby advised to consult an attorney in connection with this Agreement;
iii) Employee has been given a period of 21 days within which to consider the
terms of this Agreement; iv) Employee may revoke her signature on this Agreement
for a period of 7 days following her execution of this Agreement, rendering the
Agreement null and void; v) this Agreement is written in plain and
understandable language which Employee fully understands; and vi) this Agreement
complies in all respects with Section 7(f) of ADEA and the waiver provisions of
the federal Older Worker Benefit Protection Act.
10. Complete and Absolute Defense. This Agreement constitutes, among
other things, a full and complete release of any and all claims released by
either party, and it is the intention of the parties hereto that this Agreement
is and shall be a complete and absolute defense to anything released hereunder.
The parties expressly and knowingly waive their respective rights to assert any
claims against the other which are released hereunder, and covenant not to xxx
the other party or Released Parties based upon any claims released hereunder.
The parties further represent and warrant that no charges, claims or suits of
any kind have been filed by either against the other as of the date of this
Agreement.
11. Non-Admission. It is understood that this Agreement is, among
other things, an accommodation of the desires of each party, and the
above-mentioned payments and covenants are not, and should not be construed as,
an admission or acknowledgment by either party of any liability whatsoever to
the other party or any other person or entity.
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12. Return of Property. Employee agrees that in connection with her
resignation from employment, she shall promptly return to the Company all
Company documents and property in her possession or control including, but not
limited to, Personal Computer(s) and all Software, Security Keys and Badges,
Price Lists, Supplier and Customer Lists, Employee Lists, including
compensation, salary and benefit information, Files, Reports, all correspondence
both internal and external (memo's, letters, quotes, etc.), Business Plans,
Budgets, Designs, and any and all other property of the Company.
13. Knowing and Voluntary Execution. Each of the parties hereto
further states and represents that she or it has carefully read the foregoing
Agreement, consisting of 9 pages, and knows the contents thereof, and that she
or it has executed the same as her or its own free act and deed. Employee
further acknowledges that she has been and is hereby advised to consult with an
attorney concerning this Agreement and that she had adequate opportunity to seek
the advice of legal counsel in connection with this Agreement. Employee also
acknowledges that she has had the opportunity to ask questions about each and
every provision of this Agreement and that she fully understands the effect of
the provisions contained herein upon her legal rights.
14. Executed Counterparts. This Agreement may be executed in one or
more counterparts, and any executed copy of this Agreement shall be valid and
have the same force and effect as the originally-executed Agreement.
15. Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Ohio.
16. Modification. No provision of this Agreement may be modified,
waived
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or discharged unless such waiver, modification or discharge is agreed to in
writing and signed by the Employee and the Company.
17. Assignability. Employee's obligations and agreements under this
Agreement shall be binding on the Employee's heirs, executors, legal
representatives and assigns and shall inure to the benefit of any successors and
assigns of the Company. The Company may, at any time, assign this Agreement or
any of its rights or obligations arising hereunder to any party.
18. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto in respect of the subject matter hereof and
this Agreement supersedes all prior and contemporaneous agreements between the
parties hereto in connection with the subject matter hereof.
19. Effective Date. This Agreement will become effective on the
eighth day following signature by Employee, unless sooner revoked by Employee by
written revocation delivered to the Company's Chief Executive Officer.
IN WITNESS WHEREOF, the undersigned has hereto set his hand this
7th day of February, 2005.
WITNESSED:
/s/ Xxxxx Xxxxxxx /s/ Xxxxxx Xxxxxx
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Xxxxx Xxxxxxx XXXXXX XXXXXX
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IN WITNESS WHEREOF, the undersigned has hereto set its hand this
17th day of February, 2005.
WITNESSED: ABERCROMBIE & FITCH CO.
/s/ Xxxxxx Xxxxxxxxxx By: /s/ Xxxxx Xxxxxxx
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Xxxxxx Xxxxxxxxxx Its: VP of Compensation and Benefits
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EXHIBIT A
Abercrombie & Fitch Co.
A&F 2001, Inc.
Abercrombie & Fitch Holding Corporation
Fitch 2001, Inc.
Abercrombie & Fitch Distribution Company
Abercrombie & Fitch Fulfillment Company
Abercrombie & Fitch Management Co.
Xxxxxxx, LLC
Canoe, LLC
A&F Trademark, Inc.
Abercrombie & Fitch Trading Co.
Abercrombie & Fitch Stores, Inc.
FAN Company, LLC
Abercrombie & Fitch Limited
Abercrombie & Fitch Procurement Services, LLC
X.X. Xxxxxxxxx, LLC
A&F West Coast Holding, Inc.
A&F Ohio, Inc.
A&F Michigan, Inc.
J.M.H. Trademark, Inc.
A&F California, LLC
Hollister California, LLC
Hollister Ohio, LLC
Hollister Michigan, LLC
Xxxxx No. 925, LLC
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