EXECUTION VERSION
EXHIBIT 10.74
RETIREMENT AGREEMENT
This Retirement Agreement ("Agreement") is entered into by and between The
Gymboree Corporation, its successors, subsidiaries, and affiliates (the
"Company"), and Xxxx Xxxxxx ("Executive").
WHEREAS, Executive has informed the Company that she intends to retire
from the Company and resign as an employee, Chief Creative Officer, Chairman of
the Board and as a director of the Company;
NOW THEREFORE, in consideration of the mutual promises made herein, the
Company and Executive (collectively referred to as the "Parties") hereby agree
as follows:
1. RETIREMENT. Executive hereby resigns as an employee, Chief Creative
Officer, Chairman of the Board and as a director of the Company, effective as of
July 20, 2006 (the "Retirement Date").
2. CONSIDERATION. In return for Executive's promises herein, the Company
agrees to the following:
(a) Company shall pay Executive a one-time lump sum payment of
$1,161,000.00, less applicable withholdings and authorized deductions, within
ten (10) business days after the six (6) month anniversary of the Effective Date
(as defined in Section 13).
(b) On July 20, 2006, all of Executive's unvested stock options that would
have vested on or before June 30, 2007, shall become fully vested. The balance
of Executive's unvested stock options shall be cancelled as of the Effective
Date. Executive shall have until ninety (90) days after the Retirement Date to
exercise all vested options. Executive acknowledges and agrees that amendment of
Executive's option agreements to extend the exercise period from thirty (30) to
ninety (90) days for certain incentive stock options (ISOs) held by Executive
will disqualify Executive's stock options as ISOs and cause them to be treated
as a non-qualified stock option (NSO) for tax purposes. Executive agrees that
she will not exercise any stock options accelerated by this Section 2(b) until
July 28, 2006.
(c) Executive shall continue to receive the Company's standard insurance
benefits through August 31, 2006. Executive shall thereafter have the right to
convert her health insurance to individual coverage pursuant to COBRA. All
monies due Executive from her participation in the Company's 401(k) and 1993
Employee Stock Purchase Plan will be available in accordance with the rules of
each individual benefit program.
(d) Executive shall return the automobile currently leased by the Company
for Executive within sixty (60) days of the Retirement Date.
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EXECUTION VERSION
3. COMPENSATION, BENEFITS, AND APPROVED BUSINESS EXPENSE REIMBURSEMENT.
Executive acknowledges and agrees Executive has been paid all compensation,
benefits, payments, reimbursements and accrued vacation due to Executive as of
the Effective Date, except for those specifically provided for in this Agreement
and yet to be paid as set forth herein. The Company shall reimburse Executive
for approved business expenses incurred through the Retirement Date, subject to
Executive's compliance with the Company's policies, procedures, and rules on
such expenses and documentation thereof. All expenses must be submitted within
sixty (60) days of the Retirement Date.
4. CONFIDENTIAL INFORMATION. Executive acknowledges that she has had
access to confidential information. "Confidential Information" shall mean all
aspects of the business and/or personal lives of any past, present or future
officer or director of the Company, all trade secrets and other proprietary and
confidential information relating to the Company, including financial
information, payroll information, pricing information and cost of goods or sales
information, employee information, product sourcing information, formulas,
designs, fabrics, patterns, computer data or programs, know how, data, existing
and prospective vendor and supplier lists, files and prices, agreements and
contracts, documents, methods of conducting business, financial and accounting
statements and records, business plans, budgets and projections, prospective
customer and vendor proposals, technical information, marketing materials and
concepts, methods for developing and maintaining business relationships with
vendors, customers and prospective customers and any information designated as
Confidential Information by the Company. Executive acknowledges and agrees that
she will not, at any time without the prior written authorization of the Chief
Executive Officer of the Company, directly or indirectly use, divulge, furnish
or make accessible to any person any Confidential Information, but instead shall
keep all Confidential Information strictly and absolutely confidential. Further,
Executive certifies that she has returned to the Company all Confidential
Information in her possession. Nothing contained in this paragraph shall be
construed as a non-competition agreement; however, this confidentiality
agreement applies to any and all of Executive's activities with respect to
prospective or actual employers and in the case of self-employment. Further, for
a period of twelve (12) months from the Effective Date, Executive agrees to
comply with the Company's Business and Ethics Code of Conduct.
5. COMPANY PROPERTY. Executive shall return all Company property,
including without limitation, credit cards, pagers, and Blackberry devices and
shall return all originals and copies (including computer files and discs)
containing confidential and proprietary information in her possession to the
Company on or before the Effective Date; provided however, that Executive may
retain the Company cell phone and the Company laptop computer that she currently
uses provided, however, that all Confidential Information and other Company
information is deleted from such laptop computer.
6. CONFIDENTIALITY OF SETTLEMENT INFORMATION. Executive agrees that she
will keep the fact, terms, and amount of this Agreement and the discussions and
negotiations related to this Agreement ("Settlement Information") completely
confidential and that she will not hereafter disclose any Settlement Information
to anyone, provided that Executive
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EXECUTION VERSION
and Company may make such disclosures as are required by law and as are
necessary for legitimate law enforcement or compliance purposes (the Parties
specifically acknowledge that this Agreement will be filed on a Current Report
on Form 8-K with the Securities and Exchange Commission. Each Party hereto
agrees to take every reasonable precaution to prevent disclosure of any
Settlement Information to third parties, and each agrees that there will be no
publicity, directly or indirectly, concerning any Settlement Information except
as may be required by law. Notwithstanding the foregoing, Executive may disclose
the terms of this Agreement to her attorney or tax advisor provided she informs
said attorney or tax advisor of the confidential nature of the information
provided. Executive may state to anyone that "all issues between Executive and
the Company have been resolved" without violating this provision.
7. NON-DISPARAGEMENT. Each Party agrees to refrain from any defamation,
libel or slander of the other, including without limitation, disparagement of
either party's name, qualifications, products or services. In addition,
Executive agrees that she shall not at any time engage in any form of conduct,
nor make any statements or representations, that disparage or otherwise impair
the reputation, goodwill or interests of (a) the Company, its Board of
Directors, or any of the past, current or future members thereof, (b) the
products of the Company or (c) the Company's attorneys, accountants, or other
independent contractors, or their successors, in connection with their services
to the Company; provided however, that notwithstanding the foregoing, from and
after the third anniversary of the Effective Date, Executive may make statement
or representations concerning the Company based on factually accurate
information. All inquiries by potential future employers of Executive will be
directed to Senior Vice President, Human Resources.
8. COMMENTS TO FINANCIAL PRESS. Executive acknowledges that she is no
longer authorized to act as a representative of the Company in any manner and
shall, in addition to Executive's obligations under Sections 4 and 6, not
discuss the Company, its operations, business, management or other aspects of
its business with financial analysts and the press.
9. NON-SOLICITATION OF EMPLOYEES. Executive agrees that for a period of
one (1) year immediately following the Effective Date, she shall not either
directly or indirectly solicit, induce, recruit or encourage any of the
Company's present or future employees to leave their employment, or take away
such employees, or attempt to solicit, induce, recruit or encourage or take away
employees of the Company, or otherwise terminate or reduce their relationship
with the Company, either for herself or for any other person or entity. For
purposes of this Section 9, "employees" shall include independent contractors,
agents and business partners of the Company.
10. DIRECTORSHIP. Executive agrees that she will not seek or accept a
nomination to the Board of Directors of the Company unless requested by a
majority of the Board of Directors.
11. RELEASE OF CLAIMS. Executive agrees that the foregoing consideration
represents settlement in full of all outstanding obligations owed to Executive
by the
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EXECUTION VERSION
Company. Executive and the Company, on behalf of themselves, and their
respective heirs, executors, officers, directors, employees, investors,
shareholders, administrators, subsidiary, predecessor and successor corporations
and their affiliates, and assigns, hereby fully and forever release each other
and their respective heirs, executors, officers, directors, employees,
investors, shareholders, administrators, subsidiary, predecessor and successor
corporations and their affiliates, and assigns, of and from any claim, duty,
obligation or cause of action relating to any matters of any kind, whether
presently known or unknown, suspected or unsuspected, that any of them may
possess arising from any omissions, acts or facts that have occurred up until
and including the Effective Date including, without limitation,
(a) any and all claims relating to or arising from Executive's employment
relationship with and service as a director of the Company and the termination
of that relationship and service;
(b) any and all claims relating to, or arising from, Executive's right to
purchase, or actual purchase of shares of stock of the Company, including,
without limitation, any claims for fraud, misrepresentation, breach of fiduciary
duty, breach of duty under applicable state corporate law, and securities fraud
under any state or federal law;
(c) any and all claims of wrongful discharge of employment; termination in
violation of public policy; discrimination; breach of contract, both express and
implied; breach of a covenant of good faith and fair dealing, both express and
implied; promissory estoppel; negligent or intentional infliction of emotional
distress; negligent or intentional misrepresentation; negligent or intentional
interference with contract or prospective economic advantage; unfair business
practices; retaliation, defamation; libel; slander; negligence; personal injury;
assault; battery; invasion of privacy; false imprisonment; and conversion;
(d) any and all claims for violation of any federal, state or municipal
statute, including, but not limited to, Title VII of the Civil Rights Act of
1964, the Civil Rights Act of 1991, the Age Discrimination in Employment Act of
1967, the Americans with Disabilities Act of 1990, Older Workers Benefit
Protection Act, the California Fair Employment and Housing Act, and the
California Labor Code;
(e) any and all claims for violation of the federal, or any state,
constitution;
(f) any and all claims arising out of any other laws and regulations
relating to employment or employment discrimination; and
(g) any and all claims for attorneys' fees and costs.
The Company and Executive agree that the release set forth in this section shall
be and remain in effect in all respects as a complete general release as to the
matters released. This release does not extend to any obligations incurred under
this Agreement.
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EXECUTION VERSION
12. CIVIL CODE SECTION 1542. The Parties represent that they are not aware
of any claim by either of them other than the claims that are released by this
Agreement. Executive and the Company acknowledge that each is familiar with the
provisions of California Civil Code Section 1542, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
Executive and the Company, being aware of and having bargained for said
code section, each agree to expressly waive any rights they may have thereunder,
as well as under any other statute or common law principles of similar effect.
13. ACKNOWLEDGMENT OF WAIVER OF CLAIMS UNDER ADEA. Executive acknowledges
that she is waiving and releasing any rights she may have under the Age
Discrimination in Employment Act of 1967 ("ADEA") and that this waiver and
release is knowing and voluntary. Executive acknowledges that the consideration
given for this waiver and release is in addition to anything of value to which
Executive was already entitled. Executive further acknowledges that she has been
advised by this writing that: (a) she should consult with an attorney prior to
executing this Agreement; (b) she has twenty-one (21) days within which to
consider this Agreement; (c) she has seven (7) days following her execution of
this Agreement to revoke the Agreement by doing so by overnight delivery
addressed to Xxxxxx Xxxxxxxxx, Senior Vice President, at the Company; and (d)
this Agreement shall not be effective until the seven-day revocation period has
expired ("Effective Date").
14. LIQUIDATED DAMAGES. The Company and Executive acknowledge and agree
that Sections 4, 6, 7, 8 and 9 of this Agreement are material terms of this
Agreement and the time and expenses involved in proving in any forum the actual
damage or loss suffered by the Company if there is a breach of Sections 4, 6, 7,
8 or 9 make any such breach appropriate for liquidated damages. Accordingly,
instead of requiring any proof of damages or losses, the Parties hereto agree
that Executive shall pay the Company the sum of Two Hundred and Fifty Thousand
Dollars ($250,000) for any single incident of breach of Sections 4, 6, 7, 8 or 9
(but not as a penalty). This liquidated damages provision shall not be
interpreted so as to require multiple payments if there is only one breach by
Executive. The Company, if it seeks liquidated damages, shall have the burden of
proof by a preponderance of the evidence establishing the breach of any of
Sections 4, 6, 7, 8 and/or 9. Attorneys' fees and costs shall be awarded to the
prevailing party. The Parties acknowledge and agree that this sum is reasonable
under the circumstances. Neither the breach of any of Sections 4, 6, 7, 8 and/or
9 nor the payment of liquidated damages by any person or entity shall affect the
Company's other rights or remedies or the continuing validity or enforceability
of this Agreement. In addition, the Company may seek the issuance of a temporary
restraining order and then an injunction, or may seek any other equitable relief
available to Company under applicable law.
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EXECUTION VERSION
15. NO REPRESENTATIONS. Each party represents that it has had the
opportunity to consult with an attorney, and has carefully read and understands
the scope and effect of the provisions of this Agreement. Neither party has
relied upon any representations or statements made by the other party hereto
which are not specifically set forth in this Agreement.
16. NO PENDING OR FUTURE LAWSUITS. Executive represents that she has no
lawsuits, claims or actions pending in her name, on behalf of any other person
or entity, against the Company or any other person or entity referred to herein
with any state, federal or local agency or court. Executive also represents that
she will not do so at any time hereafter (either on her account or as a member
of a class) and that if any agency or court assumes jurisdiction of any
complaint, claim, or action (including, without limitation, any class action)
against the Company or its affiliated companies or any of their officers,
agents, directors, supervisors, employees, or representatives on behalf of the
Executive, the Executive will direct that agency or court to withdraw from or
dismiss with prejudice the matter as to any claim made by her or on her behalf.
17. COOPERATION. Executive shall make herself available to the Company in
order to respond to reasonable requests for information pertaining to the
Company. Executive shall cooperate fully in connection with any and all existing
or future depositions, litigations or investigations brought by or against the
Company or any of its agents, officers, directors, or employees, whether
administrative, civil or criminal in nature, in which and to the extent
Executive's cooperation is necessary. In the event that Executive is subpoenaed
in connection with any litigation or investigation, Executive will immediately
notify the Company and shall give the Company an opportunity to respond to such
notice before taking any action or making any decision in connection with such
subpoena. The Company will reimburse Executive for reasonable out-of-pocket
expenses incurred as a result of such cooperation.
18. ENTIRE AGREEMENT. This Agreement, and the other agreements referenced
herein, represent the entire agreement and understanding between the Company and
Executive concerning Executive's retirement from the Company, and supersede and
replace any and all prior agreements and understandings concerning Executive's
relationship with the Company.
19. NO ORAL MODIFICATION. This Agreement may only be amended in writing
signed by Executive and the Chief Executive Officer, Chief Financial Officer or
the Senior Vice President, Human Resources of the Company.
20. COSTS. The Parties shall each bear their own costs, expert fees,
attorneys' fees and other fees incurred in connection with this Agreement.
21. ENFORCEMENT. The Parties agree that any and all disputes arising out
of the terms of this Agreement, their interpretation, and any of the matters
herein released, shall be subject to enforcement in any court of general
jurisdiction in San Francisco County. The
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EXECUTION VERSION
Parties agree that the prevailing Party shall be entitled to recover from the
other Party its reasonable attorneys fees and costs incurred to enforce this
Agreement.
22. AUTHORITY. The Company represents and warrants that the undersigned
has the authority to act on behalf of the Company and to bind the Company and
all who may claim through it to the terms and conditions of this Agreement.
Executive represents and warrants that she has the capacity to act on her own
behalf and on behalf of all whom might claim through her to bind them to the
terms and conditions of this Agreement. Each Party warrants and represents that
there are no liens or claims of lien or assignments in law or equity or
otherwise of or against any of the claims or causes of action released herein.
23. NON-ADMISSION. This Agreement and compliance with this Agreement shall
not be construed as an admission by the Company of any liability whatsoever, or
as an admission by the Company of any violation of the rights of Executive or
any person, violation of any order, law, statute, duty, or contract whatsoever
against the Executive or any person. The Company specifically disclaims any
liability to the Executive or any other person for any alleged violation of the
rights of the Executive or any person, or for any alleged violation of any
order, law, statute, duty, or contract on the part of the Company, its employees
or agents or related companies or their employees or agents.
24. WAIVER. No claim or right arising out of a breach or default under
this Agreement can be discharged by a waiver of that claim or right unless the
waiver is in writing and signed by the party hereto to be bound by such waiver.
A waiver by either party hereto of a breach or default by the other party of any
provision of this Agreement shall not be deemed a waiver of future compliance
therewith and such Agreement in its entirety shall remain in full force and
effect.
25. SUCCESSORS. This Agreement shall be binding upon the parties hereto
and upon their heirs, administrators, representatives, executors, successors,
and assigns, and shall inure to the benefit of said parties and each of them and
to their heirs, administrators, representatives, executors, successors and
assigns. The Executive expressly warrants that the Executive has not transferred
to any person or entity any rights, causes of action, or claims released in this
Agreement.
26. SEVERABILITY. In the event that any provision hereof becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision.
27. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of California.
28. COUNTERPARTS. This Agreement may be executed in counterparts, and each
counterpart shall have the same force and effect as an original and shall
constitute an effective, binding agreement on the part of each of the
undersigned.
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EXECUTION VERSION
29. VOLUNTARY EXECUTION OF AGREEMENT. This Agreement is executed
voluntarily and without any duress or undue influence on the part or behalf of
the Parties hereto, with the full intent of releasing all claims. The Parties
acknowledge that:
(a) They have read this Agreement;
(b) They have been represented in the preparation, negotiation, and
execution of this Agreement by legal counsel of their own choice or that they
have voluntarily declined to seek such counsel;
(c) They understand the terms and consequences of this Agreement and of
the release it contains;
(d) They are fully aware of the legal and binding effect of this
Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the
respective dates set forth below.
THE GYMBOREE CORPORATION
Date: July 19, 2006 By /s/ Xxxxxxx XxXxxxxx
---------------------------------
Xxxxxxx XxXxxxxx
Chief Executive Officer
Date: July 19, 2006 /s/ XXXX XXXXXX
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XXXX XXXXXX
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