EXHIBIT 10.17
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement"), effective as of March 7, 2001 (the
"Effective Date"), between ANNTAYLOR STORES CORPORATION, a Delaware corporation
(the "Company"), and Barry Erdos (the "Executive").
WHEREAS, the Company desires to provide for the continued service and
employment of the Executive with the Company and the Executive wishes to
continue to perform services for the Company, all in accordance with the terms
and conditions provided herein;
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements of the parties herein contained, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. Employment. The Company hereby agrees to continue to employ the
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Executive, and the Executive hereby agrees to continue to serve the Company, on
the terms and conditions set forth herein.
2. Term. The term of employment of the Executive by the Company hereunder
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(the "Term") will commence as of the Effective Date and will end on the third
anniversary of the Effective Date; provided, however, that commencing on the
third anniversary of the Effective Date, and each such anniversary thereafter,
the term of the Executive's employment shall automatically be extended for one
(1) additional year, unless, no later than 90 days prior to such anniversary,
either party shall have given notice to the other that it does not wish to
extend the Term of this Agreement (such notice, a "Non-Renewal Notice").
Notwithstanding expiration of the Term or other provisions that survive by their
intent, the provisions of Sections 4, 7 and 8 hereof shall continue in effect.
3. Position and Duties. The Executive shall serve as Senior Executive Vice
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President and Chief Operating Officer of the Company and shall have such
responsibilities, duties and authority consistent with such positions as may
from time to time be determined by the Board of Directors of the Company (the
"Board"). The Executive shall report directly to the Chairman and Chief
Executive Officer (the "CEO"). The Executive shall devote substantially all of
his working time and efforts to the business and affairs of the Company.
4. Indemnification. To the fullest extent permitted by law and the
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Company's certificate of incorporation and by-laws, the Company shall indemnify
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the Executive for all amounts (including, without limitation, judgments, fines,
settlement payments, losses, damages, costs and expenses (including reasonable
attorneys' fees)) incurred or paid by the Executive in connection with any
action, proceeding, suit or investigation arising out of or relating to the
performance by the Executive of services for, or acting as a fiduciary of any
employee benefit plans, programs or arrangements of the Company or as a
director, officer or employee of, the Company or any subsidiary thereof.
5. Compensation and Related Matters.
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(a) Annual Compensation.
(i) Base Salary. Commencing on the Effective Date and
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continuing during the period of the Executive's
employment hereunder, the Company shall pay to the
Executive an annual base salary at a rate not less than
$525,000, such salary to be paid in conformity with the
Company's policies relating to salaried employees. This
salary may be (but is not required to be) increased
from time to time, subject to and in accordance with
the annual executive performance review procedures of
the Company.
(ii) Annual Bonus. Commencing on the Effective Date and
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continuing during the period of Executive's employment
hereunder, the Executive shall be eligible to
participate in the Company's annual bonus plan as in
effect from time to time, and shall be entitled to
receive such amounts (a "Bonus") as may be authorized,
declared and paid by the Company pursuant to the terms
of such plan. The Company currently maintains a
Management Performance Compensation Plan (the
"Performance Plan") pursuant to which it pays
performance bonus compensation to certain of its
executives and employees. It is agreed that the
Executive shall participate in the Performance Plan
effective as of the Effective Date. This Executive's
Performance Percentage (as that term is defined in the
Performance Plan) shall be established at 60% per annum
during the Term. Executive shall also participate in
the Long Term Cash Incentive Compensation Plan
currently maintained by the Company, and his Target
Award (as defined in such plan) shall be 40%.
(b) Stock Option. As of the Effective Date the Executive has
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been granted a ten-year non-qualified option to acquire
75,000 shares of common stock of the Company ("Shares")
pursuant to the Company's Amended and Restated 1992 Stock
Option and Restricted Stock Plan (the "1992 Plan"). The
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option price per Share shall be equal to the Fair Market
Value (as defined in the 1992 Plan) of a Share as of the
Effective Date. The option shall become exercisable with
respect to one-fourth of the Shares subject thereto on each
of the first four anniversaries of the Effective Date,
provided Executive has remained continuously employed by the
Company until the applicable date (except as provided in
Section 6(e)(vi) hereof). The option granted hereunder shall
contain such other terms and conditions as are set forth in
the Company's standard stock option agreements applicable to
such option, including, but not limited to, accelerated
exercisability upon the occurrence of a Change in Control,
which shall have the same meaning as the term "Acceleration
Event," as defined in the 1992 Plan (a "Change in Control").
(c) Restricted Stock. As of the Effective Date, Executive has
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been granted 25,000 restricted shares of common stock of the
Company (the "Restricted Shares") pursuant to the 1992 Plan.
One-fourth of the Restricted Shares shall vest on, and be
delivered to the Executive promptly following, each of the
first four anniversaries of the Effective Date, provided the
Executive has remained continuously employed by the Company
until the applicable date (except as provided in Section
6(e)(v) hereof). Notwithstanding the foregoing, any
outstanding Restricted Shares shall become fully vested on a
Change in Control.
(d) Other Benefits. Commencing on the Effective Date and
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continuing during the period of Executive's employment
hereunder, the Executive shall be entitled to participate in
all other employee benefit plans, programs and arrangements
of the Company, as now or hereinafter in effect, which are
applicable to the Company's employees generally or to its
executive officers, as the case may be, subject to and on a
basis consistent with the terms, conditions and overall
administration of such plans, programs and arrangements;
provided, however, that Executive acknowledges and agrees
that his participation in the Company's Special Severance
Plan shall cease as of the Effective Date. During the period
of Executive's employment hereunder, the Executive shall be
entitled to participate in and receive any fringe benefits
or perquisites which may become available to the Company's
executive employees.
(e) Vacations and Other Leaves. The Executive shall be entitled
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to four (4) weeks vacation per year and to paid holidays and
personal leave days determined in accordance with applicable
Company plans and policies.
(f) Expenses. During the period of the Executive's employment
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hereunder, the Executive shall be entitled to receive prompt
reimbursement for all reasonable and customary expenses
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incurred by the Executive in performing services hereunder,
including all expenses of travel and accommodations while
away from home on business or at the request of and in the
service of the Company; provided that, such expenses are
incurred and accounted for in accordance with the policies
and procedures established by the Company.
6. Termination. (a) The Executive's employment hereunder may be terminated
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without breach of this Agreement only under the following circumstances:
(i) Death. The Executive's employment hereunder shall
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terminate upon his death.
(ii) Cause. The Company may terminate the Executive's
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employment hereunder for "Cause". For purposes of this
Agreement, the Company shall have "Cause" to terminate
the Executive's employment hereunder upon the (1) the
Executive's conviction for the commission of an act or
acts constituting a felony under the laws of the United
States or any state thereof, (2) action by the
Executive toward the Company involving dishonesty, (3)
the Executive's refusal to abide by or follow
reasonable written directions of the Board or the CEO,
which does not cease within ten (10) business days
after such written notice regarding such refusal has
been give to the Executive by the Company, (4) the
Executive's gross nonfeasance which does not cease
within ten (10) business days after notice regarding
such nonfeasance has been give to the Executive by the
Company or (5) failure of the Executive to comply with
the provisions of Section 7 or 8 of this Agreement, or
other willful conduct by the Executive which is
intended to have and does have a material adverse
impact on the Company.
(iii)Disability. If, as a result of the Executive's
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incapacity due to physical or mental illness, the
Executive shall have been absent from his duties
hereunder on a full-time basis for the entire period of
six (6) consecutive months, and within thirty (30) days
after written Notice of Termination (as defined in
Section 6(b) below) is given (which may occur before or
after the end of such six (6) month period) shall not
have returned to the performance of his duties
hereunder on a full-time basis, the Executive's
employment hereunder shall terminate for "Disability".
(iv) Termination by the Executive. The Executive may
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terminate his employment hereunder for "Good Reason".
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For purposes of this Agreement, the Executive shall
have "Good Reason" to terminate his employment
hereunder (1) upon a failure by the Company to comply
with any material provision of this Agreement which has
not been cured within ten (10) business days after
notice of such noncompliance has been given by the
Executive to the Company, (2) upon action by the
Company resulting in a diminution of the Executive's
title or authority or (3) upon the Company's relocation
of the Executive's principal place of employment
outside of the New York City metropolitan area, or (4)
one year after a Change in Control.
(b) Notice of Termination. Any termination of the Executive's
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employment by the Company or by the Executive (other than
termination under Section 6(a)(i) hereof) shall be communicated
by written Notice of Termination to the other party hereto in
accordance with Section 10 hereof. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which
shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail
the fact and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so
indicated.
(c) Date of Termination. "Date of Termination" shall mean (i) if the
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Executive's employment is terminated by his death, the date of
his death, (ii) in the event that the Term shall expire as a
result of a Non-Renewal Notice provided by the Company to the
Executive, the date of the expiration of the Term and (iii) in
each other case, the date specified in the Notice of Termination;
provided that, if within thirty (30) days after any Notice of
Termination is given the party receiving such Notice of
Termination notifies the other party that a dispute exists
concerning the termination, the Date of Termination shall be the
date on which the dispute is finally determined, either by mutual
written agreement of the parties or by a binding and final
arbitration award.
(d) Termination Upon Death; Disability; for Cause; Voluntary
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Termination other than for Good Reason. If the Executive's
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employment is terminated by reason of Executive's death or
Disability, by the Company for Cause or voluntarily by the
Executive other than for Good Reason, the Company shall, as soon
as practicable after the Date of Termination, pay the Executive
all unpaid amounts, if any, to which the Executive is entitled as
of the Date of Termination under Section 5(a) hereof and shall
pay to the Executive, in accordance with the terms of the
applicable plan or program, all other unpaid amounts to which
Executive is then entitled under any compensation or benefit plan
or program of the Company (collectively, "Accrued Obligations");
upon such payment, the Company shall have no further obligations
to the Executive under this Agreement.
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(e) Termination Without Cause; Termination for Good Reason;
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Non-Renewal. If the Company shall terminate the Executive's
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employment other than for Cause or the Executive shall
terminate his employment for Good Reason or the Term shall
expire as a result of a Non-Renewal Notice provided by the
Company to the Executive, then, subject to compliance with
the provisions of Sections 7 and 8 hereof:
(i) the Company shall pay to the Executive, as soon as
practicable after the Date of Termination, the Accrued
Obligations;
(ii) (A) unless clause (B) below applies, then following the
Date of Termination and for the longer of twelve (12)
months thereafter or the balance of the Term, the
Company shall pay to the Executive monthly an amount,
("Severance Payments") equal to the quotient of the
Executive's annual base salary at the rate in effect as
of the Date of Termination (the "Base Salary"), divided
by the number twelve (12) (minus any amounts payable to
the Executive during any such month as a disability
benefit under a Company paid plan), or (B) in the event
the Date of Termination occurs on or following a Change
in Control, then, within five (5) days after the Date
of Termination, the Company shall pay to the Executive
in a lump sum an amount equal to the product of (X) the
sum of the Executive's Base Salary and the average of
the annual bonuses earned by the Executive in the three
fiscal years of the Company ended immediately prior to
the Date of Termination (or, if higher, in the three
fiscal years of the Company ended immediately prior to
the Change in Control) multiplied by (Y) two and
one-half (2-1/2). For purposes of this subsection (ii):
(I) if the Date of Termination occurs prior to the
occurrence of a Change in Control but during the
pendency of a Potential Change in Control (as
hereinafter defined), such Date of Termination shall be
deemed to have occurred following a Change in Control
and (II) a "Potential Change in Control" shall be
deemed to have occurred if the event set forth in any
one of the following clauses shall have occurred:
(1) the Company enters into an agreement, the consummation of which
would result in the occurrence of a Change in Control;
(2) the Company or any person (as defined in Section 3(a)(9) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
as modified and used in Sections 13(d) and 14(d) thereof (a
"Person"), except that such term shall not include (i) the
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Company or any of its subsidiaries, (ii) a trustee or other
fiduciary holding securities under an employee benefit plan of
the Company or any of its affiliates, (iii) an underwriter
temporarily holding securities pursuant to an offering of such
securities, or (iv) a corporation owned, directly or indirectly,
by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company) publicly
announces an intention to take or to consider taking actions
which, if consummated, would constitute a Change in Control;
(3) any Person becomes the beneficial owner (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of
the Company representing 15% of or more of either the then
outstanding shares of common stock of the Company or the combined
voting power of the Company's then outstanding securities (not
including in the securities beneficially owned by such Person any
securities acquired directly from the Company); or
(4) the Board adopts a resolution to the effect that, for purposes of
this subsection (ii), a Potential Change in Control has occurred.
For purposes of this Agreement, the period during or with respect to which
Executive is entitled to receive payments hereunder is referred to as the
"Severance Period";
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(iii)the Company shall pay to the Executive, at the same
time as bonuses are paid to other Company executives, a
Bonus with respect to the fiscal year in which occurs
the Date of Termination, such Bonus to be based upon
actual performance for such fiscal year and pro rated
to reflect the number of days in such fiscal year
through and including the Date of Termination; and
(iv) the Executive shall continue to be provided for the
duration of the Severance Period with the same medical
and life insurance coverage as existed immediately
prior to the Notice of Termination; provided, however,
that benefits otherwise receivable by the Executive
pursuant to this Section 6(e)(iv) shall be reduced to
the extent that benefits of the same type are received
by or made available to the Executive during the
Severance Period (and any such benefits received by or
made available to the Executive shall be reported to
the Company by the Executive);
(v) any outstanding Restricted Shares shall become fully
vested;
(vi) in the event that the Date of Termination occurs prior
to a Change in Control, then (x) each outstanding
Option shall vest and become exercisable in accordance
with the schedule set forth in Section 5(b) hereof as
if no termination of employment occurred and such
Option shall terminate 90 days after the expiration of
the Severance Period;
(vii)in the event that the Date of Termination occurs on or
after a Change in Control, then each outstanding Option
which became vested upon such Change in Control in
accordance with the terms of Sections 5(b) and (c)
hereof shall terminate 90 days after the expiration of
the Severance Period.
(f) Gross-Up Payment. In the event that any payment or benefit received or
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to be received by the Executive in connection with a Change in Control
or the termination of the Executive's employment, whether such
payments or benefits are received pursuant to the terms of this
Agreement or any other plan, arrangement or agreement with the
Company, any person whose actions result in a Change in Control or any
person affiliated with the Company or such person (all such payments
and benefits being hereinafter called "Total Payments"), would be
subject (in whole or part), to the tax (the "Excise Tax") imposed
under Section 4999 of the Internal Revenue Code of 1986, as amended
(the "Code"), the Company shall pay to the Executive such additional
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amounts (the "Gross-Up Payment") as may be necessary to place the
Executive in the same after-tax position as if no portion of the Total
Payments had been subject to the Excise Tax. In the event that the
Excise Tax is subsequently determined to be less than the amount taken
into account hereunder, the Executive shall repay to the Company, at
the time that the amount of such reduction in Excise Tax is finally
determined , the portion of the Gross-Up Payment attributable to such
reduction (plus that portion of the Gross-Up Payment attributable to
the Excise Tax and federal, state and local income tax imposed on the
Gross-Up Payment being repaid by the Executive to the extent that such
repayment results in a reduction in Excise Tax and/or a federal, state
or local income tax deduction) plus interest on the amount of such
repayment at the rate provided in Section 1274(b)(2)(B) of the Code.
In the event that the Excise Tax is determined to exceed the amount
taken into account hereunder (including by reason of any payment the
existence or amount of which cannot be determined at the time of the
Gross-Up Payment), the Company shall make an additional Gross-Up
Payment in respect of such excess (plus any interest, penalties or
additions payable by the Executive with respect to such excess) at the
time that the amount of such excess is finally determined. The
Executive and the Company shall each reasonably cooperate with the
other in connection with any administrative or judicial proceedings
concerning the existence or amount of liability for Excise Tax with
respect to the Total Payments.
7. Nonsolicitation; Noncompete.
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(a) Subject to (c) below, during the period of Executive's
employment, during the period he is receiving Severance
Payments hereunder and, in the case where the
Executive's employment is terminated for Cause or
executive voluntarily terminates his employment without
Good Reason, for a period of twelve (12) months
following such termination, the Executive shall not
initiate discussions with any person who is then an
executive employee of the Company (i.e., director level
or above) with the intent of soliciting or inducing
such person to leave his or her employment, with a view
toward joining the Executive in the pursuit of any
business activity (whether or not such activity
involves engaging or participating in a Competitive
Business, as defined below). Notwithstanding and other
provision of this Agreement to the contrary, in the
event Executive fails to comply with the preceding
sentence, all rights of the Executive and his surviving
spouse or other beneficiary hereunder to any future
Severance Payments, Bonus Payments and continuing life
insurance and medical coverage and all rights with
respect to restricted stock and exercisability of stock
options shall be forfeited; provided that, the
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foregoing shall not apply if such failure of compliance
commences following a Change in Control.
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(b) Subject to (c) below, for as long as Executive receives
Severance Payments, or in the case where the
Executive's employment is terminated for Cause or
executive voluntarily terminates his employment without
Good Reason, for a period of twelve (12) months
following such termination, Executive shall not,
without the prior written consent of the Company (which
consent shall not be unreasonably withheld), engage or
participate in any business which is "in competition"
(as defined below) with the business of the Company or
any of its 50% or more owned affiliates (such business
being referred to herein as a "Competitive Business").
Notwithstanding any other provision of this Agreement
to the contrary, in the event the Executive fails to
comply with the preceding sentence, all rights of the
Executive and his surviving spouse or other beneficiary
hereunder to any future Severance Payments, Bonus
Payments and continuing life insurance and medical
coverage and all rights with respect to restricted
stock and exercisability of stock options shall be
forfeited; provided that, the foregoing shall not apply
if such failure of compliance commences following a
Change in Control.
(c) In the event of a violation of paragraphs 7(a) or 7(b)
hereof, the remedies of the Company shall be limited to
(i) if such violation occurs during the period of
Executive's employment hereunder, termination of the
Executive for Cause and the associated rights of the
Company specified herein resulting therefrom, (ii)
regardless of when such violation occurs, forfeiture by
the Executive of the payments, benefits and other
rights set forth in paragraphs (a) and (b) above if and
to the extent provided in such paragraphs, and (iii)
the right to seek injunctive relief in accordance with
and to the extent provided in Section 14 hereof.
(d) For purposes hereof, a business will be "in
competition" with the business of the Company or its
50% or more owned affiliates if (i) the Company's
business with which the other business competes
accounted for 20% or more of the Company's consolidated
revenues as of the end of its most recently completed
fiscal year prior to the Date of Termination, and (ii)
the entity (including all 50% or more owned affiliates)
through which the other business is or will be operated
maintains a "women's apparel" business which generated
at least $50 million in revenue during the entity's
most recently completed fiscal year ended prior to the
date the Executive commences (or proposes to commence)
to engage or participate in the other business. For
purposes hereof, "women's apparel" shall consist of
dresses, jackets, pants, skirts, blouses, sweaters,
T-shirts, outerwear, footwear and accessories.
(e) Notwithstanding the foregoing, the Executive's engaging
in the following activities shall not be construed as
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engaging or participating in a Competitive Business:
(i) investment banking; (ii) passive ownership of less
than 2% of any class of securities of a public company;
(iii) engaging or participating in noncompetitive
businesses of an entity which also operates a business
which is "in competition" with the business of the
Company or its affiliates; (iv) serving as an outside
director of an entity which operates a business which
is "in competition" with the business of the Company or
its affiliates, so long as such business did not
account for 10% or more of the consolidated revenues of
such entity as of the end of its most recently
completed fiscal year prior to the date Executive
commences (or proposes to commence) serving as an
outside director; (v) engaging in a business involving
licensing arrangements so long as such business is not
an in-house arrangement for any entity "in competition"
with the business of the Company or its affiliates;
(vi) affiliation with an advertising agency and (vii)
after cessation of employment, engaging or
participating in the "wholesale" side of the women's
apparel business, which for purposes hereof shall mean
the design, manufacture and sale of piece goods and
women's apparel to unrelated third parties, provided
that if the entity for which the Executive so engages
or participates (including its affiliates) also
conducts a retail women's apparel business, then
effective upon the Executive's engaging or
participating in such business, all continuing life
insurance and medical coverage provided by the Company
shall cease and all Severance Payments shall cease
except for amounts representing the excess (if any) of
the Executive's annual base salary hereunder (at the
rate in effect as of the Date of Termination) over the
executive's base salary received from such entity and
its affiliates, which amounts shall continue to be paid
by the Company for the remainder of the Severance
Period. The exceptions contained in subparagraph (vii)
above and subparagraph (iii) above to the extent
covered by subparagraph (vii) shall not be applicable
if the Executive's cessation of employment is voluntary
by the Executive without Good Reason and his new
engagement of participation involves "wholesale"
operations which include or also conduct retail sales
of women's apparel other than factory outlet or
discount stores to liquidate unsold women's apparel of
such wholesale operations.
8. Protection of Confidential Information.
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(a) Executive acknowledges that his employment by the Company
will, throughout the Term of this Agreement, involve him
obtaining knowledge of confidential information regarding
the business and affairs of the Company. In recognition of
the foregoing, the Executive covenants and agrees:
(i) that, except in compliance with legal process, he will
keep secret all confidential matters of the Company
which are not otherwise in the public domain and will
not intentionally disclose them to anyone outside of
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the Company, wherever located (other than to a person
to whom disclosure is reasonably necessary or
appropriate in connection with the performance by
Executive of his duties as an executive officer of the
Company), either during or after the Term, except with
the prior written consent of the Board or a person
authorized thereby; and
(ii) that he will deliver promptly to the Company on
termination of his employment, or at any other time the
Company may so request, all memoranda, notes, records,
customer lists, reports and other documents (and all
copies thereof) relating to the business of the Company
which he obtained while employed by, or otherwise
serving or acting on behalf of, the Company and which
he may then possess or have under his control.
(b) Notwithstanding the provisions of Section 14 of this
Agreement, if the Executive commits a breach of the
provisions of Section 8(a)(i) or 8(a) (ii), the Company
shall have the right and remedy to have such provisions
specifically enforced by any court having equity
jurisdiction, it being acknowledged and agreed that any such
breach or threatened breach will cause irreparable injury to
the Company and that money damages will not provide an
adequate remedy to the Company.
9. Successors; Binding Agreement.
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(a) Neither this Agreement nor any rights hereunder shall be
assignable or otherwise subject to hypothecation by the
Executive (except by will or by operation of the laws of
intestate succession) or by the Company, except that the
Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise)
to all or substantially all of the business and/or assets of
the Company, by agreement in form and substance reasonably
satisfactory to the Executive, to expressly assume and agree
to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if
no such succession had taken place. As used in this
Agreement, "Company" shall mean the Company a herein before
defined and any successor to its business and/or assets as
aforesaid which executes and delivers the agreement provided
for in this Section 9 or which otherwise becomes bound by
all the terms and provisions of this Agreement by operation
of law.
(b) This Agreement and all rights of the Executive hereunder
shall inure to the benefit of and be enforceable by the
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Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees
and legatees. If the Executive should die while any amounts
would still be payable to his hereunder if he had continued
to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement
to the Executive's devisee, legatee, or other designee or,
if there be no such designee, to the Executive's estate.
10. Notice. For the purposes of this Agreement, notices, demands and all
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other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered or (unless otherwise
specified) mailed by United States certified or registered mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Company:
AnnTaylor Stores Corporation
142 West 57th Street
New York, New York 10019
Attn: General Counsel
If to the Executive:
Barry Erdos
48 East 13th Street
New York, NY
10003
or to such other address as any party may have furnished to the
other in writing in accordance herewith, except that notices of
change of address shall be effective only upon receipt.
11. Miscellaneous. No provisions of this Agreement may be modified, waived
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or discharged unless such waiver, modification or discharge is agreed to in
writing signed by the Executive and such officer of the Company as may be
specifically designated by the Board. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made either party which are not set forth expressly in this Agreement.
The validity, interpretation, construction and performance of this Agreement
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shall be governed by the laws of the state of New York without regard to its
conflicts of law principles. All payments hereunder shall be subject to
applicable Federal, State and local tax withholding requirements.
12. Validity. The invalidity or unenforceability of any provision or
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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.
13. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
14. Arbitration. Any dispute or controversy arising under or in connection
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with this Agreement shall be settled exclusively by arbitration, conducted
before a panel of three arbitrators in New York City in accordance with the
rules of the American Arbitration Association then in effect. Judgment may be
entered on the arbitrator's award in any court having jurisdiction; provided
that, the Company shall be entitled to seek a restraining order or injunction in
any court of competent jurisdiction to prevent any continuation of any violation
of the provisions of Section 7 or 8 of the Agreement and the Executive hereby
consents that such restraining order or injunction may be granted without the
necessity of the Company's posting any bond. Each party shall bear its own costs
and expenses (including, without limitation, legal fees) in connection with any
arbitration proceeding instituted hereunder.
15. Entire Agreement. This Agreement, together with the compensation and
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benefits plans and practices referred to in Section 5 hereof, sets forth the
entire agreement of the parties hereto in respect of the subject matter
contained herein and all other prior agreements, promises, covenants,
arrangements, communications, representations or warranties, whether oral or
written, by any officer, employee or representative of any party hereto; and any
prior agreement of the parties hereto in respect of the subject matter contained
herein is hereby terminated and canceled.
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15
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the Effective Date.
ANNTAYLOR STORES CORPORATION
By:
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Name: J. Patrick Spainhour
Title:Chief Executive Officer
/s/Barry Erdos
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Barry Erdos