EXHIBIT 10.20
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement"), effective as of May 3, 2001
(the "Effective Date"), between ANNTAYLOR STORES CORPORATION, a Delaware
corporation (the "Company"), and Katherine Lawther Krill (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
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employ the 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
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hereunder (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 President - Ann
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Taylor Loft and shall have such responsibilities, duties and and authority
consistent with such position 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 her 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 the Executive for all amounts (including, without limitation,
judgments, fines, awards, settlement payments, losses, damages, costs and
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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 continuing
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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 $450,000, 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 her 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 30,000 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 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
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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 20,000 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
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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. 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 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
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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
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terminated without breach of this Agreement only under the following
circumstances:
(i) Death. The Executive's employment hereunder shall
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terminate upon her death.
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(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 her 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 her 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 her employment hereunder for "Good Reason". For
purposes of this Agreement, the Executive shall have "Good
Reason" to terminate her 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"
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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
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mean (i) if the Executive's employment is terminated by her death, the date of
her 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
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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 employment is
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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.
(e) Termination Without Cause; Termination for Good Reason;
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Non-Renewal. If the Company shall terminate the Executive's employment other
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than for Cause or the Executive shall terminate her 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
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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 total
bonuses earned by the Executive, including bonuses paid under the
Company's Management Performance Compensation Plan and the
Company's Long Term Incentive Cash Compensation Plan, 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
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
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(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";
(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
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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). For the purpose of medical and life insurance
coverage referred to in this subparagraph, the term "Severance
Period" shall include the period following the Date of
Termination and for the longer of twelve (12) months thereafter
or the balance of the Term;
(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 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
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received or to be received by the Executive in connection with a Change in
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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 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 she is receiving Severance Payments hereunder and,
in the case where the Executive's employment is terminated for Cause or
executive voluntarily terminates her 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 her 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 her surviving spouse or other beneficiary
hereunder to any future Severance Payments, Bonus Payments and
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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
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commences following a Change in Control.
(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 her 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 her 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
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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 engaging or participating in
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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 her 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 her employment by the Company will,
throughout the Term of this Agreement, involve her 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, she 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 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 her duties as an executive officer of the
Company), either during or after the Term, except with the prior written
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consent of the Board or a person authorized thereby; and
(ii) that she will deliver promptly to the Company on
termination of her 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 she obtained while employed by,
or otherwise serving or acting on behalf of, the Company and
which she may then possess or have under her 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 as 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
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 her hereunder if she 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,
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demands and all other communications provided for in this Agreement shall be in
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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
1372 Broadway
New York, New York 10018
Attn: General Counsel
If to the Executive:
Katherine Lawther Krill
333 Stamford Avenue
Stamford, CT 06902
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
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modified, waived 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 by either party which are not set forth expressly in this
Agreement. The validity, interpretation, construction and performance of this
Agreement 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
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provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect.
13. Counterparts. This Agreement may be executed in
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one or more 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
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in connection with this Agreement shall be settled exclusively by arbitration,
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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
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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
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compensation and 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the Effective Date.
ANNTAYLOR STORES CORPORATION
By: J. Patrick Spainhour
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J. Patrick Spainhour
Chairman of the Board and
Chief Executive Officer
Katherine Lawther Krill
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Katherine Lawther Krill