EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into
as of June 1, 2004 between Whitehall Jewellers, Inc., a Delaware corporation
(the "Company"), and Debbie Nicodemus-Volker (the "Executive").
WHEREAS, the Company desires to employ the Executive to serve
as Executive Vice President of Merchandise of the Company, and the Executive
desires to be employed by the Company, upon the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements contained herein, the Company and the Executive hereby agree
as follows:
1. EMPLOYMENT. The Company hereby agrees to employ the
Executive and the Executive hereby agrees to be employed by the Company upon the
terms and subject to the conditions contained in this Agreement. The term of
employment of the Executive by the Company pursuant to this Agreement shall
commence on June 1, 2004 (the "Effective Date") and shall end on the first
annual anniversary of the Effective Date (such date or any successive date to
which the term thereof has been extended pursuant to the succeeding sentence,
the "Expiration Date"). Such term shall be automatically extended for successive
one-year periods unless either the Executive or the Company gives notice that
such term shall not be so extended no later than 60 days prior to the then
current Expiration Date or unless earlier terminated pursuant to Section 4
hereof. The term of employment as prescribed in the preceding sentence is
hereinafter called the "Employment Period." From and after the end of the
Employment Period, unless earlier terminated hereunder, the Executive's
employment with the Company shall be at will, not for any specified term and
without any payment guarantees, and either the Executive or the Company may
terminate the employment relationship at any time.
2. POSITION AND DUTIES; RESPONSIBILITIES. (a) Position and
Duties. The Company shall employ the Executive during the Employment Period as
its executive with primary responsibility for developing and executing the
merchandising and marketing strategies and positions for the Company, with the
title of Executive Vice President of Merchandise. During the Employment Period,
the Executive shall perform faithfully and loyally and to the best of the
Executive's abilities the duties assigned to the Executive hereunder and shall
devote the Executive's full business time, attention and effort to the affairs
of the Company and its subsidiaries and shall use the Executive's reasonable
best efforts to promote the interests of the Company and its subsidiaries. The
Executive may engage in charitable, civic or community activities and, with the
prior approval of the Board of Directors of the Company (the "Board"), which may
be granted or denied in its sole discretion, may serve as a director (but not a
member of a committee of a board of directors) of any other business
corporation, provided that such activities or service do not interfere with the
Executive's duties hereunder or violate the terms of any of the covenants
contained in Sections 6, 7 or 8 hereof.
(b) Responsibilities. Subject to the powers, authority and
responsibilities vested in the Board, duly constituted committees of the Board
and the Chief Executive Officer and Chief Operating Officer of the Company, the
Executive shall have the authority and responsibility for developing and
executing the merchandising and marketing strategies and positions for the
Company. The Executive shall also perform such other duties (not inconsistent
with the position of Executive Vice President of Merchandise) on behalf of the
Company and its subsidiaries as may from time to time be authorized or directed
by the Board, the Chief Executive Officer or the Chief Operating Officer.
3. COMPENSATION. (a) Base Salary. During the Employment
Period, the Company shall pay to the Executive a base salary at the rate of
$300,000 per annum ("Base Salary"), payable in accordance with the Company's
executive payroll policy. Such Base Salary shall be reviewed annually, and shall
be subject to such annual increases, if any, as determined by the Compensation
Committee of the Board (the "Compensation Committee").
(b) Annual Bonus. The Executive shall, in the sole discretion
of the Compensation Committee, be eligible to participate in the Company's
Management Bonus Plan or other bonus plan made available to elected officers of
the Company generally ("Annual Bonus").
(c) Equity-Based Compensation. The Executive shall, in the
sole discretion of the Compensation Committee, be eligible during the Employment
Period to be granted stock options, restricted stock and/or other equity-based
compensation awards.
(d) Other Benefits. During the Employment Period, the
Executive shall be entitled to participate in the Company's employee benefit
plans generally available to executives of the Company (such benefits, together
with the benefits referred to in (c) above, being hereinafter referred to as the
"Employee Benefits"). The Executive shall be entitled to take time off for
vacation or illness in accordance with the Company's policy for executives and
to receive all other fringe benefits as are from time to time made generally
available to executives of the Company (currently including vacation days,
health benefits, automobile benefits, life insurance and reimbursement of
expenses) .
(e) Expense Reimbursement. During the Employment Period, the
Company shall reimburse the Executive, in accordance with the Company's policies
and procedures, for all proper expenses incurred by the Executive in the
performance of the Executive's duties hereunder.
(f) Right to Change Plans. Nothing in this Agreement shall be
construed to limit, condition or otherwise encumber the rights of the Company to
amend, discontinue, substitute or maintain any benefit plan, program or
perquisite.
4. TERMINATION. (a) Death. Upon the death of the Executive,
this Agreement shall automatically terminate and all rights of the Executive and
the Executive's heirs, executors and administrators to compensation and other
benefits under this Agreement shall cease immediately, except that the
Executive's heirs, executors or administrators, as the case may be, shall be
entitled to:
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(i) accrued Base Salary through and including the Executive's
date of death;
(ii) accrued Annual Bonus through and including the
Executive's date of death (determined on a pro rata basis for the
number of days of the fiscal year for which the Executive was employed
by the Company), such Annual Bonus to be paid following the
Compensation Committee's determination of the Executive's Annual Bonus,
if any, for the fiscal year in which the Executive's date of death so
occurred, which determination may be made at the same time that the
Compensation Committee determines annual bonuses, if any, for executive
officers of the Company in general; and
(iii) other Employee Benefits to which the Executive was
entitled on the date of death in accordance with the terms of the plans
and programs of the Company.
(b) Disability. The Company may, at its option, terminate this
Agreement upon written notice to the Executive if the Executive, because of
physical or mental incapacity or disability, fails to perform the essential
functions of the Executive's position, with or without reasonable accommodation,
required of the Executive hereunder for a continuous period of 120 days or any
180 days within any 12-month period. Upon such termination, all obligations of
the Company hereunder shall cease immediately, except that the Executive shall
be entitled to:
(i) accrued Base Salary through and including the effective
date of the Executive's termination of employment;
(ii) accrued Annual Bonus through and including the effective
date of the Executive's termination of employment (determined on a pro
rata basis for the number of days of the fiscal year for which the
Executive was employed by the Company), such Annual Bonus to be paid
following the Compensation Committee's determination of the Executive's
Annual Bonus, if any, for the fiscal year in which the Executive's
termination of employment so occurred, which determination may be made
at the same time that the Compensation Committee determines annual
bonuses, if any, for executive officers of the Company in general; and
(iii) other Employee Benefits to which the Executive is
entitled upon termination of employment in accordance with the terms of
the plans and programs of the Company.
In the event of any dispute regarding the existence of the Executive's
incapacity or disability hereunder, the matter shall be resolved by the
determination of a physician selected by the Board. The Executive shall submit
to appropriate medical examinations for purposes of such determination.
(c) Cause. (i) The Company may, at its option, terminate the
Executive's employment under this Agreement for Cause (as hereinafter defined)
upon written notice to the Executive (the "Cause Notice"). Any such termination
for Cause shall be authorized by the Board. The Cause Notice shall state the
action(s) or inaction(s) giving rise to termination for Cause in reasonable
detail. The Executive shall have 5 business days after the Cause Notice is given
to cure the particular action(s) or inaction(s), to the extent a cure is
possible. If the
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Executive so effects a cure to the satisfaction of the Board, in its sole
discretion, the Cause Notice shall be deemed rescinded and of no force or
effect.
(ii) As used in this Agreement, the term "Cause" shall mean
any one or more of the following:
(A) any refusal by the Executive to perform the
Executive's duties under this Agreement or to perform specific
directives of the Board, the Chief Executive Officer or the
Chief Operating Officer which are consistent with the scope
and nature of the Executive's duties and responsibilities as
set forth herein;
(B) any intentional act of fraud, embezzlement or
theft by the Executive in connection with the Executive's
duties hereunder or in the course of the Executive's
employment hereunder or any prior employment, or the
Executive's admission or conviction of a felony or of any
crime involving moral turpitude, fraud, embezzlement, theft or
misrepresentation;
(C) any use of alcohol by the Executive that
interferes with the performance of the Executive's duties or
adversely impacts the reputation of the Executive or of the
Company or any illegal use of a controlled substance by the
Executive;
(D) any gross negligence or willful misconduct of the
Executive resulting in a loss to the Company or any of its
subsidiaries, or damage to the reputation of the Company or
any of its subsidiaries;
(E) any violation of a written Company policy by the
Executive;
(F) any breach by the Executive of any one or more of
the covenants contained in Section 6, 7 or 8 hereof; or
(G) any violation of any statutory or common law duty
of loyalty to the Company or any of its subsidiaries.
(iii) The exercise of the right of the Company to terminate
this Agreement pursuant to this Section 4(c) shall not abrogate the
rights or remedies of the Company in respect of the breach giving rise
to such termination.
(iv) If the Company terminates the Executive's employment for
Cause, all obligations of the Company hereunder shall cease, except
that the Executive shall be entitled to the payments and benefits
specified in Sections 4(b)(i) and 4(b)(iii) hereof.
(d) Termination Without Cause. The Company may, at its option,
terminate the Executive's employment under this Agreement upon written notice to
the Executive for a reason other than a reason set forth in Section 4(a), 4(b)
or 4(c). Any such termination shall be authorized by the Board. If the Company
terminates the Executive's employment for any such reason, all obligations of
the Company hereunder shall cease immediately, except that the Executive shall
be entitled to:
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(i) the payments and benefits specified in Sections 4(b)(i)
through 4(b)(iii) hereof, inclusive; and
(ii) the continuation of payment of amounts equal to the Base
Salary which otherwise would have been payable hereunder had the
Executive's employment hereunder not been terminated pursuant to this
Section 4(d) for a period of 12 months from the date of termination.
Notwithstanding Section 4(d)(ii), the amounts payable to the Executive under
such Section 4(d)(ii) shall be reduced by the amount of salary, bonus or other
compensation which the Executive receives from a subsequent employer during the
period of time that amounts are payable to the Executive under such Section
4(d)(ii). The Executive shall use reasonable efforts to seek other employment
for this purpose.
(e) Voluntary Termination. Upon 60 days prior written notice
to the Company (or such shorter period as may be permitted by the Board), the
Executive may voluntarily terminate the Executive's employment with the Company
for any reason. If the Executive voluntarily terminates the Executive's
employment pursuant to this Section 4(e), all obligations of the Company
hereunder shall cease immediately, except that the Executive shall be entitled
to the payments and benefits specified in Sections 4(b)(i) and 4(b)(iii) hereof.
5. FEDERAL AND STATE WITHHOLDING. The Company shall deduct
from the amounts payable to the Executive pursuant to this Agreement the amount
of all required federal, state and local withholding taxes in accordance with
the Executive's Form W-4 on file with the Company, and all applicable federal
employment taxes.
6. NONCOMPETITION; NONSOLICITATION. (a) General. The Executive
acknowledges that in the course of the Executive's employment with the Company
the Executive has and will become familiar with trade secrets and other
confidential information concerning the Company and its subsidiaries and that
the Executive's services will be of special, unique and extraordinary value to
the Company and its subsidiaries.
(b) Noncompetition. The Executive agrees that during the
period of the Executive's employment with the Company, the period, if any,
during which the Executive is receiving payments from the Company pursuant to
Section 4(d), and for a period of one year after the termination of the
Executive's employment pursuant to Section 4(e) (the "Noncompetition Period")
the Executive shall not in any manner, directly or indirectly, through any
person, firm or corporation, alone or as a member of a partnership or as an
officer, director, stockholder, investor or employee of or consultant to any
other corporation or enterprise or otherwise, engage or be engaged, or assist
any other person, firm, corporation or enterprise in engaging or being engaged,
operating retail jewelry stores in North America.
(c) Nonsolicitation. The Executive further agrees that during
the Noncompetition Period the Executive shall not (i) in any manner, directly or
indirectly, induce or attempt to induce any employee of the Company or any of
its subsidiaries to terminate or abandon his or her employment for any purpose
whatsoever or (ii) in connection with any
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business to which Section 6(b) applies, call on, service, solicit or otherwise
do business with any customer of the Company or any of its subsidiaries.
(d) Exceptions. Nothing in this Section 6 shall prohibit the
Executive from being (i) a stockholder in a mutual fund or a diversified
investment company or (ii) an owner of not more than two percent of the
outstanding stock of any class of a corporation, any securities of which are
publicly traded, so long as the Executive has no active participation in the
business of such corporation.
(e) Reformation. If, at any time of enforcement of this
Section 6, a court or an arbitrator holds that the restrictions stated herein
are unreasonable under circumstances then existing, the parties hereto agree
that the maximum period, scope or geographical area reasonable under such
circumstances shall be substituted for the stated period, scope or area and that
the court or arbitrator shall be allowed to revise the restrictions contained
herein to cover the maximum period, scope and area permitted by law. This
Agreement shall not authorize a court or arbitrator to increase or broaden any
of the restrictions in this Section 6.
7. CONFIDENTIALITY. The Executive shall not, at any time
during the Employment Period or thereafter, make use of or disclose, directly or
indirectly, any (i) trade secret or other confidential or secret information of
the Company or of any of its subsidiaries or (ii) other technical, business,
proprietary or financial information of the Company or of any of its
subsidiaries not available to the public generally or to the competitors of the
Company or to the competitors of any of its subsidiaries ("Confidential
Information"), except to the extent that such Confidential Information (a)
becomes a matter of public record or is published in a newspaper, magazine or
other periodical or on electronic or other media available to the general
public, other than as a result of any act or omission of the Executive, (b) is
required to be disclosed by any law, regulation or order of any court or
regulatory commission, department or agency, provided that the Executive gives
prompt notice of such requirement to the Company to enable the Company to seek
an appropriate protective order, or (c) is required to be used or disclosed by
the Executive to perform properly the Executive's duties under this Agreement.
Promptly following the termination of the Employment Period, the Executive shall
surrender to the Company all records, memoranda, notes, plans, reports, computer
tapes and software and other documents and data which constitute Confidential
Information which the Executive may then possess or have under the Executive's
control (together with all copies thereof).
8. INVENTIONS. The Executive hereby assigns to the Company the
Executive's entire right, title and interest in and to all discoveries and
improvements, patentable or otherwise, trade secrets and ideas, writings and
copyrightable material, which may be conceived by the Executive or developed or
acquired by the Executive during the Employment Period, which may pertain
directly or indirectly to the business of the Company or any of its
subsidiaries. The Executive agrees to disclose fully all such developments to
the Company upon its request, which disclosure shall be made in writing promptly
following any such request. The Executive shall, upon the Company's request,
execute, acknowledge and deliver to the Company all instruments and do all other
acts which are necessary or desirable to enable the Company or any of its
subsidiaries to file and prosecute applications for, and to acquire, maintain
and enforce, all patents, trademarks and copyrights in all countries. In
accordance with the Illinois Employee Patent Act, 765 ILCS 1060, the Executive
is hereby notified by the Company, and understands,
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that the foregoing provisions do not apply to an invention for which no
equipment, supplies, facilities or trade secret information of the Company was
used and which was developed entirely on the Executive's own time, unless (i)
the invention relates (A) to the business of the Company or (B) to the Company's
actual or demonstrably anticipated research and development, or (ii) the
invention results from any work performed by the Executive for the Company.
9. ENFORCEMENT. The parties hereto agree that the Company and
its subsidiaries would be damaged irreparably in the event that any provision of
Section 6, 7 or 8 of this Agreement were not performed in accordance with its
terms or were otherwise breached and that money damages would be an inadequate
remedy for any such nonperformance or breach. Accordingly, the Company and its
successors and permitted assigns shall be entitled, in addition to other rights
and remedies existing in their favor, to an injunction or injunctions to prevent
any breach or threatened breach of any of such provisions and to enforce such
provisions specifically (without posting a bond or other security). The
Executive agrees that the Executive will submit to the personal jurisdiction of
the courts of the State of Illinois in any action by the Company to enforce an
arbitration award against the Executive or to obtain interim injunctive or other
relief pending an arbitration decision.
10. REPRESENTATIONS. The Executive represents and warrants to
the Company that (a) the execution, delivery and performance of this Agreement
by the Executive does not and will not conflict with, breach, violate or cause a
default under any contract, agreement, instrument, order, judgment or decree to
which the Executive is a party or by which the Executive is bound, (b) the
Executive is not a party to or bound by any employment agreement, noncompetition
agreement or confidentiality agreement with any other person or entity and (c)
upon the execution and delivery of this Agreement by the Company, this Agreement
shall be the valid and binding obligation of the Executive, enforceable in
accordance with its terms.
11. SURVIVAL. Sections 6, 7, 8 and 9 of this Agreement shall
survive and continue in full force and effect in accordance with their
respective terms, notwithstanding any termination of the Employment Period.
12. ARBITRATION. Except as otherwise set forth in Section 9
hereof, any dispute or controversy between the Company and the Executive,
whether arising out of or relating to this Agreement, the breach of this
Agreement, or otherwise, shall be settled by arbitration in Chicago, Illinois
administered by the American Arbitration Association, with any such dispute or
controversy arising under this Agreement being so administered in accordance
with its Commercial Rules then in effect, and judgment on the award rendered by
the arbitrator may be entered in any court having jurisdiction thereof. The
arbitrator shall have the authority to award any remedy or relief that a court
of competent jurisdiction could order or grant, including, without limitation,
the issuance of an injunction. However, either party may, without inconsistency
with this arbitration provision, apply to any court having jurisdiction over
such dispute or controversy and seek interim provisional, injunctive or other
equitable relief until the arbitration award is rendered or the controversy is
otherwise resolved. Except as necessary in court proceedings to enforce this
arbitration provision or an award rendered hereunder, or to obtain interim
relief, neither a party nor an arbitrator may disclose the existence, content or
results of any arbitration hereunder without the prior written consent of the
Company and the Executive. The Company and the Executive acknowledge that this
Agreement evidences a
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transaction involving interstate commerce. Notwithstanding any choice of law
provision included in this Agreement, the United States Federal Arbitration Act
shall govern the interpretation and enforcement of this arbitration provision.
13. NOTICES. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed given when (a)
delivered personally or by overnight courier to the following address of the
other party hereto (or such other address for such party as shall be specified
by notice given pursuant to this Section) or (b) sent by facsimile to the
following facsimile number of the other party hereto (or such other facsimile
number for such party as shall be specified by notice given pursuant to this
Section), with the confirmatory copy delivered by overnight courier to the
address of such party pursuant to this Section 13:
If to the Company, to:
Whitehall Jewellers, Inc.
155 N. Wacker Drive
Chicago, IL 60606
Attn: Secretary
If to the Executive, to:
Ms. Debbie Nicodemus-Volker
10801 E. Happy Valley Rd.
Scottsdale, AZ 85255
14. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
the validity, legality or enforceability of any other provision of this
Agreement or the validity, legality or enforceability of such provision in any
other jurisdiction, but this Agreement shall be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
15. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding between the parties with respect to the subject
matter hereof and supersedes and preempts any prior understandings, agreements
or representations by or between the parties, written or oral, which may have
related in any manner to the subject matter hereof.
16. SUCCESSORS AND ASSIGNS. This Agreement shall be
enforceable by the Executive and the Executive's heirs, executors,
administrators and legal representatives, and by the Company and its successors
and assigns.
17. GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of
Illinois without regard to principles of conflict of laws.
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18. AMENDMENT AND WAIVER. The provisions of this Agreement may
be amended or waived only by the written agreement of the Company and the
Executive, and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall affect the validity, binding effect or
enforceability of this Agreement.
19. COUNTERPARTS. This Agreement may be executed in two
counterparts, each of which shall be deemed to be an original and both of which
together shall constitute one and the same instrument.
* * * * * * * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
WHITEHALL JEWELLERS, INC.
By: /s/ Hugh M. Patinkin
-------------------------------
Title: Chief Executive Officer
----------------------------
DEBBIE NICODEMUS-VOLKER
/s/ Debbie Nicodemus-Volker
-----------------------------------
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