Exhibit No. 10
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (this
“ Agreement ”), dated as of the 8th day of
February, 2007, is made by and between Regis Corporation, a
Minnesota corporation (the “ Corporation ”), and
Paul D. Finkelstein (the “ Executive
”).
RECITALS
WHEREAS, the Corporation and the
Executive are parties to that certain Employment and Deferred
Compensation Agreement, dated April 14, 1998, as subsequently
amended (the “ Existing Agreement ”);
and
WHEREAS, the Corporation and the
Executive also are parties to an Agreement dated May 24, 2005, as
subsequently amended, regarding a policy insuring the life of the
Executive (the “ Insurance Agreement ”);
and
WHEREAS, the Corporation previously
entered into a new employment agreement with the Executive that was
to become effective on the closing of a strategic transaction (the
“ Proposed Transaction ”) with Alberto-Culver
Company; and
WHEREAS, the Proposed Transaction
has been cancelled and will not occur so that such new employment
agreement will not become effective; and
WHEREAS, the Corporation and the
Executive now desire (i) to terminate the Existing Agreement, (ii)
to enter into this Agreement to set out the terms and conditions of
the Executive’s continued service with the Corporation, and
(iii) to consolidate the terms and conditions of the Insurance
Agreement in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of
the provisions of this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Corporation agrees to employ the Executive, and
the Executive agrees to such employment, upon the following terms
and conditions:
1.
EFFECTIVE DATE; PERIOD OF EMPLOYMENT .
(a)
Effective Date . This Agreement shall be effective at
12:01 a.m. on February 8, 2007 (the “ Effective Date
”).
(b)
Period of Employment . The employment of the Executive
by the Corporation pursuant to this Agreement shall be for a period
(sometimes referred to herein as the “ period of
employment ”) beginning on the Effective Date and
continuing, unless sooner terminated as provided in Section 6
herein, until midnight on the day immediately preceding the fifth
anniversary of the Effective Date. The Corporation and the
Executive recognize and acknowledge that this Agreement does not
provide for any automatic renewal. Notwithstanding the end of
the Executive’s period of employment, this Agreement shall
remain in full force and effect thereafter for the purpose of
determining the Executive’s entitlement to any payments of
his life insurance premiums and his Adjusted Monthly Benefit as
provided under Sections 4(e) and (f) hereof.
(c)
Definitions . Various terms are defined either where
they first appear underlined in this Agreement or in
Section.
2.
DUTIES . During the period of employment, the
Executive shall serve as President and Chief Executive Officer of
the Corporation, and in such other additional office or offices to
which he shall be elected by the Board of Directors of the
Corporation (“ Board ”) with his approval,
performing the duties of such office or offices held at the time
and such other duties not inconsistent with his position as such an
officer or director as are assigned to him by the Board or
committees of the Board. During the period of employment, the
Executive shall devote his full time and attention to the business
of the Corporation and the discharge of the aforementioned duties,
except for reasonable vacations, absences due to illness, and
reasonable time for attention to personal affairs and charitable
activities.
3.
OFFICE FACILITIES . During the period of employment,
the Executive shall have his office where the Corporation’s
principal executive offices are located from time to time, which
currently are at 7201 Metro Boulevard, Edina, Minnesota and the
Corporation shall furnish Executive with office facilities
reasonably suitable to his position at such location.
4.
COMPENSATION . As compensation for his services
performed hereunder, the Corporation shall pay or provide to the
Executive the following:
(a)
Base Salary . The Corporation shall pay the Executive
a base salary (the “ Base Salary ”), calculated
at the rate of One MillionOne Hundred Thousand Dollars
($1,100,000.00) per annum (which Base Salary may be increased, but
not reduced, by the Compensation Committee of the Board (the
“ Compensation Committee ”) at any time and from
time to time in its discretion), payable monthly, semi-monthly or
weekly according to the Corporation’s general practice for
its executives, for the period of employment under this
Agreement. Such Base Salary may be increased annually by an
amount determined by the Compensation Committee. Such Base
Salary, including such annual increases (which shall be considered
part of the Base Salary), shall not be reduced during the period of
employment hereunder.
(b)
Bonus . The Executive shall be eligible for an annual
performance bonus (the “ Bonus ”) as determined
under the provisions of the Regis Corporation 2004 Short Term
Incentive Compensation Plan, as amended from time to time, any
successor to such plan, or such other annual incentive compensation
program developed for the Corporation’s executive
officers.
(c)
Other Incentive Plans . During the period of
employment, the Executive shall be eligible to participate in such
other incentive compensation programs in accordance with their
terms as the Corporation may have in effect from time to time for
its executive personnel (including the Regis Corporation Long Term
Incentive Plan, as amended from time to time, and any successor
thereto), other than any annual cash bonus plan (which is dealt
with in Section 4(b) hereof), and all compensation and other
entitlements earned thereunder shall be in addition to, and shall
not in any way reduce, the amount payable as Base Salary and
Bonus.
(d)
Restricted StockUnits . On the Effective Date,
the Corporation shall grant the Executive restricted stock units
with respect to One Hundred Sixty-Five Thousand (165,000) shares of
the Corporation’s common stock, subject to the terms and
conditions of the Regis Corporation 2004 Long Term Incentive Plan,
including any amendments made to provide for such awards.
Such restricted stockunits shall remain unvested and forfeitable
until the day immediately preceding the fifth anniversary of the
Effective Date; at such time the restricted stock units shall
become fully (100%) vested, provided the Executive is employed by
the Corporation (or a subsidiary of the Corporation) on such
date. Payment of such restricted stock units automatically
shall be deferred until January 31 of the calendar year next
following the vesting date provided in the immediately preceding
sentence.
(e)
Life Insurance . Subject to the last sentence of this
Section 4(e), the Corporation shall reimburse the Executive the sum
of One Hundred Thousand Dollars ($100,000) annually for premiums
payable by the Executive with respect to life insurance coverage
under a policy (issued by the John Hancock Life Insurance Company)
with a face amount of Ten Million Dollars ($10,000,000) insuring
the Executive’s life, or any successor or replacement life
insurance policy; said policy shall be referred to herein as the
“ Policy .” During such time that the
Corporation shall be making the premium payments pursuant to the
preceding sentence of this Section 4(e), the Corporation shall, in
addition to each premium payment, pay the Executive an amount
determined by the following formula: (P/1-X)-P, where P equals the
Corporation’s premium payment obligation on the Policy
pursuant to this Section 4(e) and X equals the Executive’s
aggregate marginal federal and state income tax bracket for such
year. Such payments and tax gross-up shall be made
during the term of this Agreement and, if at least ten (10) annual
premium payments have not been made by the Corporation with respect
to said Policy, for such additional time (regardless of whether the
Executive continues to be employed by the Corporation) until the
Corporation has made a total of ten (10) annual premium payments on
said Policy; provided, however, that the Corporation’s
obligation to make such premium payments and tax gross-up shall
cease upon the Executive’s termination of this Agreement by
reason of his voluntary resignation during the term of this
Agreement.
(f)
Retirement Benefit . The Corporation shall pay to the
Executive, if living, or to his former spouse Barbara (sometimes
referred to as the Executive’s “ Former Spouse
”), in the event of his death, the following sums
2
(sometimes referred to as his
“ Retirement Benefit ”) upon the terms and
conditions and for the periods hereinafter set forth:
(i)
Payments upon Retirement or Involuntary Termination .
Commencing upon the last day of the month next following the month
in which the Executive (1) retires from employment with the
Corporation after attaining age 65 , (2) reaches age 65 if
he is then disabled within the meaning of Section 4(f)(iv), or (3)
is terminated by the Corporation without Cause or by the Executive
for Good Reason, the Corporation shall pay to the Executive a
Retirement Benefit equal to his Adjusted Monthly Benefit and shall
continue to pay him such amounts monthly on the same date of each
succeeding month for the remainder of his life. If the
Executive’s Former Spouse survives him, the Corporation shall
pay to such Former Spouse for the remainder of her life one-half of
the Executive’s Adjusted Monthly Benefit.
(ii)
Early Voluntary Termination . In the event the
Executive voluntarily terminates his employment with the
Corporation before reaching age 65, and prior to any Change in
Control, the Corporation shall pay to the Executive a Retirement
Benefit equal to two-thirds of his Discounted Vested Monthly
Benefit commencing upon the last day of the month next following
the month in which the date such termination occurs, and shall
continue to pay him such amount monthly on the same date of each
succeeding month for a total of 240 months. If the Executive
dies before receiving all 240 monthly payments specified herein,
the Corporation shall pay to his Designated Beneficiary the
remaining monthly payments as they become due.
(iii)
Former Spousal Payments . If the Executive dies while
employed by the Corporation, the Corporation shall pay to his
Former Spouse one-half of the Adjusted Monthly Benefit to which the
Executive would have been entitled were he living, such payments to
commence within thirty (30) days after the Executive’s death
and to continue monthly for the remainder of her life.
(iv)
Payments During Disability . In addition to the
payments provided in Sections 4(f)(i) and (ii) should the Executive
become disabled while employed by the Corporation, and such
disability continues for a period of six (6) months, the
Corporation shall pay to the Executive his Monthly Benefit during
each month that the Executive remains disabled until he attains age
65 or until his death prior to attaining such age, at which time
the payments provided in Sections 4(f)(i), (ii) or (iii) (whichever
is applicable) shall begin. The first payment under this
Section 4(f)(iv) shall be made during the seventh month of such
disability, and each succeeding payment shall be made on the same
date of each succeeding month thereafter. Payments shall be
made under this Section 4(f)(iv) only if the Executive is disabled
within the meaning of the disability clause of the
Corporation’s long term disability insurance policy or
program as then in effect.
(v)
Termination for Cause . If the Executive’s
employment with the Corporation is terminated at any time for Cause
(as defined in Section 8), the Corporation shall have no obligation
to make any payments to him under this Section 4(f) and all such
future payments shall be forfeited.
(g)
Health, Welfare and Retirement Plans; Vacation .
During the period of employment, the Executive shall be entitled
to:
(i)
participate in such retirement, health (medical, hospital and/or
dental) insurance, life insurance, disability insurance, flexible
benefits arrangements and accident insurance plans and programs as
are maintained in effect from time to time by the Corporation for
its headquarters employees;
(ii)
participate in other non-duplicative benefit programs which the
Corporation may from time to time offer generally to headquarters
personnel of the Corporation; and
(iii)
take vacations and be entitled to sick leave in accordance with the
Corporation’s policy for executive personnel of the
Corporation.
(h)
Expenses . Executive shall be reimbursed for
reasonable business expenses incurred in connection with the
performance of his duties hereunder consistent with the
Company’s policy regarding reimbursement of such
3
expenses. With respect to any
benefits or payments received or owed to the Executive hereunder,
the Executive shall cooperate in good faith with the Corporation to
structure such benefits or payments in the most tax-efficient
manner to the Corporation.
5.
EFFECT OF DISABILITY AND CERTAIN HAZARDS . The
Executive shall not be obligated to perform the services required
of him by this Agreement during any period in which he is disabled
or his health is impaired to an extent which would render his
performance of such services hazardous to his health or life, and
relief from such obligation shall not in any way affect his rights
hereunder except to the extent that such disability or health
impairment may result in termination of his employment by the
Corporation pursuant to Section 6 herein.
6.
TERMINATION OF EMPLOYMENT . The employment of the
Executive by the Corporation pursuant to this Agreement may be
terminated by the Corporation or the Executive at any time, as
follows:
(a)
Death . In the event of the Executive’s death
prior to the expiration of the period of employment hereunder, such
employment shall terminate on the date of death.
(b)
Permanent Disability . The Executive’s
employment may be terminated by the Corporation prior to the
expiration of the period of employment hereunder due to
Executive’s physical or mental disability or health
impairment which prevents the effective performance by the
Executive of his duties hereunder on a full time basis, with such
termination to occur (i) with respect to disability, on or after
the time which the Executive becomes entitled to disability
compensation benefits under the Corporation’s long term
disability insurance policy or program as then in effect or (ii)
with respect to health impairment, after Executive has been unable
to substantially perform his services hereunder for six consecutive
months. Any dispute as to the Executive’s physical or
mental disability or health impairment shall be settled by the
opinion of an impartial physician selected by the parties or their
representatives or, in the event of failure to make a joint
selection after request therefor by either party to the other, a
physician selected by the Corporation, with the fees and expenses
of any such physician to be borne by the Corporation.
(c)
Cause . The Corporation, by giving written notice of
termination to the Executive, may terminate such employment at any
time prior to the expiration of the period of employment hereunder
for “ Cause ” (as defined in Section
8).
(d)
Without Cause . The Corporation may terminate such
employment at any time prior to said date without Cause (which
shall be for any reason not covered by preceding Sections 6(a)
through (c)) upon sixty (60) days prior written notice to the
Executive.
(e)
By the Executive . The Executive may terminate such
employment at any time for an applicable Good Reason (as defined in
Section 8), subject to Section 6(f). The Executive may also
terminate such employment for any other reason upon prior written
notice thereof to the Corporation, and the Executive agrees to use
his reasonable best efforts to provide twelve (12) months’
prior written notice in such event.
(f)
Notice of Good Reason . If the Executive believes that
he is entitled to terminate his employment with the Corporation for
an applicable Good Reason, he may apply in writing to the
Corporation for confirmation of such entitlement prior to the
Executive’s actual separation from employment, by following
the claims procedure set forth in Section 11 hereof. The
submission of such a request by the Executive shall not constitute
“Cause” for the Corporation to terminate the Executive
under Section 6(c) hereof; and the Executive shall continue to
receive all compensation and benefits he was receiving at the time
of such submission throughout the resolution of the matter pursuant
to the procedures set forth in Section 11 hereof. If the
Executive’s request for a termination of employment for Good
Reason is denied under both the request and appeal procedures set
forth in Sections 11(a) and (b) hereof, then the parties shall
promptly submit the claim to binding arbitration pursuant to
Section 11(c) and use their best efforts to conclude the
arbitration within ninety (90) days after the claim is
submitted.
(g)
Notice of Termination . Any termination of the
Executive’s employment by the Corporation or by the Executive
(other than termination based on the Executive’s death) shall
be communicated by a written Notice of Termination to the other
party hereto. 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
4
reasonable detail the facts and
circumstances claimed to provide a basis for termination of the
Executive’s employment under the provision so
indicated. For purposes of this Agreement, no purported
termination shall be effective without the delivery of such Notice
of Termination.
(h)
Date of Termination . The “ date of
termination ” of the Executive’s employment shall
mean (i) if the Executive is terminated by his death, the date of
his death, (ii) if the Executive’s employment is terminated
due to a permanent disability or health impairment, thirty (30)
days after the Notice of Termination is given (provided that the
Executive shall not have returned to the performance of his duties
on a full-time basis during such period), (iii) if the
Executive’s employment is terminated pursuant to a
termination for Cause, the date specified in the Notice of
Termination, and (iv) if the Executive’s employment is
terminated for any other reason, the date shall be the later of
thirty (30) days after termination as provided by the Notice of
Termination or the date of the final resolution of the arbitration
and claims procedures set forth in Section 11 hereof, unless
otherwise agreed by the Executive and Corporation or otherwise
provided in this Agreement.
7.
PAYMENTS UPON TERMINATION .
(a)
Death or Disability . If the Executive’s
employment is terminated by reason of his death or permanent
disability, he (or the legal representative of his estate in the
event of his death) shall be entitled to the following:
(i)
Accrued Compensation . All compensation due the
Executive under this Agreement and under each plan or program of
the Corporation in which he may be participating at the time shall
cease to accrue as of the date of such termination, except (1) as
specifically provided in this Agreement or (2) in the case of any
such plan or program, if and to the extent otherwise provided in
the terms of such plan or program or by applicable law. All
such compensation accrued as of the date of such termination but
not previously paid shall be paid to the Executive at the time such
payment otherwise would be due.
(ii)
Accrued Obligations . In addition, the Executive shall
also be entitled to the following: (1) a payment equal to the
Highest Annual Bonus, pro rata based on the portion of the year
ended on the date of the termination; (2) unpaid deferred
compensation under the Regis Corporation Non-Qualified Deferred
Compensation Plan, together with all earnings thereon (it being
understood that this is separate from, and in addition to, the
Retirement Benefit set forth in Section 4(f) hereof); and (3)
accrued vacation pay.
(iii)
Acceleration of Vesting . All options to purchase the
Corporation’s common stock and shares of restricted stock and
restricted stock units held by Executive at the time of such
termination but still subject to vesting, shall be fully and
immediately vested. All other benefits or interests of
Executive in any of the Corporation’s long term incentive
plans or arrangements which are subject to vesting shall be fully
and immediately vested.
(iv)
Benefits . In lieu of any continuation coverage the
Executive may have been entitled to receive under the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended, (“
COBRA ”)during the period commencing with the
Executive’s termination of employment and continuing through
the death of the survivor of the Executive and any surviving
spouse, the Executive shall be entitled to the continuation of the
same or equivalent health, hospitalization, prescription drug and
dental insurance coverage that he had received immediately prior to
termination of employment, as if he had continued to be an
executive employee of the Corporation. In the event that the
Executive is ineligible under the terms of such insurance to
continue to be so covered, the Corporation shall provide the
Executive with substantially equivalent coverage through other
sources or will reimburse the Executive for actual premiums paid
for such alternative coverage (such as Medicare Part A, Part B and
prescription drug coverage) that the Executive obtains for the
payment period.
(b)
Termination Withou