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EMPLOYMENT AGREEMENT

Employee Retention Agreement

EMPLOYMENT AGREEMENT | Document Parties: Regis Corporation You are currently viewing:
This Employee Retention Agreement involves

Regis Corporation

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Title: EMPLOYMENT AGREEMENT
Governing Law: Minnesota     Date: 2/9/2009
Industry: Personal Services     Sector: Services

EMPLOYMENT AGREEMENT, Parties: regis corporation
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Exhibit No. 10(b)(*)

 

EMPLOYMENT AGREEMENT

(as Amended and Restated December 31, 2008)

 

THIS EMPLOYMENT AGREEMENT (this “ Agreement ”), adopted as of the 31st day of December, 2008, 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 were parties to that certain Employment and Deferred Compensation Agreement, dated April 14, 1998, as subsequently amended (the “ Original Agreement ”); and

 

WHEREAS, the Corporation and the Executive also were 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 and the Executive, by an agreement dated February 8, 2007 (“ 2007 Agreement ”), terminated the Original Agreement and consolidated the terms and conditions of the Insurance Agreement in the 2007 Agreement; and

 

WHEREAS, the Corporation and the Executive wish to further amend and restate the 2007 Agreement as of the date hereof to make certain changes to comply with Section 409A of the Internal Revenue Code of 1986, as amended (the “ Code ”) (this restatement is referred to herein as the “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 on December 31, 2008 (the “ Effective Date ”); the 2007 Agreement was effective on February 8, 2007 (the “ 2007 Agreement 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 2007 Agreement 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 2007 Agreement 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 Million One 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

 

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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 Stock Units .   On the 2007 Agreement 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 stock units shall remain unvested and forfeitable until the day immediately preceding the fifth anniversary of the 2007 Agreement 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/Survivor 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 upon the terms and conditions and for the periods hereinafter set forth:

 

(i)             Retirement Payments to the Executive .  Upon the Executive’s termination of employment with the Corporation, the Corporation shall pay to the Executive a a  lump sum cash payment of an amount (sometimes referred to as his “ Retirement Benefit ”) equal to the present value of a hypothetical annuity payable

 

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to the Executive for life starting on the first day of the month following his termination of employment with the Corporation, with monthly payments equal to his Adjusted Monthly Benefit.  For the purpose of determining this present value, the following assumptions shall apply:

 

(1)            Interest: Payments shall be discounted to present value at a rate of interest equal to the yield to maturity, of 30-year U.S. Treasury Notes as of the Executive’s termination of employment.

 

(2)            Mortality:  It shall be assumed that payments will be made for the joint life and last survivor expectancy of the Executive and his Former Spouse, or the life expectancy of the Executive if the Former Spouse is not then living, as determined at the start of payments under Table II (Joint Life and Last Survivor Expectancy), or Table I (Single Life Expectancy), as applicable, found the IRS Publication 590.  Any payments to be made beyond the life expectancy of the Executive, as determined under Table I, are assumed to be fifty percent (50%) of the Adjusted Monthly Benefit.

 

(3)            Cost of Living Adjustment: It shall be assumed that the Consumer Price Index increases by  four percent (4%) per year to derive the Adjusted Monthly Benefit.

 

(ii)            Survivor Benefits to Former Spouse. If the Executive dies while employed with the Corporation (or after his termination of employment with the Corporation but prior to payment under (i) above), 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 and were he to receive his Retirement Benefit in the form of an annuity for his life, such payments to commence within thirty (30) days after the Executive’s death and to continue monthly for the remainder of her life (sometimes referred to as her “ Survivor Benefit ”).

 

(iii)           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 or his Former Spouse 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;

 

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(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 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).

 

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(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 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.

 

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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.  Any such reimbursement shall be paid by December 31 of the calendar year following the year in which Employee pays such premiums.

 

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(b)            Termination Without Cause or for Good Reason .  If the Executive’s employment pursuant to this Agreement is terminated without Cause pursuant to Section 6(d) hereof or the Executive terminates this Agreement for Good Reason, then the Executive shall be entitled to and shall receive the following:

 

(i)             Accrued Compensation .  All compensation due the Executive under this Agreement and under each plan or program of the Corporation in


 
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