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