Exhibit 10.13
EMPLOYMENT
AGREEMENT
This Employment Agreement
(“Agreement”) is made and entered into as of the 24th
day of February, 2009 between Cache, Inc., a
Florida corporation, having its principal place of business at 1440
Broadway, New York, New York 10036 (“Cache” or the
“Company”), and Thomas E. Reinckens
(“Reinckens” or “Executive”).
WHEREAS, the Company wishes to continue the employment of
Reinckens as Chairman of the Board, President and Chief Executive
Officer (“CEO”) and Reinckens wishes to continue such
employment on the terms and conditions set forth herein.
NOW, THEREFORE
, in consideration of the mutual
covenants and promises contained herein, the parties hereto each
intending to be legally bound, agree as follows:
1.0
Employment
Cache hereby employs Reinckens as
CEO and Reinckens hereby accepts such employment. This
Agreement shall commence on February 24, 2009 for a term of 3
years expiring on February 23, 2012 (the “Expiration
Date”), subject to termination as hereinafter
provided.
2.0
Duties and
Responsibilities
2.1
During Executive’s employment,
Executive shall perform all duties and accept all responsibilities
as may be assigned from time to time by the Board of Directors of
Cache (the “Board”) and that are consistent with the
duties and responsibilities of a CEO.
2.2
Executive agrees that he will
diligently devote his entire business skill, time and effort to the
performance of his duties on behalf of Cache. Executive
agrees that he will not, alone or as a member of a partnership or
as an officer,
director, employee or agent of any
other person, firm or business organization, engage in any other
business activities or pursuits requiring his personal services
that might conflict with his duties hereunder.
2.3
Executive represents and warrants
that he is not subject or party to any employment agreement,
non-competition covenant, non-disclosure agreement or other
agreement, covenant, understanding or restriction that would
prohibit Executive from executing this Agreement and performing
fully his duties and responsibilities hereunder, or which would in
any manner, directly or indirectly, limit or affect the duties and
responsibilities which may now or in the future be assigned to
Executive by Cache.
2.4
Executive agrees that at all times
he will strictly adhere to and perform all his duties in accordance
with applicable laws, rules and regulations, and in accordance
with policies and procedures of Cache that are in effect from time
to time.
3.0
Compensation and
Benefits
3.1
Salary. During the initial year of
Executive’s employment under this Agreement
(February 24, 2009 through February 23, 2010), Cache
shall pay Executive an annual base salary of $600,000, less
withholdings and other applicable payroll deductions as required by
law, payable in equal installments at such times as Cache
customarily pays its other senior executive officers, but no less
often than monthly. During the term of this Agreement, the
Compensation Committee of the Board will review the
Executive’s base salary on an annual basis and make
adjustments thereto subject to the performance of the Executive,
the operating results of the Company, the competitive compensation
landscape and such other factors as are determined to be relevant
by the Compensation Committee. Such reviews will be completed
prior to February 1 of the applicable year and any adjustment
(if any) will be effective as of February 1 of such
year. In addition to base salary, the Executive will be
eligible to participate in performance based incentive bonus plans
for senior executive officers as approved by the Compensation
Committee of the Board, as and to the extent provided for in
Sections 3.2 and 3.4 below.
Any compensation increase pursuant
to this Section 3.1 shall become a permanent part of
Executive’s annual base salary. Executive may, in his
sole discretion, agree to receive a reduced annual base salary on a
temporary or permanent basis. To the extent the reduction is
temporary, at such time as the reduction ceases to be in effect,
Executive’s annual base salary shall revert to the annual
base salary in effect immediately prior to the
reduction.
3.2
Benefits. Executive will be eligible to
receive the health care and other benefits that Cache makes
available to its senior executive officers including term life
insurance equal to three times the Executive’s annual salary,
provided that Executive meets the eligibility requirements for such
plans or programs. In addition, Executive will continue to be
eligible to participate in Cache’s stock option plans and
will be eligible to participate in any other executive bonus or
incentive plan established by Cache, in each case in accordance
with the terms of those plans, and nothing in this Agreement is
intended to modify or discontinue Executive’s participation
in any plan in which he participates as of the date of this
Agreement.
3.3
Business Expenses.
Executive shall be
reimbursed for the reasonable business expenses incurred on
Cache’s behalf in connection with the performance of his
services hereunder upon presentation of an itemized account and
written proof of such expenses, in accordance with the policies
established by Cache.
3.4
Bonus . The Executive shall be
entitled to such performance based bonuses as the Compensation
Committee of the Board may from time to time determine in its
discretion (“Bonuses”).
3.5
Repayment of Bonuses
. If the audited
annual financial statements of Cache in respect of any year during
the term of this Agreement are subsequently restated due to a
material error or fraud that, in either such case, results in a
material restatement of such financial statements, if so requested
by the Board, Executive shall repay to the Company all or part of
any Bonus received in respect of such year.
4.0
Termination Without
Compensation
4.1
Mutual Agreement
. Executive’s
employment, and the parties’ respective obligations
hereunder, may be terminated by mutual written agreement, with at
least 30 days prior written notice of the termination date agreed
to by the parties.
4.2
Resignation
. Executive shall
submit written notice of his resignation at least 60 days prior to
a specified termination date.
4.3
Partial/Total
Disability . If Executive is unable to
perform his duties and responsibilities to the full extent required
hereunder, either with or without reasonable accommodation, by
reason of physical or psychiatric illness, injury or
incapacity
for six (6) continuous months
or nine (9) months in a twelve (12) month period, Cache may
terminate Executive’s employment by written notice of the
termination date and Cache shall have no further liability or
obligation to Executive hereunder, except for any unpaid salary and
benefits accrued to the date of termination. During any
period of disability, Executive will receive his salary in effect
at the time of disability, less any amounts received as disability
benefits through any applicable disability program, Cache benefit
plan or the Social Security Administration. In the event of
any dispute under this Section 4.3, Executive shall submit to
a physical and/or psychiatric examination by a licensed physician
mutually satisfactory to Cache and the Executive. The cost of
such examination will be paid by Cache and the findings of such
physician shall be determinative.
4.4
Death . If Executive dies, this
Agreement shall terminate and thereafter Cache shall not have any
further liability or obligation to Executive, his executors,
administrators, heirs, assigns or any other person claiming under
or through him, except for unpaid salary and benefits accrued to
the date of his death.
4.5
Cause . Cache may at any time
terminate Executive’s employment for “cause” and
thereafter Cache shall have no further liability or obligation to
Executive. For purposes of this Agreement,
“cause” shall mean (a) Executive’s
conviction, guilty plea or plea of nolo contendere with respect to
(i) any felony or (ii) any misdemeanor involving fraud,
theft, dishonesty, wrongful taking of property, embezzlement,
bribery, forgery or extortion; (b) Executive’s failure
(other than by reason of illness, injury or incapacity) to perform
or fulfill any of Executive’s material duties,
responsibilities or obligations; (c) Executive’s
material neglect of Cache’s business (other than by reason of
illness, injury or incapacity); (d) Executive’s
fraudulent, unlawful, grossly negligent or willful misconduct in
connection with Executive’s duties;
(e) Executive’s material breach of this Agreement or any
material policy or procedure of Cache; or (f) misappropriation
of funds by Executive.
4.6
Further Obligations
. In the event that
Executive’s employment is terminated for any of the reasons
set forth in this Section 4 (a “Termination without
Compensation”), Cache will have no further liability or
obligation to Executive, except for any unpaid salary or benefits
accrued as of the date of termination.
5.0
Termination With
Compensation
5.1
At any time prior to a “Change
of Ownership or Control” of Cache (as defined herein), Cache
shall have the right to terminate Executive’s employment at
any time without cause by giving Executive 30 days’ notice of
the termination date. In
the event that Executive’s
employment is terminated pursuant to this Section 5.1, Cache
shall continue to pay Executive the salary then in effect for the
balance of the term of this Agreement, less withholdings and other
applicable payroll deductions as required by law, in accordance
with Cache’s normal pay cycle. However, Executive shall
not be entitled to any compensation under this Section 5.1
unless Executive executes and delivers to Cache after notice of
termination a general release acceptable to Cache by which
Executive releases Cache from any obligations and liabilities of
any type whatsoever, excep
