Exhibit 10.12
GEORGIA SHONK-SIMMONS
EMPLOYMENT AGREEMENT, AS AMENDED AND RESTATED
THIS EMPLOYMENT AGREEMENT (this
“ Agreement ”) is dated as of
December 20, 2006, and amended and restated
December 23, 2008, by and between Coldwater Creek Inc., a
Delaware corporation (the “ Company ”), and
Georgia Shonk-Simmons (the “ Executive
”).
WHEREAS, the Company desires to
employ the Executive as its President and Chief Merchandising
Officer, and the Executive desires to accept such employment, on
the terms set forth below.
Accordingly, the parties hereto
agree as follows:
1.
Term . The Company hereby employs the
Executive, and the Executive hereby accepts such employment for an
initial term commencing as of the date hereof and ending
December 20, 2009, unless sooner terminated in accordance with
the provisions of Section 4 or Section 5, and which shall
automatically renew for an additional one year term unless six
months advance notice is given of non-renewal (the period during
which the Executive is employed hereunder being hereinafter
referred to as the “ Term ”).
2.
Duties . The Executive, in her capacity as
President and Chief Merchandising Officer, shall faithfully perform
for the Company the duties of said office and shall perform such
other duties of an executive, managerial or administrative nature
as shall be specified and designated from time to time by the Chief
Executive Officer or board of directors or similar governing body
of the Company (the “ Board ”) (including the
performance of services for, and serving on the Board of Directors
of, any subsidiary or affiliate of the Company without any
additional compensation). The Executive will be based at the
Company’s headquarters, presently located in Sandpoint,
Idaho. The Executive shall devote substantially all of the
Executive’s business time and effort to the performance of
the Executive’s duties hereunder, provided that in no event
shall this sentence prohibit the Executive from performing personal
and charitable activities and any other activities approved by the
Chief Executive Officer or the Board, so long as such activities do
not materially and adversely interfere with the Executive’s
duties for the Company.
3.
Compensation
.
3.1
Salary . The Company shall pay the Executive
during the Term a base salary at the rate of $600,000 per annum
(the “ Annual Salary ”), payable semi-monthly
and subject to regular deductions and withholdings as required by
law. The Annual Salary may be
increased annually by an amount as
may be approved by the Board or the Compensation Committee of the
Board of Directors (the “ Compensation Committee
”), and, upon such increase, the increased amount shall
thereafter be deemed to be the Annual Salary for purposes of this
Agreement.
3.2
Bonus . The Executive will be entitled to such
bonuses as may be authorized by the Board. The
Executive’s target bonus amount, when expressed as a
percentage of Annual Salary, will be no less than the target amount
that was applicable for fiscal year 2006, provided, however, that
Executive’s Annual Bonus, if any, may be below, at, or above
the target based upon the achievement of individual and objective
Company annual performance criteria established by the Compensation
Committee. Any Annual Bonus payable to the Executive
hereunder shall be paid no later than 2 ½ months of the
fiscal year following the fiscal year with respect to which the
bonus is earned.
3.3
Equity-Based Awards
. The Executive may from
time to time be awarded such restricted stock units, stock options
or other equity-based awards as the Board or the Compensation
Committee determines to be appropriate.
3.4
Benefits – In
General . The
Executive shall be permitted during the Term to participate in any
group life, hospitalization or disability insurance plans, health
programs, pension and profit sharing plans, supplemental executive
retirement plan and similar benefits that may be available to other
senior executives of the Company generally, on the same terms as
may be applicable to such other executives, in each case to the
extent that the Executive is eligible under the terms of such plans
or programs.
3.5
Personal Days
. During the Term, the
Executive shall be entitled to the number of personal days per year
as may be prescribed from time to time pursuant to the
Company’s human resources policies.
3.6
Expenses . The Company shall pay or reimburse the
Executive for all ordinary and reasonable out-of-pocket expenses
actually incurred (and, in the case of reimbursement, paid) by the
Executive during the Term in the performance of the
Executive’s services under this Agreement, provided that the
Executive submits such expenses in accordance with the policies
applicable to senior executives of the Company
generally.
4.
Termination upon Death or
Disability . If the
Executive dies during the Term, the obligations of the Company to
or with respect to the Executive shall terminate in their entirety
except as otherwise provided under this Section 4. If
the Executive becomes eligible for disability benefits under the
Company’s long-term disability plans and arrangements (or, if
none apply, would have been so eligible under the most recent plan
or arrangement), the Company shall have the right, to the extent
permitted by law, to terminate the employment of the Executive upon
notice in writing to the Executive and such termination in and of
itself shall not be, nor shall it be deemed to be, a breach of this
Agreement; provided that,, the Company will have no right to
terminate the Executive’s employment if, in the opinion of a
qualified physician
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reasonably acceptable to the
Company, it is reasonably certain that the Executive will be able
to resume the Executive’s duties on a regular full-time basis
within 90 days of the date the Executive receives notice of such
termination.
Upon death of the Executive or upon
termination of the Executive’s employment by virtue of
disability the Executive (or the Executive’s estate or
beneficiaries in the case of the death of the Executive) shall have
no right to receive any compensation or benefit under this
Agreement on and after the Effective Date of the Termination (as
defined below in this Section 4) other than the Annual Salary
earned and accrued under this Agreement prior to the Effective Date
of the Termination, a pro-rata bonus for the year of termination
based on the target and portion of year completed, and other
benefits, including payment for accrued but unused vacation, earned
and accrued under this Agreement prior to the Effective Date of the
Termination (and reimbursement under this Agreement for expenses
incurred but not paid prior to the Effective Date of the
Termination). In the event of termination by virtue of
disability, in addition to the foregoing, the Executive will also
be entitled to monthly cash payments equal to one twelfth (1/12th)
of the Executive’s Annual Salary in effect on the day of
termination for a period of eighteen (18) months. This Agreement
shall otherwise terminate upon the Effective Date of the
Termination and there shall be no further rights with respect to
the Executive hereunder (except as provided in
Section 7.13). For purposes of this Section 4, the
“ Effective Date of the Termination ” shall mean
the date of death or the date on which a notice of termination by
virtue of disability is given by the Company or any later date set
forth in such notice of termination.
For the avoidance of doubt, the
Executive acknowledges and agrees that the payments set forth in
this Section 4 constitute liquidated damages for termination
of her employment during the Term upon her death or by virtue of
her disability.
5.
Other Terminations of
Employment .
5.1
Termination for Cause;
Termination of Employment by the Executive Without Good
Reason .
(a)
For purposes of this Agreement,
“ Cause ” shall mean:
(i)
the Executive’s commission of
any felony;
(ii)
the Executive’s commission of
an act of fraud, theft or dishonesty;
(iii)
the continuing failure or habitual
neglect by the Executive to perform the Executive’s duties
hereunder;
(iv)
any material violation of Company
policy, including without limitation, the Company’s Corporate
Standards of Conduct;
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(v)
any material violation by the
Executive of Section 6 below; or
(vi)
the Executive’s material
breach of this Agreement.
Notwithstanding the foregoing, if
there exists (without regard to this sentence) an event or
condition that constitutes Cause under clause (iii), (iv),
(v) or (vi) above, the Executive shall have 30 days from
the date written notice is given by the Company of such event or
condition to cure such event or condition and, if the Executive
does so, such event or condition shall not constitute Cause
hereunder.
(b)
For purposes of this Agreement,
“ Good Reason ” shall mean, unless otherwise
consented to by the Executive:
(i)
the material reduction of the
Executive’s authority, duties and responsibilities, or the
assignment to the Executive of duties materially and adversely
inconsistent with the Executive’s position or positions with
the Company and its subsidiaries;
(ii)
a material reduction in Annual
Salary of the Executive except in connection with a reduction in
compensation generally applicable to senior management employees of
the Company;
(iii)
a requirement by the Company that
the Executive’s work location be moved more than 50 miles
from the Company’s principal place of business in Sandpoint,
Idaho; or
(iv)
the Company’s material and
willful breach of this Agreement.
Notwithstanding the foregoing, if
there exists (without regard to this sentence) an event or
condition that constitutes Good Reason, the Company shall have
thirty (30) days from the date on which the Executive gives the
written notice thereof to cure such event or condition (such notice
from the Executive to be given within ninety (90) days from the
date the event or condition first occurs) and, if the Company does
so, such event or condition shall not constitute Good Reason
hereunder. Further, an event or condition shall cease to
constitute Good Reason one hundred twenty (120) days after the
event or condition first occurs. In addition, for a period of
30 days commencing on the first anniversary of the Change in
Control, a Change in Control shall constitute Good Reason, and in
the event Executive terminates employment, it will be deemed to
have occurred within 12 months of a Change in Control for purposes
of Section 5.2.
(c)
The Company may terminate the
Executive’s employment for Cause and such termination in and
of itself shall not be, nor shall it be deemed to be, a breach of
this Agreement. If the Company terminates the Executive for
Cause, (i) the Executive shall have
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no right to receive any compensation
or benefit under this Agreement on and after the Effective Date of
the Termination (as defined below in this Section 5.1(c))
other than Annual Salary and other benefits, including payment for
accrued but unused vacation (but excluding any bonuses) earned and
accrued under this Agreement prior to the Effective Date of the
Termination (and reimbursement under this Agreement for expenses
incurred but not paid prior to the Effective Date of the
Termination), (ii) the provisions of Section 5.3 shall
apply and (iii) this Agreement shall otherwise terminate upon
the Effective Date of the Termination and the Executive shall have
no further rights hereunder (except as provided in
Section 7.13). For purposes of this Section 5.1(c),
the “ Effective Date of the Termination ” shall
mean the date on which a notice of termination is given by the
Company or any later date set forth in such notice of
termination.
(d)
The Executive may terminate her
employment without Good Reason. If the Executive terminates
the Executive’s employment with the Company without Good
Reason: (i) the Executive shall have no right to receive any
compensation or benefit under this Agreement on and after the
Effective Date of the Termination (as defined below in this
Section 5.1(d)) other than Annual Salary and other benefits,
including payment for accrued but unused vacation (but excluding
any bonuses) earned and accrued under this Agreement prior to the
Effective Date of the Termination (and reimbursement under this
Agreement for expenses incurred but not paid prior to the Effective
Date of the Termination), (ii) the provisions of
Section 5.3 shall apply and (iii) this Agreement shall
otherwise terminate upon the Effective Date of the Termination and
the Executive shall have no further rights hereunder (except as
provided in Section 7.13). For purposes of this
Section 5.1(d), the “ Effective Date of the
Termination ” shall mean the date on which a notice of
termination is given by the Executive or any later date set forth
in such notice of termination.
(e)
In the event the Executive or the
Company elects not to renew this Agreement pursuant to
Section 1 above, (i) the Executive shall have no right to
receive any compensation or benefit under this Agreement on and
after the Effective Date of the Termination (as defined below in
this Section 5.1(e)) other than Annual Salary earned and
accrued under this Agreement prior to the Effective Date of the
Termination, any bonus for any prior years not yet paid, any bonus
earned with respect to the calendar year in which the Effective
Date of Termination occurred, and other benefits, including payment
for accrued but unused vacation, earned and accrued under this
Agreement prior to the Effective Date of the Termination (and
reimbursement under this Agreement for expenses incurred but not
paid prior to the Effective Date of the Termination) and
(ii) this Agreement shall otherwise terminate upon the
Effective Date of the Termination and there shall be no further
rights with respect to the Executive hereunder (except as provided
in Section 7.13). For purposes of this
Section 5.1(e), the “ Effective Date of the
Termination ” shall mean the date on which a notice of
non-renewal is given by the Executive or the Company, as
applicab
