Exhibit 10.15
GERARD EL CHAAR
EMPLOYMENT AGREEMENT, AS AMENDED
AND RESTATED
THIS EMPLOYMENT AGREEMENT (this
“ Agreement ”) is dated as of May 29, 2007,
and amended and restated December 23, 2008 by and between
Coldwater Creek Inc., a Delaware corporation (the “
Company ”), and Gerard El Chaar (the “
Executive ”).
WHEREAS, the Company desires to
employ the Executive as its Senior Vice President-Operations 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
May 29, 2010, 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 his capacity as Senior
Vice President-Operations 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, or at such other location as is designated by the Board of
Directors. 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 $350,000 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 will be expressed as a percentage of
Annual Salary, 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 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.
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
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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 twelve (12) 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 his employment during the Term upon his death or by virtue of
his 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;
(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
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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 Executive’s current principal place of business
other than to the Company’s principal place of business in
Sandpoint, Idaho or its facility in Coeur d’Alene, 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
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.
(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 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
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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 his
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 ye
