STANDARD EXECUTIVE EMPLOYMENT
AGREEMENT
This Standard
Executive Employment Agreement (“Agreement”) by and
between DSW Inc. (“Company”) and Jon Ricker
(“Executive”), collectively, the “Parties,”
is effective as of the date signed (“Effective Date”)
and supercedes and replaces any other oral or written
employment-related agreement between the Executive and the
Company.
This Agreement
will remain in effect from the Effective Date until it terminates
as provided in Section 5.00. Any notice of termination
required to be given under this Agreement must be given as provided
in Section 6.00 and will be effective on the date prescribed
in Section 5.00.
2.00 Executive’s Employment
Function
2.01
Position . The Executive
agrees to serve as the Company’s Executive Vice President,
Chief Administrative Officer with the authority and duties
customarily associated with this position and to discharge any
other duties and responsibilities assigned by the President. The
Executive will report directly to and be subject to the
supervision, advice and direction of the President, or his/her
designate. The Executive agrees at all times to observe and be
bound by all Company rules, policies, practices, procedures and
resolutions that generally apply to Company employees of comparable
status and which do not conflict with the specific terms of this
Agreement.
2.02 Place
of Performance . The
Executive’s duties will principally be performed in Columbus,
Ohio, except for required travel on the Company’s business,
unless the President requires the Executive to perform duties at
another location.
The Company
will pay the Executive the amounts described in Section 3.00
as compensation for the services described in this Agreement and in
exchange for the duties and responsibilities described in
Section 4.00.
3.01 Base
Salary . The Company will
pay to the Executive an annualized base salary of $535,000, which
may be adjusted at the Company’s discretion (“Base
Salary”). The Executive’s Base Salary will be paid in
installments that correspond with the Company’s normal
payroll practices.
3.02 Cash
Incentive Bonus .
[1] The Executive will be eligible to receive a Cash
Incentive Bonus under the terms of the DSW Inc. Incentive
Compensation Plan (“Incentive Plan”), as modified by
the Company. The Company intends to provide the Executive with a
cash bonus of 50 percent of Base Salary based on the
Executive’s achievement of the incentive goals established by
the Company. Subsequent annual cash bonuses will be based, in the
Company’s discretion, on Incentive Goals and percentages of
Base Salary determined under the Incentive Plan that is then in
effect.
[2] Payment
of Cash Bonus. Any Cash
Incentive Bonus will be payable, in cash, consistent with the
Company’s normal bonus payment policy.
3.03 Equity
Incentive. Subject to the
Company’s discretion, the Executive will be eligible to
receive discretionary grants of stock options and restricted stock
units.
3.04 Benefit
Plans . Subject to their
terms, the Executive may participate in any Company sponsored
employee pension or welfare benefit plan at a level commensurate
with the Executive’s title and position.
3.05
Vacations . Subject to
the terms of the Company’s vacation policy, the Executive is
entitled to four weeks of vacation each calendar year to be taken
during periods approved by the President.
3.06
Expenses . The Executive
is entitled to receive prompt reimbursement for all normal and
reasonable expenses incurred while performing services under this
Agreement, including all reasonable travel expenses. Reimbursement
for these expenses will be made as soon as administratively
feasible after the date the Executive submits appropriate evidence
of the expenditure and otherwise complies with the Company’s
business expense reimbursement policy. Reimbursement of expenses in
one year will not affect the amount of expenses that may be
reimbursed in a later year.
3.07
Termination Benefits .
The Company also will provide the Executive with the termination
benefits described in Section 5.00.
4.00 Executive’s
Obligations
The amounts
described in Sections 3.00 and 5.00 are provided by the
Company in exchange for (and have a value to the Company equivalent
to) the Executive’s performance of the obligations described
in this Agreement, including performance of the duties and the
covenants and releases made and entered into by and between the
Executive and the Company in this Agreement.
4.01 Scope
of Duties . The Executive
will:
[1] Devote all available business time, best efforts
and undivided attention to the Company’s business and
affairs; and
2
[2] Not engage in any other business activity,
whether or not for gain, profit or other pecuniary
benefit.
[3] However, the restriction described in
Section 4.01[1] and [2] will not preclude the Executive
from:
[a] Making or holding passive investments in
outstanding shares in the securities of publicly-owned companies or
other businesses [other than organizations described in
Section 4.05], regardless of when and how that investment was
made; or
[b] Serving on corporate, civic, religious,
educational and/or charitable boards or committees but only if this
activity [i] does not interfere with the performance of
duties under this Agreement and [ii] is approved by the
President.
4.02
Confidential Information .
[1]
Obligation to Protect Confidential Information.
The Executive acknowledges that the
Company and its subsidiaries, parent corporation and affiliated
entities (collectively, “Group” and separately,
“Group Member”) have a legitimate and continuing
proprietary interest in the protection of Confidential Information
(as defined in Section 4.02[2]) and have invested, and will
continue to invest, substantial sums of money to develop, maintain
and protect Confidential Information. The Executive agrees
[a] during and after employment with all Group Members
[i] that any Confidential Information will be held in
confidence and treated as proprietary to the Group, [ii] not
to use or disclose any Confidential Information except to promote
and advance the Group’s business interests and [b]
immediately upon separation from employment with all Group Members,
to return to the Company any Confidential Information.
[2]
Definition of Confidential Information. For purposes of this Agreement, Confidential
Information includes any confidential data, figures, projections,
estimates, pricing data, customer lists, buying manuals or
procedures, distribution manuals or procedures, other policy and
procedure manuals or handbooks, supplier information, tax records,
personnel histories and records, information regarding sales,
information regarding properties and any other Confidential
Information regarding the business, operations, properties or
personnel of the Group (or any Group Member) which are disclosed to
or learned by the Executive as a result of employment with any
Group Member, but will not include [a] the Executive’s
personal personnel records or [b] any information that
[i] the Executive possessed before the date of initial
employment (including periods before the Effective Date) with any
Group Member that was a matter of public knowledge, [ii]
became or becomes a matter of public knowledge through sources
independent of the Executive, [iii] has been or is disclosed
by any Group Member without restriction on its use or [iv]
has been or is required to be disclosed by law or governmental
order or regulation. The Executive also agrees that, if there is
any reasonable doubt whether an item is public knowledge, to not
regard the item as public knowledge until and unless the Senior
Vice President of Human Resources confirms to
3
the Executive
that the information is public knowledge or an arbitrator, acting
under Section 9.00, finally decides that the information is
public knowledge.
[3]
Intellectual Property. The Executive expressly acknowledges that all
right, title and interest to all inventions, designs, discoveries,
works of authorship, and ideas conceived, produced, created,
discovered, authored, or reduced to practice during the
Executive’s performance of services under this Agreement,
whether individually or jointly with any Group Member (the
“Intellectual Property”) shall be owned solely by the
Group, and shall be subject to the restrictions set forth in
Section 4.02[1] above. All Intellectual Property which
constitutes copyrightable subject matter under the copyright laws
of the United States shall, from the inception of creation, be
deemed to be a “work made for hire” under the United
States copyright laws and all right, title and interest in and to
such copyrightable works shall vest in the Group. All right, title
and interest in and to all Intellectual Property developed or
produced under this Agreement by the Executive, whether
constituting patentable subject matter or copyrightable subject
matter (to the extent deemed not to be a “work made for
hire”) or otherwise, shall be assigned and is hereby
irrevocably assigned to the Group by the Executive. The Executive
shall, without any additional consideration, execute all documents
and take all other actions needed to convey the Executive’s
complete ownership interest in any Intellectual Property to the
Group so that the Group may own and protect such Intellectual
Property and obtain patent, copyright and trademark registrations
for it. The Executive agrees that any Group Member may alter or
modify the Intellectual Property at the Group Member’s sole
discretion, and the Executive waives all right to claim or disclaim
authorship.
4.03
Solicitation of Employees . The Executive agrees that during employment,
and for the longer of any period of salary continuation or for two
years after terminating employment with all Group Members
[1] not, directly or indirectly, to solicit any employee of
any Group Member to leave employment with the Group, [2]
not, directly or indirectly, to employ or seek to employ any
employee of any Group Member and [3] not to cause or induce
any of the Group’s (or Group Member’s) competitors to
solicit or employ any employee of any Group Member.
4.04
Solicitation of Third Parties . The Executive agrees that during employment,
and for the longer of any period of salary continuation or for two
years after terminating employment with all Group Members not,
directly or indirectly, to recruit, solicit or otherwise induce or
influence any customer, supplier, sales representative, lender,
lessor, lessee or any other person having a business relationship
with the Group (or any Group Member) to discontinue or reduce the
extent of that relationship except in the course of discharging the
duties described in this Agreement and with the good faith
objective of advancing the Group’s (or any Group
Member’s) business interests.
4.05
Non-Competition . The
Executive agrees that for the longer of any period of salary
continuation or for one year after terminating employment with all
Group Members not, directly or indirectly, to accept employment
with, act as a consultant to, or otherwise perform services that
are substantially the same or similar to those for which the
Executive was compensated by any Group Member (this comparison will
be based on job-related functions and responsibilities and not on
job title) for any business that directly competes with the
Group’s (or any Group Member’s) business, which is
understood by the Parties to be the sale of significant branded
or
4
discount and
off-price shoes and accessories at department stores, specialty
retail stores or home shopping network clubs. Illustrations of
businesses that compete with the Group’s business include,
but are not limited to, The TJX Companies, Inc. (T.J. Maxx;
Marshall’s; The Maxx; Marmaxx), Shoe Carnival; MJM Designer
Shoes; The Shoe Dept; Payless ShoeSource; Off-Broadway Shoes;
Famous Footwear; Footstar; Nordstrom’s). This restriction
applies to any parent, division, affiliate, newly formed or
purchased business(es) and/or successor of a business that competes
with the Group’s (or any Group Member’s)
business.
4.06
Post-Termination Cooperation . As is required of the Executive during
employment, the Executive agrees that during and after employment
with any Group Members and without additional compensation (other
than reimbursement for reasonable associated expenses), to
cooperate with the Group (and with each Group Member) in the
following areas:
[1]
Cooperation With the Company . The Executive agrees [a] to be
reasonably available to answer questions for the Group’s (and
any Group Member’s) officers regarding any matter, project,
initiative or effort for which the Executive was responsible while
employed by any Group Member and [b] to cooperate with the
Group (and with each Group Member) during the course of all
third-party proceedings arising out of the Group’s (and any
Group Member’s) business about which the Executive has
knowledge or information. For purposes of this Agreement,
[c] “proceedings” includes internal
investigations, administrative investigations or proceedings and
lawsuits (including pre-trial discovery and trial testimony) and
[d] “cooperation” includes [i] the
Executive’s being reasonably available for interviews,
meetings, depositions, hearings and/or trials without the need for
subpoena or assurances by the Group (or any Group Member),
[ii] providing any and all documents in the
Executive’s possession that relate to the proceeding, and
[iii] providing assistance in locating any and all relevant
notes and/or documents.
[2]
Cooperation With Third Parties . Unless compelled to do so by lawfully-served
subpoena or court order, the Executive agrees not to communicate
with, or give statements or testimony to, any opposing attorney,
opposing attorney’s representative (including private
investigator) or current or former employee relating to any matter
(including pending or threatened lawsuits or administrative
investigations) about which the Executive has knowledge or
information (other than knowledge or information that is not
Confidential Information as defined in Section 4.02[2]) as a
result of employment with the Group (or any Group Member) except in
cooperation with the Company. The Executive also agrees to notify
the Senior Vice President of Human Resources immediately after
being contacted by a third party or receiving a subpoena or court
order to appear and testify with respect to any matter affected by
this section.
[3]
Cooperation With Media .
The Executive agrees not to communicate with, or give statements
to, any member of the media (including print, television or radio
media) relating to any matter (including pending or threatened
lawsuits or administrative investigations) about which the
Executive has knowledge or information (other than knowledge or
information that is not Confidential Information as defined in
Section 4.02[2]) as a result of employment with the Group (or
any Group Member). The Executive also agrees to notify the Senior
Vice President of Human Resources
5
immediately
after being contacted by any member of the media with respect to
any matter affected by this section.
4.07
Non-Disparagement . The
Executive and the Company (on its behalf and on behalf of the Group
and each Group Member) agree that neither will make any disparaging
remarks about the other and the Executive will not make any
disparaging remarks about the Company’s Chairman, Chief
Executive Officer or any of the Group’s senior executives.
However, this section will not preclude [1] any remarks that
may be made by the Executive under the terms of
Section 4.06[2] or that are required to discharge the duties
described in this Agreement or [2] the Company from making
(or eliciting from any person) disparaging remarks about the
Executive concerning any conduct that may lead to a termination for
Cause, as defined in Section 5.04[5] (including initiating an
inquiry or investigation that may result in a termination for
Cause), but only to the extent reasonably necessary to investigate
the Executive’s conduct and to protect the Group’s (or
any Group Member’s) interests.
4.08 Notice
of Subsequent Employment. The Executive agrees to immediately notify the
Company of any subsequent employment during the period of salary
continuation after employment terminates.
4.09
Nondisclosure. The
Executive agrees not to disclose the terms of this Agreement in any
manner to any person other than the President, one of the
Company’s Vice Presidents of Human Resources (or any Company
representative they expressly approve for such disclosure), the
Executive’s personal attorney, accountant and financial
advisor, and the Executive’s immediate family or as otherwise
required by law.
4.10
Remedies . The Executive
acknowledges that money will not adequately compensate the Group
for the substantial damages that will arise upon the breach of any
provision of Section 4.00. For this reason, any disputes
arising under Section 4.00 will not be subject to arbitration
under Section 9.00. Instead, if the Executive breaches or threatens
to breach any provision of Section 4.00, the Company will be
entitled, in addition to other rights and remedies, to specific
performance, injunctive relief and other equitable relief to
prevent or restrain any breach or threatened breach of
Section 4.00.
4.11 Return
of Company Property. Upon
termination of employment, the Executive agrees to promptly return
to the Company all property belonging to the Group or any Group
Member.
5.00 Termination and Related
Benefits
This Agreement
will terminate upon the occurrence of any of the events described
in this section.
5.01 Rules
of General Application .
The following rules apply generally to the implementation of
Section 5.00:
[1] Method
of Payment. If the amount
of any in
|