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Exhibit
10.1
Dear Glenn,
This letter and your
employment will be effective on your Start Date (defined below) and
sets forth our offer to you to join The Gap, Inc. (the
“Company”) as Chief Executive Officer. Your
“Start Date” shall be July 30, 2007 if you obtain
admission to the United States by the United States Customs and
Border Protection Agency in a classification authorizing work for
the Company in the United States (“Admission”) on or
before July 30, 2007, or if not, then your Start Date
shall be the business day after the date you obtain Admission,
provided that this letter and your employment will only be
effective if the Company receives your authorization to work
in the United States on or prior to your Start Date. You agree
that (i) if you personally receive the Form I-797 Approval
Notice issued by U.S. Citizenship and Immigration Services
classifying you as an O-1 nonimmigrant (“Form I-797 Approval
Notice”) by 9:00 a.m Eastern Time on July 29,
2007, you will seek Admission on July 29, 2007, and
(ii) if you personally receive the Form I-797 Approval Notice
after 9:00 a.m. Eastern Time on July 29, 2007, you
will seek Admission within 24 hours of receipt of the Form I-797
Approval Notice.
1. Duties and Scope of
Employment. The Company agrees to employ you on an
“at-will” basis in the position of Chief Executive
Officer. You will report directly to the Company’s Board of
Directors (the “Board”) and be given such duties,
authorities, and responsibilities that are consistent with your
being the Company’s most senior executive officer as
determined by the Board. During your employment, you will devote
your full business efforts and time to the Company. You may engage
in civic and charitable activities in your individual capacity,
and, subject to the consent of the Board, may serve on the board of
directors of another company so long as such activities do not
interfere with the performance of your responsibilities to the
Company. Your primary work place will be at the Company’s
corporate headquarters in San Francisco, California.
2. Board Service. The
Governance, Nominating and Social Responsibility Committee of the
Board will recommend to the Board that you be made a Director of
the Board without prejudice to the shareholders’ ability to
remove or not re-elect you. The Governance, Nominating and Social
Responsibility Committee of the Board will also recommend to the
Board that you be made Chairman of the Board without prejudice to
the Board’s ability to remove you as Chairman.
3. Salary and Incentive
Compensation.
(a) Salary. Your
annual salary will be U.S. $1,500,000, payable every two weeks in
accordance with the Company’s normal payroll practices. The
Compensation and Management Development Committee of the Board
(“the Committee”) will review your salary at least
annually.
(b) Initial Bonus. You
will receive a bonus of U.S. $1,000,000 within 30 days of your
Start Date. In the event you voluntarily terminate your employment
without Good
Reason (as defined in
Section 13(b)) or your employment is terminated for Cause
prior to the second anniversary of your Start Date, you will be
required to repay a pro rata portion (based on the number of full
calendar months remaining in the initial 24 months of employment
divided by 24 months) of this bonus (net of any associated income
or employment taxes not recovered in a later period) within sixty
(60) days of your Termination Date (as defined in
Section 9). For all purposes under this letter, the term
“Cause” shall mean any of the following committed by
you: (i) willful failure to follow the reasonable and lawful
directions of the Board; (ii) conviction of a felony (or a
plea of guilty or nolo contendere by you to a felony);
(iii) acts of fraud, material dishonesty or misappropriation
committed by you against the Company and intended to result in
personal enrichment; (iv) willful misconduct by you in the
performance of your material duties required by this letter which
is likely to materially damage the Company’s financial
position or reputation; (v) a material breach of this letter;
(vi) your material breach of the Company’s policies and
procedures; or (vii) any breach by you of the Company’s
Code of Business Conduct. To terminate your employment for
“Cause”, the Board must determine in good faith that
Cause has occurred, the Company must give you written notice
detailing the specific clause of the definition of Cause on which
termination is based and the Company must deliver to you a copy of
a resolution duly adopted by a majority of the entire Board
(excluding you) at a meeting of the Board called and held for such
purpose that finds in the good faith opinion of the Board, Cause
has occurred and states the basis of that belief. With respect to
Sections 3(b)(i), (v), (vi), and (vii), the Board shall give you 10
business days notice of its good faith determination that Cause has
occurred and shall give you 10 business days following the end of
such notice period during which to cure the applicable failure or
breach to the good faith satisfaction of the entire Board
(excluding you) at a meeting of the Board called and held for such
purpose.
(c) Annual Bonus. You
will be eligible for an annual bonus based on achievement of the
Company’s financial objectives, subject to the terms and
conditions of the Executive Management Incentive Compensation Award
Plan or any successor plan. Your annual target bonus will be 150%
of your base salary. Depending on results, your actual bonus, if
any, may be higher or lower. Your maximum annual bonus will be 300%
of your base salary. Any bonus payments will be prorated based on
changes in base salary or incentive target that may occur during
the fiscal year. The Committee has the right to modify the program
at any time. Committee discretion can be used to modify the final
award amount.
For fiscal year 2007 only, in
lieu of the annual bonus described in this Section 3(c), you
will receive a bonus equal to 150% of your base salary, prorated
based on the Start Date for the time you are employed by the
Company during fiscal 2007, provided you are employed by the
Company on the date bonuses are paid to other executives of the
Company.
Starting in fiscal year 2008,
while you are employed under the terms of this letter, you will
recommend performance measures and payout levels with respect to
the Company’s annual bonus program for yourself and other
senior executives, but such performance measures and payout levels
will be determined by the Committee, in its sole discretion and in
accordance with the terms and conditions of the applicable bonus
program.
(d) Long-Term Incentive
Awards. Your offer includes long-term incentive awards, which
give you the opportunity to share in the Company’s success
over time.
(i) Fair Market Value
Stock Options. The Committee approved a stock option grant to
you effective on your Start Date to purchase 2,000,000 shares of
Company common stock, subject to the provisions of the
Company’s 2006 Long-Term Incentive Plan and the award
agreement thereunder. The option price is determined by the fair
market value of the stock on the Start Date. These options will
become vested and exercisable as shown in the schedule below,
provided you are employed by the Company on the vesting date. These
options must be exercised within ten years from the Start Date or
within three months, or in the case of termination due to death or
Retirement (as defined in the Company’s 2006 Long-Term
Incentive Plan), within 12 months, of your Termination Date (as
defined in Section 9), whichever is earlier, or you will lose
your right to do so.
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Option to
purchase 200,000 shares vesting one year from the Start
Date;
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Option to
purchase 300,000 shares vesting two years from the Start
Date;
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Option to
purchase 300,000 shares vesting three years from the Start
Date;
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Option to
purchase 400,000 shares vesting four years from the Start
Date;
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Option to
purchase 400,000 shares vesting five years from the Start Date;
and
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Option to
purchase 400,000 shares vesting six years from the Start
Date.
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(ii) Premium-Priced Stock
Options. The Committee approved a stock option grant to you
effective on your Start Date to purchase 2,000,000 shares of the
Company common stock, subject to the provisions of the
Company’s 2006 Long-Term Incentive Plan and the award
agreement thereunder. The option price will be 115% of the fair
market value of the stock on the Start Date. These options will
become vested and exercisable as shown in the schedule below,
provided you are employed by the Company on the vesting date. These
options must be exercised within ten years from the Start Date or
within three months, or in the case of termination due to death or
Retirement (as defined in the Company’s 2006 Long-Term
Incentive Plan), within 12 months, of your Termination Date (as
defined in Section 9), whichever is earlier, or you will lose
your right to do so.
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Option to
purchase 200,000 shares vesting one year from the Start
Date;
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Option to
purchase 300,000 shares vesting two years from the Start
Date;
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Option to
purchase 300,000 shares vesting three years from the Start
Date;
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Option to
purchase 400,000 shares vesting four years from the Start
Date;
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Option to
purchase 400,000 shares vesting five years from the Start Date;
and
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Option to
purchase 400,000 shares vesting six years from the Start
Date.
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(iii) Performance Share
Award. The Committee approved a performance share award for you
with a target payout opportunity equal to 1,000,000 shares,
effective on your Start Date, subject to the provisions of the
Company’s 2006 Long-Term Incentive Plan and the award
agreement thereunder (the “Initial Performance Share
Award”). The Initial Performance Share Award will be paid in
Company common stock upon vesting. The actual payout (ranging from
zero to 2,000,000 shares) will be determined based upon cumulative
reported net earnings (subject to adjustment for those items
specified in the resolutions of the Committee approving the Initial
Performance Share Award) for fiscal years 2008, 2009, 2010, and
2011, as follows:
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Less than
$4.164 billion: None;
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Equal to or
greater than $4.164 billion but less than $4.467 billion: 500,000
shares;
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Equal to or
greater than $4.467 billion but less than $5.011 billion: 1,000,000
shares;
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Equal to or
greater than $5.011 billion but less than $5.860 billion: 1,500,000
shares; and
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Equal to or
greater than $5.860 billion: 2,000,000 shares.
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Subject to
Section 11(iv), the award will become vested and paid out in
Company common stock as shown in the schedule below, provided that
the award is earned as set forth in this Section 3(d)(iii) and
provided you are employed with the Company on the vesting
date.
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One-third
vesting five years from the Start Date;
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One-third
vesting six years from the Start Date; and
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One-third
vesting seven years from the Start Date.
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Except as set forth in this
letter or as may otherwise be determined by the Committee in its
sole discretion, you will not be eligible to receive any other
long-term incentive awards (whether stock or cash-based) until
2011. Beginning in 2011, during your employment hereunder, you will
be eligible to participate in the Company’s long-term
incentive compensation arrangements as in effect from time to time
subject to the sole discretion of the Committee.
4. Benefits. During
your employment with the Company hereunder, you will be eligible to
participate in the Company’s employee benefit plans on terms
and conditions generally applicable to other senior executives of
the Company. Under the current policy (which is subject to change
from time to time), you will be eligible for 30 days of Paid Time
Off (“PTO”) on an annual basis in addition to seven
company-paid holidays. PTO accrues each pay period up to a cap of
35 days based on regular hours paid, and can be used for vacation,
illness or charitable, non-profit or other personal
business.
5. Indemnification.
The Company shall indemnify you to the maximum extent permitted by
applicable law and the Company’s bylaws with respect to your
employment hereunder and you shall also be covered under a
directors and officers liability insurance policy(ies) paid for by
the Company during your employment hereunder. The Company shall
maintain directors and officers liability insurance for your
benefit on terms and conditions generally applicable to the
Company’s other senior executives. The Company’s
obligations under this Section 5 are only for acts and
omissions by you while you are employed by the Company under the
terms of this letter but, with respect to such acts and omissions,
shall survive termination of your employment and also termination
or expiration of this letter.
6. Expenses. During
your employment hereunder, you will be authorized to incur
necessary and reasonable travel, entertainment and other business
expenses in connection with your duties hereunder, and the Company
shall promptly reimburse you for such expenses upon presentation of
appropriate supporting documentation, all in accordance with the
Company’s applicable policies.
7. Relocation. The
Company will reimburse you for your reasonable relocation expenses
related to your move from the Toronto, Ontario (Canada)
metropolitan area to the San Francisco Bay Area (including
temporary living expenses in the San Francisco Bay Area for up to
12 months until your family moves to California from Toronto). You
will receive U.S. income tax restoration with respect to the
relocation expenses in this Section 7, in the manner set forth
in the Company’s relocation policy. You will also receive
Canadian income tax restoration with respect to the relocation
expenses in this Section 7, in a manner substantially
consistent with the Company’s relocation policy as it applies
to U.S. income tax restoration. In the event you voluntarily
terminate your employment without Good Reason or your employment is
terminated for Cause (as defined in Section 3(b)) prior to the
first anniversary of your Start Date, you will be required to repay
all of the reimbursements described in this Section 7 within
thirty (30) days of the Termination Date (as defined in
Section 9). In the event you voluntarily terminate your
employment without Good Reason or your employment is terminated for
Cause (as defined in Section 3(b)) on or after the first
anniversary of your Start Date but prior to the second anniversary
of your Start Date, you will be required to repay a pro-rata
portion of the reimbursements described in this Section 7
within thirty (30) days of the Termination Date (as defined in
Section 9) based on the number of calendar days remaining in
the two year period commencing on the Start Date. For purposes of
the preceding sentence, notwithstanding anything to the contrary in
the Company’s relocation policy, “Cause” shall
have the meaning set forth in Section 3(b) of this
letter.
8. Visa Fees. The
Company will pay for all fees and expenses associated with your
obtaining a visa and authorization to work for the Company in the
United States.
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9. Termination for Any
Reason. Upon the termination of your employment for any reason,
you will be entitled to: (a) all unpaid salary and unpaid PTO
accrued through the Termination Date and (b) any unreimbursed
business expenses. You may also be eligible for other
post-employment payments and benefits as provided in this letter or
pursuant to other agreements or plans with the Company. For all
purposes under this letter, “Termination Date” means
the effective date of your termination of employment with the
Company.
10. Termination Not
Related to a Change-in-Control. Except in a termination related
to a Change-in-Control (as defined in Section 13(c)), in the
event that your employment is involuntarily terminated by the
Company for reasons other than for Cause (as defined in
Section 3(b)), death or Disability (as defined in
Section 13(a)), or you voluntarily terminate your employment
for Good Reason (as defined in Section 13(b) and subject to
the notice and cure provisions described therein) or Material
Diminution of Responsibilities (as defined in Section 13(d)
and subject to the notice and cure provisions described therein),
the Company will provide you the following in exchange for your
release of any claims in a form reasonably acceptable to the
Company:
(a) Subject to the
last paragraph of this Section 10, your then current salary,
at regular pay cycle intervals, for 24 months from the Termination
Date, as defined in Section 9 (the “Severance
Period”).
(b) Subject to the
last paragraph of this Section 10, a pro-rated amount of your
annual bonus that you would otherwise have received had you
continued to be employed through the applicable payment date for
the annual bonus performance period in which your termination
occurs (without any discretionary downward individual adjustments),
payable, if and when paid to other executives and based on actual
performance results for the annual bonus performance period in
question. Such bonus will be pro-rated based on the number of days
you were employed by the Company during the applicable annual bonus
performance period.
(c) Subject to the
last paragraph of this Section 10, your annual bonus that you
would otherwise have received had you continued to be employed
through the applicable payment dates for the two annual bonus
performance periods following the annual bonus performance period
in which your termination occurs (without any discretionary
downward individual adjustments), up to an annual maximum payment
equal to 150% of your base salary at the rate in effect on the
Termination Date (as defined in Section 9), payable, if and
when paid to other executives and based on actual performance
results for the annual bonus performance period(s) in
question.
(d) The accelerated
vesting of 25% of the unvested portion (determined as of the
Termination Date, as defined in Section 9) of both the Fair
Market Value Stock Options and Premium-Priced Stock Options granted
on the Start Date.
(e) During the period
in which you are receiving payments under Section 10(a), to
the extent you continue your medical coverage under COBRA,
reimbursement for a portion of your COBRA premiums equal to the
Company-paid portion of the cost of such coverage for active
employees under the plan as of the Termination Date (based on the
level of coverage (e.g., individual or family coverage) that you
have in effect under COBRA), provided that you substantiate to the
reasonable satisfaction of the Company the payment of such
premiums.
If at any time during the
period commencing on the Termination Date (as defined in
Section 9) and ending on the latest date that any amount is
payable to you under this Section 10, you accept other
employment or professional relationship with a competitor of the
Company (defined as either (i) another company primarily
engaged in the apparel design or apparel retail business or
(ii) any retailer with apparel sales in excess of $500 million
annually (a “Competitor”)), or if you breach your
remaining obligations to the Company (e.g., your duty to protect
confidential information, agreement not to solicit Company
employees), then the Company’s obligations under Sections
10(a), 10(b), and
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10(c) will cease such that
you will not be entitled to any further payments thereunder. In
addition, cash payments under Sections 10(a), 10(b), and 10(c) will
be reduced by any cash compensation you earn (whether paid,
deferred, base, incentive, or otherwise) other than the Excepted
Fees (defined in the next sentence) during the Severance Period (as
defined in Section 10(a)) and beyond with respect to the
bonuses in Section 10(c) from other employment or any other
professional relationship with a non-Competitor and you shall
inform the Company in advance and keep the Company reasonably
informed on a continuing basis of the terms of such employment or
other professional relationship for this purpose. The Excepted Fees
are fees up to $500,000 per 12-month period commencing on the
Termination Date earned for providing director and/or consulting
services to a non-Competitor while you are unemployed.
11. Termination Related to
a Change-in-Control. In the event that one of the following
occurs:
(a) Your employment is
involuntarily terminated by the Company for reasons other than for
Cause (as defined in Section 3(b)), death, or Disability (as
defined in Section 13(a)) either in connection with a
Change-in-Control (as defined in Section 13(c)) or within 12
months after such Change-in-Control; OR
(b) You voluntarily
terminate your employment for Good Reason (as defined in
Section 13(b) and subject to the notice and cure provisions
described therein) within 12 months after such Change-in-Control;
OR
(c) You voluntarily
terminate your employment during the 30-day period commencing on
the six-month anniversary of such Change-in-Control due to a
Material Diminution of Responsibilities (as defined in
Sect
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