Exhibit 10.9
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (the
“ Agreement ”) is entered into on May 31,
2006 (the “ Execution Date ”), to be effective
for all purposes as of April 28, 2006 (the “ Effective
Date ”), by and between Linens ‘n Things, Inc., a
Delaware corporation (the “ Company ”) and
wholly owned subsidiary of Linens Holding Co., a Delaware
corporation (“Holding”), and Francis M. Rowan (the
“ Executive ”).
WHEREAS, the Company desires to
employ the Executive on the terms and subject to the conditions set
forth herein and the Executive has agreed to be so
employed.
NOW, THEREFORE, in consideration of
the mutual representations, warranties, covenants and agreements
set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as
follows:
1.
Employment of Executive; Duties .
1.1
Title . During the Employment
Period (as defined in Section 2 hereof), the Executive shall
serve as Senior Vice President and Chief Financial Officer of the
Company and of Holding. The Executive shall have the normal
duties, responsibilities and authority commensurate with such
positions.
1.2
Duties . During the Employment
Period, the Executive shall do and perform all services and acts
necessary or advisable to fulfill the duties and responsibilities
of the Executive’s positions and shall render such services
on the terms set forth herein. In addition, the Executive
shall have such other executive and managerial powers and duties as
may reasonably be assigned to the Executive, commensurate with the
Executive serving as a Senior Vice President. The Company may
adjust the duties and responsibilities of the Executive as a Senior
Vice President, notwithstanding the specific title set forth
in Section 1.1
hereof, based
upon the Company’s needs from time to time. Except for
sick leave, reasonable vacations and excused leaves of absence, the
Executive shall, throughout the Employment Period, devote
substantially all the Executive’s working time, attention,
knowledge and skills faithfully, and to the best of the
Executive’s ability, to the duties and responsibilities of
the Executive’s positions in furtherance of the business
affairs and activities of the Company and its subsidiaries and
Affiliates (as defined in Section 5.4(a) hereof) and, except where the
Company provides its written consent otherwise, shall maintain the
Executive’s principal residence within 75 miles of the
principal office of the Company as of the Effective Date. The
Executive shall at all times be subject to, comply with, observe
and carry out (a) the Company’s rules, regulations, policies
and codes of ethics and/or conduct applicable to its employees
generally and in effect from time to time and (b) such rules,
regulations, policies, codes of ethics and/or conduct, directions
and restrictions as the Board of Directors of the Company (the
“ Board ”) may from time to time reasonably
establish or approve for senior executive officers of the
Company.
2.
Term of Employment .
2.1
Employment Period . The employment of the
Executive hereunder shall continue until December 31, 2007 (the
“ Initial Employment Period ”), unless
terminated earlier in accordance with the provisions of
Section 4 of this
Agreement.
2.2
Extension . Unless terminated
earlier in accordance with the provisions of Section 4 of this Agreement, the
employment of the Executive hereunder shall continue after the end
of the Initial Employment Period for additional one (1)-year
periods (each an “ Extension Period ” and,
together with the Initial Employment Period, the “
Employment Period ”), unless the Company or the
Executive notifies the other in writing not less than one (1) year
prior to the end of the Initial Employment Period, or the end of
the applicable Extension Period, of its or the Executive’s
election, in its or the Executive’s sole discretion, not to
extend the Employment Period.
3.
Compensation and General Benefits .
3.1
Base Salary .
(a)
During the Employment Period, the Company agrees to pay to the
Executive an annual base salary in an amount equal to $250,000
(such base salary, as may be adjusted from time to time pursuant
to Section 3.1(b)
, is referred to
herein as the “ Base Salary ”). The
Executive’s Base Salary, less amounts required to be withheld
under applicable law, shall be payable in equal installments in
accordance with the Company’s normal payroll practices and
procedures in effect from time to time for the payment of salaries
to officers of the Company, but in no event less frequently than
monthly.
(b)
The Board or the Compensation Committee established by the Board
(the “ Compensation Committee ”) shall review
the Executive’s performance on an annual basis and, based on
such review, may change the Base Salary, as it, acting in its sole
discretion, shall determine to be reasonable and
appropriate.
3.2
Bonus . With respect to the
2006 calendar year and with respect to each calendar year that
commences during the Employment Period, the Executive shall be
eligible to receive from the Company an annual performance bonus
(the “ Annual Bonus ”) on a basis and in an
amount to be determined by the Board or the Compensation Committee
in the exercise of its sole discretion for the applicable
year. The target Annual Bonus, if any, will be 40% of the
Base Salary. Any Annual Bonus earned shall be payable in full
as soon as reasonably practicable following the determination
thereof, but in no event later than May 15 of the following year,
and in accordance with the Company’s normal payroll practices
and procedures. Except as otherwise expressly provided
in Section 4
hereof, any
Annual Bonus (or portion thereof) payable under this
Section 3.2 shall not be payable unless
the Executive is employed by the Company on the last day of the
period to which such Annual Bonus relates.
3.3
Expenses . During the Employment
Period, in addition to any amounts to which the Executive may be
entitled pursuant to the other provisions of this
Section 3 or elsewhere herein, the
Executive shall be entitled to receive reimbursement from the
Company for all reasonable and necessary expenses incurred by the
Executive in performing the
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Executive’s duties hereunder
on behalf of the Company, subject to, and consistent with, the
Company’s policies for expense payment and reimbursement, in
effect from time to time.
3.4
Fringe Benefits . During the Employment
Period, in addition to any amounts to which the Executive may be
entitled pursuant to the other provisions of this
Section 3 or elsewhere herein, the
Executive shall be entitled to participate in, and to receive
benefits under, (a) any benefit plans, arrangements or policies
made available by the Company to its employees generally, subject
to and on a basis consistent with the terms, conditions and overall
administration of each such plan, arrangement or policy and (b)
without limiting the foregoing, the benefits set forth on
Exhibit B attached hereto.
3.5
Stock Options .
(a)
The Company shall recommend to the Option Committee of Holding, as
defined in the Linens Holding Co. Stock Option Plan (the “
Plan ”), that the Executive be granted nonqualified
options to purchase a total of 10,000 shares of Common Stock, par
value $0.01 per share, of Holding (the “ Common Stock
”) with a per share exercise price equal to the fair market
value of the Common Stock on the date of grant, as determined by
the Option Committee, which is expected to be $50.00 per share (the
“ Options ”). The Options shall have a
term of seven (7) years from the date of grant and be equally
divided between a “Time Option” and a
“Performance Option.” The Time Option shall
become vested and exercisable in four equal annual installments on
each of the first four anniversaries of the date of grant, subject
to the Executive’s continued employment with the Company, and
the Performance Option shall become vested and exercisable upon
satisfaction of the performance criteria set forth in the grant
letter. Except as otherwise provided herein, the Options
shall be subject to the terms and conditions of the Plan and the
form of grant letter applicable for other senior executives of the
Company approved by the Option Committee.
(b)
During the Employment Period and subject to the approval of the
Option Committee, the Executive shall be eligible to participate in
and be granted additional stock options under the Plan.
4.
Termination .
4.1
General . The employment of the
Executive hereunder (and the Employment Period) shall terminate as
provided in Section 2 hereof, unless earlier
terminated in accordance with the provisions of this
Section 4 .
4.2
Death or Disability of the Executive .
(a)
The employment of the Executive hereunder (and the Employment
Period) shall terminate upon (i) the death of the Executive
and (ii) at the option of the Company, upon not less than
fifteen (15) days’ prior written notice to the Executive or
the Executive’s personal representative or guardian, if the
Executive suffers a “Total Disability” (as defined
in Section 4.2(b)
hereof).
Upon termination for death or Total Disability, subject to
reduction by any benefits paid or payable to the Executive, the
Executive’s beneficiaries or estate under any
Company-sponsored disability benefit plan program or policy for the
period following such date of termination, (A) the Company
shall pay to the Executive, guardian or personal
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representative, as the case may be,
the Executive’s current Base Salary for the remainder of the
Employment Period in effect immediately prior to the date of
termination and (B) subject further to the sole discretion of
the Board or the Compensation Committee, the Company may also pay
to the Executive, guardian or personal representative, as the case
may be, a prorated share of the Annual Bonus pursuant to
Section 3.2 hereof (based on the period of actual
employment) that the Executive would have been entitled to had the
Executive worked the full year during which the termination
occurred, provided that bonus targets are met for the year of such
termination. Any bonus shall be payable as soon as reasonably
practicable following the determination thereof, but in no event
later than May 15 of the following year, and in accordance with the
Company’s normal payroll practices and procedures.
(b)
For purposes of this Agreement, “ Total Disability
” shall mean (i) if the Executive is subject to a legal
decree of incompetency (the date of such decree being deemed the
date on which such disability occurred), (ii) the written
determination by a physician selected by the Company that, because
of a medically determinable disease, injury or other physical or
mental disability, the Executive is unable substantially to
perform, with or without reasonable accommodation, the material
duties of the Executive required hereby, and that such disability
has lasted for ninety (90) consecutive days or any one hundred
twenty (120) days during the immediately preceding twelve
(12)-month period or is, as of the date of determination,
reasonably expected to last six (6) months or longer after the date
of determination, in each case based upon medically available
reliable information or (iii) Executive’s qualifying for
benefits under the Company’s long-term disability coverage,
if any. In conjunction with determining mental and/or
physical disability for purposes of this Agreement, the Executive
hereby consents to (x) any examinations that the Board or the
Compensation Committee determines are relevant to a determination
of whether the Executive is mentally and/or physically disabled or
are required by the Company physician, (y) furnish such
medical information as may be reasonably requested and
(z) waive any applicable physician patient privilege that may
arise because of such examination.
(c)
With respect to outstanding stock options and other equity-based
awards held by the Executive as of the date of termination pursuant
to this Section 4.2 , (i) any such options
that are not vested or exercisable as of such date of termination
shall immediately expire and any such equity-based awards that are
not vested as of such date of termination shall immediately be
forfeited and (ii) any such options that are vested and
exercisable as of such date of termination shall expire immediately
following the expiration of the one hundred eighty (180)-day period
following such date of termination.
(d)
With respect to any shares of Common Stock held by the Executive
that are vested as of the date of termination pursuant to
this Section 4.2
(or issued
pursuant to the exercise of options following such date of
termination pursuant to Section 4.2(c) hereof), for the two hundred
seventy (270)-day period following such date of termination, the
Company (or its designee) shall have the right to purchase from the
Executive or the Executive’s beneficiary, as applicable, and
the Executive or the Executive’s beneficiary hereby agrees to
sell any or all such shares to the Company (or the Company’s
designee) for an amount equal to the product of (i) the per
share current fair market value of a share of Common Stock (as
determined by the Board in good faith) and (ii) the number of
shares so purchased.
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4.3
Termination by the Company Without Cause or Resignation by the
Executive For Good Reason .
(a)
The Company may terminate the Executive’s employment without
“Cause” (as defined in Section 4.3(g) ), and thereby terminate the
Executive’s employment (and the Employment Period) under this
Agreement at any time with no requirement for notice to the
Executive.
(b)
The Executive may resign, and thereby terminate the
Executive’s employment (and the Employment Period), at any
time for “Good Reason” (as defined in
Section 4.3(f)
hereof), upon not
less than sixty (60) days’ prior written notice to the
Company specifying in reasonable detail the reason therefore;
provided , however , that the Company shall have a
reasonable opportunity to cure any such Good Reason (to the extent
possible) within sixty (60) days after the Company’s receipt
of such notice; and provided further that, if the Company is
not seeking to cure, the Company shall not be obligated to allow
the Executive to continue working during such period and may, in
its sole discretion, accelerate such termination of employment (and
the Employment Period) to any date during such period.
(i)
Executive may not terminate employment under this Agreement for
Good Reason regarding any of the Company’s acts or omissions
of which Executive had actual notice for sixty (60) days or more
prior to giving notice of termination for Good Reason.
(ii)
A determination of whether the Executive legitimately has Good
Reason for termination of the Executive’s employment under
this Agreement, and of whether the Company has effectively cured
and thus eliminated the grounds for such Good Reason, shall be made
only by the Chief Executive Officer of the Company (the “
Chief Executive Officer ”), within the Chief Executive
Officer’s sole judgment and discretion, acting in good faith
after having met with the Company’s Vice President of Human
Resources.
(c)
In the event the Executive’s employment is terminated
pursuant to this Section 4.3 , then, subject to
Section 4.3(d)
hereof, the
following provisions shall apply:
(i)
The Company shall continue to pay the Executive the Base Salary to
which the Executive would have been entitled pursuant to
Section 3.1
hereof (at the
Base Salary rate during the year of termination) had the Executive
remained in the employ of the Company until the expiration of the
Employment Period in effect immediately prior to the date of
termination, with all such amounts payable in accordance with the
Company’s normal payroll practices and procedures in the same
manner and at the same time as though the Executive remained
employed by the Company.
(ii)
If such termination occurs upon or within six (6) months following
a Change of Control (as defined in Exhibit A attached hereto), the Company
shall continue to pay the Executive the Base Salary to which
the
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Executive would
have been entitled pursuant to Section 3.1 hereof (at the Base Salary
rate during the year of termination) for the greater of (A) the
period set forth in Section 4.3(c)(i) hereof or (B) a two
(2)-year period following such date of termination, with all such
amounts payable in accordance with the Company’s normal
payroll practices and procedures in the same manner and at the same
time as though the Executive remained employed by the
Company.
(iii)
In the event the Executive’s employment is terminated
pursuant to this Section 4.3 without Cause, and if the
Company has previously effected reductions in the Executive’s
Base Salary and the base salary of all executives at the same level
as the Executive, which reductions were substantially similar, then
the Base Salary rate for purposes of Section 4.3(c)(i) or (ii) hereof shall be the Base
Salary rate in effect immediately prior to such
reductions.
(iv)
Subject to the sole discretion of the Board or the Compensation
Committee, the Company may pay to the Executive a prorated share of
the Annual Bonus pursuant to Section 3.2 hereof (based on the period
of actual employment) that the Executive would have been entitled
to had the Executive worked the full year during which the
termination occurred, provided that bonus targets are met for the
year of such termination. The bonus shall be payable as soon
as reasonably practicable following the determination thereof, but
in no event later than May 15 of the following year, and in
accordance with the Company’s normal payroll practices and
procedures.
(v)
With respect to outstanding options and other equity-based awards
held by the Executive as of the date of termination pursuant to
this Section 4.3
, (A) any
such options that are not vested or exercisable as of such date of
termination shall immediately expire and any such equity-based
awards that are not vested as of such date of termination shall
immediately be forfeited and (B) any such options that are vested
and exercisable as of such date of termination shall expire
immediately following the expiration of the ninety (90)-day period
following such date of termination.
(vi)
With respect to any shares of Common Stock held by the Executive
that are vested as of the date of termination pursuant to
this Section 4.3
(or issued
pursuant to the exercise of options following such date of
termination pursuant to Section 4.3(c)(v) hereof), for the one hundred
eighty (180)-day period following such date of termination, the
Company (or its designee) shall have the right to purchase from the
Executive, and the Executive hereby agrees to sell any or all such
shares to the Company (or the Company’s designee), for an
amount equal to the product of (A) the per share current fair
market value of a share of Common Stock (as determined by the Board
in good faith) and (B) the number of shares so
purchased.
(d)
As a condition precedent to the Executive’s right to receive
the benefits set forth in Section 4.3(c) hereof, the Executive agrees
to execute a release of the
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Company and its respective
Affiliates, officers, directors, stockholders, employees, agents,
insurers, representatives and successors from and against any and
all claims that the Executive may have against any such Person (as
defined in Section 5.4(f) hereof) relating to the
Executive’s employment by the Company and the termination
thereof, such release to be in form and substance reasonably
satisfactory to the Company.
(e)
Anything in this Agreement to the contrary notwithstanding, if it
shall be determined that any payment, vesting, distribution or
transfer by the Company or any successor, or any Affiliate of the
foregoing or by any other Person or that any other event occurring
with respect to the Executive and the Company for the
Executive’s benefit, whether paid or payable or distributed
or distributable under the terms of this Agreement or otherwise
(including under any employee benefit plan) (a “
Payment ”) would be subject to or result in the
imposition of the excise tax imposed by Section 4999 of the
Internal Revenue Code of 1986, as amended (the “ Code
”) (and any regulations or guidance promulgated or issued
thereunder, any successor provision, and any similar provision of
state or local income tax law) (collectively, the “ Excise
Tax ”), then the amount of the Payment shall be reduced
to the highest amount that may be paid by the Company or other
entity without subjecting any such Payment to the Excise Tax (the
“ Payment Reduction ”). The Executive
shall have the right to designate those payments or benefits that
shall be reduced or eliminated under the Payment Reduction to avoid
the imposition of the Excise Tax, subject to the confirmation of
the Accounting Firm (as defined herein) with respect to the
intended effect thereof.
(i)
Subject to the provisions of Section 4.3(e)(ii) , all determinations required
to be made under this Section 4.3(e) , including whether and when
a Payment is subject to Section 4999 and the assumptions to be
utilized in arriving at such determination and in determining an
appropriate Payment Reduction, shall be made by KPMG LLP, or any
other nationally recognized accounting firm that shall be the
Company’s outside auditors at the time of such determination
(the “ Accounting Firm ”), which Accounting Firm
shall provide detailed supporting calculations to the Executive and
the Company within fifteen (15) business days of the receipt of
notice from the Company or the Executive that there will be a
Payment that the Person giving notice believes may be subject to
the Excise Tax. All fees and expenses of the Accounting Firm
shall be borne by the Company. Any determination by the
Accounting Firm shall be binding upon the Company and the Executive
in determining whether a Payment Reduction is required and the
amount thereof (subject to Sections 4.3(e)(ii) and (iii) ), in the absence of material
mathematical or legal error.
(ii)
As a result of uncertainty in the application of Section 4999
that may exist at the time of the initial determination by the
Accounting Firm, it may be possible that in making the calculations
required to be made hereunder, the Accounting Firm shall determine
that a Payment Reduction need not be made that properly should be
made (an “ Overpayment ”) or that a Payment
Reduction not properly needed to be made should be made (an “
Underpayment ”). If, within seventy-five (75)
days after the Accounting Firm’s initial determination
under Section 4.3(e)(i) , the Accounting Firm shall
determine that an Overpayment was made, any such Overpayment shall
be treated for all
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purposes, to the
extent practicable and subject to applicable law, as a loan to the
Executive with interest at the applicable Federal rate provided for
in Section 1274(d) of the Code and shall be repaid by the
Executive to the Company within thirty-five (35) days after the
Executive receives notice of the Accounting Firm’s
determination; provided , however , that the amount
to be repaid by the Executive to the Company either as a loan or
otherwise as a lump sum payment (where a loan is not practicable or
permitted by law) shall be reduced to the extent that any portion
of the Overpayment to be repaid will not be offset by a
corresponding reduction in tax by reason of such repayment of the
Overpayment. If the Accounting Firm shall determine that an
Underpayment was made, any such Underpayment shall be due and
payable by the Company to the Executive within thirty-five (35)
days after the Company receives notice of the Accounting
Firm’s determination.
(iii)
The Executive shall give written notice to the Company of any claim
by the Internal Revenue Service that, if successful, would require
the payment by the Executive of an Excise Tax, such notice to be
provided within fifteen (15) days after the Executive shall have
received written notice of such claim. The Executive shall
cooperate with the Company in determining whether to contest or pay
such claim and shall not pay such claim without the written consent
of the Company, which shall not be unreasonably withheld,
conditioned or delayed.
(iv)
This Section 4.3(e) shall remain in full force
and effect following the termination of the Executive’s
employment for any reason until the expiration of the statute of
limitations on the assessment of taxes applicable to the Executive
for all periods in which the Executive may incur a liability for
taxes (including Excise Taxes), interest or penalties arising out
of the operation of this Agreement.
(f)
For purposes of this Agreement, the Executive would be entitled to
terminate the Executive’s employment for “ Good
Reason ” if without the Executive’s prior written
consent:
(i)
the Company fails to comply with any material obligation imposed by
this Agreement;
(ii)
the Company changes the Executive’s position from that of a
Senior Vice President; provided , however , that (A)
a change in the Executive’s duties or responsibilities
without a change in the Executive’s position as a Senior Vice
President shall not constitute Good Reason and (B) nothing herein
shall prohibit the Company from changing the Executive’s
specific title as a Senior Vice President, notwithstanding the
specific title set forth in Section 1.1 hereof, based upon the
Company’s needs from time to time; or
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(iii)
the Company effects a reduction in the Executive’s Base
Salary, unless all executives at the same level as the Executive
receive a substantially similar reduction in base
salary.
(g)
For purposes of this Agreement, “ Cause ” means
the occurrence of any one or more of the following events, and the
Company shall have the sole discretion to determine the existence
of Cause:
(i)
a failure by the Executive to comply with any obligation under this
Agreement;
(ii)
the Executive’s being indicted for (A) any felony or (B) any
misdemeanor that causes or is likely to cause harm or embarrassment
to the Company or any of its Affiliates, in the reasonable judgment
of the Board;
(iii)
theft, embezzlement or fraud by the Executive in connection with
the performance of the Executive’s duties
hereunder;
(iv)
the Executive’s engaging in any activity that gives rise to a
material conflict with the Company or any of its
Affiliates;
(v)
the misappropriation by the Executive of any material business
opportunity of the Company or any of its Affiliates;
(vi)
any failure to comply with, observe or carry out the
Company’s rules, regulations, policies and codes of ethics
and/or conduct applicable to its employees generally and in effect
from time to time, including (without limitation) those regarding
conflicts, potential conflicts of interest or the appearance of a
conflict of interest
(vii)
any failure to comply with, observe or carry out the rules,
regulations, policies, directions, codes of ethics and/or conduct
and restrictions established or approved by the Board from time to
time for senior executive officers of the Company, including
(without limitation) those regarding conflicts, potential conflicts
of interest or the appearance of a conflict of
interest;
(viii)
substance abuse or use of illegal drugs that, in the reasonable
judgment of the Board, (A) impairs the Executive’s
performance of the Executive’s duties hereunder or (B) causes
or is likely to cause harm or embarrassment to the Company or any
of its Affiliates; and
(ix)
engagement in conduct that Executive knows or should know is
injurious to the Company or any of its Affiliates.
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4.4
Termination For Cause, Voluntary Resignation Other Than For Good
Reason or Election Not to Extend the Employment Period
.
(a)
(i) The Company may, upon action of the Board, terminate the
employment of the Executive (and the Employment Period) at any time
for “Cause,” (ii) the Executive may voluntarily
resign other than for Good Reason and thereby terminate the
Executive’s employment (and the Employment Period) under this
Agreement at any time upon not less than thirty (30)-days’
prior written notice or (iii) either the Company or the
Executive may elect not to extend or further extend the Employment
Period pursuant to Section 2.2 hereof.
(b)
The following provisions shall apply upon termination by the
Company for Cause, by the Executive as the result of resignation
for other than for Good Reason, or by the Company or the Executive
at the end of the Employment Period as the result of an election
not to extend or further extend the Employment Period:
(i)
The Executive shall be entitled to receive all amounts of earned
but unpaid Base Salary and benefits accrued through the date of
such termination. Except as provided below, all other rights
of the Executive (and all obligations of the Company) hereunder
shall terminate as of the date of such termination.
(ii)
With respect to outstanding options and other equity-based awards
held by the Executive as of the date of termination pursuant to
this Section 4.4
, (A) any such
options that are not vested or exercisable as of such date of
termination shall immediately expire and any such equity-based
awards that are not vested as of such date of termination shall
immediately be forfeited and (B) any such options that are vested
and exercisable as of such date of termination shall expire
immediately following the expiration of the ninety (90)-day period
following such date of termination.
(iii)
With respect to any shares of Common Stock held by the Executive
that are vested as of the date of termination pursuant to
this Section 4.4
(or issued
pursuant to the exercise of options following such date of
termination pursuant to Section 4.4(b)(ii) hereof), for the one hundred
eighty (180)-day period following such date of termination, the
Company (or
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