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EMPLOYMENT AGREEMENT

Employment Agreement

EMPLOYMENT AGREEMENT | Document Parties: LINENS 'N THINGS CENTER, INC. | Francis M. Rowan You are currently viewing:
This Employment Agreement involves

LINENS 'N THINGS CENTER, INC. | Francis M. Rowan

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Title: EMPLOYMENT AGREEMENT
Governing Law: New Jersey     Date: 3/27/2007
Law Firm: Gardere Wynne Sewell LLP    

EMPLOYMENT AGREEMENT, Parties: linens 'n things center  inc. , francis m. rowan
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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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