EMPLOYMENT AGREEMENTEmployment Agreement |
|
|
You are currently viewing: This Employment Agreement involves
Burlington Coat Factory Warehouse Corporation | Jack E. Moore, Jr. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
|
|
|
|
Exhibit 10.1
E MPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (this “ Agreement ”)
is made as of June 1, 2007, by and between Burlington Coat
Factory Warehouse Corporation, a Delaware corporation (the
“ Company ”), and Jack E. Moore, Jr.
(“ Executive ”).
WHEREAS,
the Company desires to employ Executive during the Employment
Period, and Executive is willing to accept employment with the
Company, on the terms and conditions set forth herein;
and
WHEREAS,
the agreements of Executive in Sections 5 , 6 and 7 are a material inducement to
enter into this Agreement.
In
consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1.
Definitions . In this Agreement:
“
Base Salary ” has the meaning given to that term
in Section 3(a)
.
“
Board ” means the Board of Directors of the
Company.
“
Cause ” means Executive (i) is convicted of a
felony or other crime involving dishonesty towards the Company
or any of its Subsidiaries or material misuse of property of
the Company or any of its Subsidiaries; (ii) engages in
willful misconduct or fraud with respect to the Company or any
of its Subsidiaries or any of their customers or suppliers or
an intentional act of dishonesty or disloyalty in the course
of Executive’s employment; (iii) refuses to perform
Executive’s material obligations under this Agreement
(except in connection with a Disability) as reasonably
directed by the Board or the Company’s chief executive
officer, which failure is not cured within 15 days after
written notice thereof to Executive; (iv) misappropriates one
or more of the Company’s or any of its Subsidiaries
material assets or business opportunities; or (v) breaches
Sections 5 ,
6 or 7 hereof which breach, if capable
of being cured, is not cured within 10 days of written notice
thereof has been delivered to Executive. The
Company may allow Executive an extension of time to cure a
breach if the Board, in its sole discretion, determines that
such extension is appropriate under the
circumstances.
“
Company ” has the meaning set forth in the
preamble above; together with its Subsidiaries and affiliates
and includes all predecessor entities.
“
Confidential Information ” has the meaning given
to that term in Section 5(a)
.
“
Court ” has the meaning given to that term in
Section 7(b) .
“
Disability ” means Executive’s inability to
perform the essential duties, responsibilities and functions
of Executive’s position with the Company and its
Subsidiaries for a continuous period of 180 days as a result
of any mental or physical disability or incapacity, as
determined under the definition of disability in the
Company’s long-term disability plan so as to qualify
Executive for benefits under the terms of that plan or as
determined by an independent physician to the extent no such
plan is then in effect. Executive shall cooperate
in all respects with the Company if a question arises as to
whether Executive has become disabled (including, without
limitation, submitting to an examination by a medical doctor
or other health care specialists selected by the Company and
authorizing such medical doctor or such other health care
specialist to discuss Executive’s condition with the
Company).
“
Employment Period ” means the period commencing
on June 4, 2007 (the “Commencement Date”) and
ending on the Expiration Date or such earlier date as
contemplated in the proviso to Section 4(a) .
“
Expiration Date ” means the third anniversary of
the Commencement Date; provided , that if a written
notice is not given by the Company at least ninety (90) days
prior to such anniversary (or any subsequent
anniversary
if this Agreement is extended) stating that such party is
electing not to extend the Employment Period, then the
Expiration Date will automatically be extended to the next
anniversary of the date hereof.
“
Expiration Year ” means the calendar year in
which the Employment Period expires.
“
Good Reason ” means the occurrence of any of the
following events without the written consent of Executive: (i)
a material diminution of Executive’s duties or the
assignment to Executive of duties that are inconsistent in any
substantial respect with the position, authority or
responsibilities associated with Executive’s position as
set forth pursuant to Section 2(b) , other than any such
authorities, duties or responsibilities assigned at any time
which are by their nature, or which are identified at the time
of assignment, as being temporary or short-term; (ii) the
Company’s requiring Executive to be based at a location
which is fifty (50) or more miles from Executive’s
principal office location on the Commencement Date; or (iii) a
material breach by the Company of its obligations pursuant to
this Agreement (including, without limitation, its obligations
pursuant to Section 3 ) (which such breach goes
uncured after notice and a reasonable opportunity to
cure).
“
Termination Year ” means the calendar year in
which the Employment Period is terminated.
“
Subsidiaries ” means any corporation or other
entity of which the securities or other ownership interests
having the voting power to elect a majority of the board of
directors or other governing body are, at the time of
determination, owned by the Company, directly or through one
of more Subsidiaries.
“
Work Product ” has the meaning given to that term
in Section 6
.
2.
Employment, Position and Duties .
(a)
The
Company shall employ Executive and Executive hereby accepts
employment with the Company, upon the terms and conditions set
forth in this Agreement for the Employment Period.
(b)
During
the Employment Period, Executive shall serve as the President of
Merchandising, Planning and Allocation and Marketing of the Company
and shall perform the normal duties, responsibilities and functions
of an executive officer of a company of a similar size and type and
shall have such power and authority as shall reasonably be required
to enable Executive to perform Executive’s duties hereunder,
subject to the power and authority of the Board to expand or limit
such duties, responsibilities, functions, power and authority and
to overrule actions of officers of the Company in a manner
consistent with the traditional responsibilities of such
office.
(c)
During
the Employment Period, Executive shall (i) render such
administrative, financial and other executive and managerial
services to the Company and its Subsidiaries which are consistent
with Executive’s position as the Board may from time to time
direct, (ii) report to the Board or the Company’s chief
executive officer and shall devote Executive’s best efforts
and Executive’s full business time and attention (except for
permitted vacation periods and reasonable periods of illness or
other incapacity) to the business and affairs of the Company and
its Subsidiaries and (iii) submit to the Board all business,
commercial and investment opportunities presented to Executive or
of which Executive becomes aware which relate to the business of
the Company and its Subsidiaries, and unless approved by the Board
in writing, Executive shall not pursue, directly or indirectly, any
such opportunities on Executive’s own
behalf. Executive shall perform Executive’s
duties, responsibilities and functions to the Company and its
Subsidiaries hereunder to the best of Executive’s abilities
in a diligent, trustworthy and professional manner.
3.
Compensation and Benefits .
(a)
During
the Employment Period, Executive’s base salary shall be a
minimum of Five Hundred Thousand Dollars ($500,000) per annum (as
increased or decreased in accordance with this Agreement from time
to time, the “ Base Salary ”), which salary
shall be payable by the Company in regular
(b)
installments
in accordance with the Company’s general payroll practices
(in effect from time to time). Executive’s Base
Salary will be subject to annual review and increase or decrease
(but not below the Base Salary in effect on the date of this
Agreement) by the Board during the Employment Period.
(c)
Executive
shall be entitled to participate in the Company’s Senior
Management Bonus Plan approved by the Board or a committee thereof,
as in effect from time to time. Notwithstanding the
preceding, provided Executive remains continuously in the
employment of the Corporation, on the first anniversary of the
Commencement Date, Executive will be entitled to receive a bonus
equal to not be less than Two Hundred Fifty Thousand Dollars
($250,000.00). Such bonus shall be in lieu of
participation in the Senior Management Bonus Plan for the first
year of employment and will be payable to Executive at the same
time bonus awards are payable to other members of Senior Management
pursuant to the Company’s fiscal 2008 Senior Management Bonus
Plan. Thereafter, Executive will participate in the
Senior Management Bonus Plan to the same extent as other members of
senior management of the Corporation.
(d)
The
Board, or a committee or appointee thereof, during the term of this
Agreement, shall review annually, or at more frequent intervals
which the Board determines is appropriate, Executive’s
compensation and may award Executive compensation as the Board
deems appropriate in its sole discretion; provided ,
however , that Executive’s base salary shall not be
reduced pursuant to any such review or otherwise.
(e)
Executive
shall be entitled to twenty days of paid vacation each calendar
year in accordance with the Company’s policies, which if not
taken in any year may not be carried forward to any subsequent
calendar year and no compensation shall be payable in lieu
thereof. Such vacation will accrue as of January 1 of
each year, except that during the remainder of the 2007 calendar
year, Executive shall accrue twenty days of paid vacation pro rated
for the number of full calendar months remaining in the calendar
year in which the Employment Period commences.
(f)
During
the Employment Period, the Company shall reimburse Executive for
all reasonable business expenses incurred by Executive in the
course of performing Executive’s duties, responsibilities and
functions under this Agreement which are consistent with the
Company’s policies in effect from time to time with respect
to travel, entertainment and other business expenses, subject to
the Company’s requirements with respect to reporting and
documentation of such expenses.
(g)
Executive
shall be entitled to participate, on the same basis as other
executives of comparable level in the Company, in any compensation,
bonus, incentive, award, deferred compensation, pension,
retirement, stock award, stock option or other benefit, plan or
arrangement of the Company (including, without limitation, any plan
sponsored by the entity owning or controlling the Company, or any
affiliate of such entity) now existing or hereafter adopted;
provided , however , the Company may restrict or
exclude Executive’s participation in any such plan, or the
benefits thereunder, on such terms and conditions as the Company
shall in its sole discretion determine, if at any time Executive
shall be working fewer than five days a week or on other part-time
basis during regular business days. Executive also shall
be entitled to hospital, health, disability, medical and life
insurance, and any other benefits enjoyed, from time to time, by
other salaried employees of the Company of comparable level, all
upon terms as favorable as those enjoyed by other salaried
employees of comparable level of the
Company. Notwithstanding anything in this Section
3(f) to the contrary, if the
Company adopts any change in the benefits provided for other
salaried employees of the Company of comparable level, and such
policy is uniformly applied to all such employees of the Company
(and any successor or acquirer of the Company, if any), then no
such change shall be deemed a breach by the Company of this
Section 3(f)
.
(h)
Executive
will be indemnified and defended for acts performed (or omissions
made) in Executive’s capacity as an officer or director of
the Company to the fullest extent specified in the Company’s
certificate of incorporation and bylaws and as permitted under
Delaware law.
(i)
For
the period from the Commencement Date to the earlier of (x)
eighteen months after the Commencement Date and (y) the time
Executive sells his current residence in Franklin Lakes, New Jersey
(the “Current Home”) and relocates to a residence
within reasonable commuting distance from the Company’s
principal offices in Burlington, New Jersey (the “New
Home”), the Company will pay Executive a
(j)
reasonable
housing allowance in an amount to be agreed between the Company and
Executive. In addition, upon presentation by Executive
to the Company of such written documentation as the Company may
reasonably request, the Company will pay, or reimburse Executive
for, the reasonable costs incurred by Executive in relocating his
personal residence from the Current Home to the New Home,
including: (A) the costs of moving his personal and household items
(inclusive of temporary storage for a period not to exceed eighteen
months); (B) real estate brokerage commissions incurred in selling
the Current Home (not to exceed four percent of the selling price
of the Current Home); (C) the costs of temporary housing for
Executive’s family to the extent they cannot immediately be
housed in the New Home (but not for more than four weeks from the
date they vacate the Current Home); (D) one-half of the amount (but
not more than Three Hundred Sixty Thousand Dollars ($360,000.00))
by which the selling price of the Current Home is less than and the
purchase price thereof and (E) other reasonable closing costs (such
as attorneys fees) and relocation expenses approved by the
Company’s Chief Executive Officer. Notwithstanding
anything herein to the contrary, in the event Executive’s
employment with the Company is terminated either voluntarily by
Executive or for Cause by the Company within eighteen (18) months
after Executive has sold the Current Home, Executive shall
immediately repay to the Company all amounts paid on
Executive’s behalf by the Company or reimbursed to Executive
by the Company pursuant to this Section 3(h) . In
addition, the Company shall reimburse Executive for any applicable
federal and state income taxes paid by Executive resulting from the
inclusion in his taxable income of any of the amounts paid, or
reimbursed to him, by the Company under this Section 3(h)
. Such reimbursement shall be paid at the same time that
Executive files his federal and state income tax returns for the
year in which reimbursed amounts are included in Executive’s
taxable income and will be based on Executive’s effective
income tax rates for such year, as certified to the Company by
Executive’s certified public accountant or
attorney. The obligation of the Company to provide
reimbursement for Executive’s federal tax liability will be
adjusted to take into account the federal tax benefit, if any, of
state income taxes applicable to the inclusion in taxable income of
the amount of such amounts paid or reimbursed, regardless of the
year in which such federal tax benefit is realized by
Executive. Notwithstanding the foregoing, the
Company’s obligation for reimbursement of applicable federal
and state income taxes shall not extend to any taxes imposed on the
tax reimbursement provided pursuant to the foregoing.
(k)
For
the period from the Commencement Date to the time Executive shall
become eligible for participation in the Company’s health and
medical plans, the Company shall reimburse Executive for the excess
of the costs paid by Executive to his former employer for the
purchase of continuation of health benefits under the Consolidated
Omnibus Budget Reconciliation Act as administered by such company
over the Executive’s current contributions to such
plans.
4.
Termination and Payment Terms .
(a)
The
Employment Period shall end on the Expiration Date; provided
, that (i) the Employment Period shall terminate prior to such date
immediately upon Executive’s resignation, death or Disability
and (ii) the Employment Period may be terminated by resolution of
the Board, with or without Cause at any time prior to such
date. Except as otherwise provided herein, any
termination of the Employment Period by the Company shall be
effective as specified in a written notice from the Company to
Executive.
(b)
If
the Employment Period is terminated prior to the Expiration
Date:
(i)
(A)
by resolution of the Board (other than for Cause) or by Executive
resigning for Good Reason or (B) if the Employment Period expires
on the Expiration Date, Executive shall be entitled to receive (1)
all previously earned and accrued but unpaid Base Salary and
vacation and unpaid business expenses up to the date of such
termination or the Expiration Date, as applicable, (2) any bonus
(if any) earned by Executive for the fiscal year prior to the
Termination Year or the Expiration Year, as applicable, but then
unpaid, (3) the pro rata portion of Executive’s target bonus
during the Termination Year or the Expiration Year, as applicable,
to the extent targets thereunder are achieved for such year, after
such termination or expiration, pro rated based on the number of
days of the Termination Year or the Expiration Year, as applicable,
prior to the date of termination or the Expiration Date, as
applicable, which payment shall be made when the bonus payments for
such Termination Year or the Expiration Year, as applicable, are
otherwise due; (4) severance pay in the full amount of Base Salary
at the time of termination or expiration from the date of
termination or the Expiration Date, as applicable, through the
period ending on the first anniversary of the date of termination
or the Expiration Date, as applicable; (5) full continuation of
Executive’s hospital, health, disability, medical and life
insurance benefits during the one year
(ii)
severance
period (to the extent any of those benefits cannot be provided by
Company during the one year severance period, the Company will
provide Executive with a sum of money calculated to permit
Executive to obtain the same benefits individually, grossed up for
tax purposes so that Executive remains whole) and (6) upon
expiration of the one year period during which payments or benefits
are made or provided, as the case may be, under the preceding
sub-clause (5) of this Section 4(d) of this Agreement,
Executive shall be entitled to purchase continuation of health
benefits under the Consolidated Omnibus Budget Reconciliation Act
(“COBRA”) to the extent then legally permissible and
upon the same terms and conditions as made available to other
former employees of the Company.
(iii)
for
any other reason, including as a result of Executive’s death,
Disability, voluntary resignation for other than Good Reason or by
resolution of the Board for Cause, Executive’s sole
entitlement shall be to receive all previously earned and accrued
but unpaid Base Salary, vacation and unpaid business expenses up to
the date of such termination or expiration and Executive shall not
be entitled to any further Base Salary, bonus payments or benefits
for that year or any future year, except as required by law, or to
any other severance compensation of any kind.
(c)
Executive
agrees that: (i) Executive shall be entitled to the
payments and services provided for in Sections 4(b)(i) (3) , 4(b)(i) (4), 4(b)(i) (5) and
4(b)(i)(6) , if any, if and only if Executive has executed
and delivered the Release attached as Exhibit A and seven
(7) days have elapsed since such execution without any revocation
thereof by Executive and Executive has not breached as of the date
of termination of the Employment Period the provisions of
Sections 5 , 6 and 7 hereof and does not breach such
sections or such covenants at any time during the period for which
such payments or services are to be made; and (ii) the
Company’s obligation to make such payments and services will
terminate upon the occurrence of any such breach during such
period.
(d)
Except
as stated above, any payments pursuant to Section 4(b) shall be paid by the Company in
regular installments in accordance with the Company’s general
payroll practices, and following such payments the Company shall
have no further obligation to Executive pursuant to this
Section 4 except as
provided by law. All amounts payable to Executive as
compensation hereunder shall be subject to all customary
withholding, payroll and other taxes. The Company shall
be entitled to deduct or withhold from any amounts payable to
Executive any federal, state, local or foreign withholding taxes,
excise tax, or employment taxes imposed with respect to
Executive’s compensation or other payments or
Executive’s ownership interest in the Company (including,
without limitation, wages, bonuses, dividends, the receipt or
exercise of equity options and/or the receipt or vesting of
restricted equity).
(e)
Executive
hereby agrees that except as expressly provided herein, no
severance compensation of any kind, nature or amount shall be
payable to Executive and except as expressly provided herein,
Executive hereby irrevocably waives any claim for severance
compensation.
(f)
Except
as provided in Sections 4(b)(i) and 4(b)(ii) above, all of
Executive’s rights pursuant to Sections
3(d) , 3(d) , 3(e) , 3(f), 3(h) and
3(f) shall cease upon the
termination of the Employment Period.
5.
Confidential Information .
(a)
Executive
acknowledges and agrees that the information, observations and data
(including trade secrets) obtained by Executive while employed by
the Company and its Subsidiaries concerning the business or affairs
of the Company and its Subsidiaries are the confidential
information (“ Confidential Information ”), and
the property, of the Company and/or its
Subsidiaries. Without limiting the foregoing, the term
“Confidential Information” shall be interpreted as
broadly as possible to include all observations, data and other
information of any sort that are (i) related to any past, current
or potential business of the Company or any of its Subsidiaries or
any of their respective predecessors, and any other business
related to any of the foregoing, and (ii) not generally known to
and available for use by those within the line of business or
industry of the Company or by the public (except to the extent such
information has become generally known to and available for use by
the public as a direct or indirect result of Executive’s acts
or omissions) including all (A) Work Product (as defined below);
(B) information concerning development, acquisition or investment
opportunities in or reasonably related to the business
|
SITE SEARCH
AGREEMENTS / CONTRACTS
CLAUSES
| Get Email Updates |
