Exhibit 10.1
JAMES G. DELFS
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT
WITH
STEIN MART, INC.
This Amended and Restated Employment
Agreement (this “ Agreement ”) entered
into in the City of Jacksonville and State of Florida between Stein
Mart, Inc., a Florida corporation and its divisions, subsidiaries
and affiliates (the “ Company ”), and
James G. Delfs (“ Executive ”), is made
as of June 4, 2009 to be effective on the “Effective
Date” (as defined below).
Background
Executive has advised the Company
that Executive is considering early retirement. The Company has
asked the Executive to remain employed during the Term at reduced
compensation and without a title instead of retiring so that the
Executive will be in a position to assist the Company in
transitioning to a new Chief Financial Officer and the Executive
will be available to provide advice and historical information and
perspective as requested from time to time by the Company from the
time Executive’s replacement Chief Financial Officer assumes
that role (the “ Effective Date
”).
In consideration of the promises and
mutual covenants contained herein, the parties, intending to be
legally bound, agree as follows:
SECTION 1. TERM OF
EMPLOYMENT
(a) Term . The Company agrees
to employ Executive, and Executive agrees to be employed by the
Company, for a period beginning on the Effective Date and ending
nineteen (19) months after the Effective Date (the “
Term ”). There shall be no renewal of the Term.
Thereafter, the Company shall provide Executive with monthly
separation payment, in amount to be mutually agreed upon, until the
executive or the executive’s current spouse reaches age 65,
whichever is longer, but in no event greater than $3,500 per
month.
SECTION 2.
DEFINITIONS
“ Board of
Directors ” means the Board of Directors of Stein
Mart, Inc. and any of its divisions, affiliates or
subsidiaries.
“ Code ”
means the Internal Revenue Code of 1986, as amended. Any reference
to a specific provision of the Code shall be deemed to refer to any
successor provision thereto and the regulations promulgated
thereunder.
“ Competing
Business ” means any business which (a) at the
time of determination, is substantially similar to the whole or a
substantial part of the business conducted by the Company or any of
its divisions or affiliates; (b) at the time of determination,
is operating a store or stores which, during its or their fiscal
year preceding the determination, had aggregate net sales,
including sales in leased and licensed departments, in excess of
$10,000,000, if such store or any such stores is or are located in
a city or within a radius of 25 miles from the outer limits of a
city where the Company, or any of its divisions or affiliates, is
operating a store or stores which, during their fiscal year
preceding the determination, had aggregate net sales, including
sales in leased and licensed departments, in excess of $10,000,000;
and (c) had aggregate net sales at all locations, including
sales in leased and licensed departments and sales by its divisions
and affiliates, during its fiscal year preceding that in which the
Executive first rendered personal services thereto, in excess of
$25,000,000.
“ Claims ”
means all claims arising out Executive’s prior employment
with the company, including but not limited to: (i) any claim
for compensation, bonus payment, and other amounts not specifically
provided for in this Employment Agreement; (ii) Title VII of
the Civil Rights Act of 1964, as amended; the Age Discrimination in
Employment Act of 1967, as amended (the “ADEA”); the
Americans with Disabilities Act of 1990; the National Labor
Relations Act, as amended; the Employee Retirement Income Security
Act of 1974, as amended; the Civil Rights Act of 1991; 42 U.S.C.
§1981, the Family and Medical Leave Act, and other federal,
state and local human rights, fair employment and other laws
relating to employment.
“ Disability
” means Executive’s incapacity due to physical
or mental illness or cause, which results in the Executive being
unable to perform his duties with Company on a full-time basis for
a period of six (6) consecutive months. Any dispute as to
disability shall be conclusively determined by written opinions
rendered by two qualified physicians, one selected by Executive,
and one selected by Company; provided that if such opinions
are conflicting, then such physicians shall select a mutually
agreeable third physician whose opinion shall be conclusive and
binding.
SECTION 3. RESPONSIBILITIES
Executive shall assist the Company
as requested by the Company in the transition to a new Chief
Financial Officer and will provide advice and historical
information and perspective as requested from time to time by the
Company.
SECTION 4. COMPENSATION AND
BENEFITS
(a) Annual Base Salary .
Executive’s base salary shall be $20,000.00 per month
(“ Base Salary ”). The Annual Base Salary
shall be payable in accordance with the Company’s standard
payroll practices and policies and shall be subject to such
withholdings as required by law or as otherwise permissible under
such practices or policies.
(b) Employee Benefit Plans .
Executive shall be entitled to continue to vest all already granted
but unvested options and performance shares which otherwise vest
under their terms during the Term. In addition, Executive shall be
entitled to continue to participate in, at the Company’s
cost, medical, dental, vision, Split-Dollar life and accident
insurance with coverage consistent with the coverage in effect from
time to time as applied to persons in positions in the
Company’s Tier 1 positions. The medical, dental, vision and
Split-Dollar Life plan coverage shall continue to be provided by
the Company through the end of the Term. Thereafter, as provided
under the Retirement Medical Plan for Key Executives, the executive
and his current spouse will be allowed continued access to the Tier
I Medical Plan until they become eligible for Medicare or each
reaches age 65, whichever is sooner. The executive will be
responsible for paying the appropriate premium required for this
continued coverage.
(c) Indemnification . With
respect to Executive’s acts or failures to act during his
employment in his capacity as an officer, employee or agent of the
Company, Executive shall be entitled to indemnification from the
Company, and to liability insurance coverage (if any), on the same
basis as other officers of the Company. Executive shall be
indemnified by Company, and Company shall pay Executive’s
related expenses when and as incurred, all to the full extent
permitted by law. Subject to applicable law, the Company reserves
the right to discontinue indemnification in the event the Company
determines that the Executive has breached this Agreement or the
Executive has or intends to advance a business or legal position
contrary to the Company’s interests. Notwithstanding the
foregoing, Executive shall not be entitled to any indemnification
if a judgment or other final adjudication establishes that any act
or omission of Executive was material to the cause of action so
adjudicated and that such act or omission constituted: (i) a
criminal violation, unless Executive had reasonable cause to
believe that Executive’s conduct was lawful or had no
reasonable cause to believe that such conduct was unlawful,
(ii) a transaction from which Executive derived an improper
personal benefit, or (iii) willful misconduct or a conscious
disregard for the best interests of the Company.
(d) Other Perquisites . No
other perquisites shall be provided during the Term to the
Executive.
SECTION 5. TERMINATION OF
EMPLOYMENT
(a) General . The Board of
Directors shall have the right to terminate Executive’s
employment and this Agreement at any time with or without cause
upon paying the Executive the remainder of the Base Salary due
hereunder as though such termination had not occurred and
continuation of the benefits described in Section 4(b) hereof
as though such termination had not occurred, and notwithstanding
such termination, Executive shall have been deemed to have remained
employed through the initial term hereof for all
purposes.
(b) Termination for
Disability . Subject to the definitions and requirements of
Section 2 (“Disability”), after six
(6) consecutive months of such disability leave of absence,
Executive’s service may be terminated by Company. In the
event Executive is terminated from employment due to Disability,
the Company shall:
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(i)
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pay Executive
his Base Salary through the end of the Term; provided that
if such payment exceeds the applicable dollar amount in effect
under Code Section 402(g)(1)(B) for the year in which such
termination occurs, then the payment in excess of such applicable
dollar amount shall be paid following six (6) months after the
Executive’s Termination;
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(ii)
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make such
payments and provide such benefits as otherwise called for under
the terms of each other employee benefit plan, program and policy
in which Executive was a participant; and
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(iii)
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in the event the Executive has
any options or restricted shares (but excluding “performance
shares” which shall be governed by the terms set forth in the
grant as to such shares) which are not vested on the date of
termination for Disability, then pay to the Executive (i) as
to any unvested options, the net value of the excess, if any, of
the closing price of the Company’s shares on the NASDAQ for
the day on which the termination due to Disability occurs and the
exercise price of such unvested options multiplied by the number of
shares subject to options
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which failed to vest; and
(ii) as to any unvested restricted shares, the value of the
closing price of the Company’s shares on the NASDAQ for the
day on which the termination due to Disability occurred multiplied
by the number of restricted shares, if any, which failed to vest
due to such termination of employment for Disability.
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Notwithstanding the
Executive’s Disability, during the period of Disability
leave, Executive shall be paid in full (net of insurance) as if he
or she were actively performing services. Executive agrees to
simultaneously utilize available leave under the Family and Medical
Leave Act of 1993 during such disability leave of absence. During
the period of such Disability leave of absence, the Board of
Directors may designate someone to perform Executive’s
duties. Executive shall have the right to return to full-time
service so long as he is able to resume and faithfully perform his
full-time duties.
(c) Death . If
Executive’s employment terminates as a result of his death,
the Company shall:
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(i)
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pay to
Executive’s estate his Base Salary through the end of the
Term notwithstanding his death;
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(ii)
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make such
payments and provide such benefits as otherwise called for under
the terms of each other employee benefit plan, program and policy
in which Executive was a participant; and
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(iii)
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in the event
the Executive has any options or restricted shares (but excluding
“performance shares” which shall be governed by the
terms set forth in the grant as to such shares) which are not
vested on the date of termination for death, then pay to the
Executive’s estate (i) as to any unvested options, the
net value of the excess, if any, of the closing price of the
Company’s shares on the NASDAQ for the day on which the death
occurre
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