Exhibit No. 10(d)(*)
AMENDED AND
RESTATED
SENIOR OFFICER EMPLOYMENT
AND
DEFERRED COMPENSATION
AGREEMENT
This SENIOR OFFICER EMPLOYMENT
AND DEFERRED COMPENSATION AGREEMENT (this “
Agreement ”), is hereby amended and restated as of
December 31, 2008 (the “ Effective Date ”),
between REGIS CORPORATION , hereinafter referred to as the
“ Corporation ,” and Gordon Nelson, hereinafter
referred to as “ Employee .”
WHEREAS , this Agreement was initially entered into as
of April 14, 1998, and was last amended and restated
June 29, 2007; and
WHEREAS , Employee and the Corporation wish to amend and
restate this Agreement as of the date hereof to incorporate and
supersede all prior amendments hereto and to make certain changes
to comply with Section 409A of the Internal Revenue Code of
1986, as amended (the “Code”);
NOW, THEREFORE, IN
CONSIDERATION of the
mutual agreements hereinafter contained, the parties hereby agree
as follows:
1.
Definitions.
“Aggregate
Benefit” shall be
an amount equal to the Employee’s Monthly Benefit multiplied
by 240.
“Cause”
shall mean: (a) (i) a
felony conviction under any Federal or state statute which is
materially detrimental to the financial interests of the
Corporation, or (ii) willful non-performance by Employee of
his material employment duties other than by reason of his physical
or mental incapacity after reasonable written notice to Employee
and reasonable opportunity (not less than thirty (30) days) to
cease such non-performance; or (b) Employee willfully engaging
in fraud or gross misconduct which is materially detrimental to the
financial interests of the Corporation.
“Change in
Control” shall be
deemed to have occurred at such time as any of the following events
occur:
(a)
any “person” within the
meaning of Section 2(a)(2) of the Securities Act of 1933
and Section 14(d) of the Securities Exchange Act of 1934
(the “ Exchange Act ”), is or has become the
“beneficial owner,” as defined in Rule 13d-3 under
the Exchange Act, of twenty percent (20%) or more of either
(i) the then outstanding shares of Common Stock of the
Corporation (the “Outstanding Common Stock”) or
(ii) the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the
election of directors (the “Outstanding Voting
Securities”), except for an acquisition by an entity
resulting from a Business Combination (as defined below) in which
clauses (x) and (y) of subparagraph
(b) applies;
(b)
consummation of (i) a merger or
consolidation of the Corporation with or into another entity,
(ii) a statutory share exchange or (iii) the acquisition
by any person (as defined above) of all or substantially all of the
assets of the Corporation (each, a “Business
Combination”), unless immediately following such Business
Combination, (x) all or substantially all of the beneficial
owners of the Outstanding Voting Securities immediately prior to
such Business Combination beneficially own, directly or indirectly,
more than fifty percent (50%) of the voting power of the then
outstanding shares of voting stock (or comparable voting equity
interests) of the surviving or acquiring entity resulting from such
Business Combination (including such beneficial ownership of an
entity that, as a result of such transaction, owns the Corporation
or all or substantially all of the Corporation’s assets
either directly or through one or more subsidiaries), in
substantially the same proportions (as compared to the other
beneficial owners of the Corporation’s voting stock
immediately prior to such Business Combination) as their beneficial
ownership of the Corporation’s voting stock immediately prior
to such Business Combination and (y) no person (as defined
above) beneficially owns, directly or indirectly, twenty percent
(20%) or more of the voting power of the outstanding voting stock
(or comparable equity interests) of the surviving or acquiring
entity (other than a direct or indirect parent entity of the
surviving or acquiring entity, that, after giving effect to the
Business Combination, beneficially owns, directly or indirectly,
100% of the outstanding voting stock (or comparable equity
interests) of the surviving or acquiring entity), or
(c)
individuals who constitute the
Corporation’s Board of Directors on the Effective Date (the
“ Incumbent Board ”) have ceased for any reason
to constitute at least a majority thereof, provided that any person
becoming a director subsequent to the Effective Date whose
election, or nomination for election by the Corporation’s
stockholders, was approved by a vote of at least three-quarters
(75%) of the directors comprising the Incumbent Board shall be, for
purposes of this Agreement, considered as though such person were a
member of the Incumbent Board.
“Discounted Vested Monthly
Benefit” shall be
an amount determined by discounting Employee’s Vested Monthly
Benefit to present value based on the number of months between
(a) the Employee’s age at the date of his Separation
from Service or, if he elects to defer payment or commencement
pursuant to subparagraph 6(d) of this Agreement, the date of
payment or commencement, and (b) the date of Employee’s
65th birthday. The discount rate to be used for this purpose
shall be equal to the yield to maturity, at the date in (a), above,
of U.S. Treasury Notes with a maturity date nearest the date of the
Employee’s 65th birthday.
“Good
Reason” shall
mean the occurrence, without the express written consent of
Employee, of any of the following: (a) any adverse alteration
in the nature of Employee’s reporting responsibilities,
titles, or offices, or any removal of Employee from, or any failure
to reelect Employee to, any such positions, except in connection
with a termination of the employment of Employee for Cause,
permanent disability, or as a result of Employee’s death or a
termination of employment by Employee other than for Good Reason;
(b) a reduction by the Corporation in Employee’s base
salary as then in effect; (c) failure by the Corporation to
continue in effect (without substitution of a
2
substantially equivalent plan or a
plan of substantially equivalent value) any compensation plan,
bonus or incentive plan, stock purchase plan, stock option plan,
life insurance plan, health plan, disability plan or other benefit
plan or arrangement in which Employee is then participating;
(d) any material breach by the Corporation of any provisions
of the Agreement; (e) the requirement by the Corporation that
Employee’s principal place of employment be relocated outside
of a thirty (30) mile radius from its existing location; or
(f) the Corporation’s failure to obtain a satisfactory
agreement from any successor to assume and agree to perform
Corporation’s obligations under the Agreement;
provided that Employee notifies the Corporation of such
condition set forth in clause (a), (b), (c), (d), (e) or
(f) within 90 days of its initial existence and the
Corporation fails to remedy such condition within 30 days of
receiving such notice.
“Monthly
Benefit” shall be
an amount equal to the greater of (i) forty percent (40%) of
Employee’s average monthly compensation, excluding bonuses,
for the sixty (60) months immediately preceding Employee’s
Separation From Service or disability (provided that for purposes
of such calculation the Monthly Benefit shall be increased by Two
Thousand Five Hundred Dollars ($2,500.00) unless Employee’s
employment terminates on or before February 8, 2012 by the
Company for Cause or by Employee without Good Reason), and
(ii) Five Thousand Dollars ($5,000.00).
“Separation From
Service” shall be a separation from service with the
Corporation and its affiliates (other than due to death or
disability) within the meaning of Code
Section 409A(a)(2)(A)(i) and Treas. Reg.
Section 1.409A-1(h).
“Vested Monthly
Benefit” shall be a
percentage of Employee’s Monthly Benefit determined on the
basis of the number of Employee’s completed years of service
with the Corporation according to the following
schedule:
|
Years of Service
|
|
Percentage
|
|
|
|
|
|
|
|
Less than 7 years
|
|
0
|
%
|
|
7 years
|
|
5
|
%
|
|
8 years
|
|
10
|
%
|
|
9 years
|
|
15
|
%
|
|
10 years
|
|
20
|
%
|
|
11 years
|
|
25
|
%
|
|
12 years
|
|
30
|
%
|
|
13 years
|
|
35
|
%
|
|
14 years
|
|
40
|
%
|
|
15 years
|
|
50
|
%
|
|
16 years
|
|
60
|
%
|
|
17 years
|
|
70
|
%
|
|
18 years
|
|
80
|
%
|
|
19 years
|
|
90
|
%
|
|
20 or more years
|
|
100
|
%
|
3
A year of service for purposes of
vesting shall be a consecutive 12-month period during which
Employee is employed by the Corporation.
2.
Employment.
The Corporation agrees to
continue to employ Employee, and Employee agrees to continue to
serve the Corporation, upon the terms and conditions hereinafter
set forth.
3.
Term.
The employment of Employee
pursuant to this Agreement has commenced as of the date of this
Agreement and shall continue until terminated by either of the
parties hereto. The parties agree and acknowledge that the
employment of Employee pursuant to this Agreement is at will and
may be terminated by either party without notice.
Notwithstanding the termination of employment of Employee, this
Agreement shall remain in full force and effect during such time as
Employee is or may be entitled to any Monthly Benefit under this
Agreement.
4.
Duties.
Employee agrees to serve the
Corporation faithfully and to the best of his ability under the
direction of the President and the Board of Directors of the
Corporation, devoting his entire business time, energy and skill to
such employment, and to perform from time to time such services and
act in such office or capacity as the President and the Board of
Directors shall request.
5.
Compensation.
The Corporation agrees to pay
to Employee during the term of his employment hereunder as salary
for his full time active services such compensation as may be
mutually agreed upon from time to time.
6.
Deferred
Compensation.
The Corporation shall pay to Employee, if living, or, in the event
of his death, to Employee’s surviving spouse, or to such
other person or persons as Employee shall have designated in
writing (or in the absence of either, to Employee’s estate)
(the “Beneficiary”), the following sums upon the terms
and conditions and for the periods hereinafter set
forth:
a]
Payments upon
Retirement. On
the last day of the month next following the month in which
Employee has a Separation From Service with the Corporation at or
after age 65, or upon the last day of the month next following the
month in which he reaches age 65 if he is then disabled within the
meaning of subparagraph (c), the Corporation shall pay to Employee
a lump sum cash payment of an amount equal to the present value of
his Vested Monthly Benefit. For the purpose of determining
the present value, the following assumptions shall
apply:
(1)
Interest: Payments shall be
discounted to present value at a rate of interest equal to the
yield to maturity of 30-year U.S. Treasury Notes as of the
Employee’s Separation From Service.
(2)
Payment Duration: It shall be
assumed that payments of the Vested Monthly Benefit will be made
for two hundred and forty (240) months.
4
Notwithstanding the foregoing in
this subparagraph 6(a), Employee shall be entitled, by written
election to the Corporation’s Board of Directors, to receive,
in connection with a Separation From Service at or after age 65, to
have his Vested Monthly Benefit paid in monthly payments rather
than the lump-sum described above, provided (x) Employee makes
such writ
