EXECUTIVE
AGREEMENT
Ronnie Robinson
THIS
EXECUTIVE AGREEMENT (“Agreement”) is effective as of
September 26, 2008 by and between Tween Brands, Inc., a
Delaware corporation (the “Company”) and Ronnie
Robinson (the “Executive”) (hereinafter collectively
referred to as “the parties”).
WHEREAS,
The Executive will serve as a key executive of the Company and
possesses an intimate knowledge of the business and affairs of the
Company and its policies, procedures, methods and personnel;
and
WHEREAS,
the Company has determined that it is essential and in its best
interest to retain the services of key management personnel and to
ensure their continued dedication and efforts; and
WHEREAS,
the Compensation Committee of the Board of Directors of the Company
(the “Board”) has determined that it is in the best
interest of the Company to secure the services and employment of
the Executive, and the Executive is willing to render such services
on the terms and conditions set forth herein.
NOW,
THEREFORE, in consideration of the foregoing and the respective
agreements of the parties hereby agree as follows:
(a)
AT WILL. Executive and the Company agree that
Executive’s employment with the Company is and at all times
shall be “at will,” which means that subject to the
terms of this Agreement either the Company or the Executive may
terminate Executive’s employment at any time, for any reason
or for no reason.
(b)
POSITION. The Executive shall be employed as Executive Vice
President, Production Services, or such other position of
reasonably comparable or greater status and responsibilities as may
be determined by the Board. The Executive shall perform the duties,
undertake the responsibilities and exercise the authority
customarily performed, undertaken and exercised by persons employed
in a similar executive capacity.
(c)
OBLIGATIONS. The Executive agrees (1) to devote the
Executive’s best efforts and full business time and attention
to the business and affairs of the Company; (2) to exercise
the highest degree of loyalty and care with respect to the affairs
of the Company; and (3) not to commit any willful or
intentional act with an objective to harm the Company’s
business or reputation. The foregoing, however, shall not preclude
the Executive from serving on corporate, civic or charitable boards
or committees or managing personal investments, so long as such
activities do not interfere with the performance of the
Executive’s responsibilities hereunder.
(d)
BASE SALARY. Effective as of August 21, 2008, the
Company agrees to pay or cause to be paid to the Executive a
minimum annual Base Salary of $450,000 (hereinafter referred to as
the “Base Salary”). This Base Salary will be subject to
annual review and may be increased from time to time by the Board
considering factors such as the Executive’s responsibilities,
compensation of executives in other companies, performance of the
Executive and other pertinent factors. Such Base Salary shall be
payable in accordance with the Company’s customary practices
applicable to similarly situated executives of the
Company.
(e)
EQUITY COMPENSATION. The Company shall grant to the
Executive rights to receive shares of the Company’s common
stock and options to acquire shares of the Company’s common
stock as the Board or Compensation Committee of the Board
determines.
(f)
EMPLOYEE BENEFITS. The Executive shall be entitled to
participate in tax-qualified and nonqualified deferred compensation
and retirement plans, group term life insurance plans, short-term
and long-term disability plans, employee benefit plans, practices,
and programs maintained by the Company and made available to
similarly situated executives generally, and as may be in effect
from time to time.
(g)
BONUS AND LONG-TERM INCENTIVES. The Executive shall be
entitled to participate in such Company bonus and long-term
incentive compensation programs which include similarly situated
executives of the Company as may exist from time to time (the
“Incentive Plans”). The Executive’s participation
in such Incentive Plans, practices and programs shall be on the
same general basis and terms as are applicable to similarly
situated executives of the Company, although bonuses, target levels
and criteria may differ among such executives as determined by the
Board or Compensation Committee of the Board.
(h)
OFFICE AND FACILITIES. The Executive shall be provided with
appropriate offices and with such secretarial and other support
facilities as are commensurate with the Executive’s status
with the Company and adequate for the performance of the
Executive’s duties hereunder.
(i)
EXPENSES. Subject to applicable Company policies, the
Executive shall be entitled to receive prompt reimbursement of all
expenses reasonably incurred by the Executive in connection with
the performance of the Executive’s duties hereunder or for
promoting, pursuing or otherwise furthering the business or
interests of the Company including, without limitation, travel,
automobile, and meal and entertainment expenses.
(j)
VACATION. The Executive shall be entitled to four weeks of
annual vacation or, if greater, in accordance with the policies as
periodically established by the Board for similarly situated
executives of the Company.
2.
DEFINITIONS, TERMS AND CONDITIONS. The
Executive’s employment hereunder is subject to the following
terms and conditions:
(a)
CAUSE. “Cause” means that the
Executive:
(1) was
grossly negligent in the performance of Executive’s duties
with the Company (other than a failure resulting from the
Executive’s incapacity due to physical or mental illness)
causing material harm to the Company; or
(2) has
pled “guilty” or “no contest” to or has
been convicted of an act which is defined as a felony under federal
or state law; or
(3) engaged
in intentional misconduct or fraud which caused, or could
reasonably be expected to cause, material harm to the
Company’s business or its reputation; or
(4) committed
a material breach of this Agreement (including a violation of the
noncompete and nondisclosure provisions) which is materially and
demonstrably injurious to the Company.
(b)
CHANGE IN CONTROL. “Change in Control” means the
occurrence of any of the following:
(1) Any
“Person” (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)) is or becomes the “Beneficial
Owner” (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Corporation
representing twenty-five percent (25%) or more of the combined
voting power of the Corporation’s then outstanding securities
(a “25% Shareholder”) provided however, that the term
25% Shareholder shall not include any Person if such Person would
not otherwise be a 25% Shareholder but for a reduction in the
number of outstanding voting shares resulting from a stock
repurchase program or other similar plan of the Corporation or from
a self-tender offer of the Corporation, which plan or tender offer
commenced on or after the date hereof provided, however, that the
term “25% Shareholder” shall include such Person from
and after the first date upon which (A) such Person, since the
date of the commencement of such plan or tender offer, shall have
acquired Beneficial Ownership of, in the aggregate, a number of
voting shares of the Corporation equal
2
to one
percent (1%) or more of the voting shares of the Corporation then
outstanding, and (B) such Person, together with all affiliates
and associates of such Person, shall Beneficially Own twenty-five
percent (25%) or more of the voting shares of the Corporation then
outstanding. In calculating the percentage of the outstanding
voting shares that are Beneficially Owned by a Person for purposes
of this subsection (b)(1), voting shares that are Beneficially
Owned by such Person shall be deemed outstanding, and voting shares
that are not Beneficially Owned by such Person and that are subject
to issuance upon the exercise or conversion of outstanding
conversion rights, exchange rights, rights, warrants or options
shall not be deemed outstanding. Notwithstanding the foregoing, if
the Board of Directors of the Corporation determines in good faith
that a Person that would otherwise be a 25% Shareholder pursuant to
the foregoing provisions of this subsection has become such
inadvertently, and such Person (a) promptly notifies the Board
of Directors of such status and (b) as promptly as practicable
thereafter, either divests of a sufficient number of voting shares
so that such Person would no longer be a 25% Shareholder, or causes
any other circumstance, such as the existence of an agreement
respecting voting shares, to be eliminated such that such Person
would no longer be a 25% Shareholder as defined pursuant to this
subsection (b)(1), then such Person shall not be deemed to be a 25%
Shareholder for any purposes of this Agreement. Any determination
made by the Board of Directors of the Corporation as to whether any
Person is or is not a 25% Shareholder shall be conclusive and
binding; or
(2) A
change in composition of the Board of Directors of the Corporation
occurring any time during a consecutive two-year period as a result
of which fewer than a majority of the Board of Directors are
Continuing Directors (for purposes of this section, the term
“Continuing Director” means a director who was either
(A) first elected or appointed as a Director prior to the date
of this Agreement; or (B) subsequently elected or appointed as a
director if such director was nominated or appointed by at least a
majority of the then Continuing Directors); or
(3) Any
of the following occurs:
(A) a
merger or consolidation of the Corporation, other than a merger or
consolidation in which the voting securities of the Corporation
immediately prior to the merger or consolidation continue to
represent (either by remaining outstanding or being converted into
securities of the surviving entity) sixty percent (60%) or more of
the combined voting power of the Corporation or surviving entity
immediately after the merger or consolidation with another
entity;
(B) a
sale, exchange, or other disposition (in a single transaction or a
series of related transactions) of all or substantially all of the
assets of the Corporation which shall include, without limitation,
the sale of assets aggregating more than fifty percent (50%) of the
assets of the Corporation on a consolidated basis;
(C) a
liquidation or dissolution of the Corporation;
(D) a
reorganization, reverse stock split, or recapitalization of the
Corporation which would result in any of the foregoing;
or
(E) a
transaction or series of related transactions having, directly or
indirectly, the same effect as any of the foregoing.
3
(c)
NOTICE OF TERMINATION. “Notice of Termination”
means a written notice indicating the specific termination
provision in this Agreement relied upon and, to the extent
applicable, setting forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the
employment under the provision so indicated. Except for a
termination for Cause, any termination of employment by the Company
or by the Executive shall be communicated by a Notice of
Termination to the other party thirty (30) days prior to the
Termination Date. However, the Company may elect to pay the
Executive thirty (30) days of Base Salary in lieu of thirty
(30) days written notice. If the Company notifies the
Executive that it will pay the Executive in lieu of thirty
(30) days written notice, the Company may deny the Executive
further access to the Company’s offices subject to the
Executive’s right to recover any personal effects at an
agreed upon time. For purposes of this Agreement, no such purported
termination of employment shall be effective without a Notice of
Termination.
(d)
PRO-RATED BONUS AMOUNT. “Pro-Rated Bonus Amount”
means any accrued but unpaid bonus for a completed bonus period,
plus a pro-rated portion of the Executive’s semi-annual bonus
calculated as of the Termination Date. The portion of the
semi-annual bonus payment shall be the amount of semi-annual bonus
payable to the Executive with respect to the bonus period in which
the Termination Date occurs, based on the actual financial
performance of the Company for such bonus period, pro-rated by
multiplying such amount by a fraction, the numerator of which is
the number of days during the bonus period which occur prior to the
Termination Date, and the denominator of which is one hundred
eighty-two and one-half (182-1/2).
(e)
TERMINATION DATE. “Termination Date” means the
date specified in the Notice of Termination.
3.
TERMINATION OF EMPLOYMENT; COMPENSATION UPON
TERMINATION
(a)
TERMINATION BY COMPANY WITH CAUSE, OR VOLUNTARY TERMINATION BY
EXECUTIVE. The Company shall be entitled to immediately
terminate the Executive’s employment for Cause after giving a
Notice of Termination. Such Notice of Termination shall state in
detail the particular act or acts or failure or failure to act that
constitute the grounds on which the proposed termination for Cause
is based. The Executive may voluntarily terminate employment for
any reason after giving a Notice of Termination. If the
Executive’s employment is terminated by the Company for
Cause, or if the Executive voluntarily terminates employment,
subject to the execution by the Executive and the Company of a
mutual release in favor of each of the Parties, the Company’s
sole obligation hereunder shall be to pay o
|
