This Agreement
is dated for reference as of August 1, 2008.
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To:
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Ms. Christine Day
2285 Clark Drive
Vancouver, BC
V5N 3G9
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Re:
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Executive Employment
Agreement
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This Agreement
contains the terms and conditions of our offer of employment in the
position of Chief Executive Officer with lululemon athletica inc.
This Agreement will take effect as of the Effective Date and will
continue until terminated in accordance with its terms.
If you accept
our offer of employment on the terms and conditions set out below,
please execute this Agreement where indicated and return it to
Mr. Dennis (Chip ) Wilson.
ARTICLE 1 —
INTERPRETATION
In
this Agreement, unless something in the subject matter or context
is inconsistent therewith:
“Affiliate” has the meaning attributed to such term in the
Canada Business Corporations Act and includes each direct
and indirect subsidiary of the Company and any other entities,
including joint ventures and franchises, in which the Company has
an interest.
“Agreement” means this agreement, including its recitals and
schedules, as amended from time to time.
“Base
Salary” has the
meaning attributed to such term in Section 3.01(1).
“Board” means the board of directors of the Company in
office from time to time.
“Bonus
Plan” means
Company’s 2008 Executive Bonus Plan.
“Business” means all the business and activities from time
to time carried on by the Company and its Affiliates, including,
without limitation, the design, retail and wholesale of technical
athletic apparel.
“Cause” means an act or failure to act which would
constitute cause at common law, and includes any of the following
conduct by, or authorized or permitted by, the Executive: violation
of any contractual or common law duty to the Company; unlawful
activity; activity contrary to professional or ethical standards;
or breach of the terms and conditions of this Agreement which
amount to just cause at common law.
“Company” means lululemon athletica inc., a Delaware
corporation.
“Effective Date”
of this Agreement and the
Executive’s employment under this Agreement will mean
August 1, 2008.
“Executive” means Ms. Christine Day of 2285 Clark
Drive, Vancouver BC.
“Existing Options”
has the meaning given to it in
Section 3.03(2).
“Fair
Market Value” has
the meaning given to it in the Plan.
“Option” has the meaning given to it in
Section 3.03(1).
“Permanent Disability”
means the mental or physical
condition of the Executive such that the Executive has been unable,
as a result of illness, disease, disability or similar cause, to
fulfill her duties with the Company on a full time basis for more
than 6 consecutive months, or for an aggregate of a 6 month
period within any consecutive 12 months.
“Plan” means the Company’s 2007 Equity Incentive
Plan.
“Target Bonus”
has the meaning given to it in the
Bonus Plan.
“Termination Date”
has the meaning given to it in
Section 5.01.
(1) Subject
to the terms and conditions of this Agreement, the Company will,
commencing on the Effective Date, employ the Executive in the
position of Chief Executive Officer.
(2) The
Executive will report to the Board or such person as may be
designated by the Board, provided such designate is a Board
member.
(3) The
Executive will have the powers and authority to perform the duties
and functions of the Chief Executive Officer of a corporation,
subject always to the control and direction of the
Board.
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(4) The
Executive will be responsible for developing and executing
strategies, advising and reporting to the Board, and for operating
the Company within a budget set by the Board. Subject to the
overall direction of the Board, the Executive will direct and be
responsible for the day-to-day management of the operations of the
Company, which responsibilities include, human resources,
information technology and office administration, financial
reporting and accounting, business development, retail operations,
guest service and guest relations.
The
Executive and the Board agree that they will review the terms and
conditions of the Executive’s employment annually and
recommend changes, if any, to this Agreement to be made only upon
mutual agreement.
(1) During
the Executive’s employment with the Company, the Executive
agrees to serve as a director and/or officer of all subsidiaries of
the Company. The Executive acknowledges that, to the extent the
Executive serves as a director or officer of any such entity, the
Executive will do so without any additional remuneration but will
be entitled to receive a suitable indemnity for any liability from
any such entity. The Company shall provide director and officer
insurance.
(2) Notwithstanding
any provision of this Agreement or any other agreement or document
to the contrary, the Executive will be deemed to have resigned as a
director and officer of all subsidiaries of the Company
contemporaneously with the date of termination of the
Executive’s employment by the Company and will, immediately
on request by the Company, sign any and all documents necessary to
give effect to or confirm such resignation.
(3) The
Executive may serve as a director of no more than two entities
which are unrelated to the Company and which are listed in
Schedule B attached, provided the Executive receives approval
of the Board in advance of accepting any such
directorships.
The
term of this Agreement and the Executive’s employment under
this Agreement will commence on the Effective Date and will
continue for an indefinite period, subject to termination in
accordance with the terms of this Agreement.
(1) When not
travelling, the Executive will perform her work and services for
the Company at the principal executive offices of the Company in
Vancouver, British Columbia, and the Executive will reside within a
reasonable daily commuting distance of such place of
employment.
(2) The
Executive acknowledges that the performance of her duties and
functions will necessitate frequent travel to other
places.
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ARTICLE 3 —
REMUNERATION AND BENEFIT S
(1) The
Company will pay the Executive a base salary (the “Base
Salary” ) in the amount of CAD$550,000 per annum
effective July 1, 2008. Such Base Salary will be payable in 26
equal instalments during each year of employment, in accordance
with the Company’s usual payroll practices and dates, in
arrears by direct deposit, and subject to deductions required by
law or authorized by the Executive.
(2) The Board
or a committee thereof will review the Base Salary annually. The
Board will not be under any obligation to increase Base Salary, but
in no case will it decrease.
The
Executive will be eligible to receive an annual bonus pursuant to
the terms and conditions of the Bonus Plan and this Agreement. The
Executive’s Target Bonus shall be 75% of Base Salary. The
Executive acknowledges that she has been provided with a copy of
the Bonus Plan and that she understands and accepts each of the
terms and conditions thereof.
(1) In
connection with, and within a reasonable time following, the
execution of this Agreement and the Effective Date, the Executive
will be granted a nonqualified stock option to purchase up to
250,000 shares of the Company’s common stock (the “
Option ”) pursuant to the terms and conditions of the
Plan and standard form of stock option agreement to be granted
83,333 on August 1, 2008; 83,333 on September 2, 2008;
and 83,334 on October 1, 2008. The Option will vest in equal
annual instalments over four (4) years, will have an exercise
price equal to the Fair Market Value on the date of grant, as
determined in accordance with the Plan, and will be subject to all
of the provisions of the Plan, except as specifically modified by
this Agreement.
(2) The
Executive will retain the right to the following stock options (the
“Existing Options ”) as previously agreed with
the Executive, on the following terms:
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(a)
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options to purchase up to 250,000
shares of the Company’s common stock pursuant to the terms
and conditions of the Plan, except as specifically modified by this
Agreement, and standard form of stock option agreement, of
which:
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(i)
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125,000 options have been granted
effective January 18, 2008, and will vest in equal annual
instalments over four (4) years on January 7 of each year,
commencing January 7, 2009;
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(ii)
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41,667 options will be granted
effective January 7, 2009, and will vest in equal annual
instalments over four (4) years, commencing January 7,
2010;
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(iii)
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41,667 options will be granted
effective January 7, 2010; and will vest in equal annual
instalments over four (4) years, commencing January 7, 2011;
and
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(iv)
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41,666 options will be granted
effective January 7, 2011, and will vest in equal annual
instalments over four (4) years, commencing January 7,
2012.
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(3) The
Existing Options will have an exercise price equal to the Fair
Market Value on the date of grant, as determined in accordance with
the Plan, and will be subject to all of the provisions of the
Plan.
(4) The
Executive acknowledges that she has been provided with a copy of
the Plan and that she understands and accepts each of the terms and
conditions thereof.
(5) The
granting and vesting of all options, including without limitation
the Option and the Existing Options, are conditional upon the
Executive remaining actively employed by the Company on the
granting and vesting dates.
(6) The Board
may on its sole discretion consider further grants on an annual
basis based on performance.
The
Executive will be entitled to participate in all of the
Company’s benefit plans, subject to the terms and conditions
of such plans, generally available to its senior executives from
time to time, including and without limitation, health, disability
and death, subject to and in accordance with the terms and
conditions of the applicable plans, subject to any express
limitations by this Agreement or unless a greater benefit is
expressly provided to the Executive under this Agreement. The
Executive acknowledges that she has been provided with a summary of
the current benefit plans and that she understands and accepts each
of the terms and conditions thereof. The Executive further
acknowledges that the Company may amend or terminate the benefit
plans from time to time, as provided in the applicable plan, fund
or arrangement. The Company will provide coverage for benefit
coverage for the Executive’s dependents in the U.S. to a
maximum cost of US $12,000.
Upon
submission of proper invoices, the Company will reimburse the
Executive up to US $17,500 annually for premiums payable with
respect to supplement term life insurance and/or long-term
disability insurance.
The
Executive will be entitled to four (4) weeks paid vacation
each year. Such vacation entitlement will be pro-rated for any part
of a year. The Executive will take such vacation at times having
regard to the best interests of the Company. The Executive may not
carry forward unused vacation time, except two (2) weeks per
year, but no more than a total entitlement of six (6) weeks in
each year, with the prior written approval of the Board and, except
as may be required by applicable employment standards legislation,
will lose the entitlement to unused vacation.
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The
Company will reimburse the Executive for all reasonable
out-of-pocket expenses properly incurred by her in the course of
the Executive’s employment with the Company, in accordance
with the Company’s expense reimbursement policy in effect as
at the date the Executive incurs any such expenses. The Executive
will provide the Company with appropriate statements and receipts
verifying such expenses as the Company may require.
3.07
Executive Perquisites
The
Executive will be eligible to participate in any fringe benefit or
perquisite that the Company provides to other senior executives of
the Company, to the same extent that other senior executives are
eligible to participate and subject to the terms and conditions of
such fringe benefits or perquisites.
ARTICLE 4 —
EXECUTIVE’S COVENANTS
The
Executive will devote all of her time, attention and effort to the
business and affairs of the Company, and will well and faithfully
serve the Company and will use her best efforts to promote the
interests of the Company and its Affiliates.
4.02
Duties and Responsibilities
The
Executive will duly and diligently perform all of the duties
assigned to her while in the employ of the Company.
4.03
Policies, Rules and Regulations
The
Executive will be bound by and will faithfully observe and abide by
all of the policies, rules and regulations of the Company from time
to time in force which are applicable to senior executives of the
Company and which are brought to her notice or of which she should
reasonably be aware.
4.04
Conflict of Interest
The
Executive will refrain from any situation in which the
Executive’s personal interest conflicts, or may appear to
conflict, with the Executive’s duties with the Company. The
Executive acknowledges that if there is any doubt in this respect,
the Executive will inform the Board and obtain written
authorization.
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4.05
Restrictive Covenants
The
Executive agrees to be bound by the terms and conditions of the
Non-Compete, Non-Solicitation and Non-Disparagement Agreement
between the Company and the Executive, a copy of which is attached
to this Agreement as Schedule A and is incorporated by
reference and deemed to be part of this Agreement.
5.01
Termination by the Company
The
Company may terminate the Executive’s employment with the
Company at any time by giving notice in writing to the Executive
and stipulating the last day of employment (the
“Termination Date” ).
5.02
Termination by the Executive
The
Executive may terminate her employment with the Company at any time
by giving the Company thirty (30) days notice in writing (the
“ Notice of Resignation Period ”). The Company
may waive such notice, in whole or in part, in which case the
Executive shall only be entitled to (i) payment of the
Executive’s Base Salary for the period from the effective
date of the waiver of the Notice of Resignation Period to the end
of the Notice of Resignation Period; (ii) continued group
benefit coverage under Section 3.04, subject to and in
accordance with the terms and conditions of the applicable plans,
for the period ending the last day of the Notice of Resignation
Period; (iii) the value of the pro-rated vacation leave with
pay for that portion of the calendar year up to the end of the
Notice of Resignation Period, and (iv) any payments or
entitlements under the Plan or the Bonus Plan that the Executive
would otherwise receive during the Notice of Resignation
Period.
5.03
Payments on Termination Without Cause or due to the
Executive’s Permanent Disability
If
the Executive’s employment with the Company is terminated by
the Company without Cause, or by reason of Permanent Disability,
and subject to and conditional upon the Executive’s ongoing
compliance with the provisions of the Non-Compete, Non-Solicitation
and Non-Disparagement Agreement attached as Schedule A hereto,
the Executive will only be entitled to the following payments and
benefits:
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(a)
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Accrued Compensation
. The Company will pay
the Executive her Base Salary accrued and unpaid up to and
including the Termination Date, including accrued vacation pay, at
the rate in effect at the time notice of termination is given by
the Company.
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(b)
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Severance Payment
. The Company will pay
to the Executive an amount equal to her Base Salary for a twelve
(12) month period following the Termination Date by way of 26
equal payments on the Company’s regular paydays,. This amount
shall increase at a rate of two (2) months per year of service
to a maximum of eighteen
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(18) months. These payments shall be
inclusive of and in full and final satisfaction of any entitlement
to compensation pursuant to the Employment Standards Act of
British Columbia.
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(c)
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Bonus Compensation
. The Executive shall
not receive any bonus payment whatsoever pursuant to
Section 3.02 or the Bonus Plan which is not already earned and
due to be paid up to and including the Termination Date.
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(d)
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Stock Options
. The Executive’s
rights regarding any stock options, including the Options or
Existing Options, will be governed by the terms of the Plan as
modified by this Agreement. For clarity, the date of
“termination of employment” and “termination of
service” under the Plan, and the date on which employment or
service terminates within the meaning of the Plan, shall
mea
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