Exhibit 10.5
CONFIDENTIALITY, NON-SOLICITATION
OF ASSOCIATES AND NON-COMPETITION AGREEMENT
As an associate of Ann Taylor, Inc.
(the “Company”), you will have access to or may develop
trade secrets, intellectual property, and other confidential and
proprietary information of the Company. Therefore, in consideration
of your 2008 salary increase, your 2008 restricted stock grant,
your becoming eligible to participate in the Restricted Cash
Feature under the AMIP Plan, the Restructuring Program Bonus and
the payments described in Paragraph 2 below, benefits that you will
not be eligible for if you do not sign this Agreement, and in
recognition of the highly competitive nature of the Company’s
business, you agree as follows:
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1.
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Protection
of Confidential Information .
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(a)
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You acknowledge
that your employment by the Company involves your obtaining
knowledge of Confidential Information (as defined below) regarding
the business and affairs of the Company.
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(b)
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Accordingly,
you agree that:
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(i)
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except in
compliance with legal process, you will keep secret all
Confidential Information and other confidential matters of the
Company which are not otherwise in the public domain and will not
disclose them to anyone outside of the Company, wherever located
(other than to a person to whom disclosure is reasonably necessary
or appropriate in connection with the performance of your duties as
an employee of the Company), either during or after your
employment, except with the prior written consent of the Chief
Executive Officer or the General Counsel of the Company. In the
event that you are required to disclose any Confidential
Information or other confidential matters of the Company to comply
with legal process, you shall provide reasonable advance notice of
such legal process to the General Counsel of the Company prior to
disclosure of any Confidential Information or confidential matters
and will not challenge the Company’s standing or ability to
seek an order of protection or otherwise seek to prevent or limit
disclosure pursuant to such legal process consistent with
applicable law;
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(ii)
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you will
deliver promptly to the Company on termination of your employment
or at any other time the Company may so request, all memoranda,
notes, records, customer lists, reports and other documents
(whether in paper or electronic form and all copies thereof)
relating to the business of the Company and all other Company
property which you obtained or developed while employed by, or
otherwise serving or acting on behalf of, the Company and which you
may then possess or have under your control, whether directly or
indirectly; and
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(iii)
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you will not
use Confidential Information for your personal benefit or for the
benefit of another person or entity.
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(c)
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For purposes of
this Agreement, “Confidential Information” refers to
information of the Company (including its affiliated companies) or
its suppliers, technology service providers, licensors, clients,
and employees, including without limitation information relating to
designs, products, processes, formulas, merchandising, real estate
strategy, contract terms, client lists, sourcing information and
strategies, technology, marketing plans, advertising, corporate
assessments and strategic plans, financial and statistical
information, accounting information, pricing and business affairs,
associate compensation and relative skills and abilities, which
have been or are disclosed or available to you and which are either
designated at the time of disclosure as confidential or which you
know or have reason to know are confidential, regardless of the
form or media in which such information is disclosed.
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2.
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Non-solicitation of Associates;
Non-competition .
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(a)
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During your
employment and for a period of 12 months after your separation from
the Company for any reason whatsoever, whether voluntary or
involuntary (the “Non-Solicitation Period”), you shall
not directly or indirectly, (1) solicit, induce, or attempt to
influence any associate at the director level or above to leave his
or her employment with the Company or (2) hire or attempt to
hire any associate of the Company at the director level or above,
directly or indirectly through a new employer or other person or
entity, to join you in the pursuit of any business activity
(whether or not such activity involves engaging or participating in
a business that competes, or plans to compete, with the Company or
any of its products). Should you violate this provision, in
addition to the other remedies the Company may pursue hereunder,
the Non-Solicitation Period will be extended by the number of
months you were in violation of this Paragraph 2(a) and you shall
have no further rights under Paragraphs 2(c), 2(d) and
2(e).
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(b)
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During your employment and for a
period of 12 months after your separation from the Company for any
reason
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whatsoever, whether voluntary or
involuntary (the “Non-Competition Period”), you shall
not, directly or indirectly, without the prior written consent of
the Company, work for, be employed, affiliated, engaged or
associated with or contribute to the efforts (as an employee,
owner, stockholder, partner, director, officer, consultant or
otherwise) of a business that is, or plans to be, a Competitor (as
defined herein) of the Company at the time of termination. As used
herein, “Competitor” means a business or other entity
engaged in the manufacture, design and/or sale of women’s
apparel in the United States. Should you violate this provision, in
addition to the other remedies the Company may pursue hereunder,
the Non-Competition Period will be extended by the number of months
you were in violation of this Paragraph 2(b) and you shall have no
further rights under Paragraphs 2(c), 2(d) and 2(e).
Notwithstanding the foregoing, passive ownership of less than 2% of
any class of securities of a public company shall not violate this
Section 2(b).
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(c)
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If you are
terminated by the Company without cause (as defined Paragraph 2(f)
below, “Cause”) or if you resign from your employment,
during the Non-Competition Period the Company shall pay you an
amount equivalent to your base salary times 1.5 (“Separation
Pay”), payable in substantially equal installments in
accordance with the Company’s regular payroll cycle, and you
will continue to receive all benefits under the Company’s
medical, dental and vision benefit plans to the same extent as if
you were an employee of the Company. If you res
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