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Exhibit 10.6
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 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
resign from your employment, the Company may waive the provisions
of Paragraph 2(b) or shorten the Non-Competition Period by
provi
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