Exhibit 10.5
RESTATED SEVERANCE PAY
AGREEMENT
This Severance Pay Agreement (the
“Agreement”), dated as of June 15, 2007 (the
“date first set forth above”), is made between United
Retail Group, Inc., a Delaware corporation, with principal offices
at 365 West Passaic Street, Rochelle Park, New Jersey 07662 (the
“Company”) and the undersigned officer of the Company
(the “Executive”).
WHEREAS , the
availability of severance pay and certain other post-employment
benefits will encourage those entitled to them to remain in the
Company’s employ; and
WHEREAS , this
Agreement was reviewed and approved by the Company’s Board of
Directors on June 15, 2007.
NOW, THEREFORE , in
consideration of the Executive’s continued employment with
the Company and other good and valuable consideration, the parties,
intending to be legally bound, hereby agree, effective as of the
date first set forth above, as follows:
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(a)
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By-laws shall mean the
By-laws of the Company as in force on the date first set forth
above.
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(b)
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Cause shall mean the
occurrence after the date first set forth above of one or more of
the following events:
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(i)
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a judgment of conviction against the Executive or a
plea of guilty has been entered for any felony which is both based
on his or her personal actions (excluding liability imputed by
reason of his or her position as an associate of the Company) and
involves common law fraud, embezzlement, breach of duty as a
fiduciary, willful dishonesty or moral turpitude (the entry of a
judgment or plea being the only event or circumstance sufficient to
constitute Cause under this clause (i)), provided, however, that
any felony an essential element of which is predicated on the
operation of a vehicle shall be deemed not to involve moral
turpitude;
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(ii)
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the Executive has willfully and continuously failed
to perform his or her duties to the Company in any material
respect, except in the case of Short Term Disability, and material
economic harm to the Company has resulted;
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(iii)
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the Executive has willfully failed in any material
respect to follow specific directions of the President of the
Company in the performance of his or her duties, except in the case
of Short Term Disability;
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(iv)
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there has been a breach in any material respect of
any of the provisions of Section 7; or
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(v)
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the Executive has willfully failed to report
promptly in writing to the Senior Vice President-General Counsel of
the Company any fraud of which he or she is aware, or has
reasonable grounds to suspect, on the part of any officer of the
Company that involves the Company, whether or not the fraud is
material and whether it occurred before or after the date first set
forth above;
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provided, however, that the judgment of conviction
or a plea of guilty referred to in clause (i), the failure of
performance referred to in clause (ii) and (iii) and the breach
referred to in clause (iv) shall constitute Cause for a maximum of
only 90 days after the judgment of conviction or plea of guilty was
entered, the material economic harm commenced, the directions were
not followed or the breach first took place, as the case may be.
For purposes of determining Cause, no act or omission by the
Executive shall be considered “willful” unless it is
done or omitted in bad faith or without reasonable belief that the
Executive’s action or omission was in the best interests of
the Company. Any act or failure to act based upon advice of counsel
for the Company shall be conclusively presumed to be done or
omitted to be done by the Executive in good faith and in the best
interests of the Company. Termination of employment shall be deemed
to be for Cause only if the Company sends the Executive by
certified mail to his or her residence before the termination of
employment a notice of termination for Cause specifying in
reasonable detail the circumstance that is the basis for
termination. Short Term Disability shall not be a basis for
termination of employment.
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(c)
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Protected Information shall mean trade secrets, confidential or proprietary
information, and all other knowledge, know-how, information,
documents or materials, owned or developed by the Company, or
otherwise in the possession of the Company, whether in tangible or
intangible form, pertaining to the business of the Company, the
confidentiality of which the Company takes reasonable measures to
protect, including, but not limited to, the Company’s
research and development, store operating results, identities and
habits of customers and prospective customers, suppliers, business
relationships, products (including prices, costs, sales or
content), processes, techniques, machinery, contracts, financial
information or measures, business methods, future business plans,
data bases, computer programs, designs, models, operating
procedures, knowledge of the organization, and other information
owned, developed or possessed by the Company; provided, however,
that Protected Information shall not include information that shall
become generally known to the public or the trade without violation
of Section 7.
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(d)
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Severance Pay shall
have the meaning set forth in Section 2(b).
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(e)
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Short Term Disability shall mean the inability of the Executive to substantially
perform his or her duties and responsibilities to the Company by
reason of a physical or mental disability or infirmity for a
continuous period of less than six months.
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(f)
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Successor shall have
the meaning set forth in Section 10(b).
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(g)
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Termination Without Cause shall have the meaning set forth in Section 2(a).
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(h)
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Unauthorized shall
mean: (i) in contravention of the Company’s policies or
procedures; (ii) otherwise inconsistent with the Company’s
measures to protect its interests in its Protected Information; or
(iii) in contravention of any duty existing under law or contract,
provided, however, that the Executive in his or her discretion may
disclose Protected Information to the extent necessary in the
performance of his or her duties on behalf of the
Company.
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(a)
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If, while this Agreement remains in force,
either:
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(i)
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the Company unilaterally terminates the
Executive’s employment without Cause;
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(ii)
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the Executive’s base salary, incentive
compensation or group benefits are reduced materially by the
Company, and the Executive, within 15 days after first learning of
the reduction sends a notice of resignation to the Company at its
address first set forth above to the attention of the Human
Resources Dept. by certified mail; or
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(iii)
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the Company fails to obtain the consent of a
Successor required pursuant to Section 10(c), and the Executive,
within 15 days after first learning of the failure sends a notice
of resignation to the Company at its address first set forth above
to the attention of the Human Resources Dept. by certified
mail;
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then a Termination Without Cause shall have occurred
at the time the Executive’s employment is terminated by the
Company or due to his resignation, as applicable.
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(b)
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If Termination Without Cause shall occur and within
21 days thereafter the Executive shall send to the Company’s
Senior Vice President-Human Resources a general release that
excludes rights under outstanding equity-based compensation grants
and is in form and substance satisfactory to the Company, then,
subject to Section 2(e), the Company shall remit Severance Pay
equivalent to 26 weeks’ base pay at the higher of the rate
paid on the date first set forth above or on the date on which
Termination Without Cause occurred plus an additional week for each
full year of service in excess of 10 years of service as of the
date of termination but in no event more than a total of 52 weeks.
Subject to Section 2(e), Severance Pay shall be remitted to the
Executive’s residence in equal weekly installments commencing
on the fourth Thursday following T
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