EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into as of the 3rd day of
July, 2007 between Cache, Inc., a Florida corporation, having its principal
place of business at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("CACHE" or the
"COMPANY") and Xxxxxxxx Xxxxxx, an individual residing at 00 Xxxxxxx Xxxxxx,
Xxx. 0 X, Xxx Xxxx, XX 00000 ("EXECUTIVE").
BACKGROUND
The Company, Xxxxxxxx Xxxxxxxx, Inc., a wholly owned subsidiary of the
Company (the "Purchaser"), Xxxxxxxx Xxxxxx, Xxxxxx Xxxxxx and Xxxxxxxx Xxxxxxxx
Designs, Inc. (the "SELLER") have simultaneously entered into that certain Asset
Purchase Agreement, dated July 3, 2007 (the "ASSET PURCHASE AGREEMENT").
As a material inducement for the Executive to cause the Seller and the
Company to cause the Purchaser to enter into the Asset Purchase Agreement, the
Company has agreed to hire the Executive and the Executive has agreed to work
for the Company pursuant to the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and intending to be legally bound hereby, Company and Executive
agree as follows:
1.0 EMPLOYMENT
Cache hereby employs Executive as its Executive Vice President, Design and
Merchandising with the duties and responsibilities set forth in Section 2.0 and
Executive hereby accepts such employment. This Agreement shall commence on July
3, 2007 for a term of 5
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years, expiring on July 2, 2012 (the "INITIAL TERM"), subject to earlier
termination as hereinafter provided, provided that the Company and the Executive
may, subject to Executive's consent, extend the term of this Agreement for
additional 12 month periods (each an "EXTENSION TERM") by providing written
notice to Executive no later than 90 days prior to the expiration of Initial
Term or any Extension Term, as applicable. The terms of any Extension Term shall
be negotiated in good faith by the parties.
2.0 DUTIES AND RESPONSIBILITIES
2.1 The Principal duty of Executive shall be to direct, and manage design
and merchandising operations of the Company. Executive shall report to the Chief
Executive Officer ("CEO") of the Company. Subject to the direction and control
of the CEO and in accordance with the policies and procedures of the Company,
Executive shall be responsible for clothing design and merchandise sourcing for
the Company and management of its merchandising department, including
responsibility for hiring and firing of employees reporting to her. As an
Executive Vice President, the Executive shall also be a member of the executive
management team of the Company in which capacity she shall participate in
determining the business strategy, marketing strategy and financial direction of
the Company.
2.2 Executive agrees that she will diligently devote her entire business
skill, time and effort to the performance of her duties on behalf of Cache.
Executive agrees that she will not, alone or as a member of a partnership or as
an officer, director, shareholder, employee or agent of any other person, firm
or business organization, engage in any other business activities or pursuits
requiring her personal services that might conflict with her duties hereunder.
Executive may also serve as a director or consultant to other companies, which
are not competitive with the
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Company, upon receiving prior approval of the Board of Directors (the "BOARD").
Executive may continue to engage in charitable and civil activities without
compensation.
2.3 Executive represents and warrants that she is not subject or party to
any employment agreement, non-competition covenant, non-disclosure agreement or
other agreement, covenant, understanding or restriction that would prohibit
Executive from executing this Agreement and performing fully her duties and
responsibilities hereunder, or which would in any manner, directly or
indirectly, limit or affect the duties and responsibilities which may now or in
the future be assigned to Executive by Cache.
2.4 Executive agrees that at all times she will strictly adhere to and
perform all her duties in accordance with written policies and procedures of
Cache applicable to all executive employees that are in effect from time to
time.
3.0 COMPENSATION AND BENEFITS
3.1 SALARY. During the Initial Term and each Extension Term of Executive's
employment under this Agreement, Cache shall pay Executive an annual base salary
of $150,000, or at such higher rate as the Company shall determine ("BASE
SALARY") less withholdings and other applicable payroll deductions as required
by law, payable at such times as Cache customarily pays its other executive
officers (but in no event less often than monthly).
3.2 BENEFITS. Executive will be entitled to participate in all of the
Company's employee benefit plans and other executive benefit plans or programs
that Cache offers, provides or makes available from time to time to its senior
executive officers or employees of similar rank and title as Executive,
including, without limitation, any life insurance, health and accident, stock
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option, restricted stock or other stock based compensation plans or programs,
and at levels commensurate with her rank and title, provided that Executive
meets the eligibility requirements for such plans or programs. To the extent
permitted by applicable law and the terms of such plans and programs, Executive
shall be credited for years of service rendered to Seller for purposes of any
vesting requirements under such plans or programs, other than the 401(k).
3.3 BUSINESS EXPENSES. Executive shall be promptly reimbursed for the
business expenses reasonably incurred on Cache's behalf in connection with the
performance of her services hereunder upon presentation of an itemized account
and written proof of such expenses, in accordance with the policies established
by Cache.
3.4 VACATION. Executive shall be entitled to four weeks of paid vacation
leave per year. Such vacation shall be taken at such times and in such intervals
as Executive deems appropriate in compliance with vacation notice policy of the
Company.
3.5 DIRECTORS AND OFFICERS LIABILITY INSURANCE. The Company currently
maintains directors and officers liability insurance policy coverage as
heretofore described to Executive. Executive shall be covered under such
insurance as from time to time modified by the Company for actions taken by
Executive as an officer of Cache.
3.6 COVERAGE. Nothing in this Agreement shall prevent Executive from
participating in any other compensation plan or benefit plan made available to
her by the Company.
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4.0 TERMINATION WITHOUT COMPENSATION
4.1 MUTUAL AGREEMENT. Executive's employment, and the parties' respective
obligations hereunder may be terminated by mutual written agreement.
4.2 RESIGNATION WITHOUT GOOD REASON. Executive may terminate her employment
without Good Reason (as hereafter defined), by written resignation submitted to
Cache at least forty-five (45) days prior to a specified termination date and
thereafter Cache shall not have any further liability or obligation to
Executive, her executors, administrators, heirs, assigns or any other person
claiming under or through her, except for unpaid salary and benefits through,
and unreimbursed reimbursable expenses incurred prior to, such termination date,
except as otherwise set forth in the Asset Purchase Agreement. Cache may at its
sole discretion, terminate Executive's services at any time during that period,
and compensate Executive for the remainder of that period.
4.3 PARTIAL/TOTAL DISABILITY. If Executive is unable to perform her duties
and responsibilities to the full extent required hereunder, either with or
without reasonable accommodation, by reason of physical or psychiatric illness,
injury or incapacity, as determined in good faith by the Board, for six (6)
continuous months or nine (9) months in any twelve (12) month period, Cache may
terminate Executive's employment by written notice of the termination date, and
Cache shall have no further liability or obligation to Executive hereunder,
except for any unpaid salary and benefits accrued to the date of termination and
except as may be set forth in the Asset Purchase Agreement. During any period of
disability, Executive will receive her Base Salary in effect at the time of
disability, reduced by the amount of any disability benefits under any
applicable Cache disability program, other Cache benefit plan or federal or
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state disability benefit program, plus reimbursement of business expenses and
any other benefits to which Executive is entitled pursuant to the terms of this
Agreement or Cache policies. In the event of any dispute under this Section 4.3,
Executive shall submit to a physical and/or psychiatric examination by a
licensed physician mutually satisfactory to Cache and Executive. The cost of
such examination will be paid by Cache and the findings of such physician shall
be determinative.
4.4 DEATH. If Executive dies, this Agreement shall terminate and thereafter
Cache shall not have any further liability or obligation to Executive, her
executors, administrators, heirs, assigns or any other person claiming under or
through her, except for unpaid Base Salary, unreimbursed business expenses and
other benefits accrued to the date of her death and except as may be otherwise
set forth in the Asset Purchase Agreement.
4.5 CAUSE. Cache may terminate Executive's employment for "Cause" at any
time upon written notice to Executive and upon such termination Cache shall have
no further liability or obligation to Executive except for any unpaid salary and
benefits accrued to the date of termination. For purposes of this Agreement,
"CAUSE" shall mean any of the following: (a) Executive's commission of any
felony (including, without limitation, any violation of the Foreign Corrupt
Practices Act), whether or not job related (but excluding traffic violations),
which in the reasonable judgment of the Board results in a material injury to
the Company or its reputation; (b) Executive's failure (other than by reason of
death, disability, illness, injury or incapacity) to perform or fulfill any of
Executive's material duties or responsibilities or reasonable lawful directives
of the Company which failure, in the reasonable judgment of the Board, results
in a material injury to the Company or its reputation after written demand for
performance, fulfillment or cure of such failure is delivered by the Company
specifically
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identifying the manner in which the Company believes that Executive has so
failed, PROVIDED that if such failure is capable of cure and Executive is
actively taking reasonable action to cure such failure, such failure shall not
constitute "Cause" hereunder so long as such actions continue; (c) Executive's
habitual insobriety or substance abuse; (d) intentional misappropriation of
Company funds by Executive; (e) conduct in the performance of Executive's
employment which violates applicable law or causes the Company to violate
applicable law, including without limitation any harassment or
anti-discrimination regulations, and which failure in the reasonable judgment of
the Board results in a material injury to the Company or its reputation; (f) any
material violation of Section 6, 7 or 9 of this Agreement, or (g) during any
calendar year beginning in with the 2009 calendar year Cache's annualized Gross
Margin (as defined in the Purchase Agreement) drops by more than 2-1/2
percentage points below the Gross Margin for the trailing 12 months ending June
30, 2007, PROVIDED that any reduction in Gross Margin attributable to acts of
God, war, hostilities, acts of terrorism, increases in prices for raw materials,
governmental action such as embargoes and other events in the nature of force
majeure which, in any such case, are outside the ordinary course of business,
shall be excluded in computing the drop in Gross Margin.
4.6 In the event that Executive's employment is terminated for any of the
reasons set forth in this Section 4, Cache will have no further liability or
obligation to Executive, except for any unpaid Base Salary, unreimbursed
expenses or other benefits accrued as of the date of termination and except as
may otherwise be set forth in the Asset Purchase Agreement.
5.0 TERMINATION WITH COMPENSATION
5.1 Cache shall have the right to terminate Executive's employment at any
time
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without Cause by giving Executive thirty (30) days' prior written notice of the
termination date. Executive shall have the right to terminate her employment for
Good Reason by giving Cache thirty (30) days' prior written notice. "GOOD
REASON" shall mean the Company's Material Breach (as hereinafter defined) of
this Agreement or a Change in Ownership or Control (as hereinafter defined) of
the Company. The Company's "MATERIAL BREACH" of this Agreement shall mean (i)
the failure of the Company to pay Base Salary or additional compensation or
benefits hereunder in accordance with this Agreement or the failure to make
payments due under the Asset Purchase Agreement, in each case within 10 business
days after written notice of such failure is given by the Executive, (ii) the
assignment to Executive without Executive's prior written consent of duties
substantially inconsistent with her duties and responsibilities as set forth in
Section 2.0 of this Agreement or a material diminution of such duties and
responsibilities without her consent, or (iii) the relocation of Executive's
principal place of employment to a geographic location outside of the greater
New York City area without her prior written consent. A "CHANGE IN OWNERSHIP OR
CONTROL" of the Company shall mean the occurrence of one or more of the
following four events: (i) any person becomes a beneficial owner (as such term
is defined in Rule 13d-3 promulgated under the Securities Exchange Act of 1934,
as amended) directly or indirectly of securities representing more than 50% of
the total number of votes that may be cast for the election of directors of
Cache; (ii) within two years after a merger, consolidation, liquidation or sale
of assets involving Cache, or a contested election of a Cache director, or any
combination of the foregoing, the individuals who were directors of Cache
immediately prior thereto shall cease to constitute a majority of the Board;
(iii) within two years after a tender offer or exchange offer for voting
securities of Cache, the individuals who were directors of Cache immediately
prior thereto shall cease to constitute a majority of the Board; (iv) a sale of
all or substantially all the
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assets of Cache to an unrelated third party, or (v) at least two of Xxxxx Xxxxx,
Xxxxxx Xxxxxxxxx and Xxxxxxxx Xxxxxx cease to be senior executive officers of
Cache. In addition, should the Company terminate Executive's employment for
Cause and Cause is determined, by arbitration in accordance with the provisions
set forth in ANNEX B hereto, not to exist, such termination shall be deemed to
constitute a resignation by Executive for Good Reason.
In the event that Executive's employment is terminated pursuant to this
Section 5.1, Cache shall continue to pay Executive the Base Salary then in
effect for the balance of the term of this Agreement, less withholdings and
other applicable payroll deductions as required by law, in accordance with
Cache's normal pay cycle (the "SEVERANCE PAYMENTS"). The Severance Payments may
in the Company's sole discretion, be payable as set forth in the previous
sentence, or in a lump sum payment. However, Executive shall not be entitled to
any compensation under this Section 5.1 unless Executive executes and delivers
to Cache after notice of termination a general release reasonably acceptable to
Cache by which Executive releases Cache from any obligations and liabilities of
any type whatsoever, except for Cache's obligation to provide the Severance
Payments specified herein and any obligations or Cache or the Purchaser to the
Executive or the Seller under the Asset Purchase Agreement. The parties
acknowledge that the Severance Payments to be provided under this Section 5.1
are partially in consideration for the above-referenced release. Upon any
termination under this Section 5.1, Cache shall have no further obligation to
Executive, her executor, administrators, heirs, assigns or any other persons
claiming under or through her other than to pay to Executive the Severance
Payments specified in this Section 5.1 in exchange for the above-referenced
release and except as otherwise provided in the Asset Purchase Agreement.
Executive agrees that any compensation she is to receive pursuant to this
Section 5.1 shall be reduced by any compensation Executive receives in
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connection with any employment position Executive assumes subsequently to her
termination date. Executive further agrees that, immediately upon her acceptance
of any such employment position, she will notify Cache, in writing, of her
employment position and the compensation associated with the position so that
Cache may reduce the payments to be made to Executive, in accordance with this
Section 5.1.
5.2 In the event that Executive dies during the payment continuation period
referred to in Section 5.1, Cache will have no further liability or obligation
to Executive, her executor, administrators, heirs, assigns or any other persons
claiming under or through her as of the date of Executive's death except as set
forth in Section 4.4 of this Agreement and under the Asset Purchase Agreement.
6.0 ASSIGNMENT OF PROPRIETARY INFORMATION AND RETURN OF PROPERTY
6.1 Executive hereby recognizes the Company's proprietary rights in the
tangible and intangible property of the Company and acknowledges that
notwithstanding the relationship of employment, Executive will not obtain or
acquire through such employment any personal property rights in any of the
property of the Company, including but not limited to, any writing,
communications, manuals, documents, instruments, contracts, agreements, files,
client or customer lists, databases, literature, data, technical information,
know-how, secrets, formulas, products, methods, procedures, processes, devices,
apparatuses, designs, drawings, trademarks, trade names, trade styles, service
marks, logos, copyrights, patents, or other matters which are the property of
the Company.
6.2 Executive agrees that any and all designs, discoveries, inventions,
improvements and innovations (including all data and records pertaining thereto)
(together or individually
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hereinafter referred to as "PROPRIETARY INFORMATION"), whether or not
patentable, copyrightable or reduced to writing, which Executive may have
conceived or made, or may conceive or make, during her employment by the Company
and for a period of two months thereafter, either alone or in conjunction with
others and whether or not during working hours or by the use of the facilities
of the Company, which are related or in any way connected with the business of
the Company or its affiliates, are and shall be the sole and exclusive property
of the Company. Executive shall promptly disclose all Proprietary Information to
the Company, shall execute at the request of the Company any assignments or
other documents the Company may reasonably deem necessary to protect or perfect
its rights therein, and shall assist the Company in any reasonable respect, at
the Company's expense, in obtaining, defending and enforcing the Company's
rights therein. Executive hereby appoints the Company as her attorney-in-fact to
execute on her behalf any assignments or other documents deemed necessary by the
Company to protect or perfect its rights to any Proprietary Information should
Executive fail to provide her reasonable cooperation.
6.3 At any time during or after the term of employment, Executive agrees
that she will fully cooperate with any reasonable requests of the Company, its
attorneys and agents in the preparation and filing of all papers and other
documents as may be required to perfect the Company's rights in and to any of
such Proprietary Information, but not limited to, joining in any proceedings to
obtain letters patent, copyrights, trademarks or other legal rights of the
United States and of any and all other countries on such Proprietary
Information, provided that the Company shall bear the expenses of such
proceedings, and that any patent or other legal right so issued to Executive,
personally shall be assigned by Executive to the Company without change by
Executive.
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6.4 Immediately upon termination of Executive's employment, Executive shall
deliver to Cache all copies of data and information in any way associated with
Cache or the performance of Executive's duties including, but not limited to,
all Confidential Information (as defined in Section 7.1), documents,
correspondence, notebooks, reports, computer programs, drawings, designs, lists
and all other materials and copies thereof (including computer discs and other
electronic media) relating in any way to the business of Cache. Immediately upon
termination of Executive's employment, Executive shall deliver to Cache all
tangible property belonging or licensed to Cache, including, without limitation,
cell phones, facsimile machines, computers, pagers and credit cards.
7.0 CONFIDENTIALITY; NON-COMPETE
7.1 CONFIDENTIALITY AND NONDISCLOSURE OF INFORMATION. During Executive's
tenure with Cache, she has had and will have access to information relating to
the business of Cache, including writings, equipment, processes, drawings,
reports, designs, manuals, invention records, financial information, business
plans, customer lists, the identity of or other facts relating to prospective
customers, inventory lists, arrangements with suppliers and customers, computer
programs, or other material embodying trade secrets, customer or product
information or technical or business information of Cache (all of which,
excluding information and materials which are or become generally available or
known within the industry or to the public other than as a result of disclosure
by Executive or her representatives, hereinafter are referred to as
"CONFIDENTIAL INFORMATION"). Executive acknowledges that the Confidential
Information constitutes a valuable, special and unique asset of Cache as to
which Cache has the right to retain and hereby does retain all of its
proprietary interests. However, access to and knowledge of the Confidential
Information is essential to the performance of Executive's duties. In
recognition of
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this fact, Executive agrees that she will not, during or after her employment
with Cache, disclose any of the Confidential Information to any person, firm,
corporation, association or other entity for any reason or purpose whatsoever
(except as necessary in the performance of her duties during her employment with
Cache) or make use of any of the Confidential Information for her purposes or
those of another. In the event Executive is required or requested by legal
process to disclose any of the Confidential Information, Executive shall provide
Cache with prompt notice of such requirement or request so that Cache may, at
its own expense, seek an appropriate protective order or waive compliance with
the provisions of this Section 7.1 to the extent required to comply with the
request or order. If a protective order is not obtained and/or if reasonable
proof thereof is not given by Cache to Executive by written notice and received
by Executive no later than one (1) business day preceding the date on which such
disclosure is required, Executive may disclose all or a portion of the
Confidential Information to the extent required by such legal process or
permitted by the waiver, or both.
7.2 NON-COMPETE. (a) Executive acknowledges and recognizes the highly
competitive nature of the industry in which the business of Cache ("BUSINESS")
is involved. Accordingly, in consideration of the premises contained herein and
the consideration to be received hereunder, and in consideration of and as an
inducement to Cache to consummate the transaction contemplated by this
Agreement, during the term of her employment as set forth in this Agreement and
for a period of two (2) years following termination without compensation, or
during the period Executive receives compensation pursuant to Section 5.1 (the
"NON-COMPETE PERIOD"), Executive shall not, whether as an agent, employee,
consultant, advisor, representative, stockholder, member, partner, supplier or
joint venturer, directly or indirectly, own, manage, control, participate in,
consult with, render services for, sell to, or in any manner engage in or
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represent any Competitive Business anywhere in the world where Cache products
are sold during the term of Executive's employment hereunder and as of the date
of termination of such employment. As used herein, a "COMPETITIVE BUSINESS"
shall mean a specialty retailer selling apparel and accessories to the female
"missy" customer or selling special occasion wear. The Competitive Businesses as
of the date hereof are listed on ANNEX A, provided that Cache may amend ANNEX A
from time to time to add other companies, which were either inadvertently
omitted or which become Competitive Businesses after closing. Executive
specifically agrees that this covenant is an integral part of the inducement of
Cache to enter into this Agreement, and absent this covenant Cache would not
enter into this Agreement and that Cache shall be entitled to injunctive relief
in addition to all other legal and equitable rights and remedies available to it
in connection with any breach by such person or its applicable affiliates of any
provision of this Section 7.2(a) and that, notwithstanding the foregoing, no
right, power, or remedy conferred upon or reserved or exercised by Cache in this
Section 7.2(a) is intended to be exclusive of any other right, power or remedy,
each and every one of which (now or hereafter existing at law, in equity, by
statute or otherwise) shall be cumulative and concurrent.
(b) Nothing herein shall prohibit Executive from (i) being a passive owner
of not more than five percent (5.0%) of the outstanding stock of any class of a
corporation which is publicly traded, so long as Executive has no active
participation in the business of such corporation, or (ii) performing her duties
pursuant to this agreement.
(c) During the Non-Compete Period, Executive shall not, directly or
indirectly through another person (i) induce or attempt to induce any employee
of Cache or its affiliates to leave the employment of Cache or such affiliate or
in any way interfere with the relationship between Cache or such affiliate, on
the one hand, and any employee thereof, on the other hand;
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(ii) hire any person who was an employee of Cache or an affiliate thereof until
one (1) year after such individual's employment relationship with Cache or such
affiliate has ended; or (iii) induce or attempt to induce any customer,
supplier, vendor, licensee or other business relation of any of Cache or any
affiliate thereof to cease doing business with Cache or such affiliate, or in
any way interfere with the relationship between any such customer, supplier,
vendor, licensee or business relation, on the one hand, and Cache or such
affiliate, on the other hand.
(d) Executive understands that the foregoing restrictions may limit her
ability to earn a livelihood in a business similar to the Business, but
nevertheless believes, that she has received and will receive sufficient
consideration and other benefits as provided hereunder to clearly justify such
restrictions which, in any event (given its education, skills and ability), she
does not believe would prevent her from otherwise earning a living. Executive
has carefully considered the nature and extent of the restrictions placed upon
her by this Agreement, and hereby acknowledges and agrees that the same are
reasonable in time, scope and territory, do not confer a benefit upon Cache or
any of its affiliates disproportionate to the detriment of Executive, are
reasonable and necessary for the protection of Cache and its affiliates and are
an essential inducement to Cache to consummate the transactions contemplated by
this Agreement.
(e) If, at the time of enforcement of this Section 7.2, a court or
arbitrator holds that the restrictions stated herein are unreasonable under the
circumstances then existing, the parties agree that the maximum period, scope or
geographical area reasonable under such circumstances shall be substituted for
the stated period, scope or area determined to be reasonable under the
circumstances by such court or arbitrator, as applicable.
(f) Executive covenants and agrees that she will not seek to challenge the
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enforceability of the covenants contained in this Section 7.2 against Cache or
any of its affiliates, nor will Executive assert as a defense to any action
seeking enforcement of the provisions contained in this Section 7.2 (including
an action seeking injunctive relief) that such provisions are not enforceable
due to lack of sufficient consideration received by Executive so long as (i) no
"event of default" has occurred and is continuing under the Note (as defined in
the Asset Purchase Agreement) or (ii) no default has occurred and is continuing
with respect to the payment of any Earn-Out Payment or any other payment
obligations due and payable under the Purchase Agreement. The parties hereto
agree and acknowledge that money damages would not be an inadequate remedy for
any breach of this Section 7.2. Therefore, in the event of a breach or
threatened breach by Executive of this Section 7.2, Cache or its successors or
assigns may, in addition to other rights and remedies existing in their favor,
apply to any court of competent jurisdiction for specific performance and/or
injunctive or other relief in order to enforce, or prevent any violations of,
the provisions of this Section 7.2 (without posting a bond or other security).
8.0 COOPERATION BY EXECUTIVE
Executive agrees, during and after her employment with Cache, to cooperate
with reasonable requests of Cache in any legal proceedings or with respect to
any regulatory matters relating to the period of Executive's employment with
Cache, provided that any reasonable travel, room and board expenses which
Executive incurs in rendering such cooperation will be reimbursed by Cache.
9.0 CONFIDENTIALITY OF AGREEMENT; NO DISPARAGEMENT
9.1 Both during and after Executive's employment with Cache, Cache and
Executive
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agree to make reasonable efforts to keep the contents of this Agreement
confidential (except with respect to such party's counsel, accountant, financial
advisors and any person requiring such information in connection with a loan
application or credit rating, or any member of Executive's immediate family or
any person sharing Executive's principal residence, in all cases with the
understanding that such persons will maintain the confidentiality of said
Agreement). Executive further agrees, both during and after Executive's
employment with Cache, not to disparage or ridicule Cache or any of Cache's
officers, or any member of Cache's Board.
9.2 Cache agrees that, both during and after Executive's employment with
Cache, it will not disparage or ridicule Executive for any reason whatsoever.
10.0 INJUNCTIVE RELIEF
Executive acknowledges that damage to Cache from Executive's breach of this
Agreement cannot be remedied solely by the recovery of damages, and agrees that
in the event of any breach or threatened breach of any of the provisions of
Sections 6, 7 or 9 of this Agreement, Cache may pursue both injunctive relief
and any and all other remedies available at law or in equity for any such breach
or threatened breach, including the recovery of damages. Cache acknowledges that
damage to Executive from Cache's breach of Section 9.2 of this Agreement cannot
be remedied solely by the recovery of damages, and agrees that in the event of
any breach or threatened breach of Section 9.2, Executive may pursue both
injunctive relief and any and all other remedies available at law or in equity
for any such breach or threatened breach, including the recovery of damages.
11.0 ASSIGNABILITY; BINDING EFFECT
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The terms and provisions of this Agreement shall be binding upon and inure
to the benefit of Cache and its successors and assigns. Any assignment of this
Agreement by Cache shall not operate as a release by Executive of any of Cache's
obligations under this payment for which Cache shall continue to be responsible
notwithstanding such assignment. This Agreement calls for the provision of
personal services and, accordingly, shall not be assignable by Executive.
12.0 MISCELLANEOUS
12.1 This Agreement, along with the Asset Purchase Agreement supersedes all
prior agreements between the parties on the subject hereof. To the extent terms
of this Agreement conflict with the terms of Asset Purchase Agreement, the terms
of Asset Purchase Agreement shall prevail and control. None of the terms of this
Agreement shall be deemed to be waived or modified, nor shall this Agreement be
renewed, or extended, except by an express agreement in writing, signed by
Executive and Cache. There are no representations, promises, warranties,
covenants or undertakings, other than those contained in this Agreement or in
the Asset Purchase Agreement, which agreements represent the entire
understanding of the parties. The failure of a party hereto to enforce, or the
delay by a party hereto to enforce, any of its rights under this Agreement shall
not be construed as a waiver of any such party's rights hereunder. Paragraph
headings contained in this Agreement have been inserted for convenience of
reference only, are not to be considered a part of this Agreement and shall not
affect the interpretation of any provision hereof. In the event any of the
provisions of this Agreement, or any portion thereof, shall be held to be
invalid or unenforceable, the validity and enforceability of the remaining
provisions hereof shall not be affected or impaired but shall remain in full
force and effect. This Agreement shall be governed and construed in accordance
with the laws of the State of New
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York, applicable to agreements made and to be performed therein. Any action
brought in connection herewith shall be brought exclusively in the federal or
New York State courts sitting in the City of New York, County of New York and
each party hereby consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought in an
inconvenient forum. A final judgment in any such action may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
applicable law.
12.2 NOTICES. Any notices under this Agreement shall be in writing and
shall be given by personal delivery, facsimile, by certified or registered
letter, return receipt requested, or a nationally-recognized overnight delivery
service; and shall be deemed given when personally delivered, upon actual
receipt of the facsimile or certified or registered letter, or on the business
day next following delivery to a nationally-recognized overnight delivery
service at the addresses set forth below in this Agreement or to such other
address or addresses as either party shall have specified in writing to the
other party hereto.
IF TO CACHE: IF TO EXECUTIVE:
Xxxxxx X. Xxxxxxxxx Xxxxxxxx Xxxxxx
Cache, Inc. 00 Xxxxxxx Xxxxxx Xxx. 0 X
0000 Xxxxxxxx New York, NY 10013
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
--------
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12.3 SURVIVAL. The provisions of Sections 4, 5, 6, 7, 8 9, 10 and 12 of
this Agreement shall survive the termination of this Agreement, and of
Executive's employment.
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have
executed this Agreement on the date first above written.
CACHE, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx /s/ Xxxxxxxx Xxxxxx
--------------------------------- --------------------------
Name: Xxxxxx X. Xxxxxxxxx XXXXXXXX XXXXXX
Title: President and Chief Operating Officer
Annex A
COMPETITIVE BUSINESSES AS OF THE DATE OF THIS AGREEMENT
AnnTaylor Stores Corp.
Xxxxx X.
Anthropologie
Banana Republic
BCBG Xxx Xxxxx
Bebe Stores, Inc.
Chico's FAS Inc.
Express
Guess? Inc.
J Xxxx
Max Studio
New York & Company Inc.
Talbots Inc.
White House | Black Market
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Annex B
ARBITRATION PROVISIONS
(a) The party invoking arbitration under this provisions shall notify the
other party in writing, and such notice shall propose an arbitrator, who shall
be required to complete a disclosure of interest form;
(b) the parties will confer in good faith to select a mutually agreed upon
arbitrator, but in the event they fail to do so within 10 days of notice to
file, shall notify the American Arbitration Association (the "AAA") in New York
City, New York;
c) the parties shall request that the AAA work with the parties to select a
single arbitrator pursuant to the method and manner contemplated by the AAA's
National Rules for the Resolution of Employment Disputes;
(d) the arbitration shall be conducted in New York City;
(e) the arbitration, including the arbitrator's decision, shall be
completed within 30 days of selection of the arbitrator. The arbitration shall
prepare and distribute findings of fact and set forth the reasons for such
decisions;
(f) the arbitrator shall have no authority to assess punitive or exemplary
damages as to any dispute (i) arising out of or concerning the provisions of
this Agreement or (ii) otherwise arising out of the employment relationship,
except as and unless such damages are expressly authorized by otherwise
applicable and controlling statutes; and
(g) the arbitrator's decision shall be final and binding and enforceable
and not subject to vacatur in any court of competent jurisdiction
