EXHIBIT 10.70
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is dated as of April 1,
1998 and is entered into between X.X. Management Services, Inc., a Delaware
corporation (the "Corporation") and _______________ (the "Executive").
R E C I T A L S
---------------
WHEREAS, the Corporation desires to employ the Executive, and the
Executive desires to be so employed by the Corporation, on the terms and subject
to the conditions hereinafter set forth.
A G R E E M E N T
-----------------
NOW, THEREFORE, the parties hereto have agreed, and do hereby mutually
agree, as follows:
1. Employment. Subject to the other terms and conditions set forth
----------
herein, the Corporation hereby employs the Executive, and the Executive agrees
to be employed by the Corporation, as _______________________________ for a term
commencing on April 1, 1998 and continuing until the earlier of March 31, 2001
or the date such employment shall have been terminated as provided in Section 3
hereof. Beginning April 1, 2001, this Agreement shall renew automatically for
an additional one year term until the Corporation gives Executive written notice
at least 14 calendar days prior to the end of a term, of its intention to
terminate this Agreement; provided, however, that this Agreement may terminate
earlier than the end of a term as provided in Section 3 hereof. In his capacity
as _________________________________, the Executive shall faithfully perform to
the best of his ability and in a satisfactory manner all services and acts
necessary or advisable as may be assigned to him by the Board of Representatives
(the "Partnership Board") of Brylane, L.P., a Delaware limited partnership and
the parent entity of the Corporation (the "Partnership"). Throughout the term
hereof the Executive shall, except as may from time to time be otherwise agreed
in writing by the Corporation, devote his full-time working hours to his duties
hereunder.
2. Compensation.
------------
(a) For all services to be rendered by Executive hereunder, and
for all rights granted the Corporation hereunder, the Executive shall be paid by
the Corporation a base salary at the annual rate of $________ for each 12-month
period of the term hereof, prorated for any portion thereof, payable in
substantially equal bimonthly installments, less required withholdings. This
base salary shall be reviewed for any adjustments annually by the Board of
Directors of the Corporation (the "Corporation Board") or, at the Corporation
Board's option, a compensation committee thereof (the "Committee"), provided
that any adjustments shall be in the sole discretion of the Corporation Board or
the Committee.
(b) The Executive shall be entitled to paid vacations, personal
and sick days consistent with the policies of the Corporation for management
employees. The Executive shall receive such other compensation as shall be
approved by the Corporation Board and shall participate in all fringe benefits
(including, without limitation, group medical, life, disability and accidental
death and dismemberment insurance), bonus and benefit plans which shall be
generally available from time to time to management employees of the
Corporation.
(c) The Executive shall be reimbursed in accordance with the
policies of the Corporation as adopted by the Corporation Board from time to
time for his reasonable travel, entertainment, business, meeting and similar
expenditures, incurred for the benefit of the Corporation and subject to
approval of the Chief Executive Officer of the Corporation or the Corporation
Board. As an additional condition to the reimbursement of such expenses by the
Corporation to the Executive, the Executive shall provide the Corporation with
copies of all available invoices and receipts, and otherwise account to the
Corporation in sufficient detail and with adequate documentation to allow the
Corporation to confirm the business nature of the expenses and claim an income
tax deduction for such paid items, if such items are deductible.
(d) The Partnership agrees that the Partnership shall provide the
Executive with a benefits package substantially similar (which is not materially
less favorable to the Executive in the aggregate) to those coverages and
benefits provided or made available to the Executive (and his dependents)
immediately prior to the consummation of the transactions contemplated by those
certain Stock Purchase Agreements each dated as of February 19, 1998, among FS
Equity Partners II, L.P., a California limited partnership, FS Equity Partners
III, L.P., a Delaware limited partnership, FS Equity Partners International,
L.P., a Delaware limited partnership and Pinault Printemps-Redoute, S.A., a
company organized under the laws of France ("PPR") and between M&P Distributing
Company, a Nevada corporation and PPR. In addition, the Partnership shall
provide a bonus or incentive compensation plan which provides the Executive with
the opportunity to earn the right to be paid additional compensation as set
forth on Exhibit A hereto. This subsection (d) shall not be implemented so as to
---------
limit any rights or benefits to which the Executive or his dependents may be
entitled under any employee benefit plan maintained by or contributed to by the
Corporation.
3. Termination.
-----------
(a) The employment of the Executive hereunder may be terminated
by the Corporation on at least 30 days' prior written notice if the Corporation
Board determines that the Executive has become permanently disabled (as
hereinafter defined). Such written notice shall provide reasonable detail
regarding the basis for such determination. The Executive shall be deemed to be
"permanently disabled," as used in this subsection, if the Executive has been
substantially unable to discharge his duties and obligations hereunder by reason
of illness, accident or disability for a period of 180 days in any twelve-month
period.
(b) The employment of the Executive hereunder may be terminated
forthwith by the Corporation for cause (as hereinafter defined) upon written
notice from the Corporation Board to the Executive. Such written notice shall
provide reasonable detail regarding the basis for such determination. The
Corporation shall have "cause" to terminate the Executive, as used in this
subsection, only if the Corporation Board shall determine that the Executive
has, (i) refused or failed within a reasonable period of time to carry out any
reasonable and material direction from the Chief Executive Officer of the
Corporation, the Corporation Board or the Partnership Board (other than a
failure resulting from the Executive's incapacity due to physical or mental
illness), (ii) been guilty of a material and willful breach of the terms of this
Agreement, (iii) demonstrated gross negligence or willful misconduct in the
execution of his assigned duties, (iv) been convicted of a felony or other
serious crime involving moral turpitude, (v) engaged in fraud, embezzlement or
other illegal conduct to the detriment of the Corporation, (vi) intentionally
imparted confidential information relating to the Corporation to a third party,
other than in the course of carrying out the Executive's duties, or (vii)
materially and willfully breached any of his obligations pursuant to the
Management Stock Subscription Agreement dated as of February 26, 1997 between
Brylane Inc., a Delaware corporation and the parent entity of the Partnership,
and the Executive if such breach has not been cured 5 days after receipt of
written notice to the Executive.
(c) The employment of the Executive hereunder shall be
automatically terminated on the date of the Executive's death.
2.
(d) In addition to the circumstances set forth in subsections
(a), (b) and (c) of this Section 3, the Corporation may terminate the
Executive's employment for any reason or no reason and with or without cause
upon 30 days' prior written notice to the Executive.
(e) The Executive may terminate his employment hereunder
forthwith at any time for good reason (as hereinafter defined) upon written
notice to the Corporation. For purposes of this subsection, "good reason" shall
mean the occurrence of any of the following: (i) a reduction by the Corporation
in the Executive's base salary herein provided or as the same may be increased
from time to time; (ii) any relocation by the Corporation of Executive's
principal place of employment of more than 50 miles from the place where
Executive's principal residence was located on the date Executive gives notice
of such termination; or (iii) a material and willful breach by the Corporation
of any of its obligations to the Executive hereunder, including, without
limitation, the Corporation's failure to obtain the written assumption agreement
described in Section 10(a) if such agreement is not obtained within 5 days after
written notice that a written assumption agreement required under Section 10(a)
has not been obtained.
(f) In addition to the circumstances described in subsection
(e) of this Section 3, the Executive may terminate his employment hereunder for
any reason or no reason upon 30 days' prior written notice to the Corporation.
(g) If the Executive's employment is terminated pursuant to
this Section 3, the Executive shall be entitled to, and the Corporation's
obligation hereunder shall be limited to, (i) the payment of the compensation
accrued under Section 2 hereof to the effective date of such termination and
(for any termination other than pursuant to Section 3(b)) a pro rata portion of
any bonuses or incentive compensation payable with respect to any period
commencing prior to the termination date, and (ii) in the case of termination
under subsections (a), (c), (d) or (e) of this Section 3, the additional
compensation provided in subsection (h) of this Section 3.
(h) (i) if the Executive's employment is terminated by the
Corporation pursuant to subsection (a) of this Section 3 the Executive will get
the benefit of any Corporation disability plans; provided, however, that for a
period of 12 consecutive months after the effective date of the termination the
Corporation will pay the Executive the difference (if any) between the level of
annualized salary provided for in Section 2 hereof, less required withholdings,
and the amounts provided under such disability plans; or
(ii) if the Executive's employment is automatically
terminated pursuant to subsection (c) of this Section 3, the Corporation shall
continue to pay to the Executive (or, if applicable, to his executor,
administrator or heirs) the Executive's salary in equal monthly installments at
the level of annualized salary provided for in Section 2 hereof being paid to
the Executive at the time of such termination, less required withholdings, for a
period of 12 consecutive months after the effective date of the termination; and
(iii) if the Executive's employment is terminated by the
Corporation pursuant to subsection (d) of this Section 3 or if the Executive
terminates his employment pursuant to subsection (e) of this Section 3, the
Corporation shall continue to pay to the Executive the Executive's salary in
equal monthly installments at the level of annualized salary provided for in
Section 2 hereof being paid to the Executive at the time of such termination,
less required withholdings, for the greater of (A) one year after the effective
date of the termination, and (B) the period after the effective date of the
termination, through and including the last day of the then effective term of
this Agreement.
(i) The Executive shall not be required to mitigate the amount
of any payment provided for in this Section 3 by seeking other employment or
otherwise; but the amount of any payment provided for in this Section 3, other
than amounts set forth in subsection (g)(i) of this Section 3, shall be reduced
by any
3.
compensation earned by the Executive as the result of employment by another
employer after the effective date of termination of the Executive's employment
by the Corporation.
(j) Nothing in this Agreement shall be deemed a release or
waiver of right to any medical or other employee benefits available to the
Executive on or after the effective date of termination of the executive's
employment by the Corporation under federal, state or local law which provides
for the continuation of any medical or other employee benefits after such
termination date.
4. Noncompetition. If the Executive is terminated by the Corporation
--------------
for cause in accordance with Subsection 3(b) hereof, or if the Executive
terminates his employment other than for "good reason" in accordance with
Subsection 3(e) hereof, then except as provided in the next sentence, for a
period of 12 months after such termination, the Executive will not carry on (as
an employee, agent, consultant, independent contractor, stockholder, partner,
owner or otherwise) any trade or business competing with the then trade or
business of the Corporation (or its affiliates) in any state in which the
Corporation (or its affiliates) is carrying on such trade or business as of the
effective date of such termination. The foregoing provisions of this Section 4
notwithstanding, the Executive may own not more than 5% of the issued and
outstanding shares of any class of securities of an issuer whose securities are
listed on a national securities exchange or registered pursuant to Section 12(g)
of the Securities Exchange Act of 1934, as amended.
5. Trade Secrets. During the term of this Agreement and at all
-------------
times thereafter, the Executive shall hold in secrecy all trade secrets and
confidential information relating to the Corporation's (and its affiliates')
business and affairs that may come to his knowledge or have come to his
knowledge while employed by the Corporation or its predecessors (excluding
information that is or becomes publicly known or available for use through no
fault of the Executive), including but not limited to (i) matters of a business
nature, such as information about costs, profits, markets, sales, lists of
customers and other information of a similar nature, (ii) plans or strategies
for development of the business of the Corporation and (iii) matters of a
technical nature. Except as required in the performance of his duties to the
Corporation under this Agreement, the Executive shall not use for his own
benefit or disclose to any person, directly or indirectly, such matters unless
such use or disclosure has been specifically authorized in writing by the
Corporation in advance.
6. Executive's Representation. The Executive shall be, and he
--------------------------
represents that he is, free to enter into this Agreement and not under any
contractual restraint which would prohibit his satisfactorily performing his
duties to the Corporation hereunder.
7. Governing Law. This Agreement shall be governed by and construed
-------------
and enforced in accordance with the internal substantive laws (and not the laws
of conflicts of laws) of the State of New York.
8. Costs. If either party brings any legal action against the other
-----
to enforce its rights under this Agreement, the prevailing party in such dispute
shall be entitled to recover from the other party all reasonable fees, costs and
expenses actually incurred in enforcing its rights under this Agreement
including, without limitation, the reasonable fees and expenses of attorneys,
accountants and expert witnesses, which shall include, without limitation, all
fees, costs and expenses of appeals and of enforcement.
9. Entire Agreement. This Agreement constitutes the whole agreement
----------------
of the parties hereto in reference to any employment of the Executive by the
Corporation and in reference to the subject matter hereof, and all prior
agreements, promises, representations and understandings relative thereto are
merged herein.
4.
10. Assignability.
-------------
(a) In the event that the Corporation shall merge or consolidate with
any other corporation, partnership or business entity or all or substantially
all the Corporation's business or assets shall be transferred in any manner to
any other corporation, partnership or business entity, including (without
limitation) any entity that succeeds to the business of the Corporation pursuant
to Article X of that certain Partnership Agreement dated August 30, 1993, as
amended, such successor shall thereupon succeed to, and be subject to, all
rights, interests, duties and obligations of, and shall thereafter be deemed for
all purposes hereof to be, the Corporation hereunder and the Corporation shall
obtain a written assumption agreement from such successor prior to completion of
any such merger, consolidation or sale of assets.
(b) This Agreement is personal in nature and neither of the parties
hereto shall, without the written consent of the other party hereto, assign or
transfer this Agreement or any rights or obligations hereunder, except by
operation of law or pursuant to the terms of Section 10(a).
(c) Nothing expressed or implied herein is intended or shall be
construed to confer upon or give to any person, other than the parties hereto,
any right, remedy or claim under or by reason of this Agreement or of any term,
covenant or condition hereof.
11. Remedies. Any material breach, violation or evasion by the
--------
Executive of the terms of this Agreement, including specifically, but not
limited to, Sections 4 and 5, will result in immediate and irreparable injury
and harm to the Corporation, and will cause damage to the Corporation in amounts
difficult to ascertain. Accordingly, the Corporation shall be entitled to, and
Executive hereby consents to the entry of, the remedies or injunction and
specific performance, or either of such remedies, as well as all other remedies
to which the Corporation may be entitled, at law, in equity or otherwise.
12. Amendments; Waivers. This Agreement may be amended, modified,
-------------------
superseded, canceled, renewed or extended and the terms or covenants hereof may
be waived only by a written instrument executed by the parties hereto or, in the
case of a waiver, by the party waiving compliance. The failure of any party at
any time or times to require performance of any provision hereof shall in no
manner affect the right at a later time to enforce the same. No waiver by any
party of the breach of any term or provision contained in this Agreement,
whether by conduct or otherwise, in any one or more instances, shall be deemed
to be, or construed as, a further or continuing waiver of any such breach, or a
waiver of the breach of any other term or covenant contained in this Agreement.
13. Notice. All notices, requests and other communications hereunder
------
shall be in writing and, if given by facsimile, telegram, telecopy or telex,
shall be deemed to have been validly served, given or delivered when sent, if
given by personal delivery, shall be deemed to have been validly served, given
or delivered upon actual delivery and, if mailed or delivered by overnight
courier, shall be deemed to have been validly served, given or delivered when
deposited in the United States mail, as registered or certified mail, with
proper postage prepaid, or when deposited with the courier service, and
addressed to the party or parties to be notified, at the following addresses (or
such other address(es) as a party may designate for itself by like notice):
If to the Corporation:
X.X. Management Services, Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Senior Vice President - Human Resources
5.
If to the Executive:
_____________________________
_____________________________
_____________________________
14. Severability. Any provision of this Agreement that is prohibited
------------
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective only to the extent of such prohibition or unenforceability without
invalidating or affecting the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. To the extent
that a restrictive covenant contained herein may, at any time, be more
restrictive than permitted under the laws of any jurisdiction where this
Agreement may be subject to review and interpretation, the terms of such
restrictive covenant shall be those allowed by law and the covenant shall be
deemed to have been revised accordingly. Each and every term of this Agreement
shall be enforced to the fullest extent permitted by law.
6.
15. Counterparts. This Agreement may be executed in two counterparts,
------------
each of which shall be deemed an original and both of which together shall be
deemed one Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
The "Corporation": X.X. MANAGEMENT SERVICES, INC.
By: _____________________________________
Name :
Title:
The "Executive":
___________________________________________
Signature
The undersigned hereby guarantees the performance of
this Agreement by X.X. Management Services, Inc., a
Delaware corporation
BRYLANE, L.P.
_____________________________________
Name:
Its:
7.
EXHIBIT A
Brylane has a semi-annual performance bonus program based upon goals
relating to Brylane's operating profit. Such goals will be established at the
beginning of each six-month season based upon a review by the Partnership Board
of management's operating budget for that season. Each participant in such
program may receive a bonus for each semi-annual bonus period equal to a certain
percentage of his or her annual salary. The actual bonus amount will be based
upon the extent to which the operating profit goals for that season are met or
exceeded. Operating profit shall exclude any charge resulting from the
formation of the Partnership, such as the write-up of inventory to fair market
value on August 30, 1993 and the amortization of the cost of intangibles
resulting from the purchase accounting relating to the acquisition. Except as
otherwise determined by the Partnership Board, or the Committee, in its sole
discretion, operating profit for any given six-month season will also exclude
any and all operating profit that is attributable to transactions entered into
by Brylane or its affiliates during that six-month season. The Executive's
individual participant percentage under such plan will be ___%, subject to any
adjustments by the Partnership Board, or the Committee, as it may see fit in its
sole discretion.
8.
