EMPLOYMENT AGREEMENT
Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this Agreement) is entered as of June 28, 2013 (the Effective Date), between Claires Stores, Inc., a Florida corporation (the Company), and J. Per Brodin (the Executive).
WHEREAS, the Executive was hired by the Company in February 2008.
WHEREAS, in February 2008, the Executive and the Company agreed to certain terms and conditions regarding the Executives employment, and the Company and the Executive desire to document and update these provisions in writing for the avoidance of doubt in the future.
WHEREAS, the Executive currently serves as Global Executive Vice President and Chief Financial Officer of the Company and Claires Inc., the parent of the Company (Parent).
WHEREAS, the Company and the Executive have agreed to the terms and conditions set forth herein and the Executive has agreed to his continued employment under these terms and conditions.
NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
1. | Employment of Executive; Duties. |
1.1 Title. During the Employment Period (as defined in Section 2 hereof), the Executive shall serve as Global Executive Vice President and Chief Financial Officer of the Company and the Parent.
1.2 | Duties. |
(a) During the Employment Period, the Executive shall have such executive and managerial powers and duties as may be assigned to the Executive by the Chief Executive Officer or the Board of Directors (the Board) of the Company or Parent, commensurate with the Executives position as Global Executive Vice President and Chief Financial Officer, and shall report to the Chief Executive Officer or the Board. The Board or the Chief Executive Officer may adjust the duties and responsibilities of the Executive, notwithstanding the specific title set forth in Section 1.1 hereof, based upon the Companys or Parents needs from time to time. Except for sick leave, reasonable vacations and excused leaves of absence, the Executive shall, throughout the Employment Period, devote the whole of the Executives working time, attention, knowledge and skills faithfully, and to the best of the Executives ability, to the duties and responsibilities of the Executives positions in furtherance of the business affairs and activities of the Company and its subsidiaries and Affiliates (as defined in Section 5.4(a) hereof.
(b) During the Employment Period, the Executives principal place of employment shall be at the Companys office in Hoffman Estates, Illinois. The Executive shall maintain his principal residence in the greater Chicago metropolitan area.
(c) The Executive shall at all times be subject to, comply with, observe and carry out (i) the Companys rules, regulations, policies and codes of ethics and/or conduct applicable to its employees generally and in effect from time to time and (ii) such rules, regulations, policies, codes of ethics and/or conduct, directions and restrictions as the Board may from time to time reasonably establish or approve generally for senior executive officers of the Company.
2. Term of Employment. The Executives employment commenced on February 11, 2008. This Agreement shall govern the terms and conditions of the Executives continued employment by the Company, and the termination thereof, during the period that commences on the Effective Date and ends on June 30, 2014 (the Term), provided that the Term shall automatically be extended for successive one year periods unless either party provides written notice (a Notice of Non-Renewal) at least ninety (90) days prior to the expiration of the Term that the Term shall not be further extended. The portion of the Term during which the Executive is actually employed by the Company under this Agreement is referred to as the Employment Period.
3. | Compensation and General Benefits. |
3.1 | Base Salary. |
(a) As of the Effective Date, the Executives base salary is at a rate equal to $ 555,000 per annum (such base salary, as may be adjusted from time to time pursuant to Section 3.1(b), is referred to herein as the Base Salary). The Executives Base Salary, less amounts required to be withheld under applicable law, shall be payable in equal installments in accordance with the Companys normal payroll practices and procedures in effect from time to time for the payment of salaries to officers of the Company, but in no event less frequently than monthly.
(b) The Board or its Compensation Committee with input from the Chief Executive Officer shall review the Executives performance on an annual basis and, based on such review, may change the Base Salary, as it, acting in its sole discretion, shall determine to be reasonable and appropriate.
3.2 Bonus. Pursuant to the Companys Annual Incentive Plan (the AIP), with respect to each fiscal year of the Company that ends during the Employment Period, the Executive shall be eligible to receive from the Company an annual performance bonus (the Annual Bonus), based upon the attainment of annual goals established by the Board or the Compensation Committee of the Board, which may include comparable store sales, earnings before interest, taxes, depreciation and amortization (EBITDA) and/or cash generation goals. The Annual Bonus shall be prorated based on the actual period of
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employment. Currently, the applicable percentages for threshold and maximum levels of performance are twenty-five percent (25%) and one hundred seventy five percent (175%), respectively, of Executives Base Salary paid during the applicable fiscal year if such levels of performance established by the Board or Compensation Committee of the Board are met. Any Annual Bonus earned shall be payable in full as soon as reasonably practicable following the determination thereof, which is typically May of the following year (unless administratively impracticable to do so because the Companys results for the applicable year had not yet been finalized) and in accordance with the Companys normal payroll practices and procedures. Except as otherwise expressly provided in the AIP and Section 4 hereof, any Annual Bonus (or portion thereof) payable under this Section 3.2 shall not be earned and payable unless the Executive is employed by the Company on the day the Annual Bonus is paid by the Company in accordance with the Companys normal payroll practices and procedures.
3.3 Expenses. In addition to any amounts to which the Executive may be entitled pursuant to the other provisions of this Section 3 or elsewhere herein, the Executive shall be entitled to receive reimbursement from the Company for all reasonable and necessary expenses incurred by the Executive during the Term in performing the Executives duties hereunder on behalf of the Company or the Company Parent, subject to, and consistent with, the Companys policies for expense payment and reimbursement, in effect from time to time.
3.4 | Benefits. |
(a) During the Employment Period, in addition to any amounts to which the Executive may be entitled pursuant to the other provisions of this Section 3 or elsewhere herein, the Executive shall be entitled to participate in, and to receive benefits under, any benefit plans, arrangements or policies made available by the Company to its senior executive officers generally, subject to and on a basis consistent with the terms, conditions and overall administration of each such plan, arrangement or policy; provided that the Executive shall be entitled to no less than four weeks of vacation to be taken in accordance with Company policy.
(b) During the Employment Period, the Company shall provide the Executive with a monthly automobile allowance, which as of the Effective Date, shall be $850.
3.5 | Employee Stock Options. |
(a) Claires, Inc. has adopted a stock option plan that has been filed publicly with the Securities and Exchange Commission (the Plan) for the grant of stock options to employees or directors of the Company or of any subsidiary of the Company to purchase shares of Common Stock of Claires, Inc. (the Common Stock).
(b) The Executive shall be eligible for grants of options under the Plan, as determined by the Board or the Compensation Committee of the Board.
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4. | Termination. |
4.1 General. The employment of the Executive hereunder (and the Employment Period) shall terminate as provided in Section 2 hereof, unless earlier terminated in accordance with the provisions of this Section 4.
4.2 | Death or Disability of the Executive. |
(a) The employment of the Executive hereunder (and the Employment Period) shall terminate upon (i) the death of the Executive and (ii) at the option of the Company, upon not less than fifteen (15) days prior written notice to the Executive or the Executives personal representative or guardian, if the Executive suffers a Total Disability (as defined in Section 4.2(b) hereof). Upon termination for death or Total Disability, the Company shall pay to the Executive, guardian or personal representative, as the case may be, a prorated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had the Executive worked the full year during which the termination occurred, which bonus shall be based on actual performance of the Company for the year of such termination. Any bonus shall be payable as soon as reasonably practicable following the determination thereof, but in no event later than April 15 of the following year (unless administratively impracticable to do so because the Companys results for the applicable year had not yet been finalized), and in accordance with the Companys normal payroll practices and procedures.
(b) For purposes of this Agreement, Total Disability shall mean (i) if the Executive is subject to a legal decree of incompetency (the date of such decree being deemed the date on which such disability occurred), (ii) the written determination by a physician selected by the Company and acceptable to Executive (which acceptance shall not be unreasonably withheld), (which expense shall be paid by the Company) that, because of a medically determinable disease, injury or other physical or mental disability, the Executive is unable substantially to perform, with or without reasonable accommodation, the material duties of the Executive required hereby, and that such disability has lasted for ninety (90) consecutive days or any one hundred twenty (120) days during the immediately preceding twelve (12)-month period or is, as of the date of determination, reasonably expected to last six (6) months or longer after the date of determination, in each case based upon medically available reliable information or (iii) Executives qualifying for benefits under the Companys long-term disability coverage, if any. In conjunction with determining mental and/or physical disability for purposes of this Agreement, the Executive hereby consents to (x) any examinations that the Company reasonably determines are relevant to a determination of whether the Executive is mentally and/or physically disabled or are required by the Company physician, (y) furnish such medical information as may be reasonably requested and (z) waive any applicable physician patient privilege that may arise because of such
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examination. All expenses incurred by the Executive under this subsection shall be paid by the Company.
4.3 Termination by the Company Without Cause, Non-Renewal of the Agreement by the Company, Resignation by the Executive For Good Reason
(a) The Company may terminate the Executives employment without Cause (as defined in Section 4.3(f)), and thereby terminate the Executives employment (and the Employment Period) under this Agreement at any time with no requirement for notice to the Executive. In addition, the Company may terminate the Executive upon expiration of the Term by providing a Notice of Non-Renewal pursuant to Section 2 hereof.
(b) The Executive may resign, and thereby terminate the Executives employment (and the Employment Period), at any time for Good Reason (as defined in Section 4.3(e) hereof), upon not less than thirty (30) days prior written notice to the Company specifying in reasonable detail the reason therefore; provided, however, that the Company shall have a reasonable opportunity to cure any such Good Reason (to the extent possible) within such thirty (30) day notice period after the Companys receipt of such notice; and provided further that, if the Company is not seeking to cure, the Company shall not be obligated to allow the Executive to continue working during such period and may, in its sole discretion, accelerate such termination of employment (and the Employment Period) to any date during such period. Executive may not terminate employment under this Agreement for Good Reason regarding any of the Companys acts or omissions of which Executive had actual notice for sixty (60) days or more prior to giving notice of termination for Good Reason.
(c) In the event the Executives employment is terminated pursuant to this Section 4.3, then, subject to Section 4.3(d) hereof, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate in effect prior to such termination) for a twelve (12)-month period following such date of termination, with all such amounts payable in accordance with the Companys normal payroll practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company.
(ii) In the event the Executives employment is terminated pursuant to this Section 4.3 without Cause, and if the Company has previously effected reductions in the Executives Base Salary and the base salary of all senior executives of the Company, which reductions were substantially similar, then the Base Salary rate for purposes of Section 4.3(c)(i) hereof shall be the Base Salary rate in effect immediately prior to such reductions.
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(iii) If the Executive elects continuation coverage (with respect to the Executives coverage and/or any eligible dependent coverage) under the Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA Continuation Coverage) with respect to the Companys group health insurance plan, the Executive shall be responsible for payment of the monthly cost of COBRA Continuation Coverage. Unless prohibited by law, the Company shall reimburse the Executive for any portion of the monthly cost of COBRA Continuation Coverage that exceeds the amount of the monthly health insurance premium (with respect to the Executives coverage and/or any eligible dependent coverage) payable by the Executive immediately prior to the date of Executives termination, such reimbursements to continue for a period of twelve (12) months. The Company shall pay the reimbursements on a monthly basis in accordance with the Companys normal payroll practices and procedures.
(d) As a condition precedent to the Executives right to receive the benefits set forth in Section 4.3(c) hereof, the Executive agrees to execute, no later than thirty (30) days following the date of the Executives termination of employment, a release of the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, insurers, representatives and successors from and against any and all claims that the Executive may have against any such Person (as defined in Section 5.4(f) hereof) relating to the Executives employment by the Company and the termination thereof, in the form attached hereto as Exhibit A, as such form may be amended from time to time to comply with changes in law. In addition, the Executive agrees that his right to receive and retain the benefits set forth in Section 4.3(c) hereof shall be conditional upon his continuing compliance with the restrictive covenants contained in Section 5.
(e) For purposes of this Agreement, the Executive would be entitled to terminate the Executives employment for Good Reason if without the Executives prior written consent:
(i) the Company fails to comply with any material obligation imposed by this Agreement;
(ii) the Company effects a reduction in the Executives Base Salary for his duties as Global Executive Vice President and Chief Financial Officer, unless all senior executives of the Company receive a substantially similar reduction in base salary; or
(iii) the Company requires the Executive to be based (excluding regular travel responsibilities) at any office or location more than 75 miles outside of Hoffman Estates, Illinois.
(f) For purposes of this Agreement, Cause means the occurrence of any one or more of the following events:
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(i) an act of fraud, embezzlement, theft or any other material violation of law that occurs during or in the course of Executives employment with the Company;
(ii) intentional damage to the Companys assets;
(iii) intentional disclosure of the Companys confidential information contrary to the Companys policies;
(iv) material breach of Executives obligations under this Agreement;
(v) intentional engagement in any activity which would constitute a breach of Executives duty of loyalty or of the Executives obligations under this Agreement;
(vi) material breach of any material policy of the Company or Company Parent that has been communicated to the Executive in writing;
(vii) the willful and continued failure to substantially perform Executives duties for the Company (other than as a result of incapacity due to physical or mental illness); or
(viii) willful conduct by Executive that is demonstrably and materially injurious to the Company, monetarily or otherwise.
For purposes of this Section 4.3(f), an act, or a failure to act, shall not be deemed willful or intentional unless it is done, or omitted to be done, by Executive in bad faith or without a reasonable belief that Executives action or omission was in the best interest of the Company. Failure to meet performance standards or objectives, by itself, does not constitute Cause.
(g) Notwithstanding the other provisions of this Section 4.3, all payments due and payable in accordance with this Section 4.3(c)(i) that have not yet been paid to Executive shall be reduced by an amount equal to any amounts that the Executive receives in connection with any other employment or consulting arrangement during the applicable severance period referenced herein. The Executive shall notify the Company in writing within three (3) business days of accepting any new employment or consulting arrangement that would be the subject of such offset.
4.4 Termination For Cause, Voluntary Resignation Other Than For Good Reason or Election Not to Extend the Term by the Executive.
(a)(i) the Company may, upon action of the Board, terminate the employment of the Executive (and the Employment Period) at any time for Cause, (ii) the Executive may voluntarily resign other than for Good Reason and thereby terminate the Executives employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days
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prior written notice or (iii) the Executive may provide a Notice of Non-Renewal pursuant to Section 2 hereof, in which case the Executives employment will terminate upon expiration of the Term then in effect at the time of such Notice of Non-Renewal.
(b) Upon termination by the Company for Cause, by the Executive as the result of resignation for other than for Good Reason, or by the Executive at the end of the Term following a Notice of Non-Renewal provided by the Executive, the Executive shall be entitled to receive all amounts of earned but unpaid Base Salary and benefits accrued and vested through the date of such termination.
(c) Before the Company may terminate the Executive for Cause pursuant to Section 4.4(a)(i), the Board shall deliver to the Executive a written notice of the Companys intent to terminate the Executive for Cause, and the Executive shall have been given a reasonable opportunity to cure any such acts or omissions (which are susceptible of cure as reasonably determined by the Board by majority vote thereof) within thirty (30) days after the Executives receipt of such notice.
4.5 Resignation from Officer Positions. Upon the termination of the Executives employment for any reason (unless otherwise agreed in writing by the Company and the Executive), the Executive will be deemed to have resigned, without any further action by the Executive, from any and all officer, director and/or director positions that the Executive, immediately prior to such termination, (a) held with the Company or any of its Affiliates and (b) held with any other entities at the direction of, or as a result of the Executives affiliation with, the Company or any of its Affiliates. If for any reason this Section 4.5 is deemed to be insufficient to effectuate such resignations, then Executive will, upon the Companys request, execute any documents or instruments that the Company may deem necessary or desirable to effectuate such resignations.
4.6 Section 409A of the Code. Notwithstanding anything to the contrary in this Agreement, the parties mutually desire to avoid adverse tax consequences associated with the application of Section 409A of the Internal Revenue Code of 1986, as amended (the Code) to this Agreement and agree to cooperate fully and take appropriate reasonable actions that preserve to the Executive, to the maximum extent practical, the full economic benefit of this Agreement while avoiding any such consequences under Section 409A of the Code, including delaying payments and reforming the form of the Agreement if such action would reduce or eliminate taxes and/or interest payable as a result of Section 409A of the Code. In this regard, notwithstanding anything to the contrary in this Section 4, to the extent necessary to comply with Section 409A of the Code, any payment required under this Section 4 shall be deferred for a period of six (6) months, regardless of the circumstances giving rise to or the basis for such payment.
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5. | Confidentiality, Work Product and Non-Competition and Non-Solicitation. |
5.1 | Confidentiality. |
(a) In connection with the Executives employment with the Company, the Company has and will continue to provide the Executive with access to Confidential Information (as defined in Section 5.4(d) hereof) in support of the Executives employment duties. The Executive recognizes that the Companys business interests require a confidential relationship between the Company and the Executive and the fullest practical protection and confidential treatment of all Confidential Information. At all times, both during and after the Employment Period, the Executive shall not directly or indirectly: (i) appropriate, download, print, copy, remove, use, disclose, divulge, communicate or otherwise Misappropriate (as defined in Section 5.4(e) hereof), any Confidential Information, including, without limitation, originals or copies of any Confidential Information, in any media or format, except for the Companys benefit within the course and scope of the Executives employment or with the prior written consent of a majority of the Board; or (ii) take or encourage any action that would circumvent, interfere with or otherwise diminish the value or benefit of the Confidential Information to any of the Company Parties (as defined in Section 5.4(b) hereof).
(b) All Confidential Information, and all other information and property affecting or relating to the business of the Company Parties within the Executives possession, custody or control, regardless of form or format, shall remain, at all times, the property of the respective Company Parties, the appropriation, use and/or disclosure of which is governed and restricted by this Agreement.
(c) The Executive acknowledges and agrees that:
(i) the Executive occupies a unique position within the Company, and the Executive is and will be intimately involved in the development and/or implementation of Confidential Information;
(ii) in the event the Executive breaches this Section 5.1 with respect to any Confidential Information, such breach shall be deemed to be a Misappropriation of such Confidential Information; and
(iii) any Misappropriation of Confidential Information will result in immediate and irreparable harm to the Company.
(d) Upon receipt of any formal or informal request, by legal process or otherwise, seeking the Executives direct or indirect disclosure or production of any Confidential Information to any Person, the Executive shall promptly and timely notify the Company and provide a description and, if applicable, hand deliver a copy of such request to the Company. The Executive irrevocably nominates and appoints the Company as the Executives true and lawful
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attorney-in-fact to act in the Executives name, place and stead to perform any act that the Executive might perform to defend and protect against any disclosure of Confidential Information.
(e) At any time the Company may request, during or after the Employment Period, the Executive shall deliver to the Company all originals and copies of Confidential Information and all other information and property affecting or relating to the business of the Company Parties within the Executives possession, custody or control, regardless of form or format, including, without limitation any Confidential Information produced by the Executive. Both during and after the Employment Period, the Company shall have the right of reasonable access to review, inspect, copy and/or confiscate any Confidential Information within the Executives possession, custody or control.
(f) Upon termination or expiration of this Agreement, the Executive shall immediately return to the Company all Confidential Information, and all other information and property affecting or relating to the business of the Company Parties, within the Executives possession, custody or control, regardless of form or format, without the necessity of a prior Company request.
(g) During the Employment Period, the Executive represents and agrees that the Executive will not use or disclose any confidential or proprietary information or trade secrets of others, including but not limited to former employers, and that the Executive will not bring onto the premises of the Company or access such confidential or proprietary information or trade secrets of such others, unless consented to in writing by said others, and then only with the prior written authorization of the Company.
5.2 | Work Product/Intellectual Property. |
(a) Assignment. The Executive hereby assigns to the Company all right, title and interest to all Work Product (as defined in Section 5.4(h) hereof) that (i) relates to any of the Company Parties actual or anticipated business, research and development or existing or future products or services, or (ii) is conceived, reduced to practice, developed or made using any equipment, supplies, facilities, assets, information or resources of any of the Company Parties (including, without limitation, any intellectual property rights).
(b) Disclosure. The Executive shall promptly disclose Work Product to the Board and perform all actions reasonably requested by the Company (whether during or after the Employment Period) to establish and confirm the ownership and proprietary interest of any of the Company Parties in any Work Product (including, without limitation, the execution of assignments, consents, powers of attorney, applications and other instruments). The Executive shall not file any patent or copyright applications related to any Work Product except with the written consent of a majority of the Board.
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5.3 | Non-Competition and Non-Solicitation. |
(a) In consideration of the Confidential Information being provided to the Executive as stated in Section 5.1 hereof, and other good and valuable new consideration as stated in this Agreement, including, without limitation, employment and/or continued employment with the Company, and the business relationships, Company goodwill, work experience, client, customer and/or vendor relationships and other fruits of employment that the Executive has and will have the opportunity to obtain, use and develop under this Agreement, the Executive agrees to the restrictive covenants stated in this Section 5.3.
(b) From the date employment commenced until the end of the Restricted Period (as defined in Section 5.4(g) hereof), the Executive agrees that the Executive will not, directly or indirectly, on the Executives own behalf or on the behalf of any other Person, within the United States of America or in any other country or territory in which the businesses of the Company are conducted:
(i) engage in a Competing Business (as defined in Section 5.4(c) hereof), including, without limitation, by owning, managing, operating, controlling, being employed by, providing services as a consultant or independent contractor to or participating in the ownership, management, operation or control of any Competing Business;
(ii) induce or attempt to induce any customer, vendor, supplier, licensor or other Person in a business relationship with any Company Party, for or with which the Executive or employees working under the Executives supervision had any direct or indirect responsibility or contact during the Employment Period, (A) to do business with a Competing Business or (B) to cease, restrict, terminate or otherwise reduce business with the Company for the benefit of a Competing Business, regardless of whether the Executive initiates contact; or
(iii)(A) solicit, recruit, persuade, influence or induce, or attempt to solicit, recruit, persuade, influence or induce anyone employed or otherwise retained by any of the Company Parties (including any independent contractor or consultant), to cease or leave their employment or contractual or consulting relationship with any Company Party, regardless of whether the Executive initiates contact for such purposes or (B) hire, employ or otherwise attempt to establish, for any Person, any employment, agency, consulting, independent contractor or other business relationship with any Person who is or was employed or otherwise retained by any of the Company Parties (including any independent contractor or consultant).
(c) The parties hereto acknowledge and agree that, notwithstanding anything in Section 5.3(b)(i) hereof, (i) the Executive may own or hold, solely as passive investments, securities of Persons engaged in any business that would otherwise be included in Section 5.3(b)(i), as long as with respect to each such
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investment the securities held by the Executive do not exceed five percent (5%) of the outstanding securities of such Person and such securities are publicly traded and registered under Section 12 of the Securities Exchange Act of 1934, as amended (the Exchange Act), and (ii) the Executive may serve on the board of directors (or other comparable position) or as an officer of any entity at the request of the Board; provided, however, that in the case of investments otherwise permitted under clause (i) above, the Executive shall not be permitted to, directly or indirectly, participate in, or attempt to influence, the management, direction or policies of (other than through the exercise of any voting rights held by the Executive in connection with such securities), or lend the Executives name to, any such Person.
(d) The Executive acknowledges that (i) the restrictive covenants contained in this Section 5.3 hereof are ancillary to and part of an otherwise enforceable agreement, such being the agreements concerning Confidential Information and other consideration as stated in this Agreement, (ii) at the time that these restrictive covenants are made, the limitations as to time, geographic scope and activity to be restrained, as described herein, are reasonable and do not impose a greater restraint than necessary to protect the good will and other legitimate business interests of the Company, including without limitation, Confidential Information (including trade secrets), client, customer and/or vendor relationships, client and/or customer goodwill and business productivity, (iii) in the event of termination of the Executives employment, the Executives experiences and capabilities are such that the Executive can obtain gainful employment without violating this Agreement and without the Executive incurring undue hardship, (iv) based on the relevant benefits and other new consideration provided for in this Agreement, including, without limitation, the disclosure and use of Confidential Information, the restrictive covenants of this Section 5.3, as applicable according to their terms, shall remain in full force and effect even in the event of the Executives involuntary termination from employment, with or without Cause and (v) the Executive has carefully read this Agreement and has given careful consideration to the restraints imposed upon the Executive by this Agreement and consents to the terms of the restrictive covenants in this Section 5.3, with the knowledge that this Agreement may be terminated at any time in accordance with the provisions hereof.
5.4 Definitions. For purposes of this Agreement, the following terms shall have the following meanings:
(a) An Affiliate of any specified Person means any other Person, whether now or hereafter existing, directly or indirectly controlling or controlled by, or under direct or indirect common control with, such specified Person. For purposes hereof, control or any other form thereof, when used with respect to any Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms controlling and controlled shall have meanings correlative to the foregoing.
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(b) Company Parties means the Company, and its direct and indirect parents, subsidiaries and Affiliates, and their successors in interest.
(c) Competing Business means any business that owns or operates a specialty retail chain, which chain derives 15% or more of its revenue for the trailing 12 months from the sale of costume jewelry or accessories targeted to girls or women.
(d) Confidential Information.
(i) Definition. Confidential Information means any and all material, information, ideas, inventions, formulae, patterns, compilations, programs, devices, methods, techniques, processes, know how, plans (marketing, business, strategic, technical or otherwise), arrangements, pricing and other data of or relating to any of the Company Parties (as well as their customers and/or vendors) that is confidential, proprietary or trade secret (A) by its nature, (B) based on how it is treated or designated by a Company Party, (C) because the disclosure of which would have a material adverse effect on the business or planned business of any of the Company Parties and/or (D) as a matter of law.
(ii) Exclusions. Confidential Information does not include material, data, and/or information (A) that any Company Party has voluntarily placed in the public domain, (B) that has been lawfully and independently developed and publicly disclosed by third parties, (C) that constitutes the general non-specialized knowledge and skills gained by the Executive during the Employment Period or (D) that is otherwise in the public domain through lawful means; provided, however, that the unauthorized appropriation, use or disclosure of Confidential Information by the Executive, directly or indirectly, shall not affect the protection and relief afforded by this Agreement regarding such information.
(iii) Inclusions. Confidential Information includes, without limitation, the following information (including without limitation, compilations or collections of information) relating or belonging to any Company Party (as well as their clients, customers and/or vendors) and created, prepared, accessed, used or reviewed by the Executive during or after the Employment Period: (1) product and manufacturing information, such as ingredients, combinations of ingredients and manufacturing processes; (2) scientific and technical information, such as research and development, tests and test results, formulae and formulations, studies and analysis; (3) financial and cost information, such as operating and production costs, costs of goods sold, costs of supplies and manufacturing materials, non-public financial statements and reports, profit and loss information, margin information and financial performance information; (4) customer related information, such as customer related contracts, engagement and scope of work letters, proposals and presentations, customer-related contacts, lists, identities and prospects, practices, plans,
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histories, requirements and needs, price information and formulae and information concerning client or customer products, services, businesses or equipment specifications; (5) vendor and supplier related information, such as the identities, practices, history or services of any vendors or suppliers and vendor or supplier contacts; (6) sales, marketing and price information, such as marketing and sales programs and related data, sales and marketing strategies and plans, sales and marketing procedures and processes, pricing methods, practices and techniques and pricing schedules and lists; (7) database, software and other computer related information, such as computer programs, data, compilations of information and records, software and computer files, presentation software and computer-stored or backed-up information including, but not limited to, e-mails, databases, word processed documents, spreadsheets, notes, schedules, task lists, images and video; (8) employee-related information, such as lists or directories identifying employees, representatives and contractors, and information regarding the competencies (knowledge, skill, experience), compensation and needs of employees, representatives and contractors and training methods; and (9) business- and operation-related information, such as operating methods, procedures, techniques, practices and processes, information about acquisitions, corporate or business opportunities, information about partners and potential investors, strategies, projections and related documents, contracts and licenses and business records, files, equipment, notebooks, documents, memoranda, reports, notes, sample books, correspondence, lists and other written and graphic business records.
(e) Misappropriate, or any form thereof, means:
(i) the acquisition of any Confidential Information by a Person who knows or has reason to know that the Confidential Information was acquired by theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy or espionage through electronic or other means (each, an Improper Means); or
(ii) the disclosure or use of any Confidential Information without the express consent of the Company by a Person who (A) used Improper Means to acquire knowledge of the Confidential Information (B) at the time of disclosure or use, knew or had reason to know that his or her knowledge of the Confidential Information was (x) derived from or through a Person who had utilized Improper Means to acquire it, (y) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use or (z) derived from or through a Person who owed a duty to the Company to maintain its secrecy or limit its use or (C) before a material change of his or her position, knew or had reason to know that it was Confidential Information and that knowledge of it had been acquired by accident or mistake.
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(f) Person means any individual, corporation, partnership, limited liability company, joint venture, association, business trust, joint-stock company, estate, trust, unincorporated organization, government or other agency or political subdivision thereof or any other legal or commercial entity.
(g) Restricted Period means the longer of (i) twelve (12) months after the date of termination of employment (the Executives last day of work for the Company) or (ii) the period during which the Executive is receiving payments from the Company pursuant to Section 4 hereof.
(h) Work Product means all patents and patent applications, all inventions, innovations, improvements, developments, methods, designs, analyses, drawings, reports, creative works, discoveries, software, computer programs, modifications, enhancements, know-how, formulations, concepts and ideas, and all similar or related information (in each case whether or not patentable), all copyrights and copyrightable works, all trade secrets, confidential information, and all other intellectual property and intellectual property rights that are conceived, reduced to practice, developed or made by the Executive either alone or with others in the course of employment with the Company (including employment prior to the date of this Agreement).
5.5 Remedies. Because the Executives services are unique and because the Executive has access to Confidential Information, the Executive acknowledges and agrees that if the Executive breaches any of the provisions of Section 5 hereof, the Company may suffer immediate and irreparable harm for which monetary damages alone will not be a sufficient remedy. The restrictive covenants stated in Section 5 hereof are without prejudice to the Companys rights and causes of action at law.
5.6 | Interpretation; Severability. |
(a) The Executive has carefully considered the possible effects on the Executive of the covenants not to compete, the confidentiality provisions and the other obligations contained in this Agreement, and the Executive recognizes that the Company has made every effort to limit the restrictions placed upon the Executive to those that are reasonable and necessary to protect the Companys legitimate business interests.
(b) The Executive acknowledges and agrees that the restrictive covenants set forth in this Agreement, which restate the restrictive covenants agreed to by the Executive at the time his employment commenced with the Company, are reasonable and necessary in order to protect the Companys valid business interests. It is the intention of the parties hereto that the covenants, provisions and agreements contained herein shall be enforceable to the fullest extent allowed by law. If any covenant, provision or agreement contained herein is found by a court having jurisdiction to be unreasonable in duration, scope or character of restrictions, or otherwise to be unenforceable, such covenant, provision or agreement shall not be rendered unenforceable thereby, but rather the duration, scope or character of restrictions of such covenant, provision or
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agreement shall be deemed reduced or modified with retroactive effect to render such covenant, provision or agreement reasonable or otherwise enforceable (as the case may be), and such covenant, provision or agreement shall be enforced as modified. If the court having jurisdiction will not review the covenant, provision or agreement, the parties hereto shall mutually agree to a revision having an effect as close as permitted by applicable law to the provision declared unenforceable. The parties hereto agree that if a court having jurisdiction determines, despite the express intent of the parties hereto, that any portion of the covenants, provisions or agreements contained herein are not enforceable, the remaining covenants, provisions and agreements herein shall be valid and enforceable. Moreover, to the extent that any provision is declared unenforceable, the Company shall have any and all rights under applicable statutes or common law to enforce its rights with respect to any and all Confidential Information or unfair competition by the Executive.
6. | Miscellaneous. |
6.1 | Public Statements. |
(a) Media Nondisclosure. The Executive agrees that during the Employment Period or at any time thereafter, except as may be authorized in writing by the Company, the Executive will not directly or indirectly disclose or release to the Media any information concerning or relating to any aspect of the Executives employment or termination from employment with the Company and/or any aspect of any dispute that is the subject of this Agreement. For the purposes of this Agreement, the term Media includes, without limitation, any news organization, station, publication, show, website, web log (blog), bulletin board, chat room and/or program (past, present and/or future), whether published through the means of print, radio, television and/or the Internet or otherwise, and any member, representative, agent and/or employee of the same.
(b) Non-Disparagement. The Executive agrees that during the Employment Period or at any time thereafter, the Executive will not make any statements, comments or communications in any form, oral, written or electronic to any Media or any customer, client or supplier of the Company or any of its Affiliates, which would constitute libel, slander or disparagement of the Company or any of its Affiliates, including, without limitation, any such statements, comments or communications that criticize, ridicule or are derogatory to the Company or any of its Affiliates; provided, however, that the terms of this Section 6.1(b) shall not apply to communications between the Executive and, as applicable, the Executives attorneys or other persons with whom communications would be subject to a claim of privilege existing under common law, statute or rule of procedure. The Executive further agrees that the Executive will not in any way solicit any such statements, comments or communications from others.
6.2 ARBITRATION. SUBJECT TO THE RIGHTS UNDER SECTION 6.3 HEREOF TO SEEK INJUNCTIVE OR OTHER EQUITABLE RELIEF, BINDING
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ARBITRATION SHALL BE THE EXCLUSIVE REMEDY FOR ANY AND ALL DISPUTES, CLAIMS OR CONTROVERSIES, WHETHER STATUTORY, CONTRACTUAL OR OTHERWISE, BETWEEN THE PARTIES HERETO ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE EXECUTIVES EMPLOYMENT BY OR TERMINATION FROM THE COMPANY (INCLUDING, BUT NOT LIMITED TO, THE AMOUNT OF DAMAGES, OR THE CALCULATION OF ANY BONUS OR OTHER AMOUNT OR BENEFIT DUE) (COLLECTIVELY, DISPUTES). THE PARTIES EACH WAIVE THE RIGHT TO A JURY TRIAL AND WAIVE THE RIGHT TO ADJUDICATE THEIR DISPUTES UNDER THIS AGREEMENT OUTSIDE THE ARBITRATION FORUM PROVIDED FOR IN THIS AGREEMENT, EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT.
(a) Procedure Generally. The parties agree to submit the Dispute to a single arbitrator selected from a panel of JAMS arbitrators. The arbitration will be governed by the JAMS Comprehensive Arbitration Rules and Procedures in effect at the time the arbitration is commenced, subject to the terms and modifications of this Agreement. If for any reason JAMS cannot serve as the arbitration administrator or cannot fulfill the panel requirements of the Arbitration Provision, the Company may select an alternative arbitration administrator, such as AAA, to serve under the terms of this Agreement.
(b) Arbitrator Selection. To select the arbitrator, the parties shall make their respective strikes from a panel of former federal court judges and magistrates, to the extent available from JAMS (the First Panel). If the parties cannot agree upon an arbitrator from the First Panel or if such a panel is not available from JAMS, then the parties will next make their respective strikes from a panel of former Illinois state court trial and appellate judges, to the extent available from JAMS (the Second Panel). Any arbitrators proposed for the First and Second Panels provided for in this Section 6.2(b) must be available to serve in the Agreed Venue. If the parties cannot agree upon an arbitrator from the Second Panel or if such a panel is not available from JAMS, then the parties will next make their respective strikes from the panel of all other JAMS arbitrators available to serve in the Agreed Venue.
(c) VENUE. THE PARTIES STIPULATE AND AGREE THAT THE EXCLUSIVE VENUE OF ANY SUCH ARBITRATION PROCEEDING (AND OF ANY OTHER PROCEEDING, INCLUDING ANY COURT PROCEEDING, UNDER THIS AGREEMENT) SHALL BE CHICAGO, ILLINOIS (THE AGREED VENUE).
(d) Authority and Decision. The arbitrator shall have the authority to award the same damages and other relief that a court could award. The arbitrator shall issue a reasoned award explaining the decision and any damages awarded. The arbitrators decision will be final and binding upon the parties and enforceable by a court of competent jurisdiction. The parties will abide by and perform any award rendered by the arbitrator. In rendering the award, the arbitrator shall state the reasons therefor, including (without limitation) any computations of actual damages or offsets, if applicable.
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(e) Fees and Costs. In the event of arbitration under the terms of this Agreement, the fees charged by JAMS or other arbitration administrator and the arbitrator shall be borne by the parties equally. In addition, the parties shall each bear their own costs, expenses and attorneys fees incurred in arbitration.
(f) Limited Scope. The following are excluded from binding arbitration under this Agreement: claims for workers compensation benefits or unemployment benefits; replevin; and claims for which a binding arbitration agreement is invalid as a matter of law.
6.3 Injunctive Relief. The parties hereto may seek injunctive relief in arbitration; provided, however, that as an exception to the arbitration agreement set forth in Section 6.2 hereof, the parties, in addition to all other available remedies, shall each have the right to initiate an action in any court of competent jurisdiction in order to request injunctive or other equitable relief regarding the terms of Sections 5 or 6.2 hereof. The exclusive venue of any such proceeding shall be in the Agreed Venue. The parties agree (a) to submit to the jurisdiction of any competent court in the Agreed Venue, (b) to waive any and all defenses the Executive may have on the grounds of lack of jurisdiction of such court and (c) that neither party shall be required to post any bond, undertaking or other financial deposit or guarantee in seeking or obtaining such equitable relief. Evidence adduced in any such proceeding for an injunction may be used in arbitration as well. The existence of this right shall not preclude or otherwise limit the applicability or exercise of any other rights and remedies that a party hereto may have at law or in equity.
6.4 Settlement of Existing Rights. In exchange for the other terms of this Agreement, the Executive acknowledges and agrees that: (a) the Executives entry into this Agreement is a condition of employment and/or continued employment with the Company, as applicable; (b) except as otherwise provided herein, this Agreement will replace any existing employment agreement between the parties and thereby act as a novation, if applicable; (c) the Executive is being provided with access to Confidential Information, including, without limitation, proprietary trade secrets of one or more Company Parties, to which the Executive has not previously had access; (d) all Company inventions and intellectual property developed by the Executive during any past employment with the Company and all goodwill developed with the Companys clients, customers and other business contacts by the Executive during any past employment with Company, as applicable, is the exclusive property of the Company; and (e) all Confidential Information and/or specialized training accessed, created, received or utilized by the Executive during any past employment with Company, as applicable, will be subject to the restrictions on Confidential Information described in this Agreement, whether previously so agreed or not.
6.5 Indemnification. The Executive shall be entitled from the Effective Date until the end of the Employment Period in the capacity as an officer or director of the Company or any of its subsidiaries to the benefit of the indemnification provisions contained in the By-Laws of the Company or as a matter of law, whichever is greater. In addition, during the term of the Executives employment and, where applicable under the
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terms of the relevant liability policy thereafter, the Executive shall be covered under any directors and officers insurance policy maintained by the Company.
6.6 Post-Termination Assistance. During the Restricted Period, the Executive shall cooperate, at the reasonable request of the Company (i) in the transition of any matter for which the Executive had authority or responsibility during the Employment Period, or (ii) with respect to any other matter involving the Company for which the Executive may be of assistance. The Executive shall be entitled to reimbursement of any out-of-pocket expenses he incurs in providing such assistance upon submission of documentation supporting such expenses.
6.7 Entire Agreement; Waiver. This Agreement contains the entire agreement between the Executive and the Company with respect to the subject matter hereof, and supersedes any and all prior understandings or agreements, whether written or oral. No modification or addition hereto or waiver or cancellation of any provision hereof shall be valid except by a writing signed by the party to be charged therewith. No delay on the part of any party to this Agreement in exercising any right or privilege provided hereunder or by law shall impair, prejudice or constitute a waiver of such right or privilege.
6.8 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois without regard to principles of conflict of laws.
6.9 Successors and Assigns; Binding Agreement. The rights and obligations of the parties under this Agreement shall be binding upon and inure to the benefit of the parties hereto and their heirs, personal representatives, successors and permitted assigns. This Agreement is a personal contract, and, except as specifically set forth herein, the rights and interests of the Executive herein may not be sold, transferred, assigned, pledged or hypothecated by any party without the prior written consent of the others. As used herein, the term successor as it relates to the Company, shall include, but not be limited to, any successor by way of merger, consolidation or sale of all or substantially all of such Persons assets or equity interests.
6.10 Representation by Counsel; Independent Judgment. Each of the parties hereto acknowledges that (a) it or the Executive has read this Agreement in its entirety and understands all of its terms and conditions, (b) it or the Executive has had the opportunity to consult with any individuals of its or the Executives choice regarding its or the Executives agreement to the provisions contained herein, including legal counsel of its or the Executives choice, and any decision not to was the Executives or its alone and (c) it or the Executive is entering into this Agreement of its or the Executives own free will, without coercion from any source, based upon its or the Executives own independent judgment.
6.11 Interpretation. The parties and their respective legal counsel actively participated in the negotiation and drafting of this Agreement, and in the event of any ambiguity or mistake herein, or any dispute among the parties with respect to the provisions
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hereto, no provision of this Agreement shall be construed unfavorably against any of the parties on the ground that the Executive, it, or the Executives or its counsel was the drafter thereof.
6.12 Survival. The applicable provisions of Sections 4, 5 and 6 hereof shall survive the termination of this Agreement.
6.13 Notices. All notices and communications hereunder shall be in writing and shall be deemed properly given and effective when received, if sent by facsimile or telecopy, or by postage prepaid by registered or certified mail, return receipt requested, or by other delivery service which provides evidence of delivery, as follows:
If to the Company, to:
Claires Stores, Inc.
2400 W. Central Road
Hoffman Estates, IL 60192
Attention: General Counsel
If to the Executive, to:
J. Per Brodin
To the address on file with the Company
or to such other address as one party may provide in writing to the other party from time to time.
6.14 No Conflicts. The Executive represents and warrants to the Company that his employment and the performance of his duties for the Company have not and will not conflict with or result in a violation or breach of, or constitute a default under any contract, agreement or understanding to which he is or was a party or of which he is aware and that there are no restrictions, covenants, agreements or limitations on his right or ability to enter into and perform the terms of this Agreement.
6.15 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Facsimile transmission of any signed original document or retransmission of any signed facsimile transmission will be deemed the same as delivery of an original. At the request of any party, the parties will confirm facsimile transmission by signing a duplicate original document.
6.16 Captions. Paragraph headings are for convenience only and shall not be considered a part of this Agreement.
6.17 No Third Party Beneficiary Rights. Except as otherwise provided in this Agreement, no third-party entity shall have any right to enforce any provision of this Agreement, even if indirectly benefited by it.
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6.18 Withholdings. Any payments provided for hereunder shall be paid net of any applicable withholdings required under Federal, state or local law and any additional withholdings to which Executive has agreed.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement, intending it as a document under seal, to be effective for all purposes as of the date first above written.
CLAIRES STORES, INC. | ||
By: | /s/ James D. Fielding | |
Name: | James D. Fielding | |
Title: | Chief Executive Officer
| |
EXECUTIVE | ||
/s/ J. Per Brodin | ||
Name: J. Per Brodin | ||
Title: Executive Vice President and Chief Financial Officer
|
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EXHIBIT A
RELEASE
I, J. Per Brodin, the undersigned, agree to accept the compensation, payments, benefits and other consideration provided for in Section 4.3(d) of the Employment Agreement between me and by and between Claires Stores, Inc. (the Company) dated as of June __, 2013 (the Employment Agreement) in full resolution and satisfaction of, and hereby IRREVOCABLY AND UNCONDITIONALLY RELEASE, REMISE AND FOREVER DISCHARGE the Company and Releasees from any and all agreements, promises, liabilities, claims, demands, rights and entitlements of any kind whatsoever, in law or equity, whether known or unknown, asserted or unasserted, fixed or contingent, apparent or concealed, to the maximum extent permitted by law (Claims), which I, my heirs, executors, administrators, successors or assigns ever had, now have or hereafter can, shall or may have for, upon, or by reason of any matter, cause or thing whatsoever existing, arising, occurring or relating to my employment and/or termination thereof with the Company and Releasees, or my status as a stockholder of the Company and Releasees, at any time on or prior to the date I execute this Release, including, without limitation, any and all Claims arising out of or relating to compensation, benefits, any and all contract claims, tort claims, fraud claims, claims for bonuses, commissions, sales credits, etc., defamation, disparagement, or other personal injury claims, claims for accrued vacation pay, claims under any federal, state or municipal wage payment, discrimination or fair employment practices law, statute or regulation, and claims for costs, expenses and attorneys fees with respect thereto. This release and waiver includes, without limitation, any and all rights and claims under Title VII of the Civil Rights Act of 1964, the Civil Rights Acts of 1866, 1871 and 1991, the Employee Retirement Income Security Act, the Age Discrimination in Employment Act (including but not limited to the Older Workers Benefit Protection Act), the Americans with Disabilities Act, the National Labor Relations Act, the Family and Medical Leave Act, the Equal Pay Act, the Sarbanes-Oxley Act, the Illinois Human Rights Act, the Illinois Equal Pay Laws, the Illinois Whistleblower Protection Act, the Illinois Wage Payment and Collection Law, and all amendments to the foregoing, and any other federal, state or local statute, ordinance, regulation or constitutional provision regarding employment, compensation, employee benefits, termination of employment or discrimination in employment. Notwithstanding the above, I do not release (i) any right to indemnification I may have as a director, officer or employee pursuant to applicable law, the Companys Bylaws, and/or the Companys certificate of incorporation, (ii) any rights to any earned and vested benefits to which I am entitled under the terms of any employee benefit plan maintained by the Company or any of its subsidiaries, or (iii) any rights with respect to any vested shares of Claires Stores, Inc., or vested options to purchase such shares, as I may now own, pursuant to the written agreements governing such shares or options.
I represent and affirm (i) that I have not filed any Claim against the Company or Releasees and (ii) that to the best of my knowledge and belief, there are no outstanding Claims.
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For the purpose of implementing a full and complete release and discharge of Claims, I expressly acknowledge that this Release is intended to include in its effect, without limitation, all the Claims described in the preceding paragraphs, whether known or unknown, apparent or concealed, and that this Release contemplates the extinction of all such Claims, including Claims for attorneys fees. I expressly waive any right to assert after the execution of this Release that any such Claim has, through ignorance or oversight, been omitted from the scope of the Release.
For purposes of this Release, the term the Company and Releasees includes the Company and its past, present and future direct and indirect parents, subsidiaries, affiliates, divisions, predecessors, successors, and assigns, and their past, present and future officers, directors, shareholders, representatives, agents, attorneys and employees, in their official and individual capacities, and all other related individuals and entities, jointly and individually, and this Release shall inure to the benefit of and shall be binding and enforceable by all such entities and individuals.
I acknowledge I will be entitled to the compensation, payments, benefits and other consideration provided for in Section 4.3(d) of the Employment Agreement payable or commencing on , 2 , which is 30 days following the date of the date of my termination of employment, provided that, as of that date, I have signed and returned this Release to the Company, attention General Counsel, and have not revoked it pursuant to the following paragraph.
I further acknowledge that I have had at least 21 days from my receipt of this Release, to review and consider this Release, to consult with an attorney prior to executing this Release, and have been provided 7 days to revoke my execution of this Release by delivering a written notice of revocation to the Company, attention General Counsel.
I ACKNOWLEDGE THAT I HAVE READ THIS
RELEASE AND I UNDERSTAND
AND ACCEPT ITS TERMS
J. Per Brodin | Date | |||||
Sworn to before me this
day of , 20
Notary Public
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