EX-10.13 Employment Agreement - Pamela J. Romano

Exhibit 10.13

EMPLOYMENT AGREEMENT

     THIS AGREEMENT, dated as of February 28, 2003, is by and between Zale Corporation, a Delaware corporation (“Company”), and Pam Romano (“Executive”).

     WHEREAS, Executive and Company desire to enter into an employment agreement which sets forth the terms and conditions for Executive’s continued employment with the Company;

     NOW, THEREFORE, in consideration of the foregoing recital and of the mutual covenants set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

     1.     Employment. Executive agrees to enter into the continued employment of the Company, and the Company agrees to employ Executive, on the terms and conditions set forth in this Agreement. Executive agrees during the Term (as hereinafter defined) to devote substantially all of her business time, efforts, skills and abilities to the performance of her duties as stated in this Agreement and to the furtherance of the Company’s business. Executive’s job title will be Senior Vice President of the Company and President – Zales Division and her duties will be those as are designated by the Chief Executive Officer (“CEO”) and/or Board of Directors of the Company (“Board”), consistent with this position. Executive further agrees to serve, without additional compensation, as an officer or director, or both, of any subsidiary, division or affiliate of the Company or any other entity in which the Company holds an equity interest, provided, however, that (a) the Company shall indemnify Executive from liabilities in connection with serving in any such position to the same extent as her indemnification rights pursuant to the Company’s Certificate of Incorporation, By-laws and applicable Delaware law, and (b) such other position shall not materially detract from the responsibilities of Executive pursuant to this Section 1 or her ability to perform such responsibilities.

     2.     Compensation.

          (a) Base Salary. During the Term of Executive’s employment with the Company pursuant to this Agreement, the Company shall pay to Executive as compensation for her services an annual base salary of not less than $375,000 payable bi-weekly (“Base Salary”). Executive’s Base Salary will be payable in accordance with the Company’s normal payroll procedures and will be reviewed annually and subject to upward adjustment at the discretion of the CEO and/or the Board or an authorized Committee or representative thereof.

          (b) Incentive Bonus. Executive’s incentive compensation program for the term of this Agreement shall be determined under the Company’s Executive Bonus Program, established by the Board in its discretion. Executive is eligible to receive up to 50% of her Base Salary in accordance with the terms and conditions of the Executive Bonus Program.

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          (c) Vacation. Executive shall be entitled to a reasonable vacation of not less than four (4) paid weeks each year of the term of this Agreement.

          (d) Executive Perquisites. Executive shall be entitled to receive such executive perquisites and fringe and other benefits as are provided to similarly situated executives and their families under any of the Company’s plans and/or programs in effect from time to time and such other benefits as are customarily available to executives of the Company and their families.

          (e) Tax Withholding. The Company has the right to deduct from any compensation payable to Executive under this Agreement social security (FICA) taxes and all federal, state, municipal or other such taxes or charges as may now be in effect or that may hereafter be enacted or required.

     3.     Term. Unless sooner terminated pursuant to Section 4 of this Agreement, and subject to the provisions of Section 5 hereof, the term of this Agreement shall commence as of the date hereof and shall continue through July 31, 2006, (the “Term”).

     4.     Termination. Notwithstanding the provisions of Section 3 hereof, but subject to the provisions of Section 5 hereof, this Agreement (and Executive’s employment hereunder) shall terminate as follows:

          (a)     Death. This Agreement shall terminate upon the death of Executive; provided, however, that the Company shall continue to pay (in accordance with its normal payroll procedures) the Base Salary to Executive’s estate for a period of twelve (12) months after the date of Executive’s death.

          (b)     Termination for Cause. The Company may terminate this Agreement at any time for “Cause” (as hereinafter defined) by delivering a written termination notice to Executive. For purposes of this Agreement, “Cause” shall mean any of: (i) Executive’s conviction of a felony or a crime involving moral turpitude; (ii) Executive commits an act constituting fraud, deceit or material misrepresentation with respect to the company; (iii) Executive embezzles funds or assets from the Company; (iv) Executive becomes addicted to any alcoholic, controlled or illegal substance or drug; or (v) Executive commits any act or omission which would give the Company the right to terminate Executive’s employment under applicable law; or (vi) Executive fails to correct or cure any material breach of or default under this Agreement within ten (10) days after receiving written notice of such breach or default from the Company.

          (c)     Termination Without Cause. The Company may terminate this Agreement at any time by delivering a written termination notice to Executive.

          (d)     Termination by Executive. Executive may terminate this Agreement at

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any time by delivering a written termination notice to the Company; provided, however, that Executive shall receive the benefits specified in Section 5 hereof if such termination is made for any of the following reasons:

          (e)     Termination Following Disability. In the event, Executive becomes mentally or physically impaired or disabled and is unable to perform her material duties and responsibilities hereunder for a period of at least ninety (90) days in the aggregate during any one hundred twenty (120) consecutive day period, the Company may terminate this Agreement by delivering a written termination notice to Executive. Notwithstanding the foregoing, Executive shall continue to receive her full salary and benefits under this Agreement for a period of twelve (12) months after the effective date of such termination.

          (f)     Payments. Following any expiration or termination of this Agreement, and in addition to any amounts owed pursuant to Section 5 hereof, the Company shall pay to Executive all amounts earned by Executive hereunder prior to the date of such expiration or termination.

     5.     Certain Termination Benefits. Notwithstanding anything else contained herein to the contrary, in the event (i) the Company terminates this Agreement pursuant to Section 4(c), or (ii) Executive terminates this Agreement pursuant to Section 4(d) for Good Reason, then Executive shall be entitled to the following benefits:

          (a)     Severance. The Company shall continue to pay (in accordance with its normal payroll procedures) the Base Salary to Executive (or Executive’s estate if Executive dies)

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for the remainder of the Term of this Agreement or in accordance with the Company’s severance policy in effect at that time, whichever is greater, (the “Severance Period”).

          (b)     Benefits. During the first twelve (12) months of the Severance Period, the Executive shall continue to receive all fringe benefits provided under Sections 2(b), 2(c) and 2(d) hereof.

          (c)     Offset. The payments which would have been due and payable in accordance with Section 5(a) hereof shall be reduced by an amount equal to any amounts that Executive receives in connection with any other employment during the Severance Period. Any fringe benefits received by Executive in connection with any other employment that are reasonably comparable, but not necessarily as beneficial, to Executive as the fringe benefits then being provided by the Company pursuant to Section 5(b) hereof, shall be deemed to be the equivalent of, and shall terminate the Company’s responsibility to continue providing the fringe benefits then being provided by the Company pursuant to Section 5(b) hereof. The Company acknowledges that, if Executive’s employment with the Company is terminated, Executive shall have no duty to mitigate damages.

          (d)     General Release. Acceptance by Executive of any amounts pursuant to this Section 5 shall constitute a full and complete release by Executive of any and all claims Executive may have against the Company, its officers, directors and affiliates, including, but not limited to, claims he might have relating to Executive’s cessation of employment with the Company; provided, however, that there may properly be excluded from the scope of such general release the following:

A condition to Executive’s receipt of any amounts pursuant to this Section 5 shall be Executive’s execution and delivery of a general release as described above. In exchange for such release, the Company shall, if Executive’s employment is terminated without Cause, provide a release to Executive, but only with respect to claims against Executive which are actually known to the Company as of the time of such termination.

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     6.     Effect of Change of Control.

          (a) If within two years following a “Change of Control” (as hereinafter defined ), Executive terminates her employment with the Company for Good Reason (as hereinafter defined) or the Company terminates Executive’s employment for any reason other than Cause or disability, the Company shall pay to the Executive: (1) an amount equal to three times the Executive’s Base Salary as of the date of termination; (2) an amount equal to three times the average annual cash bonus paid to Executive for the two fiscal years immediately preceding the date of termination; (3) all benefits under the Company’s various benefit plans, including group healthcare, dental and life, for the period equal to thirty-six (36) months from the date of termination; and (4) a lump sum payment equal to the actuarial equivalent (determined by the Company in good faith with assistance of its accountants or actuaries), of the benefit which would have accrued under the Zale Delaware, Inc. Supplemental Executive Retirement Plan (“SERP”) if (i) Executive remained a participant in the SERP for the three (3) year period commencing on the first day of the SERP’s plan year (“Plan Year”) in which the Executive’s employment with the Company terminated (“Measurement Period”), (ii) during each Plan Year in the Measurement Period the Executive earned benefit points equal to the highest number of the benefit points earned by such Executive in a Plan Year during the three (3) year period ending on the last day of the Plan Year immediately preceding the Plan Year in which her employment with the Company terminated, and (iii) the Executive’s final average pay during the Measurement Period is the greater of her monthly Base Salary on the date of (a) a Potential Change of Control, (b) the Change of Control or (c) the date of her termination of employment.

          (b) “Change of Control” shall mean the date as of which: (i) there shall be consummated (1) any consolidation or merger of the Company in which the Company is not the continuing or surviving corporation or pursuant to which shares of the Company’s common stock would be converted into cash, securities or other property, other than a merger of the Company in which the holders of the Company’s common stock immediately prior to the merger have the same proportionate ownership of common stock of the surviving corporation immediately after the merger, or (2) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all, or substantially all, of the assets of the Company; or (ii) the stockholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company; or (iii) any person ( as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), shall become the beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of 30% of the Company’s outstanding common stock; or (iv) during any period of two consecutive years, individuals who at the beginning of such period constitute the entire board of directors of the Company shall cease for any reason to constitute a majority thereof unless the election, or the nomination for election by the Company’s stockholders, of each new director was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of the period.

          (c) “Good Reason” shall mean any of the following actions taken by the

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Company without the Executive’s written consent after a Change of Control:

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     provisions of Section 6.

          (d) “Potential Change of Control” shall mean the date as of which (1) the Company enters into an agreement the consummation of which, or the approval by shareholders of which, would constitute a Change of Control; (ii) proxies for the election of Directors of the Company are solicited by anyone other than the Company; (iii) any person (including, but not limited to, any individual, partnership, joint venture, corporation, association or trust) publicly announces an intention to take or to consider taking actions which, if consummated, would constitute a Change of Control; or (iv) any other event occurs which is deemed to be a Potential Change of Control by the Board and the Board adopts a resolution to the effect that a Potential Change of Control has occurred.

          (e) In the event that (i) Executive would otherwise be entitled to the compensation and benefits described in Section 6(a) hereof (“Compensation Payments”), and (ii) the Company determines, based upon the advice of tax counsel selected by the Company’s independent auditors and acceptable to Executive, that, as a result of such Compensation Payments and any other benefits or payments required to be taken into account under Code Section 280G(b)(2) (“Parachute Payments”), any of such Parachute Payments would be reportable by the Company as “excess parachute payments”, such Compensation Payments shall be reduced to the extent necessary to cause Executive’s Parachute Payments to equal 2.99 times the “base amount” as defined in Code Section 280G(b)(3) with respect to such Executive. However, such reduction in the Compensation Payments shall be made only if, in the opinion of such tax counsel, it would result in a larger Parachute Payment to the Executive than payment of the unreduced Parachute Payments after deduction of tax imposed on and payable by the Executive under Section 4999 of the Code (“Excise Tax”). The value of any non-cash benefits or any deferred payment or benefit for purposes of this paragraph shall be determined by the Company’s independent auditors.

          (f) The parties hereto agree that the payments provided under Section 6(a) above, as the case may be, are reasonable compensation in light of Executive’s services rendered to the Company and that neither party shall contest the payment of such benefits as constituting an “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code.

          (g) Unless the Company determines that any Parachute Payments made hereunder must be reported as “excess parachute payments” in accordance with Section 6(e) above, neither party shall file any return taking the position that the payment of such benefits constitutes an “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code.

     7.          Non-Competition. Executive agrees that during the Term and for a period of the lesser of the balance of the Term or eighteen (18) months from the date of the termination of Executive’s employment with the Company pursuant to Sections 4(c)(d), 5 and 6 herein, he will not, directly or indirectly, compete with the Company by providing to any company that is in a “Competing Business” services substantially similar to the services currently being provided by

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Executive. Competing Business shall be defined as any business that engages, in whole or in part, in the wholesale or retail sale of jewelry in the United States, and Executive’s employment function or affiliation is directly or indirectly in such business of jewelry. Executive shall not be obligated to abide by the foregoing covenant if the Company defaults in the payment of any severance compensation or benefits.

     8.     Nonsolicitation of Employees. For a period of two years after the termination or cessation of her employment with the Company for any reason whatsoever, Executive shall not, on her own behalf or on behalf of any other person, partnership, association, corporation, or other entity, solicit or in any manner attempt to influence or induce any employee of the Company or its subsidiaries or affiliates (known by the Executive to be such) to leave the employment of the Company or its subsidiaries or affiliates, nor shall he use or disclose to any person, partnership, association, corporation or other entity any information obtained while an employee of the Company concerning the names and addresses of the Company’s employees.

     9.          Nondisclosure of Trade Secrets. During the term of this Agreement, Executive will have access to and become familiar with various trade secrets and proprietary and confidential information of the Company, its subsidiaries and affiliates, including, but not limited to, processes, computer programs, compilations of information, records, sales procedures, customer requirements, pricing techniques, customer lists, methods of doing business and other confidential information (collectively, referred to as “Trade Secrets”) which are owned by the Company, its subsidiaries and/or affiliates and regularly used in the operation of its business, and as to which the Company, its subsidiaries and/or affiliates take precautions to prevent dissemination to persons other than certain directors, officers and employees. Executive acknowledges and agrees that the Trade Secrets (1) are secret and not known in the industry; (2) give the Company or its subsidiaries or affiliates an advantage over competitors who do not know or use the Trade Secrets; (3) are of such value and nature as to make it reasonable and necessary to protect and preserve the confidentiality and secrecy of the Trade Secrets; and (4) are valuable, special and unique assets of the Company or its subsidiaries or affiliates, the disclosure of which could cause substantial injury and loss of profits and goodwill to the Company or its subsidiaries or affiliates. Executive may not use in any way or disclose any of the Trade Secrets, directly or indirectly, either during the term of this Agreement or at any time thereafter, except as required in the course of her employment under this Agreement, if required in connection with a judicial or administrative proceeding, or if the information becomes public knowledge other than as a result of an unauthorized disclosure by the Executive. All files, records, documents, information, data and similar items relating to the business of the Company, whether prepared by Executive or otherwise coming into her possession, will remain the exclusive property of the Company and may not be removed from the premises of the Company under any circumstances without the prior written consent of the Company (except in the ordinary course of business during Executive’s period of active employment under this Agreement), and in any event must be promptly delivered to the Company upon termination of Executive’s employment with the Company. Executive agrees that upon her receipt of any subpoena, process or other request to produce or divulge, directly or indirectly, any Trade Secrets to any entity, agency, tribunal or person, Executive shall timely notify and promptly hand deliver a copy of the subpoena, process

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or other request to the Company. For this purpose, Executive irrevocably nominates and appoints the Company (including any attorney retained by the Company), as her true and lawful attorney-in-fact, to act in Executive’s name, place and stead to perform any act that Executive might perform to defend and protect against any disclosure of any Trade Secrets.

     10.     Severability. The parties hereto intend all provisions of Sections 7, 8, and 9 hereof to be enforced to the fullest extent permitted by law. Accordingly, should a court of competent jurisdiction determine that the scope of any provision of Section 7, 8 or 9 hereof is too broad to be enforced as written, the parties intend that the court reform the provision to such narrower scope as it determines to be reasonable and enforceable. In addition, however, Executive agrees that the non-competition, nonsolicitation and nondisclosure agreements set forth above each constitute separate agreements independently supported by good and adequate consideration shall be severable from the other provisions of, and shall survive, this Agreement. The existence of any claim or cause of action of Executive against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Company of the covenants of Executive contained in the nonsolicitation and nondisclosure agreements. If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws effective during the term hereof, such provision shall be fully severable and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision never constituted a part of this Agreement; and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance here from. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added as part of this Agreement, a provision as similar in its terms to such illegal, invalid or enforceable provision as may be possible and be legal, valid and enforceable.

     11.     Arbitration - - Exclusive Remedy.

          (a) The parties agree that the exclusive remedy or method of resolving all disputes or questions arising out of or relating to this Agreement shall be arbitration. Arbitration shall be held in Dallas, Texas by three arbitrators, one to be appointed by the Company, a second to be appointed by Executive, and a third to be appointed by those two arbitrators. The third arbitrator shall act as chairman. Any arbitration may be initiated by either party by written notice (“Arbitration Notice”) to the other party specifying the subject of the requested arbitration and appointing that party’s arbitrator.

          (b) If (i) the non-initiating party fails to appoint an arbitrator by written notice to the initiating party within ten days after the Arbitration Notice, or (ii) the two arbitrators appointed by the parties fail to appoint a third arbitrator within ten days after the date of the appointment of the second arbitrator, then the American Arbitration Association, upon application of the initiating party, shall appoint an arbitrator to fill that position.

          (c) The arbitration proceeding shall be conducted in accordance with the rules of

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the American Arbitration Association. A determination or award made or approved by at least two of the arbitrators shall be the valid and binding action of the arbitrators. The costs of arbitration (exclusive of the expense of a party in obtaining and presenting evidence and attending the arbitration and of the fees and expenses of legal counsel to a party, all of which shall be borne by that party) shall be borne by the Company only if Executive receives substantially the relief sought by him in the arbitration, whether by settlement, award or judgment; otherwise, the costs shall be borne equally between the parties. The arbitration determination or award shall be final and conclusive on the parties, and judgment upon such award may be entered and enforced in any court of competent jurisdiction.

     12.          Miscellaneous.

                    (a) Notices. Any notices, consents, demands, requests, approvals and other communications to be given under this Agreement by either party to the other must be in writing and must be either (i) personally delivered, (ii) mailed by registered or certified mail, postage prepaid with return receipt requested, (iii) delivered by overnight express delivery service or same-day local courier service, or (iv) delivered by telex or facsimile transmission, to the address set forth below, or to such other address as may be designated by the parties from time to time in accordance with this Section 12(a):

          Notices delivered personally or by overnight express delivery service or by local courier service are deemed given as of actual receipt. Mailed notices are deemed given three business days after mailing. Notices delivered by telex or facsimile transmission are deemed given upon receipt by the sender of the answer back (in the case of a telex) or transmission confirmation (in the case of a facsimile transmission).

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          (b) Entire Agreement. This Agreement supersedes any and all other agreements, either oral or written, between the parties with respect to the subject matter of this Agreement and contains all of the covenants and agreements between the parties with respect to the subject matter of this Agreement.

          (c) Modification. No change or modification of this Agreement is valid or binding upon the parties, nor will any waiver of any term or condition in the future be so binding, unless the change or modification or waiver is in writing and signed by the parties to this Agreement.

          (d) Governing Law and Venue. The parties acknowledge and agree that this Agreement and the obligations and undertakings of the parties under this Agreement will be performable in Irving, Dallas County, Texas. This Agreement is governed by, and construed in accordance with, the laws of the State of Delaware. If any action is brought to enforce or interpret this Agreement, venue for the action will be in Dallas County, Texas.

          (e) Counterparts. This Agreement may be executed in counterparts, each of which constitutes an original, but all of which constitutes one document.

          (f) Costs. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, each party shall bear its own costs and expenses.

          (g) Estate. If Executive dies prior to the expiration of the term of employment or during a period when monies are owing to her, any monies that may be due her from the Company under this Agreement as of the date of her death shall be paid to her estate and as when otherwise payable.

          (h) Assignment. The Company shall have the right to assign this Agreement to its successors or assigns. The terms “successors” and “assigns” shall include any person, corporation, partnership or other entity that buys all or substantially all of the Company’s assets or all of its stock, or with which the Company merges or consolidates. The rights, duties and benefits to Executive hereunder are personal to him, and no such right or benefit may be assigned by him.

          (i) Binding Effect. This Agreement is binding upon the parties hereto, together with their respective executors, administrators, successors, personal representatives, heirs and permitted assigns.

          (j) Waiver of Breach. The waiver by the Company or Executive of a breach of any provision of this Agreement by Executive or the Company may not operate or be construed as a waiver of any subsequent breach.

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     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

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