Employment Agreement - Abercrombie & Fitch Co. and Michael S. Jeffries
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is
entered into as of January 30, 2003 (the "Effective Date"), by and between
Abercrombie & Fitch Co., a Delaware corporation (the "Company"), and Michael S.
Jeffries (the "Executive") (hereinafter collectively referred to as "the
parties").
W I T N E S S E T H:
WHEREAS, the Executive has been employed by the Company as the Chairman
of the Board of the Company since May 1998 and as Chief Executive Officer of the
Company since February 1992 and served as President of the Company from February
1992 until May 1998; and
WHEREAS, the Executive is experienced in all phases of the Company's
business and possesses an intimate knowledge of the business and affairs of the
Company and its policies, procedures, methods and personnel; and
WHEREAS, the Company has determined that it is essential and in its
best interests to retain the services of its key management personnel and to
ensure their continued dedication and efforts; and
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the best interest of the Company to secure the
continued services and employment of the Executive for the balance of the
Executive's career and the Executive is willing to render such services on the
terms and conditions set forth herein; and
WHEREAS, the Board has determined that it is in the best interest of
the Company to incentivize the Executive to train and develop management who
will be able to conduct the business of the Company successfully following the
retirement of the Executive; and
WHEREAS, the parties entered into a written Employment Agreement on May
13, 1997 (the "1997 Employment Agreement") which the parties wish to amend and
restate in its entirety pursuant to Section 18 of the 1997 Employment Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and promises of the parties contained herein, the parties, intending
to be legally bound, hereby agree as follows:
1. Term. The term of employment under this Agreement shall be for the
period commencing on May 13, 1997 (the "Commencement Date") and ending on
December 31, 2008 (the "Term"). Notwithstanding the foregoing, the Term shall
end on the date on which the Executive's employment is earlier terminated by
either party in accordance with the provisions of Section 9 of this Agreement.
2. Employment.
(a) Position. The Executive shall be employed by the Company as
the Chairman of the Board and Chief Executive Officer of the Company. The
Executive shall
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perform the duties, undertake the responsibilities and exercise the authority
customarily performed, undertaken and exercised by persons employed in a similar
executive capacity. The Executive shall report only to the Board.
(b) Obligations. The Executive agrees to devote his full business
time and attention to the business and affairs of the Company. The foregoing,
however, shall not preclude the Executive from serving on corporate, civic or
charitable boards or committees or managing personal investments, so long as
such activities do not interfere with the performance of the Executive's
responsibilities hereunder.
3. Base Salary. The Company agrees to pay or cause to be paid to the
Executive commencing no later than the Effective Date and during the Term a base
salary at the rate of $1,000,000 per year or such larger amount as the Board may
from time to time determine (the "Base Salary"). Such Base Salary shall be
payable in accordance with the Company's customary practices applicable to its
executive officers.
4. Equity Compensation.
(a) The Executive shall be entitled to participate in the
stock-based employee benefit plans, including, without limitation, the 1998
Restatement of the Abercrombie & Fitch Co. Stock Option and Performance
Incentive Plan (the "Stock Incentive Plan") and the Abercrombie & Fitch Co. 2002
Stock Option Plan for Associates (the "2002 Stock Option Plan") maintained by
the Company, on such terms and conditions as may be determined from time to time
by the Compensation Committee of the Board.
(b) In exchange for the Executive agreeing to forego
participation, in respect of each fiscal year of the Company ending after
February 3, 2003, in the Company's program pursuant to which executive officers
of the Company are eligible to receive annual grants of restricted shares under
the Stock Incentive Plan (or any other stock-based employee benefit plan
maintained by the Company), on January 30, 2003, the Executive shall be granted
a career share award representing the right to receive 1,000,000 shares of Class
A Common Stock, par value $0.01 per share (the "Class A Common Stock"), of the
Company (the "Career Share Award") in accordance with the terms of this
Agreement. The Career Share Award is being granted under the Stock Incentive
Plan and shall be adjusted in respect of the number of shares of Class A Common
Stock which may be received by the Executive thereunder to prevent dilution or
enlargement of the Executive's rights, in the event of certain changes in the
capitalization of the Company, in a manner consistent with the provisions of
Article 16 of the Stock Incentive Plan. Subject to the provisions of Subsections
10(b)(vi), 10(d)(iv) and 10(e)(iv) of this Agreement, the Career Share Award
shall become vested on December 31, 2008 as to all 1,000,000 of the shares of
Class A Common Stock, provided that the Executive remains continuously employed
by the Company through such date. A stock certificate or other appropriate
documentation evidencing the shares shall be delivered to the Executive on March
31st of the calendar year immediately following the calendar year in which the
Executive's employment is terminated and the Executive shall thereupon become
the holder of those shares of Class A Common Stock. Until such time as the stock
certificate or other appropriate documentation evidencing such shares shall have
been issued, the Executive shall have no rights in respect of such shares.
Notwithstanding the foregoing, upon the occurrence of a Change of Control (as
defined in
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Subsection 10(i) of this Agreement), the Career Share Award shall become vested
as to all 1,000,000 of the shares of Class A Common Stock, and a stock
certificate or other appropriate documentation evidencing such shares shall be
delivered to the Executive upon such Change of Control or as soon thereafter as
practicable.
(c) In the event the Executive is found by a court of competent
jurisdiction to have materially breached any of the material terms of Section 11
of this Agreement during the period the Executive was employed by the Company or
during the one year period thereafter, the Career Share Award granted to the
Executive pursuant to Subsection 4(b) of this Agreement shall be immediately
forfeited by the Executive effective as of the date on which the breach
occurred, unless forfeited sooner by operation of any other provision of this
Agreement, and the Executive shall have no further rights in respect thereof. If
any of the shares of Class A Common Stock of the Company which the Executive
shall have the right to receive in accordance with the terms of the Career Share
Award shall have been delivered to the Executive as a result of the vesting of
the Career Share Award or any portion thereof in accordance with the terms of
this Agreement prior to the date on which the breach occurred, such shares of
Class A Common Stock shall be forfeited by the Executive effective the date on
which the breach occurred and such shares shall be transferred and delivered by
the Executive to the Company without any payment therefor by the Company.
Notwithstanding the foregoing, the provisions of this Subsection 4(c) shall not
apply if a Change of Control (as defined in Subsection 10(i) of this Agreement)
has occurred or if the Executive's employment has been terminated by the Company
without Cause (as defined in Subsection 9(c) of this Agreement) or by the
Executive with Good Reason (as defined in Subsection 9(d) of this Agreement).
5. Employee Benefits. Except as provided in Subsection 4(b) of this
Agreement, the Executive shall be entitled to participate in all employee
benefit plans, practices and programs maintained by the Company and made
available to executive officers generally and as may be in effect from time to
time. Except as provided in Subsection 4(b) of this Agreement, the Executive's
participation in such plans, practices and programs shall be on the same basis
and terms as are applicable to executive officers of the Company generally.
6. Bonus.
(a) The Executive shall be entitled to participate in the
Abercrombie & Fitch Co. Incentive Compensation Performance Plan (the "Bonus
Plan") or any successor to the Bonus Plan on such terms and conditions as may be
determined from time to time by the Compensation Committee of the Board,
provided that the Executive's annual target bonus opportunity shall be at least
120% of Base Salary upon attainment of target, subject to a maximum bonus
opportunity of 240% of Base Salary.
(b) Subject to the provisions of Subsections 10(a), 10(b)(vii), 10
(c)(vi), 10(d)(v) and 10(e)(v) of this Agreement, if the Executive shall remain
employed by the Company in the capacity of Chairman and Chief Executive Officer
through December 31, 2008, the Executive shall also be entitled to receive a
bonus (the "Stay Bonus") in the amount of $12 million, payable on March 31/st/
of the calendar year immediately following the calendar year in which the
Executive's employment with the Company is terminated.
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7. Other Benefits.
(a) Life Insurance.
(i) The Company shall maintain term life insurance coverage
on the life of the Executive in the amount of $10,000,000, the proceeds of which
shall be payable to the beneficiary or beneficiaries designated by the
Executive. The Company shall pay the premiums with respect to such term life
insurance policy for the period commencing on the Commencement Date and ending
on the later to occur of December 31, 2008 and the last day of the period during
which welfare benefits are continued pursuant to Subsection 10(g) of this
Agreement; provided, however, that the Company shall no longer be obligated to
maintain such coverage and pay such premiums in the event that the Executive's
employment is or was terminated by the Company for Cause (as defined in
Subsection 9(c) of this Agreement) or by the Executive without Good Reason (as
defined in Subsection 9(d) of this Agreement). Such policy shall provide for its
conversion to an individual policy owned by the Executive subsequent to
termination of his employment. The Executive agrees to undergo any reasonable
physical examination and other procedures as may be necessary to maintain such
policy.
(ii) During the term of this Agreement, the Company shall be
entitled to maintain a "key man" term life insurance policy on the life of the
Executive, the proceeds of which shall be payable to the Company or its
designees. The Executive agrees to undergo any reasonable physical examination
and other procedures as may be necessary to maintain such policy.
(b) Expenses. The Executive shall be entitled to receive prompt
reimbursement of all expenses reasonably incurred by him in connection with the
performance of his duties hereunder or for promoting, pursuing or otherwise
furthering the business or interests of the Company, in each case in accordance
with policies established by the Board from time to time and upon receipt of
appropriate documentation.
(c) Office and Facilities. The Executive shall be provided with an
appropriate office and with such secretarial and other support facilities as are
commensurate with the Executive's status with the Company and adequate for the
performance of his duties hereunder.
(d) Vacation. The Executive shall be entitled to annual vacation
in accordance with the policies periodically established by the Board for
similarly situated executive officers of the Company.
(e) Retirement Benefit. The Executive shall be provided with a
retirement benefit in accordance with the Abercrombie & Fitch Co. Supplemental
Executive Retirement Plan (Michael S. Jeffries) in the form in effect from time
to time (the "SERP") which is attached hereto as Exhibit A.
(f) Perquisites. The Executive shall be entitled to perquisites on
the same basis as provided to other senior level executive officers.
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8. Aircraft Travel. For security purposes, the Executive shall be
provided, at the expense of the Company, with use of a private aircraft for
business and personal travel in North America. Outside North America, the
Executive shall be entitled to first class air travel.
9. Termination.
(a) Death. The Executive's employment hereunder shall terminate
upon the Executive's death.
(b) Disability. Either the Executive or the Company shall be
entitled to terminate the Executive's employment for "Disability" by giving the
other party a Notice of Termination (as defined below). For purposes of this
Agreement, "Disability" shall mean the Executive's inability to perform his
duties for a period of 180 consecutive days as a result of physical or mental
impairment, illness or injury, and such condition, in the opinion of a medical
doctor selected by the Company and reasonably acceptable to the Executive or his
legal representative, is total and permanent.
(c) Cause. The Company shall be entitled to terminate the
Executive's employment for "Cause." For purposes of this Agreement, "Cause"
shall mean that the Executive (i) pleads "guilty" or "no contest" to or is
convicted of an act which is defined as a felony under federal or state law, or
(ii) engages in willful misconduct which could reasonably be expected to harm
the Company's business or its reputation. For this purpose, an act or failure to
act shall be considered "willful misconduct" only if done, or omitted to be
done, by the Executive in bad faith and without a reasonable belief that such
act or failure to act was in the best interests of the Company.
The Executive's employment with the Company shall not be terminated
for Cause unless he has been given written notice by the Board of its intention
to so terminate his employment (a "Preliminary Notice of Cause"), such notice
(i) to state in detail the particular act or acts or failure or failures to act
that constitute the grounds on which the proposed termination for Cause is based
and (ii) to be given within six months of the Board's learning of such acts or
failures to act. The Executive shall have ten days after the date that the
Preliminary Notice of Cause is given in which to cure such conduct, to the
extent such cure is possible. If the Executive fails to cure such conduct, the
Executive shall be entitled to a hearing before the Board, and to be accompanied
by his counsel, at which he shall be entitled to contest the Board's findings.
Such hearing shall be held within 15 days of notice to the Company by the
Executive, provided he requests such hearing within 30 days of the Preliminary
Notice of Cause. If the Executive fails to request such hearing within the
30-day period specified in the preceding sentence, his employment shall be
terminated for Cause effective upon the expiration of such period, and the
Preliminary Notice of Cause shall be deemed to constitute a Notice of
Termination. If the Executive requests such hearing and, within 10 days
following such hearing, the Executive is furnished with a copy of a resolution,
duly adopted by the affirmative vote of a majority of the members of the Board,
finding that in the good-faith opinion of the Board, the Executive was guilty of
the conduct constituting Cause as specified in the Preliminary Notice of Cause,
the Executive's employment shall be terminated for Cause upon his receipt of
such resolution, and such resolution shall be deemed to constitute a Notice of
Termination. Any such resolution shall be accompanied by a certificate of the
Secretary or another appropriate officer of
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the Company which shall state that such resolution was duly adopted by the
affirmative vote of a majority of the members of the Board at a duly convened
meeting called for such purpose.
(d) Good Reason. The Executive may terminate his employment
hereunder for "Good Reason" by delivering to the Company (i) a Preliminary
Notice of Good Reason (as defined below), and (ii) not earlier than 30 days from
the delivery of such Preliminary Notice of Good Reason, a Notice of Termination.
For purposes of this Agreement, "Good Reason" shall mean the occurrence of any
of the following without the Executive's prior written consent: (A) the failure
to continue the Executive as Chairman of the Board and Chief Executive Officer
of the Company; (B) the failure of the Board to nominate the Executive for
election to the Board at the Company's annual meeting of stockholders; (C) a
material diminution in the Executive's duties, or the assignment to the
Executive of duties materially inconsistent with, or the failure to assign to
the Executive duties which are materially consistent with, his duties,
positions, authority, responsibilities and reporting requirements as set forth
in Section 2 of this Agreement, or the assignment of duties which materially
impair the Executive's ability to function as the Chairman and Chief Executive
Officer of the Company; (D) a reduction in or a material delay in payment of the
Executive's total cash compensation and benefits from those required to be
provided in accordance with the provisions of this Agreement; (E) the failure of
the Company to implement the SERP, a material reduction in the benefits to be
provided under the SERP or an adverse change in the terms and conditions of the
SERP; (F) the Company, the Board or any person controlling the Company requires
the Executive to be based outside of the United States, other than on travel
reasonably required to carry out the Executive's obligations under this
Agreement; or (G) the failure of the Company to obtain the assumption in writing
of its obligation to perform this Agreement by any successor to all or
substantially all of the assets of the Company not later than the effective date
of a merger, consolidation, sale or similar transaction; provided, however, that
"Good Reason" shall not include (X) acts not taken in bad faith which are cured
by the Company in all respects not later than 30 days from the date of receipt
by the Company of a written notice from the Executive identifying in reasonable
detail the act or acts constituting "Good Reason" (a "Preliminary Notice of Good
Reason") or (Y) acts taken by the Company to reassign the Executive's duties
and/or titles to another person or persons if the Executive has suffered a
physical or mental infirmity which renders him unable to substantially perform
his duties under this Agreement, provided that any such acts may be taken by the
Company only after receiving an opinion of a physician reasonably acceptable to
the Executive or his legal representative stating that there is no reasonable
likelihood that the Executive will be able to return to full-time employment
with the Company performing his duties hereunder within 180 days. A Preliminary
Notice of Good Reason shall not, by itself, constitute a Notice of Termination.
(e) Without Cause. The Company may terminate the Executive's
employment hereunder, without Cause, at any time and for any reason (or for no
reason) by giving the Executive a Notice of Termination.
(f) Voluntary; Retirement. The Executive may terminate his
employment hereunder at any time and for any reason other than Good Reason or
Disability (or for no reason) by giving the Company a Notice of Termination.
Such voluntary termination shall be a "Retirement" and such termination shall
not be deemed a breach of this Agreement.
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(g) Notice of Termination. For purposes of this Agreement, a
"Notice of Termination" shall mean a notice which indicates the specific
termination provision in this Agreement relied upon and which sets forth in
reasonable detail, if applicable, the facts and circumstances claimed to provide
a basis for termination of the Executive's employment under the provision so
indicated. For purposes of this Agreement, no purported termination of
employment which requires a Notice of Termination shall be effective without
such Notice of Termination. The Termination Date (as defined below) specified in
such Notice of Termination shall be no less than two weeks from the date the
Notice of Termination is given; provided, however, that (i) if the Executive's
employment is terminated by the Company due to Disability, the date specified in
the Notice of Termination shall be at least 30 days from the date the Notice of
Termination is given to the Executive and (ii) if the Executive terminates his
employment in accordance with Subsection 9(f) of this Agreement, the date
specified in the Notice of Termination shall be at least 30 days from the date
the Notice of Termination is given to the Company.
(i) Termination Date. "Termination Date" shall mean the date
of the termination of the Executive's employment with the Company and
specifically (i) in the case of the Executive's death, his date of death; (ii)
in the case of a termination of the Executive's employment for Cause, the
relevant date specified in Subsection 9(c) of this Agreement; (iii) in the case
of the expiration of the Term of this Agreement in accordance with Section 1,
the date of such expiration; and (iv) in all other cases, the date specified in
the Notice of Termination.
10. Compensation Upon Termination of Employment.
(a) For Cause; Without Good Reason; Retirement. If during
the term of this Agreement, the Executive's employment under this Agreement is
terminated by the Company for Cause, by the Executive other than for Good Reason
and other than by reason of the Executive's death or Disability or by the
Executive on account of his Retirement, (i) the Company's sole obligation
hereunder shall be to pay the Executive the following amounts earned hereunder
but not paid as of the Termination Date (collectively, "Accrued Compensation"):
(A) Base Salary through the Termination Date;
(B) any other compensation which has been earned, accrued or is
owing, under the terms of the applicable plan, program or
practice, to the Executive as of the Termination Date but not
paid, including, without limitation, any incentive awards
under the Bonus Plan;
(C) any amounts which the Executive had previously deferred
(including any interest earned or credited thereon);
(D) reimbursement of any and all reasonable expenses incurred in
connection with the Executive's duties and responsibilities
under this Agreement in accordance with policies established
by the Board from time to time and upon receipt of appropriate
documentation; and
(E) other or additional benefits and entitlements in accordance
with applicable plans, programs and arrangements of the
Company; and
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(ii) subject to the provisions of Subsection 4(b) of this Agreement, the Career
Share Award granted to the Executive pursuant to Subsection 4(b) of this
Agreement shall be immediately forfeited by the Executive effective the
Termination Date and the Executive shall have no further rights in respect
thereof. Notwithstanding the foregoing, if the Executive terminates his
employment with the Company in accordance with Subsection 9(f) of this Agreement
after a Change of Control (as defined in Subsection 10(i) of this Agreement),
the Company shall also be obligated to pay to the Executive a Stay Bonus in an
amount equal to (A) $12 million if the Termination Date is on or after January
1, 2007 or (B) the product of (1) $3 million and (2) the number of completed
years of service by the Executive to the Company during the period commencing on
the Effective Date and ending on the date the Termination Date, if the
Termination Date is on or before December 31, 2006.
(b) Without Cause or for Good Reason Prior to a Change of
Control. If the Executive's employment hereunder is terminated by the Company
without Cause and other than due to Disability or by the Executive for Good
Reason prior to a Change of Control (as defined in Subsection 10(i) of this
Agreement), the Company's sole obligation hereunder shall be as follows:
(i) the Company shall pay the Executive the Accrued
Compensation;
(ii) the Company shall continue to pay the Executive
Base Salary for a period of two years following the
Termination Date in accordance with the Company's customary
practices applicable to its executive officers;
(iii) the Company shall continue to pay the premiums
provided for in Subsection 7(a) of this Agreement for the time
period set forth therein;
(iv) the Company shall pay the Executive, in accordance
with its customary practices applicable to executive officers,
any compensation in the form of incentive awards under the
Stock Incentive Plan (or any successor plan) earned (as to
both satisfaction of performance-based criteria and vesting)
in respect of periods prior to and including the Termination
Date, but not paid as of the Termination Date, provided that
the Career Share Award shall vest and be delivered in
accordance with Section 10(b)(vi) of this Agreement;
(v) the Company shall pay the Executive, at such time
as other participants in the Bonus Plan are paid their
respective bonuses in respect of that fiscal year, a bonus (a
"Pro-Rata Bonus") with respect to the fiscal year in which the
Termination Date occurs equal to the product of (A) the
Executive's target bonus opportunity for that fiscal year and
(B) the fraction obtained by dividing (1) the number of days
in the period beginning on the first day of that fiscal year
and ending on the Termination Date by (2) 365, but only to the
extent that such Pro-Rata Bonus is not payable as part of the
Accrued Compensation;
(vi) the Career Share Award shall become vested as to
that number of shares of Class A Common Stock of the Company
equal to the product of (A) 1,000,000 (one million) and (B)
the fraction obtained by dividing (1) the number
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of completed years of service by the Executive to the Company
during the period commencing on the Effective Date and ending
on the Termination Date by (2) six. A stock certificate or
other appropriate documentation evidencing the number of
shares of Class A Common Stock of the Company which become
vested in accordance with the terms of this Subsection
10(b)(vi), shall be delivered to the Executive on March 31st
of the calendar year immediately following the calendar year
in which the Termination Date occurs and the Executive shall
thereupon become the holder of such number of shares of Class
A Common Stock; and
(vii) the Company shall pay the Executive a Stay Bonus in
an amount equal to $12 million. The Stay Bonus shall be paid
to the Executive on March 31/st/ of the calendar year
immediately following the calendar year in which the
Termination Date occurs.
(c) Without Cause or for Good Reason Within Two Years after a
Change of Control. If the Executive's employment hereunder is terminated by the
Company other than for Cause or by the Executive for Good Reason within two
years after a Change of Control, the Company's sole obligation hereunder shall
be as follows:
(i) the Company shall pay the Executive the Accrued
Compensation;
(ii) the Company shall pay to the Executive, in a lump
sum in cash within five business days after the Termination
Date, the amount of Base Salary which would have been paid to
the Executive for a period of two years following the
Termination Date;
(iii) the Company shall continue to pay the premiums
provided for in Subsection 7(a) of this Agreement for the time
period set forth therein;
(iv) the Company shall pay the Executive, in a lump sum
within five business days after the Termination Date, any
compensation in the form of incentive awards (other than the
Career Share Award) under the Stock Incentive Plan (or any
successor plan) earned (as to satisfaction of
performance-based criteria) in respect of periods prior to and
including the Termination Date, but not paid as of the
Termination Date;
(v) the Company shall pay the Executive, within five
business days after the end of that fiscal year, a Pro-Rata
Bonus with respect to the fiscal year in which the Termination
Date occurs, but only to the extent that such Pro-Rata Bonus
is not payable as part of the Accrued Compensation; and
(vi) the Company shall pay the Executive a Stay Bonus in
an amount equal to $12 million. The Stay Bonus shall be paid
to the Executive as promptly as practicable following the
Termination Date.
(d) Disability. If the Executive's employment hereunder is
terminated by either party by reason of the Executive's Disability, the
Company's sole obligation hereunder shall be as follows:
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(i) the Company shall pay the Executive the Accrued
Compensation;
(ii) the Company shall continue to pay the Executive, in
accordance with the Company's customary practices applicable
to its executive officers, 100% of Base Salary for the first
24 months following the Termination Date and 80% of Base
Salary for the third 12 months following the Termination Date;
provided, however, that such Base Salary shall be reduced by
the amount of any benefits the Executive receives by reason of
his Disability under the Company's relevant disability plan or
plans;
(iii) the Company shall continue to pay the premiums
provided for in Subsection 7(a) of this Agreement for the time
period set forth therein;
(iv) the Career Share Award shall become vested as to
that number of shares of Class A Common Stock of the Company
equal to the product of (A) 1,000,000 (one million) and (B)
the fraction obtained by dividing (1) the number of completed
years of service by the Executive to the Company during the
period commencing on the Effective Date and ending on the
Termination Date by (2) six. A stock certificate or other
appropriate documentation evidencing the number of shares of
Class A Common Stock of the Company which become vested in
accordance with the terms of this Subsection 10(d)(iv), shall
be delivered to the Executive on March 31/st/ of the calendar
year immediately following the calendar year in which the
Termination Date occurs and the Executive shall thereupon
become the holder of such number of shares of Class A Common
Stock; and
(v) the Company shall pay the Executive a Stay Bonus in
an amount equal to $12 million. The Stay Bonus shall be paid
to the Executive on March 31/st/ of the calendar year
immediately following the calendar year in which the
Termination Date occurs.
(e) Death. If the Executive's employment hereunder is
terminated due to his death, the Company's sole obligation hereunder shall be as
follows:
(i) the Company shall pay the Executive's estate or his
beneficiaries (as the case may be) the Accrued Compensation;
(ii) the Company shall pay the Executive's estate or
beneficiaries (as the case may be), at such time as other
participants in the Bonus Plan are paid their respective
bonuses in respect of that fiscal year, a Pro-Rata Bonus with
respect to the fiscal year in which the Termination Date
occurs, but only to the extent that such Pro-Rata Bonus is not
payable as part of the Accrued Compensation;
(iii) the Company shall provide such assistance as is
necessary to facilitate the payment of the life insurance
proceeds provided for in Subsection 7(a) of this Agreement to
the Executive's beneficiary or beneficiaries;
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(iv) the Career Share Award shall become vested as to
that number of shares of Class A Common Stock of the Company
equal to the product of (A) 1,000,000 (one million) and (B)
the fraction obtained by dividing (1) the number of completed
years of service by the Executive to the Company during the
period commencing on the Effective Date and ending on the
Termination Date by (2) six. A stock certificate or other
appropriate documentation evidencing the number of shares of
Class A Common Stock of the Company which become vested in
accordance with the terms of this Subsection 10(e)(iv), shall
be delivered to the Executive's estate or his beneficiaries
(as the case may be) on March 31/st/ of the calendar year
immediately following the calendar year in which the
Termination Date occurs and the Executive's estate or his
beneficiaries (as the case may be) shall thereupon become the
holder(s) of such number of shares of Class A Common Stock;
and
(v) the Company shall pay the Executive's estate or his
beneficiaries (as the case may be) a Stay Bonus in an amount
equal to $12 million. The Stay Bonus shall be paid to the
Executive's estate or his beneficiaries as promptly as
practicable following the Executive's death.
(f) Determination of Base Salary. For purposes of this
Section 10, Base Salary shall be determined by the Base Salary at the annualized
rate in effect on the Termination Date.
(g) Continuation of Employee Welfare Benefits. The Company
shall, at its expense, provide to the Executive and his beneficiaries continued
participation in all medical, dental, vision, prescription drug, hospitalization
and life insurance coverages and in all other employee welfare benefit plans,
programs and arrangements in which the Executive was participating immediately
prior to the Termination Date, on terms and conditions that are no less
favorable than those that applied on the Termination Date, during the following
periods:
(i) The period during which the Executive is receiving
continued payment of Base Salary pursuant to Subsection
10(b)(ii) or 10(d)(ii) of this Agreement; or
(ii) For a period of two years following the Termination
Date, if the Executive's employment is terminated by the
Company other than for Cause or by the Executive for Good
Reason within two years after a Change of Control.
In each case, COBRA benefits will commence after the applicable period has been
completed. Notwithstanding the foregoing, the Company's obligation under this
Subsection 10(g) shall be reduced to the extent that equivalent coverages and
benefits (determined on a coverage-by-coverage and benefit-by-benefit basis) are
provided under the plans, programs or arrangements of a subsequent employer.
In the event that the Executive is precluded from continuing
full participation in any employee benefit plan, program or arrangement as
contemplated by this Subsection 10(g), the Executive shall be provided with the
after-tax economic equivalent of any benefit or
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<PAGE>
coverage foregone. For this purpose, the economic equivalent of any benefit or
coverage foregone shall be deemed to be the total cost to the Executive of
obtaining such benefit or coverage himself on an individual basis. Payment of
such after-tax economic equivalent shall be made quarterly.
(h) No Mitigation; No Offset. In the event of any termination
of his employment hereunder, the Executive shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment
or otherwise and no such payment shall be offset or reduced by the amount of any
compensation provided to the Executive in any subsequent employment, except as
provided in Subsection 10(g) of this Agreement.
(i) Change of Control. For purposes of this Agreement, the
term "Change of Control" shall mean an occurrence of a nature that would be
required to be reported by the Company in response to Item 6(e) of Schedule 14A
of Regulation 14A issued under the Securities Exchange Act of 1934 (the
"Exchange Act"). Without limiting the inclusiveness of the definition in the
preceding sentence, a Change of Control of the Company shall be deemed to have
occurred as of the first day that any one or more of the following conditions is
satisfied:
(i) Any person is or becomes the "beneficial owner" (as
that term is defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company
representing 20% or more of the combined voting power of the
Company's then outstanding securities and such person would be
deemed an "Acquiring Person" for purposes of the Rights
Agreement dated as of July 16, 1998, as amended, between the
Company and National City Bank, as successor Rights Agent (the
"Rights Agreement"); or
(ii) any of the following occur: (A) any merger or
consolidation of the Company, other than a merger or
consolidation in which the voting securities of the Company
immediately prior to the merger or consolidation continue to
represent (either by remaining outstanding or being converted
into securities of the surviving entity) 80% or more of the
combined voting power of the Company or surviving entity
immediately after the merger or consolidation with another
entity; (B) any sale, exchange, lease, mortgage, pledge,
transfer, or other disposition (in a single transaction or a
series of related transactions) of assets or earning power
aggregating more than 50% of the assets or earning power of
the Company on a consolidated basis; (C) any complete
liquidation or dissolution of the Company; (D) any
reorganization, reverse stock split or recapitalization of the
Company that would result in a Change of Control as otherwise
defined herein; or (E) any transaction or series of related
transactions having, directly or indirectly, the same effect
as any of the foregoing.
(j) Release. In exchange for the payment by the Company of
the amounts contemplated by Subsections 10(b) or 10(c) of this Agreement, the
Executive agrees to execute such form of release as is mutually acceptable to
the Company and the Executive.
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11. Employee Covenants.
(a) Unauthorized Disclosure. The Executive shall not, during
the term of this Agreement and thereafter, make any Unauthorized Disclosure. For
purposes of this Agreement, "Unauthorized Disclosure" shall mean disclosure by
the Executive without the prior written consent of the Board to any person,
other than an employee of the Company or a person to whom disclosure is
reasonably necessary or appropriate in connection with the performance by the
Executive of his duties as an executive officer of the Company, of any
confidential information relating to the business or prospects of the Company
including, but not limited to, any confidential information with respect to any
of the Company's customers, products, methods of distribution, strategies,
business and marketing plans and business policies and practices, except (i) to
the extent disclosure is or may be required by law, by a court of law or by any
governmental agency or other person or entity with apparent jurisdiction to
require him to divulge, disclose or make available such information or (ii) in
confidence to an attorney or other advisor for the purpose of securing
professional advice concerning the Executive's personal matters provided such
attorney or other advisor agrees to observe these confidentiality provisions.
Unauthorized Disclosure shall not include the use or disclosure by the
Executive, without consent, of any information known generally to the public or
known within the Company's trade or industry (other than as a result of
disclosure by him in violation of this Subsection 11(a)). This confidentiality
covenant has no temporal, geographical or territorial restriction.
(b) Non-Competition. During the Non-Competition/No-Raid
Period described below, the Executive shall not, directly or indirectly, without
the prior written consent of the Company, own, manage, operate, join, control,
be employed by, consult with or participate in the ownership, management,
operation or control of, or be connected with (as a stockholder, partner, or
otherwise), any business, individual, partner, firm, corporation or other entity
that competes, directly or indirectly, with the Company or any affiliate of the
Company; provided, however, that the "beneficial ownership" (as that term is
defined in Rule 13d-3 under the Exchange Act) by the Executive after his
termination of employment with the Company, either individually or as a member
of a "group" for purposes of Section 13(d)(3) under the Exchange Act and the
regulations promulgated thereunder, of not more than two percent (2%) of the
voting stock of any publicly-held corporation shall not be a violation of this
Agreement.
(c) Non-Solicitation. During the Non-Competition/No-Raid
Period described below, the Executive shall not, either directly or indirectly,
alone or in conjunction with another person, interfere with or harm, or attempt
to interfere with or harm, the relationship of the Company, its subsidiaries
and/or affiliates, with any person who at any time was an employee, customer or
supplier of the Company, its subsidiaries and/or affiliates or otherwise had a
business relationship with the Company, its subsidiaries and/or affiliates.
For purposes of this Agreement, the "Non-Competition/No-Raid
Period" means the period the Executive is employed by the Company plus one year
thereafter.
(d) Remedies. The Executive agrees that any breach of the
terms of this Section 11 would result in irreparable injury and damage to the
Company for which the Company would have no adequate remedy at law; the
Executive therefore also agrees that in the event of said breach or any threat
of breach, the Company shall be entitled to an immediate injunction
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<PAGE>
and restraining order to prevent such breach and/or threatened breach and/or
continued breach by the Executive and/or any and all persons and/or entities
acting for and/or with the Executive, without having to prove damages, in
addition to any other remedies to which the Company may be entitled at law or in
equity. The terms of this Subsection 11(d) shall not prevent the Company from
pursuing any other available remedies for any breach or threatened breach
hereof, including but not limited to the recovery of damages from the Executive.
The Executive and the Company further agree that the provisions of the covenants
not to compete and solicit are reasonable and that the Company would not have
entered into this Agreement but for the inclusion of such covenants herein.
Should a court or arbitrator determine, however, that any provision of the
covenants is unreasonable, either in period of time, geographical area, or
otherwise, the parties hereto agree that the covenants should be interpreted and
enforced to the maximum extent which such court or arbitrator deems reasonable.
The provisions of this Section 11 shall survive any
termination of this Agreement, and the existence of any claim or cause of action
by the 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 and agreements of this Section 11; provided, however, that this
paragraph shall not, in and of itself, preclude the Executive from defending
himself against the enforceability of the covenants and agreements of this
Section 11.
12. Certain Additional Payments.
(a) In the event it shall be determined that any payment,
benefit or distribution of any type to or for the benefit of the Executive by
the Company, any of its affiliates, or any person who acquires ownership or
effective control of the Company or ownership of a substantial portion of the
Company's assets (within the meaning of Section 280G of the Internal Revenue
Code of 1986, as amended (the "Code"), and the regulations thereunder) or any
affiliate of such person, whether paid or payable, received or receivable, or
distributed or distributable pursuant to the terms of this Agreement or
otherwise (the "Total Payments"), is subject to the excise tax imposed by
Section 4999 of the Code or any similar successor provision or any interest or
penalties with respect to such excise tax (such excise tax, together with any
such interest and penalties, are collectively referred to as the "Excise Tax"),
then the Executive shall be entitled to receive an additional payment (the
"Gross-Up Payment") in an amount such that after payment by the Executive of all
taxes (including any interest or penalties imposed with respect to such taxes),
including any Excise Tax, imposed upon the Gross-Up Payment, the Executive
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Total Payments (not including the Gross-Up Payment).
(b) All determinations as to whether any of the Total
Payments are "parachute payments" (within the meaning of Section 280G of the
Code), whether a Gross-Up Payment is required, the amount of such Gross-Up
Payment and any amounts relevant to the last sentence of Subsection 12(a), shall
be made by an independent accounting firm selected by the Company from among the
largest five accounting firms in the United States (the "Accounting Firm").
Unless the Executive agrees otherwise in writing, the Accounting Firm cannot
during the two years preceding the date of its selection have acted in any way
on behalf of the Company or any of its affiliates. The Accounting Firm shall
provide its determination (the "Determination"), together with detailed
supporting calculations, regarding the amount of any Gross-Up Payment
14
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and any other relevant matter, both to the Company and the Executive, within
five days of the Termination Date, if applicable, or such earlier time as is
requested by the Company or the Executive (if the Executive reasonably believes
that any of the Total Payments may be subject to the Excise Tax). Any
determination by the Accounting Firm shall be binding upon the Company and the
Executive. As a result of uncertainty in the application of Section 4999 of the
Code at the time of the initial determination by the Accounting Firm hereunder,
it may be determined that the Company should have made Gross-Up Payments
("Underpayment"), or that Gross-Up Payments will have been made by the Company
which should not have been made ("Overpayments"). In either such event, the
Accounting Firm shall determine the amount of the Underpayment or Overpayment
that has occurred. In the case of an Underpayment, the amount of such
Underpayment shall be promptly paid by the Company to or for the benefit of the
Executive. In the case of an Overpayment, the Executive shall, at the direction
and expense of the Company, take such steps as are reasonably necessary
(including the filing of returns and claims for refund), follow reasonable
instructions from, and procedures established by, the Company, and otherwise
reasonably cooperate with the Company to correct such Overpayment. The Executive
and the Company shall each reasonably cooperate with the other in connection
with any administrative or judicial proceedings concerning the existence or
amount of liability for Excise Tax with respect to the Total Payments.
13. Indemnification.
(a) The Company agrees that if the Executive is made a party,
or is threatened to be made a party, to any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "Proceeding"), by reason of
the fact that he is or was a director, officer or employee of the Company or is
or was serving at the request of the Company as a director, officer, member,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, including service with respect to employee benefit plans,
whether or not the basis of the Proceeding is the Executive's alleged action in
an official capacity while serving as a director, officer, member, employee or
agent, the Executive shall be indemnified and held harmless by the Company to
the fullest extent legally permitted or authorized by the Company's certificate
of incorporation or bylaws or resolutions of the Company's Board of Directors
or, if greater, by the laws of the State of Delaware, against all cost, expense,
liability and loss (including, without limitation, attorneys' fees, judgments,
fines, ERISA excise taxes or other liabilities or penalties and amounts paid or
to be paid in settlement) reasonably incurred or suffered by the Executive in
connection therewith, and such indemnification shall continue as to the
Executive even if he has ceased to be a director, member, employee or agent of
the Company or other entity and shall inure to the benefit of the Executive's
heirs, executors and administrators. The Company shall advance to the Executive
all reasonable costs and expenses incurred by him in connection with a
Proceeding within 20 calendar days after receipt by the Company of a written
request for such advance. Such request shall include an undertaking by the
Executive to repay the amount of such advance if it shall ultimately be
determined that he is not entitled to be indemnified against such costs and
expenses; provided that the amount of such obligation to repay shall be limited
to the after-tax amount of any such advance except to the extent the Executive
is able to offset such taxes incurred on the advance by the tax benefit, if any,
attributable to a deduction realized by him for the repayment.
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<PAGE>
(b) Neither the failure of the Company (including its Board
of Directors, independent legal counsel or stockholders) to have made a
determination prior to the commencement of any Proceeding concerning payment of
amounts claimed by the Executive under Section 13(a) above that indemnification
of the Executive is proper because he has met the applicable standard of
conduct, nor a determination by the Company (including its Board of Directors,
independent legal counsel or stockholders) that the Executive has not met such
applicable standard of conduct, shall create a presumption in any judicial
proceeding that the Executive has not met the applicable standard of conduct.
(c) The Company agrees to continue and maintain a directors'
and officers' liability insurance policy covering the Executive, until such time
as actions against the Executive are no longer permitted by law, with terms and
conditions no less favorable than the most favorable coverage then applying to
any other senior level executive officer or director of the Company.
14. Successors and Assigns.
(a) This Agreement shall be binding upon and shall inure to
the benefit of the Company, its successors and assigns and the Company shall
require any successor or assign to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession or assignment had taken place. The
term "the Company" as used herein shall include any such successors and assigns.
The term "successors and assigns" as used herein shall mean a corporation or
other entity acquiring or otherwise succeeding to, directly or indirectly, all
or substantially all the assets and business of the Company (including this
Agreement) whether by operation of law or otherwise.
(b) Neither this Agreement nor any right or interest
hereunder shall be assignable or transferable by the Executive, his
beneficiaries or legal representatives, except by will or by the laws of descent
and distribution. This Agreement shall inure to the benefit of and be
enforceable by the Executive's legal personal representative.
15. Arbitration. Except with respect to the remedies set forth in
Subsection 11(d) hereof, if in the event of any controversy or claim between the
Company or any of its affiliates and the Executive arising out of or relating to
this Agreement, either party delivers to the other party a written demand for
arbitration of a controversy or claim, then such claim or controversy shall be
submitted to binding arbitration. The binding arbitration shall be administered
by the American Arbitration Association under its Commercial Arbitration Rules.
The arbitration shall take place in Columbus, Ohio. Each of the Company and the
Executive shall appoint one person to act as an arbitrator, and a third
arbitrator shall be chosen by the first two arbitrators (such three arbitrators,
the "Panel"). The Panel shall have no authority to award punitive damages
against the Company or the Executive. The arbitrator shall have no authority to
add to, alter, amend or refuse to enforce any portion of the disputed
agreements. The Company and the Executive each waive any right to a jury trial
or to petition for stay in any action or proceeding of any kind arising out of
or relating to this Agreement. Pending the resolution of any claim under this
Section 15, the Executive (and his beneficiaries) shall continue to receive all
payments and benefits due under this Agreement, except to the extent that the
arbitrator(s) otherwise provide.
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16. Fees and Expenses. The Company shall pay the legal fees reasonably
incurred by the Executive in connection with the negotiation and execution of
this Agreement up to a maximum of $15,000, payable upon submission of the
billing statement or paid receipt for such services rendered by the Executive's
counsel. In addition, the Company agrees to pay promptly upon presentation of an
invoice from the Executive, to the full extent permitted by law, all legal fees
and expenses which the Executive may reasonably incur as a result of (a) any
contest by the Company of the validity or enforceability of, or liability under,
any provision of this Agreement, (b) any effort to enforce the Executive's
rights hereunder or (c) any dispute between the Executive and the Company
relating to this Agreement; provided that Executive also undertakes in writing
to repay such legal fees and expenses if such contest, effort or dispute does
not result in a judgment, award or settlement in Executive's favor in any
material respect.
17. Notice. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement (including the Notice of
Termination) shall be in writing and shall be deemed to have been duly given
when personally delivered or sent by registered or certified mail, return
receipt requested, postage prepaid, or upon receipt if overnight delivery
service or facsimile is used, addressed as follows:
To the Executive:
Michael S. Jeffries
xxxxxxxxxx
xxxxxxxxxx
To the Company:
Abercrombie & Fitch Co.
6301 Fitch Path
New Albany, Ohio 43054
Attn: Executive Vice President and Chief Operating Officer
18. Settlement of Claims. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, recoupment, defense or other right which
the Company may have against the Executive or others.
19. Survivorship. Except as otherwise set forth in this Agreement, the
respective rights and obligations of the Executive and the Company hereunder
shall survive any termination of the Executive's employment.
20. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by the Executive and the Company. No waiver by either
party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreement or
representations, oral
17
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or otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which are not expressly set forth in this Agreement.
21. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Ohio without giving
effect to the conflict of law principles thereof.
22. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
23. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements, if any,
understandings and arrangements, oral or written, between the parties hereto
with respect to the subject matter hereof. This Agreement may be executed in one
or more counterparts.
24. Company Representation. The Company represents and warrants that
it has obtained or will obtain any corporate approvals which are necessary for
the Company to enter into and implement this Agreement.
[The remainder of this page intentionally left blank.
Signatures on following page.]
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer and the Executive has executed this
Agreement as of the day and year first above written.
THE COMPANY:
ABERCROMBIE & FITCH CO.
By: /s/ Seth R. Johnson
--------------------------------------
Seth R. Johnson, its Executive Vice
President and Chief Operating Officer
THE EXECUTIVE:
/s/ Michael S. Jeffries
------------------------------------------
Michael S. Jeffries
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Exhibit A
ABERCROMBIE & FITCH CO.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
(Michael S. Jeffries)
Effective February 2, 2003
<PAGE>
ABERCROMBIE & FITCH CO.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
(Michael S. Jeffries)
1.00 Purpose
Effective February 2, 2003, Abercrombie & Fitch Co. establishes the Abercrombie
& Fitch Co. Supplemental Executive Retirement Plan ("Plan") to provide
additional retirement income to Michael S. Jeffries, one of its select
management and highly compensated employees. This Plan is intended to be an
unfunded, nonqualified deferred compensation plan within the meaning of Title I
of ERISA.
2.00 Definitions
Whenever used in this Plan, the following words and phrases will have the
meanings given below. Also, the singular form of any term will include the
plural, the plural form will include the singular, the masculine pronoun will
include the feminine and the feminine pronoun will include the masculine. Other
words and phrases also may be defined in the Plan text.
2.01 Affiliate: Any entity that is related, through common control with the
Company.
2.02 Board: The Company's board of directors.
2.03 Cause: That the Participant [1] pleads "guilty" or "no contest" to or
is convicted of an act which is defined as a felony under federal or state law,
or [2] engages in willful misconduct which could reasonably be expected to harm
the Company's business or its reputation. For this purpose, an act or failure to
act shall be considered "willful misconduct" only if done, or omitted to be
done, by the Participant in bad faith and without a reasonable belief that such
act or failure to act was in the best interests of the Company.
The Participant shall not be terminated for Cause unless he has been
given written notice by the Board of its intention to so terminate his
employment (a "Preliminary Notice of Cause"), such notice [3] to state in detail
the particular act or acts or failure or failures to act that constitute the
grounds on which the proposed termination for Cause is based and [4] to be given
within six months of the Board's learning of such acts or failures to act. The
Participant shall have ten days after the date that the Preliminary Notice of
Cause is given in which to cure such conduct, to the extent that such cure is
possible. If the Participant fails to cure such conduct, the Participant shall
be entitled to a hearing before the Board, and to be accompanied by his counsel,
at which he shall be entitled to contest the Board's findings. Such hearing
shall be held within 15 days of notice to the Company by the Participant,
provided he requests such hearing within 30 days of the Preliminary Notice of
Cause. If the Participant fails to request such hearing within the 30-day period
specified in the preceding sentence, his employment shall be terminated for
Cause effective upon the expiration of such period. If the Participant requests
such hearing and, within ten days following such hearing, the Participant is
<PAGE>
furnished with a copy of a resolution, duly adopted by the affirmative vote of a
majority of the members of the Board, finding that in the good-faith opinion of
the Board, the Participant was guilty of conduct constituting Cause as specified
in the Preliminary Notice of Cause, the Participant's employment shall be
terminated for Cause upon receipt of such resolution. Any such resolution shall
be accompanied by a certificate of the Secretary or another appropriate officer
of the Company which shall state that such resolution was duly adopted by the
affirmative vote of a majority of the members of the Board at a duly convened
meeting called for such purpose.
2.04 Code: The Internal Revenue Code of 1986, as amended.
2.05 Committee: The Company's Compensation Committee.
2.06 Company: Abercrombie & Fitch Co., a Delaware corporation, and any
successor to it.
2.07 Compensation: The base salary and cash bonus payable by the Company and
each Affiliate to the Participant in respect of services performed during the
period under consideration, plus all amounts earned that the Participant defers
to a later period, including, without limitation, deferrals under a plan or
program described in Code (S)(S) 125 or 401(k) or under any nonqualified plan of
deferred compensation. Compensation shall include the pro-rata portion of any
cash bonus (based on the number of days that the Participant was employed during
the period with respect to which such cash bonus would have been payable) that
the Participant would have received had his employment continued until such cash
bonus was paid. However, Compensation does not include [1] Company contributions
(or contributions by an Affiliate) to, or benefits derived from those
contributions under, this Plan or any other plan of deferred compensation,
whether or not tax-qualified; or [2] the value of any welfare or fringe
benefits, expense reimbursement or similar payments, whether or not deductible
by the Company or any Affiliate or taxable to the Participant; or [3] the value
of any stock options, restricted shares or performance based equity
compensation, regardless of the form in which (or the time at which) it is paid;
or [4] the amount of any "Stay Bonus" as defined and payable in accordance with
the terms of the Amended and Restated Employment Agreement entered into as of
January 30, 2003 by the Company and the Participant.
2.08 Effective Date: February 2, 2003.
2.09 Enrollment Form: The form described in Article 3.00 which the
Participant must complete before he may begin to accrue a Plan benefit. Although
a copy of this form is attached to the Plan, it is not a part of the Plan and
may be modified by the Committee without separate action by the Board and
without regard to the restrictions described in Article 7.00.
2.10 Final Average Compensation: The Participant's Compensation averaged
over the last 36 consecutive full calendar months ending before his Retirement.
2.11 Participant: Michael S. Jeffries.
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2.12 Plan: The Abercrombie & Fitch Co. Supplemental Executive Retirement
Plan, as described in this document and any amendments to it.
2.13 Retirement or Retire: The Participant's Termination of Employment for
any reason other than death or for Cause at or after age 62.
2.14 Termination of Employment: Discontinuance of the Participant's status
as a common law employee of the Company and all Affiliates. For purposes of this
Plan, the Participant will have Terminated Employment even if he continues to
serve as a consultant to or as an independent contractor with respect to the
Company or any Affiliate (including as a member of the Board or an Affiliate's
board of directors) after severing his common law employment relationship with
the Company and each Affiliate.
3.00 Participation
The Participant may enter the Plan on the Effective Date but only after
completing an Enrollment Form.
4.00 Plan Benefit
4.01 Amount of Benefit
Subject to the conditions described in this section and elsewhere in the Plan,
the Participant will receive the benefit described in this section payable in
the form described in Section 4.02.
[1] Retirement On or After December 31, 2008
If the Participant Retires on or after December 31, 2008, he will
receive a monthly benefit for life equal to 50 percent of his Final
Average Compensation. The amount of this benefit will not be
actuarially adjusted to reflect the value of any payments not made to
the Participant because he Retires after December 31, 2008 although
changes in the Participant's Compensation occurring after December 31,
2008 will be taken into account in calculating the Participant's
benefit.
[2] Retirement at or After Age 62, But Before December 31, 2008
If the Participant Retires at or after age 62, but before December 31,
2008, he will receive a monthly benefit for life equal to the amount
determined under the following table:
Attained Age Monthly Benefit
64 46.66% of his Final Average
Compensation
63 43.33% of his Final Average
Compensation
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62 40% of his Final Average
Compensation
In the event that the Participant's Retirement occurs at least one full
calendar month after one of his birthdays set forth in the above table
and before the next birthday, the above percentages of Final Average
Compensation shall be determined by interpolation based on the number
of full calendar months that have elapsed since the Participant's last
birthday.
[3] Other Termination of Employment
The Participant will receive no Plan benefit if he:
[a] Terminates Employment for any reason before reaching age 62;
[b] Dies while actively employed, regardless of his age at the
time of death; or
[c] Is terminated for Cause, regardless of his age at the time
Termination of Employment for Cause occurs.
4.02 Form of Payment
Any benefit payable under Section 4.01 will be paid in monthly installments
beginning on the first day of the month following the Participant's Retirement
and ending on the first day of the month during which the Participant dies. No
payment will be made (and no Plan benefit will be due) to any person after the
Participant's death.
5.00 Taxes
5.01 Withholding for Taxes Due on Plan Payments
Regardless of any other provision of this Plan, any payment due under Article
4.00 will be reduced by the amount of any federal, state and local income and
employment taxes the Company is required to withhold under any applicable law or
regulation from any payment made under Article 4.00.
5.02 Withholding for Taxes Due Before Payments Begin
The Committee and the Participant will agree on the method to be applied to pay
the Participant's portion of any employment, wage and other taxes imposed under
any applicable law or regulation on any Plan benefit before that benefit is paid
to the Participant. If the Committee and Participant fail to agree on the method
to be applied, the Company will withhold the amount of the Participant's
liability from his other Compensation.
4
<PAGE>
5.03 Special Distribution
If any taxing authority finally establishes that the Participant is
constructively in receipt of any Plan benefit that has not actually been
distributed and that the Participant is immediately liable for any income or
other taxes (other than any taxes within the scope of Section 5.02) that
normally would not be imposed until the Plan benefit is actually paid to the
Participant, the Committee will immediately distribute to the Participant a lump
sum amount equal to that which the taxing authority has deemed the Participant
to have constructively received.
6.00 Administration
6.01 Appointment of Committee
The Plan will be administered by the Committee.
6.02 Powers and Duties
The Committee is fully empowered to exercise complete discretion to administer
the Plan and to construe and apply all of its provisions. These powers and
duties include:
[1] Resolving disputes that may arise with regard to the rights of
the Participant and his legal representatives under the terms of the
Plan. Subject to Section 6.07, the Committee's decisions in these
matters will be final in each case;
[2] Obtaining from the Company, each Affiliate and the Participant
information that the Committee needs to determine the Participant's
rights and benefits under the Plan. The Committee may rely conclusively
upon any information furnished by the Company or the Participant;
[3] Compiling and maintaining all records it needs to administer the
Plan;
[4] Upon request, furnishing the Company with reasonable and
appropriate reports of its administration of the Plan;
[5] Authorizing the distribution of all benefits that are payable
under the Plan;
[6] Engaging legal, administrative, actuarial, investment,
accounting, consulting and other professional services that the
Committee believes are necessary and appropriate;
[7] Adopting rules and regulations for the administration of the Plan
that are not inconsistent with the terms of the Plan; and
[8] Doing and performing any other acts provided for in the Plan.
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Also, the Committee may delegate any of the powers and duties described in
subsections 6.02[2] through [4] to any other person or organization, as it deems
appropriate.
6.03 Actions by the Committee
The Committee may act at a meeting by the vote or assent of a majority of its
members or in writing without a meeting by the written assent of all its
Members. The Committee will appoint one of its members to act as secretary to
record all Committee actions. The Committee also may authorize one or more if
its members to execute papers and perform other ministerial duties on behalf of
the Committee.
6.04 Indemnification
The Committee will be indemnified by the Company to the fullest extent permitted
by the Company's certificate of incorporation and by-laws.
6.05 Conclusiveness of Action
Subject to Section 6.07, any action on matters within the discretion of the
Committee will be conclusive, final and binding upon the Participant and upon
all persons claiming any rights under the Plan.
6.06 Payment of Expenses
[1] Committee members will not be separately compensated for their
services as Committee members. However, the Company will reimburse
Committee members for all appropriate expenses they incur while
carrying out their Plan duties.
[2] The compensation or fees of accountants, counsel and other
specialists and any other costs of administering the Plan will be paid
by the Company.
6.07 Resolution of Disputes
If, in the event of any controversy or claim between the Company or any of its
Affiliates and the Participant arising out of or relating to this Plan, either
party delivers to the other party a written demand for arbitration of a
controversy or claim, then such claim or controversy shall be submitted to
binding arbitration. The binding arbitration shall be administered by the
American Arbitration Association under its Commercial Arbitration Rules. The
arbitration shall take place in Columbus, Ohio. Each of the Company and the
Participant shall appoint one person to act as an arbitrator, and a third
arbitrator shall be chosen by the first two arbitrators (such three arbitrators,
the "Panel"). The Panel shall have no authority to award punitive damages
against the Company or the Participant. The Panel shall have no authority to add
to, alter, amend or refuse to enforce any portion of the disputed agreements.
The Company and the Participant each waive any right to a jury trial or to
petition for stay in any action or proceeding of any kind arising out or
relating to this Plan. Pending the resolution of any claim under this Section
6.07, the
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Participant shall continue to receive all undisputed payments and benefits due
under this Plan, except to the extent that the Panel otherwise provides.
7.00 Plan Amendment
The Company, by action of the Board, may modify, alter or amend the Plan at any
time. However, no such amendment may affect, directly or indirectly, the
Participant's rights under the Plan unless the Participant agrees to such
amendment either in a separate written agreement or by voting, as a member of
the Board, for such amendment.
8.00 Merger of Plan; Successor Employer
8.01 Merger and Consolidation
If the Plan is merged into or consolidated with any other plan, the Participant
will be entitled to rights and benefits immediately after the merger or
consolidation at least equal to his rights and benefits under this Plan.
8.02 Successor Employer
If the Company dissolves, reorganizes, merges into or consolidates with another
business entity, provision may be made by which the successor will continue the
Plan, in which case the successor will be substituted for the Company under the
terms and provisions of this Plan. The substitution of the successor for the
Company will constitute an assumption by the successor of all Plan liabilities
and the successor will have all of the powers, duties and responsibilities of
the Company under the Plan.
9.00 Funding
This Plan constitutes an unfunded, unsecured promise by the Company and each
Affiliate to pay only those benefits that are accrued by the Participant under
the terms of the Plan. Neither the Company nor any Affiliate will segregate any
assets into a fund established exclusively to pay Plan benefits unless the
Company, in its sole discretion, establishes a trust for this purpose. Neither
the Company nor any Affiliate is liable for the payment of Plan benefits that
are actually paid from a trust established for that purpose. Also, the
Participant has only the rights of a general unsecured creditor and does not
have any interest in or right to any specific asset of the Company or any
Affiliate. Nothing in this Plan constitutes a guaranty by the Company, any
Affiliate or any other entity or person that the assets of the Company, any
Affiliate or any other entity will be sufficient to pay Plan benefits.
10.00 Miscellaneous
10.01 Voluntary Plan
The Plan is purely voluntary on the part of the Company; neither the
establishment of the Plan nor any amendment to it nor the creation of any fund
or account nor the payment of any benefits may be construed as giving any person
[1] a legal or equitable right against
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the Company, any Affiliate or the Committee other than those specifically
granted under the Plan or conferred by affirmative action of the Committee or
the Company or any Affiliate in a manner that is consistent with the terms and
provisions of this Plan or [2] the right to be retained as an employee.
10.02 Nonalienation of Benefits
The Participant's right to receive Plan benefits may not be assigned,
transferred, pledged or encumbered, including by will or by applicable laws of
descent and distribution. Any attempt to assign, transfer, pledge, encumber or
devise a Plan benefit will be null and void and of no legal effect.
10.03 Inability to Receive Benefits
Any Plan benefit payable to the Participant after he is declared incompetent
will be paid to the guardian, conservator or other person legally charged with
the care of his person or estate. Also, if the Committee, in its sole
discretion, concludes that the Participant is unable to manage his financial
affairs, the Committee may, but is not required to, direct the Company to
distribute Plan benefits to any one or more of his spouse, lineal ascendants or
descendants or other close living relatives of the Participant or any other
person then contributing toward or providing the care and maintenance of the
Participant who demonstrates to the satisfaction of the Committee the propriety
of those distributions. Any payment made under this Section 10.03 will
completely discharge the Plan's liability with respect to that payment. The
Committee is not required to see to the application of any distribution made to
any person.
10.04 Lost Participant
The Participant is obliged to keep the Committee apprised of his current mailing
address. The Committee's obligation to search for the Participant is limited to
sending a registered or certified letter to the Participant's last known
address. If the Participant does not file a claim for benefits with the
Committee within 12 months after benefits are otherwise payable, benefits will
be forfeited. However, this forfeited benefit will be restored and paid if the
Committee subsequently approves a claim for benefits.
10.05 Limitation of Rights
Nothing in the Plan, expressed or implied, is intended or may be construed as
conferring upon or giving to any person, firm or association (other than the
Company, the Affiliates and the Participant) any right, remedy or claim under or
by reason of this Plan.
10.06 Invalid Provision
If any provision of this Plan is held to be illegal or invalid for any reason,
the Plan will be construed and enforced as if the offending provision had not
been included in the Plan. However, that determination will not affect the
legality or validity of the remaining parts of this Plan.
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10.07 One Plan
This Plan may be executed in any number of counterparts, each of which will be
deemed to be an original.
10.08 Governing Law
The Plan will be governed by and construed in accordance with the laws of the
United States and, to the extent applicable, the laws of Ohio.
10.09 Coordination With Other Programs
The Participant's right to any benefits accrued or payable under this Plan will
be determined solely by reference to the terms of this Plan document and will be
unaffected by any other document or agreement between the Participant and the
Company.
IN WITNESS WHEREOF, the undersigned authorized officer of the Company has
executed this Plan to be effective as of February 2, 2003.
ABERCROMBIE & FITCH CO.
By: /s/ Seth R. Johnson
-------------------------------
Print Name: Seth R. Johnson
------------------------
Title: Ex. VP/COO
-----------------------------
Date: 1/30/03
------------------------------
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ABERCROMBIE & FITCH CO.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
ENROLLMENT FORM
Name: Michael Jeffries
--------------------------------------------------------------------------
Soc. Sec. No.: XXXXXXX
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Date of Birth: XXXXXXX
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Address: XXXXXXX
-----------------------------------------------------------------------
XXXXXXX
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By signing this form, I acknowledge that [1] I have read and understand the Plan
and the terms and conditions I must meet to receive a Plan benefit, [2] the Plan
is unfunded, [3] I am solely responsible for ensuring that the Committee's files
contain my current mailing address and [4] by signing this form, I agree to be
bound by all terms and conditions imposed by the Plan.
Signature: /s/ Michael Jeffries
----------------------------------------------------
Name (please print): Michael Jeffries
------------------------------------------
Date signed: 1/30/03
--------------------------------------------------
Received by Committee on: 1/30/03
-------------------------------------
By: John W. Kessler
-----------------------------------------------------------
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