ANNTAYLOR
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement"), effective as of April
24, 2001 (the "Effective Date"), between ANNTAYLOR STORES CORPORATION, a
Delaware corporation (the "Company"), and Kim Roy (the "Executive").
WHEREAS, the Company desires to provide for the service and
employment of the Executive with the Company and the Executive wishes to
perform services for the Company, all in accordance with the terms and
conditions provided herein;
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements of the parties herein contained, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. Employment. The Company hereby agrees to employ the Executive, and the
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Executive hereby agrees to serve the Company, on the terms and conditions set
forth herein.
2. Term. The term of employment of the Executive by the Company hereunder
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(the "Term") will commence as of the Effective Date and will end on the third
anniversary of the Effective Date; provided, however, that commencing on the
third anniversary of the Effective Date, and each such anniversary
thereafter, the term of the Executive's employment shall automatically be
extended for one (1) additional year, unless, no later than 90 days prior to
such anniversary, either party shall have given notice to the other that it
does not wish to extend the Term of this Agreement (such notice, a
"Non-Renewal Notice"). Notwithstanding expiration of the Term or other
provisions that survive by their intent, the provisions of Sections 4, 7 and
8 hereof shall continue in effect.
3. Position and Duties. The Executive shall serve as President - Ann
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Taylor Stores and shall have such responsibilities, duties and authority
consistent with such position as may from time to time be determined by the
Board of Directors of the Company (the "Board"). The Executive shall report
directly to the Chairman and Chief Executive Officer (the "CEO"). The
Executive shall devote substantially all of her working time and efforts to
the business and affairs of the Company.
4. Indemnification. To the fullest extent permitted by law and the
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Company's certificate of incorporation and by-laws, the Company shall
indemnify the Executive for all amounts (including, without limitation,
judgments, fines, settlement payments, losses, damages, costs and expenses
(including reasonable attorneys' fees) incurred or paid by the Executive in
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connection with any action, proceeding, suit or investigation arising out of
or relating to the performance by the Executive of services for, or acting as
a fiduciary of any employee benefit plans, programs or arrangements of the
Company or as a director, officer or employee of, the Company or any
subsidiary thereof.
5. Compensation and Related Matters.
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(a) Annual Compensation.
(i) Base Salary. Commencing on the Effective Date and continuing during the
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period of the Executive's employment hereunder, the Company shall pay to
the Executive an annual base salary at a rate not less than $650,000,
such salary to be paid in conformity with the Company's policies
relating to salaried employees. This salary may be (but is not required
to be) increased from time to time, subject to and in accordance with
the annual executive performance review procedures of the Company.
(ii) Annual Bonus. Commencing on the Effective Date and continuing during
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the period of Executive's employment hereunder, the Executive shall be
eligible to participate in the Company's annual bonus plan as in effect
from time to time, and shall be entitled to receive such amounts (a
"Bonus") as may be authorized, declared and paid by the Company pursuant
to the terms of such plan. The Company currently maintains a Management
Performance Compensation Plan (the "Performance Plan") pursuant to which
it pays performance bonus compensation to certain of its executives and
employees. It is agreed that the Executive shall participate in the
Performance Plan effective as of the Effective Date. This Executive's
Performance Percentage (as that term is defined in the Performance Plan)
shall be established at 60% per annum during the Term. Executive shall
also participate in the Long Term Cash Incentive Compensation Plan
currently maintained by the Company, and her Target Award (as defined in
such plan) shall be 40%.
(b) Stock Option. As of the Effective Date, the Executive has been granted
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a ten-year non-qualified option to acquire 60,000 shares of common stock of
the Company ("Shares") pursuant to the Company's Amended and Restated 1992
Stock Option and Restricted Stock Plan (the "1992 Plan"). The option price
per Share shall be equal to the Fair Market Value (as defined in the 1992
Plan) of a Share as of the Effective Date. The option shall become
exercisable with respect to one-fourth of the Shares subject thereto on each
of the first four anniversaries of the Effective Date, provided Executive has
remained continuously employed by the Company until the applicable date
(except as provided in Section 6(e)(vi) hereof). However, if the Executive's
employment is terminated for other than Cause at any point following the
third anniversary of the Effective Date of the Agreement, then any options
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remaining from this initial grant that are unvested and unexercised shall
vest on an accelerated basis. The option granted hereunder shall contain
such other terms and conditions as are set forth in the Company's standard
stock option agreements applicable to such option, including, but not limited
to, accelerated exercisability upon the occurrence of a Change in Control,
which shall have the same meaning as the term "Acceleration Event," as
defined in the 1992 Plan (a "Change in Control").
(c) Restricted Stock. As of the Effective Date, Executive has been granted
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30,000 restricted shares of common stock of the Company (the "Restricted
Shares") pursuant to the 1992 Plan. One-fourth of the Restricted Shares
shall vest on, and be delivered to the Executive promptly following, each of
the first four anniversaries of the Effective Date, provided the Executive
has remained continuously employed by the Company until the applicable date
(except as provided in Section 6(e)(v) hereof). In the event that Executive's
employment is terminated for other than Cause at any point following the
third anniversary of the Effective Date of the Agreement, then any restricted
shares remaining from this initial grant that are unvested shall vest on an
accelerated basis. Notwithstanding the foregoing, any outstanding Restricted
Shares shall become fully vested on a Change in Control.
(d) Other Benefits. Commencing on the Effective Date and continuing during
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the period of Executive's employment hereunder, the Executive shall be
entitled to participate in all other employee benefit plans, programs and
arrangements of the Company, as now or hereinafter in effect, which are
applicable to the Company's employees generally or to its executive officers,
as the case may be, subject to and on a basis consistent with the terms,
conditions and overall administration of such plans, programs and
arrangements. During the period of Executive's employment hereunder, the
Executive shall be entitled to participate in and receive any fringe benefits
or perquisites which may become available to the Company's executive
employees.
(e) Vacations and Other Leaves. The Executive shall be entitled to four (4)
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weeks vacation per year and to paid holidays and personal leave days
determined in accordance with applicable Company plans and policies.
(f) Expenses. During the period of the Executive's employment hereunder,
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the Executive shall be entitled to receive prompt reimbursement for all
reasonable and customary expenses incurred by the Executive in performing
services hereunder, including all expenses of travel and accommodations while
away from home on business or at the request of and in the service of the
Company; provided that, such expenses are incurred and accounted for in
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accordance with the policies and procedures established by the Company.
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6. Termination. (a) The Executive's employment hereunder may be
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terminated without breach of this Agreement only under the following
circumstances:
(i) Death. The Executive's employment hereunder shall terminate upon her
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death.
(ii) Cause. The Company may terminate the Executive's employment hereunder
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for "Cause". For purposes of this Agreement, the Company shall have
"Cause" to terminate the Executive's employment hereunder upon the (1)
the Executive's conviction for the commission of an act or acts
constituting a felony under the laws of the United States or any state
thereof, (2) action by the Executive toward the Company involving
dishonesty, (3) the Executive's refusal to abide by or follow reasonable
written directions of the Board or the CEO, which does not cease within
ten (10) business days after such written notice regarding such refusal
has been give to the Executive by the Company, (4) the Executive's gross
nonfeasance which does not cease within ten (10) business days after
notice regarding such nonfeasance has been give to the Executive by the
Company or (5) failure of the Executive to comply with the provisions of
Section 7 or 8 of this Agreement, or other willful conduct by the
Executive which is intended to have and does have a material adverse
impact on the Company.
(iii) Disability. If, as a result of the Executive's incapacity due to
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physical or mental illness, the Executive shall have been absent from
her duties hereunder on a full-time basis for the entire period of six
(6) consecutive months, and within thirty (30) days after written Notice
of Termination (as defined in Section 6(b) below) is given (which may
occur before or after the end of such six (6) month period) shall not
have returned to the performance of her duties hereunder on a full-time
basis, the Executive's employment hereunder shall terminate for
"Disability".
(iv) Termination by the Executive. The Executive may terminate her
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employment hereunder for "Good Reason". For purposes of this Agreement,
the Executive shall have "Good Reason" to terminate her employment
hereunder (1) upon a failure by the Company to comply with any material
provision of this Agreement which has not been cured within ten (10)
business days after notice of such noncompliance has been given by the
Executive to the Company, (2) upon action by the Company resulting in a
diminution of the Executive's title or authority or (3) upon the
Company's relocation of the Executive's principal place of employment
outside of the New York City metropolitan area, or (4) one year after a
Change in Control.
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(b) Notice of Termination. Any termination of the Executive's employment by
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the Company or by the Executive (other than termination under Section 6(a)(i)
hereof) shall be communicated by written Notice of Termination to the other
party hereto in accordance with Section 10 hereof. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which shall indicate
the specific termination provision in this Agreement relied upon and shall
set forth in reasonable detail the fact and circumstances claimed to provide
a basis for termination of the Executive's employment under the provision so
indicated.
(c) Date of Termination. "Date of Termination" shall mean (i) if the
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Executive's employment is terminated by her death, the date of her death,
(ii) in the event that the Term shall expire as a result of a Non-Renewal
Notice provided by the Company to the Executive, the date of the expiration
of the Term and (iii) in each other case, the date specified in the Notice of
Termination; provided that, if within thirty (30) days after any Notice of
Termination is given the party receiving such Notice of Termination notifies
the other party that a dispute exists concerning the termination, the Date of
Termination shall be the date on which the dispute is finally determined,
either by mutual written agreement of the parties or by a binding and final
arbitration award.
(d) Termination Upon Death; Disability; for Cause; Voluntary Termination
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other than for Good Reason. If the Executive's employment is terminated by
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reason of Executive's death or Disability, by the Company for Cause or
voluntarily by the Executive other than for Good Reason, the Company shall,
as soon as practicable after the Date of Termination, pay the Executive all
unpaid amounts, if any, to which the Executive is entitled as of the Date of
Termination under Section 5(a) hereof and shall pay to the Executive, in
accordance with the terms of the applicable plan or program, all other unpaid
amounts to which Executive is then entitled under any compensation or benefit
plan or program of the Company (collectively, "Accrued Obligations"); upon
such payment, the Company shall have no further obligations to the Executive
under this Agreement.
(e) Termination Without Cause; Termination for Good Reason; Non-Renewal. If
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the Company shall terminate the Executive's employment other than for Cause
or the Executive shall terminate her employment for Good Reason or the Term
shall expire as a result of a Non-Renewal Notice provided by the Company to
the Executive, then, subject to compliance with the provisions of Sections 7
and 8 hereof:
(i) the Company shall pay to the Executive, as soon as practicable after the
Date of Termination, the Accrued Obligations;
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(ii) (A) unless clause (B) below applies, then following the Date of
Termination and for the longer of twelve (12) months thereafter or the
balance of the Term, the Company shall pay to the Executive monthly an
amount, ("Severance Payments") equal to the quotient of the Executive's
annual base salary at the rate in effect as of the Date of Termination
(the "Base Salary"), divided by the number twelve (12) (minus any
amounts payable to the Executive during any such month as a disability
benefit under a Company paid plan), or (B) in the event the Date of
Termination occurs on or following a Change in Control, then, within
five (5) days after the Date of Termination, the Company shall pay to
the Executive in a lump sum an amount equal to the product of (X) the
sum of the Executive's Base Salary and the average of the total bonuses
earned by the Executive, including bonuses paid under the Company's
Management Performance Compensation Plan and the Company's Long Term
Incentive Cash Compensation Plan, in the three fiscal years of the
Company ended immediately prior to the Date of Termination (or, if
higher, in the three fiscal years of the Company ended immediately prior
to the Change in Control) multiplied by (Y) two and one-half (2-1/2).
For purposes of this subsection (ii): (I) if the Date of Termination
occurs prior to the occurrence of a Change in Control but during the
pendency of a Potential Change in Control (as hereinafter defined), such
Date of Termination shall be deemed to have occurred following a Change
in Control and (II) a "Potential Change in Control" shall be deemed to
have occurred if the event set forth in any one of the following clauses
shall have occurred:
(1) the Company enters into an agreement, the consummation of
which would result in the occurrence of a Change in Control;
(2) the Company or any person (as defined in Section 3(a)(9)
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), as modified and used in Sections 13(d) and 14(d) thereof (a
"Person"), except that such term shall not include (i) the Company
or any of its subsidiaries, (ii) a trustee or other fiduciary
holding securities under an employee benefit plan of the Company or
any of its affiliates, (iii) an underwriter temporarily holding
securities pursuant to an offering of such securities, or (iv) a
corporation owned, directly or indirectly, by the stockholders of
the Company in substantially the same proportions as their
ownership of stock of the Company) publicly announces an intention
to take or to consider taking actions which, if consummated, would
constitute a Change in Control;
(3) any Person becomes the beneficial owner (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of
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securities of the Company representing 15% of or more of either the
then outstanding shares of common stock of the Company or the
combined voting power of the Company's then outstanding securities
(not including in the securities beneficially owned by such Person
any securities acquired directly from the Company); or
(4) the Board adopts a resolution to the effect that, for
purposes of this subsection (ii), a Potential Change in Control has
occurred.
For purposes of this Agreement, the period during or with respect to which
Executive is entitled to receive payments hereunder is referred to as the
"Severance Period";
(iii) the Company shall pay to the Executive, at the same time as bonuses are
paid to other Company executives, a Bonus with respect to the fiscal
year in which occurs the Date of Termination, such Bonus to be based
upon actual performance for such fiscal year and pro rated to reflect
the number of days in such fiscal year through and including the Date of
Termination; and
(iv) the Executive shall continue to be provided for the duration of the
Severance Period with the same medical and life insurance coverage as
existed immediately prior to the Notice of Termination; provided,
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however, that benefits otherwise receivable by the Executive pursuant to
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this Section 6(e)(iv) shall be reduced to the extent that benefits of
the same type are received by or made available to the Executive during
the Severance Period (and any such benefits received by or made
available to the Executive shall be reported to the Company by the
Executive). For the purpose of medical and life insurance coverage
referred to in this subparagraph, the term "Severance Period" shall
include the period following the Date of Termination and for the longer
of twelve (12) months thereafter or the balance of the Term;
(v) any outstanding Restricted Shares shall become fully vested;
(vi) in the event that the Date of Termination occurs prior to a Change in
Control, then each outstanding Option shall vest and become exercisable
in accordance with the schedule set forth in Section 5(b) hereof as if
no termination of employment occurred and such Option shall terminate 90
days after the expiration of the Severance Period;
(vii) in the event that the Date of Termination occurs on or after a Change in
Control, then each outstanding Option which became vested upon such
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Change in Control in accordance with the terms of Sections 5(b) and (c)
hereof shall terminate 90 days after the expiration of the Severance
Period.
(f) Gross-Up Payment. In the event that any payment or benefit received or
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to be received by the Executive in connection with a Change in Control or the
termination of the Executive's employment, whether such payments or benefits
are received pursuant to the terms of this Agreement or any other plan,
arrangement or agreement with the Company, any person whose actions result in
a Change in Control or any person affiliated with the Company or such person
(all such payments and benefits being hereinafter called "Total Payments"),
would be subject (in whole or part), to the tax (the "Excise Tax") imposed
under Section 4999 of the Internal Revenue Code of 1986, as amended (the
"Code"), the Company shall pay to the Executive such additional amounts (the
"Gross-Up Payment") as may be necessary to place the Executive in the same
after-tax position as if no portion of the Total Payments had been subject to
the Excise Tax. In the event that the Excise Tax is subsequently determined
to be less than the amount taken into account hereunder, the Executive shall
repay to the Company, at the time that the amount of such reduction in Excise
Tax is finally determined, the portion of the Gross-Up Payment attributable
to such reduction (plus that portion of the Gross-Up Payment attributable to
the Excise Tax and federal, state and local income tax imposed on the
Gross-Up Payment being repaid by the Executive to the extent that such
repayment results in a reduction in Excise Tax and/or a federal, state or
local income tax deduction) plus interest on the amount of such repayment at
the rate provided in Section 1274(b)(2)(B) of the Code. In the event that
the Excise Tax is determined to exceed the amount taken into account
hereunder (including by reason of any payment the existence or amount of
which cannot be determined at the time of the Gross-Up Payment), the Company
shall make an additional Gross-Up Payment in respect of such excess (plus any
interest, penalties or additions payable by the Executive with respect to
such excess) at the time that the amount of such excess is finally
determined. 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.
7. Nonsolicitation; Noncompete.
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(a) Subject to (c) below, during the period of Executive's employment,
during the period she is receiving Severance Payments hereunder and, in the
case where the Executive's employment is terminated for Cause or executive
voluntarily terminates her employment without Good Reason, for a period of
twelve (12) months following such termination, the Executive shall not
initiate discussions with any person who is then an executive employee of the
Company (i.e., director level or above) with the intent of soliciting or
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inducing such person to leave her or her employment, with a view toward
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joining the Executive in the pursuit of any business activity (whether or not
such activity involves engaging or participating in a Competitive Business,
as defined below). Notwithstanding and other provision of this Agreement to
the contrary, in the event Executive fails to comply with the preceding
sentence, all rights of the Executive and her surviving spouse or other
beneficiary hereunder to any future Severance Payments, Bonus Payments and
continuing life insurance and medical coverage and all rights with respect to
restricted stock and exercisability of stock options shall be forfeited;
provided that, the foregoing shall not apply if such failure of compliance
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commences following a Change in Control.
(b) Subject to (c) below, for as long as Executive receives Severance
Payments, or in the case where the Executive's employment is terminated for
Cause or executive voluntarily terminates her employment without Good Reason,
for a period of twelve (12) months following such termination, Executive
shall not, without the prior written consent of the Company (which consent
shall not be unreasonably withheld), engage or participate in any business
which is "in competition" (as defined below) with the business of the Company
or any of its 50% or more owned affiliates (such business being referred to
herein as a "Competitive Business"). Notwithstanding any other provision of
this Agreement to the contrary, in the event the Executive fails to comply
with the preceding sentence, all rights of the Executive and her surviving
spouse or other beneficiary hereunder to any future Severance Payments, Bonus
Payments and continuing life insurance and medical coverage and all rights
with respect to restricted stock and exercisability of stock options shall be
forfeited; provided that, the foregoing shall not apply if such failure of
compliance commences following a Change in Control.
(c) In the event of a violation of paragraphs 7(a) or 7(b) hereof, the
remedies of the Company shall be limited to (i) if such violation occurs
during the period of Executive's employment hereunder, termination of the
Executive for Cause and the associated rights of the Company specified herein
resulting therefrom, (ii) regardless of when such violation occurs,
forfeiture by the Executive of the payments, benefits and other rights set
forth in paragraphs (a) and (b) above if and to the extent provided in such
paragraphs, and (iii) the right to seek injunctive relief in accordance with
and to the extent provided in Section 14 hereof.
(d) For purposes hereof, a business will be "in competition" with the
business of the Company or its 50% or more owned affiliates if (i) the
Company's business with which the other business competes accounted for 20%
or more of the Company's consolidated revenues as of the end of its most
recently completed fiscal year prior to the Date of Termination, and (ii) the
entity (including all 50% or more owned affiliates) through which the other
business is or will be operated maintains a "women's apparel" business which
generated at least $50 million in revenue during the entity's most recently
completed fiscal year ended prior to the date the Executive commences (or
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proposes to commence) to engage or participate in the other business. For
purposes hereof, "women's apparel" shall consist of dresses, jackets, pants,
skirts, blouses, sweaters, T-shirts, outerwear, footwear and accessories.
(e) Notwithstanding the foregoing, the Executive's engaging in the following
activities shall not be construed as engaging or participating in a
Competitive Business: (i) investment banking; (ii) passive ownership of less
than 2% of any class of securities of a public company; (iii) engaging or
participating in noncompetitive businesses of an entity which also operates a
business which is "in competition" with the business of the Company or its
affiliates; (iv) serving as an outside director of an entity which operates a
business which is "in competition" with the business of the Company or its
affiliates, so long as such business did not account for 10% or more of the
consolidated revenues of such entity as of the end of its most recently
completed fiscal year prior to the date Executive commences (or proposes to
commence) serving as an outside director; (v) engaging in a business
involving licensing arrangements so long as such business is not an in-house
arrangement for any entity "in competition" with the business of the Company
or its affiliates; (vi) affiliation with an advertising agency and (vii)
after cessation of employment, engaging or participating in the "wholesale"
side of the women's apparel business, which for purposes hereof shall mean
the design, manufacture and sale of piece goods and women's apparel to
unrelated third parties, provided that if the entity for which the Executive
so engages or participates (including its affiliates) also conducts a retail
women's apparel business, then effective upon the Executive's engaging or
participating in such business, all continuing life insurance and medical
coverage provided by the Company shall cease and all Severance Payments shall
cease except for amounts representing the excess (if any) of the Executive's
annual base salary hereunder (at the rate in effect as of the Date of
Termination) over the executive's base salary received from such entity and
its affiliates, which amounts shall continue to be paid by the Company for
the remainder of the Severance Period. The exceptions contained in
subparagraph (vii) above and subparagraph (iii) above to the extent covered
by subparagraph (vii) shall not be applicable if the Executive's cessation of
employment is voluntary by the Executive without Good Reason and her new
engagement of participation involves "wholesale" operations which include or
also conduct retail sales of women's apparel other than factory outlet or
discount stores to liquidate unsold women's apparel of such wholesale
operations.
8. Protection of Confidential Information.
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(a) Executive acknowledges that her employment by the Company will,
throughout the Term of this Agreement, involve her obtaining knowledge of
confidential information regarding the business and affairs of the Company.
In recognition of the foregoing, the Executive covenants and agrees:
(i) that, except in compliance with legal process, she will keep secret all
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confidential matters of the Company which are not otherwise in the
public domain and will not intentionally disclose them to anyone outside
of the Company, wherever located (other than to a person to whom
disclosure is reasonably necessary or appropriate in connection with the
performance by Executive of her duties as an executive officer of the
Company), either during or after the Term, except with the prior written
consent of the Board or a person authorized thereby; and
(ii) that she will deliver promptly to the Company on termination of her
employment, or at any other time the Company may so request, all
memoranda, notes, records, customer lists, reports and other documents
(and all copies thereof) relating to the business of the Company which
she obtained while employed by, or otherwise serving or acting on behalf
of, the Company and which she may then possess or have under her control.
(b) Notwithstanding the provisions of Section 14 of this Agreement, if the
Executive commits a breach of the provisions of Section 8(a)(i) or 8(a) (ii),
the Company shall have the right and remedy to have such provisions
specifically enforced by any court having equity jurisdiction, it being
acknowledged and agreed that any such breach or threatened breach will cause
irreparable injury to the Company and that money damages will not provide an
adequate remedy to the Company.
9. Successors; Binding Agreement.
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(a) Neither this Agreement nor any rights hereunder shall be assignable or
otherwise subject to hypothecation by the Executive (except by will or by
operation of the laws of intestate succession) or by the Company, except that
the Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of the Company, by agreement in form and substance
reasonably satisfactory to the Executive, 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 had taken
place. As used in this Agreement, "Company" shall mean the Company as herein
before defined and any successor to its business and/or assets as aforesaid
which executes and delivers the agreement provided for in this Section 9 or
which otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law.
(b) This Agreement and all rights of the Executive hereunder shall inure to
the benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Executive should die while any amounts would
still be payable to her hereunder if she had continued to live, all such
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amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to the Executive's devisee, legatee, or other
designee or, if there be no such designee, to the Executive's estate.
10. Notice. For the purposes of this Agreement, notices, demands and all
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other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered or (unless otherwise
specified) mailed by United States certified or registered mail, return
receipt requested, postage prepaid, addressed as follows:
If to the Company:
AnnTaylor Stores Corporation
142 West 57th Street
New York, New York 10019
Attn: General Counsel
If to the Executive:
Kim Roy
1 Shore Drive
Larchmont, NY 10538
or to such other address as any party may have furnished to the other in
writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
11. Miscellaneous. No provisions of this Agreement may be modified, waived
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or discharged unless such waiver, modification or discharge is agreed to in
writing signed by the Executive and such officer of the Company as may be
specifically designated by the Board. 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 agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made either party which are not set forth
expressly in this Agreement. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the state of
New York without regard to its conflicts of law principles. All payments
hereunder shall be subject to applicable Federal, State and local tax
withholding requirements.
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12. Validity. The invalidity or unenforceability of any provision or
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provisions of this Agreement shall not affect the validity or enforceability
of any other provision of this Agreement, which shall remain in full force
and effect.
13. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same instrument.
14. Arbitration. Any dispute or controversy arising under or in connection
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with this Agreement shall be settled exclusively by arbitration, conducted
before a panel of three arbitrators in New York City in accordance with the
rules of the American Arbitration Association then in effect. Judgment may
be entered on the arbitrator's award in any court having jurisdiction;
provided that, the Company shall be entitled to seek a restraining order or
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injunction in any court of competent jurisdiction to prevent any continuation
of any violation of the provisions of Section 7 or 8 of the Agreement and the
Executive hereby consents that such restraining order or injunction may be
granted without the necessity of the Company's posting any bond. Each party
shall bear its own costs and expenses (including, without limitation, legal
fees) in connection with any arbitration proceeding instituted hereunder.
15. Entire Agreement. This Agreement, together with the compensation and
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benefits plans and practices referred to in Section 5 hereof, sets forth the
entire agreement of the parties hereto in respect of the subject matter
contained herein and all other prior agreements, promises, covenants,
arrangements, communications, representations or warranties, whether oral or
written, by any officer, employee or representative of any party hereto; and
any prior agreement of the parties hereto in respect of the subject matter
contained herein is hereby terminated and canceled.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the Effective Date.
ANNTAYLOR STORES CORPORATION
By:/s/J. Patrick Spainhour
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J. Patrick Spainhour
Chairman of the Board and
Chief Executive Officer
/s/Kim Roy
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Kim Roy
Employment Agreement - AnnTaylor Stores Corp. and Kim Roy
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