Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS
AGREEMENT (“
Agreement
”) is entered into this 9th day
of June, 2011, by and between Charles V.
Bergh (“Executive”) and Levi Strauss & Co., a Delaware corporation (the “Corporation”).
For ease of reference, this Agreement is divided into the following parts which taken together
constitute one integrated agreement between the parties, which begin on the pages indicated:
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FIRST PART:
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TERM OF EMPLOYMENT, DUTIES AND SCOPE, COMPENSATION AND BENEFITS DURING EMPLOYMENT,
RELOCATION BENEFITS
(Sections 1- 7, beginning on page 2)
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SECOND PART:
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COMPENSATION AND BENEFITS IN CASE OF TERMINATION WITHOUT CAUSE OR FOR GOOD REASON AND
OTHER
TERMINATIONS (Sections 8 — 11, beginning on page 6)
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THIRD PART:
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COMPENSATION AND BENEFITS IN CASE OF A TERMINATION
WITHOUT CAUSE OR FOR GOOD REASON OCCURRING WITHIN
TWO YEARS AFTER A CHANGE IN CONTROL, LIMITATION ON
PAYMENTS
(Sections 12 — 14, beginning on page 10)
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FOURTH PART:
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RELEASE OF CLAIMS, SECTION 409A, CONFIDENTIAL INFORMATION AND CODE OF ETHICS,
SEVERABILITY, SUCCESSORS, MISCELLANEOUS PROVISIONS, SIGNATURE PAGE (Sections 15 —21, beginning on
page 14)
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FIRST PART:
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TERM OF EMPLOYMENT, DUTIES AND SCOPE, COMPENSATION AND BENEFITS DURING EMPLOYMENT,
RELOCATION BENEFITS
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Section 1. Term of Employment
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(a)
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Start Date
. The Corporation agrees to employ Executive, and Executive agrees to be
employed by the Corporation at its headquarters in San Francisco, California, under the terms of
this Agreement, commencing on a date to be agreed by the parties that is not later than September
1, 2011 (the “
Start Date
”) until the earlier of (1) the date of Executive’s death or (2) the
date when Executive’s employment terminates pursuant to Section 1(b), (c) or (d) below (the
“
Term
”). As a condition to Executive’s employment hereunder (including the receipt of any
payments or benefits), Executive agrees to take the following action prior to the Start Date: (1)
to resign from all Board of Directors on which Executive is currently a member; and (2) to complete
the Corporation’s standard new hire paperwork provided to Executive.
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(b)
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Early Termination or Resignation
. Executive’s employment with the Corporation will be
“at-will” employment and may be terminated by the Corporation at any time and for any reason by
giving Executive written notice. Executive may terminate Executive’s employment for any reason by
giving the Corporation not less than thirty (30) calendar days’ advance written notice. The
foregoing shall be subject to all of the rights and obligations described herein.
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(c)
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Termination for Cause
. The Corporation may terminate Executive’s employment at any time
for Cause. For all purposes under this Agreement, “
Cause
” shall mean (i) willful misconduct
or gross negligence that is materially and demonstrably injurious to the interest, business or
reputation of the Corporation, (ii) conviction (including entry of a nolo contender plea) of a
felony or misdemeanor involving fraud, theft or dishonesty, other than due to Limited Vicarious
Liability, (iii) embezzlement or material misappropriation of any property of the Corporation, or
(iv) willful and continuous failure to substantially perform Executive’s employment duties
(including, without limitation, Executive’s inability to perform such duties as a result of chronic
alcoholism or drug addiction).
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“
Limited Vicarious Liability
” means any liability which is (A) based on acts of the
Corporation for which Executive is responsible solely as a result of his office(s) with the
Corporation and (B) provided that (x) he was not directly involved in such acts and either had no
prior knowledge of such intended actions or promptly acted reasonably and in good faith to attempt
to prevent the acts causing such liability or (y) he did not have a reasonable basis to believe
that a law was being violated by such acts.
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For purposes of this Agreement, no act, or failure to act, by Executive shall be considered
“willful” unless it is done, or omitted to be done, by Executive in bad faith and without
reasonable belief that Executive’s act or failure to act was in the best interest of the
Corporation. Any act, or failure to act, based upon authority given pursuant to a
resolution duly adopted by the Corporation’s Board of Directors (the “
Board of Directors
”)
or based upon the advice of counsel for the Corporation, shall be conclusively
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presumed to be done, or omitted to be done, by Executive in good faith and in the best interest of
the Corporation.
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The termination of employment of Executive shall not be “for Cause” unless and until there shall
have been delivered to Executive a copy of a resolution duly adopted by the affirmative vote of not
less than two-thirds of then sitting directors of the Board of Directors at a meeting of the Board
of Directors called and held for such purpose (after reasonable notice is provided to Executive and
Executive is given an opportunity, together with counsel, to be heard before the Board of
Directors), finding that Executive is guilty of the conduct described in clauses (i), (ii), (iii)
or (iv) above, and specifying the particulars in detail and, in the case of any act or failure to
act forming a basis for such proposed termination under clause (iv), Executive shall be provided
not less than thirty (30) days within which to cure any such conduct.
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(d)
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Termination for Disability
. The Corporation may terminate Executive’s employment for
Disability by giving Executive not less than thirty (30) days advance written notice. For all
purposes under this Agreement, “
Disability
” shall have the meaning set forth in Treasury
Regulation Section 1.409A-3(i)(4)(i) and (iii).
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Section 2. Duties and Scope of Employment
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(a)
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Position
. The Corporation agrees that, during the Term, Executive shall serve in the
positions of President and Chief Executive Officer of the Corporation. Executive shall be given
such duties, responsibilities and authorities as are commensurate with his positions and shall
report directly to the Board of Directors. The Board of Directors shall elect Executive onto the
Board of Directors effective on the Start Date (or such earlier date as the parties may agree).
Executive shall not receive any compensation for his services on the Board of Directors. Without
limiting the foregoing, Executive may be required to serve as an officer or director of one or more
of the Corporation’s subsidiaries.
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(b)
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Obligations
. During the Term, Executive shall devote Executive’s full business efforts
and time to the business and affairs of the Corporation as needed to carry out his duties and
responsibilities. For the duration of the Term, Executive agrees not to actively engage in any
other employment, occupation or consulting activity for any direct or indirect remuneration without
the prior approval of the Board of Directors; provided, however, the foregoing shall not preclude
Executive from engaging in civic and charitable activities, or from serving on the board of
directors of one other non- competitive entity with approval of the Board of Directors (which
approval shall not be unreasonably withheld) on or after the first (1st) anniversary of the Start
Date, as long as such activities and board service does not interfere or conflict with Executive’s
duties and responsibilities to the Corporation and its subsidiaries. As a condition to Executive’s
employment hereunder (including the receipt of payments or benefits hereunder), Executive
represents that no restrictive covenant exists preventing Executive from performing his duties and
responsibilities for the Corporation.
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Section 3. Base Compensation
During the Term, the Corporation agrees to pay Executive as compensation for services to the
Corporation and its subsidiaries a base salary at the annual rate of $1,200,000. Such salary shall
be payable in accordance with the standard payroll procedures of the Corporation and will be
subject to review and adjustment (up or down) in a manner that is consistent with the other members
of the executive team and in making such adjustments the Corporation shall consider competitive
benchmarks to relevant peer companies. The annual compensation specified in this Section 3 as in
effect from time to time is referred to in this Agreement as the “
Base Compensation
.”
Section 4. Annual Incentive Compensation
During the Term, the Corporation shall award Executive an annual cash incentive compensation
opportunity under its Annual Incentive Plan (or any successor plan) (“
AIP
”) having a target
amount equal to 135% of the Base Compensation (“
Target AIP
”) and shall be payable at the
Target AIP or such lesser or greater amount as is provided under the AIP in accordance with
Executive’s achievement of the performance measures and levels in effect for the Corporation’s
applicable fiscal year, including, without limitation, achievement of individual performance
measures and application of Corporation discretion with respect to awards under the AIP. Such
Target AIP shall be subject to review and adjustment (up or down) in a manner that is consistent
with the other members of the executive team and in making such adjustments the Corporation shall
consider competitive benchmarks to relevant peer companies. Performance measures and levels with
respect to the AIP shall be determined by the Board of Directors or the Human Resources Committee
thereof, in its sole discretion, in accordance with the terms and conditions of the AIP; provided,
however, that, in respect of the 2011 fiscal year, Executive shall be paid annual cash incentive
compensation in an amount that is not less than 100% of the Base Compensation, which shall be
prorated in accordance with the fraction, the numerator of which is the number of days Executive
was employed by the Corporation in the 2011 fiscal year and the denominator of which is 365.
Section 5. Long-Term Incentive Compensation
On the later of the Start Date or the next regularly scheduled grant date for awards by the
Corporation, Executive shall be granted an award of stock
appreciation rights (SARs) under the
Corporation’s 2006 Equity Incentive Plan (“
2006 EIP
”) having a grant date value of not less
than $4,900,000, as determined consistent with Schedule A attached hereto (the “
Initial SAR
Award
”); provided, however, that the vesting commencement date shall be the Start Date in all
instances.
In addition, subject to Executive’s continued employment with the Corporation on the applicable
date of grant, Executive will be granted, in calendar 2012 and 2013 at the time annual awards are
granted (or, if not granted, would be granted) to other senior executives, respective additional
annual awards of SARs and/or other long-term incentive
award with an aggregate grant date value of not less than the median aggregate grant date value of
annual long-term incentive awards made to the Chief Executive Officers of the Corporation’s peer
group of companies approved by the Human Resources Committee of the Board of Director for this
purpose (consistent with recent past practices) and determined consistent with Schedule A (the
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“
2012/2013
Grant Metrics
”); provided, however, that the 2012/2013 Grant Metrics shall not
apply to any awards made during calendar 2012 or 2013 other than the annual awards under this
paragraph (for example, excluding from coverage under this paragraph any special award granted
during calendar 2012 or 2013) or to any awards granted on or after the consummation of an initial
public offering of the Corporation’s common stock.
The per share exercise price for the SARs granted pursuant to this Section 5 shall equal the Fair
Market Value (as defined under the 2006 EIP, or successor plan) of an underlying share of the
Corporation’s common stock on the date of grant. Subject to the accelerated vesting provisions set
forth herein, the Initial SAR Award and any annual long-term incentive award granted in 2012 shall
vest as to 25% of the shares subject to the award on the first anniversary of the vesting
commencement date (which shall be Start Date for the Initial SAR Award and the date of grant for
such 2012 award), and as to 1/48
th
of the shares subject to the award monthly (on the same calendar
date during the month as the Start Date for the Initial SAR Award and the date of grant for such
2012 award) thereafter, subject to Executive continuing to provide services to the Corporation
through the relevant vesting dates, except as otherwise provided herein. Each award of SARs granted
in 2011 or 2012 (if any) will have a term of like duration as annual grants made to other senior
executives during such years (but not less than seven (7) years) and except as specifically set
forth herein shall be subject to the terms and conditions of the 2006 EIP (or successor plan) and
the grant notice and award agreement evidencing the award as set forth in Exhibit A attached
hereto, which collectively shall be the governing documents with respect to each award of SARs
granted in 2011 or 2012 (if any).
Any long-term incentive awards and/or provisions thereof that are not required under this
Section 5 shall be determined solely by the Board of Directors and/or its Human Resources
Committee, subject to such terms as apply pursuant to the Second Part and the Third Part of this
Agreement.
Section 6. Additional Benefits
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(a)
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In General
. During the Term, Executive shall be eligible to participate in the employee
benefit plans and programs maintained by the Corporation of general applicability to other senior
executives of the Corporation, subject to the generally applicable terms and conditions of the plan
or program in question and the discretion and determinations of any person, committee or entity
administering such plan or program made in accordance with the terms and conditions of such plan or
program. The Corporation reserves the right to cancel or change the benefit plans and programs it
offers to its employees at any time.
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(b)
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Miscellaneous Perquisites
. During the Term, Executive shall be entitled to perquisites
consistent with the perquisites provided to the Corporation’s predecessor Chief Executive Officer
(excluding any expatriate allowances). During the Term, Executive will also be entitled to such
other perquisites consistent with competitive market practices, as determined in the sole
discretion of the Board of Directors.
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(c)
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Relocation Benefits
. The Corporation shall provide or reimburse Executive for certain
expenses relating to Executive’s relocation from Boston, Massachusetts to the San Francisco Bay
Area, as set forth in the Corporation’s Homeowner Relocation Benefits Level A policy summarized in
Schedule B; provided, however, that (1) a 20% cost-of-
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living allowance shall apply for purposes thereof such that Executive will be eligible for the cost
of living allowance summarized in Schedule B and (2) the marketing incentive set forth in the
“Other Incentives” section of such summary shall not be provided to Executive.
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(d)
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Employment Bonus
. Within seven calendar (7) days after the Start Date, the Corporation
shall pay Executive a one-time sign-on bonus in the amount of $1,850,000 (the “
Employment
Bonus
”). If Executive terminates his employment pursuant to Section 1(b) other than for Good
Reason or due to Disability (or other than due to his death), or if Executive’s employment
hereunder is terminated by the Corporation for Cause, in each case, prior to the first anniversary
of the Start Date, Executive shall repay to the Corporation the entire Employment Bonus upon such
termination. Such repayment shall be required to be made for the full amount set forth above and
shall not be reduced for any taxes paid by Executive with respect to the Employment Bonus.
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(e)
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Vacation
. Executive will be entitled to paid time off, in accordance with the
Corporation’s policy applicable to senior executive officers, with the timing and duration of
specific vacations mutually and reasonably agreed to by the parties hereto. Upon Executive’s
termination of employment, Executive will be entitled to receive Executive’s accrued but unpaid
paid time off through the date of Executive’s termination of employment.
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Section 7. Business Expenses and Travel
During the Term, Executive shall be authorized to incur and shall be reimbursed for all necessary
and reasonable business expenses incurred in connection with Executive’s duties hereunder, and the
Corporation shall reimburse Executive for such expenses upon presentation of an itemized account
and appropriate supporting documentation, in each case, in accordance with the Corporation’s
policies with respect thereto.
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SECOND PART:
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COMPENSATION AND BENEFITS IN CASE OF TERMINATION WITHOUT CAUSE OR FOR GOOD REASON AND
OTHER
TERMINATIONS
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Section 8. Terminations
This Second Part of the Agreement, consisting of Sections 8 through 11, describes the benefits and
compensation, if any, payable in case of a termination of Executive’s employment hereunder that
does not entitle Executive to benefits or compensation under the Third Part of this Agreement. In
the event of a termination of employment that entitles Executive to compensation or benefits under
the Third Part of this Agreement, no compensation or benefits shall be payable under this Second
Part.
Section 9. Termination Without Cause; Termination for Good Reason
In the event that Executive’s employment terminates as a result of a Qualifying Termination (as
defined below), then, subject to Sections 15 and 16 and compliance by Executive with his
obligations set forth in Section 17, Executive shall be entitled to receive the payments and
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benefits described in Sections 9(b), (d) and (e) for any Qualifying Termination occurring at any
time following the Start Date through the fourth anniversary of the Start Date and the benefits
described in Section 9(c) for any Qualifying Termination occurring at any time. Following the
expiration of such four (4) year anniversary, in lieu of the payments and benefits described in
Sections 9(b), (d) and (e), Executive shall participate in any severance policy applicable to the
other senior executives of the Corporation in effect at such time in accordance with the terms of
such policy.
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(a)
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Qualifying Termination
. A Qualifying Termination occurs if at any time following the
Executive’s Start Date, and in the case of Section 9(b), (d) and (e) through the fourth anniversary
of the Start Date:
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(1)
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The Corporation terminates Executive’s employment for any reason other than Cause or
Disability; or
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(2)
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Executive resigns for “
Good Reason
”, which means in the absence of Executive’s written
consent, Executive’s termination of employment within ninety (90) days following the expiration of
any cure period (set forth below) following the occurrence of one or more of the following: (i) any
diminution or material alteration of Executive’s title, duties, authority or responsibilities
(including reporting requirements), including if Executive is not the most senior officer of the
parent company or other entity resulting from any Change in Control (as defined in Section 13(f)
hereof), whether a strategic, financial or other party effecting such Change in Control; however,
excluding an isolated, insubstantial and inadvertent action not taken in bad faith and which is
remedied by the Corporation promptly after receipt of notice by Executive; (ii) any failure to
elect and re-elect (in any instance occurring prior to an initial public offering of the
Corporation’s common stock) or to nominate for re-election (in any instance occurring on or
following such an initial public offering), Executive as a member of the Board of Directors; (iii)
any material breach by the Corporation of a material provision of this Agreement or other material
compensatory agreement between Executive and the Corporation or any subsidiary (including any
equity or other long-term incentive award agreement), which is not cured by the Corporation (or
subsidiary) within thirty (30) days after notice by Executive; (iv) requiring Executive to be based
at any office or location more than fifty (50) miles from the Corporation’s principal offices
currently located in San Francisco; or (v) the failure of a successor to the assets or business of
the Corporation to assume the obligations of the Corporation under this Agreement. Executive will
not resign for Good Reason without first providing the Corporation with written notice within sixty
(60) days of his first knowledge of the event that Executive believes constitutes “Good Reason”
identifying the acts or omissions constituting the grounds for Good Reason and any cure period
provided under such circumstances above.
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For avoidance of doubt, termination of Executive’s employment by reason of death shall not
constitute a Qualifying Termination.
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(b)
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Severance Payments
. The Corporation shall pay to Executive following the date of the
employment termination and ratably spread over the succeeding twenty-four (24) months, in
accordance with the Corporation’s standard payroll procedures, an aggregate amount equal to two
times (2x) the sum of the Base Compensation and Target AIP.
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(c)
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Equity Vesting
. Notwithstanding anything to the contrary in the 2006 EIP (or any
successor plan) or any award thereunder, excepting the case in which Executive was eligible under
Section 10(a) and that the Qualifying Termination shall thereby be deemed a Qualifying Retirement
Termination and Section 10(b) shall govern, the unvested portion of Executive’s then outstanding
equity and other long-term incentive awards that would have vested during the twenty-four (24)
months following the date of Executive’s termination had his employment not so terminated will vest
immediately prior to Executive’s Qualifying Termination, and all vested equity and other long-term
incentive awards (including those vesting under the preceding clause) granted as SARs or stock
options shall be exercisable and remain exercisable for eighteen (18) months following the date of
Executive’s termination (but (i) in no event later the original term/expiration date of the award
and (ii) only during an exercise window permitted under the terms the 2006 EIP (or substantially
similar provisions under the successor thereto under which the applicable award is granted) as may
apply prior to the occurrence of an initial public offering).
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(d)
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Pro-Rated Bonus, Prior Year Bonus and Accrued Benefits
. At such time as annual
incentive compensation awards are paid by the Corporation to other senior executives, but no later
than the fifteenth
(15
th
)
day of the third (3
rd
) month following the close of the later of the
Corporation’s fiscal year or the calendar year in which Executive’s termination occurs, Executive
shall be paid a pro-rated AIP award in respect of the performance period in which the Qualifying
Termination occurs based on achievement of the objective performance goals applicable to such AIP
award and the percentage of the performance period that has elapsed as of the date of the
Qualifying Termination, treating any subjective performance goals as having been fully achieved,
and without the exercise of any negative discretion by the Corporation in determining such amount
of annual incentive compensation for Executive. Executive (or his Severance Beneficiary) will also
be paid any earned but unpaid bonus in respect of the fiscal year prior to the fiscal year of
Executive’s Qualifying Termination based on the achievement of the objective performance goals
applicable to such AIP award, treating any subjective performance goals as having been fully
achieved, and without the exercise of any negative discretion by the Corporation in determining
such amount of annual incentive compensation for Executive. Executive shall also be entitled to his
Accrued Benefits (as defined in Section 11) that are not duplicative of payments or benefits under
this Section 9 or any other Corporation program, policy or agreement.
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(e)
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Other Benefits
. Executive shall be entitled to the following additional benefits:
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(1)
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If Executive and/or Executive’s covered dependents elect(s) to receive medical
coverage continuation through Consolidated Omnibus Budget Reconciliation Act
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of 1985 (“COBRA”), the Corporation will pay the same percentage of the monthly cost of Executive’s
COBRA medical coverage as it paid for Executive’s medical coverage during his active employment up
to a maximum coverage period of 18 months. During the Corporation-subsidized COBRA coverage period,
Executive will be responsible for payment of the remainder of the cost of Executive’s COBRA medical
coverage and for the full cost of any dental or vision coverage elected by the Executive. All
periods of Corporation-subsidized coverage are counted toward the 18-month COBRA entitlement. After
the Corporation-subsidized coverage period ends, the Executive will be responsible for payment of
his entire COBRA premium. Continuation of COBRA coverage will not extend beyond the date on which
Executive becomes eligible for coverage under another group health plan unless the new plan has a
pre-existing condition limitation or Executive is entitled to Medicare. The benefits under this
Section 9(e)(1) shall be delivered in a manner that satisfies applicable law.
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(2)
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The Corporation will pay the cost of premiums under its standard basic life insurance program
of $10,000 for the same duration that it subsidizes the COBRA coverage in Section 9(e)(1) above.
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(3)
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If Executive is retiree-eligible to be covered by the Corporation’s retiree health benefits (if
any), the Corporation will fully pay for retiree medical coverage for the same duration that it
subsidizes the COBRA coverage set forth in Section 9(e)(1) above.
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(4)
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Reasonable outplacement services for a chief executive officer-level position.
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(f)
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Exclusive Remedy
. In the event of a Qualifying Termination, the provisions of this
Section 9 are intended to be and are exclusive and in lieu of any other rights or remedies to which
Executive or the Corporation may otherwise be entitled, whether at law, tort or contract, in
equity, or under this Agreement. Executive will be entitled to no other severance, benefits,
compensation or other payments or rights upon such a Qualifying Termination other than those
benefits expressly set forth in this Section 9 or pursuant to written equity or other long-term
incentive award agreements with the Corporation.
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Section 10. Retirement
In the event that Executive’s employment terminates as a result of a Qualifying Retirement
Termination (as defined below), then, subject to Section 15 and compliance by Executive with his
obligations set forth in Section 17, Executive shall be entitled to receive the payments and
benefits described in Sections 10(b) and (c).
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(a)
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Qualifying Retirement Termination
. A Qualifying Retirement Termination occurs if, after
the fifth anniversary of the Start Date, Executive resigns his employment with the Corporation for
any reason other than in connection with an impending termination for Cause by the Company.
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(b)
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Equity Vesting
. Notwithstanding anything to the contrary in the applicable plan or
agreement, (i) 100% of Executive’s outstanding equity and other long-term incentive
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awards that have remained outstanding for at least twelve (12) months will immediately fully vest
upon Executive’s termination, and (ii) all vested equity and other long-term incentive awards
(including those vesting under the preceding clause) granted as SARs or stock options shall be
exercisable and remain exercisable for eighteen (18) months following the date of Executive’s
termination, but (x) in no event later than the original term/expiration date of the award; and (y)
only during an exercise window permitted under the terms the Corporation’s 2006 EIP (or
substantially similar provisions under the successor thereto under which the applicable award is
granted) as may apply prior to the occurrence of an initial public offering.
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(c)
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Accrued Benefits
. Executive shall be entitled to his Accrued Benefits (as defined in
Section 11) that are not duplicative of benefits under this Section 10 or any other Corporation
program, policy or agreement.
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(d)
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Exclusive Remedy
. In the event of Executive’s Qualifying Retirement Termination, the
provisions of this Section 10 are intended to be and are exclusive and in lieu of any other rights
or remedies to which Executive or the Corporation may otherwise be entitled, whether at law, tort
or contract, in equity, or under this Agreement. Executive will be entitled to no other severance,
benefits, compensation or other payments or rights upon such a Qualifying Retirement Termination
other than those benefits expressly set forth in, this Section 10, Section 13 (if the Qualifying
Retirement Termination also qualifies as a Qualifying CIC Termination) or pursuant to written
equity or other long-term incentive award agreements with the Corporation.
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Section 11. Other Terminations Under This Part
In the event of Executive’s termination by the Corporation or by Executive as a result of his
Disability or in the event of Executive’s death, Executive (or his Severance Beneficiary, as
applicable) shall be entitled to the vesting acceleration and SAR/stock option exercise benefits
(a) provided in Section 9(c) in the event of such termination or death prior to the fifth
anniversary of the Start Date or (b) provided in Section 10(b) in the event of such death or
termination on or after the fifth anniversary of the Start Date.
In the event of Executive’s termination of employment hereunder for any reason, Executive shall be
entitled to the Accrued Benefits that are not duplicative of any payments or benefits under this
Agreement or any other Corporation program, policy or agreement. “
Accrued Benefits
” shall
mean, subject to any applicable plan terms (including, without limitation, any vesting
requirements), all accrued but unpaid compensation, benefits and reimbursements described in
Sections 3, 4, 5, 6 and 7 of this Agreement for the period preceding the date of the termination,
including in the case of Executive’s death or termination due to Disability, any Disability or
death benefits to which Executive (or his estate or beneficiary(s)) may be entitled thereunder.
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THIRD PART:
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COMPENSATION AND BENEFITS IN CASE OF A TERMINATION WITHOUT CAUSE OR FOR GOOD REASON
OCCURRING
WITHIN TWO YEARS AFTER A CHANGE IN CONTROL, LIMITATION ON PAYMENTS
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Section 12. Terminations Upon or Following a Change in Control
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This Third Part of the Agreement, consisting of Sections 12 through 14, describes the benefits
and compensation, if any, payable in the case of certain terminations of employment hereunder after
a Change in Control (as defined in Section 13(e)) and describes the treatment of certain parachute
payments, if any. The Second Part of this Agreement, consisting of Sections 8 through 11, describes
benefits and compensation, if any, payable in case of a termination of employment hereunder to
which this Third Part does not apply. If benefits and compensation are payable under this Third
Part, then no benefits and compensation are payable under the Second Part.
Section 13. Termination Without Cause or Termination for Good Reason Upon or Following a Change
in Control
In the event that Executive’s employment terminates as a result of a Qualifying CIC Termination (as
defined below), then, subject to Sections 15 and 16 and compliance by Executive with his
obligations set forth in Section 17, Executive shall be entitled to receive the payments and
benefits described in Sections 13(b) and (c) plus the Accrued Benefits.
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(a)
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Qualifying CIC Termination
. A Qualifying CIC Termination occurs if at any time upon
or within two (2) years following a Change in Control:
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(1)
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The Corporation terminates Executive’s employment for any reason other than Cause or
Disability (as defined under Sections 1(c) and 1(d)); or
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(2)
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Executive resigns for Good Reason (which for purposes of this Third Part shall have the same
requirements and meaning as provided in Section 9(a) above).
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For avoidance of doubt, termination of Executive’s employment by reason of death shall not
constitute a Qualifying CIC Termination.
|
(b)
|
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Severance Benefits.
Following Executive’s Qualifying CIC Termination, Executive shall
be entitled to all of the payments described in Sections 9(b), (d) and (e); provided, however,
that the benefits described in Section 9(b) shall instead be paid in a single lump sum upon
Executive’s Qualifying CIC Termination.
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(c)
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Equity Vesting
. Notwithstanding anything to the contrary in the 2006 EIP (or
successor plan) or any award thereunder, 100% of Executive’s then (i) outstanding equity
and other long-term incentive awards will immediately fully vest upon Executive’s
Qualifying CIC Termination, and (ii) all vested equity and other long-term incentive
awards (including those vesting under the preceding clause) granted as SARs or stock
options shall be exercisable and remain exercisable for eighteen (18) months following the
date of Executive’s termination (but in no event later the original term/expiration date
of the award) (but to the extent that the 2006 EIP (or successor plan) and awards granted
thereunder apply after such Change in Control in accordance with the terms thereof as in
effect prior to such Change in Control and such Change in Control occurs prior to the
occurrence of an initial public offering, only during an exercise window permitted
thereunder). Section 9(c) shall govern any such termination following the second
anniversary of the Change in Control.
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11
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(d)
|
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Exclusive Remedy
. In the event of a Qualifying CIC Termination of Executive’s
employment with the Corporation, the provisions of this Section 13 are intended to be and are
exclusive and in lieu of any other rights or remedies to which Executive or the Corporation may
otherwise be entitled, whether at law, tort or contract, in equity, or under this Agreement.
Executive will be entitled to no other severance, benefits, compensation or other payments or
rights upon such a Qualifying CIC Termination other than those benefits expressly set forth in this
Section 13 or pursuant to written equity award agreements with the Corporation.
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(e)
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“
Change in Control
” means:
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(1)
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Any person (as that term is used in Sections 13(d) and Section 14(d) of the Securities
Exchange Act of 1934, as amended (the “
Exchange Act
”)) is or becomes a beneficial owner or
acquires, or has acquired beneficial ownership (as that term is used in Section 13(d) of the
Exchange Act, and the rules and regulations promulgated thereunder), of more than 50% (except
with respect to an acquisition by the existing stockholders of the Corporation as of the date
of this Agreement as “Permitted Transfers” under Section 2.2 (other than Section 2.2(a)(iv),
(v) or (x), or Section 2.2(a)(vii) insofar as to a stockholder thereunder is described in any
of Section 2.2(a)(iv), (v) or (x), or Section 2.2(a)(viii) insofar as a partner thereunder is
described in any of 2.2(a)(iv), (v), or (x)) of the Stockholders Agreement among the existing
stockholders dated as of April 15, 1996) of the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of directors (“
Voting
Securities
”) of the Corporation, excluding, however, any acquisition of Voting Securities: (i)
directly from the Corporation, other than an acquisition by virtue of the exercise of a
conversion privilege unless the security being so converted was itself acquired directly from
the Corporation, (ii) by the Corporation or a subsidiary of the Corporation, (iii) by an
employee benefit plan (or related trust) sponsored or maintained by the Corporation or entity
controlled by the Corporation, or (iv) pursuant to a transaction that complies with clauses
(i), (ii) and (iii) of paragraph (3) below; or
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(2)
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Individuals who, as of the Start Date, constitute the Board of Directors (the “
Incumbent
Board
”) cease for any reason to constitute at least a majority of the Board of Directors,
provided that any individual becoming a director subsequent to such Start Date whose election,
or nomination for election by the Corporation’s stockholders, was approved by a vote of at
least a majority of the directors then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board, but excluding, for this purpose,
any such individual whose initial assumption of office is in connection with an actual or
threatened election contest relating to the election or removal of the directors of the
Corporation or other actual or threatened solicitation of proxies or consents by or on behalf
of a person other than the Board of Directors; or
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(3)
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The Corporation shall be merged or consolidated with, or, in any transaction or
series of transactions, substantially all of the business or assets of the Corporation
shall be sold or otherwise acquired by, another corporation or entity unless, as a
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result thereof, (i) the stockholders of the Corporation immediately prior thereto shall
beneficially own, directly or indirectly, at least 60% of the combined Voting Securities of the
surviving, resulting or transferee corporation or entity (including, without limitation, a
corporation that as a result of such transaction owns the Corporation or all or substantially
all of the Corporation’s assets either directly or through one or more subsidiaries)
(“
Newco
”) immediately thereafter in substantially the same proportions as their
ownership immediately prior to such corporate transaction, (ii) no person beneficially owns (as
such terms are used in Sections 13(d) and 14(d) of the Exchange Act, and the rules and
regulations promulgated thereunder), directly or indirectly, 30% or more, of the combined
Voting Securities of Newco immediately after such corporate transaction except to the extent
that such ownership of the Corporation existed prior to such corporate transaction and (iii)
more than 50% of the members of the Board of Directors of Newco shall be Incumbent Directors;
or
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(4)
|
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The stockholders of the Corporation approve a complete liquidation or dissolution of the
Corporation.
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Provided, for any amount due to Executive that is a deferral of compensation payable upon the
occurrence of a “Change in Control,” which payment is subject to Section 409A of the Internal
Revenue Code (the “
Code
”) and the final regulations and any guidance promulgated thereunder
or any state law equivalent (“
Section 409A
”), for the purpose of determining the timing or
form of such payment, a “Change in Control” shall not be deemed to occur unless the transaction or
transactions satisfy Treasury Regulation Section 1.409A-3(i)(5). For the avoidance of doubt, the
consummation of an initial public offering of the Corporation’s common stock shall not constitute a
“Change in Control” with respect to the Corporation.
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Section 14. Limitation on Payments
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(a)
|
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Anything in this Agreement to the contrary notwithstanding, if any payment or benefit
Executive would receive from the Corporation or otherwise (“
Payment
”) would (i)
constitute a “parachute payment” within the meaning of Section 280G of the Code; and (ii)
but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code
(the “
Excise Tax
”), then such Payment shall be equal to the Best After-Tax Amount.
The “
Best After-Tax Amount
” shall be either (x) the largest portion of the Payment
that would result in no portion of the Payment being subject to the Excise Tax; or (y) the
largest portion, up to and including the total, of the Payment, whichever amount under
clauses (x) or (y), after taking into account all applicable federal, state and local
employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable
marginal rate), results in Executive’s receipt, on an after-tax basis, of the greater
amount of the Payment. Any reduction made pursuant to this Section 14(a) shall be made in
accordance with the following order of priority: (i) stock options or stock appreciation
rights whose exercise price exceeds the fair market value of the optioned stock
(“
Underwater Awards
”) (ii) Full Credit Payments (as defined below) that are
payable in cash, (iii) non-cash Full Credit Payments that are then taxable, (iv) non-cash
Full Credit Payments that are not then taxable (v) Partial Credit Payments (as defined
below) and (vi) non-cash employee welfare benefits. In each case, reductions shall be
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13
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made in reverse chronological order such that the payment or benefit owed on the latest
date following the occurrence of the event triggering the Excise Tax will be the first
payment or benefit to be reduced (with reductions made pro-rata in the event payments or
benefits are owed at the same time). “
Full Credit Payment
” means a payment,
distribution or benefit, whether paid or payable or distributed or distributable pursuant
to the terms of this Agreement or otherwise, that if reduced in value by one dollar reduces
the amount of the parachute payment (as defined in Section 280G of the Code) by one dollar,
determined as if such payment, distribution or benefit had been paid or distributed on the
date of the event triggering the excise tax. “
Partial Credit Payment
” means any
payment, distribution or benefit that is not a Full Credit Payment. In no event shall
Executive have any discretion with respect to the ordering of payment reductions.
Notwithstanding the foregoing, to the extent that the Corporation submits any payment or
benefit payable to Executive under this Agreement or otherwise to the Corporation’s
stockholders for approval in accordance with Treasury Regulation Section 1.280G-1 Q&A 7
and that Executive voluntarily affirmatively waives (in writing) his entitlement to such
payment subject to such vote in accordance therewith, the foregoing provisions shall not
apply following such submission and such payments and benefits will be treated in
accordance with the results of such vote, except that any reduction in, or waiver of, such
payments or benefits required by such vote will be applied without any application of
discretion by Executive and in the order prescribed by this Section 14.
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(b)
|
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Any determination required under this Section 14 will be made in writing by an
independent firm selected by the Corporation and Executive (the “
Firm
”), whose
determination will be conclusive and binding upon Executive and the Corporation for all
purposes. For purposes of making the calculations required by this Section 14, the Firm
may make reasonable assumptions and approximations concerning applicable taxes and may
rely on reasonable, good faith interpretations concerning the application of Sections 280G
and 4999 of the Code. The Corporation and Executive will furnish to the Firm such
information and documents as the Firm may reasonably request in order to make a
determination under this Section 14. The Corporation will bear all costs and charges of
the Firm in connection with any calculations contemplated by this Section 14.
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FOURTH PART:
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RELEASE OF CLAIMS, SECTION 409A, CONFIDENTIAL INFORMATION AND CODE OF ETHICS,
SEVERABILITY, SUCCESSORS, MISCELLANEOUS PROVISIONS, SIGNATURE PAGE
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Section 15. Release of Claims
|
(a)
|
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Release of Claims
. As a condition to the receipt of the payments and benefits
described in the Second Part or Third Part of this Agreement, Executive shall execute a
covenant not to sue and release of all claims arising out of Executive’s employment or the
termination thereof including, but not limited to, any claim of discrimination under state
or federal law in the form attached hereto as Exhibit B (which shall be updated as
necessary at the time of termination to reflect any applicable changes of law) (the
“
Release
”). The Release must become effective no later than the sixtieth (60
th
) day
following Executive’s termination of employment (the “
Release Deadline
”), and if not,
Executive will forfeit any right to severance payments or benefits under this Agreement.
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14
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To become effective, the Release must be executed by Executive and any revocation periods
(as required by statute, regulation, or otherwise) must have expired without Executive
having revoked the Release. In addition, in no event will severance payments or benefits be
paid or provided until the Release actually becomes effective. If the termination of
employment occurs at a time during the calendar year where the Release Deadline could occur
in the calendar year following the calendar year in which Executive’s separation from
service (defined below) occurs, then any severance payments or benefits under this
Agreement that would be considered Deferred Payments (as defined in Section 16(a)) will be
paid, or commence to be paid, on the first normal payroll date to occur during the calendar
year following the calendar year in which such separation occurs, or such later time as
required by (i) the payment schedule applicable to each payment or benefit as set forth in
the Second Part or Third Part of this Agreement, as applicable, (ii) the date the Release
becomes effective, or (iii) Section 16(b); provided that the first payment shall include
all amounts that would have been paid to Executive if payment had commenced on the date of
Executive’s separation from service.
|
Section 16. Section 409A
|
(a)
|
|
Notwithstanding anything to the contrary in this Agreement, no severance pay or
benefits to be paid or provided to Executive upon Executive’s termination of employment,
if any, pursuant to this Agreement that, when considered together with any other severance
payments or separation benefits, are considered deferred compensation not exempt under
Section 409A (together, the “
Deferred Payments
”) will be paid or otherwise provided until
Executive has a “separation from service” within the meaning of Section 409A. And for
purposes of this Agreement with respect to Deferred Payments, any reference to
“termination of employment,” “termination” or any similar term shall be construed to mean a
“separation from service” within the meaning of Section 409A for purposes of determining
the timing of payment hereunder. Similarly, no severance payable to Executive, if any,
pursuant to this Agreement that otherwise would be exempt from Section 409A pursuant to
Treasury Regulation Section 1.409A-1(b)(9) will be payable until Executive has a
“separation from service” within the meaning of Section 409A.
|
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(b)
|
|
Notwithstanding anything to the contrary in this Agreement, if Executive is a
“specified employee” within the meaning of Section 409A at the time of Executive’s
separation from service (other than due to death), then the Deferred Payments, if any,
that are payable within the first six (6) months following Executive’s separation from
service, will become payable on the first payroll date that occurs on or after the date
six (6) months and one (1) day following the date of Executive’s separation from service.
All subsequent Deferred Payments, if any, will be payable in accordance with the payment
schedule applicable to each payment or benefit. Notwithstanding anything herein to the
contrary, if Executive dies following Executive’s separation from service, but prior to
the six (6) month anniversary of the separation from service, then any payments delayed in
accordance with this paragraph will be payable in a lump sum upon Executive’s death and
all other Deferred Payments will be payable in accordance with the payment schedule
applicable to each payment or benefit. Each payment, installment and benefit payable under
this Agreement or referenced herein is intended to constitute a separate payment for
purposes of Section 1.409A-2(b)(2) of the Treasury Regulations.
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15
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(c)
|
|
Without limitation, any amount paid under this Agreement that satisfies the
requirements of the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of
the Treasury Regulations is not intended to constitute to Deferred Payments for purposes
of clause (a) above.
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(d)
|
|
Without limitation, any amount paid under this Agreement that qualifies as a payment
made as a result of an involuntary separation from service pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury Regulations that does not exceed the Section 409A Limit is
not intended to constitute Deferred Payments for purposes of clause (a) above. Any payment
intended to qualify under this exemption must be made within the allowable time period
specified in Section 1.409A-1(b)(9)(iii) of the Treasury Regulations. “
Section 409A Limit
”
will mean two (2) times the lesser of: (i) Executive’s annualized compensation based upon
the annual rate of pay paid to Executive during Executive’s taxable year preceding
Executive’s taxable year of his separation from service as determined under Treasury
Regulation Section 1.409A-1(b)(9)(iii)(A)(1) and any Internal Revenue Service guidance
issued with respect thereto; or (ii) the maximum amount that may be taken into account
under a qualified plan pursuant to Code Section 401(a)(17) for the year in which
Executive’s separation from service occurred.
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(e)
|
|
To the extent that reimbursements or in-kind benefits under this Agreement constitute
non-exempt “nonqualified deferred compensation” for purposes of Section 409A, (1) all
reimbursements hereunder shall be made on or prior to the last day of the calendar year
following the calendar year in which the expense was incurred by Executive, (2) any right
to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for
another benefit, and (3) the amount of expenses eligible for reimbursement or in-kind
benefits provided in any calendar year shall not in any way affect the expenses eligible
for reimbursement or in-kind benefits to be provided, in any other calendar year.
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(f)
|
|
Any tax gross-up that Executive is entitled to receive under this Agreement or
otherwise shall be paid to Executive no later than December 31 of the calendar year
following the calendar year in which Executive remits the related taxes.
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(g)
|
|
The foregoing provisions are intended to be exempt from or comply with the
requirements of Section 409A so that none of the severance payments and benefits to be
provided hereunder will be subject to the additional tax imposed under Section 409A, and
any ambiguities or ambiguous terms herein will be interpreted to be exempt or so comply.
The Corporation and Executive agree to work together in good faith to consider amendments
to this Agreement and to take such reasonable actions which are necessary, appropriate or
desirable to avoid imposition of any additional tax or income recognition prior to actual
payment to Executive under Section 409A.
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Section 17. Confidentiality Agreement and Code of Ethics
Executive agrees to enter into the Corporation’s standard Employee Invention and
Confidentiality Agreement (the “
Confidential Information Agreement
”)and abide by the
Corporation’s Worldwide Code of Business Conduct (the “WCOBC”) upon commencing
employment hereunder. Executive’s receipt of any payments or benefits under the Second Part
16
or Third Part of this Agreement will be subject to Executive continuing to comply with the terms of
the Confidential Information Agreement and the WCOBC.
Section 18. Remedies
It is specifically understood and agreed that any breach of the provisions of Section 17 of this
Agreement is likely to result in irreparable injury to the Corporation and/or its respective
affiliates and that the remedy at law alone shall be an inadequate remedy for such breach, and that
in addition to any other remedy the Parent or the Corporation may have, the Corporation shall be
entitled to enforce the specific performance of this Agreement by Executive and to obtain both
temporary and permanent injunctive relief without the necessity of proving actual damages.
Section 19. Severable Provisions
The provisions of this Agreement are severable and the invalidity of any one or more provisions
shall not affect the validity of any other provision. In the event that a court of competent
jurisdiction shall determine that any provision of this Agreement or the application thereof is
unenforceable in whole or in part because of the duration or scope thereof, the parties hereby
agree that said court in making such determination shall have the power to reduce the duration and
scope of such provision to the extent necessary to make it enforceable and that the Agreement in
its reduced form shall be valid and enforceable to the full extent permitted by law.
Section 20. Successors
|
(a)
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Corporation’s Successors
. This Agreement shall inure to the benefit of and be binding upon any
successor (whether direct or indirect and whether by purchase, lease, merger, consolidation,
liquidation or otherwise) to all or substantially all of the Corporation’s
business and/or assets.
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(b)
|
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Executive’s Successors
. The rights of Executive hereunder to payments and benefits shall inure
to the benefit of, and be enforceable by, Executive’s personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. For all purposes under this
Agreement, in the event of Executive’s death, any amount otherwise payable to him but for his death
(including his death following a Qualifying Termination, Qualifying Retirement Termination or
Qualifying CIC Termination) shall be paid to his designated beneficiary or, if none, his estate
(his “Severance Beneficiary”).
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Section 21. Miscellaneous Provisions
|
(a)
|
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Waiver
. No provision of this Agreement shall be modified, waived or discharged unless
the modification, waiver or discharge is agreed to in writing and signed by Executive and
by an authorized officer of the Corporation (other than Executive). No waiver by either
party of any breach of, or of compliance with, any condition or provision of this
Agreement by the other party shall be considered a waiver of any other condition or
provision or of the same condition or provision at another time.
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17
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(b)
|
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Whole Agreement
. This Agreement (including the Schedules and Exhibits hereto), together with
the Confidential Information Agreement and the WCOBC, contains the entire agreement of the parties
with respect to the subject matter hereof and it replaces and supercedes any agreements,
representations or understandings (whether oral or written and whether express or implied) that are
not expressly set forth in this Agreement that have been made or entered into by either party with
respect to the subject matter hereof.
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(c)
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Notice
. Notices and all other communications contemplated by this Agreement shall be in writing
and shall be deemed to have been duly given when personally delivered or three (3) business days
after mailing by U.S. registered or certified mail, return receipt requested and postage prepaid.
In the case of Executive, mailed notices shall be addressed to Executive at the home address that
Executive most recently communicated to the Corporation in writing. In the case of the Corporation,
mailed notices shall be addressed to its corporate headquarters, and all notices shall be directed
to the attention of the office of the General Counsel.
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(d)
|
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Choice of Law
. The validity, interpretation, construction and performance of this Agreement
shall be governed by the laws of the State of California, irrespective of California’s
choice-of-law principles.
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(e)
|
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No Assignment of Benefits
. The rights of any person to payments or benefits under this
Agreement shall not be made subject to option or assignment, either by voluntary or involuntary
assignment or by operation of law, including (without limitation) bankruptcy, garnishment,
attachment or other creditor’s process, and any action in violation of this Section 21(e) shall be void.
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(f)
|
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Employment At Will; Limitation of Remedies
. The Corporation and Executive acknowledge that
Executive’s employment is at will, as defined under applicable law. If Executive’s employment
terminates for any reason, Executive shall not be entitled to any payments, benefits, damages,
awards or compensation other than as provided by this Agreement.
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(g)
|
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Employment Taxes
. All payments made pursuant to this Agreement shall be subject to withholding
of applicable taxes.
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(h)
|
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Benefit Coverage Non-Additive
. In the event that Executive is entitled to health plan coverage
under more than one provision hereunder, only one provision shall apply, and neither the periods of
coverage nor the amounts of benefits shall be additive.
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(i)
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Discharge of Responsibility
. The payments under this Agreement, when made in accordance with
the terms of this Agreement, shall fully discharge all responsibilities of the Corporation (and its
affiliates) to Executive that existed at the time of termination of Executive’s employment.
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(j)
|
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Indemnification
. To the fullest extent permitted by applicable law, the Articles of
Incorporation and the by-laws of the Corporation (as in effect from time to time), the Corporation
shall indemnify and hold harmless Executive for all economic consequences
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(e.g., damages, settlement, attorneys’ fees and lost compensation if enjoined) (i) in the
event of any action or threatened action by VF Corporation (e.g., breach of fiduciary duty)
except with respect to an action or threatened action resulting from Executive’s willful
wrongdoing or gross negligence and (ii) for any acts or decisions made by him in good faith
while performing services for the Corporation and its subsidiaries, whether in the capacity
of officer, employee, director or employee benefit plan fiduciary; provided, in each case,
that the Corporation shall not be liable or responsible to indemnify Executive hereunder
for the economic consequences relating to Executive’s breach of Executive’s representation
made in the last sentence of Section 2(b) hereof.
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(k)
|
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No Mitigation
. Executive shall not be required to mitigate the amount of any payment
or benefit contemplated by this Agreement, nor shall any such payment or benefit be reduced by
any earnings or benefits that Executive may receive from any other source.
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(l)
|
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Inconsistency
. In the event of any inconsistency between this Agreement (including
the Schedules and Exhibits hereto) and any other plan, program, policy, practice or agreement
in which Executive is a participant or a party, this Agreement shall control unless such other
plan, program, practice and agreement supersedes this Agreement by specific reference to this
paragraph 21(l).
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[Signature Page Follows]
19
IN WITNESS WHEREOF
, each of the parties has executed this Agreement, in the case of the
Corporation by a duly authorized officer, as of the day and year first above written. Executive
has consulted (or has had the opportunity to consult) with his own counsel (who is other than the
Corporation’s counsel) prior to execution of this Agreement.
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CHARLES V. BERGH
|
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/s/ Charles V. Bergh
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LEVI STRAUSS & CO.
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By
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/s/ Pat Pineda
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Its
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Human Resources Committee Chairperson
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20
SCHEDULE A
Method
for Determination of Long Term Incentive Grant Size
|
1)
|
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Fair Market Value of a share of common stock to be determined by Evercore independent valuation
(or other reputable third-party valuation firm), including illiquidity discount.
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Semi-annual appraisal to be determinative of each grant (currently, June 30, 2011 and December 31,
2011, respectively).
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No Board of Directors discretion over valuation that is adverse to Executive
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2)
|
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Black-Scholes multiple determined in accordance with the grant date methodology used by the
Corporation for purposes of expensing the SAR in connection with its publicly-reported annual
audited financial statements for such fiscal year.
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3)
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Number of SARs to be granted, per grant, equals
[$X] ÷ [FMV of a share of common stock on the
date of grant (with illiquidity discount applied) x Black-Scholes multiple expressed as a
percentage]. “$X” is the grant date value of the SAR award (e.g., $4,900,000 in the case of the
Initial SAR Award).
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4)
|
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Number of full-value awards to be granted (if any), per
grant, equals $X ÷ FMV of a share of
common stock on the date of grant (with illiquidity discount applied).
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5)
|
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Round up to next share covered by the applicable award.
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B.
|
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Example (for illustrative purposes only)
:
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1) Undiscounted value of one share of common stock set forth
in the third-party valuation:
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$A
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2) Illiquidity discount set forth in the third-party valuation:
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B%
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3) Fair market value of one share of common stock:
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$44.50 [Represents
$A
multiplied by (100%-B%)]
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4) Black-Scholes multiple:
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37.00%
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5) Black-Scholes value of one SAR:
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$16.465
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6) Minimum value of SAR grant:
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$4,900,000
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|
|
|
|
|
|
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7) Number of SARs to be granted ($4,900,000 / $16.465):
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|
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297,601
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21
SCHEDULE B
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•
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All relocation benefits have a 6 month time limit of eligibility from the date of initiation.
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•
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All transferees will be required to sign a payback agreement prior to the relocation start.
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POLICY AREA
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LEVEL A HOMEOWNER
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Househunting
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7 day trip paid as a lump sum and tax protected.
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Temporary Living
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Up to 60 days paid for lodging at new location.
Employee must have a “dual” living situation.
Paid as a lump sum and tax protected.
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Final Move Costs
|
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Airfare cost. Non taxable.
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Shipment of Household Goods
|
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A moving company is assigned to ship household
goods and up to 2 cars from the old to the new
location at company cost. Non taxable.
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Miscellaneous Expense Allowance
|
|
An allowance equivalent to 2 weeks of your new
salary to cover incidentals at new location.
Taxable/not tax protected.
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Destination Services
|
|
A full and comprehensive orientation to new
community; includes real estate referral and
mortgage counseling. Tax protected.
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Spouse/Partner Employment Assistance Program
|
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A program to help spouse/partner find
employment at new location. Tax protected.
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Home Purchase Assistance
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|
Coverage of all one time purchase closing
costs. Must be a pre-existing homeowner. Tax
protected.
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Other Incentives
|
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Cash incentive to employee if home is sold
within the 90 day marketing period. Taxable/not
tax protected.
|
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Buyer Value Option Program
|
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Market home for first 90 days through the
Marketing Assistance Program and close through
3
rd
party company. Non taxable
event.
|
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Cost of Living Allowance
|
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If deemed to be a 20% minimum cost of living
differential between old and new location.
Payment capped at $50,000 gross. Differential
times old salary is the allowance paid.
Taxable/not tax protected.
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Loan Subsidy Program
|
|
A dollar driven subsidy capped at $30,000 to
cover interest payments. Applied through
approved lender list. Taxable/Tax protected
FICA only.
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Tax Assistance
|
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LS&CO pays tax liability on all taxable
relocation expenses that are tax protected.
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22
EXHIBIT A
Levi Strauss & CO.
2006 Equity Incentive Plan
Stock Appreciation Right Grant Notice
Levi Strauss & Co. (the
“Company”
), pursuant to its 2006 Equity Incentive Plan (the
“Plan”
), hereby
grants to Participant a Stock Appreciation Right covering the number of Common Stock equivalents
(the
“Stock Appreciation Rights”
) set forth below (the
“Award”
). This Award is evidenced by a Stock
Appreciation Right Agreement (the
“Award Agreement”
). The Award is subject to all of the terms and
conditions as set forth herein and in the Award Agreement, the Plan, and the Notice of Exercise,
all of which are attached hereto and incorporated herein in their entirety.
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Participant:
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Charles V. Bergh
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Date of Grant:
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Vesting Commencement Date:
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Number of Stock Appreciation Rights:
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[Per Schedule A of Employment Agreement]
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Strike Price (Per Stock Appreciation Right):
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Expiration Date:
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[Insert date (7 years from date of grant)
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Vesting Schedule:
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25% of the shares subject to the Award shall vest on the first anniversary of the
Vesting Commencement Date, and 1/48
th
of the shares subject to the Award shall vest each month
thereafter on the same calendar day of the month as the Vesting Commencement Date (and if there is
no corresponding day, on the last day of the month), subject to Participant’s Continuous Service
through each such vesting date, except as set forth herein.
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Notwithstanding the foregoing and anything contrary in the Plan, if Participant’s Continuous
Service terminates due to (i) termination by the Company without “Cause”, (ii) Participant’s
resignation for “Good Reason”, (iii) termination by the Company as a result of Participant’s
“Disability” or (iv) Participant’s death, then the unvested portion of the Award that would have
vested during the twenty-four (24) months following the date of termination had his employment not
so terminated, will immediately vest upon such termination.
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Alternatively, if at any time upon or within two (2) years following a “Change in Control”,
Participant’s Continuous Service terminates due to (i) termination by the Company for any reason
other than for (x) “Cause”, (y) death or (z) “Disability”, or (ii) Participant’s resignation for
“Good Reason”, then the Award will fully and immediately vest upon such termination. For the
avoidance of doubt, if Participant is entitled to receive vesting acceleration pursuant to this
paragraph, then this paragraph will apply and not the immediately
preceding paragraph above.
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Alternatively, if (i) at any time after the fifth anniversary of Participant’s Start Date
(as defined in Participant’s Employment Agreement with the Company, dated
[
], 2011 (the “Employment Agreement”)), Participant’s Continuous
Service terminates due to Participant’s resignation for any reason other than in
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1.
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connection with an impending termination for “Cause” by the Company and (ii) provided at least
twelve (12) months have lapsed since the Date of Grant, then the Award will fully and immediately
vest upon such termination. For the avoidance of doubt, if Participant is entitled to receive
vesting acceleration pursuant to this paragraph, then this paragraph will apply and not the
immediately preceding paragraphs above.
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For purposes of the foregoing Vesting Schedule, “Cause”, “Disability”, “Good
Reason” and “Change in Control” shall have the meaning defined in the
Employment Agreement.
|
Additional Terms/Acknowledgements:
The undersigned Participant acknowledges receipt of, and
understands and agrees to, this Stock Appreciation Right Grant Notice, the Award Agreement, and the
Plan. Participant further acknowledges that as of the Date of Grant, this Stock Appreciation Right
Grant Notice, the Award Agreement, and the Plan set forth the entire understanding between
Participant and the Company regarding the award of the Stock Appreciation Rights and supersede all
prior oral and written agreements on that subject with the exception of (i) awards previously
granted and delivered to Participant under the Plan, and (ii) the following agreements only:
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Levi Strauss & Co.
|
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Participant:
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By:
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Signature
|
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Signature
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Title:
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SVP Worldwide Human Resources
|
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Date:
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Date:
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2.
Levi Strauss & Co.
2006 Equity Incentive Plan
Stock Appreciation Right Agreement
Pursuant to your Stock Appreciation Right Grant Notice (
“Grant Notice”
) and this Stock Appreciation
Right Agreement (the
“Award Agreement”
), Levi Strauss & Co. (the
“Company”
) has granted you a Stock
Appreciation Right under its 2006 Equity Incentive Plan (the
“Plan”
) covering the number of Common
Stock equivalents (
“Stock Appreciation Rights”
) as indicated in your Grant Notice (collectively,
the
“Award”
). Defined terms not explicitly defined in this Award Agreement but defined in the Plan
shall have the same definitions as in the Plan.
The details of your Award are as follows:
1.
Vesting
.
Subject to the conditions and limitations contained herein, your Award shall vest as
provided in your Grant Notice, provided that vesting shall cease upon the termination of your
Continuous Service.
2.
Number of Shares and Strike Price
.
The number of Common Stock equivalents subject to your Award
and your strike price per share are set forth in your Grant Notice and may be adjusted from time to
time for Capitalization Adjustments.
3.
Calculation of Appreciation
.
The amount payable upon exercise of each vested Award shall be
equal to the excess of (i) the Fair Market Value per share of Common Stock on the date of exercise,
over (ii) the Fair Market Value per share of Common Stock on the date of grant of the Award (as
indicated in your Grant Notice).
4.
Payment
.
Subject to Section 12, the amount payable upon exercise of your Award shall be settled
in whole shares of Common Stock rounded down to the nearest whole share based on the Fair Market
Value of such shares at the time of exercise.
5.
Term
.
You may not exercise your Award before the commencement or after the expiration of its
term. The term of your Award commences on the Date of Grant and expires upon the earliest of the
following, as applies:
(a)
immediately upon the termination of your Continuous Service for Cause;
(b)
three (3) months after the termination of your Continuous Service for any reason other than the
reasons set for in Section 5(a), (c), (d) and (e) of this Award Agreement;
provided, however,
(i)
that if during any part of such three (3) month period your Award is not exercisable solely because
of a condition set forth in Section 6, your Award shall not expire until the earlier of (A) the
Expiration Date, or (B) the date it shall have been exercisable for an aggregate period of three
(3) months after the termination of your
Continuous Service, and (ii) that prior to an IPO Date, the provisions of Section 8(a) of the Plan
will have the effect of either limiting or extending the period during which exercise is permitted,
depending upon the date on which the termination of your Continuous Services occurs;
3.
(c)
eighteen (18) months after the termination of your Continuous Service due to your Retirement;
provided, however
, that prior to an IPO Date, the provisions of Section 8(a) of the Plan will have
the effect of limiting the period during which exercise is permitted;
(d)
eighteen (18) months after the termination of your Continuous Service due to your termination
(i) by the Company without “Cause”, (ii) by the Company or you for “Disability”, or (iii) by you
for “Good Reason” as such terms are defined in your Employment Agreement with the Company, dated
[
], 2011;
provided, however
, that prior to an IPO Date, the provisions of Section 8(a) of the Plan
will have the effect of limiting the period during which exercise is permitted;
(e)
eighteen (18) months after your death if you die either during your Continuous Service or
within three (3) months after your Continuous Service terminates;
provided, however
, that prior to
an IPO Date, the provisions of Section 8(a) of the Plan will have the effect of limiting the period
during which exercise is permitted;
(f)
the Expiration Date indicated in your Grant Notice; or
(g)
the day before the tenth (10th) anniversary of the Date of Grant.
For the avoidance of doubt, any termination of your Continuous Service in which you were
eligible for Retirement, irrespective of the actual basis for your termination (except if due to
Cause or an impending termination for Cause), will be deemed a termination of Continuous
Service due to Retirement governed by Section 5(c).
6.
Securities Law Compliance
.
Notwithstanding anything to the contrary contained herein, you may
not exercise your Award unless either (i) the shares of Common Stock issuable upon such exercise
are then registered under the Securities Act, or (ii) the Company has determined that such exercise
and issuance would be exempt from the registration requirements of the Securities Act. The exercise
of your Award also must comply with other applicable laws and regulations governing your Award, and
you may not exercise your Award if the Company determines that such exercise would not be in
material compliance with such laws and regulations.
7.
Exercise.
(a)
You may exercise the vested portion of your Award during its term by delivering a Notice of
Exercise to the Secretary of the Company, or to such other person as the Company may designate,
during regular business hours, together with such additional documents as the Company may then
require. The exercise date shall be the business day on which your signed Notice of Exercise is
received by the Company. If the Notice of Exercise is received after normal business hours for a
given day, then the exercise date shall be considered to be the following business day.
Notwithstanding the foregoing,
prior to an IPO Date, you may exercise a vested Award only during the period or periods and subject
to the further conditions set forth in Section 8(a) of the Plan.
(b)
As a condition of exercise of the vested portion of your Award for shares of Common Stock, you
will be required to enter into the Stockholders’ Agreement (or any
4.
successor to that agreement) and the Voting Trust Agreement (or any successor to that agreement),
and such other agreements as the Company may require pursuant to Section 8(f) of the Plan.
(c)
By exercising your Award you agree that you shall not sell, dispose of, transfer, make any
short sale of, grant any option for the purchase of, or enter into any hedging or similar
transaction with the same economic effect as a sale, any shares of Common Stock or other securities
of the Company held by you, for a period of time specified by the managing underwriter(s) (not to
exceed one hundred eighty (180) days) following the effective date of a registration statement of
the Company filed under the Securities Act (the
“Lock Up Period”
) in connection with an initial
public offering of Common Stock, if any; provided, however, that nothing contained in this section
shall prevent the exercise of a repurchase right, if any, in favor of the Company during the Lock
Up Period. You further agree to execute and deliver such other agreements as may be reasonably
requested by the Company and/or the underwriter(s) that are consistent with the foregoing or that
are necessary to give further effect thereto. In order to enforce the foregoing covenant, the
Company may impose stop-transfer instructions with respect to your shares of Common Stock until the
end of such period. The underwriters of the Company’s stock are intended third party beneficiaries
of this Section 7(c) and shall have the right, power and authority to enforce the provisions hereof
as though they were a party hereto.
8.
Transferability
.
Your Award is not transferable, except by will or by the laws of descent and
distribution, and is exercisable during your life only by you. Notwithstanding the foregoing, by
delivering written notice to the Company, in a form satisfactory to the Company, you may designate
a third party who, in the event of your death, shall thereafter be entitled to exercise your Award.
9.
Put Right.
Prior to an IPO Date, you, pursuant to the provisions of Section 8 of the Plan, shall
have the right, but not the obligation, to require the Company to repurchase any or all of the
shares of Common Stock acquired pursuant to the exercise of your Award.
10.
Call Right
.
Upon and after any termination of your Continuous Service but prior to an IPO Date,
the Company, pursuant to the provisions of Section 8 of the Plan, shall have the right, but not the
obligation, to repurchase all of the shares of Common Stock theretofore or thereafter acquired
pursuant to the exercise of your Award.
11.
Award not a Service Contract.
Your Award is not an employment or service contract, and nothing
in your Award shall be deemed to create in any way whatsoever any obligation on your part to
continue in the employ of the Company or any Affiliate, or of the Company or an Affiliate to
continue your employment or service. In addition, nothing in your Award shall obligate the Company
or an Affiliate, their respective stockholders, Boards of Directors, officers or employees to
continue any relationship that you might have as a Director or Consultant for the Company or any
Affiliate.
12.
Withholding Obligations.
(a)
At the time you exercise your Award, in whole or in part, or at any time thereafter as
requested by the Company, you hereby authorize withholding from payroll and any
5.
other amounts payable to you, and otherwise agree to make adequate provision for, any sums required
to satisfy the federal, state, local and foreign tax withholding obligations of the Company or an
Affiliate, if any, which arise in connection with the exercise of your Award.
(b)
Upon your request and subject to approval by the Company, in its sole discretion, and
compliance with any applicable legal conditions or restrictions, the Company may withhold from
shares of Common Stock otherwise issuable to you upon the exercise of your Award a number of whole
shares of Common Stock having a Fair Market Value, determined by the Company as of the date of
exercise, not in excess of the minimum amount of tax required to be withheld by law (or such lesser
amount as may be necessary to avoid variable award accounting).
(c)
You may not exercise your Award unless the tax withholding obligations of the Company and/or
any Affiliate are satisfied. Accordingly, you may not be able to exercise your Award when desired
even though your Award is vested, and the Company shall have no obligation to issue a certificate
for such shares of Common Stock or release such shares of Common Stock from any escrow provided for
herein unless such obligations are satisfied.
13.
Personal Data
.
You understand that your employer, the Company, or an Affiliate hold certain
personal information about you, including but not limited to your name, home address, telephone
number, date of birth, national social insurance number, salary, nationality, job title, and
details of all shares of Common Stock granted, cancelled, vested, unvested, or outstanding (the
“Personal Data”
). Certain Personal Data may also constitute
“Sensitive Personal Data”
within the
meaning of applicable local law. Such data include but are not limited to Personal Data and any
changes thereto, and other appropriate personal and financial data about you. You hereby provide
express consent to the Company or an Affiliate to process any such Personal Data and Sensitive
Personal Data. You also hereby provide express consent to the Company and/or an Affiliate to
transfer any such Personal Data and Sensitive Personal Data outside the country in which you are
employed or retained, including the United States. The legal persons for whom such Personal Data
are intended are the Company and any broker company providing services to the Company in connection
with the administration of the Plan. You have been informed of your right to access and correct
your Personal Data by applying to the Company representative identified on the Grant Notice.
14.
Additional Agreements and Acknowledgements.
You hereby agree and acknowledge that:
(a)
The rights and obligations of the Company with respect to your Award shall be transferable to
any one or more persons or entities, and all covenants and agreements hereunder shall inure to the
benefit of, and be enforceable by the Company’s successors and assigns.
(b)
You agree upon request to execute any further documents or instruments necessary or desirable
in the sole determination of the Company to carry out the purposes or intent of your Award.
6.
(c)
You have reviewed your Award in its entirety, have had an opportunity to obtain the advice of
counsel prior to executing and accepting your Award and fully understand all provisions of your
Award.
(d)
You will not question or contest in any way, whether pursuant to legal proceedings or
otherwise, the Board’s determination of the Fair Market Value of Common Stock, whether for purposes
of determining the strike price of your Award, the number of shares of Common Stock payable on
exercise of your Award, or the amount payable on exercise of your put right or the Company’s call
right pursuant to Section 8 of the Plan.
(e)
You will not question or contest in any way, whether pursuant to legal proceedings or
otherwise, the Company’s determination, pursuant to Section 8(e) of the Plan, to (i) reject, in whole or in part, your exercise of a put right or (ii) not exercise, in whole or in
part, the Company’s call right.
(f)
This Agreement shall be subject to all applicable laws, rules, and regulations, and to such
approvals by any governmental agencies or national securities exchanges as may be required.
(g)
All obligations of the Company under the Plan and this Agreement shall be binding on any
successor to the Company, whether the existence of such successor is the result of a direct or
indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business
and/or assets of the Company.
(h)
Participation in the Plan is voluntary, and therefore, you must accept the terms and conditions
of the Plan and this Award as a condition to participate in the Plan and receive this Award.
(i)
The Plan is discretionary in nature and the Company can amend, cancel, or terminate it at any
time. Section 3(b)(v) of the Plan to the contrary notwithstanding, this Award shall not be
terminated or canceled without payment to you except to the extent the Award fails to vest or is
forfeited, expires or otherwise terminates in accordance with its terms.
(j)
This Award and any other awards under the Plan are voluntary and occasional and do not create
any contractual or other right to receive future awards or other benefits in lieu of future awards,
even if similar awards have been granted repeatedly in the past.
(k)
All determinations with respect to any such future awards, including, but not limited to, the
time or times when such awards are made, the number of shares of Common Stock, and performance and
other conditions applied to the awards, will be at the sole discretion of the Company.
(l)
The value of the shares of Common Stock and this Award is an extraordinary item of
compensation, which is outside the scope of your employment or service contract, if any.
(m)
The shares of Common Stock, this Award, or any income derived therefrom are a potential bonus
payment not paid in lieu of any cash salary compensation and not part of normal or expected
compensation or salary for any purposes, including, but not limited to, calculating
7.
any termination, severance, resignation, redundancy, end of service payments, bonuses, long-service
awards, life or accident insurance benefits, pension or retirement benefits or similar payments.
(n)
In the event of the termination of your Continuous Service, your eligibility to receive shares
of Common Stock or payments under this Award or the Plan, if any, will terminate effective as of
the date that you are no longer actively employed or retained regardless of any reasonable notice
period mandated under local law, except as expressly provided in this Award.
(o)
In the event of the termination of your Continuous Service for Cause, the Company, in its sole
discretion, may rescind any transfer of Common Stock to you that occurred within six (6) months
prior to such termination of Continuous Service or demand that you pay over to the Company the
proceeds received by you upon the sale, transfer or other transaction involving the Common Stock in
such manner and on such terms and conditions as the Company may require, and the Company shall be
entitled to set-off against the amount of such proceeds any amount you owe to the Company to the
fullest extent permitted by law.
(p)
The future value of the shares of Common Stock is unknown and cannot be predicted with
certainty.
(q)
No claim or entitlement to compensation or damages arises from the termination of this Award or
diminution in value of the shares of Common Stock and you irrevocably release the Company and its
Affiliates, from any such claim that may arise.
(r)
The Plan and this Award set forth the entire understanding between you, the Company and any
Affiliate regarding the acquisition of the shares of Common Stock and supersede all prior oral and
written agreements pertaining to this Award.
(s)
Anything in the Plan to the contrary notwithstanding, in the event any extraordinary cash
dividend is made to stockholders, the Board shall equitably adjust the exercise price of this Award
to reflect any material decrease in the fair market value of a share of the Company’s Common Stock
resulting from such extraordinary dividend, to the extent permissible without causing the Award to
be a “deferral of compensation” under Section 409A of the Internal Revenue Code, and to the extent
not so permissible the Company shall grant you such other award (including restricted stock units)
or compensation as shall be equitable to compensate you for such decrease in value, as determined
by the Company.
15. N
otices
.
Any notices provided for in your Award or the Plan shall be given in
writing and shall be deemed effectively given upon receipt or, in the case of notices delivered by
mail by the Company to you, five (5) days after deposit in the United States mail, postage prepaid,
addressed to you at the last address you provided to the Company.
16. H
eadings
.
The headings of the Sections in this Agreement are inserted for
convenience only and shall not be deemed to constitute a part of this Agreement or to affect the
meaning of this Agreement.
8.
17. S
everability
. If all or any part of this Agreement or the Plan is declared by any
court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity shall
not invalidate any portion of this Agreement or the Plan not declared to be unlawful or invalid.
Any Section of this Agreement (or part of such a Section) so declared to be unlawful or invalid
shall, if possible, be construed in a manner which will give effect to the terms of such Section or
part of a Section to the fullest extent possible while remaining lawful and valid.
18.
Governing Plan Document
.
Your Award is subject to all
the provisions of the Plan, the provisions of which are hereby made a part of your Award, and is
further subject to all interpretations, amendments, rules and regulations, which may from time to
time be promulgated and adopted pursuant to the Plan. In the event of any conflict between the
provisions of your Award and those of the Plan, the provisions of the Plan shall control.
9.
Attachment II
2006 Equity Incentive Plan
(See
Tab A
For 2006 Equity Incentive Plan document)
Notice of Exercise
|
|
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|
Levi Strauss & Co.
1155 Battery St.
San Francisco, CA 94111
|
|
Date of Exercise: _________
|
Ladies and Gentlemen:
This constitutes notice that I elect to exercise my Stock Appreciation Right.
|
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Stock appreciation right dated:
|
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|
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|
|
|
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|
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Number of Common Stock
equivalents as to which stock
appreciation right is exercised:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Certificates to be issued in name of:
|
|
|
|
|
By this exercise, I agree (i) to provide such additional documents as you may require pursuant
to the terms of the Levi Strauss & Co. 2006 Equity Incentive Plan, and (ii) to provide for the
payment by me to you (in the manner designated by you) of your withholding obligation, if any,
relating to the exercise of this stock appreciation right.
EXHIBIT B
LEVI STRAUSS & CO.
EXECUTIVE SEVERANCE PLAN
GENERAL RELEASE AGREEMENT
In accordance with Section 15 of your Employment Agreement with Levi Strauss & Co. dated
_______________, 2011 (“
Employment Agreement
”), you must agree to sign and not later revoke
this General Release Agreement (“
Agreement
”).
You and Levi Strauss & Co. (“
LS&CO
.”) hereby agree as follows:
1.
Generally
. If you sign this General Release Agreement in accordance with Section 15 of
the Employment Agreement, and all applicable revocation periods have expired, you will receive
satisfy the requirement thereof.
2.
General Release
.
|
|
a.
|
|
In consideration for the payments, benefits and other rights under Section 9, Section 10 or
Section 13 of the Employment Agreement (“Separation Benefits”), as applies, you, on your own behalf
and on behalf of your heirs, executors, administrators, attorneys and assigns, hereby
unconditionally and irrevocably release, waive and forever discharge LS&CO. and its predecessors,
successors, assigns, subsidiaries, related entities, officers, directors, voting trustees,
shareholders, employees, agents, attorneys and insurers (collectively referred to as the “
Company
”)
from any and all claims, suits, actions, causes of action, demands, rights, damages, costs,
expenses, attorney’s fees, and compensation in any form whatsoever, whether now known or unknown,
which you have or may have (up through and including the date on which you sign this Agreement)
against the Company on account of or in any way related to your employment by the Company or your
separation therefrom, including but not limited to any and all claims for damages or injury, claims
for wages, employment benefits, tort claims, and claims under Title VII of the Civil Rights Act of
1964, the Civil Rights Act of 1991, the Civil Rights Act of 1866, the Age Discrimination in
Employment Act of 1967 (“
ADEA
”), the Employee Retirement Income Security Act of 1974, the National
Labor Relations Act, the Fair Labor Standards Act, the Rehabilitation Act of 1973, the Family and
Medical Leave Act of 1993, the Americans with Disabilities Act of 1990, and under any other
federal, state or local law, statute (including but not limited to, the California Fair Employment
& Housing Act or the California Labor Code), ordinance, guideline, regulation, order or common-law
principle relating to employment, employment contracts, wrongful discharge or any other matter.
|
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b.
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Notwithstanding the above General Release of all claims, you are not waiving or releasing: (i)
claims for workers’ compensation; (ii) claims for medical
conditions caused by exposure to hazards during your employment of which
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you were not aware before or at the time you sign this Agreement; (iii) claims arising after the
date on which you sign this Agreement; (iv) claims for vested or accrued benefits under a Company’s
employee benefit plan; (v) your right to file a charge with the Equal Employment Opportunity
Commission (“EEOC”) or to participate in an EEOC investigation, (vi) all Separation Benefits, in
consideration of your general release of claims hereunder, (vii) your right to indemnification and
coverage as an insured under any contract of officers and directors liability insurance pursuant to
Section 21(j) of the Employment Agreement or (viii) your rights as a stockholder of LS&CO. You are,
however, waiving all rights to recover money or other individual relief in connection with any EEOC
charge or investigation.
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3.
California Based Employees
. You also waive, release and promise never to assert any
rights and benefits afforded by Section 1542 of the California Civil Code and any similar law of
any state or territory of the United States and do so understanding and acknowledging the
significance and consequences of such specific waiver of said provisions of law. Section 1542 of
the California Civil Code states as follows:
“A General Release does not extend to claims which the Creditor does not know or suspect to exist
in his or her favor at the time of executing the General Release, which, if known to him or her
must have materially affected his or her settlement with the Debtor.”
4.
Covenant Not to Sue
. A “covenant not to sue” is a legal term which means you promise not
to file a lawsuit in court. It is different from the General Release of claims contained in Section
1 above. Besides waiving and releasing the claims covered by Section 1, you further promise and
represent that: (a) you have no pending lawsuits against the Company with any municipal, state, or
federal court or non-governmental entity; and (b) you will not sue the Company for any reason
whatsoever relating to anything that has happened through the date of this General Release
Agreement and released hereby. However, this promise not to sue does not preclude you from bringing
a lawsuit to challenge the enforceability of this General Release Agreement under the ADEA.
5.
No Admission
. The parties acknowledge and agree that this General Release Agreement does
not constitute, is not intended to be, and shall not be construed, interpreted or treated in any
respect as, an admission of liability or wrongdoing by either party for any purpose whatsoever.
Further, each party acknowledges and agrees that there has been no determination that either party
has violated any federal, state or local law, regulation, order or other legal principle or
authority. You further acknowledge that no precedent, practice, policy or usage shall be
established by this General Release Agreement or the amounts, benefits and rights due you under the
Employment Agreement.
6.
Consequences
of Other Breach
. You affirm that all non-compete, non-solicitation,
confidential information (including as set forth at Section 17 of the Employment Agreement) and
cooperation/non disparagement covenants applicable to you immediately
prior to your termination of employment shall apply following your termination in accordance with
the terms thereof.
2.
7.
Time To Consider Agreement
. You acknowledge that you have been given at least 21 days to
thoroughly consider this General Release Agreement.
8.
Attorney Consultation
. You acknowledge that you have been advised in writing to consult
with an attorney at your own expense, if desired, prior to signing this General Release Agreement.
9.
Time To Revoke Agreement
. You understand that you may revoke this General Release
Agreement within seven (7) days after its signing and that any revocation must be made in writing
and submitted within such seven day period by registered mail, return receipt requested, to Senior
Vice President of Human Resources, Levi Strauss & Co., 1155 Battery Street, San Francisco, CA
94111. You further understand that if you revoke this General Release Agreement, you shall not
receive the Separation Benefits otherwise due you.
10.
Consideration For Agreement
. You also understand that the Separation Benefits which you
will receive in exchange for signing and not later revoking this General Release Agreement are in
addition to anything of value to which you already are entitled.
11.
Release Of Unknown Claims
. YOU FURTHER UNDERSTAND THAT THIS GENERAL RELEASE AGREEMENT
INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS TO DATE.
12.
Severability
. You acknowledge and agree that if any provision of this General Release
Agreement (other than the Company’s obligation to provide the Separation Benefits and Section
2(b)(vii) and (viii) hereof) is found, held or deemed by a court of competent jurisdiction to be
void, unlawful or unenforceable under any applicable statute or controlling law, the remainder of
this General Release Agreement shall continue in full force and effect.
13.
Governing Law
. This General Release Agreement in all respects shall be interpreted,
enforced and governed under applicable federal law and in the event reference shall be made to
State law, the internal laws of the State in which the Executive resides on his or her termination
date will apply.
14.
Acknowledgement
. You further acknowledge and agree that you have carefully read and
fully understand all of the provisions of this General Release Agreement and that you voluntarily
enter into this General Release Agreement by signing below.
[signature page follows]
3.
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Charles V. Bergh
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PLEASE RETURN TO:
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[Insert Name, Title and Address]
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4.
Exhibit 10.2
TRANSITION SERVICES, SEPARATION AGREEMENT
AND RELEASE OF ALL CLAIMS
This Transition Services, Separation Agreement and Release of All Claims (“
Agreement
”) is
made and entered into by and between John Anderson (“
Executive
”) and Levi Strauss & Co., and its
affiliated entities, including parent, subsidiary, and sister corporations (collectively “
LS&Co.
”
or the “
Company
”), together referred to as “the parties.”
In consideration of the covenants and promises contained in this Agreement and other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows.
1.
Transition Services and Separation From Employment
.
(a) Executive agrees that effective September 1, 2011 (the “
Transition Date
”), he will
resign as the Chief Executive Officer of LS&Co. and as a member of the Board of Directors
of LS&Co and until then shall perform his duties to the best of his abilities, in the best
interests of the Company and in compliance with this Agreement.
(b) Executive agrees that no later than the Transition Date, at such date determined
by the Company, he will resign as director or any other legal position associated with the
LS&Co. subsidiaries listed on
Attachment A
hereto, by means of a resignation letter
in form and substance necessary to effect each such resignation, to be delivered to LS&Co.
Executive waives any rights to give or receive notice with respect to such resignations.
(c) Effective as of the Transition Date, Executive shall become a non-executive
employee of LS&Co. and, in such position, shall provide transition services to LS&Co. as
requested by the Company until the last day of fiscal year 2011 (the “
Termination Date
”).
Effective as of the Termination Date, Executive will cease to be an employee of, or have
any connection with, or claims against LS&Co. (except for payments or benefits due
hereunder).
(d) During the period commencing on the Transition Date and ending on the Termination
Date (the “
Transition Period
”), subject to Executive’s compliance with Section 1(c) above
and reasonable cooperation with the requests of LS&Co., Executive shall continue to receive
his base salary during the Transition Period based on his current annual rate of base
salary of $1,275,000, which shall be paid in accordance with LS&Co.’s normal payroll
practices, subject to applicable federal, state, local and employment tax withholding.
During the Transition Period, Executive shall continue to vest in any outstanding equity
awards and remain eligible to participate in the employee benefits offered by LS&Co. in
accordance with the terms of such employee benefit plans.
2.
Separation Benefits
. If Executive timely signs this Agreement, timely signs and
does not revoke a Supplemental Release (as defined in Section 25 below), and he complies with this
Agreement (including, without limitation, all provisions of the Severance Plan (as defined in
Section 20 below) incorporated by reference herein and his obligations under Sections 1(a), 1(d)
and 6 hereof), any Company policy applicable to Executive and the Supplemental Release, he will
1
receive the following benefits in consideration of his transition services, cooperation with
the Company and releases of claims in favor of the Company, which are in addition to anything he
is otherwise entitled to or has been paid by LS&Co., including but not limited to any accrued and
unused salary or vacation pay:
(a) A lump sum payment equal to $2,524,995, subject to applicable federal, state,
local and employment tax withholding, which will be paid on the first full payroll date in
January 2012.
(b) Subject to any payment delay required by Section 13 below, commencing on the
second full payroll date in December 2011, LS&Co. will pay to Executive an aggregate amount
equal to $4,543,413, subject to applicable federal, state, local and employment tax
withholding, which will be paid in equal installments of $57,620.19 over seventy-eight (78)
weeks in accordance with the Company’s regular payroll practices; provided that the first
payment shall include (i) a payment in lieu of two weeks’ notice equal to $49,038 and (ii)
all amounts that would have been paid to Executive had payments commenced effective as of
the Transition Date. Provided, however, if Executive dies before all payments are made
under this Section 2(b), all remaining payments will be made to Executive’s estate in a
lump-sum on the sixtieth (60
th
) day after Executive’s death, provided that the
Company may delay such payments until it is provided with proof of Executive’s death but,
in the case of amounts subject to Section 409A (as defined in Section 13(a) below), only
within the time periods necessary to avoid the imposition of taxes under Section 409A.
(c) Upon the Supplemental Release Effective Date, all of Executive’s outstanding
unvested stock appreciation rights granted to him by LS&Co. (other than those granted in
calendar year 2011 (the “
2011 SAR
”)) shall vest in full and shall be exercisable following
Executive’s termination of employment in accordance with their existing terms. Upon the
Supplemental Release Effective Date, the 2011 SAR shall vest as to 25% of the shares
covered thereby and shall be exercisable following Executive’s termination of employment in
accordance with its existing terms. Executive shall have an eighteen (18)-month
post-termination exercise period commencing on the Termination Date during which all of his
vested SARs will remain outstanding and exercisable pursuant to the terms of the Company’s
2006 Equity Incentive Plan. Further, the Company agrees that if Executive does not have at
least two (2) weeks to exercise his SARs during the final exercise window of his eighteen
(18)-month post-termination exercise period, Executive will be permitted to exercise his
SARs during the next two (2)-month exercise window, but in no event beyond the expiration
date applicable to the SARs.
(d) Notwithstanding any contrary provision under the Company’s Annual Incentive Plan
and in satisfaction of any obligation thereunder, at the time annual bonuses are generally
paid under the Annual Incentive Plan, but in no event later than March 15, 2012, LS&Co.
will pay to Executive a single cash lump sum payment equal to $1,721,250, which represents
Executive’s bonus at target (135% of base salary), for the entire 2011 fiscal year.
(e) LS&Co. shall pay to Executive his account balance under the
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following plans as a result of his participation therein, such payments will be made
in accordance with the terms of the applicable plan and applicable law (including any
vesting requirements) and any election properly made thereunder, in each case, subject to
applicable federal, state, local and employment tax withholding:
i. The Supplemental Executive Incentive Plan;
ii. The 401(k) Restoration Plan; and
iii. The Australia Superannuation Plan.
Executive’s right to the benefits described in this Section 2(e) shall not be subject
to the requirement that he sign and not revoke a release of claims in favor of the Company
unless required by the applicable plan.
(f) If Executive or his covered dependents timely elect to receive medical coverage
continuation under the Consolidated Budget Reconciliation Act of 1986 (“
COBRA
”), LS&Co.
will pay the same percentage of the monthly cost of the COBRA medical coverage, as it paid
for Executive’s medical coverage during his active employment for up to the earlier of
eighteen (18) months, or the date Executive becomes eligible for coverage under another
group health plan unless the new plan has a pre-existing condition limitation, or Executive
is entitled to Medicare. During the period of coverage subsidized by LS&Co., Executive
will be responsible for payment of the remainder of the cost of COBRA medical coverage, and
for the full cost of any dental or vision coverage he or any member of his family elects.
Any failure by Executive to pay his portion of coverage will result in termination of
continuation coverage and LS&Co.’s obligations under this Section 2(f). Any period of
subsidized coverage shall be counted toward Executive’s applicable COBRA entitlement
period. After the Company-subsidized coverage period ends, Executive will be responsible
for full payment of his entire COBRA premium. Executive agrees to promptly inform LS&Co.
as soon as he becomes eligible for coverage under another group health plan. The dollar
amount of such COBRA premiums paid by LS&Co. shall be taxable to Executive to the extent
required or advisable to avoid potentially adverse tax treatment or other economic
consequences to Executive or to LS&Co.
(g) LS&Co. will pay the cost of premiums for Executive under its standard basic life
insurance program not to exceed $10,000 for the same duration that it subsidizes the COBRA
coverage in Section 2(f) above.
(h) The provisions of this Section 2 are intended to be and are exclusive and in lieu
of any other rights or remedies to which Executive or the Company may otherwise be
entitled, whether at law, tort or contract, in equity, or under this Agreement or the
Severance Plan (other than the payment of accrued but unpaid wages, as required by law, and
any unreimbursed reimbursable expenses). Executive will be entitled to no other severance,
benefits, compensation or other payments or rights upon a termination of employment,
including, without limitation, any severance payments and/or benefits provided in any
employment-related agreement, other than those benefits expressly set forth in Sections 2
and 5 of this Agreement or pursuant to written equity award
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agreements with the Company.
3.
Taxes
. All separation payments will be treated as wages and will be subject to
withholding of applicable taxes, employee social security contributions and other amounts under
applicable law.
4.
Payments on Separation from Employment
.
LS&Co. will pay Executive accrued but
unpaid vacation, expense reimbursements, wages, and other vested benefits due to Executive under
any Company-provided plans, policies, and arrangements on the Termination Date.
5.
Outplacement Services
.
Subject to Executive timely signing this Agreement, timely
signing and not revoking a Supplemental Release, and complying with this Agreement (including,
without limitation, all provisions of the Severance Plan incorporated by reference herein and his
obligations under Sections 1(a), 1(d) and 6 hereof), any Company policy applicable to Executive
and the Supplemental Release, he may use reasonable executive outplacement services until the
one-year anniversary of the Termination Date.
6.
Cooperation
.
In consideration of this Agreement, Executive will fully cooperate
with LS&Co. and its counsel as it relates, in any way, to any issue or matter that may arise as
the subject of litigation or administrative inquiry, which occurred during his employment with or
other services to LS&Co. Full cooperation shall include, but not limited to, review of documents,
attendance at meetings, trial or administrative proceedings, depositions, interviews, or
production of documents to LS&Co. without the need of the subpoena process. In addition, as a
condition to LS&Co. executing this Agreement and providing the benefits hereunder, Executive
agrees to cooperate in all matters relating to the transition of his employment (including with
respect to internal and external communication plans) and other matters reasonably requested by
the Board of Directors of LS&Co., whether before or after the Termination Date.
7.
Indemnification
.
LS&Co. will defend Executive with respect to any claims brought
against Executive arising out of his employment or other service relationship with LS&Co.,
provided that LS&Co. shall select defense counsel and control the defense, subject to the consent
of Executive, which consent shall not be unreasonably withheld. In the event that Executive and
LS&Co. cannot agree on the selection of defense counsel, or on any decision with respect to the
defense of a claim, including but not limited to any decision to settle a claim, LS&Co.’s duty to
defend shall cease, and Executive shall assume all defense costs from that time forward, subject
to later payment by LS&Co. if it is determined that LS&Co. owes Executive a duty of indemnity that
includes those costs. LS&Co. will indemnify Executive to the extent permitted by LS&Co.’s bylaws,
and to greatest extent permitted by law, under the laws of the State of Delaware, or the laws of
the State of California, as the case may be, without respect to conflicts of law principles, with
respect to any judgment, verdict, or order against Executive for conduct by Executive which is
within the course and scope of his employment or other service relationship with LS&Co.
8.
Release by Executive
. In consideration of the promises set forth in Sections 2
and 5 of this Agreement, Executive, on behalf of himself, his successors, heirs,
administrators, executors, assigns, attorneys, agents and representatives, and each of them,
irrevocably and
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unconditionally waives, releases, and promises never to assert against LS&Co., and its
present and former parent companies, affiliates, subsidiaries, officers, directors, present and
former employees, benefit plans, attorneys, insurers, agents, successors, and assigns, and each
of them (collectively “
releasees
”), any and all debts, claims, liabilities, demands, and causes
of action of every kind, nature and description he may have against releasees, including,
without limitation, all those arising out of or related to Executive’s employment or other
service relationship with, and termination from LS&Co., or any affiliate, or any other claim of
any kind arising from any act or omission that occurred prior to Executive’s execution of this
Agreement including the termination of employment contemplated by this Agreement; provided,
however, that Executive is not waiving any claims pursuant to this Section 8 under the Age
Discrimination in Employment Act (ADEA) or under the Older Workers Benefit Protection Act
(OWBPA). Further, Executive is not waiving any claims pursuant to this Section 8 with respect
to this Agreement or any rights to indemnification (whether contractual or under applicable law
or Company Bylaws) as such rights exist from time to time pursuant to applicable contract or
law or Company Bylaws.
These claims include, but are not limited to, claims arising in any jurisdiction in the
world, including any claims under U.S. federal, state, or local statutory or common law such as
Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans
with Disabilities Act, the Family and Medical Leave Act of 1993, the Workers Adjustment and
Retraining Notification Act, the California Fair Employment and Housing Act; the California Civil
Code, the California Labor Code, the California WARN Act (Cal. Labor Code §§1400
et seq.),
claims
arising under contract or any alleged breach of tort law; and claims arising out of any law or
public policy of the United States of America, the State of California, or any other governmental
entity.
Executive accepts the amounts to which he is entitled by virtue of this Agreement as final
settlement of accounts between the parties and declares expressly that, subject to performance of
this Agreement, neither LS&Co. nor any company affiliated with LS&Co. — wherever located — will
have any further obligations vis-a-vis him. Executive confirms that he has no further rights or
claims — and to the extent relevant he knowingly and expressly waives any and all of such rights
and claims against LS&Co. or any of its affiliates, wherever located and under any applicable laws
of any relevant jurisdiction, on the basis of the employment relationship and/or the termination
of the employment contract, including (without limitation) with respect to salary, bonuses,
commissions, vacation pay, termination, discrimination, outplacement benefits, relocation
benefits, protection indemnities of any nature, any other indemnities or on any other basis
whatsoever.
Executive moreover expressly waives the right to invoke any factual or legal error or any
omission whatsoever pertaining to the existence and extent of his rights.
9.
No Existing Claims
. Executive warrants that neither Executive nor his successors,
heirs, administrators, executors, assigns, attorneys, agents, or representatives have (a) filed,
or intend to file, any complaints, charges, grievances, or lawsuits against releasees, or any
other person or entity which is released by this Agreement, with any federal, state, or other
court or agency in any jurisdiction inside or outside the United States, or (b) commenced, or
intend to commence, any arbitration or other dispute resolution process, and Executive for
himself, his successors, heirs, administrators, executors, assigns, attorneys, agents, and
representatives,
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warrants that they will not do so at any time hereafter, and that if any such other
complaint, charge, lawsuit, or arbitration has been filed, it will be immediately dismissed with
prejudice.
10.
Section 1542 Waiver
. Executive waives all rights under California Civil Code
section 1542, and any similar statute or rule of decision in any other jurisdiction. Section 1542
reads as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN TO HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
By waiving all rights under section 1542, Executive acknowledges that this release includes
all claims, demands, or causes of action, attorneys’ fees and costs that Executive may have
against releasees. It is understood and agreed by Executive that this Agreement waives Civil Code
section 1542, and is a full and final release, and that it will extinguish claims, demands and
causes of action that are known or unknown, foreseen, or unforeseen, anticipated or unanticipated,
of every kind, nature and character Executive may have against LS&Co, as of the date Executive
executes this Agreement.
11.
No Admission of Liability
. This Agreement is not an admission of liability on
the part of releasees, or any of their present or former directors, officers, employees,
shareholders, or agents. This Agreement is not an admission, directly or by implication, that
releasees, or any of them, has violated any law, regulation, rule, or contractual right, or any
other duty or obligation of any kind, including any duty or obligation owed to or allegedly owed
to Executive.
12.
Confidentiality
. Executive agrees that confidentiality is one of the most
important terms of this Agreement, and that the terms of this Agreement are a private matter.
Executive agrees that he has kept his negotiations with LS&Co. confidential, and that he will not
directly or indirectly divulge or disclose the terms of this Agreement (or negotiations related
thereto) to anyone subject to the following exceptions:
(a) Executive may disclose the terms of this Agreement as required by any
governmental agency or to comply with a lawfully-issued subpoena or court order;
(b) Executive may disclose the terms of this Agreement to his spouse so long as she
is informed of Executive’s obligation to keep this Agreement confidential, and promises
to comply with the terms of the Agreement;
(c) Executive may disclose the terms of this Agreement to his tax advisors and
attorneys, but only to the extent that it is required for the rendering of professional
services, so long as the person is informed of Executive’s obligation to keep this
Agreement confidential prior to the disclosure of the information, and promises to comply
with the terms of the Agreement; and
(d) Executive may disclose the terms of (but not the negotiations related to) this
Agreement once the Agreement has been publicly filed with the U.S. Securities and
Exchange Commission.
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Executive further agrees that unless required by law or a lawfully-issued subpoena or court
order, or specifically authorized by LS&Co. in advance, he will not directly or indirectly use or
disclose to others any information regarding any confidential or proprietary information or trade
secrets concerning LS&Co.’s business practices, market research, marketing plans or strategies,
new product plans, product projections, financial data or information, product plans or product
information, distribution information, sourcing information, customer or vendor information,
product marketing campaigns or programs, information about LS&Co. personnel, or any other
information considered to be confidential by LS&Co. The parties agree, however, that information
will not be deemed confidential if (a) it was in the public domain at or after the time
communicated to Executive by a disclosure through no fault of Executive; or (b) it was developed
independently by Executive without any relationship to his employment at LS&Co.
13.
Section 409A
.
(a) Notwithstanding anything to the contrary in this Agreement, no severance pay or
benefits to be paid or provided to Executive, if any, pursuant to this Agreement that, when
considered together with any other severance payments or separation benefits, are
considered deferred compensation not exempt under Section 409A (together, the “
Deferred
Payments
”) will be paid or otherwise provided until Executive has a “separation from
service” within the meaning of Section 409A. And for purposes of this Agreement, any
reference to “termination of employment,” “termination” or any similar term shall be
construed to mean a “separation from service” within the meaning of Section 409A.
Similarly, no severance payable to Executive, if any, pursuant to this Agreement that
otherwise would be exempt from Section 409A pursuant to Treasury Regulation Section
1.409A-1(b)(9) will be payable until Executive has a “separation from service” within the
meaning of Section 409A. For purposes of this Agreement, “
Section 409A
” means Section 409A
of the Internal Revenue Code of 1986, as amended, and the final regulations and any
guidance promulgated thereunder or any state law equivalent.
(b) Notwithstanding anything to the contrary in this Agreement, if Executive is a
“specified employee” within the meaning of Section 409A at the time of Executive’s
termination of employment (other than due to death), then the Deferred Payments, if any,
that are payable within the first six months following Executive’s separation from service,
will become payable on the first payroll date that occurs on or after the date six months
and one day following the date of Executive’s separation from service. All subsequent
Deferred Payments, if any, will be payable in accordance with the payment schedule
applicable to each payment or benefit without regard to such delay. Notwithstanding
anything herein to the contrary, if Executive dies following Executive’s separation from
service, but prior to the six month anniversary of the separation from service, then any
payments delayed in accordance with this paragraph will be payable in a lump sum as soon as
administratively practicable after the date of Executive’s death and all other Deferred
Payments will be payable in accordance with the payment schedule applicable to each payment
or benefit without regard to such delay. Each payment, installment and benefit payable
under this Agreement is intended to constitute a separate payment for purposes of Section
1.409A-2(b)(2) of the Treasury Regulations to the extent permissible thereunder.
(c) Without limitation, any amount paid under this Agreement that satisfies the
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requirements of the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of
the Treasury Regulations is not intended to constitute Deferred Payments for purposes
hereof.
(d) Without limitation, any amount paid under this Agreement that qualifies as a
payment made as a result of an involuntary separation from service pursuant to Section
1.409A-1(b)(9)(iii) of the Treasury Regulations that does not exceed the Section 409A Limit
is not intended to constitute Deferred Payments for purposes hereof. Any payment intended
to qualify under this exemption must be made within the allowable time period specified in
Section 1.409A-1(b)(9)(iii) of the Treasury Regulations. For this purpose, the term
“Section 409A Limit” means two times the lesser of: (i) Executive’s annualized compensation
based upon the annual rate of pay paid to Executive during Executive’s taxable year
preceding Executive’s taxable year of his or her separation from service as determined
under Treasury Regulation Section 1.409A-1(b)(9)(iii)(A)(1) and any Internal Revenue
Service guidance issued with respect thereto; or (ii) the maximum amount that may be taken
into account under a qualified plan pursuant to Section 401(a)(17) of the Internal Revenue
Code for the year in which Executive’s separation from service occurred.
(e) To the extent that reimbursements or in-kind benefits under this Agreement
constitute non-exempt “nonqualified deferred compensation” for purposes of Section 409A,
(i) all reimbursements hereunder shall be made on or prior to the last day of the calendar
year following the calendar year in which the expense was incurred by Executive, (ii) any
right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange
for another benefit, and (iii) the amount of expenses eligible for reimbursement, or
in-kind benefits provided, in any calendar year shall not in any way affect the expenses
eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year.
(f) Notwithstanding any other provision of this Agreement to the contrary, in no event
shall any payment under this Agreement that constitutes “nonqualified deferred
compensation” for purposes of Code Section 409A be subject to offset by any other amount
unless otherwise permitted by Code Section 409A.
(g) The foregoing provisions are intended to be exempt from or comply with the
requirements of Section 409A so that none of the severance payments and benefits to be
provided hereunder will be subject to the additional tax imposed under Section 409A, and
any ambiguities or ambiguous terms herein will be interpreted to be exempt or so comply.
The Executive agrees to amend this Agreement and to take such reasonable actions which are
necessary, appropriate or desirable to avoid imposition of any additional tax or income
recognition to Executive under Section 409A, so long as such amendment or action does not
reduce Executive’s benefits hereunder. In no event will the Company reimburse Executive
for any taxes that may be imposed on Executive as a result of Section 409A.
14.
Return of Property
. Except as otherwise agreed upon by the Company, Executive
agrees to account for and return within fourteen (14) business days of the Transition Date of this
Agreement all LS&Co. property in his possession or under his control. Executive agrees that
payment of his separation payments, enumerated in Sections 2 and 5 above (except those set forth
in Section 2(e)), is contingent upon the receipt of this LS&Co. property. “LS&Co. property”
includes laptop computer, cellular telephone, credit cards, identification badge, keys,
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customer lists, customer information, samples, documents, including all forms of electronic
documents, samples, prototypes, software, calendars, and policy manuals.
15.
Future Employment
. Executive acknowledges that any employment or other
relationship he has had with LS&Co. terminates irrevocably effective on the Termination Date, and
that as of that date, he has no further relationship in the future with LS&Co., except as may
arise out of this Agreement. Executive agrees to waive any claim for reinstatement or rehire and
not to seek employment in the future with LS&Co. or any parent, subsidiary or affiliated company.
16.
Attorneys’ Fees and Costs
. LS&Co. will reimburse Executive for his reasonable
attorney fees incurred in connection with the negotiation of this Agreement up to a maximum of
$30,000, upon the submission of the relevant invoices.
17.
Non-Assignment of Claims
. Executive represents and warrants that he has not
assigned or otherwise transferred any interest in any claim that is the subject of this Agreement.
18.
Advice of Counsel
.
In executing this Agreement, Executive acknowledges that he
has had the opportunity to consult with, and be advised by, an independent lawyer of his choice,
and that he has executed this Agreement voluntarily after independent investigation, and without
fraud, duress, or undue influence.
19.
Ambiguities
.
Executive has reviewed this Agreement, and has had a full
opportunity to negotiate its contents. Executive expressly waives any common law or statutory rule
of construction that ambiguities are to be construed against the drafter of the Agreement, and
Executive agrees that the language of this Agreement will be in all cases construed as a whole,
according to its fair meaning.
20.
Integration
.
This Agreement constitutes a single, integrated written contract
expressing the entire agreement of the parties. It supersedes all prior understandings and
agreements, both oral and written, including, but not limited to the Executive’s rights (if any)
under the terms of the LS&Co. Executive Severance Plan (Effective January 16, 2008) (the
“
Severance Plan
”); provided that Sections 7, 8 and 10 of the Severance Plan are hereby
incorporated by reference into this Agreement. If there are any conflicts between the Severance
Plan and this Agreement, this Agreement shall control. There is no other agreement, written or
oral, express or implied, between the parties with respect to the subject matter of the Agreement.
This Agreement may be modified only in a writing that is signed by both an authorized
representative of LS&Co. and Executive.
21.
Choice of Law
.
The parties agree that the formation, terms, and construction of
this Agreement are governed by the laws of the State of California, and where applicable, of the
United States.
22.
Severability
.
If any provision of this Agreement is determined by any court of
competent
jurisdiction
to be illegal, invalid, or unenforceable, the legality, validity,
and enforce-ability of the remaining provisions will not be affected.
23.
Arbitration of Disputes
.
The parties agree that any dispute arising under this
Agreement will be submitted to mandatory binding, arbitration pursuant to the Employment
9
Dispute Resolution Rules of the American Arbitration Association in effect at the time of the
dispute. The arbitration will be held in San Francisco, California. In the event of any
arbitration with regard to this Agreement, each party shall pay its own legal fees and expenses;
provided, however, that the parties agree to share the cost of the arbitrator’s fees.
24.
Binding Effect
.
This Agreement will be binding upon, and will inure to the
benefit of, Executive’s heirs, executors, and administrators, if any, and will be binding upon and
will inure to the benefit of the individual or collective successors and assigns of LS&Co., and
all of its present and former directors, officers, employees, shareholders, agents, and all
persons acting by, through, or in concert with any of them.
25.
Execution Deadline and Supplemental Release
.
Executive will have until 5:00 a.m. U.S. Eastern Time on June 16, 2011 (the “
Deadline
”) to
accept the terms of this Agreement. Executive acknowledges that this Agreement does not apply to
any new claims that may arise after this Agreement is executed by Executive.
To accept the Agreement, Executive must sign and date the Agreement and return it to Richard
Kauffman by fax or PDF no later than the Deadline. If this Agreement does not become effective by
the Deadline, Executive will forfeit any right to severance payments under this Agreement.
Executive also acknowledge that he does not have any current charge, claim or lawsuit against
one or more of the releasees pending before any local, state or federal agency or court regarding
his employment and his separation from employment. Executive understands that nothing in this
Agreement prevents him from filing a charge or complaint with or from participating in an
investigation or proceeding conducted by the United States Equal Employment Opportunity Commission
(“
EEOC
”) or any other federal, state or local agency charged with the enforcement of any
employment or labor laws, although by signing this Agreement, Executive is giving up any right to
monetary recovery that is based on any of the claims he has released. Executive also understands
that if he files such a charge or complaint, he has, as part of this Agreement, waived the right
to receive any remuneration beyond what he has received in this Agreement.
At least twenty-one (21) days prior to the Termination Date, Executive will be provided a
supplemental release of claims having such terms determined by the Company in its sole discretion,
pursuant to which Executive will release any and all claims that may have arisen, if any, on or
prior to the Termination Date (the “
Supplemental Release
”), including, without limitation, any
claims under ADEA or OWBPA. Executive must execute and return the Supplemental Release on the
Termination Date, but not prior to the Termination Date. Executive is advised to consult with an
attorney about the Supplemental Release.
Executive must sign and date the Supplemental Release and return it to Jennifer
Chaloemtiarana at LS&Co. Once Executive does so, he will have an additional seven (7) days in
which to revoke his acceptance, to revoke, Executive must send to Jennifer Chaloemtiarana at
LS&Co. a written statement of revocation by fax or by first class mail. If Executive does not
revoke, the eighth (8
th
) day after the date of his execution of the Supplemental
Release will be the “effective date” of the Supplemental Release (the “
Supplemental Release
Effective Date
”).
10
If the Supplemental Release does not become effective and irrevocable by the eighth
(8
th
) day following the Termination Date (the “
Supplemental Release Deadline
”),
Executive will forfeit any right to severance payments under this Agreement (other than those set
forth in Section 2(e)).
o O o
11
The undersigned have read the foregoing Agreement, and accept and agree to the provisions
contained therein and hereby execute it voluntarily, and with full understanding of its
consequences.
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Dated: June 16, 2011
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/s/
John Anderson
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John Anderson
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Levi Strauss & Co.
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Dated: June 15, 2011
|
/s/
Patricia Salas Pineda
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Patricia Salas Pineda
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Human Resources Committee Chairperson
|
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Attachment A
Subsidiaries
|
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Subsidiary
|
|
Position
|
|
505 Finance C.V.
|
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Director, President
|
|
550 Holdings C.V.
|
|
Director, President
|
|
Dongguan Levi Apparel Company Ltd.
|
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Director
|
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Levi Strauss Argentina, LLC
|
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Director
|
|
Levi Strauss International
|
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Director, President
|
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Levi Strauss International, Inc.
|
|
Director, President
|
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Levi Strauss Trading Shanghai Ltd.
|
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Director
|
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Levi Strauss U.S.A., LLC.
|
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Director, Chairman
|
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Levi’s Only Stores Georgetown, LLC
|
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Director
|
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Levi’s Only Stores, Inc.
|
|
Director
|
