Minnesota
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001-12725
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41-0749934
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(State or other jurisdiction of incorporation)
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(Commission File Number)
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(IRS Employer Identification No)
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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Common Stock, par value $0.05 per share
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RGS
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New York Stock Exchange
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Exhibit No.
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Offer Letter, between Felipe A. Athayde and Regis Corporation, dated September 4, 2020.
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Non-Compete, Non-Disclosure, Non-Solicitation and Non-Hire Agreement, between Felipe A. Athayde and Regis Corporation, dated September 4, 2020. | |
Transition Services and Release Agreement, between Hugh E. Sawyer and Regis Corporation, dated September 4, 2020. | |
Regis Corporation News Release dated September 8, 2020.
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104
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Cover Page Interactive Data File (embedded within the Inline XBRL document).
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Regis Corporation
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Dated: September 8, 2020
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By:
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/s/ Amanda P. Rusin | |
Name: Amanda P. Rusin
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Title: SVP, General Counsel and Corporate Secretary |
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1. |
Duties/Location. Commencing on the Start Date, you will
have the duties, responsibilities, and authority customarily held by the chief executive officer of a publicly traded corporation. You shall devote your full working time to your duties hereunder; provided that you may (i) serve on civic or
charitable boards or engage in charitable activities without remuneration therefor, (ii) serve on “for profit” boards, with the prior consent of the Board of Directors of the Company (the “Board”) and (iii) manage your personal investments (so long as such investment activities are of a passive nature), provided that such activities in subsections (i), (ii) and (iii) do not, individually
or in the aggregate, (A) conflict materially with the performance of your duties under this letter agreement, (B) conflict with the your fiduciary duties to the Company, or (C) result in a breach of the restrictive covenants to which you are
bound. Your principal place of employment will be in the Minneapolis, Minnesota metropolitan area and you shall relocate to such area no later than the first anniversary of the Start Date. You understand and agree that you may be required to
travel from time to time as necessary to perform your duties for the Company.
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2. |
Base Salary. You will be paid a base salary at an annual rate of $700,000 (“Base Salary”), payable in
accordance with the Company’s payroll practices for executives. Your Base Salary is subject to review by the Compensation Committee of the Board (“Committee”)
and may be increased but not decreased (other than as provided in the definition of Good Reason).
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3. |
Annual Bonus. During the period of your employment, you
shall be eligible for a cash bonus under the Regis Corporation Short Term Incentive Plan (the “STIP”) for each fiscal year, with an annual target
payout equal to 125% of your Base Salary and a maximum payout of 225% of your Base Salary. Your annual bonus for fiscal year 2021 shall be pro-rated based on the number of days you are employed by the Company for such fiscal year. Payment of
any earned annual bonus shall be made in accordance with the terms and conditions of the STIP (and the Company’s Senior Executive Severance Policy, if applicable). You will be eligible to participate in the Regis Corporation Stock Purchase
and Matching RSU Program in accordance with the terms and conditions of such program.
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4. |
Sign-On Bonus. Within thirty (30) days following the Start
Date, you shall receive a lump sum cash payment equal to $2,500,000. If you resign from the Company without Good Reason (as defined below) or your employment is terminated by the Company for Cause (as defined below), in each case, prior to
the first (1st) anniversary of the Start Date, you shall repay to the Company within thirty (30) days following such resignation or termination, an amount equal to $2,500,000 multiplied by the fraction, the numerator of which is the number of
days remaining until such first anniversary of the Start Date and the denominator of which is 365.
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5. |
Equity Awards. On the Start Date, you will be granted the
equity awards described below. These awards will be subject to the Company’s 2018 Long Term Incentive Plan (“LTIP”) and the award agreements governing
such awards, which will contain the terms below. In the event that any awards cannot be granted pursuant to the terms of the LTIP, such awards will be granted under the “inducement grant” exception under the rules of the NYSE, on terms and
conditions substantially comparable to the terms of the LTIP.
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6. |
Relocation Benefits. The Company will reimburse you for
reasonable and documented out-of-pocket expenses incurred by you in connection with your relocation to the Minneapolis, Minnesota area, including for temporary housing in the Minneapolis, Minnesota area for up to the twelve (12) months
following the Start Date, up to an aggregate amount of $150,000, and in accordance with the Company’s relocation policy. Such reimbursement shall be paid in calendar year 2021.
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7. |
Employee Benefits. You will be eligible to participate in
executive level perquisites and employee benefit plans and programs generally available to other senior executives of the Company, subject to the terms and conditions of such plans and programs. A summary of the Company’s current benefit
plans and programs has been provided to you.
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8. |
Expense Reimbursement. The Company will reimburse you for
expenses incurred in connection with the performance of your duties for the Company in accordance with the Company’s Business Travel & Entertainment Policy.
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9. |
Company Policies. As an executive of the Company, you are
required to comply with the Company’s standard policies and procedures including, the Code of Business Conduct and Ethics, and Policy on Insider Trading.
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10. |
Additional Agreements. As a condition to your employment
with the Company, you shall execute the Non-Compete, Non-Disclosure, Non-Solicitation and Non-Hire Agreement attached hereto as Exhibit B and the
Arbitration Agreement attached hereto as Exhibit C.
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11. |
Termination of Employment. You will be employed by the
Company “at-will”, which means that you or the Company may terminate your employment at any time and for any reason or no reason; provided, however, that you are required to provide the Company with at least 90 days written notice of your
resignation without Good Reason. Notwithstanding the foregoing, the Company may, in its sole and absolute discretion, by written notice to you, accelerate such date of termination. All base salary, benefits and other compensation will end
upon the termination of your employment except as required by applicable law or as otherwise provided herein.
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12. |
Acknowledgement. You hereby represent and warrant to the
Company that (i) the execution, delivery and performance of this letter agreement by you does not and shall not conflict with, breach, violate or cause a default under any contract, agreement, instrument, order, judgment or decree to which
you are a party or by which you are bound, (ii) you are not a party to or bound by any employment agreement, non-compete agreement or confidentiality agreement with any other person or entity and (iii) upon the execution and delivery of this
letter agreement by you and the Company, this letter agreement shall be the valid and binding obligation of you on and after the date hereof, enforceable in accordance with its terms.
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13. |
Indemnification. The Company shall indemnify you to the
maximum extent permitted by applicable law and the Company’s Bylaws in respect of your services as an officer of the Company and its affiliates.
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14. |
Withholding. The Company shall have the right to withhold
from any amount payable hereunder any Federal, state and local taxes in order for the Company to satisfy any withholding tax obligation it may have under any applicable law or regulation.
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Section 409A. The payments and benefits under this letter
agreement are intended to comply with or be exempt from Section 409A of Code, and the regulations and guidance promulgated thereunder (collectively “Section 409A”),
whether pursuant to the short-term deferral exception or otherwise, and, accordingly, to the maximum extent permitted, this letter agreement shall be interpreted to be exempt from Section 409A. For purposes of Section 409A, your right to
receive any installment payments pursuant to this letter agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this letter agreement specifies a payment period with reference to
a number of days (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company. A termination of
employment shall not be deemed to have occurred for purposes of any provision of this letter agreement providing for the payment of any amounts or benefits considered “nonqualified deferred compensation” under Section 409A upon or following a
termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A. If you are deemed on the date of termination to be a “specified employee” within the meaning of that term under Section
409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered nonqualified deferred compensation under Section 409A payable on account of a “separation from service,” such payment or benefit shall be made
or provided at the date which is the earlier of (i) the expiration of the six (6)-month period measured from the date of such “separation from service,” and (ii) the date of your death (the “Delay Period”). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this provision (whether they would have otherwise been payable in a single sum or in
installments in the absence of such delay) shall be paid or reimbursed on the first business day following the expiration of the Delay Period to you in a lump sum, and any remaining payments and benefits due under this Letter Agreement shall
be paid or provided in accordance with the normal payment dates specified for them herein.
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Sincerely, |
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/s/ Amanda P. Rusin |
Amanda P. Rusin | |
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Title: SVP, General Counsel and Corporate Secretary |
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Date: September 4, 2020
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Agreed and accepted: |
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/s/ Felipe A. Athayde |
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Felipe A. Athayde |
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Date: September 4, 2020 |
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TO:
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Felipe A. Athayde
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FROM:
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Regis Corporation
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DATE:
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___________, 20__
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1. |
Termination. Regis has terminated your employment effective on [Date]
(“Departure Date”).
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2. |
Payments Upon Termination.
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a. |
Whether or not you sign this Agreement, Regis will pay you:
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All wages you have earned through and including the Departure Date; and
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2) |
Reimbursement for all necessary business expenses you have incurred through ___________________ if any, for which you seek reimbursement. Any such request for
reimbursement must be submitted by ____________ to comply with Regis’ policies regarding reimbursement requests and be directed to General Counsel - Regis Corp., 3701 Wayzata Boulevard, Suite 500, Minneapolis, MN 55416. Thereafter, you
agree that you will be ineligible for further expense reimbursement from Regis, unless otherwise required by law. Upon submission of timely request for reimbursement, Regis will reimburse you for all necessary business expenses you
incurred pursuant to the Company’s regular business practices.
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3) |
Any medical expenses incurred under the ExecMed Program that are incurred on or before ____________________, which reimbursements will be made in the normal course
upon timely presentation of claims;
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All compensation accrued as of the date of your termination under each plan or program of the corporation in which you may be participating at the time of termination
in accordance with the terms of such plan or program, including but not limited to the Executive Retirement Savings Plan and the Long-Term Incentive Plans and equity awards thereunder. This Agreement has no effect on such plans and the
amount to which Employee is entitled under the foregoing is subject to each plan’s terms and conditions and Employee is not releasing any rights he has to
compensation under these plans. For sake of clarity “all compensation accrued as of the date of your termination under each plan or program of the corporation” will specifically include Employee’s contributions and all matching
contributions made by Regis to the Executive Retirement Savings Plan. No deductions or withholdings will be made for contributions to employment plans such as 401(k) or any employee stock purchase plan. Regis will issue an IRS Form W-2
for the full amount of this payment.
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5) |
Equity Compensation in accordance with the plan documents.
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b. |
Severance Payment. Subject to Employee signing and not revoking this
Agreement, and the Employee remaining in strict compliance with the terms of this Agreement and any other written agreements between Regis and Employee, you will receive the severance payments and benefits continuation described in Section
11 of the Letter Agreement.
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3. |
Non-disparagement Restrictions. To the fullest extent permitted by law,
you also agree not to make or endorse any disparaging or negative remarks or statements (whether oral, written, or otherwise) concerning Regis or its predecessors, successors, and/or assigns, as well as past and present officers, directors,
agents, and/or employees. To the fullest extent permitted by law, the Company shall instruct its current officers and directors not to make or endorse any disparaging or negative remarks or statements (whether oral, written, or otherwise)
about you. Nothing in this paragraph shall prevent Regis or you from providing truthful testimony and/or information in response to a lawful subpoena, court order or governmental inquiry. Furthermore, nothing in this paragraph shall be
applied to limit or interfere with your right to engage in the “Protected Activities” as defined in Section 13 below.
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Non-Disclosure of Confidential or Proprietary Information; Compliance With
Non-Competition and Non-Solicitation Restrictions. Employee hereby acknowledges each of Employee’s obligations under that certain Non-Compete, Non-Disclosure, Non-Solicitation and Non-Hire Agreement dated [DATE] (“RCA”),
reaffirms such obligations, and agrees that Employee shall continue to be bound each of these obligations after the Departure Date without any modification.
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Return of Corporate Property. By signing below, you represent and warrant
that all Regis property has been returned to Regis, and that you have not retained any copies, electronic or otherwise, of any Regis property. Notwithstanding this paragraph of this Agreement, you may keep documents pertaining to your
compensation and/or benefits.
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Litigation and Other Legal Matters. Employee agrees to be reasonably
available upon reasonable notice from Regis, with or without subpoena, to be interviewed, review documents or things, give depositions, testify, or engage in other reasonable activities, including in connection with any pending and future
litigation, investigations, arbitrations, and/or other fact-finding or adjudicative proceedings, public or private, internal or external to Regis or any of the other Released Parties, with respect to matters of which Employee has knowledge
or should have knowledge. Regis will cooperate with Employee’s reasonable scheduling needs; will reimburse Employee for Employee’s reasonable expenses incurred in connection with Employee’s obligations under this paragraph; and will
negotiate in good faith and agree upon an appropriate per diem or hourly rate for any cooperation and/or assistance provided by Employee after the Departure Date.
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7. |
References. You agree that you will refer all reference checks regarding
your employment with Regis to [Name] at [Number]. For all reference checks that are referred to such person, references will be limited to confirmation of your dates of employment and last position held.
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8. |
General Release.
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In exchange for the benefits promised you in this Agreement, you agree to irrevocably and unconditionally release and discharge Regis, its predecessors, successors,
and assigns, as well as past and present officers, directors, employees, and agents (collectively, the “Released Parties”), from any and all claims, liabilities, or promises, whether known or unknown, arising out of or relating to your
employment with Regis through the date you sign this Agreement. You waive these claims on behalf of yourself and your heirs, assigns, and anyone making a claim through you. The claims waived and discharged include, but are not limited to,
claims under or relating to:
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Title VII of the Civil Rights Act of 1964;
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Sections 1981 through 1988 of Title 42 of the United Sates Code;
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The Civil Rights Act of 1991;
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The Employee Retirement Income Security Act of 1974 (except for any vested benefits under any tax qualified benefit plan);
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The Age Discrimination in Employment Act of 1967 (the “ADEA”);
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The Rehabilitation Act of 1973;
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The Immigration Reform and Control Act;
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The Americans with Disabilities Act of 1990;
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The Americans with Disabilities Amendments Act of 2008;
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The Fair Credit Reporting Act;
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The Sarbanes-Oxley Act of 2002, to the extent permitted by law;
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The Occupational Safety and Health Act;
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The Family and Medical Leave Act of 1993;
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The Equal Pay Act;
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The Genetic Information Nondiscrimination Act;
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The Worker Adjustment and Retraining Notification Act;
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The Minnesota Human Rights Act, Minn. Stat. § 363A.01, et seq.;
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The Minnesota Human Rights Act;
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The Minnesota Whistleblower Protection Act;
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The Minnesota Statutory Provisions regarding Retaliation for Filing a Workers’ Compensation Claim;
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The Minnesota Parental Leave Act;
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The Minnesota Age Discrimination Act;
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The Minnesota Equal Pay For Equal Work Law;
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The Minnesota Fair Labor Standards Act;
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The Minnesota Discrimination for Lawful Activities Law;
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The Minnesota Wage-Hour and Wage-Payment Laws;
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The Minnesota Occupational Safety and Health Act;
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The Minnesota Personnel Record Review Statute;
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Laws enacted under the Minnesota Women’s Economic Security Act;
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The non-discrimination and anti-retaliation provisions of the Minnesota State Workers’ Compensation and/or Disability Benefits Laws;
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Any other federal, state or local civil or human rights law or any other local, state or federal law, rule, regulation, code, guideline or ordinance, including but
not limited to those relating to bias, whistleblower, discrimination, retaliation, compensation, employment or labor;
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Any public policy, contract (oral or written, express or implied), tort, or common law; or
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Any statute, common law, agreement or other basis for recovering any costs, fees, or other expenses, including attorneys’ fees and/or costs.
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9. |
Binding Nature of Agreement. This Agreement is binding on the parties and
their heirs, administrators, representatives, executors, successors, and assigns.
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10. |
Compliance with the Age Discrimination in Employment Act (“ADEA”) and Notice of Right
to Consider and Rescind Agreement. You understand that this Agreement has to meet certain requirements to validly release any claims you might have under the Minnesota Human Rights Act (MHRA) and the ADEA (including under the
Older Workers’ Benefit Protection Act), and you represent that all such requirements have been satisfied, including that:
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The Agreement is written in a manner that is understandable to you;
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You are specifically waiving ADEA rights;
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You are not waiving ADEA rights arising after the date of your signing this Agreement;
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d. |
You are receiving valuable consideration in exchange for execution of this Agreement that you would not otherwise be entitled to receive;
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Regis is hereby, in writing, encouraging you to consult with an attorney before signing this Agreement; and
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You received 21 days to consider this Agreement and at least 15 days to rescind.
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11. |
Notice of Right to Consider and Rescind Agreement. You have twenty-one (21) days to consider this Agreement and decide whether to sign it, however, you cannot sign this Agreement before . Regis hereby advises Employee to consult with an attorney of his/her choice before signing this Agreement releasing any rights
or claims that he believes she/he may have under the Age Discrimination in Employment Act, the Minnesota Human Rights Act (MHRA) or the Age Discrimination in Employment Act (“ADEA”). Once this Separation Agreement is executed, Employee may
rescind this Separation Agreement within fifteen (15) calendar days to reinstate any claims under the ADEA. To be effective, any rescission within the relevant time period must be in writing and delivered to Regis, in care of General
Counsel, 3701 Wayzata Boulevard, Suite 500, Minneapolis, MN 55416, by hand or by mail within the fifteen (15) day period. If delivered by mail, the rescission must be: (1) postmarked within the fifteen (15) day period; (2) properly
addressed to Regis; and (3) sent by certified mail, return receipt requested.
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12. |
No Assignment. Employee warrants that she/he has not assigned, transferred
nor purported to assign or transfer any claim against Regis or the Released Parties, and that he will not assign or transfer nor purport to assign or transfer hereafter any claim against Regis or the Released Parties.
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13. |
Protected Activities. You and the Company each acknowledge and agree that
nothing in this Agreement shall be applied to limit or interfere with your right, without notice to or authorization of the Company, to communicate and cooperate in good faith with a Government Agency for the purpose of (i) reporting a
possible violation of any U.S. federal, state, or local law or regulation, (ii) participating in any investigation or proceeding that may be conducted or managed by any Government Agency, including by providing documents or other
information, or (iii) filing a charge or complaint with a Government Agency. For purposes of this Agreement, “Government Agency” means the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safety
and Health Administration, the U.S. Securities and Exchange Commission, the Financial Industry Regulatory Authority, or any other self-regulatory organization or any other federal, state or local governmental agency or commission. You
understands that you will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made (a) in confidence to a federal, state, or local government official, or to an
attorney, solely for the purpose of reporting or investigating a suspected violation of law, (b) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal; or (c) in court proceedings if you
file a lawsuit for retaliation by an employer for reporting a suspected violation of law, or to your attorney in such lawsuit, provided that you must file any document containing the trade secret under seal, and you may not disclose the
trade secret, except pursuant to court order. However, you are not authorized to make any disclosures as to which the Company may assert protection from disclosure under the attorney-client privilege or the attorney work product doctrine,
without prior written consent of the Company’s General Counsel or another authorized officer designated by the Company. The disclosures and actions protected in this Section 12 are referred to herein as “Protected Activities.”
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14. |
Severability. The provisions of this Agreement are severable. If any
provision (excluding the General Release above) is held to be invalid or unenforceable, it will not affect the validity or enforceability of any other provision.
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15. |
Entire Agreement. This Agreement, Letter Agreement, ACA, and Arbitration
Agreement between you and the Company dated [DATE] and [Insert relevant equity awards], Except to the extent that you have an arbitration agreement with Regis, set out the entire agreement between you and Regis and supersede any and all
prior oral or written agreements or understandings between you and Regis concerning your termination of employment. You acknowledge you have not relied on any representations, promises, or agreements of any kind made to you in connection
with your decision to accept this Agreement and General Release, except for those set forth in this Agreement and General Release.
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Employee Affirmations. You represent that you:
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have not filed, caused to be filed, or presently are a party to any claim against Regis or any other Released Parties;
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with the exception of the compensation and benefits described in Paragraph “2.b” above, affirm that you have been paid all compensation, wages, bonuses, commissions,
and/or benefits to which you may be entitled from Regis, and, if applicable, you have reported all of the hours you worked as of the date you sign this Agreement and General Release. You further affirm that Regis has granted you any leave
to which you were entitled from Regis under the Family and Medical Leave Act or related state or local leave or disability accommodation laws;
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c. |
affirm that you have no known workplace injuries or occupational diseases;
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d. |
affirm that you have not divulged any financial, proprietary or confidential information of Regis and will continue to maintain the confidentiality of such
information consistent with Regis’s policies, your agreement(s) with Regis and/or any applicable common law, with the exception of any voluntary communication with the Securities and Exchange Commission;
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e. |
affirm that you have not been retaliated against for reporting any allegations of wrongdoing by Regis, any of Regis’s officers or any other Released Parties,
including any allegations of corporate fraud. Both Parties acknowledge that this Agreement and General Release does not limit either party’s right, where applicable, to file or to participate in an investigation proceeding of any federal,
state or local governmental agency, including providing documents or other information. This Agreement does not limit your right to receive an award for information provided to any government agency;
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affirm that all of Regis’s decisions regarding your pay and benefits through your termination date were not discriminatory based on age, disability, race, color, sex,
religion, national origin or any other classification protected by law.
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17. |
Competence to Waive Claims. You affirm that at the time you considered or
signed this Agreement, you were not affected or impaired by illness, use of alcohol, drugs or other substances, or otherwise impaired. You further affirm that you are competent to execute this Agreement, and knowingly and voluntarily waive
any and all claims you may have against Regis and as described in this Agreement. You certify that you are not a party to any bankruptcy, lien, creditor-debtor or any other action or proceeding which would impair your right or ability to
waive all claims you may have against Regis or any other Released Parties.
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18. |
Effective Date of Agreement. This Agreement will become effective on the
sixteenth day after you sign it, provided that you have not rescinded the Agreement.
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19. |
Valid Agreement. As stated above, you agree that this Agreement and its
releases fully comply with the ADEA. You also agree that this Agreement and its releases fully comply with the Minnesota Human Rights Act and all other laws, statutes, ordinances, regulations, and/or principles of common law governing
releases.
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20. |
No Admission of Liability. Regis denies any and all liability to you. You
understand and agree that this Agreement is not an admission of wrongdoing or liability, including, but not limited to, any violation of any federal, state, and/or local law, statute, ordinance, contract, and/or principle of common law by
Regis and/or any individuals and/or entities associated with Regis.
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21. |
Attorneys’ Fees. You agree that you are responsible for your own
attorneys’ fees and costs, if any, incurred in any respect, including but not limited to in connection: with your employment with Regis; with the termination of your employment with Regis; and with negotiating and executing this Agreement.
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22. |
Governing Law. This Agreement will be construed and enforced in accordance
with the laws of the State of Minnesota and the laws of the United States, where applicable.
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23. |
Enforcement of Agreement. Any dispute concerning the interpretation and
application of this Agreement will be settled by expedited arbitration in Minneapolis, MN. The arbitrator selected by the Parties will be a lawyer or former judge and will have at least ten years’ legal experience with employment law. The
decision of the arbitrator will be final. Any judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The prevailing party will be entitled to recover costs and expenses, including
reasonable attorneys’ fees incurred.
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24. |
Expiration of Offer and Effective Date of Agreement. You understand that
the offer contained in this Agreement will be considered withdrawn if you have not signed and returned to Regis the signed original of this Agreement on or before the conclusion of the 21-day consideration period. This Agreement becomes
effective after you and Regis have signed the Agreement and the revocation period described above has expired, provided you have not revoked your acceptance of this Agreement during the revocation period.
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Employee
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Dated:
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REGIS CORPORATION:
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By:
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Its:
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Date:
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1. |
Term of Agreement. This Agreement is effective on the
Effective Date, and will remain in effect throughout your employment with Regis and for a period of twelve (12) months thereafter. The obligation not to disclose set forth in Section 3 will continue indefinitely.
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2. |
Limitations of this Agreement. This Agreement is not a contract of employment. Neither you nor Regis are obligated to any specific term of employment. This Agreement is limited to the
subject matter of covenants not to compete, hire, or solicit as described in this Agreement.
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3. |
Non-Disclosure of Trade Secrets and Confidential Information.
You acknowledge that, in the performance of your duties, you have and will receive confidential and valuable business information, including but not limited to business and marketing plans, finances, trade practices, accounting methods,
methods of operation, business practices and methods, profit margins, costs, customer and commercial relationships, customer lists and information, company manuals, personnel records or any other data Regis considers to be confidential
information. You agree that, at any time during or after the term of your employment with Regis, you will not divulge, disclose, reveal or communicate to any business entity or other person (with the exception of the Securities and
Exchange Commission or the Company) such information or trade secrets or other valuable information you may obtain during your employment concerning any matters affecting or relating to Regis’ business as long as such information is not
publicly available. You also agree that upon termination of employment with Regis or sooner (if it is required by Regis in writing), you will return to Regis all original and copies of any document or materials of any kind (including
those in electronic formats) acquired or coming to your knowledge and custody in connection with your employment with Regis, whether prepared by you, Regis, or others.
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4. |
Covenant Not to Compete. You agree that at no time
during the term of your employment with Regis will you engage in any business activity which is competitive with Regis nor work for any company which competes with Regis in the beauty salon industry. Nothing in this agreement prohibits
you from working for a current Regis franchisee or becoming a Regis franchisee as Regis does not consider its franchisees to be competitors.
|
|
a |
solicit, divert, do business with, or take away any of the customers or franchisees of Regis;
|
|
b |
enter into endeavors that are competitive with the business or operations of Regis in the beauty industry;
|
|
c |
own an interest in, manage, operate, join, control, lend money or render financial or other assistance to or participate in or be connected with, as an officer ,
employee, director, partner, member, stockholder (except for passive investments of not more than a one percent (1%) interest in the securities of a publicly held corporation regularly traded on a national securities exchange or in an
over-the-counter securities market) consultant, independent contractor, or otherwise, any individual, partnership, firm, corporation or other business organization or entity that engages in a business which competes with the business or
operations of Regis in the beauty industry.
|
5. |
Non-solicitation and non-hire. During the term of your
employment, and for a period of twelve (12) months immediately thereafter, you agree you will not, in any way, directly or indirectly, induce or attempt to induce any employee that reports to you, either directly or indirectly, to leave
Regis’ employ, you will not otherwise interfere with or disrupt Regis’ relationship with employees and you will not solicit, assist in the solicitation of, entice, take away, divert or employ any person employed by Regis. You also agree
that for a period of twelve (12) months after your employment, you will not hire anyone that, within the twelve (12) months prior to the termination of your employment, directly or indirectly, reported to you while you worked at Regis.
|
6. |
Injunctive Relief. You hereby acknowledge: (1) that
Regis will suffer irreparable harm if you breach your obligations under this Agreement; and (2) that monetary damages will be inadequate to compensate Regis for such a breach. Therefore, if you breach any of such provisions, then Regis
shall be entitled to injunctive relief, in addition to any other remedies at law or equity, to enforce such provisions.
|
7. |
Acknowledgement. You and the Company each acknowledge
and agree that nothing in this Agreement shall be applied to limit or interfere with your right, without notice to or authorization of the Company, to communicate and cooperate in good faith with a Government Agency for the purpose of (i)
reporting a possible violation of any U.S. federal, state, or local law or regulation, (ii) participating in any investigation or proceeding that may be conducted or managed by any Government Agency, including by providing documents or
other information, or (iii) filing a charge or complaint with a Government Agency. For purposes of this Agreement, “Government Agency” means the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational
Safety and Health Administration, the U.S. Securities and Exchange Commission, the Financial Industry Regulatory Authority, or any other self-regulatory organization or any other federal, state or local governmental agency or commission.
You understands that you will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made (a) in confidence to a federal, state, or local government official, or
to an attorney, solely for the purpose of reporting or investigating a suspected violation of law, (b) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal; or (c) in court proceedings
if you file a lawsuit for retaliation by an employer for reporting a suspected violation of law, or to your attorney in such lawsuit, provided that you must file any document containing the trade secret under seal, and you may not
disclose the trade secret, except pursuant to court order. However, you are not authorized to make any disclosures as to which the Company may assert protection from disclosure under the attorney-client privilege or the attorney work
product doctrine, without prior written consent of the Company’s General Counsel or another authorized officer designated by the Company.
|
8. |
Attorneys’ Fees. The Company will be entitled to
receive from you reimbursement for reasonable attorneys’ fees and expenses it incurs in successfully enforcing this Agreement to final judgment (including appeals) and you shall be entitled to receive from the Company reasonable
attorneys’ fees and expenses you incur in the event the Company is found to not be entitled to enforcement of this Agreement.
|
9. |
Successors and Assigns. This Agreement shall inure to
the benefit of and shall be binding upon the successors and assigns of the Company, including any party with which the Company may merge or consolidate or to which it may transfer substantially all of its assets. As used in the Agreement,
the term “successor” shall include any person, firm, corporation or other business entity which at any time, whether by merger, purchase or otherwise, acquires all or substantially all of the capital stock or assets of the Company.
|
10. |
Severable Provisions. The provisions of this Agreement
are severable, and if any one or more provisions may be determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions and any partially unenforceable provisions to the extent enforceable shall
nevertheless be binding and enforceable.
|
11. |
Modifications. The parties hereby authorize any court
of other tribunal of competent jurisdiction to modify any provision(s) held to be invalid or unenforceable to the extent necessary to permit such provision(s) to be legally enforced to the maximum extent permissible and to then enforce
the provision(s) as modified.
|
12. |
Prior Understandings. This Agreement contains the
entire agreement between the parties with respect to the subject matter of this Agreement. The Agreement supersedes all prior understanding, agreements, or representations.
|
13. |
Waiver. Any waiver of a default under this Agreement
must be made in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. No delay or omission in the exercise of any right or remedy shall impair such right or remedy or be
constructed as a waiver. A consent to or approval of any act shall not be deemed to waive or render unnecessary consent to or approval of any other or subsequent act.
|
14. |
Jurisdiction and Venue. This Agreement is to be
construed pursuant to the laws of the State of Minnesota. You agree to submit to the jurisdiction and venue of any court of competent jurisdiction in Hennepin County, Minnesota without regard to conflict of laws provisions, for any claim
arising out of this Agreement.
|
Dated: |
,
|
2020
|
REGIS CORPORATION
|
||
By
|
|||||
Title:
|
Dated: |
,
|
2020
|
||
Felipe A. Athayde
|
Employee Signature
|
Date
|
Print Name:
|
|
1. |
Term of Agreement. This Agreement is effective on the
Effective Date, and will remain in effect throughout your employment with Regis and for a period of twelve (12) months thereafter. The obligation not to disclose set forth in Section 3 will continue indefinitely.
|
2. |
Limitations of this Agreement. This Agreement is not a contract of employment. Neither you nor Regis are obligated to any specific term of employment. This Agreement is limited to the
subject matter of covenants not to compete, hire, or solicit as described in this Agreement.
|
3. |
Non-Disclosure of Trade Secrets and Confidential Information.
You acknowledge that, in the performance of your duties, you have and will receive confidential and valuable business information, including but not limited to business and marketing plans, finances, trade practices, accounting methods,
methods of operation, business practices and methods, profit margins, costs, customer and commercial relationships, customer lists and information, company manuals, personnel records or any other data Regis considers to be confidential
information. You agree that, at any time during or after the term of your employment with Regis, you will not divulge, disclose, reveal or communicate to any business entity or other person (with the exception of the Securities and Exchange
Commission or the Company) such information or trade secrets or other valuable information you may obtain during your employment concerning any matters affecting or relating to Regis’ business as long as such information is not publicly
available. You also agree that upon termination of employment with Regis or sooner (if it is required by Regis in writing), you will return to Regis all original and copies of any document or materials of any kind (including those in
electronic formats) acquired or coming to your knowledge and custody in connection with your employment with Regis, whether prepared by you, Regis, or others.
|
4. |
Covenant Not to Compete. You agree that at no time during
the term of your employment with Regis will you engage in any business activity which is competitive with Regis nor work for any company which competes with Regis in the beauty salon industry. Nothing in this agreement prohibits you from
working for a current Regis franchisee or becoming a Regis franchisee as Regis does not consider its franchisees to be competitors.
|
|
a |
solicit, divert, do business with, or take away any of the customers or franchisees of Regis;
|
|
b |
enter into endeavors that are competitive with the business or operations of Regis in the beauty industry;
|
|
c |
own an interest in, manage, operate, join, control, lend money or render financial or other assistance to or participate in or be connected with, as an officer ,
employee, director, partner, member, stockholder (except for passive investments of not more than a one percent (1%) interest in the securities of a publicly held corporation regularly traded on a national securities exchange or in an
over-the-counter securities market) consultant, independent contractor, or otherwise, any individual, partnership, firm, corporation or other business organization or entity that engages in a business which competes with the business or
operations of Regis in the beauty industry.
|
5. |
Non-solicitation and non-hire. During the term of your
employment, and for a period of twelve (12) months immediately thereafter, you agree you will not, in any way, directly or indirectly, induce or attempt to induce any employee that reports to you, either directly or indirectly, to leave
Regis’ employ, you will not otherwise interfere with or disrupt Regis’ relationship with employees and you will not solicit, assist in the solicitation of, entice, take away, divert or employ any person employed by Regis. You also agree that
for a period of twelve (12) months after your employment, you will not hire anyone that, within the twelve (12) months prior to the termination of your employment, directly or indirectly, reported to you while you worked at Regis.
|
6. |
Injunctive Relief. You hereby acknowledge: (1) that Regis
will suffer irreparable harm if you breach your obligations under this Agreement; and (2) that monetary damages will be inadequate to compensate Regis for such a breach. Therefore, if you breach any of such provisions, then Regis shall be
entitled to injunctive relief, in addition to any other remedies at law or equity, to enforce such provisions.
|
7. |
Acknowledgement. You and the Company each acknowledge and
agree that nothing in this Agreement shall be applied to limit or interfere with your right, without notice to or authorization of the Company, to communicate and cooperate in good faith with a Government Agency for the purpose of (i)
reporting a possible violation of any U.S. federal, state, or local law or regulation, (ii) participating in any investigation or proceeding that may be conducted or managed by any Government Agency, including by providing documents or other
information, or (iii) filing a charge or complaint with a Government Agency. For purposes of this Agreement, “Government Agency” means the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safety
and Health Administration, the U.S. Securities and Exchange Commission, the Financial Industry Regulatory Authority, or any other self-regulatory organization or any other federal, state or local governmental agency or commission. You
understands that you will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made (a) in confidence to a federal, state, or local government official, or to an
attorney, solely for the purpose of reporting or investigating a suspected violation of law, (b) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal; or (c) in court proceedings if you
file a lawsuit for retaliation by an employer for reporting a suspected violation of law, or to your attorney in such lawsuit, provided that you must file any document containing the trade secret under seal, and you may not disclose the trade
secret, except pursuant to court order. However, you are not authorized to make any disclosures as to which the Company may assert protection from disclosure under the attorney-client privilege or the attorney work product doctrine, without
prior written consent of the Company’s General Counsel or another authorized officer designated by the Company.
|
8. |
Attorneys’ Fees. The Company will be entitled to receive
from you reimbursement for reasonable attorneys’ fees and expenses it incurs in successfully enforcing this Agreement to final judgment (including appeals) and you shall be entitled to receive from the Company reasonable attorneys’ fees and
expenses you incur in the event the Company is found to not be entitled to enforcement of this Agreement.
|
9. |
Successors and Assigns. This Agreement shall inure to the
benefit of and shall be binding upon the successors and assigns of the Company, including any party with which the Company may merge or consolidate or to which it may transfer substantially all of its assets. As used in the Agreement, the
term “successor” shall include any person, firm, corporation or other business entity which at any time, whether by merger, purchase or otherwise, acquires all or substantially all of the capital stock or assets of the Company.
|
10. |
Severable Provisions. The provisions of this Agreement are
severable, and if any one or more provisions may be determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions and any partially unenforceable provisions to the extent enforceable shall nevertheless be
binding and enforceable.
|
11. |
Modifications. The parties hereby authorize any court of
other tribunal of competent jurisdiction to modify any provision(s) held to be invalid or unenforceable to the extent necessary to permit such provision(s) to be legally enforced to the maximum extent permissible and to then enforce the
provision(s) as modified.
|
12. |
Prior Understandings. This Agreement contains the entire
agreement between the parties with respect to the subject matter of this Agreement. The Agreement supersedes all prior understanding, agreements, or representations.
|
13. |
Waiver. Any waiver of a default under this Agreement must
be made in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. No delay or omission in the exercise of any right or remedy shall impair such right or remedy or be constructed as
a waiver. A consent to or approval of any act shall not be deemed to waive or render unnecessary consent to or approval of any other or subsequent act.
|
14. |
Jurisdiction and Venue. This Agreement is to be construed
pursuant to the laws of the State of Minnesota. You agree to submit to the jurisdiction and venue of any court of competent jurisdiction in Hennepin County, Minnesota without regard to conflict of laws provisions, for any claim arising out
of this Agreement.
|
Dated: |
September 4
|
, 2020 |
REGIS CORPORATION
|
||
By
|
/s/ Amanda P. Rusin | ||||
Title:
|
SVP, General Counsel and Corporate Secretary |
Dated: | September 4 | ,2020 | /s/ Felipe A. Athayde | |
Felipe A. Athayde |
TO:
|
Hugh Sawyer
|
FROM:
|
Regis Corporation
|
DATE:
|
September 3, 2020
|
1. |
Termination of Employment. Executive hereby resigns his employment as
President and CEO of the Company effective as of the close of business on the day before the start date of Executive’s successor as President and CEO (the “Departure
Date”). The parties expect that Executive’s successor will start with the Company on October 1, 2020, but no later than October 5, 2020. Effective on the Departure Date, Executive’s employment with the Company will terminate
and the Executive will be removed from Executive’s position with the Company. Executive hereby further resigns any position he holds as an officer, manager, director, Chairman of the Board of Directors, member of the Board of Directors, agent
or in any other capacity of the Company or any of its affiliates (the “Affiliates”), or as a trustee or fiduciary of any employee benefit plans covering
employees or other service providers of the Company or any of its Affiliates, in each case effective as of the Departure Date. Simultaneously with Executive’s signing of this Agreement, Executive will sign a letter effectuating such voluntary
resignations in the form attached hereto as Exhibit A, and agrees to execute any other documents necessary to effectuate such resignations. The Company
agrees to provide Executive with the opportunity to review and provide comments to the Company’s press release announcing Executive’s separation from employment, which comments the Company will incorporate within reason.
|
2. |
Termination Payments. Executive shall be entitled to receive:
|
|
a. |
All wages Executive has earned through and including the Departure Date;
|
|
b. |
Three weeks of Executive’s unused PTO benefit;
|
|
c. |
Any medical expenses incurred under the Company’s Group Executive Medical Reimbursement Policy that are incurred on or before the Departure Date, which reimbursements
shall be made in the normal course upon timely presentation of claims;
|
|
d. |
Reimbursement for all necessary business expenses Executive has incurred through the Departure Date, if any, for which Executive seeks reimbursement. Any such request
for reimbursement must be submitted in accordance with Regis’ policies regarding reimbursement requests. Thereafter, Executive agrees that Executive will be ineligible for further expense reimbursement from Regis, unless otherwise required by
law. Upon submission of Executive’s timely request for reimbursement, Regis will reimburse Executive for all necessary business expenses Executive incurred pursuant to the Company’s regular business practices; and
|
|
e. |
All compensation accrued as of the date of Executive‘s termination under each plan or program of the Company in which Executive may be participating at the time of
termination in accordance with the terms of such plan or program, including but not limited to the Executive Retirement Savings Plan, the Regis Individual Secured Retirement Plan, and the Long-Term Incentive plans and equity awards thereunder.
This Agreement has no effect on such plans, and the amount to which Executive is entitled under the foregoing is subject to each plan’s terms and conditions. For sake of clarity, “all compensation accrued as of the date of Executive’s
termination under each plan or program of the Corporation” shall specifically include Executive’s contributions and all matching contributions made by Regis to the Executive Retirement Savings Plan and/or the Regis Individual Secured Retirement
Plan, but shall not include any short-term incentive bonus for the fiscal year that ended in June 2020, or for any subsequent fiscal year.
|
3. |
Sole Payments and Benefits. By signing this Agreement, Executive agrees that
the amounts identified in Section 2 shall be the sole and exclusive payments and benefits to which the Executive shall be entitled in respect of Executive’s termination of employment with the Company pursuant to this Agreement, and that these
amounts represent all of the wages, benefits, and other amounts due to Executive as a result of Executive’s employment with Regis and the termination of that employment.
|
4. |
Consulting Services.
|
|
a. |
Effective as of the Departure Date and through the date that is the twelve (12) month anniversary of the Departure Date, or such earlier date as outlined in Section 4(d)
below (the “Consulting Term”), the Executive shall serve as an Executive Advisor to the Company as reasonably requested by the Company in its sole discretion. As Executive Advisor, Executive shall collaborate with the Company’s new CEO and
will be reasonably available to provide advice and support solely related to the transition of his role to the new CEO, and in continuing to serve as a representative and spokesperson for the Company as set forth on Exhibit B hereto, and as may reasonably be requested from time to time by the Company’s Chief Executive Officer (“CEO”) or Board of Directors, consistent with Executive’s role as Executive Advisor, which may include written communication by email, telephonic communication and video conferencing with key constituents upon
reasonable notice. No travel will be required except by agreement of the parties and any such travel shall be in accordance with COVID-19 guidelines from the Centers for Disease Control and appropriate state authorities. As Executive Advisor,
Executive shall report directly to the Board of Directors, and agrees to undertake and faithfully perform the duties and responsibilities of such position as described herein. As Executive Advisor, the Executive shall be an independent
contractor of the Company.
|
|
b. |
As compensation for the consulting services rendered hereunder, and subject to Executive’s continued compliance with Sections 6 and 7 below, Company shall pay the
Executive a fee of equal to $1,200,000.00 (the “Consulting Fee”), 50% of which shall be payable in substantially equal installments biweekly in accordance with the Company’s normal payment policies, commencing on the Departure Date and
continuing for six (6) consecutive months and 50% of which shall be payable in a lump sum on the first regularly scheduled payroll period in the seventh (7th) month following the Departure Date; provided that the first installment shall be paid
on the first regularly scheduled payroll date following the date this Agreement becomes effective and irrevocable (without revocation).
|
c.
|
The Company will pay the employer portion of the Executive and his spouse’s COBRA premiums for health and dental insurance coverage under the Company’s group health
and dental plans for a period of twelve (12) months following the Departure Date, provided Executive timely elects COBRA coverage; and provided further than such payment will cease if Executive becomes eligible to be covered under the
health, dental and/or vision insurance policy of a new employer, or Executive ceases to participate, for whatever reason, in the Company’s group insurance plan. Such benefit shall be treated as taxable compensation to Executive to the
extent necessary to avoid adverse tax consequences to the Company or Executive.
|
|
d. |
During the Consulting Term, the Executive shall be entitled to reimbursement for all reasonable and necessary out-of-pocket business expenses (including expenses for any
travel mutually agreed to by the parties) approved by the Company and incurred by the Executive in connection with the performance of the Executive's consulting duties hereunder in accordance with the Company's expense reimbursement policies
and procedures, including submission by the Executive of reasonable documentation with respect to such expenses in accordance with the Company’s policies as in effect from time to time.
|
|
e. |
The Consulting Term may be terminated prior to the expiration of the twelve (12) month term as follows:
|
|
i. |
In the event of Executive’s death, the Consulting Term shall terminate on the date of death.
|
|
ii. |
In the event of Executive’s physical or mental disability or health impairment which prevents the effective performance by Executive of Executive’s duties hereunder, with
such termination to occur after Executive has been unable to substantially perform the Executive’s consulting services hereunder for three (3) consecutive months. Any dispute as to Executive’s physical or mental disability or health impairment
shall be settled by the opinion of an impartial physician selected by the parties or their representatives or, in the event of failure to make a joint selection after request therefor by either party to the other, a physician selected by the
Company, with the fees and expenses of any such physician to be borne by the Company.
|
|
iii. |
By mutual agreement between the Company and Consultant, with such termination to occur on a date agreed upon by the parties.
|
|
iv. |
In the event of Executive’s breach of Sections 8 or 9 of the Employment Agreement, or of Sections 6 or 7 of this Agreement, with such termination to occur thirty (30)
days after the Company provides written notice of any such breach above to Executive, and to the extent Executive has not cured said breach.
|
5. |
Withholding Taxes; Independent Contractor Status. The Company may withhold
from any amounts payable under this Agreement such Federal, state and local taxes as may be required to be withheld pursuant to any applicable law or regulation. The Executive acknowledges and agrees that, during the Consulting Term, (a) the
Executive will be an independent contractor, and not an employee, of the Company within the meaning of all federal, state and local laws and regulations governing employment relationships, including insurance, workers’ compensation, and taxes;
(b) except as expressly authorized by the Company, the Executive shall not have any right to act for, represent or otherwise bind the Company in any manner; (c) the Executive shall not be entitled to participate in any employee benefit plans or
arrangements of the Company and shall not be provided with health and welfare benefits, including, without limitation, medical and dental coverage (other than Executive’s post-termination participation under COBRA), and (d) the Executive shall
be solely responsible for any workers’ compensation, unemployment or disability insurance payments, or any social security, income tax or other withholdings, deductions or payments (including self-employment taxes) that may be required by
federal, state or local law with respect to any sums paid to the Executive hereunder..
|
6. |
Non-disparagement Restrictions. To the fullest extent permitted by law,
Executive agrees not to make or endorse any disparaging or negative remarks or statements (whether oral, written, or otherwise) concerning Regis or its predecessors, successors, and/or assigns, as well as past and present officers, directors,
agents, and/or employees. The Company will instruct its current officers and directors to not make or endorse any disparaging or negative remarks or statements (whether oral, written, or otherwise) about Executive. Nothing in this paragraph
shall prevent the Executive or Regis or any of its officers or directors from providing truthful testimony and/or information in response to a lawful subpoena, court order or governmental inquiry. Furthermore, nothing in this paragraph shall
be applied to limit or interfere with Executive’s right to engage in the “Protected Activities” as defined in Section 17 below.
|
7. |
Non-Disclosure of Confidential or Proprietary Information; Compliance With Non-Competition
and Non-Solicitation Restrictions. Executive hereby acknowledges Executive’s obligations under Sections 8 and 9 of the Employment Agreement between Executive and Regis Corporation dated April 17, 2017 (the “Employment
Agreement”). Executive further reaffirms such obligations, and agrees that these obligations continue to apply to Executive during (and with respect to Section 8, after) the Consulting Term. Furthermore, Executive agrees that for purposes of
the Employment Agreement, the definition of “Non-Competition Period” shall mean the period during which the Executive provides consulting services to the Company and through the end of the twenty-four month period immediately following the end
of the Consulting Term. All other terms and obligations of the Employment Agreement shall remain in full force and effect.
|
8. |
Return of Corporate Property. By signing below, Executive represents and
warrants that all Regis property will be returned to Regis at the end of the Consulting Term, in order to facilitate his role as Executive Advisor. Executive will not retain any copies, electronic or otherwise, of any Regis property after the
end of the Consulting Term. Notwithstanding this paragraph of this Agreement, Executive may keep documents pertaining to Executive’s compensation and/or benefits. The Company acknowledges that the Executive has previously purchased his Android
mobile device from the Company, but the parties agree that the Company shall not be obligated to cover any expenses related to Executive’s use of such device after the Departure Date. The Company will permit Executive to utilize his
Company-issued Microsoft Surface Pro during the period of the Consulting Term, and Executive agrees to return said device at the conclusion of the Consulting Term.
|
9. |
Litigation and Other Legal Matters. Executive agrees to be reasonably
available upon reasonable notice from Regis, with or without subpoena, to be interviewed, review documents or things, give depositions, testify, or engage in other reasonable activities, including in connection with any pending and future
litigation, investigations, arbitrations, and/or other fact-finding or adjudicative proceedings, public or private, internal or external to Regis or any of the other Released Parties, with respect to matters of which Executive has knowledge or
should have knowledge. Regis will cooperate with Executive’s reasonable scheduling needs; will reimburse Executive for Executive’s reasonable expenses incurred in connection with Executive’s obligations under this paragraph; and will negotiate
in good faith and agree upon an appropriate per diem or hourly rate for any cooperation and/or assistance provided by Executive after the Departure Date.
|
10. |
References. Executive agrees that Executive will refer all reference checks
regarding his employment with Regis to the Vice President of Human Resources for the Company. For all reference checks that are referred to such person, references will be limited to confirmation of Executive’s dates of employment and last
position held.
|
11. |
General Release.
|
|
a. |
In exchange for the benefits promised to Executive in this Agreement, Executive agrees to irrevocably and unconditionally release and discharge Regis Corporation, Regis
Corp., Regis, Inc., and any and all subsidiaries, affiliates, predecessors, successors and/or assigns, as well as each of their past and present officers, directors, employees, and agents (collectively, the “Released Parties”), from any and all
claims, liabilities, or promises, whether known or unknown, arising out of or relating to Executive’s employment with Regis through the date Executive signs this Agreement. Executive waives these claims on behalf of Executive and his heirs,
assigns, and anyone making a claim through Executive. The claims waived and discharged include, but are not limited to, claims under or relating to:
|
|
i. |
Title VII of the Civil Rights Act of 1964;
|
|
ii. |
Sections 1981 through 1988 of Title 42 of the United Sates Code;
|
|
iii. |
The Civil Rights Act of 1991;
|
|
iv. |
The Employee Retirement Income Security Act of 1974 (except for any vested benefits under any tax qualified benefit plan);
|
|
v. |
The Age Discrimination in Employment Act of 1967 (the “ADEA”);
|
|
vi. |
The Rehabilitation Act of 1973;
|
|
vii. |
The Immigration Reform and Control Act;
|
|
viii. |
The Americans with Disabilities Act of 1990;
|
|
ix. |
The Americans with Disabilities Amendments Act of 2008;
|
|
x. |
The Fair Credit Reporting Act;
|
|
xi. |
The Sarbanes-Oxley Act of 2002, to the extent permitted by law;
|
|
xii. |
The Occupational Safety and Health Act;
|
|
xiii. |
The Family and Medical Leave Act of 1993;
|
|
xiv. |
The Equal Pay Act;
|
|
xv. |
The Genetic Information Nondiscrimination Act;
|
|
xvi. |
The Worker Adjustment and Retraining Notification Act;
|
|
xvii. |
The Minnesota Human Rights Act, Minn. Stat. § 363A.01, et seq.;
|
|
xviii. |
The Minnesota wage-hour and wage-payment laws;
|
|
xix. |
The Minnesota’s Whistleblower Act, Minn. Stat. § 181.932;
|
|
xx. |
Minn. Stat. § 176.82;
|
|
xxi. |
The non-discrimination and anti-retaliation provisions of the Minnesota State Workers’ Compensation and/or Disability Benefits Laws;
|
|
xxii. |
Any other federal, state or local civil or human rights law or any other local, state or federal law, rule, regulation, code, guideline or ordinance, including but not
limited to those relating to bias, whistleblower, discrimination, retaliation, compensation, employment or labor;
|
|
xxiii. |
Any public policy, contract (oral or written, express or implied), tort, or common law; and/or
|
|
xxiv. |
Any statute, common law, agreement or other basis for recovering any costs, fees, or other expenses, including attorneys’ fees and/or costs.
|
|
b. |
This release does not modify or affect (a) Executive’s right to enforce the terms of this Agreement; (b) Executive’s right to receive an award from a “Government Agency”
(as defined in Section 17 below) under its whistleblower program for reporting in good faith a possible violation of law to such Government Agency; (c) any vested rights and benefits that Executive may have under any applicable Company benefit
or compensation plan; (d) any recovery to which Executive may be entitled pursuant to workers’ compensation and unemployment insurance laws; (e) any rights under directors’ and officers’ liability insurance coverage or any right of
indemnification under the Company’s organizational documents or otherwise; (f) Executive’s right to challenge the validity of this Agreement under the ADEA; (g) Executive’s right to payments or benefits described in Sections 6(c) and 4(d) of
the Employment Agreement, subject to and in accordance with the terms thereof; (h) Executive’s rights with respect to any equity awards granted to Executive by the Company; (i) any rights that arise after the date Executive executes this
Agreement; or (j) any right where a waiver is expressly prohibited by law.
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c. |
Executive understands and agrees that, with the exception of Executive’s right to receive an award from a Government Agency under its whistleblower program for reporting
in good faith a possible violation of law to such Government Agency, Executive is not entitled to receive any money or other relief in connection with the claims Executive is releasing in this Agreement, regardless of who initiated or filed the
charge or other proceeding.
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d. |
Executive understands that this Agreement has to meet certain requirements to validly release any claims Executive might have under the ADEA (including under the Older
Workers’ Benefit Protection Act), and Executive represents that all such requirements have been satisfied, including that:
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i. |
The Agreement is written in a manner that is understandable to Executive;
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ii. |
Executive is specifically waiving ADEA rights;
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iii. |
Executive is not waiving ADEA rights arising after the date of Executive signing this Agreement;
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iv. |
Executive is receiving valuable consideration in exchange for execution of this Agreement that Executive would not otherwise be entitled to receive;
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v. |
Regis is hereby, in writing, encouraging Executive to consult with an attorney before signing this Agreement; and
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vi. |
Executive received 21 days to consider this Agreement and at least 7 days to rescind it.
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12.
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Notice of Right to Consider and Rescind Agreement. Regis hereby advises
Executive to consult with an attorney of Executive’s choice before signing this agreement releasing any rights or claims that Executive believes Executive may have under the ADEA. Once this Agreement is executed, Executive may rescind this
Agreement within fifteen (15) calendar days to reinstate any claims under the ADEA. To be effective, any rescission within the relevant time period must be in writing and delivered to Regis, in care of the Company’s General Counsel, 3701
Wayzata Blvd., Suite 500, Minneapolis, MN 55416, by hand or by mail within the fifteen (15) day period. If delivered by mail, the rescission must be (1) postmarked within the fifteen (15) day period; (2) properly addressed to Regis; and
(3) sent by certified mail, return receipt requested.
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13. |
Compliance with the Minnesota Human Rights Act and Notice of Right to Consider and Rescind
Agreement. Regis hereby advises Executive to consult with an attorney of his choice before signing this Agreement releasing any rights or claims that Executive believes Executive may have under the Minnesota Human Rights Act
(MHRA). Once this Agreement is executed, Executive may rescind this Agreement within fifteen (15) calendar days to reinstate any claims under the MHRA. To be effective, any rescission within the relevant time period must be in writing and
delivered to the Company, in care of the Company’s General Counsel, 3701 Wayzata Blvd., Suite 500, Minneapolis, MN 55416 by hand or by mail within the fifteen (15) day period. If delivered by mail, the rescission must be (1) postmarked within
the fifteen (15) day period; (2) properly addressed to the Company; and (3) sent by certified mail, return receipt requested.
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14. |
Release Renewal. As additional consideration for the Company’s obligations
under this Agreement, Executive agrees to execute releases coextensive with the release provisions of this Agreement (1) on the Departure Date; and (2) within thirty days of the end of the Consulting Term. The Company will provide Executive
with release agreements in advance of the Departure Date and the end of the Consulting Term.
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15. |
Binding Nature of Agreement. This Agreement is binding on the parties and
their heirs, administrators, representatives, executors, successors, and assigns.
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16. |
No Assignment. Executive warrants that Executive has not assigned, transferred
nor purported to assign or transfer any claim against Regis or the Released Parties, and that Executive will not assign or transfer nor purport to assign or transfer hereafter any claim against Regis or the Released Parties.
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17. |
Protected Activities. Executive and the Company each acknowledge and agree
that nothing in this Agreement shall be applied to limit or interfere with Executive’s right, without notice to or authorization of the Company, to communicate and cooperate in good faith with a Government Agency for the purpose of (i)
reporting a possible violation of any U.S. federal, state, or local law or regulation, (ii) participating in any investigation or proceeding that may be conducted or managed by any Government Agency, including by providing documents or other
information, or (iii) filing a charge or complaint with a Government Agency. For purposes of this Agreement, “Government Agency” means the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safety and
Health Administration, the U.S. Securities and Exchange Commission, the Financial Industry Regulatory Authority, or any other self-regulatory organization or any other federal, state or local governmental agency or commission. Executive
understands that Executive will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made (a) in confidence to a federal, state, or local government official, or to an
attorney, solely for the purpose of reporting or investigating a suspected violation of law, (b) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal; or (c) in court proceedings if
Executive files a lawsuit for retaliation by an employer for reporting a suspected violation of law, or to Executive’s attorney in such lawsuit, provided that Executive must file any document containing the trade secret under seal, and
Executive may not disclose the trade secret, except pursuant to court order. However, Executive is not authorized to make any disclosures as to which the Company may assert protection from disclosure under the attorney-client privilege or the
attorney work product doctrine, without prior written consent of the Company’s General Counsel or another authorized officer designated by the Company. The disclosures and actions protected in this Section 17 are referred to herein as
“Protected Activities.”
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18. |
Severability. The provisions of this Agreement are severable. If any
provision (excluding the General Release above) is held to be invalid or unenforceable, it shall not affect the validity or enforceability of any other provision.
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19. |
Section 409A. The payments and benefits under this letter agreement are
intended to comply with or be exempt from Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and guidance promulgated thereunder (collectively “Section 409A”), whether pursuant to the short-term deferral
exception or otherwise, and, accordingly, to the maximum extent permitted, this letter agreement shall be interpreted to be exempt from Section 409A. All reimbursements for costs and expenses under this Agreement shall be paid in no event later
than the end of the calendar year following the calendar year in which such expense is incurred. With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section
409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (ii) the amount of expenses eligible for reimbursements or in-kind, benefits provided during any taxable year
shall not affect the expenses eligible for reimbursement or in-kind benefits to be provided in any other taxable year.
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20. |
Entire Agreement. Except to the extent that Executive has an arbitration
agreement with Regis, this Agreement, Sections 4(d), 8, 9 (as modified by Section 7 of this Agreement), 10, and 11(l) of the Employment Agreement, and any applicable equity award agreements, set out the entire agreement between Executive and
Regis and supersede any and all prior oral or written agreements or understandings between Executive and Regis concerning Executive’s termination of employment. Executive and the Company acknowledge and agree that any terms of the Employment
Agreement that survive the Departure Date remain in full force and effect in accordance with the Employment Agreement. Any arbitration agreement that Executive has with Regis will continue in full force and effect. Furthermore, the Company
retains any rights it might have under (A) Section 10(b) of the Employment Agreement; (B) any clawback policy in effect on the Employment Commencement Date; or (C) any law applicable to the Executive; to cease making and/or recover any benefits
outlined in Section 4 above and/or recover shares of the Company’s stock delivered or deliverable in connection with the Initial Equity Award or amounts corresponding to the Initial Equity Award.
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21. |
Executive Representations. Executive represents that he:
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a. |
has the right and the Company has encouraged Executive to review all aspects of this Agreement with an attorney of Executive’s choice;
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b. |
has had the opportunity to consult with an attorney of Executive’s choice and has either done so or freely chosen not to do so;
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c. |
has carefully read and fully understand all the provisions of this Agreement; and
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d. |
is freely, knowingly, and voluntarily entering into this Agreement.
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22. |
Effective Date of Agreement. This Agreement will become effective on the
sixteenth day after Executive signs it, provided that Executive has not rescinded the Agreement.
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23. |
Valid Agreement. As stated above, Executive agrees that this Agreement and its
releases fully comply with the ADEA. Executive also agrees that this Agreement and its releases fully comply with the Minnesota Human Rights Act, and all other laws, statutes, ordinances, regulations, and/or principles of common law governing
releases.
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24. |
No Admission of Liability. Regis denies any and all liability to Executive.
Executive understands and agrees that this Agreement is not an admission of wrongdoing or liability, including, but not limited to, any violation of any federal, state, and/or local law, statute, ordinance, contract, and/or principle of common
law by Regis and/or any individuals and/or entities associated with Regis.
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25. |
Attorneys’ Fees. Executive agrees that Executive is responsible for his own
attorneys’ fees and costs, if any, incurred in any respect, including but not limited to in connection: with Executive’s employment with Regis; with the termination of Executive’s employment with Regis; and with negotiating and executing this
Agreement.
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26. |
Governing Law. This Agreement shall be construed and enforced in accordance
with the laws of the State of Minnesota and the laws of the United States, where applicable.
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EXECUTIVE |
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/s/ Hugh Sawyer |
9/4/2020
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Hugh Sawyer | Date |
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REGIS CORPORATION |
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/s/ Virginia Gambale |
9/4/2020
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By: Virginia Gambale | Date |
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Title: Lead Director |
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With kind regards,
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Hugh Sawyer
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• |
Provide reasonable access from time to time to the CEO and Board of Directors during the Consulting Term
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• |
Work with the CEO to facilitate a smooth transition of duties.
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• |
Work with the CEO to provide information, data or insight to facilitate the transition
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• |
Communicate with key constituents, including, franchisees, clients, landlords, current and potential franchisees in connection with CEO transition.
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• |
Provide an introduction to Walmart senior management
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• |
Communicate with management and employees in connection with CEO transition.
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• |
Assist in the transition of other key relationships to CEO, including shareholders, lenders, current and potential franchisees, employees, landlords, and outside
financial, legal, accounting, and consulting relationships.
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• |
Advise CEO, as requested, related to implementation of key strategic initiatives, including any ongoing or future changes to the Company’s business in response to the
COVID-19 epidemic.
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• |
Advise CEO in connection with lease negotiations.
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• |
Advise CEO in connection with refranchising process
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• |
Advise CEO in connection with ongoing G&A reductions
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• |
Provide reasonable assistance and consultation in connection with the transition and messaging to analysts, investors and other constituents.
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