Torrid Holdings Inc 8-K, filed May 4, 2022
Torrid Holdings Inc. (CURV)
8-K
2022-05-04
For: 2022-05-04
View Original
Added on
April 07, 2026
About this 8-K
Torrid Holdings Inc filed this 8-K on May 4, 2022.
Items reported
- Item 5.02: Director or officer change, or executive pay
- Item 7.01: Regulation FD disclosure
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): May 4, 2022
(Exact name of registrant as specified in its charter)
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (626) 667-1002
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
Securities registered pursuant to Section 12(b) of the Act:
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Transition of Elizabeth Muñoz from Chief Executive Officer to Chief Creative Officer
On May 3, 2022 (the “Transition Date”), Torrid Holdings Inc. (the “Company”) announced that Elizabeth Muñoz, 54, the Company’s Chief Executive Officer will voluntarily transition to the role of the Company’s Chief Creative Officer, effective as of the Transition Date. In connection with such transition, Ms. Muñoz will also step down from her role as a member of the Company’s Board of Directors (the “Board”), also effective as of the Transition Date.
In connection with Ms. Muñoz’s voluntary transition to her new role as the Company’s Chief Creative Officer, Ms. Muñoz, Torrid LLC, a California corporation, and the Company have entered into an amendment to her employment agreement (the “Muñoz Amendment Agreement”), effective as of the Transition Date.
The Muñoz Amendment Agreement provides that Ms. Muñoz will be employed by the Company as its Chief Creative Officer, will report directly to the Company’s Chief Executive Officer and will resign as a member of the Board, in each case, effective as of the Transition Date. Further, Ms. Muñoz waives any right to claim Good Reason (as defined in the Muñoz Employment Agreement) related to the changes in her title, duties, responsibilities and offices provided for in the Muñoz Amendment Agreement. Ms. Muñoz’s compensation and benefits will remain the same in her new role as Chief Creative Officer of the Company.
Ms. Muñoz is not a party to any arrangement or understanding regarding her selection as an officer. There are no family relationships between Ms. Muñoz and any director or executive officer of the Company. Ms. Muñoz is not a party to any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K.
The foregoing description of the material terms of the Muñoz Amendment Agreement is not complete and is qualified in its entirety by reference to the full text of the Muñoz Amendment Agreement attached hereto as Exhibit 10.1 and Ms. Muñoz ‘s Employment Agreement, dated December 13, 2019, which was filed as Exhibit 10.11 to the Company’s Form S-1 Registration Statement filed with the Securities and Exchange Commission on June 7, 2021, each of which is incorporated by reference herein.
Appointment of Lisa M. Harper as Chief Executive Officer
On the Transition Date, the Company announced that Lisa M. Harper, 62, has been appointed as Chief Executive Officer of the Company, effective as of the Transition Date. Following her appointment as Chief Executive Officer, Ms. Harper will continue to serve as a member of the Board as an employee director, and will no longer receive any cash compensation in respect of her service on the Board. Following the Transition Date, Ms. Harper will remain a member of the Board’s Nominating and Corporate Governance Committee.
Ms. Harper has served as a member of the Company’s Board and its predecessor since 2008. From July 2021 until May 2022, Ms. Harper served as Executive Chairperson of Belk, a privately-owned department store chain. Prior to that, Ms. Harper served as Chief Executive Officer of Belk from July 2016 through July 2021. Ms. Harper previously served as Chief Executive Officer of each of the Company, its predecessor, and Hot Topic, from March 2011 until June 2016. From February 2001 until her retirement in July 2006, she served in various capacities with The Gymboree Corporation, a publicly-traded corporation operating a chain of specialty retail stores for children and women. Her roles at Gymboree included Chairman of the board of directors, from June 2002 to July 2006, Chief Creative Officer, from January 2006 to July 2006, Vice Chairman of the board of directors, from February 2001 to June 2002, and Chief Executive Officer, from February 2001 to January 2006. Ms. Harper has also held merchandising and design positions with several other clothing retailers, including Limited Too, Esprit, GapKids, Mervyn’s and Levi Strauss. Ms. Harper attended the University of North Carolina at Chapel Hill. In addition to her service on our board of directors, Ms. Harper currently serves as a member of the board of directors of each of Belk and Hot Topic.
On the Transition Date, the Company and Ms. Harper entered into an employment agreement that sets forth the terms of her employment as the Company’s Chief Executive Officer (the “CEO Employment Agreement”). The CEO Employment Agreement does not provide for a fixed term of employment. Pursuant to the CEO Employment Agreement, Ms. Harper will receive the following: (i) an initial annual base salary of $1,000,000, less required deductions and withholdings, (ii) an annual bonus with a target opportunity equal to 150% of base salary less required deductions and withholdings, (iii) an equity award under the Company’s 2021 Long-Term Incentive Plan (the “LTIP”), as further described below, and (iv) reimbursement of reasonable business expenses incurred in conducting her duties as the Company’s Chief Executive Officer as well as of certain relocation expenses.
Upon a termination of Ms. Harper’s employment by the Company without “Cause” or a resignation by Ms. Harper for “Good Reason” (each as defined in the CEO Employment Agreement), subject to Ms. Harper’s execution and
non-revocation of a release of claims, Ms. Harper is entitled to receive the following severance benefits: (i) payment of an amount equal to 200% of base salary in effect at the time of termination, less required deductions and withholdings, payable in equal installments in accordance with the Company’s regular payroll practices over the 12-month period following such date of termination, and (ii) if Ms. Harper is eligible for and timely elects continued coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 or analogous provisions of state law (collectively, “COBRA”) for herself and/or her eligible dependents under the Company’s group health insurance plans following the termination of her employment, the Company will pay the COBRA premiums necessary to continue the health insurance coverage in effect for Ms. Harper and/or her eligible dependents as of such date of termination until the earliest of (x) 36 months following such termination date, (y) the expiration of Ms. Harper’s eligibility for continuation coverage under COBRA, and (z) the date Ms. Harper becomes eligible for substantially equal group health insurance coverage in connection with new employment.
Ms. Harper has also agreed to the following restrictive covenants in the CEO Employment Agreement: (i) during the term of her employment and any period thereafter in which Ms. Harper is receiving severance benefits pursuant to the CEO Employment Agreement, an agreement not to engage in competition, directly or indirectly, with the Company or its affiliates, (ii) for a period of two years following the termination of her employment, an agreement not to solicit or encourage employees of the Company to leave its employ, or to hire such employees, (iii) during the term of her employment, an agreement not to acquire, assume or participate in any position, investment or interest known by Ms. Harper to be adverse or antagonistic to the Company or in any entity that is in competition with the business of the Company or any of its affiliates, (iv) during the term of her employment and at all times thereafter, an agreement not to disparage the Company, its affiliates or their respective employees, officers, directors or equityholders, (v) during the term of her employment and at all times thereafter, an agreement to preserve as confidential and not to disclose or use (other than on behalf of the Company) confidential information relating to the Company or its business and affairs, and (vi) an agreement to assign to the Company all trade secrets, inventions, developments and ideas protectable under relevant intellectual property laws and other proprietary rights.
On the Transition Date, the Company and Ms. Harper also entered into a performance stock unit award agreement (the “CEO Award Agreement”), pursuant to which the Company granted Ms. Harper 300,000 performance stock units (the “PSUs”) under the LTIP. The PSUs are subject to both time-vesting and performance-vesting. One-third of the PSUs will become time-vested on each of the first three anniversaries of the grant date, subject to Ms. Harper’s continued employment with or service to the Company through each such vesting date; provided, that all of the PSUs will become fully time-vested upon the consummation of a Change in Control (as defined in the LTIP), subject to Ms. Harper’s continued employment with or service to the Company through the date of consummation of such Change in Control. There is no proportionate or partial vesting in the periods prior to each time vesting date. The PSUs will become performance-vested based upon the achievement of the Company’s common stock of specified volume-weighted average trading price targets as reported on the principal exchange on which such common stock is traded and as measured during any 30 consecutive trading day period beginning on the grant date and ending on the third anniversary of the grant date (each, a “VWAP Target”). The PSUs will performance-vest as follows: (i) 25% upon achievement of a $15 VWAP Target, (ii) 50% upon achievement of a $20 VWAP Target, (iii) 75% upon achievement of a $25 VWAP Target, and (iv) 100% upon achievement of a $30 VWAP Target. Any PSUs that have not become vested as described herein will be immediately forfeited upon the earliest to occur of (x) Ms. Harper’s termination of employment with or service to the Company for any reason, (y) the third anniversary of the grant date, and (z) the consummation of a Change in Control. Notwithstanding the foregoing, the Committee (as defined in the LTIP) may provide for accelerated vesting of the PSUs at any time and for any reason.
Ms. Harper is not a party to any arrangement or understanding regarding her selection as an officer. There are no family relationships between Ms. Harper and any director or executive officer of the Company. Ms. Harper is not a party to any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K.
The foregoing description of the material terms of the CEO Employment Agreement and the CEO Award Agreement is not complete and is qualified in its entirety by reference to the full text of the CEO Employment Agreement and the CEO Award Agreement attached hereto as Exhibits 10.2 and 10.3, respectively, each of which is incorporated by reference herein.
Resignation of George Wehlitz as Chief Financial Officer
As previously disclosed on December 8, 2021, George Wehlitz retired from his role as Chief Financial Officer of the Company at the end of the first quarter of fiscal 2022. In order to facilitate a smooth transition, Mr. Wehlitz will continue to be employed by the Company as a casual employee, will be paid at the rate of $9,615 per calendar week and will be eligible to receive such medical and dental benefits as are routinely made available to other employees of the Company, in each case, until July 29, 2022. Mr. Wehlitz will not be eligible to receive an annual bonus.
Appointment of Interim Chief Financial Officer
On the Transition Date, the Company announced that Tanner MacDiarmid, 40, has been appointed as Interim Chief Financial Officer of the Company, effective as of the Transition Date.
Mr. MacDiarmid has served as a Partner at MERU since April 2019, specializing in interim management for clients. He has served in various interim management roles, including as Interim Chief Financial Officer for a $3 billion specialty apparel retailer from April 2021 to April 2022. Mr. MacDiarmid previously held roles as Senior Vice President at McKinsey & Company from March 2017 to April 2019 and Senior Director at Alvarez & Marsal from May 2007 to March 2017. He received a B.A. in Economics with a minor in Accounting from University of California at Los Angeles and is a Certified Public Accountant.
Mr. MacDiarmid is not a party to any arrangement or understanding regarding his selection as an officer. There are no family relationships between Mr. MacDiarmid and any director or executive officer of the Company. Mr. MacDiarmid is not a party to any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K.
Appointment of Principal Financial Officer
On the Transition Date, the Company announced that Chinwe Abaelu, 49, has been appointed as Principal Financial Officer of the Company, effective as of the Transition Date.
Ms. Abaelu has served as the Company’s Senior Vice President, Chief Accounting Officer since March 2022. Ms. Abaelu’s scope of responsibility includes Internal and External Financial Reporting, Internal Audit, Tax, and Accounting. Ms. Abaelu was Senior Vice President, Finance from August 2021 to March 2022 and served as Vice President, Finance from April 2018 to July 2021. She was Sr. Director, Financial Reporting and Compliance between May 2016 and April 2018. Between 2006 and 2016, Ms. Abaelu served in various Finance leadership roles at Hot Topic. Prior to Hot Topic, Ms. Abaelu served in a Finance leadership role at Vendare Media Group and was an Audit and Business Advisory Services Manager at PricewaterhouseCoopers LLP prior to that. A Certified Public Accountant and Certified Internal Auditor, Ms. Abaelu holds a B.Sc. (Hons) degree in Accounting from the University of Nigeria.
Ms. Abaelu is not a party to any arrangement or understanding regarding her selection as an officer. There are no family relationships between Ms. Abaelu and any director or executive officer of the Company. Ms. Abaelu is not a party to any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K.
Appointment of Independent Director
On the Transition Date, the Company announced that Michael Shaffer, 59, has been appointed as a member of the Board, effective as of the Transition Date.
Mr. Shaffer joined PVH Corp. (“PVH”) in 1990 as a Financial Budget Manager and over the next 30 years worked his way up through the organization, gaining valuable experience and insights into both financial and business operations. He held various roles, including Director of Accounting Operations, Vice President and Controller, Senior Vice President of Operations and Executive Vice President, Chief Operating Officer and Chief Financial Officer for PVH. In addition, Mr. Shaffer took on the additional responsibility at PVH of guiding the Building Resources for African American Voices (BRAAVE) with PVH and led the efforts as the executive sponsor. Mr. Shaffer retired in September 2021 from PVH. Mr. Shaffer completed his bachelor's degree in accounting from George Washington University and earned his CPA designation. He also served for five years on the board of directors with the Build-A-Bear Workshop, where he was Chair of the Audit Committee.
In connection with its decision to appoint Mr. Shaffer to the Board, the Board determined that Mr. Shaffer will be an “independent” director, as independence is defined in Rule 10A-3 of the Securities Act of 1934, as amended, and under the New York Stock Exchange listing standards. The Board has also determined that Mr. Shaffer will serve on the Audit Committee and will replace Theophlius Killion as chairperson of the Audit Committee. Mr. Killion will continue to serve as a member of the Audit Committee. Mr. Shaffer will serve as a director until the Company’s 2023 Annual Meeting of Stockholders.
Mr. Shaffer will receive compensation in accordance with the Company’s standard director compensation arrangements for non-employee directors as described under the heading “Director Compensation” in the Company’s Registration Statement on Form S-1, filed with the Securities and Exchange Commission on June 30, 2021.
The Company also entered into an indemnification agreement with Mr. Shaffer in connection with his appointment to the Board. The indemnification agreement is in substantially the same form as the indemnification agreement for
the other directors of the Company that was filed as Exhibit 10.22 to the Company’s Registration Statement on Form S-1, filed with the SEC on June 30, 2021. There are no other transactions with Mr. Shaffer which would require disclosure under Item 404(a) of Regulation S-K and there are no arrangements or understandings between Mr. Shaffer and any other person pursuant to which Mr. Shaffer was selected as a director.
Item 7.01 Regulation FD Disclosure.
On May 3, 2022, the Company issued a press release announcing the changes in its senior leadership team and the appointment of Mr. Shaffer as a member of the Board. A copy of this press release is furnished as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein by reference.
The information provided pursuant to this Item 7.01, including Exhibit 99.1 attached hereto, is being furnished and shall not be deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference into any filing under the Securities Act of 1933, as amended, or the Exchange Act, regardless of any general incorporation language in any such filing.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
| Exhibit No. | Exhibit Description | |||||||||||||||||||||||||||||||
| 10.1+ | ||||||||||||||||||||||||||||||||
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| 99.1 | ||||||||||||||||||||||||||||||||
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) | |||||||||||||||||||||||||||||||
| + | Indicates a management contract or compensatory plan or arrangement. | |||||||||||||||||||||||||||||||
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| TORRID HOLDINGS INC. | |||||||||||||||||||||||||||||||||||
| By: | /s/ Lisa Harper | ||||||||||||||||||||||||||||||||||
| Name: | Lisa Harper | ||||||||||||||||||||||||||||||||||
| Title: | Chief Executive Officer | ||||||||||||||||||||||||||||||||||
| Date: May 4, 2022 | |||||||||||||||||||||||||||||||||||
AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
This Amendment No. 1 to Employment Agreement (this “Amendment”) is entered into as of May 2, 2022, with an effective of May 3, 2022 (the “Amendment Effective Date”), by and among Torrid LLC, a California limited liability company (“Torrid”), Torrid Holdings Inc., a Delaware corporation (the “Company” or “Parent”), and Elizabeth Muñoz-Guzman, an individual (the “Executive”). Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the Agreement (as defined below), as amended hereby.
WHEREAS, Torrid and the Executive are parties to that certain Employment Agreement (the “Agreement”) dated as of December 13, 2019 (the “Effective Date”); and
WHEREAS, the parties hereto desire to amend the Agreement as set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
1. The introductory paragraph of the Agreement is hereby deleted in its entirety and replaced with the following:
“Effective as of the Amendment Effective Date, (i) you and the Company hereby agree that you will voluntarily change your title and responsibilities, such that you will no longer serve as the Chief Executive Officer of the Company and each other member of the Parent Group (as defined below) and in connection therewith, you acknowledge and agree that (A) such change in title and responsibilities shall not constitute Good Reason under the Agreement and you hereby waive any and all rights that would have otherwise accrued to you in connection with such change in title and responsibilities and (B) such change shall not be deemed to be a “separation from service” for purposes of Section 409A of the Code, (ii) you hereby resign effective immediately as a member of board of directors of the Company (the “Board”) and as a member of board of directors or similar governing body of each other member of the Parent Group, and (iii) the Company shall, effective immediately, employ you as its Chief Creative Officer. As Chief Creative Officer, you will report directly to the Chief Executive Officer of the Company (the “CEO”). Your duties as Chief Creative Officer will involve such duties as are normally associated with such position and such other matters related to the Company’s day-to-day creative function, consistent with your position as Chief Creative Officer, as delegated to you by the CEO. Notwithstanding the foregoing, the Company agrees that you will have primary responsibility and oversight for product offering, merchandise and product design and development, including but not limited to hiring and firing of individuals employed in these areas pursuant to Company policies and procedures. Your principal place of business will be at the Company’s office located in City of Industry, California, it being agreed and understood that you will engage in business travel to the extent necessary or desirable for the performance of your duties as the Company’s Chief Creative Officer. For purposes hereof, “Parent Group” means, collectively, the Company and each of its subsidiaries (including Torrid). Any references to the “members of the Parent Group” and similar phrases shall be deemed to refer to the Company and its subsidiaries (including Torrid).”
2. Section 4 of the Agreement is hereby amended by adding the following:
KE 85852931.3
“(d) You will be entitled to six (6) weeks of vacation per year. Upon presentation of appropriate documentation, the Company shall pay your reasonable attorneys’ fees incurred in connection with the negotiation and documentation of this Amendment, up to a maximum of $10,000 which shall be paid on or as soon as reasonably practicable following the Amendment Effective Date.”
3. Section 5(c) is hereby amended by deleting the following “during the two year period immediately following the consummation of a Change of Control that occurs following an IPO,” and replacing with the following “during the two year period immediately following the consummation of a Change of Control that occurs following the execution of Amendment No. 1 to Employment Agreement,”.
4. Section 6(d)(iii) of the Agreement is hereby amended by replacing “Chief Executive Officer” with “Chief Creative Officer”.
5. Section 6(d)(iii)(A) of the Agreement is hereby deleted in its entirety and replaced with the following:
(A) any change in your reporting directly to the Chief Executive Officer, or any material adverse change, unless mutually agreed upon between you and the Chief Executive Officer, in your authority, responsibilities or duties such that you no longer have the title of, or serve or function as, the Company’s Chief Creative Officer (except during periods when you are unable to perform such duties as a result of your illness (either physical or mental) or other incapacity or excused absence or vacation),…
6. This Amendment shall only serve to amend and modify the Agreement to the extent specifically provided herein. All terms, conditions, provisions and references of and to the Agreement which are not specifically modified, amended and/or waived herein shall remain in full force and effect and shall not be altered by any provisions herein contained. All prior agreements, promises, negotiations and representations, either oral or written, relating to the subject matter of this Amendment not expressly set forth in this Amendment are of no force or effect. By entering into this Amendment, the Executive acknowledges that Good Reason to terminate her employment does not exist and waives any right to claim Good Reason, in any case, related to the changes in the Executive’s title, duties, responsibilities and/or offices (including the Board and the board of directors or equivalent governing body of each other member of the Parent Group) as contemplated herein.
7. This Amendment shall not be amended, modified or supplemented except by a written instrument signed by the parties hereto. The failure of a party to insist on strict adherence to any term of this Amendment on any occasion shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Amendment. No waiver of any provision of this Amendment shall be construed as a waiver of any other provision of this Amendment. Any waiver must be in writing.
8. This Amendment shall inure to the benefit of, and be binding upon, the successors, administrators, heirs, legal representatives and assigns of the Executive, and the successors and assigns of the Company and Torrid.
9. Section 17 of the Agreement (Choice of Law; Waiver of Jury Trial) shall apply to this Amendment mutatis mutandis.
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10. This Amendment may be executed and delivered (including by facsimile, “pdf” or other electronic transmission) in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.
[Signature Page to Follow]
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KE 85852931.3
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date set forth above.
TORRID HOLDINGS INC.
By: ______/s/ Brian Park _____________________
Name: Brian Park
Title: Secretary
TORRID LLC
By: ________/s/ Brian Park ____________________
Name: Brian Park
Title: SVP/General Counsel
EXECUTIVE
By: ______/s/ Elizabeth Muñoz-Guzman _________
Elizabeth Muñoz-Guzman
Signature Page to Amendment No. 1
to Employment Agreement
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EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into as of May 3, 2022 (the “Effective Date”), by and between Torrid Holdings Inc., a Delaware corporation (the “Company”), and Lisa M. Harper (“Executive”). The Company and Executive are hereinafter collectively referred to as the “Parties”, and individually referred to as a “Party.” This Agreement (including the Exhibits hereto) supersedes all prior and contemporaneous oral or written employment agreements or arrangements among the Parties and their Affiliates (as defined below) with respect to the subject matter hereof. Unless otherwise indicated, capitalized terms used herein are defined in Section 3(f) hereof.
RECITALS:
A.Effective as of the Effective Date, the Company shall employ Executive, and Executive agrees to be employed by the Company, in each case, in accordance with the terms and conditions set forth in this Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of the promises and the covenants set forth in this Agreement and for other valuable consideration, the Parties hereby agree as follows with respect to the terms of Executive’s employment on and after the Effective Date:
1.Employment.
(a)Title and Duties. The Company hereby employs Executive as Chief Executive Officer (“CEO”), assigned with the responsibility to do and perform all services, acts, or things necessary or advisable to manage and conduct the business of the Company and its subsidiaries that are normally associated with the position of CEO. Executive shall continue to serve on the Company’s Board of Directors (the “Board”), and for so long as Executive is employed by the Company, the Company will annually nominate Executive for election to the Company’s Board of Directors; provided that the foregoing shall not be required to the extent prohibited by legal or regulatory requirements. Executive hereby accepts such employment and agrees to devote her full time and energies to fulfill all her responsibilities to the Company. In addition, so long as Executive is employed by the Company, Executive (i) shall report directly to the Board, (ii) shall have such authorities and duties customarily associated with a CEO in a company the nature and size of the Company, (iii) shall be permitted to engage in charitable and other activities, including managing her personal and family activities as long as such activities do not materially interfere with her duties to the Company, and (iv) with the prior written consent of the Board (which may be granted or withheld in its sole discretion), may serve on outside boards of directors (it being understood that Executive may continue to serve on the board of directors of the two private companies on which she currently serves and as previously disclosed to the Board) so long as such service does not materially interfere with the performance of Executive's duties hereunder or create a potential business or fiduciary conflict.
(b)Policies and Practices. The employment relationship between the Parties shall be governed by this Agreement and by the policies and practices established by the Company and the Board, or any committee thereof to which the Board has delegated responsibility for compensation matters. In the event that the terms of this Agreement differ from or are in conflict with the Company’s policies or practices, this Agreement shall control.
(c)Term. Executive’s employment under this Agreement shall begin on the Effective Date and shall continue until the date Executive’s employment terminates pursuant to Section 3 herein (the “Term”).
2.Compensation. In consideration for all services rendered by Executive under this Agreement, Executive shall receive the compensation described in this Agreement. All such compensation shall be paid subject to appropriate tax withholding and any other withholdings required by law or authorized by Executive.
(a)Base Salary. Executive shall be paid a base salary at the annualized rate of $1,000,000, less payroll deductions and all required withholdings, payable in periodic installments in accordance with the Company’s normal payroll practices (the “Base Salary”). Executive’s Base Salary will be reviewed annually and may be adjusted by the Board in its discretion, provided however, that the Base Salary may only be reduced upon Executive’s written consent. The Base Salary shall be prorated for any partial year of employment on the basis of a 365-day fiscal year.
(b)Annual Bonus. For Fiscal Year 2022 and each fiscal year thereafter during the Term:
(i)Executive will be entitled to participate in the Company’s annual bonus plan, which bonus plan (and the associated targets therefor) will be proposed by the Compensation Committee of the Board (the “Committee”) in consultation with Executive, with an annual target bonus amount equal to 150% of Executive’s Base Salary at the highest rate in effect during the applicable annual performance period, subject to standard deductions and withholdings.
(ii)Executive’s bonus target will be reviewed annually and may be adjusted by the Board, provided however, that the bonus target may only be reduced upon Executive’s written consent. Except as expressly provided in Section 3(e) below, Executive must be employed on the date the bonus is awarded to be eligible for the bonus payment; the bonus will not be pro-rated in the event Executive’s employment is terminated for any reason. Any earned bonus shall be paid to Executive fully in cash promptly following the completion of the Company’s audit for the relevant performance period, but in any event no later than the completion of the calendar year following the fiscal year for which such bonus was earned. Executive’s bonus with respect to the 2022 fiscal year will be prorated, calculated based on the bonus that Executive would have received based on actual performance multiplied by a fraction, the numerator of which is the number of days during the 2022 fiscal year that Executive was employed and the denominator of which is the total number of days during the 2022 fiscal year.
(c)Equity. Subject to approval by the Committee, as soon as reasonably practicable following the Effective Date, Executive shall be granted 300,000 performance stock units of the Company (the “PSUs”) pursuant to the Company’s 2021 Long-Term Incentive Plan (the “Plan”). The PSUs will vest in accordance with and otherwise be subject to the terms and conditions of the Plan and the PSU Agreement attached hereto as Exhibit A.
(d)Benefits. During employment hereunder, Executive shall be entitled to receive those medical, dental, vision and insurance benefits which are routinely made available to executive officers of the Company.
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(e)Expense Reimbursement. The Company will reimburse Executive for all reasonable business expenses Executive incurs in conducting her duties hereunder, pursuant to the Company’s usual expense reimbursement policies, but in no event later than thirty (30) days after the end of the calendar month following the month in which such expenses were incurred by Executive; provided that Executive supplies the appropriate substantiation for such expenses no later than the end of the calendar month following the month in which such expenses were incurred by Executive. The Company shall pay directly to Executive’s financial advisor and attorneys, including tax counsel, the reasonable fees and expenses incurred by such financial advisor and attorneys in the review and negotiation of this Agreement and the agreements and documents referred to in Section 2(c) hereof to which Executive is a party in an aggregate amount for all such fees and expenses not to exceed $10,000, within 30 days after Executive submits documentation supporting such fees and expenses.
(f)Relocation.
(i)Executive agrees that she shall relocate to the Los Angeles, California metropolitan area at her convenience following the Effective Date. In connection therewith, Executive shall be eligible to receive the Company’s standard relocation benefits package in accordance with the terms and conditions thereof but without duplication of the relocation benefits described in Section 2(f)(ii) below.
(ii)Promptly following Executive’s presentation to the Company of reasonable supporting documentation therefor, the Company shall reimburse Executive for the reasonably incurred out-of-pocket monthly cost of maintaining a temporary residence in the Los Angeles, California area during the period from the Effective Date until the first to occur of the six-month anniversary of the Effective Date and Executive’s purchase or lease of her permanent residence in the Los Angeles, California area. Promptly following Executive’s presentation to the Company of reasonable supporting documentation therefor, the Company shall also reimburse Executive for the reasonably incurred out-of-pocket cost in connection with moving Executive’s household from her current principal residence to the Los Angeles, California area (including any cost of moving Executive’s household from temporary to permanent housing in the Los Angeles, California area and the broker fees on the sale of her current principal residence, but not including any losses, fix-up costs or similar costs in connection with the sale of her current principal residence or purchase of her residence in the Los Angeles, California area). Each payment made to Executive under this Section 2(f) will be fully grossed up for all applicable taxes withheld or otherwise payable by Executive (determined after giving effect to any available deductions for relocation expenses Executive incurs), including taxes payable by Executive on such grossed up amount, with such gross up payment being made within 60 days of the end of each calendar year in which any relocation payment is made to Executive. Any reimbursements contemplated by this Section 2(f) will be paid by the Company to Executive pursuant to the Company’s usual expense reimbursement policies, but in no event later than thirty (30) days after the end of the calendar month following the month in which such expenses are submitted by Executive.
(g)Personal Time Off. Executive shall be entitled to paid time off in accordance with the Company’s policies applicable to executives.
3.Termination.
(a)Termination by the Company. Executive’s employment with the Company is at will and may be terminated by the Company at any time and for any reason, or for no reason, including, but not limited to, under the following conditions (except that any termination for “Cause” as defined below may only be made as provided in clause (i) below):
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(i)Termination for Cause. The Board may terminate Executive’s employment under this Agreement for “Cause” (as defined below) by delivery of written notice to Executive. Any notice of termination given pursuant to this Section 3(a) shall effect termination as of the date of the notice, or as of such other date as specified in the notice.
(ii)Termination by the Company without Cause. The Company may terminate Executive’s employment under this Agreement without Cause at any time and for any reason, or for no reason. Such termination shall be effective on the date Executive is so informed, or as otherwise specified by the Company, but not later than 30 days after such notice.
(b)Termination by Executive. Executive’s employment with the Company is at will and may be terminated by Executive at any time and for any reason, or for no reason, including, but not limited to, under the following conditions:
(i)Termination by Executive for Good Reason. Executive may terminate her employment under this Agreement for “Good Reason” (as defined below) in accordance with the procedures specified in Section 3(f)(ii) below.
(ii)Termination by Executive Without Good Reason. Executive may terminate Executive’s employment hereunder for other than Good Reason upon at least 60 days’ advance written notice to the Company. The Company may shorten or eliminate such 60 day notice period, which will not be considered to be a termination by the Company without Cause under Section 3(a)(ii).
(c)Termination for Death or Complete Disability. Executive’s employment with the Company shall automatically terminate effective upon the date of Executive’s death or Complete Disability (as defined below).
(d)Termination by Mutual Agreement of the Parties. Executive’s employment with the Company may be terminated at any time upon a mutual agreement in writing of the Parties. Any such termination of employment shall have the consequences specified in such agreement.
(e)Compensation Upon Termination.
(i)Death or Complete Disability. If, during the Term of this Agreement, Executive’s employment shall be terminated by death or Complete Disability as provided in Section 3(f)(i), the Company shall pay to Executive, or to Executive’s heirs, as applicable, (1) Executive’s Base Salary and accrued and unused vacation benefits earned through the date of termination at the rate in effect at the time of termination, less standard deductions and withholdings, (2) unreimbursed business expenses in accordance with Section 2(e) hereof, (3) unreimbursed relocation payments in accordance with Section 2(f) hereof (including any gross up payment referred to therein), payable in accordance therewith, and (4) any earned but unpaid annual bonuses for performance periods which ended on or prior to the date of termination, to be paid at the time provided in Section 2(b) hereof, but in no event later than 60 days following the last day of the fiscal year in which such termination occurs (collectively, the “Accrued Amounts”). In addition, Executive shall continue to have (x) the rights provided under Section 8 below, and (y) Executive's rights with respect to the PSUs granted to her under the PSU Agreement, in each case, in accordance with and subject to the terms and conditions of the PSU Agreement and the Plan (collectively, the “Continuing Rights”). The Company shall thereafter have no further obligations to Executive and/or to Executive’s heirs under this Agreement, except as otherwise provided by law.
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(ii)With Cause or Without Good Reason. If, during the Term of this Agreement, Executive’s employment is terminated by the Board for Cause, or Executive terminates Executive’s employment hereunder without Good Reason, the Company shall pay Executive the Accrued Amounts and Executive shall have the Continuing Rights. The Company shall thereafter have no further obligations to Executive under this Agreement, except as otherwise provided by law.
(iii)Without Cause or For Good Reason. If, during the Term of this Agreement, the Company terminates Executive’s employment without Cause or Executive resigns Executive’s employment for Good Reason, the Company shall pay Executive the Accrued Amounts and Executive shall have the Continuing Rights. In addition, subject to Executive (A) timely complying with the requirements of Section 4 of this Agreement, (B) furnishing to the Company an executed waiver and release of claims in the form attached hereto as Exhibit B (or in such other form as may be specified by the Company in order to comply with then-existing legal requirements to effect a valid release of claims) (the “Release”) no later than forty-five (45) days following Executive’s termination; and (C) allowing the Release to become effective in accordance with its terms, then Executive shall be entitled to the following severance benefits:
(1)payment of an amount equal to 200% of Executive’s Base Salary as in effect at the time of termination (but determined prior to any reduction in Base Salary that would give rise to Executive’s right to voluntarily resign for “Good Reason” pursuant to Section 3(f)(ii)), less required deductions and withholdings, payable in equal installments in accordance with the Company’s regular payroll practices over the twelve (12) month period following the date of Executive’s separation from service; provided, however, that any amounts otherwise scheduled to be paid prior to the effectiveness of the Release shall instead accrue and be paid in the first payroll period following the Release effective date, with the remainder of the payments to be made as originally scheduled, subject to any delay in payment required under Section 7; and
(2)if Executive is eligible for and timely elects continued coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 or analogous provisions of state law (collectively, “COBRA”) for herself and/or her eligible dependents under the Company’s group health insurance plans following the termination of her employment, then the Company shall pay the COBRA premiums necessary to continue the health insurance coverage in effect for Executive and/or her eligible dependents as of the termination date, until the earliest of: (A) thirty-six (36) months following Executive’s termination date (the “COBRA Severance Period”); (B) the expiration of Executive’s eligibility for continuation coverage under COBRA; and (C) the date when Executive becomes eligible for substantially equivalent group health insurance coverage in connection with new employment (such period from the termination date through the earliest of (A) through (C), the “COBRA Payment Period”). If Executive becomes eligible for coverage under another employer’s group health plan, or otherwise ceases to be eligible for COBRA coverage during the COBRA Severance Period, Executive must immediately notify the Company of such event, and the Company’s obligation to pay COBRA premiums on Executive’s behalf shall cease. Notwithstanding the foregoing, if the Company determines, in its sole discretion, that the Company cannot provide the COBRA premium benefits without potentially it or Executive incurring financial costs or penalties under applicable law (including, without limitation, Section 2716 of the Public Health Service Act), the Company shall in lieu thereof pay Executive a taxable cash amount, which payment shall be made regardless of whether Executive or her eligible dependents elect COBRA continuation coverage (the “Health Care Benefit Payment”). The Health Care Benefit Payment shall be paid in monthly or bi-weekly installments on the same schedule that the COBRA premiums would otherwise have been paid to the insurer. The Health
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Care Benefit Payment shall be equal to the amount that the Company otherwise would have paid for COBRA insurance premiums (which amount shall be calculated based on the COBRA premium for the first month of coverage), and shall be paid until the earlier of (i) expiration of the COBRA Severance Period or (ii) the date that Executive becomes eligible for substantially equivalent group health insurance coverage in connection with new employment. For purposes of this Agreement, any COBRA premiums that are payable by the Company shall not include any amounts payable by Executive under an Internal Revenue Code Section 125 health care reimbursement plan, which amounts, if any, are the sole responsibility of Executive.
(f)Definitions. For purposes of this Agreement, the following terms shall have the following meanings:
(i)Complete Disability. “Complete Disability” shall mean the inability of Executive to perform Executive’s duties under this Agreement, even with reasonable accommodation, because Executive has become permanently disabled within the meaning of any policy of disability income insurance covering employees of the Company then in force. In the event the Company has no policy of disability income insurance covering employees of the Company in force when Executive becomes disabled, the term “Complete Disability” shall mean the inability of Executive to perform Executive’s duties under this Agreement, whether with or without reasonable accommodation, by reason of any incapacity, physical or mental, which the Company, based upon medical advice or an opinion provided by a licensed physician reasonably acceptable to both the Company and Executive, determines to have incapacitated Executive from satisfactorily performing all of Executive’s usual services for the Company, with or without reasonable accommodation, for a period of at least one hundred twenty (120) days during any twelve (12) month period (whether or not consecutive). Based upon such medical advice or opinion, the determination of the Company shall be final and binding and the date such determination is made shall be the date of such Complete Disability for purposes of this Agreement.
(ii)Good Reason. “Good Reason” for Executive to terminate Executive’s employment hereunder shall mean the occurrence of any of the following events without Executive’s consent:
(1)a material reduction in Executive’s duties, authority, or responsibilities relative to Executive’s duties, authority, or responsibilities in effect immediately prior to such reduction, including, without limitation, removal of Executive as CEO of the Company, but not including Executive’s failure to be elected to the Board following nomination as contemplated by Section 1(a);
(2)a material reduction of Executive’s Base Salary as initially set forth herein or as the same may be increased from time to time; or
(3)any material breach of this Agreement by the Company;
provided, however, that such termination by Executive shall only be deemed for Good Reason pursuant to the foregoing definition if: (A) Executive gives the Company written notice of the intent to terminate for Good Reason within thirty (30) days following the first occurrence of the condition(s) that Executive believes constitutes Good Reason, which notice shall describe such condition(s); (B) the Company fails to remedy such condition(s) within thirty (30) days following receipt of the written notice (the “Cure Period”); and (C) Executive terminates her employment within thirty (30) days following the end of the Cure Period.
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(iii)Affiliate. “Affiliate” means, with respect to any specific entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such specified entity.
(iv)Cause. “Cause” for the Board to terminate Executive’s employment hereunder shall mean the occurrence of any of the following events, as determined by the Board, in its sole discretion:
(1)Executive’s willful misconduct, including, but not limited to, dishonesty which materially and adversely reflects upon Executive’s ability to perform Executive’s duties for the Company,
(2)Executive’s conviction of, or the entry of a pleading of guilty or nolo contendere by Executive to, any crime involving moral turpitude or any felony,
(3)Executive’s fraud, embezzlement or theft against the Company,
(4)Executive’s material breach of any material provision of any employment contract, assignment of inventions, confidentiality and/or nondisclosure agreement between Executive and the Company or any material written policy or code of conduct of the Company, or
(5)Executive’s willful and habitual failure to attend to Executive’s duties, after written notice to Executive and no less than a 90 day period to cure such failure provided such failure to perform is subject to cure with the passage of time.
Notwithstanding the foregoing, Executive’s employment shall not be terminated for Cause under Clause (4) or (5) unless and until Executive is given written notice by the Company of the events giving rise to a termination for Cause and at least ten (10) calendar days to cure such circumstances (if capable of cure).
(g)Company Positions. Upon any termination of employment with the Company, Executive will resign, and will be deemed to have automatically resigned, without the requirement of any other action, from all positions with the Company and its subsidiaries (the “Company Group”), including as a member of the Board.
4.Returning Company Property. In the event of Executive’s termination of employment for any reason, Executive shall, prior to or on such termination date in the event of Executive’s resignation for any reason, or no later than five (5) days following such termination date in the event of Executive’s termination of employment for any other reason, deliver to the Company (and will not maintain possession of or deliver to anyone else) any and all devices, records, data, data bases software, software documentation, laboratory notebooks, notes, reports, proposals, lists, customer lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any of the above aforementioned items belonging to any member of the Company Group or their successors or assigns.
5.Confidential and Proprietary Information. As a condition of continued employment Executive agrees to abide by the terms of the Proprietary Information and Inventions Agreement attached hereto as Exhibit C (“PIIA”). Executive recognizes that Executive’s employment with the Company will involve contact with information of substantial value to the Company Group, which is not generally known in the trade, and which gives the
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Company Group an advantage over its competitors who do not know or use it, including but not limited to, techniques, designs, drawings, processes, inventions, know how, strategies, marketing, and/or advertising plans or arrangements, developments, equipment, prototypes, sales, supplier, service provider, vendor, distributor and customer information, and business and financial information relating to the business, products, services, practices and techniques of the Company Group (hereinafter referred to as “Confidential and Proprietary Information”). Executive will at all times regard and preserve as confidential such Confidential and Proprietary Information obtained by Executive from whatever source and will not, either during Executive’s employment with the Company Group or thereafter, publish or disclose any part of such Confidential and Proprietary Information in any manner at any time, or use the same except on behalf of the Company Group, without the prior written consent of the Company.
6.Conflict Of Interest.
(a)Loyalty. During the Term, Executive shall devote her full time and energies to fulfill all responsibilities to the Company in the capacity set forth in Section 1(a); provided that Executive shall be permitted to engage in charitable and other activities, including managing her personal and family activities as long as such activities do not materially interfere with her duties to the Company, and, with the prior written consent of the Board (which may be granted or withheld in its sole discretion), Executive may serve on outside boards of directors so long as such service does not create a potential business or fiduciary conflict or materially interfere with the performance of her duties to the Company.
(b)Covenant Not to Compete. During the Term and during any period thereafter in which Executive is receiving severance benefits from the Company pursuant to Section 3(e)(iii)(1) hereof, Executive shall not engage in competition with the Company Group or any its Affiliates, either directly or indirectly, in any manner or capacity, as adviser, principal, agent, affiliate, promoter, partner, officer, director, employee, stockholder, owner, co-owner, consultant, or member of any association or otherwise, in any phase of the business of developing, manufacturing and marketing of products or services that are in the same field of use or which otherwise compete with the products or services of the Company Group, except with the prior written consent of the Board; provided that (i) in the event of a Change of Control (as such term is defined in the Plan), the foregoing restrictions shall only apply to the businesses the Company Group was engaged in (and actively preparing to engage in as evidenced by the Company’s business plans and activities undertaken prior to any such Change of Control) immediately prior to such Change of Control transaction, and (ii) except as otherwise provided in this Agreement, the PIIA, or applicable state or federal law governing the use of trade secrets or other confidential information or misappropriation of customers or other business relationships, there are no other restrictions on Executive’s activities following her termination of employment with the Company. For the avoidance of doubt, Executive’s continued service on the board of directors of the two private companies on which she currently serves (as previously disclosed by Executive to the Board) shall not violate the provisions of this Section 6(b). In addition, Executive’s continued ownership of securities of those private investments previously disclosed by Executive to the Board or in professionally managed funds over which Executive does not have control or discretion in investment decisions, or as a passive investment, of less than two percent (2%) of the outstanding shares of capital stock of any corporation with one or more classes of its capital stock listed on a national securities exchange or publicly traded on a national securities exchange or in the over-the-counter market shall not constitute a breach of this Section 6(b). This Section 6(b) will not apply following Executive’s termination of employment with the Company to the extent Executive’s subsequent employment is based in California.
(c)Agreement not to Participate in the Company’s Competitors. During the Term, Executive agrees not to acquire, assume or participate in, directly or indirectly,
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any position, investment or interest known by Executive to be adverse or antagonistic to the Company, its business, or prospects, financial or otherwise, or in any company, person, or entity that is, directly or indirectly, in competition with the business of the Company or any of its Affiliates. The continued ownership by Executive of securities of those private investments previously disclosed by Executive to the Board or in professionally managed funds over which Executive does not have control or discretion in investment decisions, or as a passive investment, of less than two percent (2%) of the outstanding shares of capital stock of any corporation with one or more classes of its capital stock listed on a national securities exchange or publicly traded on a national securities exchange or in the over-the-counter market shall not constitute a breach of this Section 6(c).
7.Application of Internal Revenue Code Section 409A. Notwithstanding anything to the contrary herein, the following provisions apply to the extent severance benefits provided herein are subject to Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively “Section 409A”). Severance benefits shall not commence until Executive has a “separation from service” for purposes of Section 409A. Each installment of severance benefits is a separate “payment” for purposes of Treas. Reg. Section 1.409A-2(b)(2)(i), and the severance benefits are intended to satisfy the exemptions from application of Section 409A to the maximum extent applicable. However, if such exemptions are not available and Executive is, upon separation from service, a “specified employee” for purposes of Section 409A, then, solely to the extent necessary to avoid adverse personal tax consequences under Section 409A, the timing of the severance benefits payments shall be delayed until the earlier of (i) six (6) months and one day after Executive’s separation from service or (ii) Executive’s death.
Executive shall receive severance benefits only if Executive timely complies with the requirements of Section 4 of this Agreement and executes and returns to the Company, within the applicable time period set forth therein but in no event more than forty-five (45) days following the date of separation from service, the Release, and permits such Release to become effective in accordance with its terms (such latest permitted date, the “Release Deadline”). If the severance benefits are not covered by one or more exemptions from the application of Section 409A and the Release could become effective in the calendar year following the calendar year in which Executive separates from service, the Release will not be deemed effective any earlier than the Release Deadline (i.e., the 52nd day following the separation from service date). None of the severance benefits will be paid or otherwise delivered prior to the effective date (or deemed effective date) of the Release. Except to the minimum extent that payments must be delayed because Executive is a “specified employee” or until the effectiveness or deemed effectiveness of the Release, all amounts will be paid as soon as practicable in accordance with the Company’s normal payroll practices.
It is the intent of the Parties that this Agreement shall be interpreted, construed and operated in compliance with any applicable provisions of Section 409A and the Treasury Regulations promulgated thereunder. To the extent that future regulations or guidance issued pursuant to Section 409A or the Treasury Regulations promulgated thereunder require any amendments to this Agreement as to the form and timing of the payment of benefits hereunder, the Parties agree that they will consent to, and make, such amendments, subject, in each such case, to the preservation of the Parties’ respective economic interests and legal rights and obligations hereunder and provided such amendment does not impose on Executive any additional taxes, interest or penalties under Section 409A. For the avoidance of doubt, Executive’s prior written consent shall be necessary with respect to any amendments to PSU Agreement.
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With respect to any payment constituting nonqualified deferred compensation subject to Section 409A: (A) all expenses or other reimbursements provided herein shall be payable in accordance with the Company’s policies in effect from time to time, but in any event shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by Executive; (B) no such reimbursement or expenses eligible for reimbursement in any taxable year shall in any way affect the expenses eligible for reimbursement in any other taxable year; and (C) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchanged for another benefit.
8.Indemnification. The Company hereby covenants and agrees to indemnify Executive and hold Executive harmless to the fullest extent permitted by applicable laws against and in respect to any and all actions, suits, proceedings, claims, demands, judgments, losses, damages and reasonable out-of-pocket costs and expenses (including reasonable and documented out-of-pocket attorney’s fees and expenses) resulting from Executive’s good faith performance of Executive’s duties and obligations with the Company Group or as the fiduciary of any benefit plan of the Company Group. To the extent permitted by applicable laws, the Company, within thirty (30) days of presentation of invoices, shall reimburse Executive for all reasonable and documented out-of-pocket legal fees and disbursements incurred by Executive in connection with any such indemnifiable matter; provided that Executive shall consult with the Company prior to selecting Executive’s counsel and shall obtain the Company’s approval, which approval shall not be unreasonably withheld, of such counsel. In addition, the Company shall cover Executive under its directors and officers liability insurance policy both during the Term and during the six-year period thereafter in the same amount and to the same extent, if any, as the Company covers its other officers and directors during any such period of time. In no event shall Executive be liable to the Company or any member of the Company Group as a result of the performance of Executive’s duties hereunder except as a result of Executive’s willful misconduct or knowing violation of applicable law. The Company shall ensure that its constituent documents shall at all times provide for the maximum limitation on liability for their officers and directors that is permitted by applicable law as in effect from time to time.
9.Certain Tax Matters. Notwithstanding any other provision of this Agreement to the contrary, to the extent that any payment or distribution of any type to or for Executive by the Company (or by any Affiliate of the Company, any person or entity who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company’s assets (within the meaning of Section 280G of the Code and the regulations thereunder)), or any Affiliate of such person or entity, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Total Payments”), is or will be subject to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then the Total Payments shall be reduced (but not below zero) if and to the extent that a reduction in the Total Payments would result in Executive retaining a larger amount, on an after-tax basis (taking into account federal, state and local income taxes and the Excise Tax), than if Executive received the entire amount of such Total Payments. The determination of whether the Total Payments shall be reduced and the amount of such reduction shall be provided to Executive by the Company, together with detailed supporting calculations and documentation as soon as practicable following the occurrence of the relevant triggering event, and, absent manifest error, such determination shall be final and binding upon Executive and the Company. In the event a portion of the Total Payments is required to be reduced, they shall be reduced in the following order of priority in a manner consistent with Section 409A: (a) first from cash compensation that is exempt from Section 409A, (b) next from equity compensation that is exempt from Section 409A, then (c) from payments that are subject to Section 409A in reverse chronological order of scheduled distribution.
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10.Assignment. This Agreement may not be assigned by Executive. This Agreement shall bind and inure to the benefit of the successors and assigns of the Company, as well as Executive’s heirs, executors, administrators, and legal representatives. The Company shall obtain from any of its successors, before any such succession takes place, an agreement to assume the obligations of the Company and perform all of the terms and conditions of this Agreement applicable to the Company. For this purpose, “successor” means any person, firm, corporation or other business entity which at any time, whether by purchase, merger or otherwise, directly or indirectly acquires all or substantially all of the assets or business of the Company.
11.Notices. All notices or demands of any kind required or permitted to be given by any Party under this Agreement shall be given in writing and shall be personally delivered (and receipted for) or mailed by certified mail, return receipt requested, postage prepaid, addressed as follows:
To the Company: Torrid Holdings Inc.
18305 East San Jose Avenue
City of Industry, California 91748
Attn: Head of Human Resources
To Executive: At the address then on file with the Company
Any such written notice shall be deemed given on the earlier of the date on which such notice is personally delivered or three (3) days after its deposit in the United States mail as specified above. Any Party may change its address for notices by giving notice to the other Parties in the manner specified in this section.
12.Waiver. No term, covenant or condition of this Agreement or any breach thereof shall be deemed waived, except with the written consent of the Party against whom the waiver is claimed, and any waiver or any such term, covenant, condition or breach shall not be deemed to be a waiver of any preceding or succeeding breach of the same or any other term, covenant, condition or breach.
13.Choice Of Law; Waiver of Jury Trial. This Agreement will be governed by the internal laws of the State of Delaware. Each of the Parties submits to the co-exclusive jurisdiction of the United States District Court and any Delaware state court sitting in Wilmington, Delaware over any lawsuit under this Agreement and waives any objection based on venue or forum non conveniens with respect to any action instituted therein. Executive acknowledges and agrees that Executive was represented by counsel in connection with the negotiation of this Agreement. Executive acknowledges and agrees that, pursuant to Section 925 of the California Labor Code, (i) Executive has waived the application of California law to this Agreement and any disputes under this Agreement, (ii) Executive has waived any right to have any disputes under this Agreement adjudicated in California, and (iii) Executive acknowledges and agrees that any disputes under this Agreement shall not be deemed to be a controversy arising in California. Each of the Parties waives the necessity for personal service of any and all process upon it and consents that all such service of process may be made by registered or certified mail (return receipt requested), in each case directed to such party in accordance with Section 12 hereof, and service so made will be deemed to be completed on the date of delivery. Each of the undersigned consents to service of process as aforesaid. Nothing in this Agreement will prohibit personal service in lieu of the service by mail contemplated herein. THE PARTIES
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HERETO HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
14.Severability. The finding by a court of competent jurisdiction of the unenforceability, invalidity or illegality of any provision of this Agreement shall not render any other provision of this Agreement unenforceable, invalid or illegal. Such court shall have the authority to modify or replace the invalid or unenforceable term or provision with a valid and enforceable term or provision, which most accurately represents the Parties’ intention with respect to the invalid or unenforceable term or provision.
15.Complete Agreement. This Agreement, including the Exhibits hereto, and the Plan and the PSU Agreement, constitute the entire agreement between the Parties and their respective Affiliates in connection with the subject matter hereof and supersedes any and all prior or contemporaneous oral and written agreements or understandings among the Parties and their respective Affiliates. This Agreement may be modified or terminated only by written agreement signed by each of the Parties.
16.Interpretation; Construction. The headings set forth in this Agreement are for convenience of reference only and shall not be used in interpreting this Agreement. This Agreement has been drafted by legal counsel representing the Company, but Executive has been encouraged to consult with, and has consulted with, Executive’s own independent counsel and tax advisors with respect to the terms of this Agreement. The Parties acknowledge that each Party and its counsel has reviewed and revised, or had an opportunity to review and revise, this Agreement, and any rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement.
17.Representations and Warranties. Executive represents and warrants that Executive is not restricted or prohibited, contractually or otherwise, from entering into and performing each of the terms and covenants contained in this Agreement, and that Executive’s execution and performance of this Agreement will not violate or breach any other agreements between Executive and any other person or entity.
18.Trade Secrets of Others. It is the understanding of both the Company and Executive that Executive shall not divulge to the Company and/or its Affiliates any confidential information or trade secrets belonging to others, including Executive’s former employers, nor shall the Company and/or its Affiliates seek to elicit from Executive any such information. Consistent with the foregoing, Executive shall not provide to the Company and/or its Affiliates, and the Company and/or its Affiliates shall not request, any documents or copies of documents containing such information. 18 U.S.C. § 1833(b) provides: “An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that—(A) is made—(i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.” Nothing in this Agreement (including the PIAA) is intended to conflict with 18 U.S.C. § 1833(b) or create liability for disclosures of trade secrets that are expressly allowed by 18 U.S.C. § 1833(b). Accordingly, the Parties to this Agreement have the right to disclose in confidence trade secrets to federal, state, and local government officials, or to an attorney, for the sole purpose of reporting or investigating a suspected violation of law. The Parties also have the right to disclose trade secrets in a document filed in a lawsuit or other proceeding, but only if the filing is made under seal and protected from public disclosure.
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19.Whistleblower Protection. Notwithstanding anything to the contrary contained herein, no provision of this Agreement (including the PIAA) shall be interpreted so as to impede Executive (or any other individual) from reporting possible violations of federal law or regulation to any governmental agency or entity, including, but not limited to, the Department of Justice, the Securities and Exchange Commission, the Congress, and any agency Inspector General, or making other disclosures under the whistleblower provisions of applicable law or regulation. Executive does not need the prior authorization of the Company to make any such reports or disclosures and Executive shall not be required to notify the Company that such reports or disclosures have been made.
20.Advertising Waiver. Executive agrees to permit the Company, and persons or other organizations authorized by the Company, to use, publish and distribute advertising or sales promotional literature concerning the products and/or services of the Company, or the machinery and equipment used in the provision thereof, in which Executive’s name and/or pictures of Executive taken in the course of Executive’s provision of services to the Company appear. Executive hereby waives and releases any claim or right Executive may otherwise have arising out of such use, publication or distribution.
21.Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, all of which together shall contribute one and the same instrument.
22.Miscellaneous. Executive acknowledges full understanding of the matters set forth herein and the obligations undertaken upon the execution hereof.
[Signatures only on following page.]
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IN WITNESS WHEREOF, the parties have executed this EXECUTIVE EMPLOYMENT AGREEMENT as of the date first written above.
TORRID HOLDINGS INC.
By: ______/s/ Brian Park ___________________________________
Name: Brian Park
Title: Secretary
EXECUTIVE:
__________/s/ Lisa M. Harper_________________________________
LISA M. HARPER
EXHIBIT A
PERFORMANCE STOCK UNIT AGREEMENT
EXHIBIT B
RELEASE AND WAIVER OF CLAIMS
EXHIBIT C
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
PERFORMANCE STOCK UNIT AGREEMENT
PURSUANT TO THE
TORRID HOLDINGS INC. 2021 LONG-TERM INCENTIVE PLAN
* * * * *
Participant: Lisa Harper
Grant Date: May 3, 2022
Number of Performance Stock Units Granted: 300,000
Performance Vesting Schedule:
| VWAP Target | Performance Vesting Percentage | ||||
| $15 | 25% | ||||
| $20 | 50% | ||||
| $25 | 75% | ||||
| $30 | 100% | ||||
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THIS PERFORMANCE STOCK UNIT AWARD AGREEMENT (this “Agreement”), dated as of the Grant Date specified above, is entered into by and between Torrid Holdings Inc., a Delaware corporation (the “Company”), and the Participant specified above, pursuant to the Torrid Holdings Inc. 2021 Long-Term Incentive Plan, as in effect and as amended from time to time (the “Plan”), which is administered by the Committee; and
WHEREAS, it has been determined under the Plan that it would be in the best interests of the Company to grant the Performance Stock Units (“PSUs”) provided herein to the Participant.
NOW, THEREFORE, in consideration of the mutual covenants and promises hereinafter set forth and for other good and valuable consideration, the parties hereto hereby mutually covenant and agree as follows:
1.Incorporation By Reference; Plan Document Receipt. This Agreement is subject in all respects to the terms and provisions of the Plan (including, without limitation, any amendments thereto adopted at any time and from time to time unless such amendments are expressly intended not to apply to the Award provided hereunder), all of which terms and provisions are made a part of and incorporated in this Agreement as if they were each expressly set forth herein. Any capitalized term not defined in this Agreement shall have the same meaning as is ascribed thereto in the Plan. The Participant hereby acknowledges receipt of a copy of the Plan and that the Participant has read the Plan carefully and fully understands its
content. In the event of any conflict between the terms of this Agreement and the terms of the Plan, the terms of the Plan shall control.
2.Grant of Performance Stock Unit Award. The Company hereby grants to the Participant, as of the Grant Date specified above, the number of PSUs specified above. Except as otherwise provided by the Plan, the Participant agrees and understands that nothing contained in this Agreement provides, or is intended to provide, the Participant with any protection against potential future dilution of the Participant’s interest in the Company for any reason, and no adjustments shall be made for dividends in cash or other property, distributions or other rights in respect of the shares of Common Stock underlying the PSUs, except as otherwise specifically provided for in the Plan or this Agreement.
3.Vesting.
(a)General. The PSUs will be subject to time and performance vesting, and a PSU will be considered vested only if it has both time- and performance-vested in accordance with this Section 3. The aggregate number of PSUs (taking into account any previously vested PSUs) that will vest as of any particular time shall be equal to the product of (i) the aggregate number of PSUs granted hereby, (ii) the Time Vesting Percentage (as defined below) and (ii) the applicable Performance Vesting Percentage (as defined below). There shall be no proportionate or partial vesting in the periods prior to each time vesting date and all time vesting shall occur only on the appropriate time vesting date, subject to the Participant’s continued service with the Company or any of its Subsidiaries on each applicable time vesting date. There shall be no proportionate or partial vesting with respect to the performance vesting set forth herein, which performance vesting shall be fully subject to satisfaction of the VWAP Targets set forth herein.
(b)Vesting Percentages. The “Time Vesting Percentage” is (i) 0% until the first anniversary of the Grant Date, (ii) 33.33% on the first anniversary of the Grant Date until the second anniversary of the Grant Date, (iii) 66.66% on the second anniversary of the Grant Date until the third anniversary of the Grant Date, and (iv) 100% on after the third anniversary of the Grant Date; provided that, in each such case, the Participant has not had a Termination of Service on or prior to the applicable vesting date; provided further that, from and after the consummation of a Change in Control, the Time Vesting Percentage shall be deemed to be 100% so long as the Participant has not had a Termination of Service on or prior to the date such Change in Control is consummated. The “Performance Vesting Percentage” is the applicable percentage from the Performance Vesting Schedule set forth above, which will be determined based upon whether the Stock Price equals or exceeds the applicable VWAP Target set forth in the Performance Vesting Schedule set forth above. The “Stock Price” means the volume-weighted average trading price per share of Common Stock as reported by the principal exchange on which such Common Stock is traded for any 30 consecutive trading day period beginning on the Grant Date and ending on the third anniversary of the Grant Date; provided that in the event of the consummation of a Change in Control, “Stock Price” means the Change in Control Price.
(c)VWAP Target Adjustment. Subject to Section 5 hereof (and without duplication thereof), in the event that any dividend or other distribution (whether in the form of cash, Common Stock, other securities, or other property), recapitalization, stock split, reverse stock split, rights offering, reorganization, merger, consolidation, split-up, spin-off, split-off, combination, subdivision, repurchase, or exchange of Common Stock or other securities of the Company, issuance of warrants or other rights to purchase Common Stock or other securities of the Company, or other similar corporate transaction or event affects the outstanding Common Stock, the Administrator will equitably adjust the VWAP Targets to the extent the Administrator deems necessary to prevent enlargement or dilution of the Participant’s rights with respect to the PSUs.
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(d)Committee Discretion to Accelerate Vesting. Notwithstanding the foregoing, the Committee may, in its sole discretion, provide for accelerated vesting of the PSUs at any time and for any reason.
(e)Forfeiture. Subject to Section 3(d), all PSUs that have not vested as set forth in Section 3(a) shall be immediately forfeited upon the earliest of (i) the Participant’s Termination of Service for any reason, (ii) the third anniversary of the Grant Date, and (iii) the consummation of a Change in Control.
4.Delivery of Shares.
(a)General. Subject to the provisions of Sections 4(b) and 4(c) hereof, within thirty (30) days following the vesting of the PSUs pursuant to Section 3(a), the Participant shall receive the number of shares of Common Stock that correspond to the number of PSUs that have become vested on the applicable vesting date.
(b)Blackout Periods. If the Participant is subject to any Company “blackout” policy or other trading restriction imposed by the Company on the date such distribution would otherwise be made pursuant to Section 4(a) hereof, such distribution shall be instead made on the earlier of (i) the date that the Participant is not subject to any such policy or restriction and (ii) the later of (A) the end of the calendar year in which such distribution would otherwise have been made and (B) a date that is immediately prior to the expiration of two and one-half months following the date such distribution would otherwise have been made hereunder.
(c)Deferrals. If permitted by the Company, the Participant may elect, subject to the terms and conditions of the Plan and any other applicable written plan or procedure adopted by the Company from time to time for purposes of such election, to defer the distribution of all or any portion of the shares of Common Stock that would otherwise be distributed to the Participant hereunder (the “Deferred Shares”), consistent with the requirements of Section 409A of the Code. Upon the vesting of PSUs that have been so deferred, the applicable number of Deferred Shares shall be credited to a bookkeeping account established on the Participant’s behalf (the “Account”). Subject to Section 5 hereof, the number of shares of Common Stock equal to the number of Deferred Shares credited to the Participant’s Account shall be distributed to the Participant in accordance with the terms and conditions of the Plan and the other applicable written plans or procedures of the Company, consistent with the requirements of Section 409A of the Code.
5.Dividends; Rights as Stockholder. Cash dividends on shares of Common Stock issuable hereunder shall be credited to a dividend book entry account on behalf of the Participant with respect to each PSU granted to the Participant, provided that such cash dividends shall not be deemed to be reinvested in shares of Common Stock and shall be held uninvested and without interest and paid in cash at the same time that the shares of Common Stock underlying the PSUs are delivered to the Participant in accordance with the provisions hereof. Stock dividends on shares of Common Stock shall be credited to a dividend book entry account on behalf of the Participant with respect to each PSU granted to the Participant, provided that such stock dividends shall be paid in shares of Common Stock at the same time that the shares of Common Stock underlying the PSUs are delivered to the Participant in accordance with the provisions hereof. Except as otherwise provided herein, the Participant shall have no rights as a stockholder with respect to any shares of Common Stock covered by any PSU unless and until the Participant has become the holder of record of such shares.
6.Non-Transferability. No portion of the PSUs may be sold, assigned, transferred, encumbered, hypothecated or pledged by the Participant, other than to the Company
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as a result of forfeiture of the PSUs as provided herein, unless and until the Participant has become the holder of record of the vested shares of Common Stock issuable hereunder.
7.Governing Law. All questions concerning the construction, validity and interpretation of this Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the choice of law principles thereof.
8.Withholding of Tax. The Company shall have the power and the right to deduct or withhold, or require the Participant to remit to the Company, an amount sufficient to satisfy any federal, state, local and foreign taxes of any kind (including, but not limited to, the Participant’s FICA and SDI obligations) which the Company, in its sole discretion, deems necessary to be withheld or remitted to comply with the Code and/or any other applicable law, rule or regulation with respect to the PSUs and, if the Participant fails to do so, the Company may otherwise refuse to issue or transfer any shares of Common Stock otherwise required to be issued pursuant to this Agreement. Any minimum statutorily required withholding obligation with regard to the Participant may be satisfied by reducing the amount of cash or shares of Common Stock otherwise deliverable to the Participant hereunder.
9.Legend. The Company may at any time place legends referencing any applicable federal, state or foreign securities law restrictions on all certificates representing shares of Common Stock issued pursuant to this Agreement. The Participant shall, at the request of the Company, promptly present to the Company any and all certificates representing shares of Common Stock acquired pursuant to this Agreement in the possession of the Participant in order to carry out the provisions of this Section 9. The shares of Common Stock issued to Participant pursuant to this Agreement shall be subject, mutatis mutandis, to the terms and conditions of each other agreement previously entered into between Participant and the Company (and/or its predecessor-in-interest) that imposes transfer restrictions on other shares of Common Stock currently or formerly held by the Participant, including any such transfer restrictions limiting the number of shares of Common Stock that may be sold by Participant.
10.Securities Representations. This Agreement is being entered into by the Company in reliance upon the following express representations and warranties of the Participant. The Participant hereby acknowledges, represents and warrants that:
(a)The Participant has been advised that the Participant may be an “affiliate” within the meaning of Rule 144 under the Securities Act and in this connection the Company is relying in part on the Participant’s representations set forth in this Section 10.
(b)If the Participant is deemed an affiliate within the meaning of Rule 144 of the Securities Act, the shares of Common Stock issuable hereunder must be held indefinitely unless an exemption from any applicable resale restrictions is available or the Company files an additional registration statement (or a “re-offer prospectus”) with regard to such shares of Common Stock and the Company is under no obligation to register such shares of Common Stock (or to file a “re-offer prospectus”).
(c)If the Participant is deemed an affiliate within the meaning of Rule 144 of the Securities Act, the Participant understands that (i) the exemption from registration under Rule 144 will not be available unless (A) a public trading market then exists for the Common Stock of the Company, (B) adequate information concerning the Company is then available to the public, and (C) other terms and conditions of Rule 144 or any exemption therefrom are complied with, and (ii) any sale of the shares of Common Stock issuable hereunder may be made only in limited amounts in accordance with the terms and conditions of Rule 144 or any exemption therefrom.
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11.Entire Agreement; Amendment. This Agreement, together with the Plan, contains the entire agreement between the parties hereto with respect to the subject matter contained herein, and supersedes all prior agreements or prior understandings, whether written or oral, between the parties relating to such subject matter. The Committee shall have the right, in its sole discretion, to modify or amend this Agreement from time to time in accordance with and as provided in the Plan. This Agreement may also be modified or amended by a writing signed by both the Company and the Participant. The Company shall give written notice to the Participant of any such modification or amendment of this Agreement as soon as practicable after the adoption thereof.
12.Notices. Any notice hereunder by the Participant shall be given to the Company in writing and such notice shall be deemed duly given only upon receipt thereof by the General Counsel of the Company. Any notice hereunder by the Company shall be given to the Participant in writing and such notice shall be deemed duly given only upon receipt thereof at such address as the Participant may have on file with the Company.
13.No Right to Employment. Any questions as to whether and when there has been a Termination of Service and the cause of such Termination of Service shall be determined in the sole discretion of the Committee. Nothing in this Agreement shall interfere with or limit in any way the right of the Company, its Subsidiaries or its Affiliates to terminate the Participant’s employment or service at any time, for any reason and with or without Cause.
14.Transfer of Personal Data. The Participant authorizes, agrees and unambiguously consents to the transmission by the Company (or any Subsidiary) of any personal data information related to the PSUs awarded under this Agreement for legitimate business purposes (including, without limitation, the administration of the Plan). This authorization and consent is freely given by the Participant.
15.Compliance with Laws. The grant of PSUs and the issuance of shares of Common Stock hereunder shall be subject to, and shall comply with, any applicable requirements of any foreign and U.S. federal and state securities laws, rules and regulations (including, without limitation, the provisions of the Securities Act, the Exchange Act and in each case any respective rules and regulations promulgated thereunder) and any other law, rule regulation or exchange requirement applicable thereto. The Company shall not be obligated to issue the PSUs or any shares of Common Stock pursuant to this Agreement if any such issuance would violate any such requirements. As a condition to the settlement of the PSUs, the Company may require the Participant to satisfy any qualifications that may be necessary or appropriate to evidence compliance with any applicable law or regulation.
16.Binding Agreement; Assignment. This Agreement shall inure to the benefit of, be binding upon, and be enforceable by the Company and its successors and assigns. The Participant shall not assign (except in accordance with Section 6 hereof) any part of this Agreement without the prior express written consent of the Company.
17.Headings. The titles and headings of the various sections of this Agreement have been inserted for convenience of reference only and shall not be deemed to be a part of this Agreement.
18.Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same instrument.
19.Further Assurances. Each party hereto shall do and perform (or shall cause to be done and performed) all such further acts and shall execute and deliver all such other
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agreements, certificates, instruments and documents as either party hereto reasonably may request in order to carry out the intent and accomplish the purposes of this Agreement and the Plan and the consummation of the transactions contemplated thereunder.
20.Severability. The invalidity or unenforceability of any provisions of this Agreement in any jurisdiction shall not affect the validity, legality or enforceability of the remainder of this Agreement in such jurisdiction or the validity, legality or enforceability of any provision of this Agreement in any other jurisdiction, it being intended that all rights and obligations of the parties hereunder shall be enforceable to the fullest extent permitted by law.
21.Acquired Rights. The Participant acknowledges and agrees that: (a) the Company may terminate or amend the Plan at any time; (b) the Award of PSUs made under this Agreement is completely independent of any other award or grant and is made at the sole discretion of the Company; (c) no past grants or awards (including, without limitation, the PSUs awarded hereunder) give the Participant any right to any grants or awards in the future whatsoever; and (d) any benefits granted under this Agreement are not part of the Participant’s ordinary salary, and shall not be considered as part of such salary in the event of severance, redundancy or resignation.
22.Compliance with Company Trading Policy. The Participant acknowledges and agrees that any Common Stock acquired by the Participant on account of the Award set forth herein shall be subject to each of the terms and conditions of the Company’s Trading Policy, as the same may be amended or otherwise modified from time to time, including any blackout periods, or lock-up periods imposed in connection with any primary or secondary public offering of the Company’s Common Stock. By accepting the Award, the Participant authorizes the Company to take such actions as the Company determines to be reasonably appropriate to implement the terms of the Company’s Trading Policy.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
TORRID HOLDINGS INC.
By: /s/Brian Park
Name: Brian Park
Title: Secretary
PARTICIPANT
/s/ Lisa Harper
Name: Lisa Harper
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Torrid Announces Changes to Leadership Team and Board
Liz Muñoz Assumes New Role as Chief Creative Officer
Retail Veteran Lisa Harper Joins as Chief Executive Officer
Tanner MacDiarmid Named Interim CFO
Michael Shaffer Joins Board as an Independent Director and Chair of the Audit Committee
05/03/2022
CITY OF INDUSTRY, Calif. – Torrid Holdings Inc. (“Torrid” or the “Company”) (NYSE: CURV), a direct-to-consumer apparel, intimates, and accessories brand in North America for women sizes 10 to 30, today announced changes to the senior leadership team and Board of Directors, including the appointment of Liz Muñoz to a new role as Chief Creative Officer, the appointment of retail industry veteran Lisa Harper as Muñoz’s successor as Chief Executive Officer, and the appointment of Tanner MacDiarmid as Interim Chief Financial Officer, all effective immediately. In conjunction with these organizational changes, Torrid announced that Michael Shaffer, former CFO of PVH Corp., has joined the Board of Directors as an independent member and chair of the Audit Committee. The Company also expects to exceed its previously stated sales and adjusted EBITDA guidance for the first quarter of fiscal 2022.
In her new role, Ms. Muñoz will focus on product, design, product development, fabrication, sourcing, technical fit, creative marketing, and merchandising – all with the objective of applying her strategic approach to product to accelerate the Company’s growth trajectory. “I am really excited to be able to once again focus on providing outstanding product for our amazing customers,” Ms. Muñoz said.
“Liz has done a terrific job leading Torrid, including playing an important role in the Company’s successful initial public offering in 2021,” said Stefan Kaluzny, chairman of Torrid’s Board of Directors. “Liz is driven by her passion for product and Torrid’s customer, and we are thrilled to have her assume this critical new role at the Company.”
In addition to serving as CEO, Ms. Harper will remain a member of the Torrid Board of Directors. She has previously served as CEO of Belk, Hot Topic and Gymboree, among other leadership roles in the retail industry.
“Lisa brings tremendous direct-to-consumer experience to her new role at Torrid,” Mr. Kaluzny said. “Together Lisa and Liz will focus on driving strategic growth and value for all stakeholders. Liz’s focus on product and the customer combined with Lisa’s operational expertise create an outstanding team.”
Ms. Harper said, “It has been exciting to contribute to the evolution and innovation that has made Torrid an industry leader over the last decade. I look forward to partnering with Liz and the Torrid team in my new role to continue to drive tremendous growth.”
As previously announced, George Wehlitz retired from his role as CFO at the end of the first quarter of fiscal 2022 and is now serving as an advisor to ensure a smooth transition. Mr. MacDiarmid will serve as Interim Chief Financial Officer until the Company names a new Chief Financial Officer. His experience includes leadership roles as Partner at MERU, Senior Vice President at McKinsey & Company, and Senior Director at Alvarez & Marsal.
Chinwe Abaelu, Senior Vice President, Chief Accounting Officer, will serve as Principal Financial Officer from now until a new CFO joins Torrid.
Mr. Shaffer joins the Torrid Board of Directors’ Audit Committee as its Chair, serving alongside Theo Killion, the lead independent director, and Valeria Rico, also an independent director. Mr. Shaffer retired in September 2021 after serving 31 years with PVH in various leadership roles including CFO and Chief Operating Officer.
About Liz Muñoz
Ms. Muñoz served as Torrid’s CEO from August 2018 through April 2022. In connection with the transition to her new role, she has stepped down as a member of the Torrid Board of Directors. She previously served as Torrid’s President and before that as Senior Vice President of Product. Ms. Muñoz served as the President of Lucky Brand from 2007 to 2010 and Senior Vice President of Design and Merchandising Lucky Brand from 1997 to 2007. From 1987 to 1997, she held various design-related positions with Bongo Jeans, including Head of Design and Merchandising. Ms. Muñoz graduated from the Fashion Institute of Design & Merchandising.
About Lisa Harper
Lisa Harper has served as a member of Torrid’s board of directors and its predecessor since 2008. From July 2021 until May 2022, Ms. Harper served as Executive Chairperson of Belk, a privately-owned department store chain. Prior to that, Ms. Harper served as CEO of Belk from July 2016 through July 2021. Ms. Harper previously served as CEO of Torrid, its predecessor, and Hot Topic, from March 2011 until June 2016. From February 2001 to July 2006, she served in various capacities with The Gymboree Corporation, a publicly traded corporation operating a chain of specialty retail stores for children and women. Her roles at Gymboree included Chairman of the board of directors, from June 2002 to July 2006, Chief Creative Officer, from January 2006 to July 2006, Vice Chairman of the board of directors, from February 2001 to June 2002, and CEO, from February 2001 to January 2006. Ms. Harper has also held merchandising and design positions with several other clothing retailers, including Limited Too, Esprit, GapKids, Mervyn’s and Levi Strauss. She attended the University of North Carolina at Chapel Hill. Ms. Harper currently serves as a member of the board of directors of Belk and Hot Topic as well as Torrid.
About Tanner MacDiarmid
Mr. MacDiarmid serves as a Partner at MERU since April 2019, specializing in interim management for clients. He has served in various interim management roles, including as Interim CFO for a $3B specialty apparel retailer from April 2021 to April 2022. Mr. MacDiarmid previously held roles as Senior Vice President at McKinsey & Company from March 2017 to April 2019 and Senior Director at Alvarez & Marsal from May 2007 to March 2017. He received a B.A. in Economics with a minor in Accounting from University of California at Los Angeles and is a Certified Public Accountant.
About Chinwe Abaelu
Chinwe Abaelu has served as our Senior Vice President, Chief Accounting Officer since March 2022. Ms. Abaelu’s scope of responsibility includes Internal and External Financial Reporting, Internal Audit, Tax, and Accounting. Ms. Abaelu was Sr. Vice President, Finance from August 2021 to March 2022 and served as Vice President, Finance from April 2018 to July 2021. She was Sr. Director, Financial Reporting and Compliance between May 2016 and April 2018. Between 2006 and 2016, Ms. Abaelu served in various Finance leadership roles at Hot Topic. Prior to Hot Topic, Ms. Abaelu served in a Finance leadership role at Vendare Media Group and was an Audit and Business Advisory Services Manager at PricewaterhouseCoopers LLP prior to that. A Certified Public Accountant and Certified Internal Auditor, Ms. Abaelu holds a B.Sc. (Hons) degree in Accounting from the University of Nigeria.
About Michael Shaffer
Mr. Shaffer joined PVH in 1990 as a Financial Budget Manager and over the next 30 years worked his way up through the organization, gaining valuable experience and insights into both financial and business operations. He held various roles, including Director of Accounting Operations, Vice President and Controller, Senior Vice President of Operations, and Executive Vice President, Chief Operating Officer and Chief Financial Officer. In addition, Mr. Shaffer took on the additional responsibility at PVH of guiding the Building
Resources for African American Voices (BRAAVE) and served as the executive sponsor. He retired from PVH in September 2021. Mr. Shaffer completed his bachelor's degree in accounting from George Washington University and earned his CPA designation. He also served for five years on the Board of Directors of Build-A-Bear Workshop, where he was Chair of the Audit Committee.
About TORRID
TORRID is a direct-to-consumer brand of apparel, intimates and accessories in North America targeting the 25- to 40-year-old woman who is curvy and wears sizes 10 to 30. TORRID is focused on fit and offers high quality products across a broad assortment that includes tops, bottoms, denim, dresses, intimates, activewear, footwear and accessories.
Investors
ICR, Inc.
Jean Fontana
(646) 277-1214
IR@torrid.com
ICR, Inc.
Jean Fontana
(646) 277-1214
IR@torrid.com
Media
Joele Frank, Wilkinson Brimmer Katcher
Michael Freitag / Arielle Rothstein / Lyle Weston
(212) 355-4449
Joele Frank, Wilkinson Brimmer Katcher
Michael Freitag / Arielle Rothstein / Lyle Weston
(212) 355-4449