KOHLS Corp 10-Q for FY2024 Q1
KOHLS Corp (KSS)
About this 10-Q
KOHLS Corp filed this 10-Q on June 1, 2023, covering the quarter ended April 29, 2023 (FY2024 Q1).
Headline figures
Quarter ended April 29, 2023, as reported in this filing, compared with the same period a year earlier where the filing states it.
- Revenue
- $3.57B
- down 3.9% from $3.72B a year earlier
- Net income
- $14M
- unchanged from net income of $14M a year earlier
- Diluted EPS
- $0.13
- up 18.2% from $0.11 a year earlier
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the quarterly period ended
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the Transition period from ________ to _________
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Registrant’s telephone number, including area code (
Securities registered pursuant to Section 12(b) of the Act:
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Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports) and (2) has been subject to such filing requirements for the past 90 days.
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and "emerging growth company" in Rule 12b-2 of the Exchange Act.
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Accelerated Filer |
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Non-Accelerated Filer |
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Smaller Reporting Company |
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Emerging Growth Company |
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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 pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by a check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
Yes ☐ No
Indicate the number of shares outstanding of each of the issuer’s classes of common stock, as of the latest practicable date: May 26, 2023 Common Stock, Par Value $0.01 per Share,
KOHL’S CORPORATION
INDEX
PART I |
3 |
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Item 1. |
3 |
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3 |
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4 |
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5 |
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6 |
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7 |
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Item 2. |
Management's Discussion and Analysis of Financial Condition and Results of Operations |
14 |
Item 3. |
21 |
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Item 4. |
21 |
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PART II |
22 |
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Item 1. |
22 |
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Item 1A. |
22 |
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Item 2. |
22 |
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Item 6. |
23 |
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24 |
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
KOHL’S CORPORATION
CONSOLIDATED BALANCE SHEETS
(Unaudited)
(Dollars in Millions) |
April 29, 2023 |
January 28, 2023 |
April 30, 2022 |
Assets |
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Current assets: |
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Cash and cash equivalents |
$ |
$ |
$ |
Merchandise inventories |
|||
Other |
|||
Total current assets |
|||
Property and equipment, net |
|||
Operating leases |
|||
Other assets |
|||
Total assets |
$ |
$ |
$ |
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Liabilities and Shareholders’ Equity |
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Current liabilities: |
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Accounts payable |
$ |
$ |
$ |
Accrued liabilities |
|||
Borrowings under revolving credit facility |
— |
||
Current portion of: |
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Long-term debt |
|||
Finance leases and financing obligations |
|||
Operating leases |
|||
Total current liabilities |
|||
Long-term debt |
|||
Finance leases and financing obligations |
|||
Operating leases |
|||
Deferred income taxes |
|||
Other long-term liabilities |
|||
Shareholders’ equity: |
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Common stock |
|||
Paid-in capital |
|||
Treasury stock, at cost |
( |
( |
( |
Retained earnings |
|||
Total shareholders’ equity |
$ |
$ |
$ |
Total liabilities and shareholders’ equity |
$ |
$ |
$ |
See accompanying Notes to Consolidated Financial Statements
3
KOHL’S CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
|
Quarter Ended |
|
(Dollars in Millions, Except per Share Data) |
April 29, 2023 |
April 30, 2022 |
Net sales |
$ |
$ |
Other revenue |
||
Total revenue |
||
Cost of merchandise sold |
||
Operating expenses: |
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Selling, general, and administrative |
||
Depreciation and amortization |
||
Operating income |
||
Interest expense, net |
||
Income before income taxes |
||
Provision (benefit) for income taxes |
— |
— |
Net income |
$ |
$ |
Net income per share: |
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|
Basic |
$ |
$ |
Diluted |
$ |
$ |
See accompanying Notes to Consolidated Financial Statements
4
KOHL’S CORPORATION
(Unaudited)
|
Quarter Ended |
|
(Dollars in Millions, Except per Share Data) |
April 29, 2023 |
April 30, 2022 |
Common stock |
|
|
Balance, beginning of period |
$ |
$ |
Stock-based awards |
— |
— |
Retirement of treasury stock |
( |
— |
Balance, end of period |
$ |
$ |
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Paid-in capital |
|
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Balance, beginning of period |
$ |
$ |
Stock-based awards |
||
Balance, end of period |
$ |
$ |
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Treasury stock |
|
|
Balance, beginning of period |
$( |
$( |
Treasury stock purchases |
— |
( |
Stock-based awards |
( |
( |
Retirement of treasury stock |
— |
|
Dividends paid |
||
Balance, end of period |
$( |
$( |
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|
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Retained earnings |
|
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Balance, beginning of period |
$ |
$ |
Net income |
||
Retirement of treasury stock |
( |
— |
Dividends paid |
( |
( |
Balance, end of period |
$ |
$ |
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Total shareholders' equity, end of period |
$ |
$ |
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Common stock |
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Shares, beginning of period |
||
Stock-based awards |
— |
— |
Retirement of treasury stock |
( |
— |
Shares, end of period |
||
Treasury stock |
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Shares, beginning of period |
( |
( |
Treasury stock purchases |
— |
( |
Retirement of treasury stock |
— |
|
Shares, end of period |
( |
( |
Total shares outstanding, end of period |
||
|
|
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Dividends paid per common share |
$ |
$ |
See accompanying Notes to Consolidated Financial Statements
5
KOHL’S CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
|
Quarter Ended |
|
(Dollars in Millions) |
April 29, 2023 |
April 30, 2022 |
Operating activities |
|
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Net income |
$ |
$ |
Adjustments to reconcile net income to net cash used in operating activities: |
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Depreciation and amortization |
||
Share-based compensation |
||
Deferred income taxes |
||
Non-cash lease expense |
||
Other non-cash items |
( |
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Changes in operating assets and liabilities: |
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Merchandise inventories |
( |
( |
Other current and long-term assets |
( |
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Accounts payable |
( |
( |
Accrued and other long-term liabilities |
( |
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Operating lease liabilities |
( |
( |
Net cash used in operating activities |
( |
( |
Investing activities |
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Acquisition of property and equipment |
( |
( |
Proceeds from sale of real estate |
||
Other |
( |
— |
Net cash used in investing activities |
( |
( |
Financing activities |
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Net borrowings under revolving credit facility |
— |
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Treasury stock purchases |
— |
( |
Shares withheld for taxes on vested restricted shares |
( |
( |
Dividends paid |
( |
( |
Repayment of long-term borrowings |
( |
— |
Finance lease and financing obligation payments |
( |
( |
Proceeds from financing obligations |
||
Net cash provided by (used in) financing activities |
( |
|
Net increase (decrease) in cash and cash equivalents |
( |
|
Cash and cash equivalents at beginning of period |
||
Cash and cash equivalents at end of period |
$ |
$ |
Supplemental information |
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Interest paid, net of capitalized interest |
$ |
$ |
Income taxes paid |
||
See accompanying Notes to Consolidated Financial Statements
6
KOHL’S CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Basis of Presentation
The accompanying Consolidated Financial Statements have been prepared in accordance with accounting principles generally accepted in the United States (“U.S. GAAP”) for interim financial information. Accordingly, they do not include all of the information and footnotes required by U.S. GAAP for fiscal year end Consolidated Financial Statements. In the opinion of management, all adjustments (consisting of normal recurring accruals) considered necessary for a fair presentation have been included. For further information, refer to the Consolidated Financial Statements and related footnotes included in our Annual Report on Form 10-K for the fiscal year ended January 28, 2023 (Commission File No. 1-11084) as filed with the Securities and Exchange Commission.
Due to the seasonality of the business of Kohl’s Corporation (the “Company,” “Kohl’s,” “we,” “our,” or “us”), results for any quarter are not necessarily indicative of the results that may be achieved for a full fiscal year.
We operate as a single business unit.
Treasury Stock
We retired
Recent Accounting Pronouncements
We do not expect that any recently issued accounting pronouncements will have a material impact on our Consolidated Financial Statements.
2. Revenue Recognition
The following table summarizes net sales by line of business:
|
Quarter Ended |
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(Dollars in Millions) |
April 29, 2023 |
April 30, 2022 |
Women's |
$ |
$ |
Men's |
||
Accessories (including Sephora) |
||
Home |
||
Children's |
||
Footwear |
||
Net Sales |
$ |
$ |
Unredeemed gift cards and merchandise return card liabilities totaled $
3. Debt
Outstanding borrowings under the revolving credit facility, recorded as short-term debt, were $
7
Long-term debt, which excludes borrowings on the revolving credit facility, consists of the following unsecured debt:
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Outstanding |
||
Maturity (Dollars in Millions) |
Effective Rate at Issuance |
Coupon Rate |
April 29, |
January 28, |
April 30, |
2023 |
$— |
$ |
$ |
||
2023 |
|||||
2025 |
|||||
2025 |
|||||
2029 |
|||||
2031 |
|||||
2033 |
|||||
2037 |
|||||
2045 |
|||||
Outstanding unsecured senior debt |
|
|
|||
Unamortized debt discounts and deferred financing costs |
|
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( |
( |
( |
Current portion of unsecured senior debt |
|
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( |
( |
( |
Long-term unsecured senior debt |
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$ |
$ |
$ |
Effective interest rate at issuance |
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|||
Our estimated fair value of unsecured senior long-term debt is determined using Level 1 inputs, using financial instruments with unadjusted, quoted prices listed on active market exchanges. The estimated fair value of our unsecured senior debt was $
In February 2023, $
During the first quarter of 2023, S&P downgraded our senior unsecured credit rating from BB+ to BB and Moody's downgraded our rating from Ba2 to Ba3. As a result of the downgrades, the interest rate on our
Our various debt agreements contain covenants including limitations on additional indebtedness and certain financial tests. As of April 29, 2023, we were in compliance with all covenants of the various debt agreements.
4. Leases
We lease certain property and equipment used in our operations. Some of our store leases include additional rental payments based on a percentage of sales over contractual levels or payments that are adjusted periodically for inflation. Our typical store lease has an initial term of
Lease assets represent our right to use an underlying asset for the lease term. Lease assets are recognized at commencement date based on the value of the lease liability and are adjusted for any lease payments made to the lessor at or before commencement date, minus any lease incentives received and any initial direct costs incurred by the lessee.
8
Lease liabilities represent our contractual obligation to make lease payments. At the commencement date, the lease liabilities equal the present value of minimum lease payments over the lease term. As the implicit interest rate is not readily identifiable in our leases, we estimate our collateralized borrowing rate to calculate the present value of lease payments.
Leases with a term of 12 months or less are excluded from the balance; we recognize lease expense for these leases on a straight-line basis over the lease term. We combine lease and non-lease components for new and modified leases.
We have
The following tables summarize our operating and finance leases and where they are presented in our Consolidated Financial Statements:
Consolidated Balance Sheets |
|
|
|
|
(Dollars in Millions) |
Classification |
April 29, |
January 28, |
April 30, |
Assets |
|
|
|
|
Operating leases |
Operating leases |
$ |
$ |
$ |
Finance leases |
||||
Total operating and finance leases |
||||
Liabilities |
|
|
|
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Current |
|
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Operating leases |
Current portion of operating leases |
|||
Finance leases |
||||
Noncurrent |
|
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|
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Operating leases |
Operating leases |
|||
Finance leases |
||||
Total operating and finance leases |
$ |
$ |
$ |
|
Consolidated Statement of Operations |
Quarter Ended |
||
(Dollars in Millions) |
Classification |
April 29, 2023 |
April 30, 2022 |
Operating leases |
Selling, general, and administrative |
$ |
$ |
Finance leases |
|
|
|
Amortization of leased assets |
Depreciation and amortization |
||
Interest on leased assets |
Interest expense, net |
||
Total operating and finance leases |
|
$ |
$ |
Consolidated Statement of Cash Flows |
Quarter Ended |
|
(Dollars in Millions) |
April 29, 2023 |
April 30, 2022 |
Cash paid for amounts included in the measurement of leased liabilities |
|
|
Operating cash flows from operating leases |
$ |
$ |
Operating cash flows from finance leases |
||
Financing cash flows from finance leases |
||
9
The following table summarizes future lease payments by fiscal year:
|
April 29, 2023 |
||
(Dollars in Millions) |
Operating Leases |
Finance Leases |
Total |
2023 |
$ |
$ |
$ |
2024 |
|||
2025 |
|||
2026 |
|||
2027 |
|||
After 2027 |
|||
Total lease payments |
$ |
$ |
$ |
Amount representing interest |
( |
( |
( |
Lease liabilities |
$ |
$ |
$ |
The following table summarizes weighted-average remaining lease term and discount rate:
|
April 29, 2023 |
January 28, 2023 |
Weighted-average remaining term (years) |
|
|
Operating leases |
||
Finance leases |
||
Weighted-average discount rate |
|
|
Operating leases |
||
Finance leases |
Other lease information is as follows:
|
Quarter Ended |
|
(Dollars in Millions) |
April 29, 2023 |
April 30, 2022 |
Property and equipment acquired (disposed) through exchange of: |
|
|
Finance lease liabilities |
$( |
$ |
Operating lease liabilities |
||
Financing Obligations
The following tables summarize our financing obligations and where they are presented in our Consolidated Financial Statements:
Consolidated Balance Sheets |
|
|
|
|
(Dollars in Millions) |
Classification |
April 29, |
January 28, |
April 30, |
Assets |
|
|
|
|
Financing obligations |
Property and equipment, net |
$ |
$ |
$ |
Liabilities |
|
|
|
|
Current |
Current portion of finance leases and financing obligations |
|||
Noncurrent |
Finance leases and financing obligations |
|||
Total financing obligations |
$ |
$ |
$ |
|
Consolidated Statement of Operations |
Quarter Ended |
||
(Dollars in Millions) |
Classification |
April 29, 2023 |
April 30, 2022 |
Amortization of financing obligation assets |
Depreciation and amortization |
||
Interest on financing obligations |
Interest expense, net |
||
Total financing obligations |
|
$ |
$ |
10
Consolidated Statement of Cash Flows |
Quarter Ended |
|
(Dollars in Millions) |
April 29, 2023 |
April 30, 2022 |
Cash paid for and proceeds from amounts included in the measurement of financing obligations |
|
|
Operating cash flows from financing obligations |
$ |
$ |
Financing cash flows from financing obligations |
||
Proceeds from financing obligations |
||
The following table summarizes future financing obligation payments by fiscal year:
|
April 29, 2023 |
(Dollars in Millions) |
Financing Obligations |
2023 |
$ |
2024 |
|
2025 |
|
2026 |
|
2027 |
|
After 2027 |
|
Total lease payments |
$ |
Non-cash gain on future sale of property |
|
Amount representing interest |
( |
Financing obligation liability |
$ |
The following table summarizes the weighted-average remaining term and discount rate for financing obligations:
|
April 29, 2023 |
January 28, 2023 |
Weighted-average remaining term (years) |
||
Weighted-average discount rate |
5. Stock-Based Awards
The following table summarizes our stock-based awards activity for the three months ended April 29, 2023:
|
Nonvested Restricted Stock Awards and Units |
Performance Share Units |
||
(Shares and Units in Thousands) |
Shares |
Weighted |
Units |
Weighted |
Balance - January 28, 2023 |
$ |
$ |
||
Granted |
||||
Exercised/vested |
( |
( |
||
Forfeited/expired |
( |
( |
||
Balance - April 29, 2023 |
$ |
$ |
||
In 2019, we issued
11
6. Contingencies
On September 2, 2022, Sean Shanaphy, an alleged shareholder of the Company, filed a putative class action lawsuit in the U.S. District Court for the Eastern District of Wisconsin against the Company, its directors, and its Chief Financial Officer alleging violations of Sections 10(b) and 20(a) of the Securities and Exchange Act of 1934. Shanaphy v. Kohl’s Corporation, No. 2:22-cv- 01016-LA (E.D. Wis.). The plaintiff asserts claims on behalf of persons and entities that purchased or otherwise acquired the Company’s securities between October 20, 2020 and May 19, 2022, and seeks compensatory damages, interest, fees, and costs. The complaint alleges that members of the putative class suffered losses as a result of (1) false or misleading statements and withholding of information regarding the conception, execution, and outcomes of the Company’s strategic plan announced on October 20, 2020 and the Company’s financial results for the first quarter of fiscal 2022 and (2) the Company’s internal controls over financial reporting, disclosure controls, and corporate governance mechanisms. The case is in its early stages. Lead plaintiff applications were submitted on November 1, 2022, and a lead plaintiff has not yet been selected. The Company intends to file a motion to dismiss the complaint and to vigorously defend against these claims. Due to the early stages of this matter, the Company is unable to estimate a reasonably possible range of loss, if any, that may result from this matter.
In addition to what is noted above, we are subject to certain legal proceedings and claims arising out of the ordinary conduct of our business. In the opinion of management, the outcome of these proceedings and claims will not have a material adverse effect on our Consolidated Financial Statements.
7. Income Taxes
The effective income tax rate for the first quarter of 2023 was
8. Net Income Per Share
Basic net income per share is net income divided by the average number of common shares outstanding during the period. Diluted net income per share includes incremental shares assumed for share-based units and awards and stock warrants. Potentially dilutive shares include unvested restricted stock units and awards, performance share units, and warrants outstanding during the period, using the treasury stock method. Potentially dilutive shares are excluded from the computations of diluted earnings per share (“EPS”) if their effect would be anti-dilutive.
The information required to compute basic and diluted net income per share is as follows:
|
Quarter Ended |
|
(Dollars and Shares in Millions, Except per Share Data) |
April 29, |
April 30, |
Numerator—Net income |
$ |
$ |
Denominator—Weighted-average shares: |
|
|
Basic |
||
Dilutive impact |
||
Diluted |
||
Net income per share: |
|
|
Basic |
$ |
$ |
Diluted |
$ |
$ |
12
The following potential shares of common stock were excluded from the diluted net income per share calculation because their effect would have been anti-dilutive:
|
Quarter Ended |
|
(Shares in Millions) |
April 29, |
April 30, |
Anti-dilutive shares |
||
9. Subsequent Events
On
13
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations
For purposes of the following discussion, unless noted, all references to "the quarter” and “the first quarter” are for the three fiscal months (13 weeks) ended April 29, 2023 or April 30, 2022.
This Form 10-Q contains “forward-looking statements” made within the meaning of the Private Securities Litigation Reform Act of 1995. Words such as "believes," "anticipates," "plans," "may," "intends," "will," "should," "expects," and similar expressions are intended to identify forward-looking statements. Forward-looking statements include the information under “2023 Financial and Capital Allocation Outlook,” as well as statements about our future sales or financial performance and our plans, performance, and other objectives, expectations, or intentions, such as statements regarding our liquidity, debt service requirements, planned capital expenditures, future store initiatives, and adequacy of capital resources and reserves. Forward-looking statements are based on management’s then-current views and assumptions and, as a result, are subject to certain risks and uncertainties that could cause actual results to differ materially from those projected. Any such forward-looking statements are qualified by the important risk factors, described in Part I Item 1A of our 2022 Form 10-K, or disclosed from time to time in our filings with the SEC, that could cause actual results to differ materially from those predicted by the forward-looking statements. Forward-looking statements relate to the date initially made and we undertake no obligation to update them.
Executive Summary
Kohl's is a leading omnichannel retailer operating 1,171 stores and a website (www.Kohls.com) as of April 29, 2023. Our Kohl's stores and website sell moderately-priced private and national brand apparel, footwear, accessories, beauty, and home products. Our Kohl's stores generally carry a consistent merchandise assortment with some differences attributable to local preferences and store size, as well as Sephora at Kohl's shop-in-shop. Our website includes merchandise which is available in our stores, as well as merchandise that is available only online.
Key financial results for the quarter included:
Our Strategy
Kohl's is focused on delivering long-term shareholder value through driving improved sales and profitability through four key strategies: driving top line growth, delivering a long-term operating margin of 7% to 8%, maintaining disciplined capital management, and sustaining an agile, accountable, and inclusive culture. In 2023, the Company outlined the following priorities to drive this strategy: enhancing the customer experience, accelerating and simplifying its value strategies, managing inventory and expenses with discipline, and strengthening the balance sheet.
14
2023 Financial and Capital Allocation Outlook
For the full year 2023, the Company affirms its financial outlook and currently expects the following:
Results of Operations
Total Revenue
|
Quarter Ended |
||
(Dollars in Millions) |
April 29, 2023 |
April 30, 2022 |
Change |
Net sales |
$3,355 |
$3,471 |
$(116) |
Other revenue |
216 |
244 |
(28) |
Total revenue |
$3,571 |
$3,715 |
$(144) |
Net sales decreased 3.3% in the first quarter of 2023 compared to the first quarter of 2022.
Net sales includes revenue from the sale of merchandise, net of expected returns and deferrals due to future performance obligations, and shipping revenue.
Comparable sales is a measure that highlights the performance of our stores and digital channel by measuring the change in sales for a period over the comparable, prior-year period of equivalent length. Comparable sales includes all store and digital sales, except sales from stores open less than 12 months, stores that have been closed, and stores that have been relocated where square footage has changed by more than 10%. We measure the change in digital sales by including all sales initiated online or through mobile applications, including omnichannel transactions which are fulfilled through our stores.
We measure digital penetration as digital sales over net sales. These amounts do not take into consideration fulfillment node, digital returns processed in stores, and coupon behaviors.
Comparable sales and digital penetration measures vary across the retail industry. As a result, our comparable sales calculation and digital penetration may not be consistent with the similarly-titled measures reported by other companies.
Other revenue, which is primarily our credit business, decreased $28 million. The decrease was driven by normalizing credit loss rates.
15
Cost of Merchandise Sold and Gross Margin
|
Quarter Ended |
|||
(Dollars in Millions) |
April 29, 2023 |
April 30, 2022 |
Change |
|
Net sales |
$3,355 |
$3,471 |
$(116) |
|
Cost of merchandise sold |
2,047 |
2,140 |
(93) |
|
Gross margin |
$1,308 |
$1,331 |
$(23) |
|
Gross margin as a percent of net sales |
39.0% |
38.3% |
67 |
bps |
Cost of merchandise sold includes the total cost of products sold, including product development costs, net of vendor payments other than reimbursement of specific, incremental, and identifiable costs; inventory shrink; markdowns; freight expenses associated with moving merchandise from our vendors to our distribution centers; shipping expenses for digital sales; and terms cash discount. Our cost of merchandise sold may not be comparable with that of other retailers because we include distribution center and buying costs in selling, general, and administrative (SG&A) expenses while other retailers may include these expenses in cost of merchandise sold.
Gross margin is calculated as net sales less cost of merchandise sold. For the first quarter of 2023, gross margin was 39.0%, an increase of 67 basis points compared to the first quarter of 2022. The increase in gross margin was driven by continued benefit from simplifying our value strategies, lower digital-related cost of shipping, and reduced freight expense. Partially offsetting this was headwinds from higher product cost inflation and higher shrink.
Selling, General, and Administrative Expense (“SG&A”)
|
Quarter Ended |
|||
(Dollars in Millions) |
April 29, 2023 |
April 30, 2022 |
Change |
|
SG&A |
$1,238 |
$1,293 |
$(55) |
|
As a percent of total revenue |
34.7% |
34.8% |
(13) |
bps |
SG&A includes compensation and benefit costs (including stores, corporate, buying, and distribution centers); occupancy and operating costs of our retail, distribution, and corporate facilities; freight expenses associated with moving merchandise from our distribution centers to our retail stores and among distribution and retail facilities other than expenses to fulfill digital sales; marketing expenses, offset by vendor payments for reimbursement of specific, incremental, and identifiable costs; expenses related to our credit card operations; and other administrative revenues and expenses. We do not include depreciation and amortization in SG&A. The classification of these expenses varies across the retail industry.
Many of our expenses, including store payroll and distribution costs, are variable in nature. These costs generally increase as sales increase and decrease as sales decrease. We measure both the change in these variable expenses and the expense as a percent of revenue. If the expense as a percent of revenue decreased from the prior year, the expense "leveraged". If the expense as a percent of revenue increased over the prior year, the expense "deleveraged".
The following table summarizes the changes in SG&A by expense type:
|
Quarter Ended |
(Dollars in Millions) |
April 29, 2023 |
Corporate and other |
$(18) |
Store expenses |
(17) |
Marketing |
(15) |
Distribution |
(5) |
Total decrease |
$(55) |
16
SG&A expenses decreased $55 million, or 4.2%, to $1.2 billion. As a percentage of revenue, SG&A leveraged by 13 basis points. The decrease in SG&A during the quarter was primarily driven by lower strategic investments made in our stores to support the Sephora shop-in-shops openings and store refreshes offset by increased wages. Additionally, corporate costs decreased due to $17 million of expenses related to the proxy contest and sale process incurred in the prior year. Lastly, marketing expenses decreased driven by lower investments across all channels.
Other Expenses
|
Quarter Ended |
||
(Dollars in Millions) |
April 29, 2023 |
April 30, 2022 |
Change |
Depreciation and amortization |
$188 |
$200 |
$(12) |
Interest expense, net |
84 |
68 |
16 |
The decrease in depreciation and amortization was primarily driven by reduced capital spending in technology.
Net interest expense increased due to Sephora related lease amendments as well as borrowings under the revolving credit facility.
Income Taxes
|
Quarter Ended |
||
(Dollars in Millions) |
April 29, 2023 |
April 30, 2022 |
Change |
Provision (benefit) for income taxes |
$— |
$— |
$— |
Effective tax rate |
3.8% |
(2.8%) |
|
In both periods, the tax rate was driven by the recognition of favorable tax items. The rates, coupled with low pre-tax income, result in a minimal provision (benefit) for income taxes for each period.
Seasonality and Inflation
Our business, like that of other retailers, is subject to seasonal influences. Sales and income are typically higher during the back-to-school and holiday seasons. Because of the seasonality of our business, results for any quarter are not necessarily indicative of the results that may be achieved for a full fiscal year.
We expect that our operations will continue to be influenced by general economic conditions, including food, fuel, energy prices, higher unemployment, wage inflation, and costs to source our merchandise, including tariffs. There can be no assurances that such factors will not impact our business in the future.
Liquidity and Capital Resources
Capital Allocation
Our capital allocation strategy is to invest to maximize our overall long-term return and maintain a strong balance sheet, with a long-term objective of achieving an investment grade rating. We follow a disciplined approach to capital allocation based on the following priorities: first we invest in our business to drive long-term profitable growth; second we pay a quarterly dividend; and third we return excess cash to shareholders through our share repurchase program. In addition, when appropriate, we will complete debt reduction transactions.
17
We will continue to invest in the business, as we plan to invest $600 to $650 million in 2023, including the expansion of the Sephora shops and store refresh activity. We remain committed to the dividend, and on May 10, 2023, our Board of Directors declared a quarterly cash dividend of $0.50 per share. The dividend will be paid on June 21, 2023 to all shareholders of record at the close of business on June 7, 2023. Last, we retired $164 million of notes due in February 2023, and plan on retiring $111 million of notes due December 2023 when they mature. We are not planning any share repurchases until our balance sheet is strengthened on a path towards the long term target leverage ratio of 2.5 times adjusted earnings before interest, taxes, depreciation, amortization, and rent ("EBITDAR") utilizing an eight times cash rent calculation for lease obligations.
Our period-end cash and cash equivalents balance decreased to $286 million from $646 million in the first quarter of 2022. Our cash and cash equivalents balance includes short-term investments of $108 million and $431 million as of April 29, 2023, and April 30, 2022, respectively. Our investment policy is designed to preserve principal and liquidity of our short-term investments. This policy allows investments in large money market funds or in highly rated direct short-term instruments. We also place dollar limits on our investments in individual funds or instruments.
The following table presents our primary uses and sources of cash:
Cash Uses |
|
Cash Sources |
• Operational needs, including salaries, rent, taxes, and other operating costs • Inventory • Capital expenditures • Dividend payments • Debt reduction • Share repurchases |
|
• Cash flow from operations • Line of credit under our revolving credit facility • Issuance of debt
|
|
Quarter Ended |
||
(Dollars in Millions) |
April 29, 2023 |
April 30, 2022 |
Change |
Net cash (used in) provided by: |
|
|
|
Operating activities |
$(202) |
$(460) |
$258 |
Investing activities |
(94) |
(217) |
123 |
Financing activities |
429 |
(264) |
693 |
Operating Activities
Our operating cash outflows generally consist of payments to our employees for wages, salaries and other employee benefits, payments to our merchandise vendors for inventory (net of vendor allowances), payments to our shipping carriers, and payments to our landlords for rent. Operating cash outflows also include payments for income taxes and interest payments on our debt borrowings.
Operating activities used $202 million in the first quarter of 2023 compared to $460 million used in the first quarter of 2022. Operating cash flow increased year over year due to not repeating the inventory build that occurred in 2022.
Investing Activities
Our investing cash outflows include payments for capital expenditures, including investments in new and existing stores, improvements to supply chain, and technology costs. Our investing cash inflows are generally from proceeds from sales of property and equipment.
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Investing activities used $94 million in the first quarter of 2023 and $217 million in the first quarter of 2022. The decrease was primarily driven by less rollouts of Sephora shop-in-shop build-outs and store refreshes planned for 2023.
In 2023, we are planning to open at least 250 full size 2,500 square feet shops and 45 small format 750 square feet Sephora shop-in-shops. At the end of 2023 we plan to have a Sephora presence in over 900 of our stores, including 860 full size and 50 small format shop-in-shops.
Financing Activities
Our financing strategy is to ensure adequate liquidity and access to capital markets. We also strive to maintain a balanced portfolio of debt maturities, while minimizing our borrowing costs. Our ability to access the public debt market has provided us with adequate sources of liquidity. Our continued access to these markets depends on multiple factors, including the condition of debt capital markets, our operating performance, and maintaining strong credit ratings.
During the first quarter of 2023, S&P downgraded our senior unsecured credit rating from BB+ to BB and Moody's downgraded our rating from Ba2 to Ba3 while both also revising their outlook to negative. While Fitch reaffirmed our credit rating, they also revised their outlook to negative.
As of April 29, 2023, our senior unsecured credit ratings and outlook were as follows:
|
Moody’s |
S&P |
Fitch |
Long-term debt |
Ba3 |
BB |
BBB- |
Outlook |
Negative |
Negative |
Negative |
As a result of the downgrades, the interest rate on our 3.375% notes due May 2031 and 9.50% notes due May 2025 will increase another 50 bps in May 2023 due to the coupon adjustment provisions within these notes. In 2022, our credit rating was also downgraded which resulted in the interest rates increasing 75 bps, of which 25 bps was effective in 2022 and the remaining 50 will become effective in May 2023. In total, the interest rate of the notes will increase 125 bps since their issuance, of which 25 bps was in effect during the three months ended April 29, 2023 and the remaining 100 bps will be effective in May 2023. If our credit ratings are lowered further, our ability to access the public debt markets, our cost of funds, and other terms for new debt issuances could be adversely impacted. Each of the credit rating agencies reviews its rating periodically and there is no guarantee our current credit ratings will remain the same.
The majority of our financing activities include repurchases of common stock, proceeds and/or repayments of long-term debt, and dividend payments. Financing cash outflows also include payments to our landlords for leases classified as financing leases and financing obligations.
Financing activities generated $429 million in the first quarter of 2023 and used $264 million in the first quarter of 2022.
During the quarter we drew $680 million on our credit facility. As of April 29, 2023, outstanding borrowings under the revolving credit facility were $765 million and were recorded as short-term debt. Approximately $735 million remained available under the revolver as of that date. No amounts were outstanding at April 30, 2022 under our previous credit agreement.
In February 2023, $164 million in aggregate principal amount of our 3.25% notes matured and was repaid.
19
There was no cash used for treasury stock purchases in the first quarter of 2023 compared to $158 million used in the first quarter of 2022. Share repurchases are discretionary in nature. The timing and amount of repurchases are based upon available cash balances, our stock price, and other factors.
Cash dividend payments were $55 million ($0.50 per share) in the first quarter of 2023 compared to $63 million ($0.50 per share) in the first quarter of 2022.
Key Financial Ratios
Key financial ratios that provide certain measures of our liquidity are as follows:
(Dollars in Millions) |
April 29, 2023 |
April 30, 2022 |
Working capital |
$605 |
$1,369 |
Current ratio |
1.17 |
1.40 |
Our working capital and inventory levels typically build throughout the fall, peaking during the November and December holiday selling season.
The decrease in our working capital and current ratio is primarily due to lower cash balances and an increase in borrowings under the revolver.
Debt Covenant Compliance
Our senior secured, asset based revolving credit facility contains customary events of default and financial, affirmative and negative covenants, including but not limited to, a springing financial covenant relating to our fixed charge coverage ratio and restrictions on indebtedness, liens, investments, asset dispositions, and restricted payments. As of April 29, 2023, we were in compliance with all covenants and expect to remain in compliance during the remainder of 2023.
Contractual Obligations
There have been no significant changes in the contractual obligations disclosed in our 2022 Form 10-K other than borrowings under our revolving credit facility, which have been disclosed in Note 3 of the Consolidated Financial Statements and under "Liquidity and Capital Resources - Financing Activities."
Off-Balance Sheet Arrangements
We have not provided any financial guarantees arising from arrangements with unconsolidated entities or persons as of April 29, 2023.
We have not created, and are not a party to, any special-purpose or off-balance sheet entities for the purpose of raising capital, incurring debt, or operating our business. We do not have any arrangements or relationships with entities that are not consolidated into our financial statements that are reasonably likely to materially affect our financial condition, liquidity, results of operations, or capital resources.
Critical Accounting Policies and Estimates
The preparation of financial statements in conformity with U.S. GAAP requires us to make estimates and assumptions that affect reported amounts. Management has discussed the development, selection, and disclosure of its estimates and assumptions with the Audit Committee of our Board of Directors. There have been no significant changes in the critical accounting policies and estimates discussed in our 2022 Form 10-K.
20
Item 3. Quantitative and Qualitative Disclosures about Market Risk
There have been no significant changes in the market risks described in our 2022 Form 10-K.
Item 4. Controls and Procedures
Evaluation of Disclosure Controls and Procedures
Under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, we carried out an evaluation of the effectiveness of the design and operation of our disclosure controls and procedures (the “Evaluation”) at a reasonable assurance level as of the last day of the period covered by this report.
Based upon the Evaluation, our Chief Executive Officer and Chief Financial Officer have concluded that our disclosure controls and procedures are effective at the reasonable assurance level. Disclosure controls and procedures are defined by Rule 13a-15(e) of the Securities Exchange Act of 1934 (the "Exchange Act") as controls and other procedures that are designed to ensure that information required to be disclosed in the reports that we file or submit under the Exchange Act is recorded, processed, summarized, and reported within the time periods specified by the SEC's rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed in the reports that we file or submit under the Exchange Act is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, to allow timely decisions regarding required disclosures.
It should be noted that the design of any system of controls is based in part upon certain assumptions about the likelihood of future events and there can be no assurance that any design will succeed in achieving our stated goals under all potential future conditions, regardless of how remote.
Changes in Internal Control over Financial Reporting
There were no changes in our internal control over financial reporting during the quarter ended April 29, 2023 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
21
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
For a description of our legal proceedings, see Note 7, Contingencies, of the notes to our consolidated financial statements included in our 2022 Form 10-K.
Item 1A. Risk Factors
There have been no significant changes in the Risk Factors described in our 2022 Form 10-K.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds
The following table contains information for shares of common stock repurchased and shares acquired from employees in lieu of amounts required to satisfy minimum tax withholding requirements upon the vesting of the employees’ stock-based compensation during the three fiscal months ended April 29, 2023:
(Dollars in Millions, Except per Share Data) |
Total Number |
Average |
Total Number |
Approximate |
January 29 - February 25, 2023 |
22,722 |
$32.54 |
— |
$2,476 |
February 26 - April 1, 2023 |
445,666 |
$25.34 |
— |
$2,476 |
April 2 - April 29, 2023 |
7,714 |
$24.77 |
— |
$2,476 |
Total |
476,102 |
$25.67 |
— |
|
22
Item 6. Exhibits
Exhibit |
|
Description |
10.1 |
|
|
10.2 |
|
|
10.3 |
|
|
10.4 |
|
|
10.5 |
|
Executive Compensation Agreement between Nicholas Jones and Kohl's, Inc. dated as of March 20, 2023 |
10.6 |
|
Letter Agreement between Marc Chini and Kohl’s, Inc. dated as of March 21, 2023 |
31.1 |
|
|
31.2 |
|
|
32.1 |
|
|
32.2 |
|
|
101.INS |
|
Inline XBRL Instance Document |
101.SCH |
|
Inline XBRL Taxonomy Extension Schema |
101.CAL |
|
Inline XBRL Taxonomy Extension Calculation Linkbase |
101.DEF |
|
Inline XBRL Taxonomy Extension Definition Linkbase |
101.LAB |
|
Inline XBRL Taxonomy Extension Label Linkbase |
101.PRE |
|
Inline XBRL Taxonomy Extension Presentation Linkbase |
104 |
|
Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibits 101) |
23
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, thereunto duly authorized.
|
Kohl’s Corporation (Registrant) |
|
|
Date: June 1, 2023 |
/s/ Jill Timm |
|
Jill Timm On behalf of the Registrant and as Chief Financial Officer (Principal Financial Officer) |
24
Exhibit 10.4
EXECUTIVE COMPENSATION AGREEMENT
THIS EXECUTIVE COMPENSATION AGREEMENT (“Agreement”) is effective as of this 20th day of February, 2023, by and between Kohl’s, Inc. (the “Company”) and Jennifer Kent (“Employee”).
RECITALS
Employee is employed as the Senior Executive Vice President, Chief Legal Officer and Secretary of the Company and its parent, Kohl’s Corporation, and is a valuable employee of the Company. The Company and Employee believe it is in their best interests to make provision for certain aspects of their relationship during and after the period in which Employee is employed by the Company.
NOW, THEREFORE, in consideration of the premises and the mutual agreements and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Company and Employee (individually, a “Party” and collectively the “Parties”), the Parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 “Board” shall mean the Board of Directors of the Company.
1.2 “Cause” shall mean any of the following:
(a) Employee’s failure to substantially perform Employee’s duties after a written demand for performance is delivered to Employee that specifically identifies the manner in which the Company believes that Employee has not substantially performed his/her duties, and (i) Employee has failed to demonstrate substantial efforts to resume performance of Employee’s duties on a continuous basis within thirty (30) days after receiving such demand; or (ii) such failure to substantially perform, if previously cured, has recurred; provided, however, that failure to meet sales or financial performance objectives, by itself, will not constitute “Cause;”
(b) Employee’s failure to substantially comply with any written rules, regulations, policies, or procedures of the Company, including but not limited to the Company’s anti-harassment policies and the “Kohl’s Code of Ethics,” in any case, which is materially injurious to the reputation and/or business of the Company;
(c) Any dishonest or fraudulent act or omission willfully engaged in by Employee in the course of performance of Employee’s duties for the Company. The term “willfully” as used herein means any act or omission committed in bad faith or without a reasonable belief that the act or omission was in the best interest of the Company;
(d) Any material breach by Employee of Articles III, IV, V, VI, VII, or VIII, below;
(e) Employee’s commission of a crime, the circumstances of which are substantially related to Employee’s duties or responsibilities for the Company; or
(f) Engagement by Employee in any illegal conduct in the course of Employee’s duties for the Company, or conduct that is, in the reasonable opinion of the Board, materially injurious or detrimental to the substantial interests or reputation of the Company.
1.3 “Change of Control” means the occurrence of any of the following:
(a) the acquisition (other than from the Company) by any person, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (“Exchange Act”)), other than the Company, a subsidiary of the Company or any employee benefit plan or plans sponsored by the Company or any subsidiary of the Company, directly or indirectly, of beneficial ownership (within the meaning of Exchange Act Rule 13d-3) of thirty-three percent (33%) or more of the then outstanding shares of common stock of the Company or voting securities representing thirty-three percent (33%) or more of the combined voting power of the Company’s then outstanding voting securities ordinarily entitled to vote in the election of directors unless the Incumbent Board (defined below), before such acquisition or within thirty (30) days thereafter, deems such acquisition not to be a Change of Control;
(b) individuals who, as of the date of this Agreement, constitute the board of directors of the Company (as of such date, “Incumbent Board”) ceasing for any reason to constitute at least a majority of such board of directors of the Company; provided, however, that any person becoming a director subsequent to the date of this Agreement whose election, or nomination for election by the shareholders of the Company, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be for purposes of this Agreement, considered as though such person were a member of the Incumbent Board but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest which was (or, if threatened, would have been) subject to Exchange Act Rule 14a-12(c);
(c) the consummation of any merger, consolidation or share exchange of the Company with any other corporation, other than a merger, consolidation or share exchange which results in more than sixty percent (60%) of the outstanding shares of the common stock, and voting securities representing more than sixty percent (60%) of the combined voting power of then outstanding voting securities entitled to vote generally in the election of directors, of the surviving, consolidated or resulting corporation being then beneficially owned, directly or indirectly, by the persons who were the Company’s shareholders immediately prior to such transaction in substantially the same proportions as their ownership, immediately prior to such transaction, of the Company’s then outstanding Common Stock or then outstanding voting securities, as the case may be; or
(d) the consummation of any liquidation or dissolution of the Company or a sale or other disposition of all or substantially all of the assets of the Company.
For purposes of this Section 1.3, the term “Company” means Kohl’s Corporation. Following the occurrence of an event which is not a Change of Control whereby there is a successor company to the Company, or, if there is no such successor, whereby the Company is not the surviving corporation in a merger or consolidation, the surviving corporation or successor holding company (as the case may be), for purposes of this Agreement, shall thereafter be referred to as the Company.
2
1.4 “Company” means Kohl’s, Inc., except as otherwise provided herein.
1.5 “Designated Beneficiary” means the person or persons designated by Employee, on a form provided by the Company, to receive benefits payable under this Agreement, if any, after the death of Employee.
1.6 “Disability” means Employee is unable to perform the essential functions of Employee’s job, with or without reasonable accommodation, for a period of one hundred eighty (180) days, whether consecutive or in the aggregate, over any three hundred sixty-five (365) day period. A determination of Disability shall be made by the Company, which may, at its sole discretion, consult with a physician or physicians satisfactory to the Company, and Employee shall cooperate with any efforts to make such determination. Any such determina tion shall be conclusive and binding on the Parties. Any determination of Disability under this Section 1.6 is not intended to alter any benefits any Party may be entitled to receive under any disability insurance policy carried by either the Company or Employee with respect to Employee, which benefits shall be governed solely by the terms of any such insurance policy.
1.7 “Final Expenses” means reimbursement of expenses to which Employee is entitled under programs and policies which the Company has made available to employees of the Company and which are in effect at the Company from time to time.
1.8 “Final Pay” means any unpaid base salary with respect to the period prior to the effective date of Employee’s termination of employment.
1.9 “Good Reason” means any of the following: (i) a material reduction in Employee’s title, organizational reporting level or base salary which is not agreed to by Employee; or (ii) a mandatory relocation of Employee’s employment with the Company more than 50 miles from Employee’s then-current principal work location, except for travel reasonably required in the performance of Employee’s duties and responsibilities; provided, however, that no termination shall be for Good Reason unless: (1) Employee has provided the Company with written notice that identifies the conduct alleged to have caused Good Reason within twenty (20) days of such conduct first occurring; (2) the Company fails to cure any such alleged conduct within thirty (30) days after the Company’s receipt of such written notice from Employee (the “Cure Period”); and (3) Employee provides the Company with notice of termination for Good Reason, with such termination to be effective within thirty (30) days of the end of the Cure Period.
1.10 “Health Insurance Continuation” means that, if Employee, following termination from employment, is eligible for, and timely elects to participate in, the Company’s group health insurance plans pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), the Company will pay the normal monthly employer’s cost of coverage under the Company’s group health insurance plans for full-time employees toward such COBRA coverage for the specified period of severance, if any, set forth in the applicable provision of Article II of this Agreement. If the specified period of severance provided for in this Agreement is longer than the end of the 18-month period for which Employee is eligible for COBRA, the Company will, until the end of such longer period, pay the normal monthly employer’s cost of coverage under the Company’s group health insurance plans to, at its sole discretion, allow Employee to continue to participate in such plans (if allowed by law and the Company’s policies, plans and programs) or allow Employee to purchase reasonably comparable individual health insurance coverage through
3
the end of such longer period. Employee acknowledges and agrees that Employee is responsible for paying the balance of any costs not paid for by the Company under this Agreement which are associated with Employee’s participation in the Company’s health insurance plans or individual health insurance and that Employee’s failure to pay such costs may result in the termination of Employee’s participation in such plans or insurance. Employee acknowledges and agrees that the Company may deduct from any Severance Payment Employee receives pursuant to this Agreement, amounts that Employee is responsible to pay for Health Insurance Continuation. Any Health Insurance Continuation provided for herein will cease on the date on which Employee becomes eligible for health insurance coverage under another employer’s group health insurance plan, and, within five (5) days of Employee becoming eligible for health insurance coverage under another employer’s group health insurance plan, Employee agrees to inform the Company of such fact in writing.
In no event will the Health Insurance Continuation to be provided by the Company pursuant to this Agreement in one taxable year affect the amount of Health Insurance Continuation to be provided in any other taxable year, nor will Employee’s right to Health Insurance Continuation be subject to liquidation or exchange for another benefit.
1.11 “Outplacement Services” means outplacement services from an outplacement service company of the Company’s choosing at a cost not to exceed Twenty Thousand and no/100 Dollars ($20,000.00), payable directly by the Company to such outplacement service company. If such benefit is not used by Employee during the six (6) month period following Employee’s termination of employment, it will be forfeited.
1.12 “Prorated Bonus” means a share of any bonus attributable to the fiscal year of the Company during which the date of termination of Employee’s employment with the Company occurs to which Employee would be entitled if he/she had worked for the entire fiscal year, as determined in the sole discretion of the Company (pro-rated, as determined by the Company, for the portion of the fiscal year prior to the date of Employee’s termination of employment).
1.13 “Retirement Age” means an Employee is at least fifty-five (55) years old and has completed ten (10) years or more of service as an Employee of the Company.
1.14 “Unpaid Bonus” means Employee’s unpaid bonus, if any, attributable to any complete fiscal year of the Company ended before the date of Employee’s termination of employment with the Company.
4
ARTICLE II
COMPENSATION AND BENEFITS
UPON TERMINATION OF EMPLOYMENT
2.1 Termination by Company for Cause. If Employee’s employment is terminated by the Company for Cause, Employee shall have no further rights against the Company hereunder, except for the right to receive (i) Final Pay; (ii) Final Expenses; and (iii) Employee’s Unpaid Bonus. The payment of the Unpaid Bonus shall be made at the same time as any such bonus is paid to other similarly situated executives of the Company. Furthermore, under this Section 2.1, vesting of any equity awards granted to Employee prior to the date of termination shall be as provided in the applicable equity award agreements between Employee and the Company.
2.2 Termination by Employee without Good Reason. If Employee’s employment is terminated by Employee voluntarily without Good Reason, Employee shall have no further rights against the Company hereunder, except for the right to receive (i) Final Pay; (ii) Final Expenses; and (iii) Employee’s Unpaid Bonus. The payment of the Unpaid Bonus shall be made at the same time as any such bonus is paid to other similarly situated executives of the Company. Furthermore, under this Section 2.2, vesting of any equity awards granted to Employee prior to the date of termination shall be as provided in the applicable equity award agreements between Employee and the Company.
2.3 Termination Due to Retirement. If Employee’s employment is voluntarily terminated by Employee after he/she has reached Retirement Age and prior to the termination, Employee certifies to the Company of his/her intention not to continue employment for another employer after such termination, Employee shall have no further rights against the Company hereunder, except for the right to receive (i) Final Pay; (ii) Final Expenses; (iii) Employee’s Unpaid Bonus; and (iv) Employee’s Prorated Bonus. Payment of the Unpaid Bonus and the Prorated Bonus shall be made at the same time as any such bonuses for such fiscal years are paid to other similarly situated executives of the Company. Furthermore, under this Section 2.3, vesting of any equity awards granted to Employee prior to the date of termination shall be as provided in the applicable equity award agreements between Employee and the Company.
2.4 Termination Due to Employee’s Death. If Employee’s employment is terminated due to Employee’s death, Employee’s Designated Beneficiary shall have no further rights against the Company hereunder, except for the right to receive (i) Final Pay; (ii) Final Expenses; (iii) Employee’s Unpaid Bonus; (iv) Employee’s Prorated Bonus; and (v) a Severance Payment (defined below). Payment of the Unpaid Bonus and the Prorated Bonus shall be made to Employee’s Designated Beneficiary at the same time as any such bonuses for such fiscal years are paid to other similarly situated executives of the Company. For purposes of this Section 2.4, “Severance Payment” means six (6) months of Employee’s base salary in effect as of the date of Employee’s death, payable in equal installments during the one (1) year period following the effective date of Employee’s termination pursuant to the normal payroll practices of the Company, except as otherwise provided in Section 2.8, below. Furthermore, under this Section 2.4, vesting of any equity awards granted to Employee prior to the date of Employee’s death shall be as provided in the applicable equity award agreements between Employee and the Company.
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2.5 Termination Due to Disability. If Employee’s employment is terminated due to Employee’s Disability, Employee shall have no further rights against the Company hereunder, except for the right to receive (i) Final Pay; (ii) Final Expenses; (iii) Employee’s Unpaid Bonus; (iv) Employee’s Prorated Bonus; and (v) a Severance Payment (defined below). Payment of the Unpaid Bonus and the Prorated Bonus shall be made to Employee at the same time as any such bonuses for such fiscal years are paid to other similarly situated executives of the Company. For purposes of this Section 2.5, “Severance Payment” means six (6) months of Employee’s base salary in effect as of the date of Employee’s termination of employment, payable in equal installments during the six (6) month period following the effective date of Employee’s termination pursuant to the normal payroll practices of the Company, except as otherwise provided in Section 2.8, below. The amount of such Severance Payment shall be reduced by (x) the value of any compensation (including, but not limited to, the value of any cash compensation, deferred compensation or equity-based compensation, valued in the sole discretion of the Company) received by Employee from another employer or service recipient during the six (6) month period following Employee’s termination of employment and (y) any payments received by Employee under any short-term disability plans, programs or policies offered by the Company during Employee’s absence from the Company prior to Employee’s termination of employment or during the six (6) month period thereafter and Employee agrees to reimburse the Company for the amount of any such reductions. Notwithstanding the foregoing, the amount of the Severance Payment under this Section 2.5 shall not be reduced by the value of any compensation payable under the Company’s Long Term Disability Program or any successor program thereto. Employee acknowledges and agrees that, upon the cessation, if any, of such Disability during the period for which the Severance Payment is to be made under this Section 2.5, he/she has an obligation to use his/her reasonable efforts to secure other employment and that his/her failure to do so, as determined at the sole discretion of the Board, is a breach of this Agreement subject to Section 8.5, below. Furthermore, under this Section 2.5, vesting of any equity awards granted to Employee prior to the date of termination shall be as provided in the applicable equity award agreements between Employee and the Company.
2.6 Termination by Company Without Cause or by Employee for Good Reason – No Change of Control. If Employee’s employment is terminated by the Company without Cause or voluntarily by Employee for Good Reason and such termination does not occur within fifteen (15) months after the occurrence of a Change of Control, Employee shall have no further rights against the Company hereunder, except for the right to receive (i) Final Pay; (ii) Final Expenses; (iii) Employee’s Unpaid Bonus; (iv) Employee’s Prorated Bonus; (v) Outplacement Services; (vi) Health Insurance Continuation; and (vii) a Severance Payment (defined below). Payments of the Unpaid Bonus and the Prorated Bonus shall be made at the same time as any such bonuses for such fiscal years are paid to other similarly situated executives of the Company. For purposes of this Section 2.6, “Severance Payment” means two (2) years of Employee’s base salary in effect as of the date of Employee’s termination of employment, which shall be paid to Employee in a lump sum within sixty (60) days following Employee’s termination of employment, except as otherwise provided in Section 2.8, below. Furthermore, under this Section 2.6, vesting of any equity awards granted to Employee prior to the date of termination shall be as provided in the applicable equity award agreements between Employee and the Company.
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2.7 Termination by Company Without Cause or by Employee for Good Reason - Change of Control. If Employee’s employment is terminated by the Company without Cause or voluntarily terminated by Employee for Good Reason and such termination occurs within fifteen (15) months after the occurrence of a Change of Control, Employee shall have no further rights against the Company hereunder, except for the right to receive (i) Final Pay; (ii) Final Expenses; (iii) Employee’s Unpaid Bonus; (iv) Outplacement Services; (v) Health Insurance Continuation; and (vi) a Severance Payment (defined below). The Unpaid Bonus shall be paid at the same time as any such bonuses are paid to other similarly situated executives of the Company. For purposes of this Section 2.7, “Severance Payment” means an amount equal to the product of (x) two (2) multiplied by (y) the sum of: (A) Employee’s annual base salary in effect as of the date of Employee’s termination of employment (or, if higher, Employee’s annual base salary immediately prior to the Change of Control) plus (B) an amount equal to the average (calculated at the sole discretion of the Company) annual incentive compensation plan payment paid to Employee for the three (3) fiscal years ending prior to the fiscal year which includes the date of Employee’s termination. The Severance Payment in this Section 2.7 shall be paid to Employee in a lump sum within sixty (60) days following Employee’s termination of employment, except as otherwise provided in Section 2.8, below. Furthermore, under this Section 2.7, vesting of any equity awards granted to Employee prior to the date of termination shall be as provided in the applicable equity award agreements between Employee and the Company.
2.8 Timing of Payments if Required by Code Section 409A. If amounts paid to Employee pursuant to any Section of this Article II would be subject to a penalty under Section 409A of the Internal Revenue Code (“Code Section 409A”) because Employee is a “specified employee” within the meaning of Code Section 409A(a)(2)(B)(i) and no other exceptions to the penalty are available, such payments will be delayed until the earliest date permissible following the date of Employee’s termination of employment, at which point any such delayed payments will be paid to Employee in a lump sum.
2.9 Release. As a condition to the receipt of any Severance Payment, Prorated Bonus, Health Insurance Continuation, or Outplacement Services hereunder, Employee, or his/her personal representative, shall be required to execute a written release agreement in a form satisfactory to the Company containing, among other items, a general release of claims against the Company and, as an additional condition to the receipt of such amounts or benefits, Employee shall refuse to exercise any right to revoke such release agreement during any applicable revocation period. Such written release under this Section 2.9 (i) shall be delivered to Employee within three (3) days after the date of termination of Employee’s employment, and (ii) must be executed by Employee and the revocation period must expire without revocation of such release within 60 days following the date of termination of employment or Employee shall forfeit the compensation and benefits provided under this Agreement that are conditioned upon the release. For any Severance Payment (or installment thereof) payable under this Agreement, to the extent that (i) the Severance Payment is not required to be delayed for six (6) months due to Employee’s qualification as a “specified employee” as defined in Code Section 409A and (ii) such payment(s) would otherwise be paid or provided to Employee within the 60-day period following the date of termination of employment, such payment(s) shall not be made until the first regular Company payroll date occurring at least five (5) business days after Employee’s execution of the written release and the expiration of the applicable revocation period, except where the 60-day period following the date of termination of employment spans two (2) different calendar years, in which case such payment(s) will not be made
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until the Company’s first regular Company payroll date occurring in the later calendar year during the 60-day period. For the sake of clarification, any Severance Payment (or installment thereof) that would otherwise be made within such 60-day period but are delayed because of the immediately preceding sentence shall accrue and be paid to Employee in a single lump sum on the date specified in the immediately preceding sentence.
2.10 Resignation from Positions. Unless otherwise requested by the Company in writing, upon termination of employment, for whatever reason, Employee shall be deemed to have resigned from any and all titles, positions and appointments Employee holds with the Company, Kohl’s Corporation or any of their subsidiaries or affiliates whether as an officer, director, employee, committee member, trustee or otherwise. Employee agrees to promptly execute such documents as the Company, in its sole discretion, shall reasonably deem necessary to effect such resignations.
ARTICLE III
RETURN OF RECORDS
Upon termination of employment, for whatever reason, or upon request by the Company at any time, Employee shall immediately return to the Company all documents, records, materials, or other property belonging and/or relating to the Company, all copies of all such materials, and any and all passwords and/or access codes necessary to access and control such materials. Upon termination of employment, for whatever reason, or upon request by the Company at any time, Employee further agrees to, at the Company’s discretion, return and/or destroy such records maintained by Employee on Employee’s own computer equipment or systems (including any cloud-based service), and to certify in writing, at the Company’s request, that such destruction has occurred.
ARTICLE IV
CONFIDENTIALITY
4.1 Acknowledgments. Employee acknowledges and agrees that, as an integral part of its business, the Company has expended a great deal of time, money and effort to develop and maintain confidential, proprietary and trade secret information to compete against similar businesses and that this information, if misused or disclosed, would be harmful to the Company’s business and competitive position in the marketplace. Employee further acknowledges and agrees that in Employee’s position with the Company, the Company provides Employee with access to its confidential, proprietary and trade secret information, strategies and other confidential business information that would be of considerable value to competitive businesses. As a result, Employee acknowledges and agrees that the restrictions contained in this Article IV are reasonable, appropriate and necessary for the protection of the Company’s confidential, proprietary and trade secret information. For purposes of this Article IV, the term “Company” means Kohl’s, Inc. and its parent companies, subsidiaries and other affiliates.
4.2. Confidentiality During Employment. During Employee’s employment with the Company, Employee will not directly or indirectly use or disclose any Confidential Information or Trade Secrets (defined below) except in the interest and for the benefit of the Company.
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4.3 Trade Secrets Post-Employment. After the termination, for whatever reason, of Employee’s employment with the Company, Employee will not directly or indirectly use or disclose any Trade Secrets. Nothing in this Agreement shall limit or supersede any common law, statutory or other protections of trade secrets where such protections provide the Company with greater rights or protections for a longer duration than provided in this Agreement.
4.4 Confidential Information Post-Employment. For a period of two (2) years following termination, for whatever reason, of Employee’s employment with the Company, Employee will not directly or indirectly use or disclose any Confidential Information, unless such information ceases to be deemed Confidential Information by means of one of the exclusions set forth in Section 4.5(c), below.
4.5 Definitions.
(a) Trade Secret. The term “Trade Secret” shall have that meaning set forth under applicable law.
(b) Confidential Information. The term “Confidential Information” shall mean all non-Trade Secret information of, about or related to the Company, whether created by, for or provided to the Company, which is not known to the public or the Company’s competitors, generally, including, but not limited to: (i) strategic growth plans, pricing policies and strategies, employment records and policies, operational methods, marketing plans and strategies, advertising plans and strategies, product development techniques and plans, business acquisition and divestiture plans, resources, vendors, sources of supply, suppliers and supplier contractual relationships and terms, technical processes, designs, inventions, research programs and results, source code, short-term and long-range planning, projections, information systems, sales objectives and performance, profit and profit margins, and seasonal plans, goals and objectives; (ii) information that is marked or otherwise designated or treated as confidential or proprietary by the Company; and (iii) information received by the Company from others which the Company has an obligation to treat as confidential.
(c) Exclusions. Notwithstanding the foregoing, the term “Confidential Information” shall not include, and the obligations set forth in this Article IV shall not apply to, any information which: (i) can be demonstrated by Employee to have been known by Employee prior to Employee’s employment by the Company; (ii) is or becomes generally available to the public through no act or omission of Employee; (iii) is obtained by Employee in good faith from a third party who discloses such information to Employee on a non-confidential basis without violating any obligation of confidentiality or secrecy relating to the information disclosed; or (iv) is independently developed by Employee outside the scope of Employee’s employment without use of Confidential Information or Trade Secrets.
(d) Defend Trade Secrets Act. With respect to the disclosure of a trade secret and in accordance with 18 U.S.C. § 1833, Employee shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that: (i) is made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, provided that, the information is disclosed solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding filed under seal so that it is not disclosed to the public. Employee is further notified
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that if Employee files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Employee may disclose the Company’s trade secrets to Employee’s attorney and use the trade secret information in the court proceeding, provided that, Employee files any document containing the trade secret under seal so that it is not disclosed to the public and does not disclose the trade secret, except pursuant to court order.
ARTICLE V
RESTRICTED SERVICES OBLIGATION
5.1 Acknowledgments. Employee acknowledges and agrees that the Company is one of the leading retail companies in the United States, with omni-channel presence throughout the United States, and that the Company compensates executives like Employee to, among other things, develop and maintain valuable goodwill and relationships on the Company’s behalf (including relationships with customers, suppliers, vendors, employees and other associates) and to maintain business information for the Company’s exclusive ownership and use. As a result, Employee acknowledges and agrees that the restrictions contained in this Article V are reasonable, appropriate and necessary for the protection of the Company’s goodwill, customer, supplier, vendor, employee and other associate relationships and Confidential Information and Trade Secrets. Employee further acknowledges and agrees that the restrictions contained in this Article V will not pose an undue hardship on Employee or Employee’s ability to find gainful employment. For purposes of this Article V, the term “Company” means Kohl’s, Inc. and its parent companies, subsidiaries and other affiliates.
5.2 Restrictions on Competition During Employment. During Employee’s employment with the Company, Employee shall not directly or indirectly compete against the Company, or directly or indirectly divert or attempt to divert any customer’s business from the Company anywhere the Company does or is taking steps to do business.
5.3 Post-Employment Restricted Services Obligation. For the one (1) year period following termination, for whatever reason, of Employee’s employment with the Company, Employee will not, directly or indirectly, provide Restricted Services (defined below) to or on behalf of any Competitor (defined below) to or for the benefit of any market in the continental United States and any other geographic market in which the Company is doing, or is taking material steps to do, business.
5.4 Definitions.
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5.5 California Employees Only. While Employee resides or works in California, the Parties acknowledge and agree that the restricted activities set forth in this Article V, shall not apply to the activities of Employee.
ARTICLE VI
BUSINESS IDEAS; NON-DISPARAGEMENT
6.1 Assignment of Business Ideas. Employee shall immediately disclose to the Company a list of all inventions, patents, applications for patent, copyrights, and applications for copyright in which Employee currently holds an interest. The Company will own, and Employee hereby assigns to the Company, all rights in all Business Ideas, as defined in Section 6.2, below. All Business Ideas which are or form the basis for copyrightable works shall be considered “works for hire” as that term is defined by United States Copyright Law. Any works that are not found to be “works for hire” are hereby assigned to the Company. While employed by the Company and for one (1) year thereafter, Employee will promptly disclose all Business Ideas to the Company and execute all documents which the Company may reasonably require to perfect its patent, copyright and other rights to such Business Ideas throughout the world. After Employee’s employment with the Company terminates, for whatever reason, Employee will cooperate with the Company to assist the Company in perfecting its rights to any Business Ideas including executing all documents which the Company may reasonably require. While Employee resides or works in California, the Parties acknowledge and agree that the obligations of this Section 6.1 do not apply to any invention which qualifies as a non-assignable invention under Section 2870 of the California Labor Code. Employee hereby represents that Employee has received and reviewed the notification attached hereto and incorporated herein as Exhibit A (“Limited Exclusion Notification”). For purposes of this Article VI, the term “Company” means Kohl’s, Inc. and its parent companies, subsidiaries and other affiliates.
6.2 Business Ideas. The term “Business Ideas” as used in this Agreement means all ideas, inventions, data, software, developments and copyrightable works, whether or not patentable or registrable, which Employee originates, discovers or develops, either alone or jointly with others while Employee is employed by the Company and for one (1) year thereafter and which are (i) related to any business known by Employee to be engaged in or contemplated by the Company; (ii) originated, discovered or developed during Employee’s working hours during his/her employment with the Company; or (iii) originated, discovered or developed in whole or in part using materials, labor, facilities, Confidential Information, Trade Secrets, or equipment furnished by the Company.
6.3 Non-Disparagement. Employee agrees not to engage at any time in any form of conduct or make any statements or representations, or direct any other person or entity to engage in any conduct or make any statements or representations, that disparage, criticize or otherwise impair the reputation of the Company, its affiliates, parents and subsidiaries and their respective past and present officers, directors, stockholders, partners, members, agents and employees. Nothing contained in this Section 6.3 shall preclude Employee from providing truthful testimony or statements pursuant to subpoena or other legal process or in response to inquiries from any government agency or entity. While Employee resides or works in California, the Parties acknowledge and agree that Employee shall not be precluded from exercising protected rights under California law, including without limitation, the right to disclose information about unlawful acts in the workplace as defined by Cal. Gov. Code Section 12964.5 or as authorized under C.C.P. Sec. 1001.
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ARTICLE VII
NON-SOLICITATION OF RESTRICTED PERSONS
7.1 Non-Solicitation of Restricted Persons. While Employee is employed by the Company, and for a period of one (1) year immediately following the end, for whatever reason, of Employee’s employment with the Company, Employee shall not directly or indirectly solicit any Restricted Person to provide services to or on behalf of a person or entity in a manner reasonably likely to pose a competitive threat to the Company. For purposes of this Article VII, the term “Company” means Kohl’s, Inc. and its parent companies, subsidiaries and other affiliates.
7.2 Restricted Person. The term “Restricted Person” means an individual who, at the time of the solicitation, is an employee of the Company and (i) who is a top-level employee of the Company, has special skills or knowledge important to the Company, or has skills that are difficult for the Company to replace and (ii) with whom Employee had a working relationship or about whom Employee acquired or possessed specialized knowledge, in each case, in connection with Employee’s employment with the Company and during the one (1) year period immediately prior to the end of Employee’s employment with the Company.
7.3 California Employees Only. While Employee resides or works in California, the Parties acknowledge and agree that the restricted activities set forth in this Article VII, shall be superseded as set forth below:
(a) Non-Solicitation of Restricted Persons. While Employee is employed by the Company and following the end, for whatever reason, of Employee’s employment with the Company, Employee shall not use Company Trade Secrets to directly or indirectly solicit any Restricted Person to provide services to or on behalf of a person or entity in a manner reasonably likely to pose a competitive threat to the Company. For purposes of this Article VII, the term “Company” means Kohl’s, Inc. and its parent companies, subsidiaries and other affiliates.
(b) Restricted Person. The term “Restricted Person” means an individual who, at the time of the solicitation, is an employee of the Company and (i) who is a top-level employee of the Company, has special skills or knowledge important to the Company, or has skills that are difficult for the Company to replace and (ii) with whom Employee had a working relationship or about whom Employee acquired or possessed specialized knowledge, in each case, in connection with Employee’s employment with the Company and during the one (1) year period immediately prior to the end of Employee’s employment with the Company.
ARTICLE VIII
GENERAL PROVISIONS
8.1 Notices. Any and all notices, consents, documents or communications provided for in this Agreement shall be given in writing and shall be personally delivered, mailed by registered or certified mail (return receipt requested) or sent by courier, confirmed by receipt, and addressed as follows (or to such other address as the addressed Party may have substituted by notice pursuant to this Section 8.1):
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(a) If to the Company:
Kohl’s, Inc.
N56 W17000 Ridgewood Drive
Menomonee Falls, WI 53051
Attn: Chief People Officer
(b) If to Employee:
Any notice to be given to Employee may be addressed to him/her at the address as it appears on the payroll records of the Company or any subsidiary thereof.
Such notice, consent, document or communication shall be deemed given upon personal delivery or receipt at the address of the Party stated above or at any other address specified by such Party to the other Party in writing, except that if delivery is refused or cannot be made for any reason, then such notice shall be deemed given on the third day after it is sent.
8.2 Employee Disclosures and Acknowledgments.
(a) Prior Obligations. Following is a list of prior obligations (written and oral), such as confidentiality agreements or covenants restricting future employment or consulting, that Employee has entered into which may restrict Employee’s ability to perform Employee’s duties as an Employee for the Company: Employee is subject to contractual and ethical obligations which preclude Employee from using or disclosing confidential information of Employee’s prior employer (Quad/Graphics) or from representing or advising the Company with respect to any matters in which her prior employer is adverse to the Company.
(b) Confidential Information of Others. Employee certifies that Employee has not, and will not, disclose or use during Employee’s time as an employee of the Company, any confidential information which Employee acquired as a result of any previous employment or under a contractual obligation of confidentiality or secrecy before Employee became an employee of the Company.
(c) Scope of Restrictions. By entering into this Agreement, Employee acknowledges the nature of the Company’s business and the nature and scope of the restrictions set forth in Articles IV, V, VI and VII, above, including specifically Wisconsin’s Uniform Trade Secrets Act, presently § 134.90, Wis. Stats. and, to the extent applicable, the California Uniform Trade Secrets Act, presently Cal. Civil Code §§ 3426-3426.11. Employee acknowledges and represents that the scope of such restrictions are appropriate, necessary and reasonable for the protection of the Company’s business, goodwill, and property rights. Employee further acknowledges that the restrictions imposed will not prevent Employee from earning a living in the event of, and after, termination, for whatever reason, of Employee’s employment with the Company. Nothing herein shall be deemed to prevent Employee, after termination of Employee’s employment with the Company, from using general skills and knowledge gained while employed by the Company.
(d) Prospective Employers. Employee agrees, during the term of any restriction contained in Articles IV, V, VI and VII, above, to disclose such provisions to any future or
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prospective employer. Employee further agrees that the Company may send a copy of this Agreement to, or otherwise make the provisions hereof known to, any such employer.
8.3 Effect of Termination. Notwithstanding any termination of this Agreement, Employee, in consideration of his/her employment hereunder, shall remain bound by the provisions of this Agreement which specifically relate to periods, activities or obligations upon or subsequent to the termination of Employee’s employment.
8.4 Cooperation. Employee agrees to take all reasonable steps during and after Employee’s employment with the Company to make himself/herself available to and to cooperate with the Company, at its request, in connection with any legal proceedings or other matters in which it is or may become involved. Following Employee’s employment with the Company, the Company agrees to pay reasonable compensation to Employee and to pay all reasonable expenses incurred by Employee in connection with Employee’s obligations under this Section 8.4.
8.5 Effect of Breach. In the event that Employee breaches any provision of this Agreement or any restrictive covenant agreement between the Company and Employee which is entered into subsequent to this Agreement, Employee agrees that the Company may suspend all additional payments to Employee under this Agreement (including any Severance Payment), recover from Employee any damages suffered as a result of such breach and recover from Employee any reasonable attorneys’ fees or costs it incurs as a result of such breach. In addition, Employee agrees that the Company may seek injunctive or other equitable relief, without the necessity of posting bond, as a result of a breach by Employee of any provision of this Agreement.
8.6 Entire Agreement. This Agreement, including all applicable Exhibits, contains the entire understanding and the full and complete agreement of the Parties and supersedes and replaces any prior understandings and agreements among the Parties with respect to the subject matter hereof.
8.7 Headings. The headings of sections and paragraphs of this Agreement are for convenience of reference only and shall not control or affect the meaning or construction of any of its provisions.
8.8 Consideration. The benefits provided to Employee under this Agreement constitute the consideration for Employee’s undertakings hereunder.
8.9 Amendment. This Agreement may be altered, amended or modified only in a writing, signed by both of the Parties hereto.
8.10 409A Compliance. With respect to any benefit payable by the Company to Employee during or after Employee’s employment, whether under this Agreement or otherwise, that is provided under or pursuant to a “nonqualified deferred compensation plan” as defined in Treasury Regulation Section 1.409A-1(a), the Parties intend that such benefit shall be exempt from or comply at all times with all operational and documentary requirements under Code Section 409A, related Treasury Regulations, and other governmental guidance related to Code Section 409A. Any provision that would cause this Agreement or any such payment, distribution or other benefit to fail to satisfy the requirements of Code Section 409A shall have no force or effect and to the extent an amendment would be effective for purposes of Code Section 409A, the Parties agree that this Agreement or such other arrangement shall be amended to comply with Code Section 409A. Such
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amendment shall be retroactive to the extent permitted by Code Section 409A. Each payment hereunder shall be treated as a separate and distinct “payment” for purposes of Code Section 409A. Notwithstanding anything herein to the contrary, the Company makes no representations or warranties to Employee with respect to any tax, economic or legal consequences of this Agreement or any payments or other benefits provided hereunder, including under Code Section 409A, and no provision of the Agreement shall be interpreted or construed to transfer any liability for failure to comply with Code Section 409A from Employee or any other individual to the Company or any other person. Employee, by executing this Agreement, shall be deemed to have waived any claim against the Company or any other person with respect to any such tax, or economic or legal consequences.
8.11 Assignability. This Agreement is personal to Employee, and Employee may not assign or delegate any of Employee’s rights or obligations hereunder. The Company shall have the unrestricted right to assign this Agreement and all of the Company’s rights (including the right to enforce this Agreement) and obligations under this Agreement. Employee hereby agrees that, at the Company’s request and expense, Employee will consent to any such assignment by the Company and will promptly execute any assignments or other documents necessary to effectuate any such assignment to the Company’s successors or assigns. Following such assignment, this Agreement shall be binding and inure to the benefit of any successor or assign of the Company. For clarification purposes, upon assignment of this Agreement, all references to the Company shall also refer to the person or entity to whom/which this Agreement is assigned.
8.12 Severability. The obligations imposed by, and the provisions of, this Agreement are severable and should be construed independently of each other. If any court of competent jurisdiction determines that any provision of this Agreement is invalid or unenforceable, then such invalidity or unenforceability shall have no effect on the other provisions hereof, which shall remain valid, binding and enforceable and in full force and effect, and such invalid or unenforceable provision shall not affect the validity of any other provision.
8.13 Waiver of Breach. The waiver by either Party of the breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either Party.
8.14 Governing Law; Construction. This Agreement shall be governed by the internal laws of the State of Wisconsin, without regard to (i) its conflicts of law provisions and (ii) any rules of construction concerning the draftsman hereof. While Employee resides or works in California, the Parties acknowledge and agree that this Agreement shall be governed by the internal laws of the State of California, without regard to (i) its conflicts of law provisions and (ii) any rules of construction concerning the draftsman hereof. References to “days” shall mean calendar days unless otherwise specified.
8.15 Counterparts. This Agreement may be executed in counterparts, including by facsimile or portable document format (.pdf) signature, each of which shall be deemed an original, and all counterparts so executed shall constitute one agreement binding on all of the Parties hereto notwithstanding that all of the Parties may not be a signatory to the same counterpart.
8.16 Consistency with Applicable Law. Employee acknowledges and agrees that nothing in this Agreement prohibits Employee from reporting possible violations of law to any governmental agency, regulatory body or entity, from making other disclosures that are protected under any law
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or regulation, or from filing a charge with or participating in any investigation or proceeding conducted by a governmental agency or regulatory body. Employee does not need the prior authorization of the Company’s legal department to make any such reports or disclosures and Employee is not required to notify the Company that Employee has made such reports or disclosures; however, the Company encourages Employee to do so. While Employee resides or works in California, the Parties acknowledge and agree that nothing in this Agreement prevents Employee from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that Employee has reason to believe is unlawful.
8.17 Arbitration. Employee acknowledges and agrees that Employee has received a copy of and understands the terms and provisions of the Company’s Dispute Resolution Policy (AR-256) (the “DRP”) and, unless Employee has properly elected to not be bound by the DRP as allowed by the DRP, the DRP is incorporated herein by this reference as though set forth in full. Employee and the Company agree that, to the extent that they constitute “Covered Disputes” under the DRP, any dispute, claim, or controversy between the Company and Employee, arising from or relating to Employee’s employment with the Company or termination of employment, including but not limited to claims arising under or related to this Agreement or any breach of this Agreement, and any alleged violation of any federal, state, or local statute, regulation, common law, or public policy, shall be submitted to and decided by final and binding arbitration in accordance with the terms and provisions of the DRP. For the sake of clarify, Employee and the Company acknowledge and agree that the Company retains its rights under Section 8.5 of this Agreement to seek injunctive or other equitable relief in a court of law. To the extent required under applicable law, “Excluded Disputes” under the DRP includes any claim for recoupment of any compensation pursuant to any recoupment policy maintained by the Company under Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act or any Securities and Exchange Commission Rules, as such policy is amended from time to time. As set forth in the DRP, this agreement to arbitrate shall be governed by the Federal Arbitration Act, 9 U.S.C. § et seq. (“FAA”), and shall survive the termination of Employee’s employment with the Company, and can only be revoked or modified by a writing signed by the Parties or as otherwise provided in the DRP.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year written above.
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COMPANY: |
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Kohl’s, Inc. |
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/s/ Marc Chini |
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By: |
Marc Chini |
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Chief People Officer |
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EMPLOYEE: |
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/s/ Jennifer Kent |
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Jennifer Kent |
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Exhibit A
California Employees Only
LIMITED EXCLUSION NOTIFICATION
This Is To Notify Employee in accordance with Section 2872 of the California Labor Code that the foregoing Agreement between Employee and the Company does not require Employee to assign, or offer to assign, to the Company any invention that Employee developed entirely on Employee’s own time without using the Company’s equipment, supplies, facilities, or trade secret information except for those inventions that either:
To the extent a provision in the Agreement purports to require Employee to assign an invention otherwise excluded from the preceding paragraph, the provision is against the public policy of the State of California and is unenforceable in California.
This limited exclusion does not apply to any patent or invention covered by a contract between the Company and the United States or any of its agencies requiring full title to such patent or invention to be in the United States.
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Exhibit 10.5
EXECUTIVE COMPENSATION AGREEMENT
THIS EXECUTIVE COMPENSATION AGREEMENT (“Agreement”) is effective as of this 20th day of March, 2023, by and between Kohl’s, Inc. (the “Company”) and Nicholas Jones (“Employee”).
RECITALS
Employee is employed as the Chief Merchandising and Digital Officer and is a valuable employee of the Company. The Company and Employee believe it is in their best interests to make provision for certain aspects of their relationship during and after the period in which Employee is employed by the Company.
NOW, THEREFORE, in consideration of the premises and the mutual agreements and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Company and Employee (individually, a “Party” and collectively the “Parties”), the Parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 “Board” shall mean the Board of Directors of the Company.
1.2 “Cause” shall mean any of the following:
1.3 “Change of Control” means the occurrence of any of the following:
For purposes of this Section 1.3, the term “Company” means Kohl’s Corporation. Following the occurrence of an event which is not a Change of Control whereby there is a successor company to the Company, or, if there is no such successor, whereby the Company is not the surviving corporation in a merger or consolidation, the surviving corporation or successor holding company (as the case may be), for purposes of this Agreement, shall thereafter be referred to as the Company.
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1.4 “Company” means Kohl’s, Inc., except as otherwise provided herein.
1.5 “Designated Beneficiary” means the person or persons designated by Employee, on a form provided by the Company, to receive benefits payable under this Agreement, if any, after the death of Employee.
1.6 “Disability” means Employee is unable to perform the essential functions of Employee’s job, with or without reasonable accommodation, for a period of one hundred eighty (180) days, whether consecutive or in the aggregate, over any three hundred sixty-five (365) day period. A determination of Disability shall be made by the Company, which may, at its sole discretion, consult with a physician or physicians satisfactory to the Company, and Employee shall cooperate with any efforts to make such determination. Any such determina tion shall be conclusive and binding on the Parties. Any determination of Disability under this Section 1.6 is not intended to alter any benefits any Party may be entitled to receive under any disability insurance policy carried by either the Company or Employee with respect to Employee, which benefits shall be governed solely by the terms of any such insurance policy.
1.7 “Final Expenses” means reimbursement of expenses to which Employee is entitled under programs and policies which the Company has made available to employees of the Company and which are in effect at the Company from time to time.
1.8 “Final Pay” means any unpaid base salary with respect to the period prior to the effective date of Employee’s termination of employment.
1.9 “Good Reason” means any of the following: (i) a material reduction in Employee’s title, organizational reporting level or base salary which is not agreed to by Employee; or (ii) a mandatory relocation of Employee’s employment with the Company more than 50 miles from Employee’s then-current principal work location, except for travel reasonably required in the performance of Employee’s duties and responsibilities; provided, however, that no termination shall be for Good Reason unless: (1) Employee has provided the Company with written notice that identifies the conduct alleged to have caused Good Reason within twenty (20) days of such conduct first occurring; (2) the Company fails to cure any such alleged conduct within thirty (30) days after the Company’s receipt of such written notice from Employee (the “Cure Period”); and (3) Employee provides the Company with notice of termination for Good Reason, with such termination to be effective within thirty (30) days of the end of the Cure Period.
1.10 “Health Insurance Continuation” means that, if Employee, following termination from employment, is eligible for, and timely elects to participate in, the Company’s group health insurance plans pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), the Company will pay the normal monthly employer’s cost of coverage under the Company’s group health insurance plans for full-time employees toward such COBRA coverage for the specified period of severance, if any, set forth in the applicable provision of Article II of this Agreement. If the specified period of severance provided for in this Agreement is longer than the end of the 18-month period for which Employee is eligible for COBRA, the Company will, until the end of such longer period, pay the normal monthly employer’s cost of coverage under the Company’s group health insurance plans to, at its sole discretion, allow Employee to continue to participate in such plans (if allowed by law and the Company’s policies, plans and programs) or allow Employee to purchase reasonably comparable individual health insurance coverage through
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the end of such longer period. Employee acknowledges and agrees that Employee is responsible for paying the balance of any costs not paid for by the Company under this Agreement which are associated with Employee’s participation in the Company’s health insurance plans or individual health insurance and that Employee’s failure to pay such costs may result in the termination of Employee’s participation in such plans or insurance. Employee acknowledges and agrees that the Company may deduct from any Severance Payment Employee receives pursuant to this Agreement, amounts that Employee is responsible to pay for Health Insurance Continuation. Any Health Insurance Continuation provided for herein will cease on the date on which Employee becomes eligible for health insurance coverage under another employer’s group health insurance plan, and, within five (5) days of Employee becoming eligible for health insurance coverage under another employer’s group health insurance plan, Employee agrees to inform the Company of such fact in writing.
In no event will the Health Insurance Continuation to be provided by the Company pursuant to this Agreement in one taxable year affect the amount of Health Insurance Continuation to be provided in any other taxable year, nor will Employee’s right to Health Insurance Continuation be subject to liquidation or exchange for another benefit.
1.11 “Outplacement Services” means outplacement services from an outplacement service company of the Company’s choosing at a cost not to exceed Twenty Thousand and no/100 Dollars ($20,000.00), payable directly by the Company to such outplacement service company. If such benefit is not used by Employee during the six (6) month period following Employee’s termination of employment, it will be forfeited.
1.12 “Prorated Bonus” means a share of any bonus attributable to the fiscal year of the Company during which the date of termination of Employee’s employment with the Company occurs to which Employee would be entitled if he/she had worked for the entire fiscal year, as determined in the sole discretion of the Company (pro-rated, as determined by the Company, for the portion of the fiscal year prior to the date of Employee’s termination of employment).
1.13 “Retirement Age” means an Employee is at least fifty-five (55) years old and has completed ten (10) years or more of service as an Employee of the Company.
1.14 “Unpaid Bonus” means Employee’s unpaid bonus, if any, attributable to any complete fiscal year of the Company ended before the date of Employee’s termination of employment with the Company.
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ARTICLE II
COMPENSATION AND BENEFITS
UPON TERMINATION OF EMPLOYMENT
2.1 Termination by Company for Cause. If Employee’s employment is terminated by the Company for Cause, Employee shall have no further rights against the Company hereunder, except for the right to receive (i) Final Pay; (ii) Final Expenses; and (iii) Employee’s Unpaid Bonus. The payment of the Unpaid Bonus shall be made at the same time as any such bonus is paid to other similarly situated executives of the Company. Furthermore, under this Section 2.1, vesting of any equity awards granted to Employee prior to the date of termination shall be as provided in the applicable equity award agreements between Employee and the Company.
2.2 Termination by Employee without Good Reason. If Employee’s employment is terminated by Employee voluntarily without Good Reason, Employee shall have no further rights against the Company hereunder, except for the right to receive (i) Final Pay; (ii) Final Expenses; and (iii) Employee’s Unpaid Bonus. The payment of the Unpaid Bonus shall be made at the same time as any such bonus is paid to other similarly situated executives of the Company. Furthermore, under this Section 2.2, vesting of any equity awards granted to Employee prior to the date of termination shall be as provided in the applicable equity award agreements between Employee and the Company.
2.3 Termination Due to Retirement. If Employee’s employment is voluntarily terminated by Employee after he/she has reached Retirement Age and prior to the termination, Employee certifies to the Company of his/her intention not to continue employment for another employer after such termination, Employee shall have no further rights against the Company hereunder, except for the right to receive (i) Final Pay; (ii) Final Expenses; (iii) Employee’s Unpaid Bonus; and (iv) Employee’s Prorated Bonus. Payment of the Unpaid Bonus and the Prorated Bonus shall be made at the same time as any such bonuses for such fiscal years are paid to other similarly situated executives of the Company. Furthermore, under this Section 2.3, vesting of any equity awards granted to Employee prior to the date of termination shall be as provided in the applicable equity award agreements between Employee and the Company.
2.4 Termination Due to Employee’s Death. If Employee’s employment is terminated due to Employee’s death, Employee’s Designated Beneficiary shall have no further rights against the Company hereunder, except for the right to receive (i) Final Pay; (ii) Final Expenses; (iii) Employee’s Unpaid Bonus; (iv) Employee’s Prorated Bonus; and (v) a Severance Payment (defined below). Payment of the Unpaid Bonus and the Prorated Bonus shall be made to Employee’s Designated Beneficiary at the same time as any such bonuses for such fiscal years are paid to other similarly situated executives of the Company. For purposes of this Section 2.4, “Severance Payment” means six (6) months of Employee’s base salary in effect as of the date of Employee’s death, payable in equal installments during the one (1) year period following the effective date of Employee’s termination pursuant to the normal payroll practices of the Company, except as otherwise provided in Section 2.8, below. Furthermore, under this Section 2.4, vesting of any equity awards granted to Employee prior to the date of Employee’s death shall be as provided in the applicable equity award agreements between Employee and the Company.
2.5 Termination Due to Disability. If Employee’s employment is terminated due to Employee’s Disability, Employee shall have no further rights against the Company hereunder,
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except for the right to receive (i) Final Pay; (ii) Final Expenses; (iii) Employee’s Unpaid Bonus; (iv) Employee’s Prorated Bonus; and (v) a Severance Payment (defined below). Payment of the Unpaid Bonus and the Prorated Bonus shall be made to Employee at the same time as any such bonuses for such fiscal years are paid to other similarly situated executives of the Company. For purposes of this Section 2.5, “Severance Payment” means six (6) months of Employee’s base salary in effect as of the date of Employee’s termination of employment, payable in equal installments during the six (6) month period following the effective date of Employee’s termination pursuant to the normal payroll practices of the Company, except as otherwise provided in Section 2.8, below. The amount of such Severance Payment shall be reduced by (x) the value of any compensation (including, but not limited to, the value of any cash compensation, deferred compensation or equity-based compensation, valued in the sole discretion of the Company) received by Employee from another employer or service recipient during the six (6) month period following Employee’s termination of employment and (y) any payments received by Employee under any short-term disability plans, programs or policies offered by the Company during Employee’s absence from the Company prior to Employee’s termination of employment or during the six (6) month period thereafter and Employee agrees to reimburse the Company for the amount of any such reductions. Notwithstanding the foregoing, the amount of the Severance Payment under this Section 2.5 shall not be reduced by the value of any compensation payable under the Company’s Long Term Disability Program or any successor program thereto. Employee acknowledges and agrees that, upon the cessation, if any, of such Disability during the period for which the Severance Payment is to be made under this Section 2.5, he/she has an obligation to use his/her reasonable efforts to secure other employment and that his/her failure to do so, as determined at the sole discretion of the Board, is a breach of this Agreement subject to Section 8.5, below. Furthermore, under this Section 2.5, vesting of any equity awards granted to Employee prior to the date of termination shall be as provided in the applicable equity award agreements between Employee and the Company.
2.6 Termination by Company Without Cause or by Employee for Good Reason – No Change of Control. If Employee’s employment is terminated by the Company without Cause or voluntarily by Employee for Good Reason and such termination does not occur within fifteen (15) months after the occurrence of a Change of Control, Employee shall have no further rights against the Company hereunder, except for the right to receive (i) Final Pay; (ii) Final Expenses; (iii) Employee’s Unpaid Bonus; (iv) Employee’s Prorated Bonus; (v) Outplacement Services; (vi) Health Insurance Continuation; and (vii) a Severance Payment (defined below). Payments of the Unpaid Bonus and the Prorated Bonus shall be made at the same time as any such bonuses for such fiscal years are paid to other similarly situated executives of the Company. For purposes of this Section 2.6, “Severance Payment” means two (2) years of Employee’s base salary in effect as of the date of Employee’s termination of employment, which shall be paid to Employee in a lump sum within sixty (60) days following Employee’s termination of employment, except as otherwise provided in Section 2.8, below. Furthermore, under this Section 2.6, vesting of any equity awards granted to Employee prior to the date of termination shall be as provided in the applicable equity award agreements between Employee and the Company.
2.7 Termination by Company Without Cause or by Employee for Good Reason - Change of Control. If Employee’s employment is terminated by the Company without Cause or voluntarily terminated by Employee for Good Reason and such termination occurs within fifteen (15) months after the occurrence of a Change of Control, Employee shall have no further rights against the Company hereunder, except for the right to receive (i) Final Pay; (ii) Final Expenses; (iii)
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Employee’s Unpaid Bonus; (iv) Outplacement Services; (v) Health Insurance Continuation; and (vi) a Severance Payment (defined below). The Unpaid Bonus shall be paid at the same time as any such bonuses are paid to other similarly situated executives of the Company. For purposes of this Section 2.7, “Severance Payment” means an amount equal to the product of (x) two (2) multiplied by (y) the sum of: (A) Employee’s annual base salary in effect as of the date of Employee’s termination of employment (or, if higher, Employee’s annual base salary immediately prior to the Change of Control) plus (B) an amount equal to the average (calculated at the sole discretion of the Company) annual incentive compensation plan payment paid to Employee for the three (3) fiscal years ending prior to the fiscal year which includes the date of Employee’s termination. The Severance Payment in this Section 2.7 shall be paid to Employee in a lump sum within sixty (60) days following Employee’s termination of employment, except as otherwise provided in Section 2.8, below. Furthermore, under this Section 2.7, vesting of any equity awards granted to Employee prior to the date of termination shall be as provided in the applicable equity award agreements between Employee and the Company.
2.8 Timing of Payments if Required by Code Section 409A. If amounts paid to Employee pursuant to any Section of this Article II would be subject to a penalty under Section 409A of the Internal Revenue Code (“Code Section 409A”) because Employee is a “specified employee” within the meaning of Code Section 409A(a)(2)(B)(i) and no other exceptions to the penalty are available, such payments will be delayed until the earliest date permissible following the date of Employee’s termination of employment, at which point any such delayed payments will be paid to Employee in a lump sum.
2.9 Release. As a condition to the receipt of any Severance Payment, Prorated Bonus, Health Insurance Continuation, or Outplacement Services hereunder, Employee, or his/her personal representative, shall be required to execute a written release agreement in a form satisfactory to the Company containing, among other items, a general release of claims against the Company and, as an additional condition to the receipt of such amounts or benefits, Employee shall refuse to exercise any right to revoke such release agreement during any applicable revocation period. Such written release under this Section 2.9 (i) shall be delivered to Employee within three (3) days after the date of termination of Employee’s employment, and (ii) must be executed by Employee and the revocation period must expire without revocation of such release within 60 days following the date of termination of employment or Employee shall forfeit the compensation and benefits provided under this Agreement that are conditioned upon the release. For any Severance Payment (or installment thereof) payable under this Agreement, to the extent that (i) the Severance Payment is not required to be delayed for six (6) months due to Employee’s qualification as a “specified employee” as defined in Code Section 409A and (ii) such payment(s) would otherwise be paid or provided to Employee within the 60-day period following the date of termination of employment, such payment(s) shall not be made until the first regular Company payroll date occurring at least five (5) business days after Employee’s execution of the written release and the expiration of the applicable revocation period, except where the 60-day period following the date of termination of employment spans two (2) different calendar years, in which case such payment(s) will not be made until the Company’s first regular Company payroll date occurring in the later calendar year during the 60-day period. For the sake of clarification, any Severance Payment (or installment thereof) that would otherwise be made within such 60-day period but are delayed because of the immediately preceding sentence shall accrue and be paid to Employee in a single lump sum on the date specified in the immediately preceding sentence.
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2.10 Resignation from Positions. Unless otherwise requested by the Company in writing, upon termination of employment, for whatever reason, Employee shall be deemed to have resigned from any and all titles, positions and appointments Employee holds with the Company, Kohl’s Corporation or any of their subsidiaries or affiliates whether as an officer, director, employee, committee member, trustee or otherwise. Employee agrees to promptly execute such documents as the Company, in its sole discretion, shall reasonably deem necessary to effect such resignations.
ARTICLE III
RETURN OF RECORDS
Upon termination of employment, for whatever reason, or upon request by the Company at any time, Employee shall immediately return to the Company all documents, records, materials, or other property belonging and/or relating to the Company, all copies of all such materials, and any and all passwords and/or access codes necessary to access and control such materials. Upon termination of employment, for whatever reason, or upon request by the Company at any time, Employee further agrees to, at the Company’s discretion, return and/or destroy such records maintained by Employee on Employee’s own computer equipment or systems (including any cloud-based service), and to certify in writing, at the Company’s request, that such destruction has occurred.
ARTICLE IV
CONFIDENTIALITY
4.1 Acknowledgments. Employee acknowledges and agrees that, as an integral part of its business, the Company has expended a great deal of time, money and effort to develop and maintain confidential, proprietary and trade secret information to compete against similar businesses and that this information, if misused or disclosed, would be harmful to the Company’s business and competitive position in the marketplace. Employee further acknowledges and agrees that in Employee’s position with the Company, the Company provides Employee with access to its confidential, proprietary and trade secret information, strategies and other confidential business information that would be of considerable value to competitive businesses. As a result, Employee acknowledges and agrees that the restrictions contained in this Article IV are reasonable, appropriate and necessary for the protection of the Company’s confidential, proprietary and trade secret information. For purposes of this Article IV, the term “Company” means Kohl’s, Inc. and its parent companies, subsidiaries and other affiliates.
4.2 Confidentiality During Employment. During Employee’s employment with the Company, Employee will not directly or indirectly use or disclose any Confidential Information or Trade Secrets (defined below) except in the interest and for the benefit of the Company.
4.3 Trade Secrets Post-Employment. After the termination, for whatever reason, of Employee’s employment with the Company, Employee will not directly or indirectly use or disclose any Trade Secrets. Nothing in this Agreement shall limit or supersede any common law, statutory or other protections of trade secrets where such protections provide the Company with greater rights or protections for a longer duration than provided in this Agreement.
4.4 Confidential Information Post-Employment. For a period of two (2) years following termination, for whatever reason, of Employee’s employment with the Company, Employee will not directly or indirectly use or disclose any Confidential Information, unless such information
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ceases to be deemed Confidential Information by means of one of the exclusions set forth in Section 4.5(c), below.
4.5 Definitions.
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ARTICLE V
RESTRICTED SERVICES OBLIGATION
5.1 Acknowledgments. Employee acknowledges and agrees that the Company is one of the leading retail companies in the United States, with omni-channel presence throughout the United States, and that the Company compensates executives like Employee to, among other things, develop and maintain valuable goodwill and relationships on the Company’s behalf (including relationships with customers, suppliers, vendors, employees and other associates) and to maintain business information for the Company’s exclusive ownership and use. As a result, Employee acknowledges and agrees that the restrictions contained in this Article V are reasonable, appropriate and necessary for the protection of the Company’s goodwill, customer, supplier, vendor, employee and other associate relationships and Confidential Information and Trade Secrets. Employee further acknowledges and agrees that the restrictions contained in this Article V will not pose an undue hardship on Employee or Employee’s ability to find gainful employment. For purposes of this Article V, the term “Company” means Kohl’s, Inc. and its parent companies, subsidiaries and other affiliates.
5.2 Restrictions on Competition During Employment. During Employee’s employment with the Company, Employee shall not directly or indirectly compete against the Company, or directly or indirectly divert or attempt to divert any customer’s business from the Company anywhere the Company does or is taking steps to do business.
5.3 Post-Employment Restricted Services Obligation. For the one (1) year period following termination, for whatever reason, of Employee’s employment with the Company, Employee will not, directly or indirectly, provide Restricted Services (defined below) to or on behalf of any Competitor (defined below) to or for the benefit of any market in the continental United States and any other geographic market in which the Company is doing, or is taking material steps to do, business.
5.4 Definitions.
5.5 California Employees Only. While Employee resides or works in California, the Parties acknowledge and agree that the restricted activities set forth in this Article V, shall not apply to the activities of Employee.
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ARTICLE VI
BUSINESS IDEAS; NON-DISPARAGEMENT
6.1 Assignment of Business Ideas. Employee shall immediately disclose to the Company a list of all inventions, patents, applications for patent, copyrights, and applications for copyright in which Employee currently holds an interest. The Company will own, and Employee hereby assigns to the Company, all rights in all Business Ideas, as defined in Section 6.2, below. All Business Ideas which are or form the basis for copyrightable works shall be considered “works for hire” as that term is defined by United States Copyright Law. Any works that are not found to be “works for hire” are hereby assigned to the Company. While employed by the Company and for one (1) year thereafter, Employee will promptly disclose all Business Ideas to the Company and execute all documents which the Company may reasonably require to perfect its patent, copyright and other rights to such Business Ideas throughout the world. After Employee’s employment with the Company terminates, for whatever reason, Employee will cooperate with the Company to assist the Company in perfecting its rights to any Business Ideas including executing all documents which the Company may reasonably require. While Employee resides or works in California, the Parties acknowledge and agree that the obligations of this Section 6.1 do not apply to any invention which qualifies as a non-assignable invention under Section 2870 of the California Labor Code. Employee hereby represents that Employee has received and reviewed the notification attached hereto and incorporated herein as Exhibit A (“Limited Exclusion Notification”). For purposes of this Article VI, the term “Company” means Kohl’s, Inc. and its parent companies, subsidiaries and other affiliates.
6.2 Business Ideas. The term “Business Ideas” as used in this Agreement means all ideas, inventions, data, software, developments and copyrightable works, whether or not patentable or registrable, which Employee originates, discovers or develops, either alone or jointly with others while Employee is employed by the Company and for one (1) year thereafter and which are (i) related to any business known by Employee to be engaged in or contemplated by the Company; (ii) originated, discovered or developed during Employee’s working hours during his/her employment with the Company; or (iii) originated, discovered or developed in whole or in part using materials, labor, facilities, Confidential Information, Trade Secrets, or equipment furnished by the Company.
6.3 Non-Disparagement. Employee agrees not to engage at any time in any form of conduct or make any statements or representations, or direct any other person or entity to engage in any conduct or make any statements or representations, that disparage, criticize or otherwise impair the reputation of the Company, its affiliates, parents and subsidiaries and their respective past and present officers, directors, stockholders, partners, members, agents and employees. Nothing contained in this Section 6.3 shall preclude Employee from providing truthful testimony or statements pursuant to subpoena or other legal process or in response to inquiries from any government agency or entity. While Employee resides or works in California, the Parties acknowledge and agree that Employee shall not be precluded from exercising protected rights under California law, including without limitation, the right to disclose information about unlawful acts in the workplace as defined by Cal. Gov. Code Section 12964.5 or as authorized under C.C.P. Sec. 1001.
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ARTICLE VII
NON-SOLICITATION OF RESTRICTED PERSONS
7.1 Non-Solicitation of Restricted Persons. While Employee is employed by the Company, and for a period of one (1) year immediately following the end, for whatever reason, of Employee’s employment with the Company, Employee shall not directly or indirectly solicit any Restricted Person to provide services to or on behalf of a person or entity in a manner reasonably likely to pose a competitive threat to the Company. For purposes of this Article VII, the term “Company” means Kohl’s, Inc. and its parent companies, subsidiaries and other affiliates.
7.2 Restricted Person. The term “Restricted Person” means an individual who, at the time of the solicitation, is an employee of the Company and (i) who is a top-level employee of the Company, has special skills or knowledge important to the Company, or has skills that are difficult for the Company to replace and (ii) with whom Employee had a working relationship or about whom Employee acquired or possessed specialized knowledge, in each case, in connection with Employee’s employment with the Company and during the one (1) year period immediately prior to the end of Employee’s employment with the Company.
7.3 California Employees Only. While Employee resides or works in California, the Parties acknowledge and agree that the restricted activities set forth in this Article VII, shall be superseded as set forth below:
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ARTICLE VIII
GENERAL PROVISIONS
8.1 Notices. Any and all notices, consents, documents or communications provided for in this Agreement shall be given in writing and shall be personally delivered, mailed by registered or certified mail (return receipt requested) or sent by courier, confirmed by receipt, and addressed as follows (or to such other address as the addressed Party may have substituted by notice pursuant to this Section 8.1):
(a) If to the Company:
Kohl’s, Inc.
N56 W17000 Ridgewood Drive
Menomonee Falls, WI 53051
Attn: Chief Legal Officer
(b) If to Employee:
Any notice to be given to Employee may be addressed to him/her at the address as it appears on the payroll records of the Company or any subsidiary thereof.
Such notice, consent, document or communication shall be deemed given upon personal delivery or receipt at the address of the Party stated above or at any other address specified by such Party to the other Party in writing, except that if delivery is refused or cannot be made for any reason, then such notice shall be deemed given on the third day after it is sent.
8.2 Employee Disclosures and Acknowledgments.
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8.3 Effect of Termination. Notwithstanding any termination of this Agreement, Employee, in consideration of his/her employment hereunder, shall remain bound by the provisions of this Agreement which specifically relate to periods, activities or obligations upon or subsequent to the termination of Employee’s employment.
8.4 Cooperation. Employee agrees to take all reasonable steps during and after Employee’s employment with the Company to make himself/herself available to and to cooperate with the Company, at its request, in connection with any legal proceedings or other matters in which it is or may become involved. Following Employee’s employment with the Company, the Company agrees to pay reasonable compensation to Employee and to pay all reasonable expenses incurred by Employee in connection with Employee’s obligations under this Section 8.4.
8.5 Effect of Breach. In the event that Employee breaches any provision of this Agreement or any restrictive covenant agreement between the Company and Employee which is entered into subsequent to this Agreement, Employee agrees that the Company may suspend all additional payments to Employee under this Agreement (including any Severance Payment), recover from Employee any damages suffered as a result of such breach and recover from Employee any reasonable attorneys’ fees or costs it incurs as a result of such breach. In addition, Employee agrees that the Company may seek injunctive or other equitable relief, without the necessity of posting bond, as a result of a breach by Employee of any provision of this Agreement.
8.6 Entire Agreement. This Agreement, including all applicable Exhibits, contains the entire understanding and the full and complete agreement of the Parties and supersedes and replaces any prior understandings and agreements among the Parties with respect to the subject matter hereof.
8.7 Headings. The headings of sections and paragraphs of this Agreement are for convenience of reference only and shall not control or affect the meaning or construction of any of its provisions.
8.8 Consideration. The benefits provided to Employee under this Agreement constitute the consideration for Employee’s undertakings hereunder.
8.9 Amendment. This Agreement may be altered, amended or modified only in a writing, signed by both of the Parties hereto.
8.10 409A Compliance. With respect to any benefit payable by the Company to Employee during or after Employee’s employment, whether under this Agreement or otherwise, that is provided under or pursuant to a “nonqualified deferred compensation plan” as defined in Treasury Regulation Section 1.409A-1(a), the Parties intend that such benefit shall be exempt from or comply
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at all times with all operational and documentary requirements under Code Section 409A, related Treasury Regulations, and other governmental guidance related to Code Section 409A. Any provision that would cause this Agreement or any such payment, distribution or other benefit to fail to satisfy the requirements of Code Section 409A shall have no force or effect and to the extent an amendment would be effective for purposes of Code Section 409A, the Parties agree that this Agreement or such other arrangement shall be amended to comply with Code Section 409A. Such amendment shall be retroactive to the extent permitted by Code Section 409A. Each payment hereunder shall be treated as a separate and distinct “payment” for purposes of Code Section 409A. Notwithstanding anything herein to the contrary, the Company makes no representations or warranties to Employee with respect to any tax, economic or legal consequences of this Agreement or any payments or other benefits provided hereunder, including under Code Section 409A, and no provision of the Agreement shall be interpreted or construed to transfer any liability for failure to comply with Code Section 409A from Employee or any other individual to the Company or any other person. Employee, by executing this Agreement, shall be deemed to have waived any claim against the Company or any other person with respect to any such tax, or economic or legal consequences.
8.11 Assignability. This Agreement is personal to Employee, and Employee may not assign or delegate any of Employee’s rights or obligations hereunder. The Company shall have the unrestricted right to assign this Agreement and all of the Company’s rights (including the right to enforce this Agreement) and obligations under this Agreement. Employee hereby agrees that, at the Company’s request and expense, Employee will consent to any such assignment by the Company and will promptly execute any assignments or other documents necessary to effectuate any such assignment to the Company’s successors or assigns. Following such assignment, this Agreement shall be binding and inure to the benefit of any successor or assign of the Company. For clarification purposes, upon assignment of this Agreement, all references to the Company shall also refer to the person or entity to whom/which this Agreement is assigned.
8.12 Severability. The obligations imposed by, and the provisions of, this Agreement are severable and should be construed independently of each other. If any court of competent jurisdiction determines that any provision of this Agreement is invalid or unenforceable, then such invalidity or unenforceability shall have no effect on the other provisions hereof, which shall remain valid, binding and enforceable and in full force and effect, and such invalid or unenforceable provision shall not affect the validity of any other provision.
8.13 Waiver of Breach. The waiver by either Party of the breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either Party.
8.14 Governing Law; Construction. This Agreement shall be governed by the internal laws of the State of Wisconsin, without regard to (i) its conflicts of law provisions and (ii) any rules of construction concerning the draftsman hereof. While Employee resides or works in California, the Parties acknowledge and agree that this Agreement shall be governed by the internal laws of the State of California, without regard to (i) its conflicts of law provisions and (ii) any rules of construction concerning the draftsman hereof. References to “days” shall mean calendar days unless otherwise specified.
8.15 Counterparts. This Agreement may be executed in counterparts, including by facsimile or portable document format (.pdf) signature, each of which shall be deemed an original,
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and all counterparts so executed shall constitute one agreement binding on all of the Parties hereto notwithstanding that all of the Parties may not be a signatory to the same counterpart.
8.16 Consistency with Applicable Law. Employee acknowledges and agrees that nothing in this Agreement prohibits Employee from reporting possible violations of law to any governmental agency, regulatory body or entity, from making other disclosures that are protected under any law or regulation, or from filing a charge with or participating in any investigation or proceeding conducted by a governmental agency or regulatory body. Employee does not need the prior authorization of the Company’s legal department to make any such reports or disclosures and Employee is not required to notify the Company that Employee has made such reports or disclosures; however, the Company encourages Employee to do so. While Employee resides or works in California, the Parties acknowledge and agree that nothing in this Agreement prevents Employee from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that Employee has reason to believe is unlawful.
8.17 Arbitration. Employee acknowledges and agrees that Employee has received a copy of and understands the terms and provisions of the Company’s Dispute Resolution Policy (AR-256) (the “DRP”) and, unless Employee has properly elected to not be bound by the DRP as allowed by the DRP, the DRP is incorporated herein by this reference as though set forth in full. Employee and the Company agree that, to the extent that they constitute “Covered Disputes” under the DRP, any dispute, claim, or controversy between the Company and Employee, arising from or relating to Employee’s employment with the Company or termination of employment, including but not limited to claims arising under or related to this Agreement or any breach of this Agreement, and any alleged violation of any federal, state, or local statute, regulation, common law, or public policy, shall be submitted to and decided by final and binding arbitration in accordance with the terms and provisions of the DRP. For the sake of clarify, Employee and the Company acknowledge and agree that the Company retains its rights under Section 8.5 of this Agreement to seek injunctive or other equitable relief in a court of law. To the extent required under applicable law, “Excluded Disputes” under the DRP includes any claim for recoupment of any compensation pursuant to any recoupment policy maintained by the Company under Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act or any Securities and Exchange Commission Rules, as such policy is amended from time to time. As set forth in the DRP, this agreement to arbitrate shall be governed by the Federal Arbitration Act, 9 U.S.C. § et seq. (“FAA”), and shall survive the termination of Employee’s employment with the Company, and can only be revoked or modified by a writing signed by the Parties or as otherwise provided in the DRP. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year written above.
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COMPANY: |
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Kohl’s, Inc. |
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/s/ Marc Chini |
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By: |
Marc Chini |
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Chief People Officer |
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EMPLOYEE: |
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/s/ Nicholas Jones |
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Nicholas Jones |
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Exhibit A
California Employees Only
LIMITED EXCLUSION NOTIFICATION
This Is To Notify Employee in accordance with Section 2872 of the California Labor Code that the foregoing Agreement between Employee and the Company does not require Employee to assign, or offer to assign, to the Company any invention that Employee developed entirely on Employee’s own time without using the Company’s equipment, supplies, facilities, or trade secret information except for those inventions that either:
To the extent a provision in the Agreement purports to require Employee to assign an invention otherwise excluded from the preceding paragraph, the provision is against the public policy of the State of California and is unenforceable in California.
This limited exclusion does not apply to any patent or invention covered by a contract between the Company and the United States or any of its agencies requiring full title to such patent or invention to be in the United States.
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N56 W17000 Ridgewood Drive
Menomonee Falls, WI 53051
March 21, 2023
Marc Chini
N56 W17000 Ridgewood Drive
Menomonee Falls, WI 53051
Dear Marc,
This letter agreement (the “Letter Agreement”) is intended to document our agreements with respect to the terms of your retirement and as an amendment of certain specific terms of the Executive Compensation Agreement dated August 30, 2019 (the “ECA”) between you and Kohl’s Department Stores, Inc. (the “Company”). In the event of any conflict between this Letter Agreement and the ECA, this Letter Agreement shall control.
Pursuant to your request, we have agreed that you will resign from your position as the Company’s Chief People Officer (“CPO”) on April 2, 2023 (the “Transition Date”). Except as expressly set forth in this Letter Agreement, you formally resign from all offices, positions, titles and capacities you now hold or have held with Company and its affiliates, effective on the Transition Date. Company hereby accepts this resignation. From the date of this Letter Agreement until the Transition Date, you will continue in your current capacity as CPO and an Executive Officer, managing the business and your team in a “business as usual” manner. Between the date of this Letter Agreement and the Transition Date, the terms of your ECA shall remain unmodified.
Notwithstanding your resignation as CPO on the Transition Date, from the Transition Date through November 15, 2023 (the “Transition Period”), you will continue to be an employee of Company as a non-executive Senior Advisor. During the Transition Period, you agree to be available for reasonable periods of time to provide transitional assistance or to work on special projects, all at the discretion of the Chief Executive Officer of Company. For as long as you provide such assistance and work on special projects as requested during the Transition Period, you will continue to earn and receive your current level of salary and benefits during the Transition Period, except as otherwise provided in this Letter Agreement. To the extent you provide the services requested during the Transition Period, you will be eligible for a pro-rated bonus under the Fiscal 2023 Annual Incentive Plan, pro-rated from the beginning of the 2023 Fiscal Year through the Transition Date. Except as otherwise provided in this Letter Agreement, you will continue to be treated as an employee for purposes of all of Company’s benefit plans during the Transition Period. At the end of the Transition Period your employment with Company will end
N56 W17000 Ridgewood Drive
Menomonee Falls, WI 53051
and you will be entitled to no further compensation or benefits but for those provided by this Letter Agreement. At the end of the Transition Period or, if earlier, upon request by Company, you agree to immediately return to Company all documents, records, and materials belonging and/or relating to Company, and all copies of all such materials. At the end of the Transition Period, or if earlier, upon request Company, you further agree to destroy such records maintained by you on your own computer equipment.
For purposes of the ECA, you agree and acknowledge that your role change from CPO to Senior Advisor is voluntary and shall not be treated as a triggering event for Good Reason under the ECA. During the Transition Period, the terms of your ECA shall remain in place, except as modified below in Paragraph 4.
From the date of this Letter Agreement, you will no longer be eligible for any new equity award grants such as performance share units or restricted share units under Company’s Long-Term Compensation Plan. Provided you remain employed until the Transition Date in accordance with Paragraph 1 above and that you provide the services requested during the Transition Period in accordance with Paragraph 2 above, Company will treat your retirement as a “retirement” for purposes of all of the outstanding restricted stock units and performance share units held by you on the Transition Date, where the last day of your employment and your retirement date for purposes of those awards will be the last date of the Transition Period. Any restricted shares that are scheduled to vest following the Transition Period shall be forfeited as of the last date of the Transition Period.
As mentioned above, the terms of your ECA shall remain in place during the Transition Period and the parties retain their rights to terminate the Senior Advisor relationship prior to the end of the Transition Period set forth in paragraph 2. Notwithstanding the foregoing, in the event of a termination of your employment during the Transition Period, if such termination is a termination described in Sections 2.4 – 2.7 of the ECA, the “Severance Payment” for the applicable termination is hereby amended to mean an amount equal to the amount of base salary in effect as of the date of this Letter Agreement payable to you between the date of any such termination and the last date of the Transition Period and any “Prorated Bonus” is hereby amended to mean the amount described above in paragraph 2 which, for the avoidance of doubt, would be payable in the case of a termination under Section 2.7. No Outplacement Services or Health Insurance Continuation would be payable in the event of a termination of employment, for any reason, during
N56 W17000 Ridgewood Drive
Menomonee Falls, WI 53051
the Transition Period. For the avoidance of doubt, the terms of Sections 2.1 – 2.3 of the ECA and related definitions therein, remain unchanged by this Letter Agreement.
Further, in the event of a termination of your employment during the Transition Period pursuant to Section 2.6 or 2.7 of the ECA, any performance share unit awards held by you shall not be forfeited but instead, shall continue to vest on the same basis as if you had continued to perform services during the Transition Period (i.e., as a Retirement). As to any restricted stock unit awards held by you on the Transition Date, in the event of a termination of your employment during the Transition Period pursuant to Section 2.6 or 2.7 of the ECA, all unvested restricted stock units held by you upon such termination shall vest immediately. Except as otherwise provided in this Paragraph 4, all other terms and conditions of your equity awards under Company’s Long-Term Compensation Plan shall be as provided in the applicable award agreements and shall remain unmodified during the Transition Period.
N56 W17000 Ridgewood Drive
Menomonee Falls, WI 53051
Please confirm your agreement with the foregoing by signing and returning to the Corporation a copy of this letter.
KOHL’S, INC.
By: |
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/s/ Thomas A. Kingsbury |
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Thomas A. Kingsbury |
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Chief Executive Officer |
Accepted and agreed to as of this 21st day of March, 2023.
By: |
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/s/ Marc Chini |
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Marc Chini |
Exhibit 31.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER
PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Thomas A. Kingsbury, certify that:
Dated: June 1, 2023 |
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/s/ Thomas A. Kingsbury |
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Thomas A. Kingsbury |
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Chief Executive Officer |
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(Principal Executive Officer) |
Exhibit 31.2
CERTIFICATION OF CHIEF FINANCIAL OFFICER
PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Jill Timm, certify that:
Dated: June 1, 2023 |
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/s/ Jill Timm |
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Jill Timm |
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Chief Financial Officer |
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(Principal Financial Officer) |
Exhibit 32.1
CERTIFICATION OF PERIODIC REPORT
BY CHIEF EXECUTIVE OFFICER
PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
I, Thomas A. Kingsbury, Chief Executive Officer of Kohl's Corporation (the “Company”), certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350, that, to the undersigned's knowledge, on the date of this Certification:
Dated: June 1, 2023 |
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/s/ Thomas A. Kingsbury |
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Thomas A. Kingsbury |
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Chief Executive Officer |
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(Principal Executive Officer) |
Exhibit 32.2
CERTIFICATION OF PERIODIC REPORT
BY CHIEF FINANCIAL OFFICER
PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
I, Jill Timm, Chief Financial Officer of Kohl's Corporation (the “Company”), certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350, that, to the undersigned's knowledge, on the date of this Certification:
Dated: June 1, 2023 |
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/s/ Jill Timm |
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Jill Timm |
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Chief Financial Officer |
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(Principal Financial Officer) |