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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
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☒ |
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the quarterly period ended July 30, 2022
OR
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the Transition period from ________ to _________
Commission file number 1-11084
KOHL’S CORPORATION
(Exact name of registrant as specified in its charter)
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Wisconsin |
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39-1630919 |
(State or other jurisdiction of incorporation or organization) |
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(I.R.S. Employer Identification No.) |
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N56 W17000 Ridgewood Drive, Menomonee Falls, Wisconsin |
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53051 |
(Address of principal executive offices) |
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(Zip Code) |
Registrant’s telephone number, including area code (262) 703-7000
Securities registered pursuant to Section 12(b) of the Act:
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Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered |
Common Stock, $.01 par value |
KSS |
New York Stock Exchange |
Preferred Stock Purchase Rights |
— |
New York Stock Exchange |
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. Yes ☒ No ☐
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). Yes ☒ No ☐
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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Large Accelerated Filer |
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☒ |
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Accelerated Filer |
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☐ |
Non-Accelerated Filer |
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☐ |
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Smaller Reporting Company |
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☐ |
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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: August 26, 2022 Common Stock, Par Value $0.01 per Share, 116,638,020 shares outstanding.
KOHL’S CORPORATION
INDEX
Table of Contents
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
KOHL’S CORPORATION
CONSOLIDATED BALANCE SHEETS
(Unaudited)
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(Dollars in Millions) |
July 30, 2022 |
January 29, 2022 |
July 31, 2021 |
Assets |
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Current assets: |
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|
Cash and cash equivalents |
$222 |
$1,587 |
$2,569 |
Merchandise inventories |
4,034 |
3,067 |
2,733 |
Other |
374 |
369 |
356 |
Total current assets |
4,630 |
5,023 |
5,658 |
Property and equipment, net |
8,228 |
7,304 |
7,107 |
Operating leases |
2,296 |
2,248 |
2,301 |
Other assets |
469 |
479 |
440 |
Total assets |
$15,623 |
$15,054 |
$15,506 |
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Liabilities and Shareholders’ Equity |
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Current liabilities: |
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Accounts payable |
$1,497 |
$1,683 |
$1,495 |
Accrued liabilities |
1,426 |
1,340 |
1,554 |
Borrowings under revolving credit facility |
79 |
— |
— |
Current portion of: |
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|
Long-term debt |
164 |
— |
— |
Finance leases and financing obligations |
96 |
118 |
117 |
Operating leases |
108 |
145 |
143 |
Total current liabilities |
3,370 |
3,286 |
3,309 |
Long-term debt |
1,747 |
1,910 |
1,909 |
Finance leases and financing obligations |
2,830 |
2,133 |
1,906 |
Operating leases |
2,568 |
2,479 |
2,532 |
Deferred income taxes |
194 |
206 |
245 |
Other long-term liabilities |
370 |
379 |
386 |
Shareholders’ equity: |
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|
Common stock |
4 |
4 |
4 |
Paid-in capital |
3,406 |
3,375 |
3,349 |
Treasury stock, at cost |
(13,151) |
(12,975) |
(11,920) |
Retained earnings |
14,285 |
14,257 |
13,786 |
Total shareholders’ equity |
$4,544 |
$4,661 |
$5,219 |
Total liabilities and shareholders’ equity |
$15,623 |
$15,054 |
$15,506 |
See accompanying Notes to Consolidated Financial Statements
3
Table of Contents
KOHL’S CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
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Three Months Ended |
Six Months Ended |
(Dollars in Millions, Except per Share Data) |
July 30, 2022 |
July 31, 2021 |
July 30, 2022 |
July 31, 2021 |
Net sales |
$3,863 |
$4,223 |
$7,334 |
$7,885 |
Other revenue |
224 |
224 |
468 |
449 |
Total revenue |
4,087 |
4,447 |
7,802 |
8,334 |
Cost of merchandise sold |
2,332 |
2,426 |
4,472 |
4,659 |
Operating expenses: |
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Selling, general, and administrative |
1,283 |
1,241 |
2,576 |
2,411 |
Depreciation and amortization |
206 |
210 |
406 |
421 |
Operating income |
266 |
570 |
348 |
843 |
Interest expense, net |
77 |
62 |
145 |
129 |
Loss on extinguishment of debt |
— |
— |
— |
201 |
Income before income taxes |
189 |
508 |
203 |
513 |
Provision for income taxes |
46 |
126 |
46 |
117 |
Net income |
$143 |
$382 |
$157 |
$396 |
Net income per share: |
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|
Basic |
$1.13 |
$2.51 |
$1.24 |
$2.58 |
Diluted |
$1.11 |
$2.48 |
$1.22 |
$2.55 |
See accompanying Notes to Consolidated Financial Statements
4
Table of Contents
KOHL’S CORPORATION
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS’ EQUITY
(Unaudited)
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Three Months Ended |
Six Months Ended |
(Dollars in Millions, Except per Share Data) |
July 30, 2022 |
July 31, 2021 |
July 30, 2022 |
July 31, 2021 |
Common stock |
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Balance, beginning of period |
$4 |
$4 |
$4 |
$4 |
Stock-based awards |
— |
— |
— |
— |
Balance, end of period |
$4 |
$4 |
$4 |
$4 |
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Paid-in capital |
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Balance, beginning of period |
$3,395 |
$3,333 |
$3,375 |
$3,319 |
Stock-based awards |
11 |
16 |
31 |
30 |
Balance, end of period |
$3,406 |
$3,349 |
$3,406 |
$3,349 |
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Treasury stock |
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Balance, beginning of period |
$(13,150) |
$(11,663) |
$(12,975) |
$(11,595) |
Treasury stock purchases |
— |
(255) |
(158) |
(301) |
Stock-based awards |
(2) |
(3) |
(20) |
(25) |
Dividends paid |
1 |
1 |
2 |
1 |
Balance, end of period |
$(13,151) |
$(11,920) |
$(13,151) |
$(11,920) |
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Retained earnings |
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Balance, beginning of period |
$14,207 |
$13,443 |
$14,257 |
$13,468 |
Net income |
143 |
382 |
157 |
396 |
Dividends paid |
(65) |
(39) |
(129) |
(78) |
Balance, end of period |
$14,285 |
$13,786 |
$14,285 |
$13,786 |
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Total shareholders' equity, end of period |
$4,544 |
$5,219 |
$4,544 |
$5,219 |
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Common stock |
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Shares, beginning of period |
377 |
377 |
377 |
377 |
Stock-based awards |
— |
— |
— |
— |
Shares, end of period |
377 |
377 |
377 |
377 |
Treasury stock |
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|
Shares, beginning of period |
(249) |
(220) |
(246) |
(219) |
Treasury stock purchases |
— |
(5) |
(3) |
(6) |
Shares, end of period |
(249) |
(225) |
(249) |
(225) |
Total shares outstanding, end of period |
128 |
152 |
128 |
152 |
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Dividends paid per common share |
$0.50 |
$0.25 |
$1.00 |
$0.50 |
See accompanying Notes to Consolidated Financial Statements
5
Table of Contents
KOHL’S CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
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Six Months Ended |
(Dollars in Millions) |
July 30, 2022 |
July 31, 2021 |
Operating activities |
|
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Net income |
$157 |
$396 |
Adjustments to reconcile net income to net cash (used in) provided by operating activities: |
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Depreciation and amortization |
406 |
421 |
Share-based compensation |
26 |
25 |
Deferred income taxes |
(12) |
(57) |
Loss on extinguishment of debt |
— |
201 |
Non-cash lease expense |
56 |
74 |
Other non-cash expense |
5 |
9 |
Changes in operating assets and liabilities: |
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Merchandise inventories |
(964) |
(138) |
Other current and long-term assets |
(29) |
590 |
Accounts payable |
(185) |
19 |
Accrued and other long-term liabilities |
51 |
228 |
Operating lease liabilities |
(57) |
(76) |
Net cash (used in) provided by operating activities |
(546) |
1,692 |
Investing activities |
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Acquisition of property and equipment |
(548) |
(191) |
Proceeds from sale of real estate |
4 |
4 |
Net cash used in investing activities |
(544) |
(187) |
Financing activities |
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Proceeds from issuance of debt |
— |
500 |
Net borrowings under revolving credit facility |
79 |
— |
Deferred financing costs |
— |
(5) |
Treasury stock purchases |
(158) |
(301) |
Shares withheld for taxes on vested restricted shares |
(20) |
(25) |
Dividends paid |
(127) |
(77) |
Reduction of long-term borrowings |
— |
(1,044) |
Premium paid on redemption of debt |
— |
(192) |
Finance lease and financing obligation payments |
(55) |
(65) |
Proceeds from financing obligations |
5 |
4 |
Proceeds from stock option exercises |
1 |
1 |
Other |
— |
(3) |
Net cash used in financing activities |
(275) |
(1,207) |
Net (decrease) increase in cash and cash equivalents |
(1,365) |
298 |
Cash and cash equivalents at beginning of period |
1,587 |
2,271 |
Cash and cash equivalents at end of period |
$222 |
$2,569 |
Supplemental information |
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Interest paid, net of capitalized interest |
$137 |
$128 |
Income taxes paid |
49 |
43 |
See accompanying Notes to Consolidated Financial Statements
6
Table of Contents
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 29, 2022 (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.
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:
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Three Months Ended |
Six Months Ended |
(Dollars in Millions) |
July 30, 2022 |
July 31, 2021 |
July 30, 2022 |
July 31, 2021 |
Women's |
$1,239 |
$1,344 |
$2,316 |
$2,461 |
Men's |
865 |
942 |
1,575 |
1,629 |
Home |
502 |
609 |
1,027 |
1,243 |
Accessories |
458 |
403 |
848 |
771 |
Children's |
414 |
463 |
825 |
931 |
Footwear |
385 |
462 |
743 |
850 |
Net Sales |
$3,863 |
$4,223 |
$7,334 |
$7,885 |
Unredeemed gift cards and merchandise return card liabilities totaled $294 million as of July 30, 2022, $353 million as of January 29, 2022, and $281 million as of July 31, 2021. In the second quarter of 2022 and 2021, net sales recognized from gift cards redeemed in the current period and issued in prior years totaled $39 million and $38 million, respectively. Year to date 2022 and 2021, net sales of $113 million and $110 million, respectively, were recognized during the current period from gift cards redeemed during the current year and issued in prior years.
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3. Debt
Borrowings under the revolving credit facility, recorded as short-term debt, has $79 million outstanding as of July 30, 2022. No amounts were outstanding at January 29, 2022 or July 31, 2021.
Long-term debt, which excludes borrowings on the revolving credit facility, consists of the following unsecured debt:
|
|
|
|
|
|
|
|
|
Outstanding |
Maturity (Dollars in Millions) |
Effective Rate |
Coupon Rate |
July 30,
2022 |
January 29,
2022 |
July 31,
2021 |
2023 |
3.25% |
3.25% |
$164 |
$164 |
$164 |
2023 |
4.78% |
4.75% |
111 |
111 |
111 |
2025 |
9.50% |
9.50% |
113 |
113 |
113 |
2025 |
4.25% |
4.25% |
353 |
353 |
353 |
2029 |
7.36% |
7.25% |
42 |
42 |
42 |
2031 |
3.40% |
3.38% |
500 |
500 |
500 |
2033 |
6.05% |
6.00% |
112 |
112 |
112 |
2037 |
6.89% |
6.88% |
101 |
101 |
101 |
2045 |
5.57% |
5.55% |
427 |
427 |
427 |
Outstanding unsecured senior debt |
|
|
1,923 |
1,923 |
1,923 |
Unamortized debt discounts and deferred financing costs |
|
|
(12) |
(13) |
(14) |
Current portion of unsecured senior debt |
|
|
(164) |
— |
— |
Long-term unsecured senior debt |
|
|
$1,747 |
$1,910 |
$1,909 |
Effective interest rate |
|
|
4.89% |
4.89% |
4.89% |
Our unsecured senior long-term debt is classified as Level 1, financial instruments with unadjusted, quoted prices listed on active market exchanges. The estimated fair value of our unsecured senior debt was $1.7 billion at July 30, 2022, $2.0 billion at January 29, 2022, and $2.2 billion at July 31, 2021.
Our various debt agreements contain covenants including limitations on additional indebtedness and certain financial tests. As of July 30, 2022, 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 which are adjusted periodically for inflation. Our typical store lease has an initial term of 20 to 25 years and four to eight five-year renewal options.
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.
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.
During the first half of 2022, we opened 340 Sephora shop-in-shops within our Kohl's stores and now have a total of 540 open as of the end of the second quarter. We plan to open an additional 60 shop-in-shops during the remainder
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of 2022, as well as at least 250 more shops in 2023. We are also working with Sephora to have a Sephora presence in the remaining approximately 300 stores. Due to the investments we are making in the shop-in-shops, we reassessed our lease term when construction began as these assets will have significant economic value to us when the lease term becomes exercisable. The impact of these assessments resulted in additional lease term, additional lease assets and liabilities, and, in some cases, changes to the classification.
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 |
July 30,
2022 |
January 29,
2022 |
July 31,
2021 |
Assets |
|
|
|
|
Operating leases |
Operating leases |
$2,296 |
$2,248 |
$2,301 |
Finance leases |
Property and equipment, net |
2,114 |
1,442 |
1,226 |
Total operating and finance leases |
4,410 |
3,690 |
3,527 |
Liabilities |
|
|
|
|
Current |
|
|
|
|
Operating leases |
Current portion of operating leases |
108 |
145 |
143 |
Finance leases |
Current portion of finance leases and financing obligations |
78 |
87 |
83 |
Noncurrent |
|
|
|
|
Operating leases |
Operating leases |
2,568 |
2,479 |
2,532 |
Finance leases |
Finance leases and financing obligations |
2,381 |
1,688 |
1,457 |
Total operating and finance leases |
$5,135 |
$4,399 |
$4,215 |
|
|
|
|
|
|
Consolidated Statement of Operations |
Three Months Ended |
Six Months Ended |
(Dollars in Millions) |
Classification |
July 30, 2022 |
July 31, 2021 |
July 30, 2022 |
July 31, 2021 |
Operating leases |
Selling, general, and administrative |
$64 |
$79 |
$133 |
$156 |
Finance leases |
|
|
|
|
|
Amortization of leased assets |
Depreciation and amortization |
32 |
23 |
61 |
43 |
Interest on leased assets |
Interest expense, net |
36 |
27 |
68 |
52 |
Total operating and finance leases |
|
$132 |
$129 |
$262 |
$251 |
|
|
|
Consolidated Statement of Cash Flows |
Six Months Ended |
(Dollars in Millions) |
July 30, 2022 |
July 31, 2021 |
Cash paid for amounts included in the measurement of leased liabilities |
|
|
Operating cash flows from operating leases |
$135 |
$165 |
Operating cash flows from finance leases |
65 |
52 |
Financing cash flows from finance leases |
44 |
47 |
The following table summarizes future lease payments by fiscal year:
|
|
|
|
|
July 30, 2022 |
(Dollars in millions) |
Operating Leases |
Finance Leases |
Total |
2022 |
$124 |
$94 |
$218 |
2023 |
251 |
218 |
469 |
2024 |
233 |
210 |
443 |
2025 |
227 |
205 |
432 |
2026 |
223 |
205 |
428 |
After 2026 |
3,617 |
3,722 |
7,339 |
Total lease payments |
$4,675 |
$4,654 |
$9,329 |
Amount representing interest |
(1,999) |
(2,195) |
(4,194) |
Lease liabilities |
$2,676 |
$2,459 |
$5,135 |
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The following table summarizes weighted-average remaining lease term and discount rate:
|
|
|
|
July 30, 2022 |
January 29, 2022 |
Weighted-average remaining term (years) |
|
|
Operating leases |
20 |
20 |
Finance leases |
21 |
20 |
Weighted-average discount rate |
|
|
Operating leases |
6% |
6% |
Finance leases |
6% |
7% |
Other lease information is as follows:
|
|
|
|
Six Months Ended |
(Dollars in Millions) |
July 30, 2022 |
July 31, 2021 |
Property and equipment acquired (disposed) through exchange of: |
|
|
Finance lease liabilities |
$730 |
$569 |
Operating lease liabilities |
114 |
(29) |
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 |
July 30,
2022 |
January 29,
2022 |
July 31,
2021 |
Assets |
|
|
|
|
Financing obligations |
Property and equipment, net |
$52 |
$55 |
$60 |
Liabilities |
|
|
|
|
Current |
Current portion of finance leases and financing obligations |
18 |
31 |
34 |
Noncurrent |
Finance leases and financing obligations |
449 |
445 |
449 |
Total financing obligations |
$467 |
$476 |
$483 |
|
|
|
|
|
|
Consolidated Statement of Operations |
Three Months Ended |
Six Months Ended |
(Dollars in Millions) |
Classification |
July 30, 2022 |
July 31, 2021 |
July 30, 2022 |
July 31, 2021 |
Amortization of financing obligation assets |
Depreciation and amortization |
2 |
3 |
4 |
5 |
Interest on financing obligations |
Interest expense, net |
15 |
10 |
27 |
19 |
Total financing obligations |
|
$17 |
$13 |
$31 |
$24 |
|
|
|
Consolidated Statement of Cash Flows |
Six Months Ended |
(Dollars in Millions) |
July 30, 2022 |
July 31, 2021 |
Cash paid for amounts included in the measurement of financing obligations |
|
|
Operating cash flows from financing obligations |
$26 |
$19 |
Financing cash flows from financing obligations |
11 |
18 |
Proceeds from financing obligations |
5 |
4 |
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Table of Contents
The following table summarizes future financing obligation payments by fiscal year:
|
|
|
July 30, 2022 |
(Dollars in millions) |
Financing Obligations |
2022 |
$37 |
2023 |
78 |
2024 |
77 |
2025 |
75 |
2026 |
74 |
After 2026 |
957 |
Total lease payments |
$1,298 |
Non-cash gain on future sale of property |
167 |
Amount representing interest |
(998) |
Financing obligation liability |
$467 |
The following table summarizes the weighted-average remaining term and discount rate for financing obligations:
|
|
|
|
July 30, 2022 |
January 29, 2022 |
Weighted-average remaining term (years) |
14 |
10 |
Weighted-average discount rate |
13% |
9% |
5. Stock-Based Awards
The following table summarizes our stock-based awards activity for the six months ended July 30, 2022:
|
|
|
|
|
|
|
|
Stock Options |
Nonvested Stock Awards |
Performance Share Units |
(Shares and Units in Thousands) |
Shares |
Weighted
Average
Exercise
Price |
Shares |
Weighted
Average
Grant Date
Fair Value |
Units |
Weighted
Average
Grant Date
Fair Value |
Balance - January 29, 2022 |
12 |
$48.66 |
2,769 |
$36.17 |
856 |
$42.74 |
Granted |
— |
— |
678 |
57.47 |
236 |
67.18 |
Exercised/vested |
(12) |
48.66 |
(987) |
38.89 |
— |
— |
Forfeited/expired |
— |
— |
(105) |
43.99 |
(218) |
36.89 |
Balance - July 30, 2022 |
— |
$— |
2,355 |
$40.81 |
874 |
$50.79 |
In 2019, we issued 1,747,441 stock warrants. The total vested and unvested warrants as of July 30, 2022 were 1,048,465 and 698,976, respectively.
6. Contingencies
We are subject to certain legal proceedings and claims arising out of the conduct of our business. In the opinion of management, the outcome of these proceedings and litigation will not have a material adverse impact on our Consolidated Financial Statements.
7. Income Taxes
The effective income tax rate for the second quarter of 2022 was 24.6% compared to 24.8% for the second quarter of 2021. Year to date, the rate is 22.8% for both the current and prior year periods. The year to date rates reflect the recognition of favorable tax items in the first quarter of both 2022 and 2021.
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 awards and stock warrants. Potentially dilutive shares include stock options, unvested restricted stock units and awards, and warrants
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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:
|
|
|
|
|
|
Three Months Ended |
Six Months Ended |
(Dollar and Shares in Millions, Except per Share Data) |
July 30,
2022 |
July 31,
2021 |
July 30,
2022 |
July 31,
2021 |
Numerator—Net income |
$143 |
$382 |
$157 |
$396 |
Denominator—Weighted-average shares: |
|
|
|
|
Basic |
127 |
152 |
127 |
153 |
Dilutive impact |
1 |
2 |
2 |
2 |
Diluted |
128 |
154 |
129 |
155 |
Net income per share: |
|
|
|
|
Basic |
$1.13 |
$2.51 |
$1.24 |
$2.58 |
Diluted |
$1.11 |
$2.48 |
$1.22 |
$2.55 |
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:
|
|
|
|
|
|
Three Months Ended |
Six Months Ended |
(Shares in Millions) |
July 30, 2022 |
July 31, 2021 |
July 30, 2022 |
July 31, 2021 |
Anti-dilutive shares |
3 |
3 |
3 |
3 |
9. Subsequent Events
On August 9, 2022, the Board of Directors of the Company declared a quarterly cash dividend of $0.50 per share. The dividend will be paid on September 21, 2022 to all shareholders of record at the close of business on September 7, 2022.
On August 18, 2022, the Company entered into an accelerated share repurchase agreement ("ASR"), pursuant to its previously announced share repurchase program, with Goldman Sachs & Co. LLC to repurchase approximately $500 million of the Company’s common stock. On August 22, 2022, the Company received an initial delivery of approximately 11.8 million shares of common stock, representing approximately 80% of the total shares that are expected to be repurchased under the ASR. Final settlement of the transactions under the ASR is expected to occur in November 2022.
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Table of Contents
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 second quarter” are for the three fiscal months (13 weeks) ended July 30, 2022 or July 31, 2021. References to "year to date" and "first half" are for the six fiscal months (26 weeks) ended July 30, 2022 or July 31, 2021. References to "the first quarter" are for the three fiscal months (13 weeks) ended April 30, 2022 or May 1, 2021.
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 “2022 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 2021 Form 10-K and in Part II Item 1A of our Form 10-Q for the quarter ended April 30, 2022, 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 1,166 stores and a website (www.Kohls.com) as of July 30, 2022. 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, store size, and presence of Sephora shop-in-shops. 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:
•Net sales decreased 8.5% and comparable sales decreased 7.7%
•Earnings of $1.11 per diluted share
•Gross margin was 39.6% of net sales, a 290 basis point decrease from last year
•SG&A increased 3.4% and deleveraged as a percent of total revenue by 351 basis points to last year
•Operating margin of 6.5%
Our Vision and Strategy
The Company’s vision is to be “the most trusted retailer of choice for the active and casual lifestyle” and its strategy is focused on delivering long-term shareholder value. Key strategic focus areas for the Company include: driving top line growth, delivering a 7% to 8% operating margin, maintaining disciplined capital management, and sustaining an agile, accountable, and inclusive culture.
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Table of Contents
2022 Outlook
Our updated outlook for fiscal 2022 is as follows:
|
|
Net sales |
(5%) to (6%) vs 2021 |
Operating margin |
4.2% - 4.5% |
Diluted earnings per share |
$2.80 - $3.20 |
Capital expenditures |
$825 million |
We repurchased $158 million in shares in the first quarter of 2022 and entered into a $500 million ASR on August 18, 2022.
A weakening macro environment, high inflation, and dampened consumer spending are having broad implications across much of retail, especially in discretionary categories like apparel. Our updated full year guidance contemplates lower sales and margin pressure from a more difficult economic backdrop and a more competitive landscape.
Results of Operations
Total Revenue
|
|
|
|
|
|
|
|
Three Months Ended |
Six Months Ended |
(Dollars in Millions) |
July 30, 2022 |
July 31, 2021 |
Change |
July 30, 2022 |
July 31, 2021 |
Change |
Net sales |
$3,863 |
$4,223 |
$(360) |
$7,334 |
$7,885 |
$(551) |
Other revenue |
224 |
224 |
— |
468 |
449 |
19 |
Total revenue |
$4,087 |
$4,447 |
$(360) |
$7,802 |
$8,334 |
$(532) |
Net sales decreased 8.5% in the second quarter of 2022 and 7.0% year to date 2022.
•Comparable sales decreased 7.7% in the second quarter of 2022 and 6.5% year to date 2022 driven by lower store traffic and smaller basket sizes.
•Digital sales were flat for the second quarter of 2022 and decreased 2% year to date 2022. Digital penetration was 28% of net sales in the second quarter of 2022 and 29% of net sales year to date 2022.
•From a line of business perspective, Accessories, Women's, and Men's outperformed the Company average for the second quarter and year to date 2022, while Home, Footwear, and Children's underperformed the Company.
•Active apparel outperformed the Company in the second quarter of 2022 with strong growth in our athleisure and outdoor offerings. Total active underperformed the overall business in the second quarter of 2022 and year to date 2022 due in part to the strong growth achieved last year as well as supply chain-related challenges in athletic footwear. Total active represented 23% of sales for the second quarter and year to date 2022.
Net sales includes revenue from the sale of merchandise, net of expected returns, 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 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.
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Table of Contents
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 are non-GAAP measures that may not be consistent with the similarly-titled measures reported by other companies.
Other revenue was flat for the second quarter of 2022 and increased $19 million year to date 2022. The increase year to date was driven by higher credit revenue due to higher late fees.
On March 14, 2022, we amended and restated our private label credit card program agreement with Capital One through March 31, 2030. The agreement will operate in substantially the same manner as it currently operates.
Cost of Merchandise Sold and Gross Margin
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
Six Months Ended |
(Dollars in Millions) |
July 30, 2022 |
July 31, 2021 |
Change |
July 30, 2022 |
July 31, 2021 |
Change |
Net sales |
$3,863 |
$4,223 |
$(360) |
|
$7,334 |
$7,885 |
$(551) |
|
Cost of merchandise sold |
2,332 |
2,426 |
(94) |
|
4,472 |
4,659 |
(187) |
|
Gross margin |
$1,531 |
$1,797 |
$(266) |
|
$2,862 |
$3,226 |
$(364) |
|
Gross margin as a percent of net sales |
39.6% |
42.5% |
(290) |
bps |
39.0% |
40.9% |
(189) |
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; terms cash discount; and depreciation of product development facilities and equipment. 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 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. In the second quarter of 2022, gross margin was 39.6% of net sales, decreasing 290 basis points. Year to date 2022 gross margin was 39.0% of net sales, decreasing 189 basis points. The decrease in gross margin for the second quarter was primarily driven by elevated freight costs, product cost inflation, and increased promotional activity. Year to date, the decrease was driven by increased freight costs.
Selling, General, and Administrative Expense (“SG&A”)
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
Six Months Ended |
(Dollars in Millions) |
July 30, 2022 |
July 31, 2021 |
Change |
July 30, 2022 |
July 31, 2021 |
Change |
SG&A |
$1,283 |
$1,241 |
$42 |
|
$2,576 |
$2,411 |
$165 |
|
As a percent of total revenue |
31.4% |
27.9% |
351 |
bps |
33.0% |
28.9% |
409 |
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.
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Table of Contents
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:
|
|
|
|
Three Months Ended |
Six Months Ended |
(Dollars in Millions) |
July 30, 2022 |
July 30, 2022 |
Store expenses |
$44 |
$126 |
Distribution |
6 |
22 |
Corporate and other |
(8) |
17 |
Total increase |
$42 |
$165 |
SG&A expenses increased $42 million, or 3.4%, to $1.3 billion in the second quarter of 2022. As a percentage of revenue, SG&A deleveraged by 351 basis points. Year to date 2022, SG&A expenses increased $165 million, or 6.8%, to $2.6 billion. As a percentage of revenue, SG&A deleveraged by 409 basis points. The increase in SG&A during the second quarter and year to date 2022 was primarily driven by strategic investments made in our stores to support the Sephora shop-in-shops openings, store refreshes, and reflows. Additionally, we experienced increases in wages and heightened transportation costs both in the second quarter and year to date 2022. Last, Corporate and other costs decreased in the second quarter of 2022 and increased year to date 2022. The decrease in the second quarter of 2022 was due to lower general corporate costs partially offset by $9 million of expense related to the strategic review process. The year to date 2022 increase was primarily driven by nearly $26 million of expenses related to the proxy contest and the strategic review process.
Other Expenses
|
|
|
|
|
|
|
|
Three Months Ended |
Six Months Ended |
(Dollars in Millions) |
July 30, 2022 |
July 31, 2021 |
Change |
July 30, 2022 |
July 31, 2021 |
Change |
Depreciation and amortization |
$206 |
$210 |
$(4) |
$406 |
$421 |
$(15) |
Interest expense, net |
77 |
62 |
15 |
145 |
129 |
16 |
Loss on extinguishment of debt |
— |
— |
— |
— |
201 |
(201) |
The decrease in depreciation and amortization in the first half of 2022 was primarily driven by reduced capital spending in technology.
Net interest expense increased in the first half of 2022 due to more financing leases, partially offset by a decrease in interest expense in the first quarter of 2022 due to the benefit of debt reductions as a result of our liability management strategies employed during 2021.
In the first quarter of 2021, we completed a cash tender offer and recognized a loss of $201 million from the extinguishment of debt.
Income Taxes
|
|
|
|
|
|
|
|
Three Months Ended |
Six Months Ended |
(Dollars in Millions) |
July 30, 2022 |
July 31, 2021 |
Change |
July 30, 2022 |
July 31, 2021 |
Change |
Provision for income taxes |
$46 |
$126 |
$(80) |
$46 |
$117 |
$(71) |
Effective tax rate |
24.6% |
24.8% |
|
22.8% |
22.8% |
|
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The decrease in provision for income taxes was driven by lower taxable income in the second quarter and year to date 2022. The year to date rates reflect the recognition of favorable tax items in the first quarter of both 2022 and 2021.
GAAP to Non-GAAP Reconciliation
|
|
|
|
|
(Dollars in Millions, Except per Share Data) |
Operating Income |
Income before
Income Taxes |
Net Income |
Earnings Per Diluted
Share |
Three Months Ended July 30, 2022 |
|
|
|
|
GAAP |
$266 |
$189 |
$143 |
$1.11 |
Loss on extinguishment of debt |
— |
— |
— |
— |
Income tax impact of items noted above |
— |
— |
— |
— |
Adjusted (non-GAAP) (1) |
$266 |
$189 |
$143 |
$1.11 |
Three Months Ended July 31, 2021 |
|
|
|
|
GAAP |
$570 |
$508 |
$382 |
$2.48 |
Loss on extinguishment of debt |
— |
— |
— |
— |
Income tax impact of items noted above |
— |
— |
— |
— |
Adjusted (non-GAAP) (1) |
$570 |
$508 |
$382 |
$2.48 |
Six Months Ended July 30, 2022 |
|
|
|
|
GAAP |
$348 |
$203 |
$157 |
$1.22 |
Loss on extinguishment of debt |
— |
— |
— |
— |
Income tax impact of items noted above |
— |
— |
— |
— |
Adjusted (non-GAAP) (1) |
$348 |
$203 |
$157 |
$1.22 |
Six Months Ended July 31, 2021 |
|
|
|
|
GAAP |
$843 |
$513 |
$396 |
$2.55 |
Loss on extinguishment of debt |
— |
201 |
201 |
1.29 |
Income tax impact of items noted above |
— |
— |
(50) |
(0.32) |
Adjusted (non-GAAP) |
$843 |
$714 |
$547 |
$3.52 |
(1)Amounts shown for the three months ended July 30, 2022 and July 31, 2021 and for the six months ended July 30, 2022 are GAAP as there are no adjustments to Non-GAAP. These amounts are shown for comparability purposes.
We believe the adjusted results in the table above are useful because they provide enhanced visibility into our results for the periods excluding the impact of certain items such as those included in the table above. However, these non-GAAP financial measures are not intended to replace the comparable GAAP measures.
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.
In addition to COVID-19, we expect that our operations will continue to be influenced by general economic conditions, including food, fuel, and energy prices, higher unemployment, wage and transportation inflation, product cost inflation, and costs to source our merchandise, including tariffs. There can be no assurances that such factors will not continue to 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, maintain a strong balance sheet, and maintain our 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
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third we return excess cash to shareholders through our share repurchase program. In addition, when appropriate, we will complete liability management transactions.
Our period-end cash and cash equivalents balance decreased to $222 million from $2.6 billion in the second quarter of 2021. Our cash and cash equivalents balance includes short-term investments of $11 million and $2.3 billion as of July 30, 2022, and July 31, 2021, 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.
We expect our balance sheet and cash flow metrics to be more challenging in 2022 and most notably at the end of the third quarter of fiscal 2022 as we build inventory in advance of the holiday season.
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 • Share repurchases • Debt reduction |
|
• Cash flow from operations • Line of credit under our revolving credit facility • Issuance of debt |
|
|
|
|
|
Six Months Ended |
(Dollars in Millions) |
July 30, 2022 |
July 31, 2021 |
Change |
Net cash (used in) provided by: |
|
|
|
Operating activities |
$(546) |
$1,692 |
$(2,238) |
Investing activities |
(544) |
(187) |
(357) |
Financing activities |
(275) |
(1,207) |
932 |
Operating Activities
Our operating cash outflows generally consist of payments to our employees for wages, salaries and 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 on our debt borrowings.
Operating activities used $546 million of cash in the first half of 2022 compared to $1.7 billion of cash generated in the first half of 2021. The decrease in operating cash flow was primarily driven by an increase in inventory. The inventory increase was due to increased beauty inventory to support the Sephora shop-in-shop rollouts, elevated in-transit levels due to continued supply chain challenges, and a rebuild of inventory in key areas such as active and women's.
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 $544 million in the first half of 2022 and $187 million in the first half of 2021. The increase was primarily driven by in-store investments related to Sephora shop-in-shop build-outs, store refreshes, and other customer experience and sales driving enhancements.
During the first half of 2022, we opened 340 Sephora-branded retail shop-in-shops and now have a total of 540 Sephora shop-in-shops open. We are planning on opening another 60 shop-in-shops in 2022 and at least 250 shop-in-shops in 2023. We are also working with Sephora to have a Sephora presence in the remaining 300 stores.
Financing Activities
Our financing strategy is to ensure 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.
If our credit ratings were lowered, 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 from and/or repayments of long-term debt, and dividend payments.
Financing activities used $275 million in the first half of 2022 and $1.2 billion in the first half of 2021.
In the second quarter of 2022 we drew on our credit facility. As of July 30, 2022, $79 million was outstanding.
In March 2021, we issued $500 million in aggregate principal amount of 3.375% notes with semi-annual interest payments beginning in November 2021. The notes include coupon rate step ups if our long-term debt is downgraded to below a BBB- credit rating by S&P Global Ratings or Baa3 by Moody’s Investors Service, Inc. The notes mature in May 2031.
In April 2021, we completed a cash tender offer for $1.0 billion of senior unsecured debt. We recognized a $201 million loss on extinguishment of debt in the first quarter of 2021, which includes the $192 million tender premium paid to tendering note holders in accordance with the terms of the tender offer, a $6 million non-cash write-off of deferred financing costs and original issue discounts associated with the extinguished debt, and $3 million in other fees.
We paid cash for treasury stock purchases of $158 million in the first half of 2022 and $301 million in the first half of 2021. The 2022 purchases were made pursuant to a Rule 10b5-1 plan adopted in November 2021. 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 $127 million ($1.00 per share) in the first half of 2022 and $77 million ($0.50 per share) in the first half of 2021.
As of July 30, 2022, our credit ratings and outlook were as follows:
|
|
|
|
|
Moody’s |
Standard &
Poor’s |
Fitch |
Long-term debt |
Baa2 |
BBB- |
BBB- |
Outlook |
Stable |
Negative |
Stable |
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Key Financial Ratios
Key financial ratios that provide certain measures of our liquidity are as follows:
|
|
|
(Dollars in Millions) |
July 30, 2022 |
July 31, 2021 |
Working capital |
$1,260 |
$2,349 |
Current ratio |
1.37 |
1.71 |
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 as a result of higher capital expenditures and an increase in inventory.
Debt Covenant Compliance
As of July 30, 2022, we were in compliance with all covenants in our debt instruments and expect to remain in compliance during the remainder of fiscal 2022.
Contractual Obligations
There have been no significant changes in the contractual obligations disclosed in our 2021 Form 10-K other than leases, which have been disclosed in Note 4 of the Consolidated Financial Statements, and borrowings in 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 July 30, 2022.
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 2021 Form 10-K.
Item 3. Quantitative and Qualitative Disclosures About Market Risk
There have been no significant changes in the market risks described in our 2021 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
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Table of Contents
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 July 30, 2022 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
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PART II. OTHER INFORMATION
Item 1A. Risk Factors
There have been no significant changes in the Risk Factors described in our 2021 Form 10-K, other than as set out in our Quarterly Report on Form 10-Q for the quarter ended April 30, 2022, in Item 1A of Part II.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds
In February 2022, our Board of Directors increased the remaining share repurchase authorization under our existing share repurchase program to $3.0 billion. Purchases under the repurchase program may be made in the open market, through block trades, and other negotiated transactions. We expect to execute the share repurchase program primarily in open market transactions, subject to market conditions. There is no fixed termination date for the repurchase program, and the program may be suspended, discontinued, or accelerated at any time.
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 July 30, 2022:
|
|
|
|
|
(Dollars in Millions, Except per Share Data) |
Total Number
of Shares
Purchased |
Average
Price
Paid Per
Share |
Total Number
of Shares
Purchased as
Part of
Publicly
Announced
Plans or
Programs |
Approximate
Dollar Value
of Shares
that May Yet
Be Purchased
Under the Plans
or Programs |
May 1 - May 28, 2022 |
15,312 |
$48.44 |
— |
$2,976 |
May 29 - July 2, 2022 |
27,856 |
40.48 |
— |
$2,976 |
July 3 - July 30, 2022 |
6,219 |
26.98 |
— |
$2,976 |
Total |
49,387 |
$41.25 |
— |
|
Item 5. Other Information
On August 9, 2022, the Board of Directors (the “Board”) of the Company approved and adopted the Amended and Restated Bylaws (the “Bylaws”), which became effective the same day, in order to, among other things, (i) address recently adopted amendments to Rule 14a-19 under the Securities Exchange Act of 1934, as amended, by clarifying that no person may solicit proxies in support of a director nominee other than the Board’s nominees unless such person has complied with Rule 14a-19, and that any person soliciting proxies in support of a director nominee other than the Board’s nominees must comply with the requirements to provide notices required under Rule 14a-19 in a timely manner and deliver reasonable evidence that the Rule 14a-19 requirements have been met; (ii) require any notice of director nomination to be accompanied by a completed written questionnaire required of the Company’s directors and officers, and that the questionnaire and written representation and agreement of a nominee be in the form provided by the Company; and (iii) require that a shareholder directly or indirectly soliciting proxies from other shareholders use a proxy card color other than white.
The preceding summary of the amendments to the Bylaws is qualified in its entirety by reference to, and should be read in connection with, the complete copy of the Amended and Restated Bylaws filed herewith as Exhibits 3.1 (clean) and 3.2 (marked).
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Item 6. Exhibits
|
|
|
Exhibit |
|
Description |
3.1 |
|
Amended and Restated Bylaws (clean version), incorporated by reference to Exhibit 3.1 of the Company's Current Report on Form 8-K dated August 10, 2022. |
3.2 |
|
Amended and Restated Bylaws (marked version), incorporated by reference to Exhibit 3.2 of the Company's Current Report on Form 8-K dated August 10, 2022. |
10.1 |
|
Amended and Restated Executive Compensation Agreement between Kohl’s, Inc. and Siobhán McFeeney dated as of July 16, 2022.* |
10.2 |
|
Amended and Restated Raymond Executive Compensation Agreement between Kohl’s, Inc. and Christie Raymond dated as of August 16, 2022.* |
31.1 |
|
Certification of the Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
31.2 |
|
Certification of the Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
32.1 |
|
Certification of the Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. |
32.2 |
|
Certification of the Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. |
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) |
|
|
|
|
|
*A management contract or compensatory plan or arrangement. |
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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: September 1, 2022 |
/s/ Jill Timm |
|
Jill Timm On behalf of the Registrant and as Chief Financial Officer (Principal Financial Officer) |
24
Exhibit 10.1
AMENDED AND RESTATED EXECUTIVE COMPENSATION AGREEMENT
THIS AMENDED AND RESTATED EXECUTIVE COMPENSATION AGREEMENT (“Agreement”) is effective as of this 16th day of July, 2022, by and between Kohl’s, Inc. (the “Company”) and Siobhan McFeeney (“Employee”).
The Company and Employee entered into an Executive Compensation Agreement dated as of January 16, 2022 (the “Original Agreement”), whereby Company and Employee agreed to certain aspects of their relationship during and after the period in which Employee is employed by the Company.
The Company has promoted the Employee to the position of Senior Executive Vice President and Chief Technology Officer and, accordingly, the Company and Employee believe it is in their best interests to amend and restate the Original Agreement.
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.
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 determination 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 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.
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, 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) 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. Further, to the extent any amounts payable to Employee pursuant to any Section of this Article II are determined, after consultation with the Company’s counsel, to be required to be paid in accordance with the payment timing terms under the Original Agreement in order for Employee to avoid penalties under Code Section 409A, such amounts shall be payable in accordance with the payment timing terms under the Original Agreement, notwithstanding language in this Agreement to the contrary.
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.
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 ceases to be deemed Confidential Information by means of one of the exclusions set forth in Section 4.5(c), below.
(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 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.
(a)Restricted Services. “Restricted Services” shall mean services of any kind or character comparable to those Employee provided to the Company during the eighteen (18) month period immediately preceding Employee’s last date of employment with the Company.
(b)Competitor. The term “Competitor” means Amazon.com, Inc., Belk, Inc., Burlington Stores, Inc., Dillard’s, Inc., J.C. Penney Company, Inc., Macy’s, Inc., Nordstrom Co., Old Navy, Inc., Ross Stores, Inc., Transform Holdco LLC (the entity which acquired the assets of Sears Holdings Corporation and operates Sears and Kmart), Stage Stores, Inc., Target Corporation, The Gap, Inc., The TJX Companies, Inc. and Walmart Stores, Inc., as the same may be renamed from time to time, including any successors, subsidiaries or affiliates of such entities.
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.
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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Kohl’s, Inc. |
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N56 W17000 Ridgewood Drive |
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Menomonee Falls, WI 53051 |
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Attn: General Counsel |
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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:
(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 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, including, but not limited to, the Original Agreement, 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 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 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: |
Kohl’s, Inc. |
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/s/ Marc Chini |
By: Marc Chini |
Chief People Officer |
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EMPLOYEE: |
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/s/ Siobhan McFeeney |
Siobhan McFeeney |
Exhibit A
California Employees Only
LIMITED EXCLUSION NOTIFICATION
This Is To Notify you in accordance with Section 2872 of the California Labor Code that the foregoing Employment Agreement (the “Agreement”) between you and Kohl’s, Inc. (the “Company”), does not require you to assign, or offer to assign, to the Company any invention that you developed entirely on your own time without using the Company’s equipment, supplies, facilities, or trade secret information except for those inventions that either:
1.Relate at the time of conception or reduction to practice of the invention to the Company’s business, or actual or demonstrably anticipated research or development of the Company; or
2.Result from any work performed by you for the Company.
To the extent a provision in the Agreement purports to require you 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.
Exhibit 10.2
AMENDED AND RESTATED EXECUTIVE COMPENSATION AGREEMENT
THIS AMENDED AND RESTATED EXECUTIVE COMPENSATION AGREEMENT (“Agreement”) is effective as of this 16th day of August, 2022, by and between Kohl’s, Inc. (the “Company”) and Christie Raymond (“Employee”).
The Company and Employee entered into an Amended and Restated Executive Compensation Agreement dated as of May 15, 2020 (the “Original Agreement”), whereby Company and Employee agreed to certain aspects of their relationship during and after the period in which Employee is employed by the Company.
The Company has promoted the Employee to the position of Senior Executive Vice President and Chief Marketing Officer and, accordingly, the Company and Employee believe it is in their best interests to amend and restate the Original Agreement.
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.
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 determination 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 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.
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, 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) 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. Further, to the extent any amounts payable to Employee pursuant to any Section of this Article II are determined, after consultation with the Company’s counsel, to be required to be paid in accordance with the payment timing terms under the Original Agreement in order for Employee to avoid penalties under Code Section 409A, such amounts shall be payable in accordance with the payment timing terms under the Original Agreement, notwithstanding language in this Agreement to the contrary.
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.
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 ceases to be deemed Confidential Information by means of one of the exclusions set forth in Section 4.5(c), below.
(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 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.
(a)Restricted Services. “Restricted Services” shall mean services of any kind or character comparable to those Employee provided to the Company during the eighteen (18) month period immediately preceding Employee’s last date of employment with the Company.
(b)Competitor. The term “Competitor” means Amazon.com, Inc., Belk, Inc., Burlington Stores, Inc., Dillard’s, Inc., J.C. Penney Company, Inc., Macy’s, Inc., Nordstrom Co., Old Navy, Inc., Ross Stores, Inc., Transform Holdco LLC (the entity which acquired the assets of Sears Holdings Corporation and operates Sears and Kmart), Stage Stores, Inc., Target Corporation, The Gap, Inc., The TJX Companies, Inc. and Walmart Stores, Inc., as the same may be renamed from time to time, including any successors, subsidiaries or affiliates of such entities.
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.
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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Kohl’s, Inc. |
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N56 W17000 Ridgewood Drive |
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Menomonee Falls, WI 53051 |
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Attn: General Counsel |
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If to Employee: |
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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: .
(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 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, including, but not limited to, the Original Agreement, 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 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 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: |
Kohl’s, Inc. |
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/s/ Marc Chini |
By: Marc Chini |
Chief People Officer |
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EMPLOYEE: |
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/s/ Christie Raymond |
Christie Raymond |
Exhibit A
California Employees Only
LIMITED EXCLUSION NOTIFICATION
This Is To Notify you in accordance with Section 2872 of the California Labor Code that the foregoing Employment Agreement (the “Agreement”) between you and Kohl’s, Inc. (the “Company”), does not require you to assign, or offer to assign, to the Company any invention that you developed entirely on your own time without using the Company’s equipment, supplies, facilities, or trade secret information except for those inventions that either:
1.Relate at the time of conception or reduction to practice of the invention to the Company’s business, or actual or demonstrably anticipated research or development of the Company; or
2.Result from any work performed by you for the Company.
To the extent a provision in the Agreement purports to require you 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.
