Exhibit 10.1


 


AMENDED AND
RESTATED CHANGE IN CONTROL SEVERANCE AGREEMENT


 


THIS AMENDED
AND RESTATED CHANGE IN CONTROL SEVERANCE AGREEMENT (the “Agreement”) dated as
of January 27, 2006, is made by and between The J. Jill Group, Inc., a
Delaware corporation (“J. Jill”; J. Jill and its Subsidiaries being hereafter
referred to as the “Company”), and Gordon R. Cooke (the “Executive”).


 


WHEREAS, the
Company and the Executive are parties to a Change In Control Severance
Agreement dated December 21, 2005 (the “Prior Agreement”) and now desire
to amend and restate the Prior Agreement in its entirety; and


 


WHEREAS the
Company considers it essential to the best interests of its stockholders to
foster the continuous employment of key management personnel; and


 


WHEREAS the
Board of Directors of J. Jill recognizes that, as is the case with many
publicly held corporations, the possibility of a Change in Control (as defined
in the last Section hereof) exists and that such possibility, and the
uncertainty and questions which it may raise among management, may result in
the departure or distraction of management personnel to the detriment of the
Company and its stockholders; and


 


WHEREAS the
Board has determined that appropriate steps should be taken to reinforce and
encourage the continued attention and dedication of members of the Company’s
management, including the Executive, to their assigned duties without
distraction in the face of potentially disturbing circumstances arising from
the possibility of a Change in Control;


 


NOW THEREFORE,
in consideration of the promises and the mutual covenants herein contained, the
Company and the Executive hereby agree as follows:


 


1.             Defined Terms. The definition of capitalized terms used in this Agreement is provided
in the last Section hereof.


 


2.             Term of Agreement. This Agreement shall commence on the date hereof
and shall continue in effect through December 31, 2006; provided, however,
that commencing on January 1, 2007 and each January 1 thereafter, the
term of this Agreement shall automatically be extended for one additional year
unless, not later than December 1 of the preceding year, the Company or
the Executive shall have given notice not to extend this Agreement or a Change
in Control shall have occurred prior to such January 1; provided, however,
if a Change in Control shall have occurred during the term of this Agreement,
this Agreement shall continue in effect for a period of not less than
twenty-four (24) months beyond the month in which such Change in Control
occurred.


 


3.             Company’s Covenants Summarized.  In order
to induce the Executive to remain in the employ of the Company and in
consideration of the Executive’s covenants set forth in Section 4 hereof,
the Company agrees, under the conditions described herein, to pay the Executive
the Severance Payments and the other payments and benefits described herein in
the event the Executive’s employment with the Company is terminated following a
Change in Control and during the term of this Agreement. No amount or benefit
shall be payable under this Agreement unless there shall have been (or, under
the terms hereof, there shall be deemed to 


 

















 


have been) a termination of the Executive’s employment with the Company
following a Change in Control. This Agreement shall not be construed as
creating an express or implied contract of employment and, except as otherwise
agreed in writing between the Executive and the Company, the Executive shall
not have any right to be retained in the employ of the Company.


 


4.             The Executive’s Covenants.


 


4.1           The
Executive agrees that, subject to the terms and conditions of this Agreement,
in the event of a Potential Change in Control during the term of this
Agreement, the Executive will remain in the employ of the Company until the
earliest of (i) a date which is six (6) months from the date of such
Potential Change of Control, (ii) the date of a Change in Control, (iii) the
date of termination by the Executive of the Executive’s employment for Good
Reason (determined by treating the Potential Change in Control as a Change in
Control in applying the definition of Good Reason), or by reason of death,
Disability or Retirement, or (iv) the termination by the Company of the
Executive’s employment for any reason.


 


4.2           The
Executive agrees that, during the Executive’s employment with the Company and
for a period of one year after the termination of the Executive’s employment
with the Company for any reason, the Executive will not directly or indirectly
solicit, attempt to hire, or hire any employee of the Company (or any person
who may have been employed by the Company during the last year of the term of
the Executive’s employment with the Company), or assist in such hiring by any
other person or business entity or encourage, induce or attempt to induce any
such employee to terminate his or her employment with the Company.


 


5.             Compensation Other Than Severance Payments.


 


5.1           Following
a Change in Control and during the term of this Agreement, during any period
that the Executive fails to perform the Executive’s full-time duties with the
Company as a result of incapacity due to physical or mental illness, the
Company shall pay the Executive’s full salary to the Executive at the rate in
effect at the commencement of any such period, together with all compensation
and benefits payable to the Executive under the terms of any compensation or
benefit plan, program or arrangement maintained by the Company during such
period, until the Executive’s employment is terminated by the Company for
Disability.


 


5.2           If
the Executive’s employment shall be terminated for any reason following a
Change in Control and during the term of this Agreement, the Company shall pay
the Executive’s full salary to the Executive through the Date of Termination at
the rate in effect at the time the Notice of Termination is given, together
with all compensation and benefits payable to the Executive through the Date of
Termination under the terms of any compensation or benefit plan, program or
arrangement maintained by the Company during such period.


 


5.3           If
the Executive’s employment shall be terminated for any reason following a
Change in Control and during the term of this Agreement, the Company shall pay
to the Executive any such post-termination compensation and benefits as are due
to the Executive under any applicable separation, severance or employment
agreement between the Company and the Executive (“Post-Termination Payments”)
as such payments become due; provided that in no


 


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event shall
any Post-Termination Payments be paid if the Executive is entitled to the
Severance Payments (as defined in Section 6.1) as a result of such
termination.


 


6.             Severance Payments.


 


6.1           If
the Executive’s employment is terminated following a Change in Control and during
the term of this Agreement, unless such termination is (i) by the Company
for Cause, (ii) by reason of death or Disability or (iii) by the
Executive without Good Reason, and provided that the seven-day revocation
period described in Section 6.6 has expired without revocation of the
Release and Waiver by the Executive, the Company shall pay the Executive the
payments described in this Section 6.1 (the “Severance Payments”) in
addition to the payments and benefits described in Sections 5.1 and 5.2 hereof
(but not Section 5.3 hereof).  The
Executive’s employment shall be deemed to have been terminated following a
Change in Control by the Company without Cause or by the Executive with Good
Reason if the Executive’s employment is terminated prior to a Change in Control
without Cause at the direction of a Person who has entered into an agreement
with the Company the consummation of which will constitute a Change in Control
or if the Executive terminates his employment with Good Reason prior to a
Change in Control (determined by treating a Potential Change in Control as a
Change in Control in applying the definition of Good Reason) if the
circumstance or event which constitutes Good Reason occurs at the direction of
such Person.


 


(A)          In lieu of any further
salary payments to the Executive for periods subsequent to the Date of
Termination and in lieu of any severance benefit otherwise payable to the
Executive, the Company shall pay to the Executive a lump sum severance payment,
in cash, equal to (i) two times the Executive’s annual base salary as
approved by the Compensation Committee of the Board to be paid to the Executive
(or, if the Executive’s annual base salary is not presented for approval at the
Compensation Committee level, then as otherwise established by J. Jill or one
of its Subsidiaries) with respect to the year in which the Date of Termination
occurs, plus (ii) two times the maximum bonus amount payable to the
Executive under all Bonus Plans with respect to the year (or any portion
thereof) in which the Date of Termination occurs, treating any and all
performance goals under such Bonus Plans as having been met.


 


(B)           Notwithstanding any
provision of any Bonus Plan, the Company shall pay to the Executive a lump sum
amount, in cash, equal to the sum of (i) any incentive compensation which
has been allocated or awarded to the Executive for a completed year or other
measuring period preceding the Date of Termination under any such Bonus Plan
but has not yet been paid (pursuant to Section 5.2 hereof or otherwise),
and (ii) a pro rata portion to the Date of Termination of the maximum
bonus amount payable to the Executive under all Bonus Plans with respect to the
year (or any portion thereof) in which the Date of Termination occurs, treating
any and all performance goals under such Bonus Plans as having been met and
calculated by multiplying such maximum bonus amount by a fraction, the
numerator of which is the number of days in such year (or portion thereof)
which elapsed to the Date of Termination and the denominator of which is the
number of days in such year (or portion thereof).


 


(C)           For a twenty-four (24)
month period after the Date of Termination, the Company shall arrange to
provide the Executive with life, disability, accident and health insurance
benefits substantially similar to the life, disability, accident and health
insurance 


 


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benefits which
the Executive is receiving immediately prior to the Notice of Termination
(without giving effect to any reduction in such benefits subsequent to a Change
in Control which reduction constitutes Good Reason).  Benefits otherwise receivable by the
Executive pursuant to this Section 6.1(C) shall be reduced to the
extent comparable benefits are actually received by or made available to the
Executive without cost during the twenty-four (24) month period following the
Executive’s termination of employment (and any such benefits actually received
by the Executive shall be reported to the Company by the Executive).


 


6.2           The
payments provided for in Section 6.1 (other than Section 6.1(C))
hereof shall be made not later than the fifth (5th) day following the
expiration of the seven-day revocation period described in Section 6.6
without revocation of the Release and Waiver by the Executive, unless the
Company determines in good faith that such payments are required to be delayed
for a period of six (6) months in order to satisfy the requirements of
Internal Revenue Code §409A(a)(2)(B)(i), in which case the Company shall so
advise the Executive, and such payments shall be made on the earlier of (i) six
(6) months after the Date of Termination or (ii) the death of the
Executive.


 


6.3           If
the Executive’s employment is terminated following a Change in Control and
during the term of this Agreement, unless such termination is (i) by the
Company for Cause, (ii) by reason of death or Disability or (iii) by
the Executive without Good Reason, all outstanding stock options held by the
Executive for the purchase of shares of Common Stock of J. Jill shall
immediately become vested in full.  The
Executive agrees not to exercise the portion of such stock options for which
vesting has been accelerated until the seven-day revocation period described in
Section 6.6 has expired without revocation of the Release and Waiver by
the Executive, and any such exercise before the seven-day revocation period has
expired without revocation of the Release and Waiver by the Executive shall be
null and void.  The Executive’s
employment shall be deemed to have been terminated following a Change in
Control by the Company without Cause or by the Executive with Good Reason if
the Executive’s employment is terminated prior to a Change in Control without
Cause at the direction of a Person who has entered into an agreement with the
Company the consummation of which will constitute a Change in Control or if the
Executive terminates his employment with Good Reason prior to a Change in
Control (determined by treating a Potential Change in Control as a Change in
Control in applying the definition of Good Reason) if the circumstance or event
which constitutes Good Reason occurs at the direction of such Person.


 


6.4           (i)            If
any payment or benefit made available to the Executive in connection with a
Change in Control (including, without limitation, any payment made pursuant to
any long-term incentive plans, stock option or equity participation right
plans) or termination of the Executive’s employment following a Change in
Control (in either category, a “Change in Control Payment”) is subject to the
Excise Tax (as hereinafter defined), the Company shall pay to the Executive
additional amounts (the “Gross Up Amounts”) such that the total amount of all
Change in Control Payments net of the Excise Tax shall equal the total amount
of all Change in Control Payments to which the Executive would have been
entitled if the Excise Tax had not been imposed. For purposes of this Section 6.4,
the term “Excise Tax” shall mean the tax imposed by Section 4999 of the
Code and any similar tax that may hereafter be imposed.


 


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(ii)           The
Gross Up Amounts due to the
Executive under this Section 6.4 shall be estimated by a nationally
recognized firm of certified public accountants selected by the individual
holding the position of Chief Financial Officer of the Company immediately
before the Change in Control or such officer’s designee, at any time that the
Executive is to receive a Change in Control Payment.  The Gross Up Amounts will be based upon the
following assumptions:


 


(A)          all
Change in Control Payments shall be deemed to be “parachute payments” within
the meaning of Section 280G(b)(2) of the Code, and all “excess
parachute payments” shall be deemed to be subject to the Excise Tax except to
the extent that, in the opinion of the certified public accountants charged
with estimating the Gross Up Amounts for the Executive under this Section 6.4,
such Change in Control Payments are not subject to the Excise Tax; and


 


(B)           the
Executive shall be deemed to pay federal, state and local taxes at the highest
marginal rate of taxation for the applicable calendar year.


 


(iii)          The estimated Gross Up Amount due the Executive
with respect to any Change in Control Payment pursuant to this Section 6.4
shall be paid to the Executive in a lump sum not later than thirty (30)
business days after such Change in Control Payment is provided to the
Executive.  In the event that the Gross
Up Amount is less than the amount actually due to the Executive under this Section 6.4,
the amount of any such shortfall shall be paid to the Executive within ten (10) days
after the existence of the shortfall is discovered.  In the event the Gross Up Amount is more than
the amount actually due the Executive under this Section 6.4, the
Executive shall repay the amount of such overpayment to the Company within a
reasonable time after the overpayment is discovered.


 


6.5           The
Severance Payments and other benefits provided for in this Section 6 are
in addition to any other payments or benefits arising upon a Change of Control
under any other agreement or plan, program or arrangement maintained by the
Company other than the Post-Termination Payments described in Section 5.3.


 


6.6           In
return for the Severance Payments and other benefits provided for in this Section 6,
the Executive agrees to execute the Release and Waiver in the form attached as Exhibit A
hereto, said Release and Waiver to include, without limitation, claims pursuant
to the Age Discrimination in Employment Act and all other claims, including
claims under federal and/or state law, arising out of or relating to the
Executive’s hiring, employment, or termination of employment.  For a period of seven days after the
Executive has executed such Release and Waiver, the Executive may revoke the
Release and Waiver.  The Release and
Waiver shall become effective, and the Severance Payments and other benefits
provided for in this Section 6 shall become due, only upon the expiration
of the seven-day revocation period without revocation of the Release and Waiver
by the Executive.  Notwithstanding the
foregoing, the Company and the Executive agree that the terms of this Agreement
shall survive the Release and Waiver and that claims to enforce the terms of
this Agreement are not discharged by the Release and Waiver.


 


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7.             Termination Procedures and Compensation During
Dispute.


 


7.1           Notice
of Termination. After a Change in Control and during the term of this
Agreement, any purported termination of the Executive’s employment (other than
by reason of death) shall be communicated by written Notice of Termination from
one party hereto to the other party hereto in accordance with Section 10
hereof. For purposes of this Agreement, a “Notice of Termination” shall mean a
notice which indicates the specific termination provision in this Agreement
relied upon and sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive’s employment under
the provision so indicated. Further, a Notice of Termination for Cause must
include a copy of a resolution duly adopted by the affirmative vote of not less
than two-thirds of the entire membership of the Board at a meeting of the Board
which was called and held for the purpose of considering such termination
(after reasonable notice to the Executive and an opportunity for the Executive,
together with the Executive’s counsel, to be heard before the Board) finding
that, in the good faith opinion of the Board, the Executive was guilty of conduct
set forth in clause (i) or (ii) of the definition of Cause herein,
and specifying the particulars thereof in detail.


 


7.2           Date
of Termination. “Date of Termination,” with respect to any purported
termination of the Executive’s employment after a Change in Control and during
the term of this Agreement, shall mean (i) if the Executive’s employment
is terminated for Disability, thirty (30) days after Notice of Termination is
given (provided that the Executive shall not have returned to the full-time
performance of the Executive’s duties during such thirty (30) day period), and (ii) if
the Executive’s employment is terminated for any other reason, the date
specified in the Notice of Termination (which, in the case of a termination by
the Company, shall not be less than thirty (30) days (except in the case of a
termination for Cause) and, in the case of a termination by the Executive,
shall not be less than fifteen (15) days nor more than sixty (60) days,
respectively, from the date such Notice of Termination is given).


 


7.3           Dispute
Concerning Termination. If prior to the Date of Termination (as determined
without regard to this Section 7.3), the party receiving a Notice of
Termination notifies the other party that a dispute exists concerning the
termination, the Date of Termination shall be the date on which the dispute is
finally resolved, either by mutual written agreement of the parties or by a
final judgment, order or decree (which is not appealable or with respect to
which the time for appeal therefrom has expired and no appeal has been
perfected) of a court of competent jurisdiction; provided, however, that the
Date of Termination shall be extended by a notice of dispute only if such
notice is given in good faith and the party giving such notice pursues the
resolution of such dispute with reasonable diligence.


 


7.4           Compensation
During Dispute. If a purported termination occurs following a Change in
Control and during the term of this Agreement, and such termination is disputed
in accordance with Section 7.3 hereof, the Company shall continue to pay
the Executive the full compensation in effect when the notice giving rise to
the dispute was given (including, but not limited to, salary) and continue the
Executive as a participant in all compensation, benefit and insurance plans in
which the Executive was participating when the notice giving rise to the
dispute was given, until the dispute is finally resolved in accordance with Section 7.3
hereof. Amounts paid under this Section 7.4 are in addition to all other
amounts due under this


 


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Agreement
(other than those due under Section 5.2 hereof) and shall not be offset
against or reduce any other amounts due under this Agreement.


 


8.             No Mitigation. The Company agrees that, if the Executive’s employment by the Company is
terminated during the term of this Agreement, the Executive is not required to
seek other employment or to attempt in any way to reduce any amounts payable to
the Executive by the Company pursuant to Section 6 or Section 7.4
hereof. Further, the amount of any payment or benefit provided for in Section 6
(other than Section 6.1(C)) or Section 7.4 hereof shall not be
reduced by any compensation earned by the Executive as the result of employment
by another employer, by retirement benefits, by offset against any amount
claimed to be owed by the Executive to the Company, or otherwise.


 


9.             Successors; Binding Agreement.


 


9.1           In
addition to any obligations imposed by law upon any successor to J. Jill, J.
Jill will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
or assets of J. Jill to expressly assume and agree to perform this Agreement in
the same manner and to the same extent that J. Jill would be required to
perform it if no such succession had taken place. Failure of J. Jill to obtain
such assumption and agreement prior to the effectiveness of any such succession
shall be a breach of this Agreement and shall entitle the Executive to
compensation in the same amount and on the same terms as the Executive would be
entitled to hereunder if the Executive were to terminate the Executive’s
employment for Good Reason after a Change in Control, except that, for purposes
of implementing the foregoing, the date on which any such succession becomes
effective shall be deemed the Date of Termination.


 


9.2           This
Agreement shall inure to the benefit of and be enforceable by the Executive’s
personal or legal representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees. If the Executive shall die while
any amount would still be payable to the Executive hereunder (other than
amounts which, by their terms, terminate upon the death of the Executive) if
the Executive had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement
to the executors, personal representatives or administrators of the Executive’s
estate.


 


10.           Notices.  For the purpose of this
Agreement, notices and all other communications provided for in this Agreement
shall be in writing and shall be deemed to have been duly given when delivered
or when mailed by United States registered mail, return receipt requested,
postage prepaid, addressed to the respective addresses set forth below, or to
such other address as either party may have furnished to the other in writing
in accordance herewith, except that notice of change of address shall be
effective only upon actual receipt:


To the Company:


 


The J. Jill Group, Inc.


4 Batterymarch Park


Quincy, Massachusetts  02169-7468


Attention: Chief Financial Officer


 


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with a copy to:


 


David R. Pierson, Esq.


Foley Hoag LLP


Seaport World Trade Center West


155 Seaport Boulevard


Boston, Massachusetts 02210-2600


 


To the Executive:


 


Gordon R.
Cooke


400 East 57th Street


New York, New York 10022


 


11.           Miscellaneous.  No provision of this Agreement
may be modified, waived or discharged unless such waiver, modification or
discharge is agreed to in writing and signed by the Executive and such officer
as may be specifically designated by the Board. 
No waiver by either party hereto at any time of any breach by the other
party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.  No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not expressly
set forth in this Agreement.  This
Agreement supersedes the Prior Agreement in its entirety.  The validity, interpretation, construction
and performance of this Agreement shall be governed by the laws of the
Commonwealth of Massachusetts, without regard to its principles of conflicts of
laws.  All references to sections of the
Exchange Act shall be deemed also to refer to any successor provisions to such
sections. Any payments provided for hereunder shall be paid net of any
applicable withholding required under federal, state or local law and any
additional withholding to which the Executive has agreed. The obligations of
the Company and the Executive under Sections 6 and 7 hereof shall survive the
expiration of the term of this Agreement.


 


12.           Validity. The invalidity or unenforceability or any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.


 


13.           Counterparts. This Agreement may be executed in several counterparts, each of which
shall be deemed to be an original but all of which together will constitute one
and the same instrument.


 


14.           Settlement of Disputes; Arbitration. All claims by the Executive for benefits under
this Agreement shall be directed to and determined by the Board and shall be in
writing. Any denial by the Board of a claim for benefits under this Agreement
shall be delivered to the Executive in writing and shall set forth the specific
reasons for the denial and the specific provisions of this Agreement relied
upon. The Board shall afford a reasonable opportunity to the Executive for a
review of the decision denying a claim and shall further allow the Executive to
appeal to the Board a decision of the Board within sixty (60) days after
notification by the Board


 


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that the Executive’s claim has been denied. Any further dispute or
controversy arising under or in connection with this Agreement shall be settled
exclusively by arbitration in Boston, Massachusetts, in accordance with the rules of
the American Arbitration Association then in effect.  Judgment may be entered on the arbitrator’s
award in any court having jurisdiction; provided, however, that the Executive
shall be entitled to seek specific performance of the Executive’s right to be
paid until the Date of Termination during the pendency of any dispute or
controversy arising under or in connection with this Agreement.


 


15.           Definitions. For purposes of this Agreement, the following terms shall have the
meanings indicated below:


 


(A)          “Beneficial Owner”
shall have the meaning defined in Rule 13d-3 under the Exchange Act.


 


(B)           “Board” shall
mean the Board of Directors of J. Jill.


 


(C)           “Bonus Plan”
shall mean a J. Jill incentive compensation plan, supplemental bonus plan or
other bonus or supplementary compensation plan or arrangement applicable to the
Executive.


 


(D)          “Cause” for
termination by the Company of the Executive’s employment, after any Change in
Control, shall mean (i) the willful and continued failure by the Executive
to substantially perform the Executive’s duties with the Company (other than
any such failure resulting from the Executive’s incapacity due to physical or
mental illness or any such actual or anticipated failure after the issuance of
a Notice of Termination for Good Reason by the Executive pursuant to Section 7.1
hereof) after a written demand for substantial performance is delivered to the
Executive by the Board, which demand specifically identifies the manner in
which the Board believes that the Executive has not substantially performed the
Executive’s duties, or (ii) the willful engaging by the Executive in
conduct which is demonstrably and materially injurious to the Company,
monetarily or otherwise. For purposes of clauses (i) and (ii) of this
definition, no act, or failure to act, on the Executive’s part shall be deemed “willful”
unless done, or omitted to be done, by the Executive not in good faith and
without reasonable belief that the Executive’s act, or failure to act, was in
the best interest of the Company.


 


(E)           A “Change in Control”
shall be deemed to have occurred if the conditions set forth in any one of the
following paragraphs shall have been satisfied:


 


(I)            any
Person becomes the Beneficial Owner, directly or indirectly, of securities of
J. Jill representing 50% or more of the combined voting power of J. Jill’s then
outstanding securities; or


 


(II)           during
any period of two (2) consecutive years (not including any period prior to
the execution of this Agreement), individuals who at the beginning of such
period constitute the Board and any new director (other than a director
designated by a Person who has entered into an agreement with J. Jill to effect
a transaction described in clause (I), (III) or (IV) of this paragraph) whose
election by the Board or nomination for election by J. Jill’s stockholders was
approved by a vote of at least two-thirds (2/3) of the directors then still in
office who either were directors at the beginning of the period or whose
election or nomination 


 


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for election
was previously so approved (a “Continuing Director”), cease for any reason to
constitute a majority thereof; or


 


(III)         the
stockholders of J. Jill approve a merger or consolidation of J. Jill with any
other corporation, other than (i) a merger or consolidation which would
result in the voting securities of J. Jill outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at least 50% of the
combined voting power of the voting securities of J. Jill or such surviving
entity outstanding immediately after such merger or consolidation, or (ii) a
merger or consolidation effected to implement a recapitalization of J. Jill (or
similar transaction) in which no Person acquires more than 50% of the combined
voting power of the Company’s then outstanding securities; or


 


(IV)         the
stockholders of J. Jill approve a plan of complete liquidation of J. Jill or an
agreement for the sale or disposition by J. Jill of all or substantially all J.
Jill’s assets.


The foregoing
to the contrary notwithstanding, a Change in Control shall not be deemed to
have occurred with respect to the Executive if the Executive is “part of a
purchasing group” which consummates the Change in Control transaction. The
Executive shall be deemed “part of a purchasing group” for purposes of the
preceding sentence if the Executive is an equity participant or has agreed to
become an equity participant in the purchasing company or group (except for (i) passive
ownership of less than 5% of the stock of the purchasing company or (ii) ownership
of equity participation in the purchasing company or group which is otherwise
not deemed to be significant, as determined prior to the Change in Control by a
majority of the non-employee Continuing Directors).


 


(F)           “Change in Control
Payment” shall have the meaning stated in Section 6.4 hereof.


 


(G)           “Code” shall
mean the Internal Revenue Code of 1986, as amended.


 


(H)          “Company” shall
mean J. Jill and its Subsidiaries.


 


(I)            “Date of
Termination” shall have the meaning stated in Section 7.2 hereof.


 


(J)            “Disability”
shall be deemed the reason for the termination by the Company of the Executive’s
employment, if, as a result of the Executive’s incapacity due to physical or
mental illness, the Executive shall have been absent from the full-time
performance of the Executive’s duties with the Company for a period of six (6) consecutive
months, the Company shall have given the Executive a Notice of Termination for
Disability, and, within thirty (30) days after such Notice of Termination is
given, the Executive shall not have returned to the full-time performance of
the Executive’s duties.


 


(K)          “Exchange Act”
shall mean the Securities Exchange Act of 1934, as amended from time to time.


 


(L)           “Excise Tax”
shall have the meaning stated in Section 6.4 hereof.


 


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(M)         “Executive” shall
mean the individual named in the first paragraph of this Agreement.


 


(N)          “Good Reason” for
termination by the Executive of the Executive’s employment shall mean the
occurrence (without the Executive’s express written consent) of any one of the
following acts by the Company, or failures by the Company to act, unless, in
the case of any act or failure to act described in paragraph (I), (V), (VI),
(VII), or (VIII) below, such act or failure to act is corrected prior to the
Date of Termination specified in the Notice of Termination given in respect
thereof:


 


(I)            the
assignment to the Executive of any duties inconsistent with the Executive’s
status as a senior officer of the Company or a substantial adverse alteration
in the nature or status of the Executive’s responsibilities from those in
effect immediately prior to the Change in Control;


 


(II)           a
reduction by the Company in the Executive’s annual base salary as in effect on
the date hereof or as the same may be increased from time to time;


 


(III)         the
Company’s requiring that the Executive’s principal place of business be at an
office located more than 25 miles from (i) the site of the Executive’s principal
place of business immediately prior to the Change in Control or (ii) New
York, New York, except for required travel on the Company’s business to an
extent substantially consistent with the Executive’s present business travel
obligations;


 


(IV)         the
failure by the Company, without the Executive’s consent, to pay to the
Executive any portion of the Executive’s then current compensation, or to pay
to the Executive any portion of an installment of deferred compensation under
any deferred compensation program of the Company, within seven (7) days of
the date such compensation is due;


 


(V)           the
failure by the Company to continue in effect any compensation plan in which the
Executive participates immediately prior to the Change in Control which is
material to the Executive’s total compensation, unless an equitable arrangement
(embodied in an ongoing substitute or alternative plan) has been made with
respect to such plan, or the failure by the Company to continue the Executive’s
participation therein (or in such substitute or alternative plan) on a basis
not materially less favorable, both in terms of the amount of benefits provided
and the level of the Executive’s participation relative to other participants,
as existed at the time of the Change in Control;


 


(VI)         the
failure by the Company to continue to provide the Executive with benefits
substantially similar to those enjoyed by the Executive under any of the
Company’s pension, life insurance, medical, health and accident, or disability
plans in which the Executive was participating at the time of the Change in
Control, the taking of any action by the Company which would directly or
indirectly materially reduce any of such benefits or deprive the Executive of
any material fringe benefit enjoyed by the Executive at the time of the Change
in Control, or the failure by the Company to provide the Executive with the
number of paid vacation days to which the Executive is entitled on the basis of
years of service with the 


 


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Company in
accordance with the Company’s normal vacation policy in effect at the time of
the Change in Control; or


 


(VII)        any
purported termination of the Executive’s employment which is not effected
pursuant to a Notice of Termination satisfying the requirements of Section 10
hereof; for purposes of this Agreement, no such purported termination shall be
effective.


 


The Executive’s
right to terminate the Executive’s employment for Good Reason shall not be
affected by the Executive’s incapacity due to physical or mental illness. The
Executive’s continued employment shall not constitute consent to, or a waiver
of rights with respect to, any act or failure to act constituting Good Reason
hereunder.


 


(O)          “Gross Up Amounts”
shall have the meaning stated in Section 6.4 hereof.


 


(P)           “J. Jill” shall
mean The J. Jill Group, Inc. and any successor to its business or assets
which assumes and agrees to perform this Agreement by operation of law, or
otherwise (except in determining, under Section 15(E) hereof, whether
or not any Change in Control of J. Jill has occurred in connection with such
succession).


 


(Q)          “Notice of
Termination” shall have the meaning stated in Section 7.1 hereof.


 


(R)           “Person” shall
have the meaning given in Section 3(a)(9) of the Exchange Act, as
modified and used in Sections 13(d) and 14(d) thereof; provided,
however, that a Person shall not include (i) J. Jill or any of its
Subsidiaries, (ii) a trustee or other fiduciary holding securities under
an employee benefit plan of the Company, (iii) an underwriter temporarily
holding securities pursuant to an offering of such securities, or (iv) a
corporation owned, directly or indirectly, by the stockholders of J. Jill in
substantially the same proportions as their ownership of stock of J. Jill.


 


(S)           “Post-Termination
Payments” shall have the meaning stated in Section 5.3 hereof.


 


(T)           A “Potential Change
in Control” shall be deemed to have occurred if the conditions set forth in
any one of the following paragraphs shall have been satisfied:


 


(I)            J.
Jill enters into an agreement, the consummation of which would result in the
occurrence of a Change in Control;


 


(II)           J.
Jill or any Person publicly announces an intention to take or to consider
taking actions which, if consummated, would constitute a Change in Control;


 


(III)         any
Person who is or becomes the Beneficial Owner, directly or indirectly, of
securities of J. Jill representing at least 20% or more of the combined voting
power of J. Jill’s then outstanding securities increases such Person’s beneficial
ownership of such securities by 5% or more over the percentage so owned by such
Person on the date hereof; or


 


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(IV)         the
Board adopts a resolution to the effect that, for purposes of this Agreement, a
Potential Change in Control has occurred.


 


The foregoing
to the contrary notwithstanding, a Potential Change in Control shall not be
deemed to have occurred with respect to the Executive if (i) the event
first giving rise to the Potential Change in Control involves a publicly
announced transaction or publicly announced proposed transaction which at the
time of the announcement has not been previously approved by the Board and (ii) the
Executive is “part of a purchasing group” proposing the transaction.  The Executive shall be deemed “part of a
purchasing group” for purposes of the preceding sentence if the Executive is an
equity participant or has agreed to become an equity participant in the
purchasing company or group (except for (i) passive ownership of less than
5% of the stock of the purchasing company or (ii) ownership of equity
participation in the purchasing company or group which is otherwise not deemed
to be significant, as determined prior to the Potential Change in Control by a
majority of the non-employee Continuing Directors).


 


(U)          “Severance Payments”
shall mean those payments described in Section 6.1 hereof.


 


(V)           “Subsidiary”
shall mean any corporation, partnership, limited liability company or other
entity, at least a majority of the outstanding voting shares or controlling
interest of which is at the time directly or indirectly owned or controlled
(either alone or through Subsidiaries or together with Subsidiaries) by J. Jill
or another Subsidiary.


 


[signature page follows]


 


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IN WITNESS
WHEREOF, the parties have executed this Amended and Restated Change In Control
Severance Agreement as of the date first above written.


 


	
   

  	
  THE J. JILL GROUP, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Ruth M. Owades

  	
   

  
	
   

  	
   

  	
  Authorized Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Gordon R. Cooke

  	
   

  
	
   

  	
  Gordon R. Cooke

  
					



 


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EXHIBIT A


 


GENERAL
RELEASE AND WAIVER OF ALL CLAIMS


(INCLUDING
AGE DISCRIMINATION IN EMPLOYMENT ACT CLAIMS)


 


In consideration of the payment, benefits and
other agreements set forth in the Amended and Restated Change In Control
Severance Agreement dated January 27, 2006 between The J. Jill Group, Inc.
(“J. Jill”) and Gordon R. Cooke (the “Executive”) to which this General Release
and Waiver Of All Claims is attached (the “Agreement”), the Executive, for
himself and for his heirs, executors, estates, agents, representatives,
attorneys, insurers, successors and assigns (collectively, the “Releasors”),
hereby voluntarily releases and forever discharges J. Jill and its subsidiaries
(direct and indirect), affiliates, related companies, divisions, and
predecessor and successor companies (J. Jill and such subsidiaries, affiliates,
related companies, divisions and predecessor and successor companies being collectively
referred to as the “Company”), and each of its and their present, former and
future shareholders, officers, directors, employees, agents, representatives,
attorneys, insurers, heirs, successors and assigns in their capacities as such
(J. Jill, its subsidiaries, affiliates, related companies, divisions and
predecessor and successor companies and its and their present, former and
future shareholders, officers, directors, employees, agents, representatives,
attorneys, insurers, heirs, successors and assigns in their capacities as such
being collectively referred to as the “Releasees”) from all actions, causes of
action, suits, debts, sums of money, accounts, covenants, contracts,
agreements, promises, damages, judgments, demands and claims which the Releasors
ever had, or now have, or hereafter can, shall or may have, for, upon or by
reason of any matter or cause whatsoever arising from the beginning of the
world to the date of the execution of this Release and Waiver, whether known or
unknown, in law or equity, whether statutory or common law, whether federal,
state, local or otherwise, including but not limited to claims arising out of
or in any way related to the Executive’s employment by the Company (including
his hiring), or the termination of that employment, whether as a contractor or
employee, or any related matters (including but not limited to claims, if any,
arising under the Age Discrimination in Employment Act of 1967, as amended, the
Civil Rights Act of 1866, Title VII of the Civil Rights Act of 1964, as
amended, the Civil Rights Act of 1991, as amended, the Americans With
Disabilities Act of 1990, as amended, the Family and Medical Leave Act of 1993,
the Immigration Reform and Control Act of 1986, the Massachusetts Law Against
Discrimination (Mass. Gen. Laws ch. 151B§1 et  seq.), the
Massachusetts Payment of Wages Act, the Massachusetts Civil and Equal Rights
Acts, and federal or Massachusetts laws, statutes and regulations, including
common or constitutional law).


 


The Executive represents and warrants that the Executive knowingly and
voluntarily waives all rights or claims arising prior to the Executive’s
execution of this Release and Waiver that the Executive may have against the
Releasees, or any of them, to receive any payment, benefit or remedial relief
as a consequence of an action brought on the Executive’s behalf in any state or
federal agency and/or as a consequence of any litigation concerning any facts
alleged in any such action.


 


The Executive further represents that:


 


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(a)           The
Company has advised the Executive to consult with an attorney of the Executive’s
choosing concerning the rights waived in this Release and Waiver.  The Executive has carefully read and fully
understands this Release and Waiver, and is voluntarily entering into this
Release and Waiver.


 


(b)           The Executive understands that the Executive has 21
days to review this Release and Waiver prior to its execution.  If at any time prior to the end of the 21 day
period, the Executive executes this Release and Waiver, the Executive
acknowledges that such early execution is a knowing and voluntary waiver of the
Executive’s right to consider this Release and Waiver for at least 21 days and
is due to the Executive’s belief that the Executive has had ample time in which
to consider and understand this Release and Waiver and in which to review this
Release and Waiver with an attorney.


 


(c)           The Executive understands that, for a period of seven
days after the Executive has executed this Release and Waiver, the Executive
may revoke this Release and Waiver by giving notice in writing of such
revocation to the Company in accordance with Section 10 of the
Agreement.  If at any time after the end
of the seven-day period the Executive accepts any of the payments or benefits
provided described in Section 6 of the Agreement, such acceptance will
constitute an admission by the Executive that the Executive did not revoke this
Release and Waiver during the revocation period and will further constitute an
admission by the Executive that this Release and Waiver has become effective
and enforceable.


 


(d)           The Executive understands the effect of this Release
and Waiver and that the Executive gives up any rights the Executive may have,
in particular but without limitation, under the Federal Age Discrimination in
Employment Act and the Massachusetts Law Against Discrimination (Mass. Gen.
Laws ch. 151B§1 et  seq.).


 


(e)           The Executive understands that the Executive is
receiving benefits pursuant to the Agreement that the Executive would not
otherwise be entitled to if the Executive did not enter into this Release and
Waiver.


 


(f)            The
Executive acknowledges that the severance pay and associated benefits specified
in the Agreement represent all payments and benefits owed to the Executive and
that upon receipt of said payments and benefits, the Executive shall have
received all payments and benefits owed to the Executive in connection with the
Executive’s employment with the Company and that no additional payments or
benefits are due.


Signed and sealed this         
day of                   ,
200  .


 


Please note that you may revoke this Release and Waiver within 7 days
of signing, in which case this Release and Waiver shall be void.


 


 


	
   

  	
   

  
	
   

  	
  Gordon R. Cooke

  



 


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