Exhibit
10.2


 


September 23,
2009


 


Adrienne
Kantor


66
Leonard Street, Apt. 3E


New
York, NY  10013


 


Dear Ms. Kantor:


 


This letter agreement (the “Agreement”)
confirms the termination of your employment with Cache, Inc. (the “Company”)
and of the Employment Agreement dated July 3, 2007 (the “Employment
Agreement”) with the Company, effective at the close of business on  September 23, 2009 (the “Termination Date”).  The termination of your employment is by
mutual written agreement as provided by Section 4.1 of the Employment
Agreement, subject to the terms and conditions set forth hereinafter.  This letter also amends certain related
provisions of the Asset Purchase Agreement by and among Cache, Inc.,
Adrienne Victoria, Inc. and Adrienne Victoria Designs, Inc., dated as
of July 3, 2007 (the “Asset Purchase Agreement”).


 


1.     The Company will provide you
with the following:


 


(a)           Payments. 
In consideration of your agreement, without revocation, to the terms and
conditions of this Agreement, and the release of claims as set forth below, and
in lieu of any and all payments that would have been made to the Seller under Section 3.8
of the Asset Purchase Agreement:


 


(i)            The Company will provide you
with a payment of $1,500,000 payable in 12 quarterly installments of $125,000
each.  The first payment will be payable
on  September 30, 2009,  and subsequent payments shall be payable every three months
thereafter until the entire $1,500,000 is paid.


 


(ii)           To the extent that the Company earns net income in
excess of $6.5 million on an annual basis in 2010, 2011, 2012 and/or 2013, you
shall be entitled to receive ten percent (10%) of every dollar of net income
earned in excess of $6.5 million up to an aggregate total payment of
$500,000.  Such payments, if any, shall
be payable in 2011, 2012, 2013 and 2014, as and if applicable.  For the avoidance of doubt, you shall not be
entitled to any payments under this Paragraph 1(a)(ii) in respect of any
year in which the Company earns net income equal to or less than $6.5 million.


 


(b)   Benefits.  Your coverage under the Company’s
benefit plans will cease as of the Termination Date, except for your medical,
dental and vision coverage which will cease at the end of the month in which
the Termination Date occurs.  Following
such cessation of coverage, you may elect to continue your coverage under the
Company’s medical, dental and vision benefit plans, 


 

















 


at your own expense,
pursuant to the Consolidated Omnibus Budget Reconciliation Act (COBRA), subject
to the terms of the applicable plan and the law.  Specific information regarding continuation
of your medical, dental and vision benefits will be sent to you under separate
cover.  Your right to make additional
contributions to the 401(k) Plan ends as of the Termination Date.  You will retain your rights to any amounts
you previously contributed to the Plan and amounts contributed by the Company
that are vested in accordance with the terms of the Plan.  Nothing in this Agreement shall
affect or otherwise diminish your coverage under the Company’s directors and
officers liability insurance policy as set forth in Section 3.5 of the
Employment Agreement or your rights to indemnification by the Company, if any.


 


(c)   Salary &
Unused Vacation. 
You will be paid your salary and accrued but unused vacation days
through the Termination Date in accordance with the Company’s normal payroll
practices.


 


(d)   No Other
Payments. 
The parties specifically acknowledge that the payments described in
Paragraph 1(a) above constitute consideration paid in lieu of the Earn-Out
payments that would or could have been payable to the Seller (as defined in the
Asset Purchase Agreement) under Section 3.8 of the Asset Purchase
Agreement.  You (and the Seller) shall
not be entitled to any other severance, compensation, wages or other payments
(including, without limitation, payments under Section 3.8 of the Asset
Purchase Agreement or payments under Section 5.1 of the Employment
Agreement) other than reimbursement for legitimate business expenses incurred
prior to the Termination Date, which shall be reimbursed in accordance with the
Company’s expense reimbursement policy, or as set forth in this Agreement.


 


2.     Restricted Stock.  The Company will pay you for your 2111 vested
Restricted Shares (as defined in the Company’s 2008 Stock Option and
Performance Incentive Plan) which you acquired under the Restricted Stock Award
Agreement between you and the Company dated July 15, 2008 (the “Restricted
Stock Award Agreement”).  The price shall
be determined based on the closing price of the Company’s stock on the
Termination Date, and shall be payable to you within fifteen (15)  business days following the Effective Date (as defined in
Paragraph 12 of this Agreement).  You
agree that all equity incentives you hold in the Company (including, without
limitation, unvested Restricted Shares under the Company’s 2008 Stock Option
and Performance Incentive Plan) are forfeited as of the Termination Date.  The Company represents and warrants that you
have not been granted any equity incentive benefits other than those set forth
in the Restricted Stock Award Agreement. 
For the avoidance of doubt, you shall not forfeit any Company stock that
you previously acquired in the open market prior to the Termination Date.


 


3.     Rights Under the Asset
Purchase Agreement.


 


(a)   Nothing
in this Agreement affects the Seller’s right to payment of the purchase price
under Section 3.2 of the Asset Purchase Agreement, the related Promissory
Note dated July 3, 2007 and the guaranty by Cache, Inc., dated July 3,
2007 in favor of the Seller. 
Notwithstanding the foregoing, you agree that if you (i) do not
execute this Agreement, or (ii) revoke your acceptance of this Agreement,
and you have already received payment under Paragraph 1(a) of this
Agreement, such payment will be deducted from any other payments owed to the
Seller by the 


 


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Company (including,
without limitation, payments under Section 3.2 of the Asset Purchase
Agreement).


 


(b)   You agree
that you and the Seller shall no longer have any right to Earn-Out payments
under Section 3.8 of the Asset Purchase Agreement.


 


(c)   The
Company agrees that, notwithstanding the provisions of Article 10 of the
Asset Purchase Agreement, it shall not assert any claim for a breach of Section 4.2
or the second sentence of Section 4.5 of the Asset Purchase Agreement
except following a claim brought against the Company by a third party or
receipt by the Company of written notice from a third party of any facts or
circumstances that would constitute a breach of such sections.


 


(d)   Except as
explicitly set forth herein, the provisions of the Asset Purchase Agreement
remain in full force and effect.


 


4.     Restrictions and Continuing
Obligations.


 


(a)   Proprietary
Information. 
You confirm your continuing obligations to protect Proprietary
Information under Section 6 of the Employment Agreement and represent and
warrant that you have complied with them to date.  Such obligations are hereby incorporated by
reference into this Agreement.


 


(b)   Cooperation.  You confirm your continuing
obligations to cooperate with reasonable requests of the Company under Section 6.3
and Section 8 of the Employment Agreement and represent and warrant that
you have complied with them to date. 
Such obligations are hereby incorporated by reference into this
Agreement.


 


(c)   Restrictive
Covenants. 
You confirm your obligations with respect to non-disclosure and
non-solicitation under Section 7.1 of the Employment Agreement, and Section 7.4(c),
(f) and (g) of the Asset Purchase Agreement and represent and warrant
that you have complied with them to date. 
Such obligations are hereby incorporated by reference into this
Agreement and continue after the Termination Date as provided in Section 7
of the Employment Agreement and Section 7.4 of the Asset Purchase
Agreement.  You are expressly released,
as of the Effective Date, from the non-compete provisions in Section 7.2
of the Employment Agreement and Section 7.4 of the Asset Purchase
Agreement.


 


(d)   Return of
Property. 
You confirm your obligation to promptly return Company Property in
accordance with Section 6.4 of the Employment Agreement.  This obligation is hereby incorporated by
reference into this Agreement. 
Notwithstanding the foregoing, you may retain your Blackberry as personal
property; provided that, you shall therefore remove and/or return any
information related to the Company, including, without limitation, any
Proprietary Information, and you agree to protect the confidentiality of all
such information stored on the Blackberry. 
For purposes of clarity, it is understood and agreed that your cell
phone is, and remains, your personal property, and the Company agrees to assist
and comply with any reasonable request to port your cell phone telephone number
as may be required.  In addition, you may
retrieve, within ten (10) 


 


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days of the date hereof,
your personal belongings and effects, including but not limited to the Excluded
Assets enumerated in Schedule 2.3(1) of the Asset Purchase Agreement.


 


(e)   Nondisparagement.  You confirm your obligation not
to disparage the Company in accordance with Section 9 of the Employment
Agreement and represent and warrant that you have complied with it to
date.  You
agree, by signing this Agreement, that you will not at any time without
limitation publish or communicate to any person or entity any Disparaging (as
defined below) remarks, comments or statements concerning the Cache Released Parties (as defined in Paragraph
5(a) of this Agreement). The Company agrees that the Company’s Officers
and Directors  will not, at any time without
limitation, publish or communicate to any person or entity any Disparaging
remarks, comments or statements concerning you.  “Disparaging”
remarks, comments or statements are those that impugn the character, honesty,
integrity, morality or business acumen or abilities in connection with any
aspect of the operation of business of the individual or entity being
disparaged. Nothing in this paragraph shall
be construed to preclude truthful disclosures in response to lawful process as
required by applicable law, regulation, or order or directive of a court,
governmental agency or regulatory organization.


 


(f)    Remedies;
Specific Performance. 
You confirm the Company’s right to injunctive relief provided in Section 10
of the Employment Agreement and Section 7.4(f) of the Asset Purchase
Agreement.  This right is hereby
incorporated by reference into this Agreement.


 


5.     Releases.


 


(a)   Release
by You.  In
consideration of the benefits set forth herein, and other good and valuable
consideration that you agree you would not be entitled to without executing
this Agreement, you have no claim against the Company and, you, on your own
behalf and on behalf of your heirs, executors, assigns, representatives, agents
and attorneys (the “Kantor Releasors”), hereby irrevocably generally release
and waive (give up) any and all complaints, grievances, claims, causes of
action or the like that you had, now have or may have in the future against the
Company, its parent companies, subsidiaries, affiliates and affiliated funds,
and all of their respective past and present officers, directors, principals,
employees, representatives, agents, attorneys, successors and assigns, in their
official and individual capacities (collectively the “Cache Released Parties”),
including, but not limited to, any and all matters relating to your employment
and/or termination of employment with the Company, including, but not limited
to, any claims for employment discrimination on the basis of age, sex, race,
religion, national origin, disability or any other protected class and any
claims for wages, salary, bonuses or benefits of any kind or nature and any and
all claims arising under any federal, state or local discrimination laws,
including, but not limited to, Title VII
of the Civil Rights Act of 1964, the
Civil Rights Act of 1866, the Americans with Disabilities Act, the Age
Discrimination in Employment Act, the Pregnancy Discrimination Act, the Equal
Pay Act, the Family Medical Leave Act of 1993, the Employee Retirement Income
Security Act, the New York State Human Rights Law, the New York State
Whistleblower Law, the New York State Labor Law, the New York State Worker
Adjustment and Retraining Notification Act, the New York Civil Rights Law, the
Administrative Code of the City of New York, the New York City Human Rights
Law, all as  amended, and you, on behalf of the Kantor Releasors,
further release and waive any other claim or cause of action recognized in law or
in equity that you had or now have against the Cache Released Parties occurring
from the 


 


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beginning of time through
the date you execute this Agreement. 
Nothing in this Agreement shall affect your rights under this Agreement
or under any Company benefit plans in which you are vested.  Notwithstanding the foregoing, this paragraph
shall not extend to and will not release any claims that have arisen or arise
from (i) the breach of this Agreement, or (ii) breaches of the
representations and warranties contained in the Asset Purchase Agreement.


 


(b)   Release
by the Company. 
In consideration of the benefits set forth herein, and other good and
valuable consideration that the Company agrees it would not be entitled to
without executing this Agreement, the Company, on behalf of itself and its
parents, subsidiaries, affiliates, successors and assigns (the “Cache Releasors”),
to the extent legally authorized to do so, hereby irrevocably generally
releases and waives (gives up) any and all complaints, grievances, claims,
causes of action or the like that it had, now has or may have in the future
against you, your heirs, executors, assigns, representatives, agents and
attorneys which are in any way connected with, or in any way arise out of or
relate to, any cause whatsoever, from the beginning of time to the date the
Company executes this Agreement, including, but not limited to, any and all
matters relating to your employment and/or termination of employment with the
Company.  Notwithstanding the foregoing,
this paragraph shall not extend to and will not release any claims that have
arisen or arise from (i) your fraudulent conduct, criminal conduct, or
violation of any law, (ii) your breach of this Agreement, (iii) claims
referenced in Paragraph 3(c) of this Agreement or (iv) breaches of
the representations and warranties contained in the Asset Purchase Agreement.


 


6.     No Pending Claims.  You represent and warrant that no action,
suit or proceeding has been commenced against the Cache Released Parties by the
Kantor Releasors or on behalf of the Kantor Releasors, and that you know of no
claim against the Cache Released Parties as of the date you execute this
Agreement.  The Company represents and
warrants that no action, suit or proceeding has been commenced against you by
the Cache Releasors or on behalf of the Cache Releasors, and that the Company
knows of no claim against you as of date the Company executes this Agreement.


 


7.     Non-Admission;
Inadmissibility. 
This Agreement and the performance of the actions required by this
Agreement shall not constitute, or in any manner be construed as, an admission
by you or the Company that any action either party took with respect to the
other was wrongful, unlawful or in violation of any local, state or federal
act, statute, or constitution or susceptible of inflicting any damages or
injury on the other.  The parties
expressly deny any such wrongdoing, violation, or liability for any and all
claims asserted by the other.  This Agreement
is entered into solely to resolve all matters related to or arising out of your
employment with the Company and the cessation thereof.  Neither this Agreement nor the fact of its
execution may be used as evidence in any action or proceeding of any nature by
anyone for any purpose except to enforce its terms.


 


8.     Email to Company Employees.  The Company agrees to send an email,
substantially in the form attached hereto as Exhibit A, on your behalf to
the employees in the Company’s New York corporate office.


 


9.     Entire Agreement.  It is mutually understood and agreed that
this Agreement and the Asset Purchase Agreement (only to the extent that it
does not conflict with this 


 


5

















 


Agreement) constitute the entire
understanding between you and the Company relating to the subject matter of
this Agreement and supersede any and all prior agreements or understandings
between you and the Company arising out of or relating to your employment with
the Company and the cessation thereof.


 


10.   Choice of Law; Venue.  The laws of the state of New
York shall govern the validity of this Agreement, the construction of its terms
and the interpretation of the rights and duties of the parties hereto.  For purposes of any actions
or proceedings related to this Agreement or your employment with the Company
the parties agree to submit to the exclusive jurisdiction of the state and
federal courts of New York, New York County.


 


11.   Changes or Modifications.  This Agreement may not be changed or modified
except by writing signed by both you and an authorized representative of the
Company.  The failure of a party to
insist upon strict adherence to any term of this Agreement on any occasion
shall not be considered a waiver thereof or deprive that party of the right
thereafter to insist upon strict adherence to that term or any other term of
this Agreement.


 


12.   Effective Date.


 


(a)   This
Agreement is valid only if signed by you and returned to the Company within
twenty-two (22) days of the date you receive this Agreement.  You have seven (7) days following the
date you sign this Agreement during which to revoke it, by delivering a written
notice of revocation to Maggie Feeney, Cache, Inc., 1440 Broadway, 5th
Floor, New York, NY, 10018.  To be
effective, such revocation must be received by Maggie Feeney  no later than 11:59 p.m. (New York City time) on the
seventh (7th) calendar day following your execution this Agreement.  Provided that it is not revoked, this
Agreement will be effective on the eighth (8th) day following the Company’s
receipt of the valid Agreement signed by you (the “Effective Date”).


 


(b)   You
acknowledge that the Company has provided you with at least twenty-one (21)
days from the date upon which this Agreement is delivered to you within which
to consider the terms and effect of this Agreement.  You agree that any changes made to the
Agreement from the time it was first offered to you, whether material or
immaterial, do not restart the running of the 21-day period.  If you elect to execute this Agreement before
the expiration of the 21-day period, you acknowledge that you have chosen, of
your own free will without any duress, to waive your right to the full
twenty-one (21) days.


 


(c)   The
Company hereby advises you to consult with an attorney prior to signing this
Agreement.


 


13.   Acknowledgements.  By signing this Agreement, it is acknowledged
that:


 


(a)   The
parties have read this Agreement;


 


(b)   You
understand and know that you are giving up important rights, including but not limited
to rights under the acts, statutes, codes, ordinances, rules and laws set
forth in 


 


6

















 


Paragraph 5(a) of
this Agreement, and any other constitutional, statutory common law rights and
privileges;


 


(c)   You
understand that as a result of entering into this Agreement you will not have
the right to assert that the Company unlawfully terminated your employment or
violated any rights in connection with your employment;


 


(d)   Except as
set forth herein, no promises or inducements for this Agreement have been made,
and the parties are entering into this Agreement without reliance upon any
statement or representation by any of the parties or any other person,
concerning any fact material hereto;


 


(e)   The
parties agree to everything contained in this Agreement; and


 


(f)    The
parties are signing this Agreement knowingly, voluntarily, and free of any
duress.


 


14.   Severability.  It is the intent of the parties that the
provisions of this Agreement be enforced to the fullest extent permitted by
law.  In case any provision of this
Agreement shall be declared by an arbitrator or a court of competent
jurisdiction to be invalid, illegal or unenforceable as written, the parties
agree that the court shall modify and reform such provision to permit
enforcement to the greatest extent permitted by law.  In addition, if any provision of this
Agreement shall be declared invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions of this Agreement shall
in no way be affected or impaired thereby.


 


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If this Agreement is
acceptable to you, please sign it and return it to Maggie Feeney  within time frame specified in Paragraph 12.


 


 


	
   

  	
  Sincerely yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Thomas E. Reinckens

  
	
   

  	
  Thomas E. Reinckens

  
	
   

  	
  Chief Executive Officer

  



 


Agreed and Accepted on this 23
day of Sept. 2009


 


 


	
  /s/ Adrienne Kantor

  	
   

  
	
  Adrienne Kantor

  	
   

  
	
   

  	
   

  	
   

  
	
  Adrienne Victoria, Inc.

  	
   

  
	
  By: 

  	
  /s/ Adrienne Kantor

  	
   

  
	
   

  	
  Name: Adrienne Kantor

  	
   

  
	
   

  	
  Title: President

  	
   

  
	
   

  	
   

  	
   

  
	
  Adrienne Victoria Designs, Inc.

  	
   

  
	
  By: 

  	
  /s/ Adrienne Kantor

  	
   

  
	
   

  	
  Name: Adrienne Kantor

  	
   

  
	
   

  	
  Title: President

  	
   

  
				



 


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