**Exhibit10.2**

 

September 23,2009

 

AdrienneKantor

66Leonard Street, Apt. 3E

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

 

# 1.     The Company will provide youwith the following:

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

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#### (i)            The Company will provide youwith a payment of $1,500,000 payable in 12 quarterly installments of $125,000each.  The first payment will be payableon****September 30, 2009,****and subsequent payments shall be payable every three monthsthereafter until the entire $1,500,000 is paid.

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

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## (b)   Benefits.  Your coverage under the Company’sbenefit 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 whichthe Termination Date occurs.  Followingsuch cessation of coverage, you may elect to continue your coverage under theCompany’s medical, dental and vision benefit plans, 

 

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## at your own expense,pursuant to the Consolidated Omnibus Budget Reconciliation Act (COBRA), subjectto the terms of the applicable plan and the law.  Specific information regarding continuationof your medical, dental and vision benefits will be sent to you under separatecover.  Your right to make additionalcontributions to the 401(k) Plan ends as of the Termination Date.  You will retain your rights to any amountsyou previously contributed to the Plan and amounts contributed by the Companythat are vested in accordance with the terms of the Plan.** **Nothing in this Agreement shallaffect or otherwise diminish your coverage under the Company’s directors andofficers liability insurance policy as set forth in Section 3.5 of theEmployment Agreement or your rights to indemnification by the Company, if any.

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

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## (d)   No OtherPayments. The parties specifically acknowledge that the payments described inParagraph 1(a) above constitute consideration paid in lieu of the Earn-Outpayments that would or could have been payable to the Seller (as defined in theAsset Purchase Agreement) under Section 3.8 of the Asset PurchaseAgreement.  You (and the Seller) shallnot be entitled to any other severance, compensation, wages or other payments(including, without limitation, payments under Section 3.8 of the AssetPurchase Agreement or payments under Section 5.1 of the EmploymentAgreement) other than reimbursement for legitimate business expenses incurredprior to the Termination Date, which shall be reimbursed in accordance with theCompany’s expense reimbursement policy, or as set forth in this Agreement.

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# 2.     Restricted Stock.  The Company will pay you for your 2111 vestedRestricted Shares (as defined in the Company’s 2008 Stock Option andPerformance Incentive Plan) which you acquired under the Restricted Stock AwardAgreement between you and the Company dated July 15, 2008 (the “RestrictedStock Award Agreement”).  The price shallbe determined based on the closing price of the Company’s stock on theTermination Date, and shall be payable to you within fifteen (15)****business days following the Effective Date (as defined inParagraph 12 of this Agreement).  Youagree that all equity incentives you hold in the Company (including, withoutlimitation, unvested Restricted Shares under the Company’s 2008 Stock Optionand Performance Incentive Plan) are forfeited as of the Termination Date.  The Company represents and warrants that youhave not been granted any equity incentive benefits other than those set forthin the Restricted Stock Award Agreement. For the avoidance of doubt, you shall not forfeit any Company stock thatyou previously acquired in the open market prior to the Termination Date.

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# 3.     Rights Under the AssetPurchase Agreement.

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## (a)   Nothingin this Agreement affects the Seller’s right to payment of the purchase priceunder Section 3.2 of the Asset Purchase Agreement, the related PromissoryNote 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 notexecute this Agreement, or (ii) revoke your acceptance of this Agreement,and you have already received payment under Paragraph 1(a) of thisAgreement, such payment will be deducted from any other payments owed to theSeller by the 

 

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## Company (including,without limitation, payments under Section 3.2 of the Asset PurchaseAgreement).

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## (b)   You agreethat you and the Seller shall no longer have any right to Earn-Out paymentsunder Section 3.8 of the Asset Purchase Agreement.

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

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## (d)   Except asexplicitly set forth herein, the provisions of the Asset Purchase Agreementremain in full force and effect.

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# 4.     Restrictions and ContinuingObligations.

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## (a)   ProprietaryInformation. You confirm your continuing obligations to protect ProprietaryInformation under Section 6 of the Employment Agreement and represent andwarrant that you have complied with them to date.  Such obligations are hereby incorporated byreference into this Agreement.

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

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## (c)   RestrictiveCovenants. You confirm your obligations with respect to non-disclosure andnon-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 warrantthat you have complied with them to date. Such obligations are hereby incorporated by reference into thisAgreement and continue after the Termination Date as provided in Section 7of the Employment Agreement and Section 7.4 of the Asset PurchaseAgreement.  You are expressly released,as of the Effective Date, from the non-compete provisions in Section 7.2of the Employment Agreement and Section 7.4 of the Asset PurchaseAgreement.

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## (d)   Return ofProperty. You confirm your obligation to promptly return Company Property inaccordance with Section 6.4 of the Employment Agreement.  This obligation is hereby incorporated byreference into this Agreement. Notwithstanding the foregoing, you may retain your Blackberry as personalproperty; provided that, you shall therefore remove and/or return anyinformation related to the Company, including, without limitation, anyProprietary Information, and you agree to protect the confidentiality of allsuch information stored on the Blackberry. For purposes of clarity, it is understood and agreed that your cellphone is, and remains, your personal property, and the Company agrees to assistand comply with any reasonable request to port your cell phone telephone numberas may be required.  In addition, you mayretrieve, within ten (10) 

 

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

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## (e)   Nondisparagement.  You confirm your obligation notto disparage the Company in accordance with Section 9 of the EmploymentAgreement and represent and warrant that you have complied with it todate.  Youagree, by signing this Agreement, that you will not at any time withoutlimitation publish or communicate to any person or entity any Disparaging (asdefined below) remarks, comments or statements concerning the Cache Released Parties (as defined in Paragraph5(a) of this Agreement). The Company agrees that the Company’s Officersand Directors****will not, at any time withoutlimitation, publish or communicate to any person or entity any Disparagingremarks, 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 anyaspect of the operation of business of the individual or entity beingdisparaged. Nothing in this paragraph shallbe construed to preclude truthful disclosures in response to lawful process asrequired by applicable law, regulation, or order or directive of a court,governmental agency or regulatory organization.

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

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# 5.     Releases.

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## (a)   Releaseby You.  Inconsideration of the benefits set forth herein, and other good and valuableconsideration that you agree you would not be entitled to without executingthis Agreement, you have no claim against the Company and, you, on your ownbehalf and on behalf of your heirs, executors, assigns, representatives, agentsand attorneys (the “Kantor Releasors”), hereby irrevocably generally releaseand waive (give up) any and all complaints, grievances, claims, causes ofaction or the like that you had, now have or may have in the future against theCompany, 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 theirofficial and individual capacities (collectively the “Cache Released Parties”),including, but not limited to, any and all matters relating to your employmentand/or termination of employment with the Company, including, but not limitedto, any claims for employment discrimination on the basis of age, sex, race,religion, national origin, disability or any other protected class and anyclaims for wages, salary, bonuses or benefits of any kind or nature and any andall claims arising under any federal, state or local discrimination laws,including, but not limited to, Title VIIof the Civil Rights Act of 1964, theCivil Rights Act of 1866, the Americans with Disabilities Act, the AgeDiscrimination in Employment Act, the Pregnancy Discrimination Act, the EqualPay Act, the Family Medical Leave Act of 1993, the Employee Retirement IncomeSecurity Act, the New York State Human Rights Law, the New York StateWhistleblower Law, the New York State Labor Law, the New York State WorkerAdjustment and Retraining Notification Act, the New York Civil Rights Law, theAdministrative Code of the City of New York, the New York City Human RightsLaw, all asamended, and you, on behalf of the Kantor Releasors,further release and waive any other claim or cause of action recognized in law orin equity that you had or now have against the Cache Released Parties occurringfrom the 

 

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

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## (b)   Releaseby the Company. In consideration of the benefits set forth herein, and other good andvaluable consideration that the Company agrees it would not be entitled towithout executing this Agreement, the Company, on behalf of itself and itsparents, subsidiaries, affiliates, successors and assigns (the “Cache Releasors”),to the extent legally authorized to do so, hereby irrevocably generallyreleases 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 futureagainst you, your heirs, executors, assigns, representatives, agents andattorneys which are in any way connected with, or in any way arise out of orrelate to, any cause whatsoever, from the beginning of time to the date theCompany executes this Agreement, including, but not limited to, any and allmatters relating to your employment and/or termination of employment with theCompany.  Notwithstanding the foregoing,this paragraph shall not extend to and will not release any claims that havearisen or arise from (i) your fraudulent conduct, criminal conduct, orviolation of any law, (ii) your breach of this Agreement, (iii) claimsreferenced in Paragraph 3(c) of this Agreement or (iv) breaches ofthe representations and warranties contained in the Asset Purchase Agreement.

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

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# 7.     Non-Admission;Inadmissibility. This Agreement and the performance of the actions required by thisAgreement shall not constitute, or in any manner be construed as, an admissionby you or the Company that any action either party took with respect to theother was wrongful, unlawful or in violation of any local, state or federalact, statute, or constitution or susceptible of inflicting any damages orinjury on the other.  The partiesexpressly deny any such wrongdoing, violation, or liability for any and allclaims asserted by the other.  This Agreementis entered into solely to resolve all matters related to or arising out of youremployment with the Company and the cessation thereof.  Neither this Agreement nor the fact of itsexecution may be used as evidence in any action or proceeding of any nature byanyone for any purpose except to enforce its terms.

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

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

 

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# Agreement) constitute the entireunderstanding between you and the Company relating to the subject matter ofthis Agreement and supersede any and all prior agreements or understandingsbetween you and the Company arising out of or relating to your employment withthe Company and the cessation thereof.

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

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# 11.   Changes or Modifications.  This Agreement may not be changed or modifiedexcept by writing signed by both you and an authorized representative of theCompany.  The failure of a party toinsist upon strict adherence to any term of this Agreement on any occasionshall not be considered a waiver thereof or deprive that party of the rightthereafter to insist upon strict adherence to that term or any other term ofthis Agreement.

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# 12.   Effective Date.

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

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## (b)   Youacknowledge 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 whichto consider the terms and effect of this Agreement.  You agree that any changes made to theAgreement from the time it was first offered to you, whether material orimmaterial, do not restart the running of the 21-day period.  If you elect to execute this Agreement beforethe expiration of the 21-day period, you acknowledge that you have chosen, ofyour own free will without any duress, to waive your right to the fulltwenty-one (21) days.

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## (c)   TheCompany hereby advises you to consult with an attorney prior to signing thisAgreement.

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# 13.   Acknowledgements.  By signing this Agreement, it is acknowledgedthat:

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## (a)   Theparties have read this Agreement;

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## (b)   Youunderstand and know that you are giving up important rights, including but not limitedto rights under the acts, statutes, codes, ordinances, rules and laws setforth in 

 

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## Paragraph 5(a) ofthis Agreement, and any other constitutional, statutory common law rights andprivileges;

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## (c)   Youunderstand that as a result of entering into this Agreement you will not havethe right to assert that the Company unlawfully terminated your employment orviolated any rights in connection with your employment;

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

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## (e)   Theparties agree to everything contained in this Agreement; and

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## (f)    Theparties are signing this Agreement knowingly, voluntarily, and free of anyduress.

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# 14.   Severability.  It is the intent of the parties that theprovisions of this Agreement be enforced to the fullest extent permitted bylaw.  In case any provision of thisAgreement shall be declared by an arbitrator or a court of competentjurisdiction to be invalid, illegal or unenforceable as written, the partiesagree that the court shall modify and reform such provision to permitenforcement to the greatest extent permitted by law.  In addition, if any provision of thisAgreement shall be declared invalid, illegal or unenforceable, the validity,legality and enforceability of the remaining provisions of this Agreement shallin no way be affected or impaired thereby.

 

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If this Agreement isacceptable 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 23day 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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