**Exhibit10.1**

 

September 23,2009

 

RobertKantor

66Leonard Street, Apt. 3E

NewYork, NY  10013

 

Dear Mr. 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.

 

# 1.                     The Companywill provide you with the following:

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## (a)   ContinuingPayments. In consideration of your agreement, without revocation, to the terms andconditions of this Agreement, and the release of claims as set forth below, theCompany will provide you with your Base Salary (as defined in Section 3.1of the Employment Agreement), in effect on the day before the Termination Date,for the balance of the Initial Term (as defined in Section 1 of theEmployment Agreement) in accordance with the Company’s regular pay cycle.  The payments hereunder shall not be subjectto reduction due to compensation received in connection with other employmentas set forth in Section 5.1 of the Employment Agreement.

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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, 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)   Withholding.  All payments by the Companydescribed in this Agreement will be reduced by all taxes and other amounts thatthe Company is required to withhold under applicable law.

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## (e)   No OtherPayments. The parties specifically acknowledge that the payments described inParagraph 1(a) above constitute consideration not otherwise owed or due toyou but for this Agreement, and that the payments are being provided to you inconsideration of you executing, and not revoking, this Agreement.  You shall not be entitled to any otherseverance, compensation, wages or other payments (including, withoutlimitation, payments under the Employment Agreement Section 5.1) otherthan reimbursement for legitimate business expenses incurred prior to theTermination Date, which shall be reimbursed in accordance with the Company’sexpense reimbursement policy, or as set forth in this Agreement.

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# 2.                     RestrictedStock.  The Company will pay you foryour 2111 vested Restricted Shares (as defined in the Company’s 2008 StockOption and Performance Incentive Plan) which you acquired under the RestrictedStock Award Agreement between you and the Company dated July 15, 2008 (the“Restricted Stock Award Agreement”).  Theprice shall be determined based on the closing price of the Company’s stock onthe Termination Date, and shall be payable to you within fifteen (15)****business days following the Effective Date (as defined inParagraph 10 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.                     Restrictionsand Continuing Obligations.

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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 by and among Cache, Inc.,Adrienne Victoria, Inc. and Adrienne Victoria Designs, Inc., dated asof July 3, 2007 (the “Asset Purchase Agreement”) 

 

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## 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.  Infurtherance of this obligation, you agree to promptly return to the Company thetwo (2) guitars paid for by the Company. Notwithstanding the foregoing, you may retain your Blackberry aspersonal property; 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. You shall be allowed to retain the use of your current cellulartelephone number.  You agree that youshall be responsible for any and all charges incurred by such number subsequentto the Termination Date.  For purposes ofclarity, it is understood and agreed that your cell phone is, and remains, yourpersonal property, and the Company agrees to assist and comply with anyreasonable request to port your cell phone telephone number as may berequired.  In addition, you may retrieve,within ten (10) days of the date hereof, your personal belongings andeffects, including but not limited to the Excluded Assets enumerated inSchedule 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 Paragraph4 of this Agreement). The Company agrees that the Company’s Officers andDirectors will not, at any time without limitation, publish or communicate toany person or entity any Disparaging remarks, comments or statements concerningyou.  “Disparaging” remarks, comments orstatements are those that impugn the character, honesty, integrity, morality orbusiness acumen or abilities in connection with any aspect of the operation ofbusiness of the individual or entity being disparaged.  Nothing in this paragraph shall be construedto preclude truthful disclosures in response to lawful process as required byapplicable law, regulation, or order or directive of a court, governmentalagency 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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# 4.                     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,agents, and attorneys (the “Kantor Releasors”) 

 

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## hereby irrevocablygenerally 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 thefuture against the Company, its parent companies, subsidiaries, affiliates andaffiliated 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, anyand all matters relating to your employment and/or termination of employmentwith the Company, including, but not limited to, any claims for employmentdiscrimination 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 underany 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, theAge Discrimination in Employment Act, the Pregnancy Discrimination Act, theEqual Pay Act, the Family Medical Leave Act of 1993, the Employee RetirementIncome Security 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 lawor in equity that you had or now have against the Cache Released Partiesoccurring from the beginning of time through the date you execute thisAgreement.  Nothing in this Agreementshall affect your rights under this Agreement or under any Company benefitplans in which you are vested. Notwithstanding the foregoing, this paragraph shall not extend to andwill not release any claims that have arisen or arise from (i) the breachof this Agreement, or (ii) breaches of the representations and warrantiescontained 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 the Companyexecutes this Agreement, including, but not limited to, any and all mattersrelating 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 or (iii) breachesof the representations and warranties contained in the Asset PurchaseAgreement.

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# 5.                     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 

 

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# 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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# 6.                     Non-Admission; Inadmissibility.  This Agreement and the performance of theactions required by this Agreement shall not constitute, or in any manner beconstrued as, an admission by you or the Company that any action either partytook with respect to the other was wrongful, unlawful or in violation of anylocal, state or federal act, statute, or constitution or susceptible ofinflicting any damages or injury on the other. The parties expressly deny any such wrongdoing, violation, or liabilityfor any and all claims asserted by the other. This Agreement is entered into solely to resolve all matters related toor arising out of your employment with the Company and the cessationthereof.  Neither this Agreement nor thefact of its execution may be used as evidence in any action or proceeding ofany nature by anyone for any purpose except to enforce its terms.

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# 7.                     EntireAgreement.  It ismutually understood and agreed that this Agreement constitutes 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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# 8.                     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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# 9.                     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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# 10.                   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 than11:59 p.m. (New York City time) on the seventh (7th) calendar dayfollowing your execution this Agreement. Provided that it is not revoked, this Agreement will be effective on theeighth (8th) day following the Company’s receipt of the valid Agreement signedby 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 

 

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## the time it was firstoffered to you, whether material or immaterial, do not restart the running ofthe 21-day period.  If you elect toexecute this Agreement before the expiration of the 21-day period, youacknowledge that you have chosen, of your own free will without any duress, towaive your right to the full twenty-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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# 11.                   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 notlimited to rights under the acts, statutes, codes, ordinances, rules andlaws set forth in Paragraph 4(a) of this Agreement, and any otherconstitutional, statutory common law rights and privileges;

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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)    You aresigning this Agreement knowingly, voluntarily, and free of any duress.

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# 12.                   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 10.

 

 
|   | Sincerely yours,         |
|--------|--------------------------|
|   |                     |
|   |                     |
|   | /s/  Thomas E. Reinckens |
|   | Thomas  E. Reinckens     |
|   | Chief  Executive Officer |

 

 

Agreed and Accepted on this 23 day of Sept.2009

 

 
| /s/  Robert Kantor |   |
|--------------------|--------|
| Robert Kantor      |   |

 

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