Exhibit 10.5


 


SEVERANCE AGREEMENT


 


This Severance Agreement (the “Agreement”) is entered into this 21st
day of December, 2005, by and between The J. Jill Group, Inc., a Delaware
corporation (“J. Jill”), on behalf of itself and the other entities encompassed
within the definition of the term “Company” as set forth in Section 7(c),
and Peter J. Clinch (the “Employee”). 
This Agreement sets forth the agreement of the parties relating to the
severance arrangements for the Employee under certain circumstances.  Capitalized terms used in this Agreement are
defined in Section 7 hereof.


 


1.                                       Severance Pay and Associated Benefits Upon
a Qualified Termination.


 


(a)                                  Severance Benefits.  In the event of a Qualified Termination, and
subject to the provisions of Sections 2 and 5 below, the Company will provide
the payments and benefits described in this Section 1 (collectively, the “Severance
Benefits”).


 


(b)                                 Severance Pay. 
The Company will make a one-time, lump-sum payment to the Employee in
the gross amount of one year of the Employee’s annual base salary in effect
immediately prior to the Qualified Termination (the “Severance Payment”).


 


(c)                                  Medical Insurance. 
The Employee’s rights under the so-called COBRA statute (which gives the
Employee the right to continue to participate in the Company’s group medical
plans for a period of time at the Employee’s own expense) shall become
effective as of the Termination Date. 
For a 12-month period from the Termination Date, or until the Employee
becomes eligible for group medical plans from a new employer offering
substantially equal insurance, whichever is sooner,
the Company will pay the same portion of the premium for the Employee’s
existing medical and/or dental insurance as it would have paid (and the
Employee will pay the same portion of the premium for such insurance as the
Employee would have paid) if the Employee had continued to be employed at the
Company.  The Employee will notify the
Company’s Human Resources Department in writing within 72 hours of accepting
any such reemployment with such insurance eligibility.  Nothing herein shall prevent the Company from
making changes in its medical insurance plan, to the extent that such changes
are generally applicable to employees of the Company.


 


(d)                                 Withholdings. 
The Company may deduct from the Employee’s Severance Payment and any
other payments otherwise due to the Employee, such withholding taxes and
similar governmental payments and charges as may be required.


 


(e)                                  Timing for Payment; Section 409A
Restrictions.  Section 409A of the Internal Revenue
Code of 1986, as amended (the “Code”), places certain restrictions on when
severance payments may be issued.  In the
event the Severance Benefits become due, the Severance Payment shall be issued
on the earlier of (i) the date six (6) months after the Termination
Date, or (ii) the death of the Employee. 
However, the restrictions in the previous sentence shall not apply, and
the Severance Payment shall be made not later than the fifth day following the
expiration of the seven-day revocation period described in Section 2
without revocation of the Release and Waiver by the Employee, if (i) the Company determines in good faith that
the Severance Payment can be made at that time without violating the
restrictions under Section 409A, or (ii) the Severance Payment meets
the following requirements:


 





















 


(A)  The entire amount of the Severance Payment does not exceed
the lesser of (I) two times the Employees’ annual compensation or (II) two
times the §401(a)(17) limit of the Code. 
Each limit is determined using the compensation or §401(a)(17) limit in
the calendar year before the year in which the Termination Date occurs, and for
purposes of this exception, the Employee’s annual compensation is determined
with reference to Treasury Regulation Section 1.415-2(d)(2), which
generally includes base salary and bonuses; and


 


(B)  All amounts are paid by December 31 of the second
calendar year following the year in which the Termination Date occurs (e.g. if
employment terminates in 2005, all payments must be made by December 31,
2007).


 


2.                                       Release and Waiver.


 


In return for
the payments and benefits provided to the Employee as set forth in Section 1
above, the Employee agrees to execute the Release and Waiver in the form
attached as Exhibit A hereto. 
For a period of seven days after the Employee has executed such Release
and Waiver, the Employee may revoke the Release and Waiver.  The Release and Waiver shall become
effective, and the Severance Benefits described in Section 1 shall become
due, only upon the expiration of the seven-day revocation period without
revocation of the Release and Waiver by the Employee.  Notwithstanding the foregoing, the Company
and the Employee 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.


 


3.                                       Cooperation.


 


In connection
with any termination of the Employee’s employment, the Employee agrees to
cooperate with the Company in promptly transitioning the Employee’s duties and
activities within the Company to the person or persons designated by the
Company to receive them.


 


4.                                       Confidentiality; Nondisparagement.


 


(a)                                  Confidentiality.  The Employee agrees to keep the terms of this
Agreement confidential, and agrees not to disclose the terms of this Agreement
to third parties except to the Employee’s immediate family and legal or
financial advisers and except as required by law or legal process and then only
after notice is given to the Company in accordance with Section 6(g) below
such that, where feasible, the Company will have a reasonable opportunity to
oppose disclosure.  The Employee
understands that any breach of this confidentiality provision will constitute
grounds for termination by the Company of the Employee’s employment for Cause
as defined in Section 7(a).


 


(b)                                 Nondisparagement. 
The Employee agrees not to take any action or make any statement,
written or oral, which disparages the Company, its officers, or its management,
business or personnel practices, or which disrupts or impairs the Company’s
normal operations.  The provisions of
this Section 4(b) shall not apply to any truthful statement required
to be made by the Employee in any legal proceeding or pursuant to any
governmental or regulatory investigation.


 


(c)                                  Non-Solicitation.  The
Employee agrees that, during the Employee’s employment with the Company and for
a period of one year after the termination of the Employee’s employment with
the Company for any reason, the Employee will not directly or


 


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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 Employee’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.                                       Remedies.


 


The Employee
acknowledges and agrees that the Employee’s obligations arising under Section 4
above are of the essence to this Agreement and that the Employee’s breach of
any of these obligations will terminate the Company’s obligations to the
Employee under Section 1 of this Agreement.  Should the Employee breach any such
obligations the Employee shall further be required to pay back to the Company
the full value of any benefit that the Employee has derived under Section 1
above.  The Employee further acknowledges
and affirms that money damages cannot adequately compensate the Company for any
breach by the Employee of Section 4 of this Agreement and that the Company
is entitled to equitable relief in any Massachusetts or other court of
competent jurisdiction to prevent or otherwise restrain any actual or threatened
breach of the provisions of said Sections and/or compel specific performance
of, or other compliance with, the terms thereof.    


 


6.                                       Miscellaneous.


 


(a)                                  At-Will
Employment.  This Agreement is not a
contract to employ the Employee for a definite time period, and is not intended
to be and does not constitute a contract or part of a contractual agreement for
continued employment, either express or implied, between the Company and the
Employee, it being acknowledged that the Employee’s employment is “at will” and
that either the Employee or the Company may terminate the employment
relationship at any time, for any or no reason, with or without Cause and with
or without prior notice.


 


(b)                                 Successors and Assigns.  
This Agreement shall be binding upon and inure to the benefit of the
respective legal representatives, heirs, successors, assigns, and present and
former employees and agents of the parties hereto to the extent permitted by
law.


 


(c)                                  Attorneys Fees. 
Each party shall bear his or its own attorney’s fees and expenses.


 


(d)                                 Governing Law. 
This Agreement shall be interpreted in accordance with the substantive
laws of The Commonwealth of Massachusetts and without regard to any conflict of
laws provisions.


 


(e)                                  Effect on Other Agreements; Modification.  This
Agreement supersedes any prior oral or written understanding or agreement
relating to severance payments to be made to the Employee following termination
of employment with the Company, except
the Change in Control Severance Agreement between the Employee and the Company
dated as of the date hereof and the Agreement to Protect Corporate Property
between the Employee and the Company effective as of December 10, 2004.  This Agreement may be modified only in a
writing signed by both parties.


 


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(f)                                    Execution.  This Agreement may be
executed in one or more counterparts, each of which when so executed shall be
deemed to be an original, and all such counterparts together shall constitute
but one and the same instrument.


 


(g)                                 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: Senior Vice President/Human
Resources


 


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 Employee:


 


Peter J. Clinch


589 Franklin St.


Duxbury, MA 02332


 


7.                                      Definitions.


 


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


 


(a)                                  “Cause” for termination by the
Company of the Employee’s employment shall mean (i) any material breach by
the Employee of this Agreement or any other agreement to which the Employee and
the Company are both parties, (ii) any act or omission to act by the
Employee which may have a material and adverse effect on the Company’s business
or on the Employee’s ability to perform services for the Company, including,
without limitation, the commission of any crime involving moral turpitude or
any felony, or (iii) any material misconduct or material neglect of duties
by the Employee in connection with the business or affairs of the Company.


 


(b)                                 “Code”
shall have the meaning given that term in Section 1(e) hereof.


 


(c)                                  “Company” shall mean The J.
Jill Group, Inc., any successor to its business or assets which assumes
this Agreement, by operation of law or otherwise, and any of its Subsidiaries.


 


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


 


(e)                                  “Good Reason” for termination
by the Employee of the Employee’s employment shall be a termination based on
one or more of the following events occurring without the Employee’s express
written consent:  (a) a substantial
adverse alteration in the nature or status of the Employee’s responsibilities; (b) a
reduction by the Company in the Employee’s annual base salary as in effect on
the date hereof or as the same may be increased from time to time; or (c) the
Company’s requiring that the Employee’s principal place of business be at an
office located more than 25 miles from (i) the site of the Employee’s
principal place of business immediately prior to the resignation or (ii) Duxbury,
MA, except for required travel on the Company’s business to an extent
substantially consistent with the Employee’s past business travel obligations.


 


(f)                                    “Qualified Termination” shall mean
the Employee’s employment by the Company is terminated (i) by the Employee
for Good Reason or (ii) by the Company for any reason other than for
Cause.


 


(g)                                 “Severance Benefits” shall have the
meaning given that term in Section 1(a) hereof.


 


(h)                                 “Severance Payment” shall have
the meaning given that term in Section 1(b) hereof.


 


(i)                                     “Subsidiary” shall mean any
corporation, partnership 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 The J. Jill Group, Inc. or
another Subsidiary.


 


(j)                                     “Termination Date” shall mean
the date that the Employee’s employment by the Company terminates for any
reason or no reason.


 


[signature page follows]


 


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IN WITNESS WHEREOF, the parties have executed this Severance Agreement
as of the date first above written.


 


	
   

  	
  THE J. JILL GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Olga L. Conley

  	
   

  
	
   

  	
   

  	
  Duly Authorized

  
	
   

  	
   

  
	
   

  	
  EMPLOYEE

  
	
   

  	
   

  
	
   

  	
  /s/ Peter J. Clinch

  	
   

  
	
   

  	
  Peter J. Clinch

  



 


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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 Severance Agreement dated December 21,
2005 between The J. Jill Group, Inc. (“J. Jill”) and Peter J. Clinch (the “Employee”)
to which this General Release and Waiver Of All Claims is attached (the “Agreement”),
the Employee, 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 Employee’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 Employee
represents and warrants that the Employee knowingly and voluntarily waives all
rights or claims arising prior to the Employee’s execution of this Release and
Waiver that the Employee 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 Employee’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 Employee
further represents that:


 


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


 


(b)                                  The Employee understands that the Employee 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 Employee executes this Release and Waiver, the Employee
acknowledges that such early execution is a knowing and voluntary waiver of the
Employee’s right to consider this Release and Waiver for at least 21 days and
is due to the Employee’s belief that the Employee 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 Employee understands that, for a period
of seven days after the Employee has executed this Release and Waiver, the
Employee may revoke this Release and Waiver by giving notice in writing of such
revocation to the Company in accordance with Section 6(g) of the
Agreement.  If at any time after the end
of the seven-day period the Employee accepts any of the payments or benefits
provided by the Company as described in the Agreement, such acceptance will
constitute an admission by the Employee that the Employee did not revoke this
Release and Waiver during the revocation period and will further constitute an
admission by the Employee that this Release and Waiver has become effective and
enforceable.


 


(d)                                  The Employee understands the effect of this
Release and Waiver and that the Employee gives up any rights the Employee 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 Employee understands that the Employee is
receiving benefits pursuant to the Agreement that the Employee would not
otherwise be entitled to if the Employee did not enter into this Release and
Waiver.


 


(f)                                    The
Employee acknowledges that the severance pay and
associated benefits specified in the Agreement represent all payments and
benefits owed to the Employee and that upon receipt of said payments and
benefits, the Employee shall have received all payments and benefits owed to the
Employee in connection with the Employee’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.


 


 


	
   

  	
   

  	
   

  
	
   

  	
  Peter J. Clinch

  



 


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