Exhibit 10.28


 


AMENDED AND
RESTATED EMPLOYMENT AGREEMENT


 


THIS
AMENDED AND RESTATED AGREEMENT made this 1st day of December, 2007 (this “Agreement”)
by and between Curtis Hill (the “Executive”) and Body Shop of America, Inc.
and Catalogue Ventures, Inc. (together, the “Company”).


 


WITNESSETH:


 


WHEREAS, Executive and Company originally entered into an
employment agreement dated October 1, 2006, which was subsequently
amended. The parties desire to further amend and restate the existing
employment agreement by entering into this Agreement, which supersedes and
replaces the original agreement.


 


NOW, THEREFORE, in consideration of the premises and mutual
agreements contained herein and for other good and valuable consideration the
receipt and sufficiency is hereby acknowledged, the parties agree as follows:


 


1.                                      Employment. The Company
hereby employs the Executive as its Chief Executive Officer until December 1,
2008, or such earlier or later date as the Board of Directors of the Company
(the “Board”) hires a replacement Chief Executive Officer, and thereafter in
such capacity as is designated by the Chairman of the Board, or if the Company
has no Chairman of the Board, the Chairman of the Compensation Committee of the
Board (the “Chairman”) and the Executive hereby accepts such employment with
the Company upon the terms and subject to the conditions set forth herein.


 


2.                                      Term. Subject to
earlier termination of employment in accordance with the provisions of Section 10
hereof, the term of this Agreement (the “Term”) shall commence as of the
date hereof (the “Effective Date”) and shall extend (x) with
respect to the Executive’s service as the Company’s Chief Executive Officer,
until December 1, 2008, or such earlier or later date as the Board hires a
replacement Chief Executive Officer, and (y) thereafter in such capacity
as is designated by the Chairman of the Board, until the fifth anniversary of
the Effective Date; provided, that the Company’s obligations under Section 8(c) hereof
shall continue thereafter as provided therein.


 


3.                                      Position,
Duties and Reporting Relationship. During the Term, the
Executive shall have (a) while serving as the Company’s Chief Executive
Officer, such duties and responsibilities that are reasonably commensurate with
his title, and such other duties and responsibilities as may be assigned to him
from time to time by the Chairman and (b) thereafter, such duties and
responsibilities as may be assigned to him from time to time by the Chairman
relating to special projects of the Company. The Executive shall report to the
Chairman. During the Term, the Executive shall use the Executive’s skills and
render services to the best of the Executive’s abilities in performing his
duties and responsibilities and shall not engage in any other business activities
except with the prior written approval of the Board, or its duly authorized
designee, or as expressly provided for in Section 14(b) hereof; provided
that (x) after such time as the Executive is no longer serving as Chief
Executive Officer of the Company, his services shall be performed on a
part-time basis (on the basis of an average of approximately ten (10) hours
per week (with the understanding that some weeks will be greater than ten (10) hours



 

















 


and some weeks will be less than ten (10) hours)
on a flexible schedule as agreed upon by the Chairman and the Executive from
time to time), and (y) nothing herein shall preclude the Executive from (i) serving
on the boards of directors of a reasonable number of other corporations, trade
associations or charitable organizations, subject to the prior written approval
of the Board, which shall not be unreasonably withheld, (ii) engaging in
charitable activities and community affairs or (iii) managing his personal
investments and affairs; provided, that such other activities do not,
individually or in the aggregate, interfere with the performance of the
Executive’s duties to the Company.


 


4.                                      Place of
Performance. The Executive shall perform his duties and
responsibilities and conduct business at the principal executive offices of the
Company in Jacksonville, Florida, except for required travel relating to the
Company’s business.


 


5.                                      Compensation.


 


(a)                                 Base Salary. During the Term,
the Company shall pay the Executive a base salary (“Base Salary”) at the
rate of (i) $306,000 a year while serving as the Company’s Chief Executive
Officer and (ii) $104,000 a year thereafter. Such Base Salary shall be
subject to adjustment from time to time by the Board in accordance with this Section 5
and shall be payable in accordance with the Company’s standard payroll policies
in effect from time to time, but no less frequently than monthly, and prorated
for any partial year of employment. Notwithstanding anything contained in this Section 5
to the contrary, the Board reserves the right to decrease the Executive’s Base
Salary for any year during the Term in the event of an across the board
reduction in salaries for all management personnel due to adverse financial
performance by the Company.


 


(b)                                 Bonus. During the
Term while the Executive is serving as the Company’s Chief Executive Officer,
the Executive shall be entitled to earn an annual bonus (the “Bonus”),
as determined by the Board based on the Executive’s successful performance of
his duties hereunder. The Bonus, if any, shall be payable at the same time
bonuses are payable to the Company’s senior executives generally in accordance
with the Company’s policies with respect thereto in effect from time to time.
To be eligible to receive such Bonus, the Executive must be employed by the
Company, either as the Chief Executive Officer or on a part-time basis, on the
date that such Bonus is paid by the Company.


 


6.                                      Vacation,
Holidays and Sick Leave. During the Term, the Executive shall be
entitled to four (4) weeks paid vacation, and such paid holidays and
personal or sick leave per calendar year in accordance with the Company’s
policies and procedures in effect from time to time for executive personnel.
Such vacation may be taken at the Executive’s discretion at such time or times
as are not inconsistent with the reasonable business needs of the Company and
do not interfere with the performance of the Executive’s duties to the Company.


 


7.                                      Business
Expenses. During the Term, the Company shall reimburse the
Executive for all reasonable travel, entertainment and other business expenses
incurred by the Executive in connection with the performance of his duties and
responsibilities hereunder upon timely submission by the Executive of receipts
and other documentation in accordance with the Company’s standard reimbursement
policies and procedures in effect from time to time.


 


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8.                                      Benefits.


 


(a)                                 During the
Term, the Executive shall be entitled to participate in the standard employee
health and retirement benefit plans and programs made available to the Company’s
employees generally, as such plans and programs may be in effect from time to
time (the “Company Plans”). Such participation shall be in accordance
with the terms and conditions of such plans and programs and the Company’s
standard policies and procedures with respect thereto. During the Term, the
Company shall pay the entire premiums for medical insurance under the Company
Plans for the Executive and his immediate family.


 


(b)                                 In addition,
during the Term, the Executive shall be entitled to reimbursement for expenses
not covered by the Company Plans or otherwise for “medical care” (as such term
is defined in Section 213 of the Internal Revenue Code of 1986, as
amended) for him and his immediate family; provided, however, that such
reimbursement shall not exceed in the aggregate $10,000 per year.


 


(c)                                  Upon
termination of the Executive’s employment (regardless of whether prior to or
upon expiration of the Term, and regardless of whether termination is by the
Executive after December 1, 2008 or by the Company at any time and with or
without cause or by reason of the Executive’s death), the Company shall
continue to provide health insurance coverage for the Executive and his spouse,
for so long as the covered person (i.e. the Executive or his spouse, as the
case may be) is under the age of Medicare eligibility (currently age sixty-five
(65)), under the Company Plans (or if the Company Plans do not permit such
coverage, under reasonable substitute plans providing reasonably equivalent
health insurance coverage) at the Company’s sole cost and expense, together
with the reimbursement for medical care expenses pursuant to Section 8(b) above
for so long as Executive is under the age of Medicare eligibility except as
provided in Section 23 of this Agreement. This provision applies whether
the Executive is terminated with or without cause or if the Executive resigns
under Section 10 hereof, and this obligation of the Company shall survive
and continue beyond the term of this Agreement, until both the Executive and
his spouse reach the age of Medicare eligibility. The Executive’s spouse shall
be entitled to medical insurance pursuant to this Section 8(c) until
she has reached the age of Medicare eligibility in the event that the Executive
dies. This provision has been separately bargained for and is a material
inducement for the Executive entering into this Agreement.


 


9.                                      Executive
Perquisites. During the term of this Agreement, the Company
shall pay the Executive an automobile allowance of $1,000 per month.


 


10.                               Termination of
Employment.


 


(a)                                 General. The Executive’s
employment hereunder may be terminated under the circumstances described in,
and in accordance with, this Section 10.


 


(b)                                 Death or Permanent
Disability.


 


(i)                                     The Executive’s
employment hereunder shall automatically terminate upon the death of the
Executive.


 


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(ii)                                  The Company may
terminate the Executive’s employment hereunder if, as a result of the Executive’s
incapacity due to physical or mental illness or injury, the Executive has been
unable to perform the essential functions of his duties and responsibilities
for a period of either (x) one hundred eighty (180) consecutive days, or (y) two
hundred seventy (270) days (whether or not consecutive) during any period of
eighteen (18) consecutive months (“Disability”), and no reasonable
accommodation can be made (in the Board’s commercially reasonable
determination) that will allow the Executive to perform such essential
functions.


 


(c)                                  Termination by
the Company. The Company may terminate the Executive’s
employment hereunder at any time, whether for Cause (as defined below) or for
any other reason, or no reason. For purposes of this Agreement, the term “Cause”
shall mean (A) the material failure or refusal by the Executive to perform
the Executive’s duties and responsibilities hereunder (other than any such
failure resulting from the Executive’s Disability) which has not ceased within
ten (10) days after a written demand for performance is received by the
Executive from the Company, which demand identifies with reasonable
particularity the manner in which the Company believes that the Executive has
not so performed his duties and responsibilities; (B) the engagement by
the Executive in willful misconduct which is materially injurious to the
Company, monetarily or otherwise (including, but not limited to, conduct which
violates Section 14 hereof) or an act of moral turpitude which is
injurious to the Company, monetarily or otherwise; (C) the conviction of
the Executive of, or the entering of a plea of nolo contendere by the Executive
with respect to, a felony or crime involving fraud, dishonesty or moral
turpitude; (D) the material breach by the Executive of this Agreement or
the violation by the Executive of a material policy of the Company which is not
cured within thirty (30) days following receipt of notice thereof from the
Company (if such breach or violation is capable of being cured); or (E) the
breach by the Executive of any of his fiduciary duties of loyalty and trust to
the Company.


 


(d)                                 Termination by
the Executive. The Executive shall be entitled to voluntarily
terminate his employment hereunder at any time for Good Reason (as defined
below), and after December 1, 2008 for other reason or no reason, provided
that (i) if the Executive voluntarily terminates employment within thirty
(30) months after the Effective Date, the Executive shall give six (6) months
prior written notice to the Company, and (ii) if the Executive voluntarily
terminates employment after the thirtieth (30th) month after the Effective
Date, the Executive shall give ninety (90) days prior written notice to the
Company (in either case, the “Notice Period”), specifying the date as of
which his termination is to become effective. During the Notice Period, the
Executive shall cooperate fully with the Company in recruiting, hiring and
training any successor(s) and achieving a smooth transition of such of the
Executive’s duties and responsibilities to such successors and other person(s) as
may be designated by the Board. The Company reserves the right to accelerate
the Date of Termination (as defined in Subsection (f) below) with respect
to a termination by the Executive of his employment hereunder by giving the
Executive prior written notice; such acceleration, if any, shall not constitute
termination without Cause by the Company. For purposes of this Agreement, the
term “Good Reason” shall mean (x) the reduction of the Executive’s
duties or responsibilities without the Executive’s consent or the assignment of
duties to the Executive which are inconsistent with his position, which
reduction or assignment has not ceased within thirty (30) days after a written
demand for correction is received by the Company from the Executive; provided,
that the Executive shall not be entitled to terminate his employment for Good
Reason so long as he is employed in a headquarters managerial position
regardless of whether other persons are elevated 


 


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to, or hired for superior positions, (y) the
relocation or attempted relocation of the Executive’s principal place of
employment beyond a fifty (50) mile radius of the Company’s current location
without the Executive’s consent, or (z) any material breach by the Company
of Sections 5, 8 or 9 hereof which has not been cured within thirty (30) days
following receipt by the Company of written notice thereof from the Executive.


 


(e)                                  Notice of
Termination. Any purported termination of the Executive’s
employment by the Company or by the Executive shall be communicated by written
Notice of Termination to the other party hereto in accordance with Section 17
hereof. As used herein, the term “Notice of Termination” shall mean a
written notice that shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances (if any) claimed to provide a basis for termination of the
Executive’s employment under the provision so indicated.


 


(f)                                   Date of
Termination. As used herein, the term “Date of Termination”
shall mean (i) if the Executive’s employment is terminated because of
death pursuant to Subsection (b) above, the date of the Executive’s death;
(ii) if the Executive’s employment is terminated by the Company for
Disability pursuant to Subsection (b) above, the date the Notice of
Termination for Disability is delivered to Executive; (iii) if the
Executive’s employment is terminated by the Company for any reason other than
death, Disability or for Cause pursuant to Subsection (c) above, the date
specified in the Notice of Termination, which date shall not be less than
thirty (30) days from the date such Notice of Termination is given; (iv) if
the Executive’s employment is terminated by the Company for Cause pursuant to
Subsection (d)c) above, immediately upon delivery of the Notice of Termination
for Cause and the expiration of any cure period provided under Subsection (c) above;
and (v) if the Executive’s employment is terminated by the Employee for
any reason (including for Good Reason) pursuant to Subsection (d) above,
the date specified in the Notice of Termination or such earlier date set forth
in a written notice to the Executive by the Company in accordance with
Subsection (d) above.


 


11.                               Compensation
During Disability Upon Termination or Death.


 


(a)                                 During any
period that the Executive fails to perform the essential functions of his
duties and responsibilities hereunder as a result of an incapacity due to
physical or mental illness, which is expected to be of more than a thirty (30)
day period (“Disability Period”), the Executive shall continue to
receive his Base Salary at the rate then in effect and other benefits to which
he is otherwise entitled hereunder for such period until his employment is
terminated pursuant to Section 10 hereof; provided that payments so made
to the Executive during the Disability Period shall be reduced by the sum of
the amounts, if any, payable to the Executive with respect to such period under
any disability benefit plans of the company, and which amounts were not
previously applied to reduce any such payment.


 


(b)                                 If the
Executive’s employment is terminated by his death or for Disability by the
Company, the Company shall pay to the Executive or his devisee, legatee or
other designee or, if there is no such designee, to his estate, as the case may
be, any accrued and unpaid Base Salary, all other unpaid amounts and benefits,
if any, to which the Executive is entitled as of the Date of Termination under
any compensation plan or program of the Company then in effect in which the
Executive participates (such amount under this clause, the “Accrued 


 


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Obligations”), at the time such
payments (if any) are due in accordance with the Company’s standard policies
and procedures with respect thereto; provided that payments so made to the
Executive shall be reduced by the sum of the amounts, if any, payable to the
Executive with respect to any applicable insurance or disability benefit plans
of the Company, and which amounts were not previously applied to reduce any
such payment.


 


(c)                                  If the
Executive’s employment is terminated by the Company without Cause or by the
Executive pursuant to Section 10(d) with Good Reason, subject to the
Executive’s compliance with Subsection (d) below, the Company shall pay or
provide to the Executive (i) an amount equal to his Base Salary at the
rate of $104,000 per annum for the remainder of the Term, to be paid according
to the Company’s standard payroll policies in effect from time to time; (ii) all
other Accrued Obligations, at the time such payments (if any) are due in
accordance with the Company’s standard policies and procedures with respect
thereto; (iii) health insurance coverage under the Company Plans pursuant
to Section 8(a) for the remainder of the Term; (iv) reimbursement
for medical expenses pursuant to Section 8(b) for the remainder of
the Term; and (iv) $1,000 per month car allowance through the remainder of
the Term.


 


(d)                                 In order to be
entitled to the payment(s) set forth in Subsection (c) above, the
Executive shall, at the direction of the Board, sign a waiver of all
employment-related claims the Executive may have (including any claims under
the Age Discrimination in Employment Act), other than (i) claims for
indemnification and advancement of expense made under Section 22 of this
Agreement or pursuant to the provisions of Buyer’s Certificate of Incorporation
and By-laws for claims arising from service as an officer or director of the
Buyer and its subsidiaries and (ii) claims relating to any breach by the
Company of this Agreement.


 


(e)                                  Except as
otherwise set forth in this Section 11, the Executive shall not be
entitled to any severance or other compensation after termination other than
payment of any portion of his Base Salary and Accrued Benefits through the date
of his termination.


 


(f)                                   Notwithstanding
any termination of Executive’s employment (regardless of whether or not for
Cause or Good Reason or by Company or Executive and whether or not at
expiration of Term), the Company shall continue to be obligated to provide
medical insurance to Executive and his spouse and reimbursement of medical
expenses to Executive in accordance with the provisions of Section 8(c) hereof.
This provision has been specifically bargained for and is a material inducement
for the Executive to enter into this Agreement.


 


12.                               Representations
and Covenants.


 


(a)                                 The Company
represents and warrants that this Agreement has been authorized by all
necessary corporate action of the Company and is a valid and binding agreement
of the Company enforceable against it in accordance with its terms, except to
the extent that enforceability thereof may be limited by applicable bankruptcy,
reorganization, insolvency or other laws affecting creditors’ rights generally
or by general principles of equity.


 


(b)                                 The Executive
represents and warrants that he is not a party to any agreement or instrument
that would prevent him from entering into or performing his duties in any way
under this Agreement. The Executive agrees and covenants that he will submit to
such 


 


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physical examinations as may be necessary to
facilitate the Company obtaining an insurance policy (in its discretion) for
its benefit insuring the life of the Executive.


 


13.                               Successors;
Binding Agreement.


 


(a)                                 This Agreement
is not assignable by the Company except to a successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, provided that
such successor expressly assumes and agrees to perform this Agreement in the
same manner and to the same extent that the Company would be required to
perform it if no such succession had taken place.


 


(b)                                 This Agreement
is a personal contract and the rights and interests of the Executive hereunder
may not be sold, transferred, assigned, pledged, encumbered, or hypothecated by
him, except as otherwise expressly permitted by the provisions of this
Agreement. This Agreement shall inure to the benefit of and be enforceable by
the Executive and his personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.


 


14.                               Confidentiality
and Restrictive Covenants.


 


(a)                                 Ownership and
Protection of Proprietary Information.


 


(i)                                     As used herein,
the term “Confidential Information” shall mean data, information or
business practices relating to the business of the Company (which does not rise
to the status of a Trade Secret) which is or has been disclosed to the
Executive or of which the Executive became aware as a consequence of or through
his employment relationship with the Company and which is not generally known
to the public, the industry or its competitors. Notwithstanding the foregoing,
the term Confidential Information shall not include any data or information
that has been voluntarily disclosed to the public by the Company (except where
such public disclosure has been made by the Executive in breach of his
obligations hereunder) or that has been independently developed and disclosed
by others, or that otherwise enters the public domain through lawful means.


 


(ii)                                  As used herein,
the term “Trade Secrets” shall mean data, information or business
practices relating to the business of the Company (including, but not limited
to, technical or non-technical data, formulas, compilations, programs, devices,
methods, techniques, drawings, business processes, financial data, financial
plans, product plans) which (i) derives economic value, actual or
potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use and (ii) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy.


 


(iii)                               Confidentiality. All
Confidential Information and Trade Secrets and all physical embodiments thereof
received or developed by the Executive while employed by the Company are
confidential to and are and will remain the sole and exclusive property of the
Company. Except to the extent necessary to perform his duties and
responsibilities hereunder or to comply with applicable law, the Executive will
hold such Confidential Information and Trade Secrets in strictest confidence,
and will not use, reproduce, distribute, disclose or otherwise


 


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disseminate the Confidential Information and Trade
Secrets or any physical embodiments thereof and may in no event take any action
causing any Confidential Information and Trade Secrets disclosed to or
developed by the Executive to lose its character or cease to qualify as
Confidential Information or Trade Secrets.


 


(iv)                              Return of
Company Property. Upon request by the Company during the Term, and
in any event upon termination of the employment of the Executive with the
Company for any reason, the Executive will promptly deliver to the Company all
property belonging to the Company, including, without limitation, all
information or data of the Company, whether or not constituting Confidential
Information and Trade Secrets, (and all embodiments thereof) then in the
Executive’s custody, control or possession.


 


(v)                                 Survival. The covenants
of confidentiality set forth in this Section 14(a) will apply on and
after the Effective Date to any Confidential Information and Trade Secrets of
the Company prior to or after the Effective Date. The covenants restricting the
use of Confidential Information will continue, and the confidentiality of such
Confidential Information shall be maintained by the Executive, for a period of
twenty-four (24) months following the expiration or earlier termination of the
Term. The covenants restricting the use of Trade Secrets will continue, and the
confidentiality of such Trade Secrets will be maintained by the Executive,
following the expiration or earlier termination of the Term for so long as
permitted by Florida law.


 


(b)                                 Agreement Not
to Compete. The Executive agrees that commencing on the
Effective Date and continuing for a period of twenty-four (24) months following
the expiration or earlier termination of the Term (the “Non-Competition Term”),
the Executive will not (except on behalf of or with the prior written consent
of the Board, which consent may be withheld in the Board’s sole discretion or
as expressly provided for in this Subsection (b)), within the United States,
either directly or indirectly, on the Executive’s own behalf, or in the service
of or on behalf of others, engage, directly or indirectly, as a stockholder,
investor, partner, member, director, officer, employee, consultant or otherwise
in any Competing Business. As used herein, the term “Competing Business shall
mean any business which has a principal line of business engaged in, or which
derives a substantial portion of its revenue from, the retail sale of young
women’s clothing, accessories or footwear, through stores, catalogues or the
internet.


 


(c)                                  Non
Solicitation of Employees. During the Non-Competition Term, the
Executive shall not, directly or indirectly, on the Executive’s own behalf or
in the service of or on behalf of others, solicit or induce any management
level employee of the Company, to terminate his or her employment with the
Company in favor of employment by any other person, firm, corporation or other
entity. This provision will apply whether or not the employee who is solicited
or induced to terminate his or her employment is employed pursuant to a written
agreement and whether or not his or her employment is for a determined period
or at-will. Notwithstanding the foregoing, this provision shall not apply to
prohibit the Executive from hiring his personal assistant or members of his
family who are not officers or executives of the Company.


 


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(d)                                 Non-Solicitation
of Suppliers and Customers. During the Non-Competition
Term, the Executive shall not, either directly or indirectly, on the Executive’s
own behalf or in the service of or on behalf of others, solicit, divert or
appropriate, or attempt to solicit, divert or appropriate, to a Competing
Business, any individual person, firm, corporation or other entity that was an
actual or prospective supplier or large volume customer of the Company.


 


(e)                                  Enforcement of
Covenants. Without limiting the right of the Company to
pursue all other legal and equitable remedies available for violation by the
Executive of the covenants contained in this Section 14, it is expressly
agreed by the Executive and the Company that other remedies cannot fully
compensate the Company for any violation by the Executive of the covenants
contained in this Section 14 and that the Company shall be entitled to
injunctive relief, without the necessity of proving actual monetary loss, to
prevent any such violation or any continuing violation thereof. The Company and
the Executive further agree that all payments hereunder shall immediately cease
and shall no longer be an obligation of the Company in the event of any
violation of the covenants contained in Subsections (b), (c), or (d) of
this Section 14 which is not cured within (10) days of written notice
by the Company to the Executive of such violation or of a willful and material
violation of the covenants contained in Subsection (a) of this Section 14.
The Company and the Executive further agree that such forfeiture shall not be
deemed to be liquidated damages for breach of such covenants. Each party
intends and agrees that if in any action before any court or agency legally
empowered to enforce the covenants contained in this Section 14, any term,
restriction, covenant or promise contained herein is found to be unreasonable
and accordingly unenforceable, then such term, restriction, covenant or promise
shall be deemed modified to the extent necessary to make it enforceable by such
court or agency.


 


15.                               Entire
Agreement. Except as otherwise provided in the Purchase
Agreement, this Agreement contains all the understandings between the parties
hereto pertaining to the matters referred to herein, and on the Effective Date
shall supersede all undertakings and agreements, whether oral or in writing,
previously entered into by them with respect thereto.


 


16.                               Amendment or
Modification Waiver. No provision of this Agreement may be amended or
waived unless such amendment or waiver is agreed to in writing, signed by the
Executive and by another duly authorized officer of the Company. No waiver by
any party hereto of any breach by another party hereto of any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of a similar or dissimilar condition or provision at the same time,
any prior time or any subsequent time.


 


17.                               Notices. Any notice to
be given hereunder shall be in writing and shall be deemed given when delivered
personally, sent by courier or telecopy or registered or certified mail,
postage prepaid, return receipt requested, addressed to the party concerned at
the address indicated below or to such other address as such party may
subsequently give notice of hereunder in writing:


 


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(a)                                 To Executive
at:


 


Curtis
Hill


6834
Ramoth Drive


Jacksonville,
FL 32226


 


(b)                                 To the Company
at:


 


Body
Shop of America, Inc.


6225
Powers Avenue


Jacksonville,
Florida 32217


Attention:  Chairman


Fax:  904-730-0638


 


Unless
actual delivery is expressly required hereunder, any notice delivered
personally or by courier under this Section 17 shall be deemed given on
the date delivered and any notice sent by telecopy or registered or certified
mail, postage prepaid, return receipt requested, shall be deemed given on the
date telecopied with receipt confirmed, or if mailed, the earlier of the date
of actual receipt or five (5) days following the placement of the notice
with the U.S. mail with adequate posting for delivery.


 


18.                               Severability. If any
provision of this Agreement or the application of any such provision to any
party or circumstances shall be determined by any court of competent
jurisdiction to be invalid and unenforceable to any extent, the remainder of
this Agreement or the application of such provision to such person or
circumstances other than those to which it is so determined to be invalid and
unenforceable, shall not be affected thereby, and each provision hereof shall
be validated and shall be enforced to the fullest extent permitted by law.


 


19.                               Survivorship. The
respective rights and obligations of the parties hereunder shall survive any
termination of this Agreement to the extent necessary to the intended
preservation of such rights and obligations, including without limitation, the
Company’s rights and the Executive’s covenants under Section 14 hereof and
the Executive’s right to post-employment health insurance under Section 8
hereof.


 


20.                               Governing Law. This
Agreement will be governed by and construed in accordance with the laws of the
State of Florida, without regard to its conflicts of laws principles.


 


21.                               Arbitration. In the event
of any dispute or claim relating to or arising out of this Agreement other than
injunctive and other equitable relief regarding a dispute over the covenants
contained in Section 14 hereof, such dispute shall be fully, finally and
exclusively resolved by a panel of three neutral arbitrators to be mutually
agreed upon by the parties. Such arbitration will be decided under the
employment dispute resolution rules of the American Arbitration
Association and will be held in Jacksonville, Florida. If the parties cannot
agree upon such arbitrators within twenty (20) days after submission of a party’s
request for arbitration in writing, the arbitrators will be selected in
accordance with the procedures of the American Arbitration Association. The
cost of such arbitration shall be borne equally by the Company and the
Executive. The arbitrators shall have no power or authority to award punitive
or special damages. The parties agree that the existence, content and result of
any arbitration proceeding shall be 


 


10

















 


confidential, except to the extent that the Company
determines it is required to disclose such matters in accordance with
applicable laws.


 


22.                               Indemnification. The Company
hereby agrees to indemnify and hold harmless Executive to the fullest extent
permitted by the provisions of the laws of the jurisdiction of its
incorporation against any liability, loss or expense (including reasonable
attorney’s fees and costs incurred in defense of such claims) incurred in
connection with the Executive’s services as an officer or director of the
Company or any of its subsidiaries or affiliates. The Company shall advance or
cause its subsidiaries to advance all expenses (including all reasonable legal
fees and expenses) incurred by the Executive in defending any such claim,
action or proceeding, whether civil, administrative, criminal or otherwise.


 


23.                               Termination of
Certain Provisions. Notwithstanding any provision herein to the
contrary, the provisions of Section 8(b) hereof shall terminate
immediately prior to the consummation of (a) the initial public offering
of the Common Stock of the Buyer, (b) any merger or consolidation of the
Company with or into another person or entity or the sale or transfer of all or
substantially all of the assets of the Company, in each case in a single
transaction or in a series of related transactions, or (c) any transaction
in which the stockholders of the Company immediately prior to such transaction,
together with any and all of such stockholders’ affiliates, do not own or hold,
immediately after consummation of such transaction, at least a majority of the
shares of outstanding capital stock of the Company.


 


24.                               Tax Withholding. All amounts
payable and benefits provided by the Company hereunder are subject to
withholding to the extent required by law to comply with all federal, state and
local withholding tax requirements.


 


25.                               Headings. All
descriptive headings of sections and paragraphs in this Agreement are intended
solely for convenience, and no provision of this Agreement is to be construed
by reference to the heading of any section or paragraph.


 


26.                               Foley &
Lardner. The Company agrees that Foley & Lardner LLP may represent
the Executive in any matter relating to or arising out of this Agreement or the
Executive’s claims against the Company and the Company hereby irrevocably
waives any conflict of interest relating thereto arising out of Foley &
Lardner LLP’s prior representation of the Company.


 


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


 


[Signature Page Follows]


 


11

















 


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


 


	
   

  	
  BODY
  SHOP OF AMERICA, INC.

  
	
   

  	
  CATALOGUE
  VENTURES. INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard L. Walters

  
	
   

  	
   

  	
  Name:
  Richard L. Walters

  
	
   

  	
   

  	
  Title:
  CFO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  Curtis V. Hill

  
	
   

  	
  Curtis
  Hill

  
	
   

  	
  2/6/08

  



 


12

















 


AMENDMENT
NO. 1 TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT


 


This
Amendment No. 1 To Amended and Restated Employment Agreement is made this 23rd
day of February, 2009 by and between Curtis Hill (the “Executive”) and
Body Shop of America, Inc. and Catalogue Ventures, Inc. (together,
the “Company”).


 


WITNESSETH:


 


WHEREAS, Executive and the Company
are parties to an Amended and Restated Employment Agreement dated as of December 1,
2007 (the “Employment Agreement”) setting forth the terms and conditions of the
employment relationship of the Executive with the Company;


 


WHEREAS, Executive and the Company
now desire to make certain changes to the Employment Agreement;


 


NOW, THEREFORE, in consideration of the
premises and mutual agreements contained herein and for other good and valuable
consideration the receipt of which is hereby acknowledged, the parties agree as
follows:


 


1.                                      In Sections 1,
2, 8(c), 10(d) of the Employment Agreement, the date “December 1,
2008” is hereby deleted and replaced with the date “August 1, 2009” in
each instance in which such date occurs.


 


2.                                      The following
phrase shall be added to the end of Section 4 of the Employment Agreement:
“or, after such time as Executive is no longer serving as the Company’s Chief
Executive Officer, at Executive’s personal residence.”


 


3.                                      In Sections 5(a) and
11 of the Employment Agreement, “$104,000” shall be replaced with “$125,000” in
each instance.


 


4.                                      During the
Term, after such time as the Executive is no longer serving as Chief Executive
Officer of the Company, Executive shall be entitled to the exclusive use of the
office at the Company’s headquarters which is currently painted with bright
green walls and is closest to the side entrance.


 


5.                                      All other terms
and provisions of the Employment Agreement shall remain in full force and
effect.


 


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


 




	
  BODY SHOP OF AMERICA, INC.

  	
   

  	
  EXECUTIVE

  
	
  CATALOGUE VENTURES, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/Richard
  L. Walters

  	
   

  	
  /s/
  Curtis V. Hill

  
	
   

  	
  Richard
  L. Walters

  	
   

  	
  Curtis
  V. Hill

  
	
   

  	
  Executive
  Vice President