Exhibit 10.5


 


EMPLOYMENT NON-COMPETE, NON-SOLICIT AND CONFIDENTIALITY
AGREEMENT


 


THIS EMPLOYMENT
NON-COMPETE, NON-SOLICIT AND CONFIDENTIALITY AGREEMENT (“AGREEMENT”) IS ENTERED
INTO BETWEEN CITI TRENDS, INC. (“COMPANY”), AND IVY D. COUNCIL (“EMPLOYEE”), EFFECTIVE
AS OF THE 25TH DAY OF MARCH, 2009.


 


For and in consideration of the mutual covenants and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree:


 


1.             Employment; Scope of
Services.  Company
shall employ Employee, and Employee shall be employed by Company, as a Senior
Vice President, Human Resources (“SVPHR”). 
Employee shall use her best efforts and shall devote her full time,
attention, knowledge and skills to the faithful performance of her duties and
responsibilities as a Company employee. 
Employee shall have such authority and such other duties and
responsibilities as assigned by the Chief Executive Officer.  Employee shall comply with Company’s policies
and procedures, shall conduct herself as an ethical business professional, and
shall comply with federal, state and local laws.


 


2.             At-Will Employment.  Nothing in this Agreement alters the at-will
employment relationship between Employee and Company.  Employment with Company is “at-will” which
means that either Employee or Company may terminate the employment relationship
at any time, with or without notice, with or without cause. The date of
Employee’s cessation of employment for any reason is the “Separation Date.”


 


3.             Confidentiality.


 


(a)           Employee acknowledges and
agrees that (1) the retail sale of value-priced/off-price family apparel
is an extremely competitive industry; (2) Company has an ongoing strategy
for expansion of its business in the United States; (3) Company’s major
competitors operate throughout the United States and some internationally; and (4) because
of Employee’s position as SVPHR she will have access to, knowledge of, and be
entrusted with, highly sensitive and competitive Confidential Information (as
defined in subsection (b) below) of Company, including without limitation
information regarding sales margins, purchasing and pricing strategies,
marketing strategies, vendors and suppliers, plans for expansion and placement
of stores, and also specific information about Company’s districts and stores,
such as staffing, budgets, profits and the financial success of individual
districts and stores.


 


(b)           “Confidential Information”
includes technical or sales data, formulas, patterns, compilations, programs,
devices, methods, techniques, drawings, processes, financial data and
statements, financial plans and strategies, product plans, sales or advertising
information and plans, marketing information and plans, pricing information,
the identity or lists of employees, vendors and suppliers of Company, and
confidential or proprietary information of such employees, vendors and
suppliers. Employee acknowledges and agrees that all Confidential Information
is confidential and remains the sole and exclusive property of Company.  Employee agrees that she shall (a) hold
all Confidential Information in strictest confidence; (b) not disclose,
reproduce, distribute or otherwise disseminate such Confidential Information,
and shall protect such Confidential Information from disclosure by or to
others; and (c) make no use of such Confidential Information without the
prior 


 

















 


written
consent of Company, except in connection with Employee’s employment with
Company. “Confidential Information” means any and all data and information
relating to Company which (i) derive independent economic value, actual or
potential, from not being generally known or readily ascertainable by proper
means by other persons who may obtain economic value from their disclosure or
use; and (ii) are the subject of reasonable efforts under the
circumstances to maintain their secrecy.


 


(c)           In the event any
Confidential Information does not qualify for protection as “trade secrets” as
defined in Delaware’s Uniform Trade Secrets Act, then Employee acknowledges and
agrees that the Confidential Information shall remain confidential and shall
not be disclosed by Employee during Employee’s employment with Company and for
a period of two (2) years following the Separation Date, absent the
express prior written consent of Company.  
Trade secret information shall remain confidential so long as such
information qualifies as a trade secret under applicable law.


 


(d)           Employee acknowledges that
Company has provided or will provide Employee with Company property, including
without limitation employee handbooks, policy manuals, price lists, financial
reports, and vendor and supplier information,  among
other items. Upon the Separation Date, or upon the request of Company, Employee
shall immediately deliver to Company all property belonging to Company,
including without limitation all Confidential Information and any property
related to Company, whether in electronic or other format, as well as any
copies thereof, then in Employee’s custody, control or possession.  Upon the Separation Date, Employee shall
provide Company with a declaration certifying that all Confidential Information
and any other Company property have been returned to Company, that Employee has
not kept any copies of such items or distributed such items to any third party,
and that Employee has otherwise complied with the terms of Section 3 of
this Agreement.


 


4.             Covenant Not to Compete.  During Employee’s employment with Company and
for a period of one (1) year following the Separation Date, and regardless
of the reason for separation, Employee shall not compete with Company on behalf
of a Competitor in the continental United States, or
rendering services to such Competitor which are the same or substantially
similar to the Services  which Employee
rendered to Company while employed by Company as SVPHR.  For purposes of this Section 4, the term
“Competitor” shall mean only the following businesses whose primary business is
the sale of value-priced or off-price family apparel, commonly known as: Cato,
TJX (including without limitation TJMAXX and Marshalls), and Ross Stores.


 


5.             Covenant Not to Solicit.   During Employee’s employment with Company
and for a period of two (2) years following the Separation Date, and
regardless of the reason for separation, Employee agrees not to solicit any
person or entity who has been a vendor or supplier of merchandise and/or
inventory to Company during the two (2) years immediately preceding the
Separation Date or to whom Company is actively soliciting for the provision of
merchandise and/or inventory (collectively referred to as “Merchandise Vendors”)
and with whom Employee had material contact for the purpose of obtaining
merchandise and/or inventory on behalf of any of Company’s Competitors, as
defined in Section 4 of this Agreement. 
For purposes of this agreement “material contact” means that Employee
either had access to confidential information regarding the Merchandise Vendor,
or was directly involved in negotiations or retention of such Merchandise
Vendor.


 


Employee
specifically acknowledges and agrees that, as SVPHR, her duties include,
without limitation, establishing purchasing and pricing strategies and
policies, managing sales margins, involvement in establishing and maintaining
vendor relationships, and having contact with and 


 

















 


confidential
and/or proprietary information regarding Merchandise Vendors. The
non-solicitation restrictions set forth in this Section 5 are specifically
limited to Merchandise Vendors with whom Employee had contact (whether personally,
telephonically, or through written or electronic correspondence) during
employment as SVPHR or about whom Employee had confidential or proprietary
information because of her position with Company.


 


6.             Covenant Not to Recruit Personnel.  During Employee’s
employment with Company and for a period of two (2) years following the
Separation Date, and regardless of the reason for separation, Employee will not
recruit or solicit to hire or assist others in recruiting or soliciting to
hire, any employee of Company and will not cause or assist others in causing
any employee of Company to terminate an employment relationship with Company.


 


7.             Severability.  If any provision of this Agreement shall be
held invalid, illegal or otherwise unenforceable, in whole or in part, the
remaining provisions, and any partially enforceable provisions to the extent
enforceable, shall be binding and remain in full force and effect.  Further, each particular prohibition or
restriction set forth in any Section of this Agreement shall be deemed a
severable unit, and if any court of competent jurisdiction or arbitrator
determines that any portion of such prohibition or restriction is against the
policy of the law in any respect, but such restraint, considered as a whole, is
not so clearly unreasonable and overreaching in its terms as to be
unconscionable, the court or arbitrator shall enforce so much of such restraint
as is determined by a preponderance of the evidence to be necessary to protect
the interests of Company.


 


8.             Survival of Covenants.  All rights and covenants contained in
Sections 3, 4, 5, and 6 of this Agreement, and all remedies relating thereto,
shall survive the termination of this Agreement for any reason.


 


9.             Governing Law.  Citi Trends, Inc. is a Delaware corporation.  The parties agree that Delaware law applies
in the event of any dispute between them arising out of or related to this
Agreement.


 


10.           Acknowledgment of Reasonableness/Remedies/Enforcement.


 


(a)           Employee acknowledges that (1) Company has valid interests
to protect pursuant to Sections 3, 4, 5, and 6 of this Agreement; (2) herb
reach of the provisions of Sections 3, 4, 5,  or 6 of this Agreement would result in irreparable injury and
permanent damage to Company; and (3) such restrictions are reasonable and
necessary to protect the interests of Company, are critical to the success of
Company’s business, and do not cause undue hardship on Employee.


 


(b)           Employee agrees that determining damages in the event of a
breach of Sections 3, 4, 5, or 6 by Employee would be difficult and that money
damages alone would be an inadequate remedy for the injuries and damages which
would be suffered by Company from such breach. 
Employee further agrees that injunctive relief is an appropriate remedy
for such breach and that in the event of such breach Company, in addition to
and without limiting any other remedies or rights which it may have, may apply
to any court of competent jurisdiction and seek interim, provisional,
injunctive, or other equitable relief until the arbitration award on such claim
(see Section 10(c) below) is rendered or the claim is otherwise
resolved.  Employee may also seek
interim, provisional, injunctive, or other equitable relief for violations of
this Agreement by Company until the arbitration award on such claim is rendered
or the claim is otherwise resolved. 
Employee and Company waive any requirement that a bond or any other
security be posted.


 

















 


(c)           Company and Employee agree
that any controversy, dispute, or claim arising out of or related to this
Agreement, including without limitation its enforceability, interpretation,
performance or non-performance by any party, or any breach thereof, shall be
resolved exclusively through arbitration pursuant to the Employment Arbitration
Rules and Mediation Procedures of the American Arbitration Association (“AAA”),
Amended and Effective July 1, 2006 (“AAA Rules”).  Where the AAA Rules and this Agreement
conflict or where the AAA Rules are silent, this Section 10(c) shall
govern, if applicable.  Company and
Employee agree that this Section 10(c) is an agreement to arbitrate
pursuant to the Federal Arbitration Act, 9 U.S.C. § 1 et seq.,
or if that Act is inapplicable for any reason, the arbitration law of the State
of Delaware.


 


(i)            Any arbitration proceedings pursuant to this
Agreement shall be resolved by a single arbitrator.  The location of any arbitration proceedings
shall be determined in accordance with the AAA Rules.  The arbitrator shall apply the law of the
State of Delaware on the substantive claims asserted, and shall have the
authority to award the same remedies, damages, costs, expenses and any other
awards that a court could award.  The
arbitrator shall issue a written award explaining his/her decision, the reasons
for the decision, and the calculation and reasoning behind any damages
awarded.  The arbitrator’s decision will
be final and binding.  The judgment on
the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof.  Company will pay (a) AAA
administrative fees except that for arbitration claims originally asserted
by Employee, Employee will pay to Company a fee that is comparable to the
filing fee being charged by the United States District Court for the District
of Delaware for the filing of a civil action at the time Employee
initiates arbitration; (b) the Arbitrator’s fee and reasonable travel
expenses; and (c) the cost of renting an arbitration hearing room, if
necessary.  Each party shall pay its own
experts’ and/or attorneys’ fees unless the arbitrator awards reasonable experts’
and/or attorneys’ fees to Employee.


 


(ii)           Consistent with Section 7 of this Agreement,
should a court of competent jurisdiction or arbitrator determine that the scope
of any provision of this Section 10(c) is too broad to be enforced as
written, Company and Employee intend that the court or arbitrator reform the
provision to such narrower scope as is determined to be reasonable and
enforceable.


 


(iii)          Should this Section 10(c) not be invoked
by the parties or should an arbitrator or court of competent jurisdiction
determine that the parties’ agreement to arbitrate is unenforceable,  then the parties agree that Delaware shall be the forum for
any dispute arising out of or related to this Agreement.


 


11.           Miscellaneous.  This Agreement constitutes the entire
agreement between the parties and supersedes any and all prior contracts,
agreements, or understandings between the parties which may have been entered
into by Company and Employee relating to the subject matter hereof.   This Agreement may not be amended
or modified in any manner except by an instrument in writing signed by both
Company and Employee.  The failure of
either party to enforce at any time any of the provisions of this Agreement
shall in no way be construed to be a waiver of any such provision or the right
of such party thereafter to enforce each and every such provision.  No waiver of any breach of this Agreement
shall be held to be a waiver of any other or subsequent breach.  All remedies are cumulative, including the
right of either party to seek equitable relief in addition to money damages.


 

















 


EMPLOYEE ACKNOWLEDGES AND AGREES THAT SHE HAS CAREFULLY READ
THIS AGREEMENT AND KNOWS AND UNDERSTANDS ITS CONTENTS, THAT SHE ENTERS INTO
THIS AGREEMENT KNOWINGLY AND VOLUNTARILY, AND THAT SHE INDICATES HER CONSENT BY
SIGNING THIS FINAL PAGE.


 


IN
WITNESS WHEREOF, the parties hereto have executed this Agreement under seal as
of the day and year first above written.


 


	
   

  	
  Citi Trends, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ R. Edward Anderson

  	
   

  
	
   

  	
  R. Edward Anderson

  
	
   

  	
  Chairman and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Ivy D. Council

  	
  (L.S.)

  
	
   

  	
  Employee Signature

  
	
   

  	
   

  
	
   

  	
  Employee Residence
  Address: