diehlkellyseparationagre






            Page | 1       SEPARATION AGREEMENT     This Separation Agreement and Release (“Agreement”) sets forth the agreement reached  concerning the separation of Kelly McGuire Diehl (“Employee”), from Torrid LLC and its subsidiaries  and affiliates (collectively, the “Company”).     WHEREAS, due to business reasons, the Company will be terminating Employee’s employment  effective November 4, 2022 (“Separation Date”).     NOW THEREFORE, in consideration of the mutual promises contained in this Agreement, Employee  and the Company (collectively referred to as “the Parties”) hereby agree as follows:    1. Final Payments.    a. Wages and Vacation:  Regardless of whether Employee signs this Agreement, on  Employee’s Separation Date, Employee will receive a final paycheck which will include  payment for any unpaid final wages for time worked through and including the Separation  Date and other benefits to which Employee are entitled by virtue of Employee’s service with  the Company up to and including the Separation Date, including payment for accrued but  unused vacation pay.    b. Reimbursement for Business Expenses. Employee will be reimbursed for any outstanding  approved business expenses that are submitted to the Company for reimbursement no later  than three (3) weeks after Employer Separation Date in accordance with Company policy.   However, Employee acknowledges Employee’s responsibility for the payment of personal  expenses that remain on Employee’s corporate card, if any.    c. Benefits. Employee’s employee benefits will terminate as of Employee” Separation Date  except as set forth below. The Company’s Human Resources Department will send  Employee information concerning any conversion rights Employee may have for medical  and life insurance coverage, as well as information about other benefit plans consistent with  any obligations imposed by the plans and/or required by law.     2. Consideration.  In exchange for the release of claims and the promises set forth below, the  Company will provide Employee with the following separation benefits which Employee acknowledge  Employee are not otherwise entitled to receive upon the termination of Employee’s employment:    a. In consideration for the execution by Employee of this Separation Agreement, Company  agrees to provide Employee with the gross amount of Four Hundred and Fifty Thousand  Dollars and Zero Cents ($450,000.00) (“Separation Pay”), less applicable withholding and  deductions.  The Separation Pay will be paid on the Company’s regular payroll schedule in  





 






            Page | 2     equal installments.  The first Separation Payment shall be paid to Employee in the first  regularly scheduled payroll period following execution of this Agreement and expiration of  the seven (7) day revocation period, provided Employee has executed and not revoked this  Agreement and is otherwise in compliance with this Agreement.   b. In light of 4762 restricted stock units that did not vest before Employee’s termination, the  Company also agrees to pay Employee within 30 days of execution of this Agreement, the  additional amount of Twenty-Three Thousand, Six Hundred and Sixty-Seven Dollars  ($23,667.00).  Such amount which will be paid in a lump sum and will be subject to all  appropriate withholding.     c.  The Company is not offering any tax advice to Employee regarding the Separation Pay or  any amounts paid under this Agreement. Employee understands and agrees that upon  Employee’s receipt of the payments described above Employee will have been fully  compensated for any amounts owed under this Agreement.   d. The Company also agrees to pay the premium to the third-party administrator for the  maintenance of Employee’s health insurance under the Consolidated Omnibus Budget  Reconciliation Act (“COBRA”) through December 2023, or until Employee becomes re- insured under a different plan, whichever occurs first.  Employee must immediately notify  the Company of re-insurance under a different plan.  Except as set forth in this Agreement, Employee acknowledges, represents, and warrants that (a) the  Company owes Employee no other wages, commissions, bonuses, vacation pay or other compensation  or payments of any nature, and has made no other representations and/or commitments to Employee not  set forth in this Agreement, and (b) the Company will have no other financial obligation to Employee  with regard to Employee’s employment or termination.      3. General Release.  a. Employee, agrees to release any and all claims that Employee has or may have against the  Company arising out of Employee’s employment with the Company (including Employee’s  termination of employment).  Employee agrees that this release includes not only the  Company, but also the Company’s its parents, subsidiaries, divisions, affiliates, predecessors,  successors, and assigns, and its past and present officers, directors, agents, employer’s,  counsel and insurers (the “Released Parties”).  Employee understands and agrees that this  release includes any and all claims of every kind and nature, whether known or unknown,  actual or contingent, asserted or unasserted, arising under common law, statutory law, or  otherwise that Employee has, had, now has, or may have against the Released Parties  occurring up through the date Employee sign this Agreement, including, without limitation,  claims arising pursuant to the Title VII of the Civil Rights Act of 1964, the Civil Rights Act  of 1991, the Civil Rights Act of 1866, the Age Discrimination in Employment Act, the  Americans with Disabilities Act, the Fair Labor Standards Act, the Family and Medical  Leave Act, the Employee Retirement Income Security Act of 1974, Worker Adjustment and  Retraining Notification (WARN) Act; the Sarbanes-Oxley Act, or any other federal, state or  local statute, ordinance, or regulation regarding employment, termination of employment, or  





 






            Page | 3     discrimination in employment as such acts may have been amended.  Employee understands  and agrees that the only claims that are exempt from this release are claims the law does not  allow Employee to waive by signing this Agreement.  For the purpose of implementing a full  and complete release, Employee expressly acknowledges that the releases given in this  Agreement are intended to include, without limitation, claims that Employee did not know or  suspect to exist in Employee’s favor at the time of the date of Employee’s execution of this  Agreement, regardless of whether the knowledge of such claims, or the facts upon with  which they might be based, would have materially affected Employee’s decision to sign this  Agreement, and that the consideration provided under this Agreement was also for the  release of those claims and contemplates the extinguishment of any such unknown claims.  b. This release also includes all claims arising under, relating to, or in any way involving the  California Fair Employment and Housing Act ("FEHA"), California Constitution, the  California Labor Code, and any corresponding regulations, and any claims arising out of the  California Business & Professions Code, and any other alleged violation of any federal, state  or local law, ordinance, and/or public policy, contract or tort or common-law having any  bearing whatsoever on the terms and conditions and/or cessation of Employee’s employment  with the Company which Employee ever had, now has, or shall have from the beginning of  world to the date of this Separation Agreement.  4. WAIVER OF CIVIL CODE SECTION 1542  Employee hereby expressly waives and relinquishes all rights and benefits under California Civil Code §  1542 to the fullest extent that Employee may lawfully waive such rights.  Section 1542 of the Civil Code  of California provides as follows:  A general release does not extend to claims that the creditor or releasing party does not  know or suspect to exist in his or her favor at the time of executing the release and that, if  known by him or her, would have materially affected his or her settlement with the debtor  or released party.    5. Non-Disparagement.  Employee agrees that Employee will not make any oral or written  statement that disparages the Company or Released Parties, or is likely to be harmful to them or their  business, business reputation or personal reputation; provided that Employee may respond accurately  and fully to any question, inquiry or request for information when required by legal process.  The Parties  acknowledge that this provision is to the mutual benefit of both parties and is not intended to prohibit  truthful statements or disclosures about alleged unlawful employment practices. Nothing in this  agreement prevents Employee from discussing or disclosing information about unlawful acts in the  workplace, such as harassment or discrimination or any other conduct that Employee has reason to  believe is unlawful.     6. Neutral Reference.  In consideration of all of Employee’s agreements and obligations herein,  the Company agrees to provide a neutral reference in relation to any inquiries regarding Employee from  prospective employers.  This neutral reference will include dates of employment and position(s) held.  In  exchange for this Agreement, Employee agree to direct all inquiries to the Company’s Chief Human  





 






            Page | 4     Resources Officer, Bridgett Zeterberg.  Employee agrees and acknowledges that the Company is not  responsible for any references or information provided in response to inquiries to any other individual.    7. Restrictive Covenants.     Employee agrees and acknowledges that Employee continues to be  bound by any confidentiality, non-solicitation, and assignment of invention provisions or agreements  that Employee has signed with the Company either prior to or during Employee’s employment  (collectively, “Restrictive Covenant Agreements”), and this Agreement incorporates all such agreements  by reference.    8. Confidentiality.   a. Confidential Information: Employee acknowledges that during Employee’ employment  Employee has learned Confidential Information relating to the business conducted and to  be conducted by the Company and Employee agrees not to disclose such information to a  new employer or to any other person, and Employee agrees to abide by the terms of the  Proprietary Information and Inventions Agreement Employee signed electronically with  the new hire paperwork on May 10, 2016. Employee agrees that Employee will not at  any time after Employee’s employment disclose or use or authorize any third party to  disclose or use any such Confidential Information, without prior written approval of the  Company.  As used in this Agreement, “Confidential Information” means all information  belonging to the Company or provided to the Company by a customer that is not known  generally to the public or the Company’s competitors and includes all trade secrets, client  lists and information related to client files, know-how, show-how, technical, operating,  financial, and other business information and materials.  Confidential Information shall  not include any general know-how or skills that Employee possess whether obtained  through Employee’s employment at the Company or elsewhere.  Confidential  Information also does not include information that (i) is publicly known or becomes  publicly known through no fault of Employee’s, or (ii) is generally or readily obtainable  by the public.  Employee shall not be held criminally or civilly liable under any federal or  state trade secret law for the disclosure of a trade secret that: (a) is made (i) in confidence  to a federal, state, or local government official, either directly or indirectly, or to an  attorney, and (ii) solely for the purpose of reporting or investigating a suspected violation  of law; or (b) is made in a complaint or other document filed in a lawsuit or other  proceeding, if such filing is made under seal.  By signing this Agreement, Employee  represents and warrants that Employee has not disclosed any Confidential Information to  a third party, or sent/downloaded any Confidential Information to Employee’s personal  email account(s), personal computer(s), personal mobile device(s), and/or external and  removable hard or thumb drives.    b. Confidentiality of Agreement.  Employee further understands and agrees that this  Agreement and the matters discussed in negotiating the terms of this Agreement, are  entirely confidential.  It is therefore expressly understood and agreed by Employee that  Employee will not reveal, discuss, publish, or in any way communicate any of the terms  of this Agreement, and the matters discussed in negotiating the terms of this Agreement  to any person, organization or other entity, except to Employee’ immediate family  





 






            Page | 5     members and professional representatives, if any, as needed, who shall also be informed  of and bound by this confidentiality clause; but in no event should Employee discuss this  Agreement or its terms with any current or prospective employee of the Company.   Should any of the aforementioned disclose the subject matter of this provision, then  Employee will be responsible for their disclosure.  Employee represents and warrants  that, prior to signing this Agreement, Employee has not made any disclosures that would  have been prohibited by this Agreement had they been made after the full execution of  this Agreement. However, Employee understands that nothing in this Agreement  precludes Employee from disclosing factual information (other than the amount of any  settlement) related to any claim against Released Parties of harassment or discrimination  or any other conduct Employee has reason to believe to be unlawful, or from disclosing  factual information related to an administrative claim or civil action concerning sexual  assault, sexual harassment, workplace harassment or discrimination, failure to prevent an  act of workplace harassment or discrimination, or an act of retaliation against a person for  reporting or opposing harassment or discrimination that was filed in a civil or  administrative action.     c. In the event that Employee believes that she is legally obligated by statutory or regulatory  requirements (including compulsory legal process), to make such disclosures, Employee  will contact the Company’s Chief Human Resources Officer and Chief Legal Officer,  Bridgett Zeterberg within 24 hours of receiving notice that Employee is so obligated.   9. Non-Solicitation. On behalf of herself or on behalf to any entity or person, Employee agrees not  to, directly or in directly, solicit or encourage any Company employee to leave the Company. This  section will expire two (2) years after Employee executes this agreement.  10. Return of Company Materials.  No later than the Separation Date or as soon as possible  thereafter, Employee represents that Employee has returned or will return to the Company, and has not  retained in any form or format, all Company documents and other Company property containing  Confidential Information that Employee had in Employee’s possession at any time.  11. Consideration of Medicare’s Interests.   Employee affirms, covenants, and warrants she has  made no claim for illness or injury against, nor is she aware of any facts supporting any claim against,  the released parties under which the released parties could be liable for medical expenses incurred by the  Employee before or after the execution of this agreement.  Furthermore, Employee is aware of no  medical expenses which Medicare has paid and for which the released parties are or could be liable now  or in the future.  Employee agrees and affirms that, to the best of her knowledge, no liens of any  governmental entities, including those for Medicare conditional payments, exist.  Employee will  indemnify, defend, and hold the released parties harmless from Medicare claims, liens, damages,  conditional payments, and rights to payment, if any, including attorneys' fees, and Employee further  agrees to waive any and all future private causes of action for damages pursuant to 42 U.S.C. §  1395y(b)(3)(A) et seq.    12. Notification of Rights.    





 






            Page | 6     a. This Agreement is intended to comply with the Older Workers Benefit Protection Act  (“OWBPA”) with regard to Employee’s waiver of rights under the Age Discrimination in  Employment Act of 1967 (“ADEA”).    b. Employee acknowledges and agrees that:     i. Employee has read and understand this Agreement in its entirety, including the  release of ADEA claims.    ii. Employee was informed that Employee may consult with an attorney, at Employee’s  expense.    iii. Employee will have 21 days to review (including consulting an attorney) and sign  this Agreement and return it via email it to bzeterberg@torrid.com. Employee may  use as much or as little of this 21-day period prior to signing; however, Employee  may not sign until after Employee’s Separation Date.  Pursuant to 29 C.F.R.  §16.22(e)(4), the Parties agree that any modifications to this Agreement, whether  material or immaterial, will not restart the 21-day consideration period.    iv. If Employee signs this Agreement, Employee has done so knowingly, willingly and  voluntarily and under no compulsion or duress, in exchange for the separation  benefits provided herein.    v. The Agreement provides consideration in addition to anything of value to which  Employee may be entitled independent of the Agreement.    vi. This Agreement is not intended to be a waiver of claims, including claims under the  ADEA, arising after the date Employee execute this Agreement.    c. Employee has seven (7) days to revoke this Agreement in writing by emailing  bzeterberg@torrid.com no later than the close of business on the 7th day after Employee  signs. If Employee revokes this Agreement as provided in this Section, it shall be null and  void and Employee will not be entitled to any of the consideration from the Company  described above.  If Employee does not revoke this Agreement within seven (7) days of  executing it, this Agreement shall become enforceable on the 8th day after execution of this  Agreement (the “Effective Date”).    13. Waiver.  Neither party shall, by mere lapse of time, without giving notice or taking other action  hereunder, be deemed to have waived any breach by the other party of any of the provisions of this  Agreement.  Further, the waiver by either party of a particular breach of this Agreement by the other  shall neither be construed as, nor constitute, a continuing waiver of such breach or of other breaches of  the same or any other provision of this Agreement.    





 






            Page | 7     14. Severability.  If any of the provisions, terms or clauses of this Agreement are declared illegal,  unenforceable, or ineffective, those provisions, terms and clauses shall be deemed severable, and all  other provisions, terms and clauses of this Agreement shall remain valid and binding upon both parties.    15. Governing Law and Venue.  This Agreement will be governed and enforced in accordance with  the laws of the State of California, without regard to its conflict of laws principles.      16. Entire Agreement.  This Agreement, including the Restrictive Covenants Agreements  incorporated by reference, constitutes the entire agreement between the parties with respect to the  subject matter hereof and supersedes all prior negotiations and agreements, whether written or oral.  However nothing in this Agreement is intended to nullify any benefits already vested pursuant to the  Company’s Deferred Compensation Plan.  This Agreement may not be altered or amended except by a  written document signed by Employee and an authorized representative of the Company.       17. Counterparts.  This Agreement may be executed in any number of counterparts, each of which  shall be an original, but all of which together constitute but one and the same agreement.    Employee has the right to consult with an attorney and has been advised by the Company to do so before  signing this Agreement, and this paragraph constitutes such advice in writing.      IN WITNESS WHEREOF, the undersigned have executed this Agreement freely and  voluntarily with the intention of being legally bound by it.      Kelly McGuire Diehl    Signature:     _________________________________    Print Name:     _________________________________    Date: ______________    _________________________________    TORRID LLC    Signature:     ____________________________________     Title:  _______________________________           Date: _______________     ____________________________________