Exhibit 10.2


 


COMPENSATION
AND SEVERANCE AGREEMENT


 


(initially effective March 21,
2001, “Effective Date”)


(amended and restated
February 5, 2004)


 


THIS COMPENSATION AND
SEVERANCE AGREEMENT (this “Agreement”), is amended and restated effective as of
the 5th day of February, 2004, by and between RESTORATION HARDWARE, INC., a
corporation incorporated under the laws of Delaware (the “Company”), and Gary
G. Friedman (“Officer”).


 


WHEREAS, the Board has
determined that it is essential and in the best interest of the Company and its
stockholders to retain the services of Officer and, in the event of a threat or
occurrence of a Change in Control, to ensure Officer’s continued dedication and
efforts in such event without undue concern for Officer’s personal financial
and employment security; and


 


WHEREAS, in order to
encourage Officer to remain in the employ of the Company, particularly in the
event of a threat or the occurrence of a Change in Control, the Company desires
to enter into this amended and restated Agreement with Officer;


 


NOW, THEREFORE, in
consideration of the respective agreements of the parties contained herein, it
is agreed as follows:


 


1. Integration with Other
Agreements. This Agreement was initially executed substantially
contemporaneously with a letter dated March 15, 2001 offering Officer
employment with the Company (“Offer Letter”), stock option agreements and
notices of grant of stock options referenced in the Offer Letter, agreements to
participate in a preferred stock financing and an agreement to purchase common
stock of the Company as described in the Offer Letter.  The provisions of Sections 11 through 17 of
this Agreement shall generally apply with respect to the Offer Letter and the
stock option agreements and the rights and obligations thereunder.


 


2. Definitions.


 


2.1. Accrued
Compensation. “Accrued Compensation” shall mean an amount which shall include
all amounts earned or accrued through the Termination Date (as hereinafter
defined) but not paid as of the Termination Date, including, without
limitation, (i) Base Salary, (ii) reimbursement for reasonable and necessary
expenses incurred by Officer on behalf of the Company during the period ending
on the Termination Date, and (iii) vacation pay.


 


2.2. Base Salary. “Base
Salary” shall mean the base salary as set forth in Section 3.1 or, on any
date, the amount of Officer’s annual base salary in effect immediately prior
thereto (or, if greater, the rate in effect immediately before a reduction in
rate that constitutes Good Reason), and shall include all amounts of Officer’s
base salary that are deferred under the qualified and non-qualified employee
benefit plans of the Company or any other agreement or arrangement.


 


2.3. Bonus Amount. “Bonus
Amount” shall mean 100% of the last annual bonus paid or payable to Officer
prior to the Termination Date or, in connection with a termination under


 

















 


Section 4.1(b),
Officer’s target bonus for the fiscal year in which the Change in Control
occurs if such target bonus is greater than the last annual bonus paid to
Officer.


 


2.4. Cause. A termination
of employment is for “Cause” if Officer has been convicted of a felony
involving fraud, dishonesty, or physical harm to any person, or the termination
is evidenced by a resolution adopted in good faith by two-thirds of the Board
to the effect that Officer (i) intentionally and continually failed
substantially to perform Officer’s reasonably assigned duties with the Company
(other than a failure resulting from Officer’s incapacity due to physical or
mental illness or from Officer’s assignment of duties that would constitute
Good Reason (as hereinafter defined)), which failure continued for a period of
at least thirty (30) days after a written notice of demand for substantial
performance has been delivered to Officer specifying the manner in which
Officer has failed substantially to perform, or (ii) intentionally engaged in
conduct which is demonstrably and materially injurious to the Company;
provided, that no termination of Officer’s employment shall be for Cause as set
forth in clause (ii) above until (a) there shall have been delivered to Officer
a copy of a written notice setting forth that Officer was guilty of the conduct
set forth in clause (ii) and specifying the particulars thereof in detail, and
(b) Officer shall have been provided an opportunity to be heard in person by
the Board (with the assistance of Officer’s counsel if Officer so desires). No
act, nor failure to act, on Officer’s part shall be considered “intentional”
unless Officer has acted, or failed to act, with a lack of good faith and with
a lack of reasonable belief that Officer’s action or failure to act was in the
best interest of the Company.


 


2.5. Change in Control.
“Change in Control” shall mean any of the following:


 


(a) An acquisition
(other than directly from the Company) of any voting securities of the Company
(the “Voting Securities”) by any Person (as the term “person” is used for
purposes of Section 13 or 14 of the Securities Exchange Act of 1934, as amended
(the “1934 Act”)) immediately after which such Person has Beneficial Ownership
(as the term “beneficial ownership” is defined under Rule 13d-3 promulgated
under the 1934 Act) of fifty percent (50%) or more of the combined voting power
of the Company’s then outstanding Voting Securities; provided, that in
determining whether a Change in Control has occurred, Voting Securities which
are acquired in a Non-Control Acquisition (as hereinafter defined) shall not
constitute an acquisition which would cause a Change in Control. A “Non-Control
Acquisition” shall mean an acquisition by (i) an employee benefit plan (or a
trust forming a part thereof) maintained by (1) the Company or (2) any
corporation or other Person of which a majority of its voting power or its
equity securities or equity interest is owned directly or indirectly by the
Company (a “Subsidiary”), (ii) the Company or any Subsidiary, or (iii) any
Person in connection with a Non-Control Transaction (as hereinafter defined);


 


(b) The
individuals who, as of date this Agreement is approved by the Board, are
members of the Board (the “Incumbent Board”), cease for any reason to
constitute at least a majority of the Board; provided, that if the appointment,
election or nomination for election by the Company’s stockholders of any new director
was approved by a vote of at least two-thirds of the Incumbent Board, such new


 


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director shall,
for purposes of this Agreement, be considered a member of the Incumbent Board;
and provided, further, that no individual shall be considered a member of the
Incumbent Board if such individual initially assumed office as a result of
either an actual or threatened “Election Contest” (as described in Rule 14a-11
promulgated under the 1934 Act) or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the Board (a “Proxy
Contest”) including by reason of any agreement intended to avoid or settle any
Election Contest or Proxy Contest;


 


(c) A merger,
consolidation or reorganization involving the Company, unless such merger,
consolidation or reorganization satisfies the conditions set forth in clauses
(1) and (2) below (any transaction(s) meeting the requirements of clauses (1)
and (1) below being referred to herein as “Non-Control Transactions”):


 


(1) the
stockholders of the Company immediately before such merger, consolidation or
reorganization own, directly or indirectly, immediately following such merger,
consolidation or reorganization, at least fifty percent (50%) of the combined
voting power of the outstanding voting securities of the corporation resulting
from such merger, consolidation or reorganization (the “Surviving Corporation”)
in substantially the same proportion as their ownership of the Voting Securities
immediately before such merger, consolidation or reorganization; and


 


(2) the
individuals who were members of the Incumbent Board immediately prior to the
execution of the agreement providing for such merger, consolidation or
reorganization constitute at least a majority of the members of the board of
directors of the Surviving Corporation; 


 


(d) A complete
liquidation or dissolution of the Company; or


 


(e) An agreement
for the sale or other disposition of all or substantially all of the assets of
the Company to any Person (other than a transfer to a Subsidiary); and


 


(f) Any other
event that at least two-thirds of the Incumbent Board in its sole discretion
shall determine constitutes a Change in Control.


 


Notwithstanding the foregoing, a Change in Control shall not be deemed
to occur solely because any Person (the “Subject Person”) acquired Beneficial
Ownership of more than the permitted amount of the outstanding Voting
Securities as a result of the acquisition of Voting Securities by the Company
which, by reducing the number of Voting Securities outstanding, increases the
proportional number of shares Beneficially Owned by the Subject Person;
provided, that if a Change in Control would occur (but for the operation of
this sentence) as a result of the acquisition of Voting Securities by the
Company, and after such share acquisition by the Company the Subject Person
becomes the Beneficial Owner of any additional voting Securities which
increases the percentage of the then outstanding Voting Securities Beneficially
Owned by the Subject Person, then a Change in Control shall occur; provided
further that no Change of


 


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Control shall be deemed to have occurred under (a) or (c) merely
because individuals and entities who, individually, as the Effective Date have
Beneficial Ownership of at least 5% of the Voting Securities have, immediately
after the transaction described in (a) or (c) above, Beneficial Ownership, in
the aggregate, of more than 50% of the Voting Securities of the Company or
successor or parent thereof if both (i) no one such individual or entity has,
immediately after such a transaction, Beneficial Ownership of more than 50% and
(ii) the transaction does not result in the Company or successor or parent
thereof becoming a private company.


 


Notwithstanding anything
contained in this Agreement to the contrary, if Officer’s employment is
terminated prior to a Change in Control and the Board determines that such
termination (i) was at the request of a third party who has indicated an
intention or taken steps reasonably calculated to effect a Change in Control
and who subsequently effectuates a Change in Control (a “Third Party”) or (ii)
otherwise occurred in connection with, or in anticipation of, a Change in
Control which actually occurs, then, for all purposes of this Agreement, the
date of a Change in Control with respect to Officer shall mean the date
immediately prior to the date of such termination of Officer’s employment.


 


2.6. Company. The
“Company” shall mean Restoration Hardware, Inc. and shall include its
“Successors and Assigns” (as hereinafter defined).


 


2.7. Disability.
“Disability” shall mean a physical or mental infirmity which either (i) impairs
Officer’s ability to substantially perform Officer’s duties with the Company
for a period of one hundred eighty (180) consecutive days or (ii) is expected
to so impair Officer for a period of at least one year or (iii) entitles
Officer to long-term disability benefits under a long-term disability policy
maintained by the Company; provided, that Officer has not returned to Officer’s
full-time employment prior to the Termination Date as stated in the Notice of
Termination (as hereinafter defined).


 


2.8. Good Reason.


 


(a) “Good Reason”
shall mean the occurrence after a Change in Control of any of the events or
conditions described in subsections (i) through (vi) hereof:


 


(i) (A) a change
in Officer’s status, title, position or responsibilities which represents a
material adverse change from Officer’s status, title, position or
responsibilities (including reporting responsibilities) at any time within
ninety (90) days preceding the date of either such change or a Change in
Control or at any time thereafter, (B) the assignment to Officer of any duties
or responsibilities which are inconsistent with Officer’s status, title,
position or responsibilities; or (C) any removal of Officer from or failure to
reappoint or reelect Officer to any of such offices or positions, except in
connection with the termination of Officer’s employment for Disability, Cause,
as a result of Officer’s death or by Officer other than for Good Reason;
provided that changes in Officer’s responsibilities due to the fact that the
Company or its successor becomes a standalone private company or a standalone
division or subsidiary of a public company will not constitute Good Reason so
long as Officer continues as Chief


 


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Executive Officer
of the Company (or successor or parent thereof, as the case may be) or such
division or subsidiary;


 


(ii) reduction in
Officer’s Base Salary to a level below that in effect at any time within ninety
(90) days preceding the date of such reduction or a Change in Control or at any
time thereafter (except to the extent such reduction is part of a comprehensive
reduction in salary applicable to employees of the Company generally so long as
the reduction applicable to Officer is comparable to the reduction applied to
other senior executives of the Company), or any failure to pay or provide
Officer any compensation or benefits, to which Officer is entitled within ten
(10) business days of the later of the date that such compensation or benefits
were due or the date that Officer gives the Company written demand to the Board
for such payment;


 


(iii) the
Company’s requiring Officer to be based at any place that is (A) outside a
40-mile radius from Officer’s prior job location or Officer’s residence prior
to implementation of such requirement or a Change in Control and (B) more than
10 miles farther from Officer’s residence than his prior job location, except
for reasonably required travel on the Company’s business which is not
materially greater than prior such required travel;


 


(iv) the failure
by the Company to (A) provide Officer with an annual bonus opportunity at least
equal to that in effect at the Effective Date or at any time within ninety (90)
days preceding the date of the Change in Control or at any time thereafter, or
(B) provide Officer with compensation and benefits (other than severance), in
the aggregate, substantially equal (in terms of benefit levels and/or reward
opportunities) to those provided for under each other employee benefit plan,
program and practice in which Officer was participating at any time within the
prior ninety (90) days or within ninety (90) days preceding the date of the
Change in Control or at any time thereafter or which are provided to other
similarly situated executives of the Company, provided in each case that
Officer is not provided with cash compensation equal to the value of the amount
by which such benefits are reduced;


 


(v) the insolvency
or the filing (by any party, including the Company) of a petition for
bankruptcy of the Company, which petition is not dismissed within sixty (60)
days;


 


(vi) the failure
of the Company to obtain an agreement from any Successors and Assigns (as
hereinafter defined) to assume and agree to perform this Agreement, as
contemplated in Section 6 hereof or any other material breach of this Agreement
by the Company or Successor or Assign.


 


(b) Any event or
condition described in this Section 2.8 which occurs prior to a Change in
Control, but which the Board determines (i) was at the request of a Third
Party, or (ii) otherwise arose in connection with, or in anticipation of, a
Change in Control which actually occurs, shall constitute Good Reason for
purposes of this Agreement notwithstanding that it occurred prior to the Change
in Control.


 


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(c) Good Reason
shall also exist outside the context of a Change in Control (i) if the
Company causes Officer to cease at any time to be the Chief Executive Officer
of the Company, (ii) if the Company causes officer to cease at any time to
be a director of the Company, (iii) upon a breach by the Company of its
obligations under this Agreement after written notice from Officer and an
opportunity to cure within 15 days and if the Company has failed to timely
effect such cure, or (iv) upon any material reduction in salary or
responsibilities of Officer other than to the extent such reduction is part of
a comprehensive reduction in salary applicable to employees of the Company
generally so long as the reduction applicable to Officer is comparable to the
reduction applied to other senior executives of the Company.  For the avoidance of doubt, the foregoing
definition of “Good Reason” shall only be applicable outside the context of a
Change in Control.  If there is a Change
in Control, the definition of whether Good Reason exists shall be determined
solely by Section 2.8(a) and Section 2.8(b) of this Agreement.


 


(d) Officer’s right to terminate Officer’s employment pursuant to this
Section 2.8 shall not be affected by Officer’s incapacity due to physical or
mental illness. Any change or event that would otherwise constitute Good Reason
under this Section 2.8 shall constitute Good Reason only with respect to a
termination of employment by Officer within ninety (90) days of the later of
(i) the date of such change or event or (ii) the date that Officer receives
written notice of such change or event. 
If more than one change or event shall occur which alone or in the
aggregate constitutes Good Reason, then for purposes of the preceding sentence
Good Reason shall be deemed to have occurred on the last such change or event
to occur.


 


2.9. Notice of
Termination. “Notice of Termination” shall mean a written notice from the
Company of termination of Officer’s employment which indicates the specific
termination provision in this Agreement relied upon and which sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of Officer’s employment under the provision so indicated.


 


2.10. Pro-Rata Bonus.
“Pro-Rata Bonus” shall mean an amount equal to the Bonus Amount multiplied by a
fraction the numerator of which is the number of days in the fiscal year
through the Termination Date and the denominator of which is 365.


 


2.11. Successors and
Assigns. “Successors and Assigns” shall mean a corporation or other entity
acquiring all or substantially all the assets and business of the Company
(including this Agreement), whether by operation of law or otherwise.


 


2.12. Termination Date.
“Termination Date” shall mean (i) in the case of Officer’s death, Officer’s date
of death, (ii) in the case of Good Reason, the last day of Officer’s
employment, and (iii) in all other cases, the date specified in the Notice of
Termination; provided, that if Officer’s employment is terminated by the
Company or due to Disability, the date specified in the Notice of Termination
shall be at least thirty (30) days from the date the Notice of Termination is
given to Officer; and provided, further, that in the case of Disability Officer
shall not have returned to the full-time performance of Officer’s duties during
such period of at least thirty (30) days.


 


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3. Compensation and
Officer Obligations


 


3.1
Compensation.  Officer’s Base Salary
shall be $500,000 per year (less applicable withholding taxes) effective
September 3, 2003, to be paid in installments in accordance with the
Company’s standard payroll practices. 
Officer’s Base Salary may be subject to increase at least annually
during Officer’s employment. 
Adjustments will be at the sole discretion of the Board or the
Compensation Committee of the Board and may be based upon milestones that are
set by the Compensation Committee in advance. 
The first such review of Base Salary for possible increase following the
effective date of this amended and restated Agreement set forth above shall be
considered by the Board or the Compensation Committee during April of 2004.


 


3.2
Bonus.  Officer will be eligible for
annual bonus compensation in an amount up to 100% of Base Salary, with the
amount actually payable based on the level of achievement of performance goals
determined by the Board or the Compensation Committee; provided, however, that
if the Officer achieves his stretch performance goals, as determined by the
Board or the Compensation Committee, such annual bonus amount shall
automatically increase to up to 150% of Base Salary.  The Board or the Compensation Committee shall determine Officer’s
bonus, if any, for the 2003 fiscal year of the Company during April of
2004.  The performance goals and stretch
performance goals shall be based primarily upon financial performance metrics
for the Company and shall be set for each fiscal year at approximately the same
time that the Company’s annual budget for such fiscal year is established.


 


3.3
Stock Options.  In addition to those
stock options granted prior to the amendment and restatement of this Agreement,
Officer will be awarded the following stock option grants subject to approval
of the Board or the Compensation Committee as appropriate:


 


(a) A stock option to acquire 500,000 shares of the
common stock of the Company at an exercise price per share equal to the greater
of $4.50 per share and the fair market value of one share of the Company’s
common stock on the date of grant; and


 


(b) A stock option to acquire 500,000 shares of the
common stock of the Company at an exercise price per share equal to $9.00.


 


Each of the foregoing stock options shall have a ten year term and
shall vest in accordance with the Company’s standard four year vesting schedule,
subject to earlier vesting as provided in Section 4.1 of this Agreement.


 


3.4 Reimbursement of Expenses.  Officer will be entitled to reimbursement of
reasonable expenses, including attorney’s fees, incurred by Officer in
negotiating the terms of this amended and restated Agreement, not to exceed
$10,000 unless approved by the Board.


 


3.5 Officer Obligations.
During the term of this Agreement, and excluding any periods of vacation and
sick leave to which Officer is entitled, Officer agrees to devote his full time
and attention spent on business matters to the business and affairs of the
Company and, to the extent necessary to discharge the responsibilities assigned
to Officer by the Company that do not constitute Good Reason, to use Officer’s
reasonable best efforts to perform faithfully and


 


7

















 


efficiently such
responsibilities; provided, that it shall not be a violation of this Agreement
for Officer to, without limitation, (i) serve on corporate, civic or charitable
boards or committees, (ii) deliver lectures, fulfill speaking engagements or
teach at educational institutions, (iii) manage personal investments and (iv)
perform such other activities as the Board may approve, so long as such
activities do not interfere materially with the performance of Officer’s
responsibilities as an employee of the Company. It is expressly understood and
agreed that to the extent that any such activities have been either (i)
conducted by Officer and disclosed to the Board prior to the Effective Date or
(ii) approved by the Board prior the date of a Change of Control, the continued
conduct of such activities (or the conduct of activities similar in nature and
scope thereto) shall not thereafter be deemed to interfere with the performance
of Officer’s responsibilities to the Company.


 


4. Termination of
Employment.


 


4.1. Termination
Benefits. If, during the term of this Agreement, Officer’s employment with the
Company shall be terminated, Officer shall be entitled to the following
compensation and benefits:


 


(a) If Officer’s
employment with the Company shall be terminated (i) by the Company for Cause or
Disability, (ii) by reason of Officer’s death, (iii) due to Officer’s
retirement pursuant to the Company’s policies applying to executive officers
generally, or (iv) by Officer other than for Good Reason, the Company shall pay
to Officer the Accrued Compensation;


 


(b) If Officer’s
employment with the Company shall be terminated other than as specified in
Section 4.1(a) within eighteen (18) months following a Change in Control,
Officer shall be entitled to the following:


 


(i) the Company
shall pay Officer all Accrued Compensation and a Pro-Rata Bonus;


 


(ii) the Company
shall pay Officer as severance pay and in lieu of any further compensation for
periods subsequent to the Termination Date, an amount in cash equal to three
(3) times the sum of (A) the Base Salary and (B) the Bonus Amount;


 


(c) If Officer’s
employment with the Company shall be terminated (i) by Officer for Good Reason
not within eighteen (18) months following a Change in Control or (ii) for any
other reason that is not specified in Section 4.1(a) or (b), Officer shall be
entitled to the following:


 


(i) the Company
shall pay Officer all Accrued Compensation and a Pro-Rata Bonus;


 


(ii) the Company
shall pay Officer as severance pay and in lieu of any further compensation for
periods subsequent to the Termination Date, continuation of


 


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Officer’s Base
Salary in periodic installments in accordance with the Company’s normal payroll
practice, for 12 months following Termination Date or such longer period so
that Officer receives an aggregate minimum amount of such payments equal to
$750,000;


 


(iii) Officer
shall be entitled to continue medical benefit coverage for himself and his
eligible dependents until the later of the date that Officer becomes entitled
to medical benefits from another employer or the end of the period of Base
Salary continuation, subject to Officer’s payment of applicable premiums, if
any, at the same rate that would have applied had Officer remained an officer
of the Company;


 


(iv) Each stock
option granted to Officer by the Company on or prior to the end of the
Company’s first fiscal quarter for fiscal 2004 shall automatically accelerate
and become immediately exercisable (to the extent outstanding at the time and
not previously exercisable) for fully vested shares and any vesting repurchase
rights with respect to shares previously acquired thereunder shall lapse;


 


(v) Each stock
option granted to Executive (other than the options referred to in (iv) above)
shall automatically accelerate and become immediately exercisable (to the
extent outstanding at the time but not otherwise fully exercisable) for fully
vested shares and any vesting repurchase rights with respect to shares
previously acquired thereunder shall lapse, but in each case solely to the
extent that such options or shares would have vested during the period of Base
Salary continuation, had Executive remained employed with the company
throughout such period.


 


(vi) To the extent
that stock options that are outstanding upon such a termination vest solely by
reason of (iv) and (v) above, such options shall not remain exercisable for
longer than three months following termination of employment.


 


(d) The amounts
provided for in Sections 4.1(a) and 4.1(b)(i) shall be paid in a single lump
sum cash payment within thirty (30) days after the Termination Date (or
earlier, if required by applicable law). 
The amounts provided for in Section 4.1(b)(ii) shall be paid in twelve
(12) equal monthly installments following the Termination Date or such greater
number of additional monthly installments to yield an aggregate minimum payment
of $750,000.


 


(e) In the event
that Officer breaches this Agreement, including, but not limited to, the
provisions set forth in Section 9.1, all payments under Sections 4.1(b)(ii) and
4.1(c)(ii) shall cease after Officer has been given notice of the breach and an
opportunity to cure within 15 days of such notice and if Officer has failed to
timely effect such cure, and thereafter the Company shall have no further
obligations under Sections 4.1(b)(ii) and 4.1(c)(ii).


 


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(f) Officer shall
not be required to mitigate the amount of any payment provided for in this
Agreement by seeking other employment or otherwise, and no such payment shall
be offset or reduced by the amount of any compensation or benefits provided to
Officer in any subsequent employment.


 


4.2. Other Benefit
Policies. The severance pay and benefits provided for in Section 4.1 shall be
in lieu of any other severance or termination pay to which Officer may be
entitled under any Company severance or termination plan, program, practice or
arrangement. The Officer’s entitlement to any other compensation or benefits
shall be determined in accordance with the Company’s employee benefit plans and
other applicable programs, policies and practices then in effect. The Company
may condition the payment to Officer of severance benefits pursuant to Section
4.1(b)(ii) or 4(c)(ii) upon Officer’s delivery of a reasonable form of release
in favor of the Company containing customary terms and conditions for the
release of employment related claims. Nothing in this Agreement shall alter
Officer’s status as an “at will” employee of the Company.


 


4.3 Notice of
Termination. Any purported termination of Officer’s employment by the Company
shall be communicated by Notice of Termination to Officer. For purposes of this
Agreement, no such purported termination shall be effective without such Notice
of Termination.


 


5. Change in Control
Option Acceleration.  In the event of a
Change in Control, each stock option granted to Officer by the Company shall
automatically accelerate and become immediately exercisable (to the extent
outstanding at the time and not previously exercisable and whether or not the
option will be assumed by a successor (or parent) or otherwise continued) for
fully vested shares and any vesting repurchase rights with respect to shares
previously acquired thereunder shall lapse. 
If the option is not assumed or otherwise continued following the Change
in Control, the option shall become exercisable for fully vested shares
immediately before the Change in Control.


 


6. Excise Tax Payments.


 


6.1 In the event that any
payment or benefit (within the meaning of Section 280G(b)(2) of the Internal
Revenue Code of 1986, as amended (the “Code”)) to Officer or for Officer’s
benefit, paid or payable or distributed or distributable pursuant to the terms
of this Agreement or otherwise in connection with, or arising out of, Officer’s
employment with the Company or a Change in Control (a “Payment” or “Payments”),
would be subject to the excise tax imposed by Code Section 4999, or any
interest or penalties are incurred by Officer with respect to such excise tax
(such excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the “Excise Tax”), then Officer will be
entitled to receive an additional payment (a “Gross-Up Payment”) in an amount
such that after payment by Officer of all taxes (including any interest or
penalties (other than interest and penalties imposed by reason of Officer’s
failure to file timely a tax return or pay taxes shown due on Officer’s return)
imposed with respect to such taxes and the Excise Tax), including any Excise
Tax imposed upon the Gross-Up Payment, Officer retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Payments.


 


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6.2 An initial
determination as to whether a Gross-Up Payment is required pursuant to this
Agreement and the amount of such Gross-Up Payment shall be made by the Company.
The Company shall provide its determination (the “Determination”), together
with detailed supporting calculations and documentation, to Officer within
fifteen (15) days of the Termination Date, if applicable, or such other time as
requested by Officer (provided Officer reasonably believes that any of the
Payments may be subject to the Excise Tax). If requested by Officer, the
Company shall furnish Officer, at the Company’s expense, with an opinion
reasonably acceptable to Officer from the Company’s accounting firm (or an
accounting firm of equivalent stature reasonably acceptable to Officer) that
there is a reasonable basis for the Determination. Any Gross-Up Payment
determined pursuant to this Section 6.2 shall be paid by the Company to Officer
within five (5) days of receipt of the Determination.


 


6.3 As a result of the
uncertainty in the application of Sections 4999 and 280G of the Code, it is
possible that a Gross-Up Payment (or a portion thereof) will be paid which
should not have been paid (an “Excess Payment”) or a Gross-Up Payment (or a
portion thereof) which should have been paid will not have been paid (an
“Underpayment”).


 


(a) An
Underpayment shall be deemed to have occurred (i) upon notice (formal or
informal) to Officer from any governmental taxing authority that Officer’s tax
liability (whether in respect of Officer’s current taxable year or in respect
of any prior taxable year) may be increased by reason of the imposition of the
Excise Tax on a Payment or Payments with respect to which the Company has
failed to make a sufficient Gross-Up Payment, (ii) upon a determination by a
court, or (iii) by reason of determination by the Company (which shall include
the position taken by the Company, together with its consolidated group, on its
federal income tax return). If an Underpayment occurs, Officer shall promptly
notify the Company and the Company shall promptly, but in any event at least
five (5) days prior to the date on which the applicable government taxing
authority has requested payment, pay to Officer an additional Gross-Up Payment
equal to the amount of the Underpayment plus any interest and penalties (other
than interest and penalties imposed by reason of Officer’s failure to file
timely a tax return or pay taxes shown due on Officer’s return) imposed on the
Underpayment.


 


(b) An Excess
Payment shall be deemed to have occurred upon a Final Determination (as
hereinafter defined) that the Excise Tax shall not be imposed upon a Payment or
Payments (or portion thereof) with respect to which Officer had previously
received a Gross-Up Payment. A “Final Determination” shall be deemed to have
occurred when Officer has received from the applicable government taxing
authority a refund of taxes or other reduction in Officer’s tax liability by
reason of the Excise Payment and upon either (i) the date a determination is
made by, or an agreement is entered into with, the applicable governmental
taxing authority which finally and conclusively binds Officer and such taxing
authority, or in the event that a claim is brought before a court of competent
jurisdiction, the date upon which


 


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a final
determination has been made by such court and either all appeals have been
taken and finally resolved or the time for all appeals has expired or (ii) the
statute of limitations with respect to Officer’s applicable tax return has
expired. If an Excess Payment is determined to have been made, the amount of
the Excess Payment shall be treated as a loan by the Company to Officer, which
loan Officer must repay to the Company together with interest at the applicable
federal rate under Code Section 7872(f)(2); provided, that no loan shall be
deemed to have been made and no amount will be payable by Officer to the
Company unless, and only to the extent that, the deemed loan and payment would
either reduce the amount on which Officer is subject to tax under Code Section
4999 or generate a refund of tax imposed under Code Section 4999.


 


6.4 Notwithstanding
anything contained in this Agreement to the contrary, in the event that,
according to the Determination, an Excise Tax will be imposed on any Payment or
Payments, the Company shall pay to the applicable government taxing
authorities, as Excise Tax withholding, the amount of the Excise Tax that the
Company has actually withheld from the Payment or Payments.


 


7. Cooperation.
Notwithstanding anything to the contrary contained herein, payment of the
amounts specified in Section 4.1(b)(ii) hereof is conditional upon Officer
cooperating with the Company in connection with any Change of Control or
proposed Change of Control and all matters relating to Officer’s employment
with the Company and assisting the Company as reasonably requested in
transitioning Officer’s responsibilities to Officer’s replacement as well as upon
Officer refraining from doing or saying anything derogatory about the Company
or its businesses or personnel; provided, that Officer shall not be required to
perform any duties or take any action that would constitute Good Reason.


 


8. Confidential Information.
Officer shall hold in confidence for the benefit of the Company all secret or
confidential information, knowledge or data relating to the Company and its
businesses, which shall have been obtained by Officer prior to or in the course
of Officer’s employment by the Company and which was not and is not public
knowledge (other than by acts by Officer in violation of this Agreement)
(“Confidential Information”). Whether before or after termination of the
Officer’s employment with the Company, Officer shall not, without the prior
written consent of the Company, communicate or divulge any Confidential
Information, other than to the Company and to those persons or entities
designated by the Company or as otherwise is reasonably necessary for Officer
to carry out his responsibilities as an executive of the Company except that
Officer may make disclosure of Confidential Information to an attorney or
advisor representing Officer in connection with the matters covered by this
Agreement solely to the extent necessary to protect Officer’s interest under
this Agreement and only if the attorney or advisor agrees to confidentiality
restrictions for the benefit of the Company that are as restrictive as those
set forth in this Agreement. In no event shall an asserted violation of the
provisions of this Section 8 constitute a basis for deferring or withholding
any amounts otherwise payable to Officer under this Agreement.


 


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9.  Non-Solicitation.


 


9.1. Non-Solicitation. Officer
agrees that from the date hereof to the sooner to occur of (i) the end of the
twelfth month following the Termination Date or (ii) the second anniversary of
the date of the Change in Control, Officer will not:


 


(a) Solicit, raid,
entice or induce, either directly or through a third party, any person then
employed by the Company or who was employed by the Company within the preceding
twelve months to be employed by another person, or either directly or through a
third party hire or otherwise employ any person then employed by the Company or
who was employed by the Company within the preceding twelve months;


 


(b) Assist a
competitor or other employer in taking such action set forth in Section 9.1(a);


 


(c) Directly or
indirectly work for or make a significant investment in a Competitor including
by becoming an employee, officer, director, consultant, stockholder, partner,
consultant or other similar arrangement, unless and solely to the extent that
Officer can demonstrate that any action that otherwise would contravene this
Section 9.1(c) was done without use in any way of Confidential Information;
provided, that nothing in this Agreement shall be deemed to prohibit Officer
from owning not more than five percent (5%) of any class of publicly traded
securities of a Competitor.  
“Competitor” shall mean (a) a retail company, including without
limitation, a subsidiary or business unit of such company, where an aggregate
of 25% or more of its revenue (including revenue of any subsidiary or business
unit) is derived from the home furnishings business, including without
limitation, lighting, floor covering, furniture, hardware and tools, or hard
goods business or (b) a manufacturer, supplier or other vendor that has a
material vendor relationship with the Company.


 


9.2. Remedies.  Officer agrees that any breach or threatened
breach by Officer of Section 9.1 will entitle the Company, in addition to any
other legal remedies available to it, to apply to any court of competent jurisdiction
to enjoin the breach or threatened breach, it being acknowledged and agreed
that any such material breach will cause irreparable injury to the Company and
that any damages will not provide adequate remedies to the Company.


 


10. Exclusive Remedy.
Officer’s right to the compensation and benefits to which he may become
entitled pursuant to Section 4.1, Section 4.2, Section 5 and Section 6 shall be
Officer’s sole and exclusive remedy for any termination of Officer’s
employment. The payments, severance benefits and severance protections provided
to Officer pursuant to this Agreement are provided in lieu of any severance
payments, severance benefits and severance protections provided in any other
plan or policy of the Company, except as may be expressly provided in a written
agreement between the Company and Officer entered into after the date of this
Agreement. Notwithstanding the foregoing, nothing in this Agreement shall
prevent or limit Officer’s continuing or future participation in any benefit,
bonus, incentive or other plan or program provided by the Company (except for
any severance or termination policies, plans, programs or practices) and for
which


 


13

















 


Officer may qualify, nor
shall anything herein limit or reduce such rights as Officer may have under any
other agreements with the Company (except for any severance or termination
agreement). Amounts which are vested benefits or which Officer is otherwise
entitled to receive under any plan or program of the Company shall be payable
in accordance with such plan or program, except as explicitly modified by this
Agreement.


 


11. Successors; Binding
Agreement.


 


11.1. This Agreement
shall be binding upon and shall inure to the benefit of the Company and its
Successors and Assigns, and the Company shall require any Successors and
Assigns to expressly assume and agree 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 or assignment had taken place.


 


11.2. Neither this
Agreement nor any right or interest hereunder shall be assignable or
transferable by Officer or Officer’s beneficiaries or legal representatives,
except by will or by the laws of descent and distribution. This Agreement shall
inure to the benefit of and be enforceable by Officer’s legal personal
representative.


 


12. Notice. Notices and
all other communications provided for in this Agreement (including the Notice
of Termination) shall be in writing and shall be deemed to have been duly given
when personally delivered or sent by certified mail, return receipt requested,
postage prepaid, addressed to the respective addresses last given by each party
to the other; provided, that all notices to the Company shall be directed to
the attention of the Board with a copy to the Secretary of the Company. All
notices and communications shall be deemed to have been received on the date of
delivery thereof or on the third business day after the mailing thereof, except
that notice of change of address shall be effective only upon receipt.


 


13. Settlement of Claims.
Except as expressly provided herein, the Company’s obligation to make the
payments provided for in this Agreement and otherwise to perform its
obligations hereunder shall not be affected by any circumstances, including,
without limitation, any set-off, counterclaim, recoupment, defense or other
right which the Company may have against Officer or others, provided that all
amounts payable hereunder shall be subject to all applicable tax withholding.


 


14. Miscellaneous. No
provision of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing and signed by Officer
and the Company. No waiver by either party hereto at any time of any breach by
the other party hereto of, or compliance with, any condition or provision of
this Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreement or representation, oral or otherwise, express or
implied, with respect to the subject matter hereof has been made by either
party that is not expressly set forth in this Agreement.


 


15.  Governing Law; Arbitration


 


(a) The Company
and Officer agree that any existing or future dispute, controversy, claim or
action (“dispute” or “claim”) arising out of the hiring or employment of


 


14

















 


Officer by the Company, the termination of that employment, or arising
under this Agreement shall be resolved by final and binding arbitration.  Such arbitration shall occur in accordance
with the National Rules for the Resolution of Employment Disputes of the
American Arbitration Association.


 


(b)  Scope of Disputes and Claims to Be
Arbitrated  Company and Officer
understand and agree that this Agreement shall apply to any and all disputes
arising from or relating to Officer’s hiring, employment with or termination of
employment by the Company or arising under this Agreement.  This agreement to arbitrate applies to
disputes arising in tort or contract, pursuant to statute, regulation or
otherwise, now in existence or which may in the future be enacted, amended or
judicially recognized, including but not limited to the following:


 


(i)        claims for fraudulent
inducement of contract or breach of contract or contractual obligation, whether
such alleged contract or obligation be oral, written, express, or implied by
fact or law;


 


(ii)       claims of fraud, or
wrongful termination, including violation of public policy and constructive
discharge;


 


(iii)      claims of discrimination or
harassment under any and all state and federal statutes that prohibit
discrimination in employment, as well as claims for violation of any other
state or federal statute except as set forth below;


 


(iv)      claims of non-payment or
incorrect payment of wages, commissions, bonuses, severance, Officer fringe
benefits, stock options and the like, whether such claims be pursuant to
alleged express or implied contract or obligation, equity, the California Labor
Code, the Fair Labor Standards Act, the Officer Retirement Income Securities
Act, and any other local, state or federal law concerning wages, compensation
or Officer benefits;


 


(v)       claims for infliction of
emotional distress, misrepresentation, interference with contract or
prospective economic advantage, violation of public policy, defamation, unfair
business practices, and any other tort or tort-like causes of action relating
to or arising from the employment relationship or the formation or termination
thereof; and


 


(vi)      claims arising out of or
relating to the grant, exercise, vesting and/or issuance of equity in the
Company or options to purchase equity in the Company.


 


(c)  Company
and Officer understand and agree that except for such limited post-arbitration
judicial review as may be permitted by law, arbitration of such disputes, as
provided for herein, shall be the sole and exclusive mechanism for resolving
any and all existing and future disputes, and that no other forum for dispute
resolution will be available to either party . 
The only exceptions are the claims identified below, which may be
resolved in any appropriate fora, including courts of law, as required by the
laws then in effect:


 


15

















 


(i)        claims for benefits under
the workers’ compensation, unemployment insurance and state disability
insurance laws;


 


(ii)       claims concerning the
validity, infringement or enforceability of any trade secret, patent right,
copyright, trademark, or any other intellectual or confidential property right
held or sought by the Company.


 


(d)  Decision of Arbitrator Binding; Waiver of
Trial Before Court, Jury or Government Agency  Company and Officer understand and agree that arbitration shall
be instead of a trial before a court or jury, or a hearing before a government
agency.  Company and Officer understand
and agree that the decision of the arbitrator shall be final and binding on
both the Company and Officer, and it shall provide the exclusive remedy(ies)
for resolving any and all disputes between the Company and Officer, as provided
herein, and it shall be enforceable by any court having proper jurisdiction.


 


COMPANY
AND OFFICER FURTHER UNDERSTAND AND AGREE THAT BY SIGNING THIS AGREEMENT, EACH
IS EXPRESSLY WAIVING ANY AND ALL RIGHTS TO A TRIAL BEFORE A COURT OR JURY OR
BEFORE A GOVERNMENT AGENCY REGARDING ANY DISPUTE OR CLAIM WHICH EACH NOW HAS OR
MAY IN THE FUTURE HAVE, AS PROVIDED FOR HEREIN.


 


(e)  Place of Arbitration  Company and Officer understand and agree
that arbitration of disputes provided for herein shall take place in San
Francisco, California.  If, at the time
the dispute in question arises, Officer lives and works more than one hundred
(100) miles from San Francisco, California, then Officer has the option of
requesting that the arbitration take place in the county in which the Company
has an office that is nearest to Officer’s residence at the time the dispute in
question arises.


 


(f)  Costs of Arbitration  Company and Officer understand and agree
that the arbitrator’s fee will be borne solely by the Company.  Additionally, the Company will bear all
other costs related to the arbitration, assuming such costs are not expenses
that the Officer would be required to bear if he were bringing an action in a
court of law.  The Company and Officer
shall each bear their own attorneys’ fees incurred in connection with the
arbitration, and the arbitrator will not have authority to award attorneys’
fees unless a statue at issue in the dispute or other appropriate law
authorizes the award of attorneys’ fees to the prevailing party, in which case
the arbitrator shall have the authority to make an award of attorneys’ fees as
permitted by the applicable statute.


 


(g)  Governing Law/Applicable Procedures  Company and Officer understand and agree
that this Agreement, including the obligation to arbitrate, and its validity,
construction and performance shall be governed by the laws of the State of
California without regard to conflict of law principles.  The parties specifically intend that this
Agreement and the provision of benefits hereunder shall not constitute an
“employee benefit plan” subject to any of the provisions of the


 


16

















 


Employee Retirement Income Security Act of 1974, as amended. the
Further, the arbitration shall be conducted in accordance with the National
Rules for the Resolution of Employment Disputes of the American Arbitration
Association.


 


(h)  Written Arbitration Decision  Company and Officer understand and agree
that, in any arbitration arising from this agreement to arbitrate, the
arbitrator will be required to issue a written arbitration decision that
clearly sets forth the essential findings on which that award is based.


 


(i)  Preservation of Remedies  Company and Officer understand and agree
that, in any arbitration arising from this agreement to arbitrate, the Officer
and the Company will preserve all remedies to which he or she would otherwise
be entitled in a court of law, except as limited under the terms of this
Agreement.


 


(j)  Necessary Minimum Standard of Discovery  Company and Officer understand and agree
that, in any arbitration arising from this agreement to arbitrate, the Company
and Officer will be entitled to discovery in accordance with the provisions of
California Code of Civil Procedure § 1283(a).


 


(k)  Knowing and Voluntary Agreement to
Arbitrate  Company and Officer have
been advised to consult with attorneys of their own choosing before agreeing to
arbitrate, and have had an opportunity to do so.


 


COMPANY AND OFFICER HAVE READ THIS AGREEMENT TO ARBITRATE
CAREFULLY AND UNDERSTAND THAT BY SIGNING IT, EACH IS WAIVING ALL RIGHTS TO A
TRIAL OR HEARING BEFORE A COURT OR JURY OR GOVERNMENT AGENCY OF ANY AND ALL DISPUTES
AS PROVIDED FOR HEREIN.


 


16. Severability. The
provisions of this Agreement shall be deemed severable, and the invalidity or
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof.


 


17. Entire Agreement.
This Agreement, as amended and restated (together with the Offer Letter, except
to the extent amended pursuant to this amended and restated Agreement, and
documents referenced herein and in the Offer Letter), constitutes the entire
agreement between the parties hereto and supersedes all prior agreements, if
any, understandings and arrangements, oral or otherwise, between the parties
hereto with respect to the subject matter hereof.


 


17

















 


IN WITNESS WHEREOF, the
Company has caused this Agreement, as amended and restated, to be executed by
its duly authorized officer and Officer has executed this Agreement, as amended
and restated, as of the day and year first above written.


 


	
   

  	
  RESTORATION HARDWARE, INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Patricia McKay

  	
   

  
	
   

  	
  Name:

  	
   Patricia McKay

  	
   

  
	
   

  	
  Title:

  	
  CFO

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  OFFICER

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Gary G. Friedman

  	
   

  
	
   

  	
  Signature

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name: Gary
  Friedman

  	
   

  
						



 


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