UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934
Date of Report
(Date of earliest event reported)
July 23, 2014

AMERICAN EAGLE OUTFITTERS, INC.
(Exact name of registrant as specified in its charter)

 
					
Delaware	 	1-33338	 	13-2721761	
(State or other jurisdiction
of incorporation)	 	(Commission
File Number)	 	(IRS Employer
Identification No.)	

77 Hot Metal Street
Pittsburgh, Pennsylvania	 	15203-2329	
(Address of principal executive offices)	 	(Zip Code)	
Registrant’s telephone number, including area code: (412) 432-3300
N/A
(Former name or former address, if changed since last report.)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
 
¨	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)	
 
¨	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)	
 
¨	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))	
 
¨	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))	

 

Item 1.01	Entry into a Material Definitive Agreement.	
On July 23, 2014, American Eagle Outfitters, Inc. (the “Company”) entered into a Third Amended and Restated Employment Agreement (the “Employment Agreement”) with Roger S. Markfield, the Company’s Vice Chairman and Executive Creative Director. Under the Employment Agreement, Mr. Markfield continues to serve as Vice Chairman and Executive Creative Director of the Company during the Company’s 2014 and 2015 fiscal years, until February 1, 2016 (the “Active Term”). Mr. Markfield’s annual base salary under the Employment Agreement is $1,188,000 during the Active Term.
In addition to his base salary, Mr. Markfield is also eligible to receive the following:
 
 	•	 	an annual performance-based incentive bonus targeted at 150% of his base salary with potential to receive up to 300% of base salary during the Active Term;	
 
 	•	 	for each fiscal year of the Active Term, grants of restricted stock units (RSUs) consisting of time-based RSUs with a grant date value of $1,680,000, performance-based RSUs with a one-year performance period and a grant date value of $1,700,000 and performance-based RSUs with a three-year performance period and a grant date value of $3,920,000. The number of shares of the Company’s common stock underlying each RSU is determined by dividing the grant date value by the closing price of the Company’s common stock on the grant date. Mr. Markfield’s RSU awards for the 2014 fiscal year were granted on March 5, 2014, and are described further in the Company’s current report on Form 8-K filed with the SEC on March 11, 2014; and	
 
 	•	 	payment of $6 million earned under his prior employment agreement payable in equal installments of $1.5 million commencing on February 1, 2014 and each anniversary thereof through February 2017. Payment of such amounts is accelerated upon Mr. Markfield’s death or a qualifying change of control of the Company.	
Following termination of employment (other than on account of death or by the Company for cause), Mr. Markfield is generally obligated to provide consulting services to the Company until he terminates the consulting arrangement, or the Company terminates the consulting arrangement for cause. Mr. Markfield will receive an annual consulting fee of up to $500,000 (with that amount subject to downward adjustment in the event Mr. Markfield resigns prior to the end of the Active Term based on a formula that takes into account his completed months of employment during the Active Term). Upon termination of employment for any reason, the Company will make available retirement health insurance to Mr. Markfield and his eligible dependents (with premiums paid by Mr. Markfield). Mr. Markfield is subject to nonsolicitation, noncompetition and perpetual confidentiality covenants. During the term of the Agreement (including the consulting period) and for two years thereafter, Mr. Markfield is restricted from (i) soliciting any of the Company’s employees or inducing them to terminate employment with the Company, (ii) soliciting or otherwise inducing any customers, suppliers, sales representatives or other business relations of the Company to discontinue doing business with the Company, and (iii) performing services for any business that directly competes with the Company’s business.
 
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In order for the Company to avoid a loss of deductions for fiscal 2015 by exceeding the $1 million limitation on non-performance-based compensation under Section 162(m) of the Internal Revenue Code, Mr. Markfield has agreed to defer a portion of his 2015 salary under the Company’s deferred compensation plan in an amount equal to $188,000. The Company may also delay payment of all or a portion of the $1.5 million February 1, 2015 installment payment and credit such amount to a bookkeeping account established by the Company with interest credited at 4% compounded annually. Amounts credited to the bookkeeping account shall be payable to Mr. Markfield upon termination of employment and amounts deferred under the deferred compensation plan shall be adjusted for earnings and paid in accordance with the provisions of such plan.
The foregoing description is qualified in its entirety by reference to the Employment Agreement, which is filed with this Current Report on Form 8-K as Exhibit 10.1 and is incorporated herein by reference.
 
Item 1.02	Termination of a Material Definitive Agreement.	
The information included in Item 1.01 is incorporated by reference into this Item 1.02.
 
Item 5.02	Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.	
The information included in Item 1.01 is incorporated by reference into this Item 5.02.
 
Item 9.01	Financial Statements and Exhibits.	
 
 	(d)	Exhibits	

Exhibit No.	  	Description	
		
10.1	  	Third Amended and Restated Employment Agreement, dated July 23, 2014, between the Company and Roger S. Markfield.	
 
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	 		 	AMERICAN EAGLE OUTFITTERS, INC.
(Registrant)	
				
Date:  July 25, 2014	 		 	By:	 	/s/ Charles P. Sandel	
	 		 		 	Charles P. Sandel	
	 		 		 	Senior Vice President, General Counsel	
 
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EXHIBIT INDEX

Exhibit No.	  	Description	
		
10.1	  	Third Amended and Restated Employment Agreement, dated July 23, 2014, between the Company and Roger S. Markfield.	
 
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Exhibit 10.1
THIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT
(Roger S. Markfield)
THIS AGREEMENT is by and between American Eagle Outfitters, Inc. (“Company”) and Roger S. Markfield (“Executive”), is dated as of July 23, 2014, and is effective as of the “Effective Date” (as defined below). It supersedes and replaces all prior employment agreements between the Company and Executive.
Executive has served the Company in various roles since 1993 and Executive desires to continue to provide services to Company as provided in this Agreement. Company agrees to continue to employ Executive in the position of Vice-Chairman and Executive Creative Director; and Executive hereby accepts this offer of continued employment and agrees to serve Company subject to the general supervision, advice and direction of Company’s Board of Directors (“Board”) and Chairman of the Board (“Chairman”), and upon the following terms and conditions:
1. TERM . Executive will be employed on a full time basis for the period commencing on February 2, 2014 (the “Effective Date”) and ending on February 1, 2016, unless sooner terminated as provided herein (the “Active Term”); and this Agreement shall continue after the Active Term on the terms set forth in Section 3.10.
2. POSITION AND DUTIES . During the Active Term, Executive shall be employed on a full time basis as Company’s Vice-Chairman and Executive Creative Director, with such authority and duties as are customary for this position, and shall perform such other services and duties as the Chairman and Board may from time to time designate.
2.1. During the Active Term, Executive agrees to devote his full business time, best efforts, and undivided attention to the business and affairs of Company, except for any vacations, illness, or disability. During the Active Term, Executive shall not engage in any other businesses that would interfere with his duties, provided that nothing contained herein is intended to limit Executive’s right to make passive investments in the securities of publicly-owned companies or other businesses which will not interfere or conflict with his duties hereunder or, with the prior consent of the Board, to sit on the boards of other businesses.
2.2. Executive agrees that he shall at all times observe and be bound by all rules, policies, practices, and resolutions heretofore or hereafter adopted in writing by the Company which are generally applicable and provided to Company’s officers and employees and which do not otherwise conflict with this Agreement.
2.3. Company shall indemnify Executive in the performance of his duties and responsibilities and advance expenses in connection therewith to the same extent as other senior executives and officers. Such rights shall not be subject to arbitration under Section 6.1.
3. COMPENSATION .
3.1. Base Salary . During the Active Term, Company shall continue to pay Executive an annual base salary of $1,188,000 as compensation for his services hereunder, payable in equal installments in accordance with Company’s payroll practices for executive employees. During the Active Term Company’s Board may increase, but not decrease, Executive’s base salary at their discretion.

3.2. Cash Bonuses . Annual Incentive Bonus . During the Active Term, Executive will be eligible to receive an annual incentive bonus targeted at 150% of his base salary with potential to receive up to 300% of base salary as a ‘maximum’ bonus, under the Company’s Annual Cash Incentive Plan, or any successor plan (the “Bonus Plan”). The Bonus Plan conditions the payment of this annual performance bonus based on achievement of pre-determined performance goals set forth in writing and based on objective measurements all established by the Board’s Compensation Committee (the “Committee”). The Committee must verify that the performance goals and other material terms are met prior to payment. It is the parties’ intention that the Bonus Plan be adopted and administered in a manner that enables Company to deduct for federal income tax purposes the amount of any annual incentive bonus. The incentive bonus determined to be due for a performance period, if any, will be paid within 75 calendar days after the close of the performance period upon certification by the Committee that the performance goals have been met, and also, in the case of fiscal year goals, after completion of an outside audit by Company’s then current outside audit firm.
3.3. Equity Awards.
3.3.1. Fiscal 2014 Awards . On March 5, 2014, Executive was granted an award of time-based Restricted Stock Units (“RSUs”) and two Long-Term Performance Restricted Stock Unit awards (each, an “LTPRSU”) pursuant to and subject to all terms and conditions set forth in the 2005 Stock Award and Incentive Plan, as it may be amended from time to time, and award agreements issued thereunder.
3.3.2. Fiscal 2015 Awards . For fiscal 2015, the Executive shall be eligible for equity award grants in an amount equal to $7.3 million in the same form of awards (i.e., RSUs, PRSUs with a one-year performance period and PRSUs with a three-year performance period) with the same relative amounts as the fiscal 2014 awards, with the number of shares subject to each such award based on the closing price of the Company’s common stock on the grant date, all as determined by the Committee.
3.4. Vacation . During the Active Term of this Agreement, Executive shall be entitled to vacation commensurate with other senior executives. The dates of said vacations shall be mutually agreed upon by Company’s Chairman and Executive.
3.5. Business Expenses . Company shall pay, advance or reimburse Executive for all normal and reasonable business-related expenses, including travel expenses, incurred in the performance of his duties during the Active Term on the same basis as paid to other senior executives. Company shall furnish Executive with company credit cards provided to other senior executives for use solely in the performance of his duties. Company will also pay for legal expenses, for purposes of assistance with this Agreement, up to $15,000 as a one-time expense. The amount of expenses eligible for reimbursement during a taxable year of Executive shall not affect the expenses eligible for reimbursement in any other taxable year.
 
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3.6. Taxes . The compensation provided to Executive hereunder shall be subject to any withholdings and deductions required by any applicable tax laws.
3.7. Benefit Plans . Executive is entitled to participate in any deferred compensation or other employee welfare benefit plans, including the profit sharing and 401(k) plan; group life, health, hospitalization and disability insurance plans; discount privileges; and other employee welfare benefits made available generally to, and under the same terms as, Company’s executives. During the Active Term, Company will provide Executive with a single luxury automobile for both business and personal use. Any amount included in Executive’s W-2 wages relative to such automobile shall not be grossed up for tax purposes.
3.8. Extension Amount Under Prior Agreement .
3.8.1. Executive has heretofore earned the right to receive from the Company payment in the sum of $6,000,000 (the “Extension Amount”) payable in four equal installments on February 1, 2014 and each anniversary thereof through February 1, 2017 (each installment, an “Extension Installment”). The parties acknowledge that the February 2014 Extension Installment has been paid by Company and received by Executive. Company agrees that Executive’s right to receive the unpaid portion of the Extension Amount is fully vested and is not subject to forfeiture in the event of Executive’s termination for cause, a “change in control” or for any other reason. The parties agree that all or a portion of the February 2015 Extension Installment (the “ 2015 Extension Installment”) may be subject to deferral as set forth in Section 3.9.
3.8.2. Notwithstanding the foregoing, if there is at any time a “change in control” as that term is defined in the Company 2014 Stock Award and Incentive Plan (the “2014 Stock Plan”) which also qualifies as a payment event under Treasury Reg. Section 1.409A-3(a)(5), the Company shall thereupon pay Executive any unpaid Extension Installment, in full, within 10 days of the change in control.
3.9. Deferral Under Section 409A of the Internal Revenue Code .
3.9.1. The Executive agrees that if he is employed hereunder on January 1, 2015, the Company may delay all or a portion of the 2015 Extension Installment in accordance with Treasury Reg. Section 1.409A-2(b)(7) to the extent that the Company reasonably anticipates that payment thereof on February 1, 2015 would result in a loss of a deduction to the Company under Section 162(m) of the Internal Revenue Code of 1986, as amended (the “Code”). To the extent payment of the 2015 Extension Installment is delayed, such Installment shall be credited to a deferred compensation bookkeeping account established by the Company on its books for the benefit of the Executive (a “Deferred Compensation Account”) as of February 1, 2015. Interest shall be credited to the balance in the Deferred Compensation Account at a rate of 4% (compounded annually) for the 2015 Extension Installment from February 1, 2015.
3.9.2. Executive agrees to defer a portion of the Base Salary otherwise payable in 2015 in an amount equal to $188,000 in accordance with the terms of the Company’s Deferred Compensation Plan and any such deferred amount shall be payable in accordance with the terms of such plan.
3.9.3. Not later than each December 15 during the Active Term, the Company shall advise the Executive if any further deferral of compensation due to be paid hereunder in the current or following year shall be necessary pursuant to Treasury Reg. Section
 
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1.409A-2(b)(7)(i) so that no payments to the Executive hereunder are reasonably anticipated by the Company to result in a loss of a deduction to the Company under Section 162(m) of the Code if paid in accordance hereunder. Executive agrees to take any action which may be required in order to implement such further deferrals in a timely manner as determined by the Company.
3.9.4 Subject to Section 7.11, the balance in the Deferred Compensation Account shall be paid upon Executive’s termination of employment in accordance with the applicable subsection of Article 5.
3.10. Consulting Agreement .
3.10.1. Upon termination of the Active Term for any reason as described in Article 5 other than by the Company for cause or due to death of the Executive, the Executive shall provide consulting services from the date immediately following termination of the Active Term for the remainder of the Executive’s life unless such obligation is terminated sooner by (i) the Executive by giving not less than 90 days written notice to the Company or (ii) the Company for cause in accordance with Section 5.5 (the term of such consulting obligation, the “Consulting Period”). The Company agrees to pay Executive the sum of $500,000 per annum during the Consulting Period payable in monthly installments (the “Consulting Fee”); provided, however, that the Consulting Fee shall be reduced based on the proportionate number of months served during the 24-month Active Term, if and only if, the Executive resigns his employment during the period from February 1, 2015 prior to January 31, 2016. For example purposes only, if Executive were to resign effective August 1, 2015, he would have been employed for three-fourths of the Active Term, and his Consulting Fee would be three-fourths of $500,000, thus $375,000 per annum.
3.10.2. During the Consulting Period, the Executive shall (i) provide general consulting services to the Company, including assistance in the transition to a new chief merchandising officer, completion of any pending projects, handoff of third party relationships, strategic planning, and provision of such other advice, expertise or knowledge with respect to his duties as executive creative director of the Company as may be reasonably requested by the Board or the Chairman from time to time (including, without limitation, attending in-person meetings with the new chief merchandising officer or such other persons as the Chairman may designate), (ii) provide assistance to the Company and its advisors in connection with any audit, investigation or administrative, regulatory or judicial proceeding involving matters within the scope of his duties and responsibilities to the Company during his employment with the Company, or as to which he otherwise has knowledge (including being available to the Company upon reasonable notice for interviews and factual investigations, and appearing at the Company’s reasonable request to give testimony without requiring service of a subpoena or other legal process), and (iii) make himself reasonably available to consult on specific projects for the Company, as may be reasonably requested from time to time by the Board or the Chairman (collectively, the “Consulting Services”). Such Consulting Services shall be performed at such times and places as are mutually agreed upon by the Executive and the Company. Notwithstanding the above, the time spent providing the above services by the Executive during the Consulting Period shall not exceed 20 percent of the average level of services performed by the Executive for the Company during the 36 consecutive monthly period ending on the last day of the Active Term.
3.10.3. The Company shall reimburse the Executive for (i) reasonable out-of-pocket expenses (including meals and first-class travel and lodging ) incurred by the
 
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Executive in connection with the Consulting Services, and (ii) without limiting the preceding clause (i), the Company shall provide to Executive, or reimburse the Executive for the cost of, a personal assistant for not more than 10 hours per week during the Consulting Period, in each case subject to reasonable documentation and compliance with the Company’s standard expense reimbursement policy.
3.10.4. The Executive acknowledges and agrees that, during the Consulting Period, the Executive’s status at all times shall be that of an independent contractor and not an employee, and that the Executive may not, at any time, act as a representative for or on behalf of the Company for any purpose or transaction, and may not bind or otherwise obligate the Company in any manner whatsoever without obtaining the prior written approval of the Company therefor. The Company and the Executive hereby acknowledge and agree that all Consulting Fees shall represent fees for services as an independent contractor, and shall therefore be paid without any deductions or withholdings taken therefrom for taxes or for any other purpose and shall not be subject to deferral under Section 3.9 above. The Executive further acknowledges that the Company makes no warranties as to any tax consequences regarding payment of such fees, and specifically agrees that the determination of any tax liability or other consequences of any payment made hereunder is the Executive’s sole and complete responsibility and that the Executive will pay all taxes, if any, assessed on such payments under the applicable laws of any Federal, state, local or other jurisdiction and, to the extent not so paid, will indemnify the Company for any taxes so assessed against the Company. Except as set forth in Section 5.7, the Executive also agrees that during the Consulting Period, the Executive shall not be eligible to participate in any of the employee benefit plans or arrangements of the Company.
4. EXECUTIVE’S OBLIGATIONS .
4.1. Confidential Information . Executive agrees that during and after his employment, any “confidential information” as defined below shall be held in confidence and treated as proprietary to Company. Executive agrees not to use or disclose any confidential information except to promote and advance the business interests of Company. Executive agrees that upon his separation from employment, for any reason whatsoever, he shall not take or copy, and shall immediately return to Company, any documents that constitute or contain confidential information. “Confidential information” includes, but is not limited to, any confidential data, figures, projections, estimates, pricing data, customer lists, buying manuals or procedures, distribution manuals or procedures, other policy and procedure manuals or handbooks, supplier information, tax records, personnel histories and records, company phone directories, lists of associates, organizational charts, information regarding sales, information regarding properties, product designs, design processes, manufacturing processes, information regarding manufacturers and suppliers and any other confidential information regarding the business, operations, properties or personnel of Company which are disclosed to or learned by Executive as a result of his employment, but shall not include his personal personnel records. Confidential information shall not include any information that (i) Executive had in his possession prior to his first performing services for Company; (ii) becomes a matter of public knowledge thereafter through sources independent of Executive; (iii) is disclosed by Company without restriction on its use; or (iv) is required to be disclosed by law or governmental order or regulation.
 
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4.2. Non-Solicitation .
4.2.1. Employees . Executive agrees that during his employment, and during the Consulting Period, and for two years following the end of the Consulting Period in accordance with Section 3.10.1, he shall not, directly or indirectly, solicit Company’s employees to leave their employment; he shall not employ or seek to employ them; and, he shall not cause or induce any of Company’s competitors to solicit or employ Company’s employees.
4.2.2. Third Parties . Executive agrees that during his employment, and during the Consulting Period, and for two years following the end of the Consulting Period in accordance with Section 3.10.1, he shall not, either directly or indirectly, recruit, solicit or otherwise induce or influence any customer, supplier, sales representative, lender, lessor or any other person having a business relationship with Company to discontinue or reduce the extent of such relationship except in the course of his duties pursuant to this Agreement and with the good faith objective of advancing Company’s business interests.
4.3. Noncompetition . Executive agrees that during his employment, and during the Consulting Period, and for two years following the end of the Consulting Period in accordance with Section 3.10.1, he shall not, either directly or indirectly, accept employment with, act as a consultant to, or otherwise perform the same services (which shall be determined regardless of job title) for any business that directly competes with Company’s business, which is understood to be the design, manufacture and retail sale (including Internet sales) of mens or womens specialty clothing, accessories, shoes, and related items regardless of whether such items are now included in Company’s merchandise mix.
4.4. Cooperation .
4.4.1. With Company . Executive agrees to cooperate with Company during the course of all third-party proceedings arising out of Company’s business about which Executive has knowledge or information. Such proceedings may include, but are not limited to, internal investigations, administrative investigations or proceedings, and lawsuits (including pre-trial discovery). For purposes of this section, cooperation includes, but is not limited to, Executive’s making himself available for interviews, meetings, depositions, hearings, and/or trials without the need for subpoena or assurances by Company, providing any and all documents in his possession that relate to the proceeding, and providing assistance in locating any and all relevant notes and/or documents.
4.4.2. With Third Parties . Executive agrees to communicate with, or give statements to, third parties relating to any matter about which Executive has knowledge or information as a result of his employment only to the extent that it is Executive’s good faith belief that such communication or statement is in Company’s business interests; provided, however, the forgoing shall not restrict or prevent Executive from providing information to governmental or regulatory authorities as required by law.
4.4.3. With Media . Executive agrees to communicate with, or give statements to, any member of the media (print, television or radio) relating to any matter about which Executive has knowledge or information as a result of his employment only to the extent that it is Executive’s good faith belief that such communication or statement is in Company’s business interests and, to the extent practical, as approved in advance by the Chairman.
 
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4.5. Remedies . Executive agrees that any disputes under Section 4 shall not be subject to arbitration. If Executive breaches this section, the damage will be substantial, although difficult to quantify, and money damages may not afford Company an adequate remedy; therefore, if Employee breaches or threatens to breach this section, Company shall be entitled, in addition to other rights and remedies, to specific performance, injunctive relief and other equitable relief to prevent or restrain such conduct.
5. TERMINATION AND RELATED BENEFITS .
5.1. Death . This Agreement shall terminate automatically upon Executive’s death. Upon such termination, Company shall pay Executive’s estate as follows: (a) base salary earned but unpaid as of termination, payable within 30 days; (b) any annual cash incentive bonus for the year in which the termination occurred, prorated based on the number of days of Executive’s full time employment during the fiscal year to the extent the performance goals applicable to such bonus are met for such year, even though Executive was not employed for the entire fiscal year, payable in accordance with Company policy for such incentive bonus; (c) any unvested, non-performance based restricted stock unit awards, which shall vest in accordance with their terms, and any vested restricted stock unit awards, all of which shall become payable within 30 days; (d) any unvested, non-performance based stock options, which shall automatically vest and be exercisable until the earlier of (i) the expiration date set forth in the stock option award agreement or (ii) one year after the Executive’s death; and (e) unvested, performance-based, restricted stock unit awards and stock options shall continue to vest and be earned and exercisable in accordance with the plan under which they were granted. All vested stock options at the time of termination shall be exercisable until the earlier of (i) the expiration date set forth in the stock option award agreement or (ii) one year after the Executive’s death. Within 60 days, the Company shall also pay the Executive’s estate the balance in the Deferred Compensation Account and any Extension Installments not paid or deferred under Section 3.8 or 3.9.
5.2. Permanent Disability . The Active Term shall terminate upon Executive’s permanent disability after written notice by Company to Executive, at which time the Consulting Period shall commence. For the purposes of this Agreement, “permanent disability” shall mean that Executive fails to perform his duties on a full-time basis for a period of more than 90 calendar days during any 12-month period, due to a physical or mental disability or infirmity. Upon termination due to permanent disability, the Company shall pay Executive as follows: (a) base salary earned but unpaid as of termination, payable within 30 days; (b) any annual cash incentive bonus for the year in which the termination occurred, prorated based on the number of days of Executive’s full time employment during the fiscal year to the extent the performance goals applicable to such bonus are met for such year, even though Executive was not employed for the entire fiscal year, payable in accordance with Company policy for such incentive bonus; (c) any unvested, non-performance based restricted stock unit awards, which shall vest in accordance with their terms, and any vested restricted stock unit awards, all of which shall become payable within 30 days; (d) any unvested, non-performance based stock options, which shall automatically vest and be exercisable until the earlier of (i) the expiration date set forth in the stock option award
 
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agreement or (ii) one year after the Executive’s termination due to permanent disability; (e) unvested, performance-based, restricted stock unit awards and stock options shall continue to vest and be earned and exercisable in accordance with the plan under which they were granted; (f) subject to Section 7.11, the balance in the Deferred Compensation Account payable within 60 days: and (g) any Extension Installments not yet paid or deferred under Section 3.8 or 3.9 as scheduled to be paid under Section 3.8. All vested stock options at the time of termination shall be exercisable until the earlier of (i) the expiration date set forth in the stock option award agreement or (ii) one year after the Executive’s termination due to permanent disability.
5.3. Completion of Active Term . Upon completion of the Active Term by Executive through February 1, 2016, the Consulting Period shall commence, and Company shall pay Executive as follows: (a) base salary earned but unpaid as of completion, payable within 30 days; (b) any annual cash incentive bonus for the 2015 fiscal year, to the extent the performance goals applicable to such bonus are met for such year, payable in accordance with Company policy for such incentive bonus; (c) any unvested restricted stock unit awards and any unvested stock options shall continue to vest and be earned and exercisable in accordance with the plan under which they were granted; (d) any vested restricted stock unit awards and any vested stock options shall be awarded and exercisable in accordance with the plan under which they were granted; (e) subject to Section 7.11, the balance in the Deferred Compensation Account payable within 60 days; and (f) any Extension Installments not yet paid or deferred under Section 3.8 or Section 3.9 as scheduled to be paid under Section 3.8.
5.4. Termination By Company Without Cause . Company shall have the right to terminate the Active Term, for any reason upon 30 days’ written notice to Executive. Company may, in its sole discretion, require Executive to cease active employment immediately. Upon termination by Company without cause, the Consulting Period shall commence, and Company shall pay Executive: (a) base salary earned but unpaid as of termination, payable within 30 days; (b) any annual cash incentive bonus for the applicable fiscal year in which the termination occurred, to the extent the performance goals applicable to such bonus are met without proration for the 2014 fiscal year, even though Executive was not employed for the entire fiscal year, or a prorated portion of such bonus for the 2015 fiscal year based on the number of days of Executive’s full time employment during the 2015 fiscal year, payable in accordance with Company policy for such incentive bonus; (c) any unvested, non-performance based restricted stock unit awards, which shall vest in accordance with their terms, and any vested restricted stock unit awards, all of which shall become payable within 30 days; (d) any unvested, non-performance based stock options, which shall automatically vest and be exercisable until the earlier of (i) the expiration date set forth in the stock option award agreement or (ii) one year after the Executive’s termination; (e) unvested, performance-based, restricted stock unit awards and stock options shall continue to vest and be earned and exercisable in accordance with the plan under which they were granted; (f) subject to Section 7.11, the balance in the Deferred Compensation Account payable within 60 days; and (g) any Extension Installments not yet paid or deferred under Section 3.8 or 3.9 as scheduled to be paid under Section 3.8. All vested stock options at the time of termination shall be exercisable until the earlier of (i) the expiration date set forth in the stock option award agreement or (ii) one year after the Executive’s termination.
 
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5.5. Termination by Company For Cause . Company may terminate this Agreement at any time if it has “cause” to do so; provided, however, that during the Consulting Period, Company may not terminate this Agreement pursuant to subsection (ii) below if Executive is disabled as described in Section 5.2 above. For purposes of this section, the term “cause” means the following:
(i) willful violation of laws and regulations governing Company;
(ii) willful failure to substantially comply with any material terms of this Agreement, provided Company shall make a written demand for substantial compliance setting forth the specific reason(s) for same and Executive shall have 60 days to cure, if possible;
(iii) willful breach of fiduciary duties;
(iv) willful damage, willful misrepresentation, willful dishonesty, or other willful conduct which Company determines has had or is likely to have a material adverse effect upon Company’s operations, assets, reputation or financial conditions; or
(v) willful breach of any stated material employment policy of Company.
Failure to meet performance targets and measures shall not constitute “cause” as that term is used herein. Executive may have an opportunity to be heard by the Board prior to a termination for cause. For purposes of this section, Executive’s acts or omissions shall be considered “willful” if done without a good faith, reasonable belief that such act or omission was in Company’s best interest. Upon termination of this Agreement by Company for cause, Company shall pay Executive: (a) base salary earned but unpaid as of termination, payable within 30 days; (b) subject to Section 7.11, the balance in the Deferred Compensation Account payable within 60 days; and (c) any Extension Installment not yet paid or deferred under Section 3.8 or 3.9 as scheduled to be paid under Section 3.8. All other rights or benefits that have vested, including any declared but unpaid annual incentive cash bonus shall be forfeited in their entirety as will all unvested equity awards.
5.6. Termination by the Executive . Executive may terminate the Active Term on or after February 1, 2015 by giving not less than 60 days prior written notice to the Company with such notice to be given no earlier than December 1, 2014. Upon such termination, the Consulting Period shall commence, and Company shall pay to Executive: (a) base salary earned but unpaid as of termination, payable within 30 days; (b) any unpaid annual cash incentive bonus for the 2014 fiscal year if the termination occurs in the 2015 fiscal year, to the extent the performance goals applicable to such bonus are met for the 2014 fiscal year, payable in accordance with Company policy for such incentive bonus; (c) any unvested restricted stock unit awards and any unvested stock options shall continue to vest and be earned and exercisable in accordance with the plan under which they were granted; (d) any vested restricted stock unit awards and any vested stock options shall be awarded and exercisable in accordance with the plan under which they were granted; (e) subject to Section 7.11, the balance in the Deferred Compensation Account payable within 60 days; and (f) each Extension Installment not yet paid or deferred under Section 3.8 or 3.9 as scheduled to be paid thereunder.
 
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5.7. Retirement Health Insurance . Upon termination of Executive’s employment with Company for any reason, Company shall make available to Executive for Executive and his eligible dependents for his lifetime retirement health insurance made available generally to, and under the same terms as the Company’s other former executives which the Company reserves the right to uniformly discontinue with respect to all former executives. Executive will pay all associated premiums for coverage.
5.8. Treatment of Outstanding Equity Awards . Notwithstanding anything contained in Sections 5.1 through 5.6 hereof to the contrary, the treatment of any outstanding equity awards granted to the Executive prior to the date of execution of this Agreement in connection with a termination of employment for any reason shall be governed by the terms and conditions of the applicable equity plan and the grant agreements reflecting such awards, to the extent such treatment is inconsistent with Sections 5.1 through 5.6 hereof.
6. DISPUTE RESOLUTION .
6.1. Arbitration . Except as provided in Section 2.3 and in Section 4.5, the parties agree that arbitration shall be the sole and exclusive remedy to redress any dispute, claim or controversy involving the interpretation of this Agreement or the terms, conditions or termination of this Agreement or the terms, conditions or termination of Executive’s employment with Company. The parties intend that any arbitration award shall be final and binding and that a judgment on the award may be entered in any court of competent jurisdiction and enforcement may be had according to its terms. This Section shall survive the termination or expiration of this Agreement.
6.1.1. Arbitration shall be held in Pittsburgh, PA, and shall be conducted by a retired federal judge or other qualified arbitrator mutually agreed upon by the parties in accordance with the Voluntary Arbitration Rules of the American Arbitration Association then in effect. The parties shall have the right to conduct discovery pursuant the Federal Rules of Civil Procedure; provided, however, that the Arbitrator shall have the authority to establish an expedited discovery schedule and cutoff and to resolve any discovery disputes. The Arbitrator shall not have jurisdiction or authority to change any provision of this Agreement by alterations of, additions to or subtractions from the terms hereof. The Arbitrator’s sole authority in this regard shall be to interpret or apply any provision(s) of this Agreement. The Arbitrator shall be limited to awarding compensatory damages, including unpaid wages or benefits, but shall have no authority to award punitive, exemplary or similar-type damages.
6.1.2. Any claim or controversy not sought to be submitted to arbitration, in writing, within 180 days of when it arose shall be deemed waived and the moving party shall have no further right to seek arbitration or recovery with respect to such claim or controversy.
6.1.3. The arbitrator shall be entitled to award expenses, including the costs of the proceeding, and reasonable counsel fees.
6.1.4. The parties hereby acknowledge that since arbitration is the exclusive remedy (other than as provided in Section 2.3 and Section 4.5), neither party has the
 
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right to resort to any federal, state or local court or administrative agency concerning breaches of this Agreement, except as otherwise provided in Section 2.3 or Section 4.5, and that the decision of the arbitrator shall be a complete defense to any suit, action or proceeding instituted in any federal, state or local court before any administrative agency with respect to any arbitrable claim or controversy.
6.2. Consent to Jurisdiction . To the extent that any court action is permitted consistent with or to enforce Sections 2.3 or 4.5 of this Agreement, the parties hereby consent to the jurisdiction of the appropriate state or federal court located in Pittsburgh, Pennsylvania. Accordingly, with respect to any such court action, the parties hereto (a) submit to the personal jurisdiction of such courts; (b) consent to service of process at the address determined pursuant to the provisions of Section 7.8 hereof; and (c) waive any other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction or service of process.
7. GENERAL PROVISIONS .
7.1. The parties agree that the covenants and promises set forth in Sections 4, 5 and 6 shall survive the termination of this Agreement and continue in full force and effect.
7.2. Except as otherwise provided in Section 6.1.2 above, failure to insist upon strict compliance with any term hereof shall not be considered a waiver of any such term.
7.3. This Agreement along with any other document or policy or practice referenced herein (which are collectively referred to as “Agreement” herein), contain the entire agreement of the parties regarding Executive’s employment and supersede any prior written or oral agreements or understandings relating to the same, including without limitation any version of this Agreement dated prior to the date hereof. No modification or amendment of this Agreement shall be valid unless in writing and signed by or on behalf of both parties.
7.4. If Executive’s full-time employment terminates, for any reason whatsoever, he shall immediately tender to the Board his written resignation from the Board, which resignation the Board may or may not accept.
7.5. Once signed by both parties, this Agreement shall be binding upon and shall inure to the benefit of the heirs, successors, and assigns of the parties.
7.6. This Agreement is intended to be performed in accordance with, and only to the extent permitted by, all applicable laws, ordinances, rules and regulations. If any provisions of this Agreement, or the application thereof to any person or circumstance, shall, for any reason and to any extent, be held invalid or unenforceable, such invalidity and unenforceability shall not affect the remaining provisions hereof and the application of such provisions to other persons or circumstances, all of which shall be enforced to the greatest extent permitted by law.
7.7. The validity, construction, and interpretation of this Agreement and the rights and duties of the parties hereto shall be governed by the laws of the State of Pennsylvania, without reference to the Pennsylvania choice of law rules.
 
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7.8. Any written notice required or permitted hereunder shall be mailed, certified mail (return receipt requested) or hand-delivered, addressed to Company’s Chairman at Company’s then principal office, or to Executive at the most recent home address on his paycheck. Notices are effective upon receipt.
7.9. The rights of Executive under this Agreement shall be solely those of an unsecured general creditor of Company.
7.10. The headings in this Agreement are inserted for convenience of reference only and shall not be a part of or control or affect the meaning of any provision hereof.
7.11. Notwithstanding anything in this Agreement to the contrary, if, when Executive’s employment with Company terminates, Company believes that any payments under this Agreement otherwise would result in additional tax or interest to Executive under Section 409A of the Code and the guidance promulgated thereunder (“Code Section 409A”), Company may suspend such payments due within the first six months after the termination date if Company reasonably believes that such suspension will cause such addition tax or interest to not apply. If Company suspends any payments, it will aggregate and pay these amounts to Executive on the earliest of (a) the date that is six months and one day after the termination date, (b) the date of the Executive’s death, or (c) any earlier date that does not result in such additional tax or interest under Code Section 409A. To the extent that any provisions of this Agreement do not comply with Code Section 409A which would cause Executive to incur any additional tax or interest under Code Section 409A, such terms of the Agreement shall be deemed to be modified, to the extent reasonably possible to do so, and applied in a manner to be consistent with Code Section 409A. In addition, any compensation deferred under the Company’s Deferred Compensation Plan, this Agreement or any other plan, policy or arrangement of Company shall be paid to Executive in accordance with the terms and conditions of the applicable arrangement following the date of his termination of employment for any reason in accordance with Executive’s payment elections on file.
 
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IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement consisting of 13 pages.

ROGER S. MARKFIELD	
	
/s/ Roger S. Markfield	
	
AMERICAN EAGLE OUTFITTERS, INC.	
		
By:	 	/s/ Mary M. Boland	
	 	Name: Mary M. Boland	
	 	Title: Executive Vice President, Chief Financial
          and Administrative Officer	
 
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