EMPLOYMENT AGREEMENT BETWEEN GOODY’S FAMILY CLOTHING, INC. AND DEVIN KEIL
Exhibit 10.103
TABLE OF CONTENTS
1. |
Definitions | 1 | ||
2. |
Employment | 2 | ||
3. |
Term | 3 | ||
4. |
Position and Duties; Business Time | 3 | ||
5. |
Compensation | 3 | ||
6. |
Termination of Employment | 6 | ||
7. |
Obligations of the Company Upon Termination | 6 | ||
8. |
Change of Control. | 9 | ||
9. |
Non-exclusivity of Rights. | 9 | ||
10. |
Full Settlement | 9 | ||
11. |
Arbitration of Disputes | 9 | ||
12. |
Confidential Information and Nonsolicitation | 9 | ||
13. |
Successors | 10 | ||
14. |
Miscellaneous | 10 |
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Exhibit 10.103
THIS EMPLOYMENT AGREEMENT (the “Agreement”), by and between GOODY’S FAMILY CLOTHING, INC., a Tennessee corporation (the “Company”), and XXXXX XXXX (the “Executive”), shall be effective as of the 12th day of July, 2004.
The Company plans to hire the Executive as the Senior Vice President of Real Estate of the Company and the Executive desires to accept such employment, upon terms and conditions set forth in this Agreement.
1. Definitions.
(a) “Accrued Obligations” shall mean (i) the Executive’s Base Salary through the Date of Termination, (ii) any amounts deferred by the Executive and not yet paid by the Company pursuant to a valid election to defer the receipt of all or a portion of such payments made in accordance with any plan of deferred compensation sponsored by the Company and any earned but unpaid vacation pay for the current year, (iii) any amounts or benefits owing to the Executive or to the Executive’s beneficiaries under the then applicable employee benefit plans or policies of the Company and (iv) any amounts owing to the Executive for reimbursement of expenses properly incurred by the Executive through the Date of Termination and which are reimbursable in accordance with the reimbursement policy of the Company described in Section 5(e).
(b) “Base Salary” shall have the meaning set forth in Section 5(a).
(c) “Board” shall mean the Board of Directors of the Company.
(d) “Cause” shall mean that the Executive has, in the judgment of a majority of the Board (i) committed a felony, or committed an act of fraud, embezzlement or theft in connection with his duties with the Company or in the course of his employment with the Company; (ii) willfully caused damage to property of the Company; (iii) been convicted of a criminal offense (either a misdemeanor involving acts of dishonesty, theft or moral turpitude, or a felony); or (iv) engaged in a willful and material breach of his obligations under Section 4 of this Agreement which breach (under this clause iv) has been communicated to the Executive with specificity by written notice, and which has not been cured to the reasonable satisfaction of the Board within a reasonable period of time, which shall not be less than ten (10) days, nor more than thirty (30) days, following receipt of such written notice by the Executive. The Board shall provide the Executive with an opportunity to meet with the Board in order to provide the Executive an opportunity to refute or
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Exhibit 10.103
explain acts or omissions referred to in such written notice. For the purpose of this Section, no act or omission shall be considered willful unless done or omitted to be done in bad faith and without reasonable belief that such act or omission was done in the best interest of the Company.
(e) A “Change of Control” of the Company shall mean and shall be deemed to have occurred if (i) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended (the “1934 Act Rules”)), other than Xxxxxx X. Xxxxxxxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx X. Xxxxxxxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, more than 50% of the outstanding voting securities of the Company or any successor entity of the Company, (ii) all or substantially all of the Company’s assets are sold or (iii) the shareholders of the Company approve a complete liquidation or dissolution of the Company.
(f) “Change of Control Date” shall mean (i) the closing date on which a Change of Control shall have occurred, (ii) in the case of a sale of all or substantially all of the Company’s assets, the closing date on which a Change of Control shall have occurred after shareholder approval is obtained, or (iii) in the case of complete liquidation or dissolution of the Company, the date on which shareholder approval is obtained.
(g) “Date of Termination” shall have the meaning set forth in Section 6(e).
(h) “Disability” shall mean disability whereby the Executive is unable to render the services provided for by this Agreement by reason of illness, injury or incapacity (whether physical, mental, emotional or psychological) for a period of either (i) ninety (90) consecutive days or (ii) one hundred eighty (180) days in any consecutive three hundred sixty-five (365) day period.
(i) “Incentive Bonus” shall have the meaning as set forth in Section 5(b).
(j) “Incentive Plan” shall have the meaning as set forth in Section 5(b).
(k) “Notice of Termination” shall have the meaning as set forth in Section 6(d).
(l) “Qualified Plan” shall mean any retirement plan maintained by the Company which is intended to meet the requirements of the Internal Revenue Code of 1986, as amended.
(m) “Subsidiary” shall mean any majority-owned subsidiary of the Company.
(n) “Supplemental Payment Date” shall have the same meaning as set forth in Section 7(c).
2. Employment. The Company has employed the Executive, and the Executive has agreed to be employed by the Company as Senior Vice President, Real Estate of the Company.
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Exhibit 10.103
4. Position and Duties; Business Time.
(i) time spent in managing his personal, financial and legal affairs and serving on corporate, civic or charitable boards or committees, in each case only if and to the extent not substantially interfering with the performance of such responsibilities, and
(ii) periods of vacation to which he is entitled, periods of illness and other absences beyond his control.
It is expressly understood and agreed that the continued service by the Executive on any boards and committees on which he is serving or with which he is otherwise associated immediately preceding the date hereof, or his service on any other boards and committees shall not be deemed to interfere with the performance of the Executive’s services to the Company; provided, that in the case of boards or committees on which the Executive is not currently serving the Executive provides written notice of his intention to serve and the Board thereafter approves such service (other than non-compensatory positions with local boards or committees e.g. charitable, chamber of commerce or homeowner associations which shall not require approval).
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Exhibit 10.103
(e) Other Perquisites. The Executive shall also be entitled to:
(i) prompt reimbursement for all reasonable expenses incurred by the Executive in accordance with the policies and procedures of the Company;
(ii) three (3) weeks paid vacation, such paid vacation time to be increased (but not decreased) in accordance with Company policy;
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Exhibit 10.103
(iii) an automobile allowance of $500 per month shall be paid by the Company together with gasoline expenses for such automobile in accordance with the Company’s policies and procedures with respect thereto. If Executive’s automobile travel warrants, Executive may chose to be assigned a Company automobile instead of receiving the above-described automobile allowance. Such Company automobile would be comparable to the then current model generally furnished by the Company to other Company associates with expenses to be paid in accordance with the Company’s policies and procedures with respect thereto; and
(iv) an office or offices suitable for an executive officer with secretarial and other assistance as shall reasonably be required by the Executive.
(i) all reasonable expenses of moving the Executive’s possessions from his Duluth, GA residence (the “Georgia Residence”) to the Executive’s new permanent residence in the Knoxville (the “Knoxville Residence”) metropolitan area;
(ii) all reasonable standard fees, commissions, closing costs and brokerage fees associated with the sale of the Georgia Residence (including reasonable attorney’s fees); and
In addition to the reimbursement and maximum payment described in (i) and (ii) directly above, the Company will also reimburse the Executive all reasonable standard fees and closing costs associated with the purchase of the Executive’s Knoxville Residence (including reasonable attorney’s fees).
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Exhibit 10.103
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Exhibit 10.103
Incentive Plan and further provided that the Executive has been employed by the Company for the first six (6) months of the then applicable fiscal year, to pay a cash amount equal to a portion of the Incentive Bonus, the product of a fraction, the numerator of which is the number of days elapsed since the date the Incentive Plan began for the applicable fiscal year through the date of the Disability or the date of death of the Executive, and the denominator of which is the total number of days of the applicable fiscal year for such Incentive Plan. Unless otherwise directed by the Executive (or, in the case of the Incentive Plan or a Qualified Plan, as may be required by such Incentive Plan or Qualified Plan) all Accrued Obligations shall be paid to the Executive, his beneficiaries or his estate, as applicable, in a lump sum in cash within thirty (30) days of the Date of Termination. In the event of the termination of the Executive by reason of retirement on or after the attainment of age sixty-five (65), death or Disability, he and/or his named beneficiaries, as the case may be, shall be entitled to the benefits available through the Company sponsored plans and programs. With regard to the termination of the Executive’s employment by reason of the Executive’s death, retirement on or after the attainment of age sixty-five (65) or Disability, the Company shall, for a period of six (6) months after the Executive’s Date of Termination, pay the entire COBRA premium under any Company medical and dental program that the Executive (and his spouse and eligible dependents) was participating in prior to the termination of employment. The Company’s premium obligations in the preceding two sentences shall exclude normal employee contributions paid by the Executive prior to the Date of Termination. In addition to the foregoing, in the event of termination of the Executive’s employment by reason of the death or Disability of the Executive, all unvested stock options held by the Executive shall become fully vested, effective on the Date of Termination, and shall thereafter be exercisable in accordance with the provisions of the applicable Option Plan (including, without limitation, Sections 5 and 6 thereof) and Option Agreement.
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Exhibit 10.103
(A) all Accrued Obligations;
(B) a cash amount equal to six (6) months of the Executive’s Base Salary at the rate in effect as of the date when the Notice of Termination was given;
(C) subject to the terms of the Incentive Plan and further provided that the Executive has been employed by the Company for the first six (6) months of the then applicable fiscal year, a cash amount equal to a portion of the Incentive Bonus, the product of a fraction, the numerator of which is the number of days elapsed since the date the Incentive Plan began for the applicable fiscal year through the date of such Termination or termination without Cause, and the denominator of which is the total number of days of the applicable fiscal year for such Incentive Plan.
In addition, if the Executive has not accepted employment from a subsequent employer prior to the date which is seven (7) months from the Date of Termination (the “Supplemental Payment Date”), commencing on the Supplemental Payment Date the Company shall pay the Executive an amount equal to fifty percent (50%) of his monthly Base Salary at the rate in effect as of the date when the Notice of Termination was given in equal monthly installments until the earlier of (i) the payment of the sixth (6th) monthly installment; or (ii) the date of the Executive’s acceptance of employment from a subsequent employer. As a condition of receiving any payment from the Company pursuant to this paragraph, the Executive agrees to diligently and in good faith pursue other employment opportunities after the Date of Termination and if requested by the Company, document such employment pursuits in writing to the Company. The Executive shall notify the Company immediately upon his acceptance of any such new employment if secured prior to the payment by the Company of such six (6) additional monthly installments.
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Exhibit 10.103
at the rate in effect as of the Change of Control Date. Such amount shall be payable in a lump sum in cash or certified check within five (5) days after the Change of Control Date.
11. Arbitration of Disputes. In the event that a claim for payment or benefits under this Agreement is disputed, the Company and the Executive agree to submit such dispute to final and binding arbitration with United States Arbitration and Mediation, Inc. (“USAM”) in Knoxville, Tennessee or such other arbitration firm as the Company and the Executive shall mutually agree. Either party wishing to arbitrate any claim hereunder shall notify the other party and USAM in writing whereupon USAM shall select a neutral arbitrator and shall schedule an arbitration hearing within thirty (30) days of receipt of such notice of arbitration. The arbitration shall be conducted in accordance with the rules and procedures of USAM. The parties agree that any arbitrator’s award may be presented to a court of competent jurisdiction and judgment entered thereon.
12. Confidential Information and Nonsolicitation.
(a) The Executive shall hold in a fiduciary capacity for the benefit of the Company all secret or confidential information, knowledge or data, including without limitation all trade secrets, relating to the Company, and its business, (i) obtained by the Executive during his employment by the Company, and (ii) which is not otherwise publicly known (other than by reason of an unauthorized act by the Executive) and is subject to efforts that are reasonable under the circumstances to maintain its secrecy. After termination of the Executive’s employment with the Company, the Executive shall not, without the prior written consent of the Company, unless compelled pursuant to an order of a court or other body having jurisdiction over such matter, communicate or divulge any such information, knowledge or data to anyone other than the Company and those designated by it.
(b) Upon termination of the Executive’s employment for any reason, the Executive, for the twelve (12) month period following the Notice of Termination, shall not, on his own behalf or on behalf of any person or entity, directly or indirectly solicit or aid in the solicitation of any employees of the Company to leave their employment. In the event the
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Exhibit 10.103
Executive violates the terms of Section 12(a) or this Section 12(b), the Employee shall forfeit the right to all salary and benefits that the Executive and/or his family members were otherwise entitled pursuant to the terms of Section 7. Also, in the event that this Section 12 is determined to be unenforceable in part, it shall be construed to be enforceable to the maximum extent permitted by law.
(c) The Executive agrees that the covenants of confidentiality and non-solicitation contained in this Section 12 are reasonable covenants under the circumstances and necessary to protect the business interests and properties of the Company. The Executive agrees that irreparable loss and damage will be suffered by the Company should the Executive breach any of the covenants contained in this Section 12. Accordingly, the Executive agrees that the Company, in addition to all remedies provided at law or in equity, shall be entitled to a temporary restraining order and temporary and permanent injunctions to prevent a breach or contemplated breach of any of the covenants contained in this Section 12.
(a) This Agreement is personal to the Executive and, without the prior written consent of the Company, shall not be assignable by the Executive otherwise than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by the Executive’s legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon the Company and its successors. The Company shall require any successor to all or substantially all of the business and/or assets of the Company, whether direct or indirect, by purchase, merger, consolidation, acquisition of stock, or otherwise, expressly to assume and agree to perform this Agreement in the same manner and to the same extent as the Company would be required to perform if no such succession had taken place.
(a) Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Tennessee, applied without reference to principles of conflict of laws.
(b) Amendments. This Agreement may not be amended or modified otherwise than by a written agreement executed by the parties hereto or their respective successors and legal representatives.
If to the Executive: at the address listed on the last page hereof |
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Exhibit 10.103
If to the Company: | Goody’s Family Clothing, Inc. | |||
400 Goody’s Lane | ||||
X.X. Xxx 00000 | ||||
Xxxxxxxxx, Xxxxxxxxx 00000-0000 | ||||
Attention: General Counsel |
(with a copy to the attention of the Secretary or to such other address as either party shall have furnished to the other in writing in accordance herewith). Communications delivered by hand or by overnight delivery shall be deemed received on the date of delivery and communications sent by registered or certified mail shall be deemed received three (3) business days after the sending thereof.
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Exhibit 10.103
GOODY’S FAMILY CLOTHING, INC. |
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By: | |||||
Xxxxxx X. Xxxxxxxxxx | |||||
Title: | Chairman and Chief Executive Officer | ||||
ATTEST: | |
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Title: | ||||
(CORPORATE SEAL) | ||||
EXECUTIVE: Xxxxx Xxxx |
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Name: | Xxxxx Xxxx | |||
Address: | ||||
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