Exhibit 10.44.1
ADDENDUM TO THE DECEMBER 7, 2000 EXECUTIVE EMPLOYMENT
AGREEMENT AND RESTRICTED STOCK AGREEMENT BY AND BETWEEN
XXXXXX XXXXXX AND VALUE CITY DEPARTMENT STORES
THIS ADDENDUM TO THE DECEMBER 7, 2000 EXECUTIVE EMPLOYMENT AGREEMENT
AND RESTRICTED STOCK AGREEMENT ("Addendum") is entered into by and between
Xxxxxx Xxxxxx ("Executive") and Value City Department Stores ("Company").
On December 7, 2000, Company and Executive entered into an Executive
Employment Agreement ("EEA") and a Restricted Stock Agreement ("RSA") that was
effective December 4, 2000. Also, reflected in the minutes of the Company's
Board of Directors at its meeting held on December 4, 2000, Executive received a
Stock Option Grant ("SOG") that was effective as of such December 4, 2000 date.
Through this Addendum, Company and Executive (collectively "parties") intend to
and will end Executive's employment as Vice Chairman and Chief Executive Officer
of the Company, effective April 6, 2002. Company and Executive further intend
and do hereby amend the EEA and RSA and SOG pursuant to the terms indicated
below. In accordance, the parties agree to the following terms and conditions in
consideration of the following promises and other good and valuable
consideration, the sufficiency of which is hereby acknowledged:
1. The parties mutually agree to the termination of Executive's
employment as Vice Chairman and Chief Executive Officer effective April 6, 2002,
and additionally agree that this termination is mutual and agreeable and that no
notice of termination is required. Executive will also resign as a member of the
Company's Board of Directors effective April 6, 2002.
2. CONSIDERATION. Company and Executive agree that the compensation
listed herein is the entirety of the consideration that Executive is now or ever
will be entitled to under the EEA and RSA and SOG, and that the consideration is
sufficient for the promises Executive makes herein.
a. Company agrees to pay to Executive a separation payment of
two-million four-hundred and fifty thousand dollars ($2,450,000), less
applicable withholding taxes, in a lump sum payment no later than April 6, 2002.
b. Company and Executive agree that Executive will not receive
any, and forfeits any rights to, any restricted stock under the EEA and the RSA,
and that the Executive will not receive any, and forfeits any right to, any
options to purchase common stock under the EEA and the SOG, except that stock
options vested as of April 6, 2002 may be exercised according to the SOG and the
applicable Company plan under which such options were granted. Executive and
Company agree that paragraph 3(d) of the EEA is hereby amended to discontinue
Executive's participation in the Company's Incentive Compensation Plan ("Plan")
and to disallow further payments to him out of the Plan, and that paragraph 9 of
the EEA and paragraph 4 of the RSA are hereby made completely void.
c. Company agrees to pay Executive's COBRA premiums for his
continued medical benefits through September 30, 2003; provided, however, that
if Executive becomes eligible for similar coverage under an individual benefit
plan, Executive will have the obligation
of informing the Company that he obtained other comparable coverage and the
Company will pay to Executive the monthly COBRA premiums until September 30,
2003; provided further, however, that the medical benefits will cease upon
Executive's becoming eligible for similar coverage under a group benefit plan.
d. The sums of money and conditions set forth as specified in
this paragraph represent any and all termination or severance pay, back pay,
wages, stock, stock options, incentive compensation payments, vacation pay,
damages (liquidated or unliquidated), benefits, attorneys' fees, costs, interest
or other monies to which Executive may now be entitled or may ever become
entitled to under the EEA and RSA and SOG. The Executive also acknowledges that
the sums of money and the conditions set forth in this paragraph are sufficient
consideration for the signing of this Addendum. Executive and Company hereby
agree that any paragraphs in the EEA or RSA or any statements contained in the
SOG that conflict with paragraph 2 of this Addendum are hereby made completely
void.
3. RELEASE. In exchange for the payments and benefits to Executive
described in this Addendum, as well as any and all other mutual promises made in
this Addendum, Executive, and his personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees, legatees, and assigns
agree to release and forever discharge the Company, and its subsidiaries, parent
corporations and affiliated entities, and its and their employees, officers,
directors, agents, attorneys, successors and assigns, from any and all claims,
suits and/or causes of action that grow out of or are in any way related to, his
recruitment to or his employment with the Company, except Executive does not
release and discharge the Company for any claim that the Company has breached
this Addendum. This release includes, but is not limited to, any claims that the
Company violated the Employee Retirement Income Security Act, the Age
Discrimination in Employment Act, the Older Worker's Benefit Protection Act, the
Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, the
Family and Medical Leave Act, any law prohibiting discrimination, harassment, or
retaliation in employment, any claim of promissory estoppel or detrimental
reliance, defamation, intentional infliction of emotional distress, the public
policy of any state, or any federal, state, or local law. Executive agrees that
he is an experienced senior executive knowledgeable about the claims that may
have arisen in the course of his employment with the Company as Vice Chairman
and CEO, and that he knowingly agrees that the payments provided for in this
Addendum are satisfactory consideration for the release of such possible claims.
Executive is advised to consult with an attorney prior to executing this
Addendum. Executive agrees that pursuant to paragraph 9 of this Addendum, he has
been given 21 days in which to consider this release. Executive may revoke his
consent to this Addendum by delivering a written notice pursuant to paragraph 9.
Should Executive revoke this Addendum, it shall become null and void and
Executive must return any compensation received under it, except salary earned
for actual work.
4. COVENANT NOT TO XXX. Executive agrees that he will not bring or file
any claim, charge, action or lawsuit in any forum based on the matters released
in this Addendum. If Executive breaches this covenant not to xxx he agrees that
he will be responsible for the attorney's fees and all other costs resulting
from such a breach.
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5. CONFIDENTIAL ADDENDUM. Executive further agrees that he will not
reveal the existence of this Addendum, the EEA or RSA or SOG, nor any of their
terms, to any person, entity or organization except to his attorneys, investment
advisors, his immediate family or as required by law.
6. CONTINUED COOPERATION. Executive agrees that he will continue to
cooperate in the following areas:
a. WITH THE COMPANY. Executive agrees that he will make himself
reasonably available to answer questions for the Company's officers regarding
his position or duties or any project, initiative or effort for which Executive
was responsible during his employment with the Company. Executive also agrees to
cooperate with the Company during the course of all third-party proceedings
arising out of the 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 and trial testimony). For purposes of this
sub-paragraph, cooperation includes, but is not limited to, Executive's making
himself reasonably available for interviews, meetings, depositions, hearings
and/or trials without the need for subpoena or assurances by the 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. Executive will be entitled to receive reasonable reimbursement for
reasonable expenses incurred in connection with any activity described in this
paragraph.
b. WITH THIRD PARTIES. Executive agrees not to communicate with,
or give statements or testimony to, any opposing attorney, opposing attorney's
representative (including private investigator) or current or former employee
relating to any matter about which Executive has knowledge or information as a
result of his employment with the Company unless compelled to do so by
lawfully-served subpoena or court order. Such matters specifically include, but
are not limited to, any pending or threatened lawsuits or administrative
investigations. Executive also agrees to notify the Chairman of the Company's
Board of Directors immediately if he is contacted by a third party or receives a
subpoena or court order to appear and testify.
c. WITH MEDIA. Executive agrees not 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. Such matters specifically include, but are not limited to, any
pending or threatened lawsuits or administrative investigations. Executive also
agrees to notify the Chairman of the Company's Board of Directors immediately if
he is contacted by any member of the media.
d. NON-DISPARAGEMENT. Executive agrees that he shall not make any
disparaging remarks about the Company, its Chairman, or any of its senior
executives. The Company agrees that it shall not make any disparaging remarks
about Executive.
7. NON-COMPETITION. Executive agrees that following the termination of
his employment for twelve months, he shall not, either directly or indirectly,
solicit employment with, act as a consultant to, or otherwise perform
substantially the same or similar services
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(which shall be determined regardless of job title) for any business that
directly competes with the Company's business, which shall be understood as the
sale of off-price merchandise. Examples of businesses that compete with the
Company's business include, but are not limited to, The TJX Companies, Inc.,
T.J. Maxx, Marshall's, Marshall's HomeGoods, X.X. Xxxxxx, Marmaxx, Winners and
Xxxx Stores, Inc. The restriction imposed in this paragraph applies to any
parent, division, affiliate, newly formed or purchased business(es), and/or
successor of a business that competes with the Company's business. Further,
nothing contained in this Addendum affects Executive's duty to comply with the
Confidential Information and Nonsolicitation provisions of the EEA which shall
remain in full force and effect.
8. REMEDIES. Executive agrees that if he breaches any provision of
paragraph 6 or 7 of this Addendum, the damage may be substantial, although
difficult to quantify, and money damages may not afford the Company an adequate
remedy; therefore, if Executive breaches or threatens to breach paragraph 6 or
7, the 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. The Company agrees that if it breaches paragraph 6.d. of
this Addendum Executive 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.
9. MISCELLANEOUS. The parties agree that if the terms are acceptable,
the Executive has 21 days from his date of receipt of this Addendum to sign this
Addendum. Executive understands that he should discuss any concerns he may have
with his lawyer before executing this Addendum. Executive further acknowledges
that he may revoke the Addendum within seven (7) days after executing it. Any
such revocation must be clearly communicated in writing to Xxxxx Xxxx, General
Counsel of Schottenstein Stores Corporation, at 0000 Xxxxx Xxxx, Xxxxxxxx, XX
00000, by 5:00 p.m. on the seventh day after execution of the Addendum by the
Executive. Should Executive revoke this Addendum, it shall become null and void
and Executive must return any compensation received under it, except salary
earned for actual work.
10. GOVERNING LAW. The validity, interpretation, and construction of
this Addendum shall be governed by Ohio law, without reference to Ohio's choice
of law rules.
11. SOLE ADDENDUM. This Addendum may not be changed orally and contains
the entire agreement of the parties with respect to the subject matter hereof
and supersedes all prior conflicting agreements and understandings, oral or
written, between the Executive and the Company.
IN CONCLUSION, the parties signing below have read all of the
foregoing, understand the same, have had an opportunity to review it with legal
counsel, and agree to all of the provisions contained herein.
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VALUE CITY DEPARTMENT STORES, INC.
By: Date:
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Xxxx Xxxxxxx, Chief Executive Officer
Date:
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State of Ohio)
County of Franklin) ss:
Sworn to and subscribed before me this day of , 2002.
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______________________________________________
Notary Public
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EXECUTIVE
By: Date:
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Xxxxxx Xxxxxx
Date:
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State of New Jersey)
County of Monmouth) ss:
Sworn to and subscribed before me this day of , 2002.
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_____________________________________________
Notary Public
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