EXHIBIT 10.17(a)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") made and entered
into and effective as of the 4th day of December, 1995,
(hereinafter called "Effective Date") by and between VENTURE
STORES, INC., hereinafter called "Venture" and Xxxxxxx X. Xxxx,
hereinafter called "Executive".
WITNESSETH, That:
In consideration of the mutual promises and agreements
hereinafter set forth, it is agreed between Venture and Executive
as follows:
1. For the purpose of this Agreement:
(a) The term "Venture" shall include Venture Stores, Inc.
and any successor to the business conducted by Venture;
(b) The term "Contract Term" shall mean the period
commencing on the Effective Date and ending April 30, 1997 or
such other period as Venture and Executive shall agree from time
to time in writing;
(c) The term "Fiscal Year" shall mean the annual 52-53 week
fiscal accounting period of Venture, as adopted by Venture from
time to time; and
(d) The term "Cause" shall mean termination of Executive's
employment whether by Venture or by Executive's resignation in
lieu of termination and in either instance only if by reason of
misappropriation of funds or property of Venture, other
dishonesty of any kind against Venture, violation of any policy
of Venture, alcohol or substance abuse or conviction of a felony.
(e) The term "Total Disability" or "Totally Disabled" shall
mean the inability of the Executive to perform the normal duties
of the Executive's regular occupation.
2. (a) Venture agrees to employ Executive as Executive Vice
President - Finance, Legal and Real Estate and Executive agrees
to render personal services to Venture in such position and/or to
perform such other executive duties as may from time to time be
required of Executive by Venture, it being agreed and understood
that the personal services to be rendered by Executive to Venture
hereunder are of a special and unique character. Such employment
may be terminated by either party at any time during the Contract
Term.
(b) Venture agrees to pay Executive basic compensation for
such services during the Contract Term at the rate of not less
than $250,000.00 per annum, payable in equal semi-monthly
installments, subject to increases determined in accordance with
the annual performance appraisal process and further subject to
the terms of Paragraph 6 hereof.
(c) In computing the basic compensation payable hereunder
for any period covering less than a full Fiscal Year, the minimum
annual rate of basic compensation shall be prorated in the
proportion that the number of months (or fraction thereof)
contained in such period bears to twelve months.
(d) In the event that Executive is eligible to participate
in annual or other bonus programs sponsored by Venture, then
Executive shall be entitled to such bonuses, if any, which may be
payable under such bonus programs determined in accordance with
and subject to all of the terms and provisions of such bonus
programs.
(e) Venture shall reimburse Executive for all items of
normal expense incurred by Executive as an employee of Venture.
It is recognized that Executive may have unusual and abnormal
expenses as such, and that Executive shall not be entitled to
reimbursement or to any additional compensation because of any
such unusual and abnormal expenses.
(f) The Executive Compensation Change Memorandum from time
to time in effect, as initialled on behalf of Venture and by
Executive, is hereby incorporated by reference herein and made a
part hereof. In addition, Venture has adopted certain employee
benefit plans and has established certain arrangements concerning
executive perquisites which may, from time to time, confer rights
and benefits on the Executive in accordance with their terms, and
Venture may, in the future, adopt additional employee benefit
plans and establish additional arrangements concerning executive
perquisites, and may in the future amend, modify or terminate any
of the aforesaid employee benefit plans and arrangements, all in
accordance with their terms and in accordance with applicable
law. In addition, Executive and Venture have agreed that
Executive shall be entitled to the fringe benefits and to the
benefit of other arrangements commensurate with Executive's title
and position as determined and provided from time to time by
Venture and as such fringe benefits and other arrangements may be
amended from time to time. Executive shall be entitled to
whatever rights and benefits may be conferred on Executive from
time to time in accordance with the terms of such plans and
arrangements, as they may be amended from time to time,
independent of this Agreement.
3. Executive agrees that, at all times while Executive is
employed by Venture, Executive will:
(a) faithfully and diligently serve Venture to the best of
Executive's ability;
(b) devote Executive's undivided time and attention, during
Venture's customary business hours, to the business of Venture,
to such extent as may be reasonably necessary for the proper
performance of the personal services to be rendered by Executive
hereunder, subject to Venture's vacation policy as in effect from
time to time; and
(c) maintain Executive's residence in the St. Louis,
Missouri metropolitan area within reasonable access to the
business activities of Venture therein or in such other city as
Venture shall designate, and so reside for the period of
employment.
4. (a) Executive will not accept any other full-time or
substantially full-time employment, whether as an Executive or as
a consultant or in any other capacity, and whether or not
compensated therefor, so long as Executive is employed by
Venture.
(b) At all times during the Contract Term, Executive will
not engage or be engaged in any competing business as hereinafter
defined. For purposes of this Paragraph 4, Executive shall be
deemed to "engage or be engaged in a competing business" if, in
any capacity, including, but not limited to, proprietor, partner,
member, trustee, officer, director, employee, agent or advisor,
Executive engages or participates, directly or indirectly, in the
operation, management or ownership of any department store
business or discount store business which (i) sells to the
general public or segments thereof, whether or not limited by
club memberships, organization affinity or otherwise; and (ii)
operates a store or stores within a seventy-five (75) mile radius
of any retail store that Venture is operating or has under
construction when the Executive ceases to be employed hereunder.
Indirect participation in the operation or management of any such
business shall not include the ownership of capital stock or
other securities of a corporation, which stock or other
securities are part of a class of stock or other securities
listed on any stock exchange or traded in the over the counter
market, if the amount of such investment represents less than 2
1/2% of the market value of such stock or other securities of
such corporation.
(c) If Executive violates the terms of this Paragraph 4 or
if Venture believes that Executive intends to violate such terms,
then, in addition to all other rights and remedies which Venture
may have under the terms hereof and pursuant to all applicable
law, Venture shall have the right to seek and obtain injunctive
and other such equitable relief to prevent Executive's violation
of the terms of this Paragraph 4.
5. In the event that Executive becomes Totally Disabled and
remains continuously so Totally Disabled for a period of one
hundred eighty (180) days, Executive's employment, at Venture's
option, may be terminated by notice in writing to that effect
given during the continuance of such Total Disability, such
termination to take effect the later of (a) the last day of the
month during which such notice is given or (b) the last day of
such one hundred eighty (180) day period, it being understood
that Executive's compensation shall cease upon such termination
and the Executive's benefits shall be administered pursuant to
Venture's policies and the provisions of the respective benefit
plans.
6. In the event that Executive shall cease to be employed
hereunder for any reason other than pursuant to Paragraph 5,
then:
(a) Executive's basic compensation shall continue for the
Contract Term but only so long as Executive is not in breach of
this Agreement and only if the termination of employment (i) was
not for Cause and (ii) was not by voluntary resignation by
Executive (such a voluntary resignation shall not include a
resignation in lieu of termination by Venture for reasons other
than Cause);
(b) Executive's basic compensation shall be reduced by any
income earned by Executive for services rendered after Executive
ceases to be employed by Venture (Executive will advise Venture
of such income and refund to Venture the gross amount of any
overpayment of basic compensation); and
(c) Executive or, in the discretion of Venture, Executive's
legal representative(s), shall be entitled to such portion of any
bonus provided for in any bonus program referred to in Paragraph
2(d) as shall be payable under the terms of such bonus program.
7. Executive will hold in strictest confidence any and all of
Venture's confidential information, including but not limited to:
information and documents concerning suppliers' pricing and other
terms for doing business with Venture; supplier and customer
lists created by or on behalf of Venture; marketing methods and
plans, including special seasonal plans; financial information,
including results, forecasts and projections; systems,
procedures, practices and any other information written in
manuals, memoranda or other documents for internal use by Venture
but not published by Venture for public use. This covenant and
agreement of Executive shall survive this Agreement and continue
in force and effect after the expiration of the term hereof,
whether by termination or otherwise.
8. Venture and Executive hereby agree that should any court of
competent jurisdiction determine that any provision of this
Agreement shall, but for the provisions of this Paragraph 8, be
illegal or void as against public policy, for any reason, then
such provision shall automatically be amended to the extent (but
only to the extent) necessary to make it sufficiently narrow in
scope, time, geographic area or otherwise that such court shall
determine it not to be illegal or void as against public policy.
If any such provision cannot be amended to the extent provided in
the preceding sentence, then such provision shall be severed from
this Agreement. In either event, all other remaining terms and
provisions shall remain in full force and effect.
9. Venture and Executive shall each be entitled to pursue all
legal and equitable rights and remedies to secure performance of
the obligations and duties of the other under this Agreement, and
enforcement of one or more of such rights and remedies shall in
no way preclude Venture or Executive from pursuing, at the same
time or subsequently, any and all other rights and remedies
available to each of them. If Venture enforces its rights in the
event of Executive breaching the provisions of Paragraphs 4, 6
and/or 7 of this Agreement, then in addition to any damages or
other compensation to which Venture may be entitled, Venture will
be entitled to be reimbursed by Executive for its court costs and
reasonable attorneys' fees, whether or not suit is filed or
judgement is rendered.
10. This Agreement and any letter agreement regarding severance
benefits in the event of a change in control which the parties
may have executed contain the entire understanding and agreement
between the parties regarding the subject matter contained in
each of them. They supersede all other agreements and
understandings between the parties with respect to such subject
matter and may be modified only by an Executive Compensation
Change Memorandum initialed on behalf of Venture and by Executive
or by a writing signed by Executive and executed on behalf of
Venture. This Agreement shall inure to the benefit of, and shall
be binding upon, Venture, its successors and assigns and upon
Executive and Executive's heirs, successors and assigns.
Executive agrees that this Agreement may be assigned by Venture
to a subsidiary of Venture; such assignment, however, shall not
relieve Venture of any of its obligations hereunder except to the
extent that such obligations are actually discharged by such
subsidiary.
11. Any questions or other matter arising under this Agreement,
whether of validity, interpretation, performance or otherwise,
shall be determined in accordance with and governed by the laws
of the State of Missouri without regard to its conflicts of law
principles. In the event any disputes arise from this Agreement,
venue shall be proper and all suits shall be filed and
adjudicated in the State courts in St. Xxxxxxx County, Missouri
or the Federal Courts in St. Louis, Missouri.
IN WITNESS WHEREOF, this Agreement has been executed by the
parties hereto in two counterparts, each of which shall be deemed
an original, and shall be effective as of the Effective Date.
VENTURE STORES, INC.
By/s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
President & CEO
/s/ Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx
2722/10
