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EXHIBIT 10(f)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of ________, between HECHINGER INVESTMENT COMPANY OF DELAWARE, INC. ("Hechinger"
or the "Company") and ___________ (the "Employee").
WHEREAS, the Company and the Employee desire to enter into this Agreement
to assure the Company of the services of the Employee for the benefit of the
Company and to set forth the respective rights and duties of the parties hereto;
WHEREAS, the Company is in the business of owning, operating and managing
stores that in the aggregate provide products and services for the care, repair,
remodeling and maintenance of the home or garden in the geographic region of the
United States ("Business");
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, terms and conditions set forth herein, the Company and the Employee
agree as follows:
ARTICLE 1
Employment
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1.1 Employment and Title:
The Company hereby employs the Employee, and the Employee hereby
accepts such employment as the ______________ of the Company, upon the terms and
conditions set forth herein.
1.2 Services.
(a) During the Term of Employment, as set forth later in this
Agreement, the Employee agrees to perform diligently and in good faith such
duties and services of the Company under the direction of _______________
consistent with the position of __________. The Employee agrees to devote his
best efforts and all of his full business time, energies and abilities to the
services to be performed for the Company and for the exclusive benefit of the
Company, provided, that this clause shall not be construed to prevent the
Employee from personally, and for his own account, trading in stocks, bonds,
securities, real estate, or other forms of investment for his own benefit, so
long as any such activity does not interfere with the
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performance of his duties to the Company. The Company shall vest the Employee
with such authority as is generally concomitant with the position to which he is
appointed.
1.3 Location.
The principal place of employment and location of the Employee's
principal office and ordinary place of work shall be in Largo, Maryland;
provided, however, the Employee shall, when requested by his superiors, or may,
if he determines it to be reasonably necessary, temporarily perform services
outside said area as are reasonably required for the proper performance of his
duties under this Agreement.
1.4 Exclusivity.
The Employee shall not, without the prior written consent of the
Company, directly or indirectly, during the term of this Agreement render
services of a business, professional or commercial nature to any other person or
entity, whether for compensation or otherwise.
1.5 Representations.
Each party represents and warrants to the other that he/it has full
power and authority to enter into and perform this Agreement and that his/its
execution of and performance of this Agreement shall not constitute a default
under or breach of any of the terms of any agreement to which he/it is a party
or under which he/it is bound. Each party represents that no consent or approval
of any third party is required for his or its execution, delivery and
performance of this Agreement. The Employee further represents and warrants to
the Company that he is free to accept this employment, and that he has no other
obligations or commitments of any kind to any one which would in any way hinder
or interfere with this acceptance of, full performance of his obligations under,
or exercise of his best efforts with respect to, this Agreement.
ARTICLE 2
Term
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2.1 Term.
The term of the Employee's employment hereunder (the "Term") shall
commence on _____________ the "Commencement Date") and shall continue until (but
not including) the
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third anniversary of the Commencement Date (the "Scheduled Termination Date")
unless earlier terminated pursuant to the provisions of this Agreement.
ARTICLE 3
Compensation
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3.1 Salary.
As compensation for the services to be rendered by the Employee, the
Company shall pay the Employee, during the Term of this Agreement, an annual
salary in the amount of _____________, less applicable state and federal
withholdings and other elected deductions, which salary shall accrue weekly
(prorated for periods less than a week) and shall be payable in bi-weekly
installments, in arrears.
3.2 Other Compensation.
During the Employee's Term, the Employee shall be entitled to
participate in such compensatory plan, contract or arrangement that is generally
available to the Company's officers from time to time, including, but not
limited to (a) the annual bonus consistent with the Company's then current
written bonus policy, except that the Employee's bonus for 1998 will not be
pro-rated and (b) the Centers Holdings Inc. Management Stock Incentive Plan
("Stock Option Plan") by receiving an option(s) to receive _______ shares of
Centers Holding Inc. common stock. The option(s) is evidenced by the Stock
Option Agreement executed, attached to and incorporated by reference in this
Agreement as Exhibit ___. The option(s) shall be subject to and in accordance
with the terms of the Stock Option Plan, as it may exist from time to time and
shall be subject to the terms of the Stock Option Agreement as executed,
attached to and incorporated by reference in this Agreement as Exhibit ___.
3.3 Benefits and Perquisites.
The Employee shall be entitled, during the employment Term, to the
same medical, hospital, dental, life and disability insurance coverage and
benefits, vacations, participation in the Hechinger 401(k) and Profit Plan, and
other perquisites, as are generally available to the Company's officers on the
Commencement Date or as otherwise agreed to and set forth in Exhibit ___ to this
Agreement. Such other perquisites include, without limitation, participation in
the Company's paid "time-off" program that provide up to twenty-four (24) days
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off per year with pay to be used for holidays, sick days, vacations, or other
absences; the Company's Executive Relocation Policy; and automobile allowance.
Notwithstanding the foregoing, the Employee shall not have less than fifteen
(15) days off per year under any such "time off" program.
3.4 Withholding.
Any and all amounts payable under this Agreement, including, without
limitation, amounts payable in the event of the termination hereof under
Sections 7.3 and 7.4 hereof, are subject to withholding for such federal, state
and local taxes as the company in its reasonable judgment determines to be
required pursuant to any applicable law, rule or regulation.
3.5 Annual Review.
No less frequently than annually, the Board of Directors of the
Company shall review the Employee's performance of his duties and services under
this Agreement, and may, commensurate with the employee's and the Company's
performance and subject to the approval of the Board of Directors of the
Company, increase, buy not decrease, the salary, stock options, other
compensation and benefits payable to the Employee under this Agreement during
the remaining Term.
ARTICLE 4
Working Facilities, Expenses and Insurance
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4.1 Working, Facilities and Expenses.
The Employee shall be furnished with an office at the principal
office of the Company, or at such other location as may be agreed to by the
Employee and the Board of Directors of the Company, and other assistance
adequate for the performance of his duties hereunder. Subject to the Company's
then current policies, the Company shall reimburse the Employee for all the
Employee's reasonable expenses incurred while employed and performing his duties
under and in connection with the terms and conditions of the Agreement, subject
to the Employee's full appropriate documentation, including, without limitation,
receipts for all such expenses in the manner required pursuant to Company's
policies and procedures and the Internal Revenue Code.
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4.2 Insurance.
The Company may secure in its own name or otherwise, and at its own
expense, life, disability and other insurance covering the Employee or the
Employee and others, and the Employee shall not have any right, title or
interest in or to such insurance other than as expressly provided herein. The
employee agrees to assist the Company in procuring such insurance by submitting
to the usual and customary medical and other examinations to be conducted by
such physicians(s) as the Employee, the Company or such insurance company may
agree to and designate and by signing such applications and other written
instruments as may be required by the insurance companies to which application
is made for such insurance.
ARTICLE 5
Illness or Incapacity
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5.1 Right to Terminate.
If, during the Term of this Agreement, the Employee shall be unable
to perform in all material respects his duties hereunder for a period exceeding
one hundred twenty (120) consecutive calendar days, or a total of one hundred
eighty-six (186) non-consecutive calendar days, by reason of illness or
incapacity, this Agreement may be terminated by the Company at its election
pursuant to Section 7.2(b) hereof.
5.2 Right to Replace.
Subject to Article 5.1, if the Employee's illness or incapacity,
whether by physical or mental cause, renders him unable for a minimum period of
30 consecutive calendar days to carry out his duties and responsibilities as set
forth herein, the Company shall have the right to designate a person to
temporarily succeed the Employee in the capacity described in Article 1 hereof;
provided, however, that if the Employee returns to work from such illness or
incapacity within the six (6) month period following his inability due to
illness or incapacity, he shall be entitled to be reinstated in the capacity
described in Article 1 hereof with all duties and privileges attendant thereto.
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5.3 Rights Prior to Termination
Subject to offset by payments received under available disability
plans, the Employee shall be entitled to his full remuneration and benefits
hereunder during such illness or incapacity unless and until an election is made
by the Company to terminate this Agreement in accordance with the provisions of
this Article.
ARTICLE 6
Confidentiality
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6.1 Confidentiality.
During the Term of this Agreement and at all times thereafter, the
Employee agrees to maintain the confidential nature of all trade secrets,
including, without limitation, development ideas, acquisition strategies and
plans, financial information, records, "know-how," methods of doing business,
customer, supplier and distributor lists and all other confidential information
of the Company. The Employee shall not be obligated to maintain the confidential
nature of information the disclosure of which is required by law or which
already is in the public domain. The Employee shall not use (other than in
connection with his employment), in any way whatsoever, such trade secrets
except as authorized in writing by the Company. The Employee shall, upon
terminating his employment, deliver to the Company any and all records, books,
documents or any other materials whatsoever (including all copies thereof)
containing such trade secrets, which shall be and remain the property of the
Company.
6.2 Ownership of Records.
All documents, papers, materials, notes, books, correspondence,
drawings and other written and graphical records relating to the Business of the
Company which the Employee shall prepare or use, or come into contact with,
shall be and remain the sole property of the Company. The Employee shall be
allowed to remove any of the above listed materials from the Company's premises
for a business purpose for use at Employee's home or elsewhere, unless
specifically prohibited by a written notice received from the Company.
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ARTICLE 7
Termination
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7.1 Termination For Cause.
This Agreement and the employment of the Employee may be terminated
by the Company "For Cause" in any of the following circumstances:
(a) The Employee has committed any act or acts of fraud or
misappropriation that result in or are intended to result in this personal
enrichment at the expense of the Company;
(b) The Employee is in default in a material respect in the
performance of his obligations, services or duties hereunder, which shall
include, without limitation, the Employee's disregarding the instructions from
the Company's Chairman of the Board concerning the conduct of his duties
hereunder, the Employee's failure to achieve agreed upon performance objectives,
the Employee's acting in a manner materially inconsistent with the policies of
the Company or its affiliates, as promulgated from time to time in writing and
which are generally applicable to all employees and/or senior executives of the
Company, the Employee's acting in a manner materially inconsistent with the
customary standards of performance applicable to persons in similar positions in
the industry of providing, in the aggregate, products or services for the care,
repair, remodeling and maintenance of the home or garden in the United States,
or if the Employee has breached any other material provision of this Agreement;
provided that if, and only if, such default or breach is curable, the Employee
shall not be in default hereunder unless he shall have failed to cure such
default or breach within a reasonable period of time (depending upon the type of
default or breach) after receipt of written notice thereof by the Company to the
Employee;
(c) The Employee is grossly negligent, which causes substantial
damage or loss to the Company, or engages in willful misconduct in the
performance of his duties hereunder; or
(d) The Employee has engaged in illegal activities which,
individually, or in the aggregate, reflect substantially and materially
adversely upon, or have a substantially and materially adverse impact on, the
Company. A determination For Cause under this Section 7.1 shall be effective
upon the date set forth in a written notice of termination delivered to the
Employee.
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7.2 Termination Without Cause.
This Agreement and the employment of the Employee may be terminated
"Without Cause" as follow:
(a) By mutual agreement of the parties hereto;
(b) At the election of the Company at any time by its giving at
least thirty (30) days advance written notice to the Employee;
(c) At the election of the Employee by his giving written notice to
the Company in the event that the Company shall default in or breach the
performance of any of its obligations under this Agreement, or in the event that
the Company shall effect a material diminution or material adverse change in the
Employee's title, responsibilities or duties; provided, that if, and only if,
such default, breach, diminution or change is curable, the Employee may not
elect to give notice under this Section 7.2(c), unless the Company shall have
failed to cure such default, breach, diminution or change within fifteen (15)
days of written notice thereof provided by the Employee to the Company; or
(d) Upon the Employee's death.
A termination Without Cause under this Section 7.2 shall be effective
upon the date set forth in a written notice of termination delivered hereunder,
which shall be not less than thirty (30) days nor more than forty-five (45) days
after the giving of such notice, except for the termination pursuant to Section
7.2(d) hereof, which shall be automatically effective upon the occurrence of the
event described therein.
7.3 Effect of Termination For Cause.
If the Employee's employment is terminated For Cause:
(a) The Employee shall be entitled to accrued salary through the
date of termination;
(b) The Employee shall be entitled to reimbursement for expenses
accrued through the date of termination in accordance with the provisions of
Section 4.1 hereof; and
(c) Except as provided in Article 11 and the Stock Option Agreement,
this Agreement shall thereupon be of no further force and effect.
7.4 Effect of Termination Without Cause.
If the Employee's employment is terminated Without Cause:
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(a) The Employee shall be entitled to accrued salary through the
date of termination;
(b) The Employee shall be entitled to reimbursement for expenses
accrued through the date of termination in accordance with the provisions of
Section 4.1 hereof, and
(c) Subject to Section 7.5 and except in the case of a termination
Without Cause under Section 7.2(d), the Employee shall be entitled to receive
all amounts of salary as would have been payable under Section 3.1 hereof
through the Scheduled Termination Date, which amounts shall be paid as and when
the same would have been payable under the Agreement had it not been terminated;
(d) Subject to Section 7.5 and except in the case of a termination
Without Cause under Section 7.2(d), the Employee shall be entitled to received
all medical, hospital and dental coverage and benefits as would have been
payable under Section 3.3 hereof through the Scheduled Termination Date, which
amounts shall be paid as and when the same would have been payable under the
Agreement had it not been terminated, and if the Employee is not entitled to
participate in any such benefit plan under the terms thereof following the
termination, then the Company shall provide the Employee with substantially
identical coverage and benefits;
(e) Subject to Section 7.5, if the Employee is participating in a
Company bonus plan as of the date of termination, he shall be entitled to an
accrued bonus through the date of termination, computed on a per diem basis
based upon the bonus which would have otherwise been payable to the Employee for
the fiscal year during which the date of termination falls had the Agreement not
been terminated, computed on the same basis as in effect immediately prior to
the date of termination, which bonus shall be paid as and when the same would
have otherwise been payable under the bonus plan had the Agreement not been
terminated; and
(f) Except as provided in Article 11 and the Stock Option Agreement,
this Agreement shall be of no further force or effect.
7.5 Mitigation and Offset.
In the event of a termination of employment hereunder, the Employee
shall be under no obligation to seek alternative employment or other gainful
occupation during the period from the termination of this Agreement through the
Scheduled Termination Date (the "Unexpired Term") by the way of mitigation of
amounts payable to the Employee under this Article 7;
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provided, however, that if the Employee provides, directly or indirectly
(including through any personal service entity), any services (whether as
employee, consultant, independent contractor or otherwise) to any person or
business (a "Third Party") during the Unexpired Term, all amounts paid or
payable to the Employee by or on behalf of such Third Party in respect thereof
("Offset Amounts") shall reduce any amounts payable thereafter by the Company to
the Employee under Sections 7.4(c), (d) and (e) hereof on a dollar-for-dollar
basis. Upon the request of the Company, from time to time, the employee shall
certify in writing to the Company all Offset Amounts received or receivable by
him and shall provide the Company with true copies of all written agreements and
a summary of the terms of all oral agreement pursuant to which such Offset
Amounts are paid or payable to the Employee.
7.6 Full Settlement.
The payments provided for in Article 7 of this Agreement are in full
settlement of any claims the Employee may have against the Company arising out
of his termination, including, but not limited to, any claims for wrongful
discharge; provided, however, that nothing herein shall limit any rights or
obligations of the parties under any other agreement with the Company or any
pension, retirement, stock option, preferred compensation or other benefit plans
of the Company which are applicable to the Employee and which provide for
specified rights and obligations in the event of a termination of the Employee's
employment with the Company.
ARTICLE 8
Non-Competition and Non-Interference
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8.1 Non-competition.
The Employee agrees that during the Term hereof and for a period of
twelve months thereafter, the Employee will not, without the express written
consent of the Company, directly, indirectly or as an agent on behalf of or in
conjunction with any person, firm partnership, corporation or other entity, own,
manage, control, join, or participate in the ownership, management, operation,
or control of, or be financially interested in or advised, lend money to, or be
employed by or provide consulting services to, or be connected in any manner
with a Competitive Business. For purposes of this Agreement a Competitive
Business is (i) any business or enterprise whose primary business, in the
aggregate, is providing products or services
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for the care, repair, remodeling and maintenance of the home or garden; (ii)
that has generated gross annual revenues of at least One Hundred Million Dollars
($100,000,000) from the sale of such products or services in any of the three
fiscal years preceding the date of the Employee's participation; and (iii) which
owns or operates a facility in any location within twenty (20) miles of any
geographical location, in which the Company owns or operates a facility. For
purposes of this Agreement, the following entities or their respective
successors or assigns are deemed to be Competitive Business whether or not they
meet the preceding provisions:
If Employee is terminated without cause and/or not paid pursuant to
this Agreement, then Competitive Businesses shall be expressly defined as
____________.
Ownership of less than 2% of the stock in a publicly held company
that constitutes less than 2% of the net worth of Employee shall not be deemed a
violation of this Section 8.1.
8.2 Non-Interference.
The Employee agrees that during the Term hereof and for a period of
one year thereafter, the Employee will not, directly, indirectly or as an agent
on behalf of or in conjunction with any person, firm, partnership, corporation
or other entity, induce or entice any employee of the Company to leave such
employment or cause anyone else to do so.
8.3 Severability.
If any covenant or provision contained in Section 8.1 is determined
to be void or unenforceable in whole or in part, it shall not be deemed to
affect or impair the validity of any other covenant or provision.
ARTICLE 9
Remedies
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9.1 Equitable Remedies.
The Employee and the Company agree that the services to be rendered
by the Employee pursuant to this agreement, and the rights and interests granted
and the obligations to be performed by the Employee to the Company pursuant to
this Agreement, are of a special,
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unique, extraordinary and intellectual character, which gives them a peculiar
value, the loss of which cannot be reasonably or adequately compensated in
damages in any action at law, and that a breach by the Employee of any of the
terms of the Agreement will cause the Company great and irreparable injury and
damage. In the event of a breach or threatened breach of Article 6, Section 8.1
or Section 8.2, the Employee hereby expressly agrees that the Company shall be
entitled to the remedies of injunction, specific performance and other equitable
relief to prevent a breach of the Agreement, both pendente lite and permanently,
against the Employee, as such breach would cause irreparable injury to the
Company and a remedy at law would be inadequate and insufficient. Therefore, the
Company may, in addition to pursing its other remedies, obtain an injunction
from any court having jurisdiction in the matter restraining any further
violation. The Employee agrees that a bond in the amount of $5,000 shall be
adequate security for issuance of any temporary injunction. The Company shall
also be entitled to such damages as it can show it has sustained, directly or
indirectly, by reason of said breach.
9.2 Rights and Remedies Preserved.
Nothing in this Agreement except Section 7.6 and 10.11 shall limit
any right or remedy the Company or the Employee may have under this Agreement or
pursuant to law for any breach of this Agreement by the other party. Except as
set forth in Sections 7.6 and 10.11, the rights granted to the Company and The
Employee herein are cumulative and the election of one shall not constitute a
waiver of such party's right to assert all other legal remedies available under
the circumstances.
ARTICLE 10
Miscellaneous
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10.1 No Waivers.
The failure of either party to enforce any provision of this
Agreement shall not be construed as a waiver of any such provision, nor prevent
such party thereafter from enforcing such provision or any other provision of
this Agreement.
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10.2 Notices.
Any notice to be given to the Company and the Employee under the
terms of this Agreement may be delivered personally, by Federal Express or by
registered or certified mail, postage prepaid, and shall be addressed as
follows:
If to the Company: Hechinger Co.
Xxxx X. Xxxxx
Executive Vice President, CFO and
General Counsel
0000 XxXxxxxxx Xxxxx
Xxxxx, XX 00000
If to the Employee:
Either party shall notify the other in writing of any change in address. Any
notice shall be deemed duly given (i) when personally delivered, or (ii) on the
third day after it is mailed by registered or certified mail, postage prepaid,
as provided herein.
10.3 Severability.
The provisions of this Agreement are severable and if any provision
of this Agreement shall be held to be invalid or otherwise unenforceable, in
whole or in part, the remainder of the provisions, or enforceable parts thereof,
shall not be affected thereby.
10.4 Successors and Assigns.
The rights and obligations of the Company under this Agreement shall
inure to the benefit of and be binding upon the successors and assigns of the
Company, including the survivor upon any merger, consolidation or combination of
the Company with any other entity. The Employee shall not have the right to
assign, delegate or otherwise transfer any duty or obligation to be performed by
him hereunder to any person or entity, nor to assign or transfer any rights
hereunder.
10.5 Entire Agreement.
With respect to the terms of Employee's employment, this Agreement
supersedes all prior agreements and understandings between the parties hereto,
oral or written, and may not
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be modified or terminated orally. No modification, termination or attempted
waiver shall be valid unless in writing, signed by the party against whom such
modification, termination or waiver is sought to be enforced. This Agreement was
the subject of negotiation by the parties hereto and their counsel. The parties
agree that no prior drafts of this Agreement shall be admissible as evidence
(whether in any arbitration or court of law) in any proceeding which involves
the interpretation of any provisions of this Agreement.
10.6 Governing Laws.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of Maryland without reference to the conflict of
law principles thereof.
10.7 Section Headings.
The section heading contained herein are for the purposes of
convenience only and are not intended to define or limit the contents of said
sections.
10.8 Further Assurances.
Each party hereto shall cooperate and shall take such further action
and shall execute and deliver such further documents as may be reasonably
requested by any other party in order to carry out the provisions and purposes
of this Agreement.
10.9 Gender.
Whenever the pronouns "he" or "his" are used herein they shall also
be deemed to mean "she" or "hers" or "it" or "its" whenever applicable. Words in
the singular shall be read and construed as though in the plural and words in
the plural shall be read and construed as though in the singular in all cases
where they would so apply.
10.10 Counterparts.
This Agreement may be executed in counterparts, all of which taken
together shall be deemed one original.
10.11 Arbitration.
The parties hereto agree that any dispute concerning or arising out
of the provisions of the Agreement shall be resolved by arbitration in
accordance with the rules of the American Arbitration Association. Such
arbitration shall be held in Washington, D.C. and the decision of the
arbitrator(s) shall be conclusive and binding on the parties and shall be
enforceable by either party in any court of competent jurisdiction. The
arbitrator may, in his or
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her discretion, award attorney's fees and costs to such party as he or she sees
fit in rendering his or her decision. Notwithstanding the foregoing, if any
dispute arises hereunder as to which the company desires to exercise any rights
or remedies under Section 9.1, either the Employee or the Company mat, in its
discretion, in lieu of submitting the matter to arbitration, bring an action
thereon in any court of competent jurisdiction. Said court may grant any and all
relief available in equity or at law. In such action, the prevailing party shall
be entitled to reasonable attorney's fees and costs as may be awarded by the
court.
ARTICLE 11
Survival
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11.1 Survival
The provisions of Article 6, 8, 9 and 10 and Sections 7.3, 7.4, 7.5
and 7.6 of this Agreement shall survive the termination of this Agreement
whether upon, or prior to, the Scheduled Termination Date hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first above written
COMPANY NAME
By:
----------------------------- -----------------------------
Name:
---------------------------
Title:
----------------------------- ----------------------------
As to the Company
----------------------------- ---------------------------------
-----------------------------
As to the Employee
