Exhibit 10(d)
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into April 11 2000, between XXXXXXXX
STORES INC., a Michigan corporation, of Jackson, Michigan (the "Company"),
and Xxxxxxxx X. Xxxxxx the "Associate").
THE PARTIES AGREE AS FOLLOWS:
1. Employment and Term. The Company employs Associate as Senior
Vice President-General Merchandise Manager,and Associate agrees to serve in
that capacity and/or in such other capacity or capacities as the Chief
Executive Officer of the Company deems advisable, commencing April 16, 2000,
and continuing through April 14, 2001, unless terminated sooner pursuant to
the provisions of paragraph 4, for the salary and on the terms set forth
herein.
2. Compensation. Subject to the provisions of paragraph 4, the
Company agrees to pay Associate salary at an annual rate of $ 185,000, in
bi-weekly or other regular periodic installments no less frequent than
monthly.
3. Duties. Associate agrees, as long as employment by the Company
continues, to devote Associate's entire time and best efforts to furthering
the interests of the Company; to comply with all regulations and policies of
the Company; and to perform the duties requested by any officers and
executives of the Company to whom the Associate is directed to report.
4. Termination. Associate's employment under this Agreement shall
terminate on the earliest to occur of the following: (1) immediately upon
Associate's death, (2) at the Company's option, immediately when notice to
Associate of such termination is given after Associate's permanent incapacity
(established to the reasonable satisfaction of the Chief Executive Officer of
the Company), (3) at the Company's option, immediately when notice to
Associate of such termination is given (for any reason or for no reason and
regardless of whether there is good cause for such termination), (4) 30 days
after notice of such termination is given to the Company by Associate, and
(5) April 14, 2001. Notice will be deemed to be given on the earliest of (1)
when delivered, or (2) three business days after mailed by certified or
registered mail, postage prepaid, return receipt requested, or (3) one
business day after sent by recognized overnight courier, if to Associate, to
Associate's address on the Company's corporate records, and if to the
Company, to the address of its principal executive offices. The following
events during the term of this Agreement shall have the following respective
effects on the obligations of the Company pursuant hereto:
(a) If employment is terminated due to Associate's death
or permanent incapacity, the Company shall have no obligation to pay any
salary or other amounts or benefits under this Agreement or otherwise for any
period after the date of termination of employment, but benefits may continue
to the extent provided in any wage continuation program, insurance, or other
Associate benefit plans that are generally applicable to all Associates of
the Company and that are maintained by the Company at that time.
(b) Except as otherwise provided in paragraph 4(c), if
employment is terminated by the Company (for any reason or for no reason and
regardless of whether there is good cause for such termination), or if
Associate resigns or retires before or at the expiration of the term, the
Company shall have no obligation to pay any salary or other amounts or
benefits under this Agreement or otherwise for any period after the date of
termination of employment, but benefits may continue to the extent provided
in any severance program, wage
continuation program, insurance, or other Associate benefit plans that are
generally applicable to all Associates of the Company and that are maintained
by the Company at that time.
(c) If (1) a "Change in Control" (as defined below)
occurs during the term of Associate's employment under this Agreement, and
(2) either Associate terminates Associate's employment with the "Entity" (as
defined below) for "Good Reason" (as defined below) or the "Entity"
terminates Associate's employment without "Cause" (as defined below), both
within one year after the Change in Control, Associate will receive an amount
equal to Associate's annual salary at the rate set forth in paragraph 2 for
the period from the date of such termination through the date that is 24
months after the date such Change in Control occurs. Such payments shall be
made at the times provided in paragraph 2. The Company may withhold from such
payments all federal, state, city and other taxes to the extent such taxes
are required to be withheld by applicable law. The Company's obligation to
pay the salary continuation payments provided in this paragraph 4(c) shall
survive the expiration of the term.
(i) For purposes of this Agreement, a "Change in
Control" occurs on the first day any one or more of the following
occurs:
(A) any person (as such term is used in Sections
13(d) and 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")), together with all
affiliates and associates of such person (as such terms
are defined in Rule 12b-2 under the Exchange Act) but
excluding all "Excluded Persons" (as defined in paragraph
4(c)(ii)), becomes the direct or indirect beneficial owner
(within the meaning of Rule 13d-3 under the Exchange Act)
of securities of the Company representing (A) 20% or more
of the combined voting power of all of the Company's
outstanding securities entitled to vote generally in the
election of the Company's directors, or (B) 20% or more of
the combined shares of the Company's capital stock then
outstanding, all except in connection with any merger,
consolidation, reorganization or share exchange involving
the Company;
(B) the consummation of any merger,
consolidation, reorganization or share exchange involving
the Company, unless the holders of the Company's capital
stock outstanding immediately before such transaction own
more than 50% of the combined outstanding shares of
capital stock and have more than 50% of the combined
voting power in the surviving entity after such
transaction and they own such securities in substantially
the same proportions (relative to each other) as they
owned the Company's capital stock immediately before such
transaction;
(C) the consummation of any sale or other
disposition (in one transaction or a series of related
transactions) of all, or substantially all, of the
Company's assets to a person whose acquisition of 20% or
more of the combined shares of the Company's capital stock
then outstanding would have caused a Change in Control
under paragraph 4(c)(i)(A); or
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(D) the "Continuing Directors" (as defined in
paragraph 4(c)(iii)) cease to be a majority of the
Company's directors.
A determination by the Company's Continuing Directors (by
resolution of at least a majority of the Continuing Directors) as
to whether a Change in Control has occurred for purposes of this
Agreement, the date on which it has occurred or both shall be
conclusive for purposes of this Agreement.
(ii) For purposes of this Agreement, the "Excluded
Persons" are (1) Associate, (2) any "group" (as that term is used
in Section 13(d) of the Exchange Act and the rules thereunder)
that includes Associate or in which Associate is, or has agreed to
become, an equity participant, (3) any entity in which Associate
is, or has agreed to become, an equity participant, (4) the
Company, (5) any subsidiary of the Company, (6) any Associate
benefit plan of the Company or any subsidiary of the Company or
the related trust, (7) any entity to the extent it is holding
capital stock of the Company for or pursuant to the terms of any
Associate benefit plan of the Company or any subsidiary of the
Company, and (8) any director, officer or beneficial owner of at
least 10% of the Company's outstanding Common Stock as of the date
of this Agreement. For purposes of this Agreement, Associate shall
not be deemed an "equity participant" in any group or entity (1)
in which Associate owns for investment purposes only no more than
5% of the stock of a publicly-traded entity whose stock is either
listed on a national stock exchange or quoted in The NASDAQ
National Market, if Associate is not otherwise affiliated with
such group or entity, or (2) if Associate's participation is
fully-disclosed to, and approved by, the Company's Chief Executive
Officer before the Change in Control occurs.
(iii) For purposes of this Agreement, the "Continuing
Directors" are the directors of the Company as of the date of this
Agreement, and any person who subsequently becomes a director if
such person is appointed to be a director by a majority of the
Continuing Directors or if such person's initial nomination for
election or initial election as a director is recommended or
approved by a majority of the Continuing Directors.
(iv) Termination of Associate's employment for "Good
Reason" means Associate's voluntary termination of employment with
the Entity after a Change in Control as a result of (1) any
decrease by the Entity (without Associate's consent) in
Associate's salary from Associate's salary immediately before such
Change in Control; provided, that no such decrease shall
constitute "Good Reason" if such decrease is applied in the same
manner to all officers or Associates at the same employment level
as Associate (such as all officers or all store managers, as the
case may be), (2) a substantial change by the Entity (without
Associate's consent) in Associate's duties or responsibilities
from Associate's duties and responsibilities immediately before
such Change in Control, or (3) any requirement by the Entity (to
which Associate does not consent) that Associate change
Associate's primary place of business. "Good Reason" will not
include Associate's death, permanent incapacity or Retirement (as
defined below), or Associate's resignation other than as provided
in the preceding sentence. For purposes of this Agreement,
"Retirement" means Associate's retirement from the Entity in
accordance with the Entity's normal policies.
(v) The Entity's termination of Associate's
employment without "Cause" means a termination other than for (1)
Associate's continued failure either to (A) devote substantially
full time to Associate's employment duties (except because of
Associate's illness or disability) or (B) make a good faith effort
to perform Associate's employment duties; (2) any other willful
act or omission which Associate knew, or had reason to know, would
materially injure the Entity; or (3) Associate's conviction of a
felony involving dishonesty or fraud.
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(vi) For purposes of this Agreement, the "Entity"
shall mean both (1) the Company and (2) in connection with a
Change in Control defined in paragraph 4(c)(i)(B) or paragraph
4(c)(i)(C), the survivor of the merger, consolidation,
reorganization or share exchange involving the Company and the
buyer of all, or substantially all, of the Company's assets, if
such additional entity described in this clause (2) (if other than
the Company) has offered to employ Associate on such terms that
would not constitute "Good Reason" for termination of Associate's
employment if imposed by the Company. Therefore, for purposes of
this paragraph 4(c), Associate shall not be deemed to have
terminated Associate's employment with the Entity for "Good
Reason" and the "Entity" shall not be deemed to have terminated
Associate's employment without "Cause" unless such actions are
taken by all entities included within the definition of "Entity".
In addition, for purposes of this paragraph 4(c), Associate shall
not be deemed to have terminated Associate's employment with the
Entity for "Good Reason" and the "Entity" shall not be deemed to
have terminated Associate's employment without "Cause" if (1) the
survivor of the merger, consolidation, reorganization or share
exchange involving the Company and the buyer of all, or
substantially all, of the Company's assets has offered to employ
Associate on such terms that would not constitute "Good Reason"
for termination of Associate's employment if imposed by the
Company, (2) Associate refuses such employment, and (3) the
Company terminates Associate's employment for any reason or for no
reason.
(d) The severance benefits provided in this paragraph 4
are exclusive and in lieu of any other severance benefits to which Associate
may be entitled, except for any benefits under the terms of any stock options
or restricted stock agreements Associate may have.
(e) There is not, nor will there be unless in writing
signed by both Associate and the Company, any express or implied agreement as
to Associate's continued employment by the Company after the end of the term
of Associate's employment under this Agreement. Associate's subsequent
employment with the Company, if any, will be employment "at will", and the
provisions of this Agreement will not apply to any such employment.
5. Previous Agreements Superseded. This Agreement supersedes all
previous employment agreements between the parties.
6. Miscellaneous Provisions. This Agreement may be amended only
by written agreement signed by either the Chairman or Vice Chairman of the
Company. It shall be construed according to the laws of Michigan, and shall
be binding on and enforceable by the parties and their successors in
interest.
IN THE PRESENCE OF: XXXXXXXX STORES INC.
/s/ Xxxxxxx X. Xxxxxxxx By: /s/ P. Xxxxxx Xxxxx
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Its Chairman of the Board and Chief
COMPANY Executive Officer
/s/ Xxxx X. Xxxxxxx /s/ Xxxxxxxx X. Xxxxxx
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ASSOCIATE
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