Exhibit 10(a)
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into as of March 19, 1997, between XXXXXXXX
STORES INC., a Michigan corporation, of Jackson, Michigan (the "Company"),
and P. XXXXXX XXXXX, of Jackson, Michigan ("Xxxxx").
THE PARTIES HEREBY AGREE as follows:
1. Employment and Term. The Company employs Xxxxx as Chairman of
the Board and Chief Executive Officer, and Xxxxx agrees to serve in that
capacity and/or in such other capacity or capacities as the Board of
Directors of the Company deems advisable, for a term of three years
commencing October 31, 1996 and continuing through October 31, 1999, unless
terminated sooner pursuant to the provisions of paragraph 5, for the
compensation and on the terms set forth in this Agreement.
2. Compensation.
(a) Salary. Subject to the provisions of paragraph 5, Xxxxx'x
salary shall be Two Hundred Twenty-One Thousand Dollars ($221,000.00) per
year.
(b) Bonus. Xxxxx shall participate in the 1996 Xxxxxxxx Stores
Inc. Management Incentive Plan and, while employed by the Company, in any
successor management incentive plan established from time to time by the
Company.
(c) Vacation and Other Benefits. While he is employed by the
Company, Xxxxx shall be entitled to four weeks of vacation each year
beginning in fiscal 1997. Xxxxx shall also participate in such plans and
additional benefits as may generally be available from time to time to other
executive officers of the Company and for which Xxxxx is eligible.
(d) Stock Option. Effective October 31, 1996, Xxxxx was
granted an option to purchase 300,000 of the Company's Common Shares, par
value $1.00 a share, at $8.375 a share (the "Option"). Xxxxx' right to
purchase 200,000 Common Shares subject to the Option is subject to
shareholder approval of an amendment to the Xxxxxxxx Stock Option Plan of
1994 (the "Plan") increasing the number of shares subject to the Plan. If
shareholder approval of the amendment to the Plan is not obtained, the
portion of the Option to purchase those 200,000 shares will be cancelled, and
instead, the Company will pay Xxxxx, in cash, on each date that a portion of
the Option would have vested with respect to such 200,000 shares (the
"Vesting Dates"), an amount equal to the number of such shares that would
have vested on such Vesting Date multiplied by the excess, if any, of (i) the
fair market value of a Company Common Share on such Vesting Date, over (ii)
$8.375, unless Xxxxx and the Company agree on other alternative compensation.
3. Deferred Compensation. Xxxxx may determine that payment of any
part of Xxxxx'x salary for any year shall be deferred pursuant to, and on the
terms and conditions set forth in, the Xxxxxxxx Stores Inc. Deferred
Compensation Plan, as amended from time to time. If any part of Xxxxx'x
salary for a year is deferred, one-twelfth of such amount shall be deferred
each month during the year. Interest shall accrue on deferred compensation
from the last day of the month for which the compensation is deferred.
Neither Xxxxx, his estate, his wife, nor any beneficiary shall have any power
to assign or encumber the right to receive deferred compensation, and any
attempted assignment or encumbrance thereof shall be null and void.
4. Duties. Xxxxx agrees, as long as his employment by the Company
continues, to devote his 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 the Board of Directors of the Company.
5. Death, Incapacity and Other Events. Xxxxx'x employment under
this Agreement shall terminate on the earliest to occur of the following: (i)
immediately upon Xxxxx'x death, (ii) at the Company's option, immediately
when notice to Xxxxx of such termination is given after Xxxxx'x permanent
incapacity (established to the reasonable satisfaction of the Board of
Directors of the Company), (iii) at the Company's option, immediately when
notice to Xxxxx of such termination is given on or after the occurrence of
good cause for termination of his employment under this Agreement (as
determined in good faith by the Board of Directors of the Company), (iv) not
less than 30 days after notice of such termination is given to Xxxxx by the
Company, and (v) not less than six months after notice of such termination is
given to the Company by Xxxxx (unless the Company elects to have such
termination occur earlier). Notice will be deemed to be given on the earliest
of (i) when delivered, or (ii) three business days after mailed by certified
or registered mail, postage prepaid, return receipt requested, or (iii) one
business day after sent by recognized overnight courier, if to Xxxxx, to
Xxxxx'x 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 to this Agreement:
(a) Death. If employment is terminated due to Xxxxx'x death,
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 employee benefit plans
that are generally applicable to all executive officers of the Company and
that are maintained by the Company at that time. Xxxxx shall be entitled to
his accrued salary through the date of termination and the pro rata bonus, if
any, that would have been payable to Xxxxx under any bonus plan in effect at
the time of termination of Xxxxx'x employment if Xxxxx had been employed by
the Company for the entire year in which Xxxxx'x employment terminates, but
based on the actual number of days Xxxxx was employed by the Company in that
year and the actual salary paid to Xxxxx by the Company with respect to the
period through the date of termination.
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(b) Permanent Incapacity. If employment is terminated due to
Xxxxx'x permanent incapacity (established to the reasonable satisfaction of
the Board of Directors of the Company), 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 employee benefit plans that are generally
applicable to all executive officers of the Company and that are maintained
by the Company at that time. Xxxxx shall be entitled to his accrued salary
through the date of termination and the pro rata bonus, if any, that would
have been payable to Xxxxx under any bonus plan in effect at the time of
termination of Xxxxx'x employment if Xxxxx had been employed by the Company
for the entire year in which Xxxxx'x employment terminates, but based on the
actual number of days Xxxxx was employed by the Company in that year and the
actual salary paid to Xxxxx by the Company with respect to the period through
the date of termination.
(c) Termination for Good Cause. If employment is terminated
for good cause (as determined in good faith by the Board of Directors of the
Company), or if Xxxxx resigns before the expiration of the term of this
Agreement, the Company shall have no obligation to pay any salary or any
other amount in lieu thereof for any period after the date of termination of
employment. Xxxxx shall be entitled to his accrued salary through the date of
termination and the pro rata bonus, if any, that would have been payable to
Xxxxx under any bonus plan in effect at the time of termination of Xxxxx'x
employment if Xxxxx had been employed by the Company for the entire year in
which Xxxxx'x employment terminates, but based on the actual number of days
Xxxxx was employed by the Company in that year and the actual salary paid to
Xxxxx by the Company with respect to the period through the date of
termination.
(d) Termination Without Good Cause. If the Company terminates
Xxxxx'x employment without good cause before the expiration of the term of
this Agreement (other than as a result of Xxxxx'x death or permanent
incapacity), the Company shall have no obligation to pay any salary or any
other amount in lieu thereof for any period after the date of termination of
employment. Xxxxx shall be entitled to his accrued salary through the date of
termination and the pro rata bonus, if any, that would have been payable to
Xxxxx under any bonus plan in effect at the time of termination of Xxxxx'x
employment if Xxxxx had been employed by the Company for the entire year in
which Xxxxx'x employment terminates, but based on the actual number of days
Xxxxx was employed by the Company in that year and the actual salary paid to
Xxxxx by the Company with respect to the period through the date of
termination. The Option shall be exercisable to purchase all of the Common
Shares subject to the Option immediately, to the extent not already
purchased, 30 days before such termination of Xxxxx'x employment by the
Company.
(e) Transfer of Insurance Policies. If Xxxxx'x employment by
the Company is terminated for any reason except Xxxxx'x death, the Company
will cooperate with Xxxxx, to the extent Xxxxx so desires, to transfer to
Xxxxx, at no cost to the Company and in exchange for a payment by Xxxxx to
the Company equal to the value of the Company's interest in the policies, any
life and disability insurance maintained by the Company on his behalf
immediately before the termination of his employment, to the extent permitted
by the applicable insurance policies.
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(f) No Other Employment Benefits. Except for the payments and
benefits expressly provided for in this paragraph 5, Xxxxx shall not be
entitled to any salary, bonus, or any other employment benefits, however
designated, after his termination of employment with the Company.
6. Payment. Amounts equal to, or based on, salary, other than
deferred compensation, as well as death benefits, if any, pursuant to
paragraph 5.(a), other than proceeds of life insurance, and amounts equal to,
or based on, salary, if any, other than deferred compensation and proceeds of
life insurance, paid pursuant to paragraphs 5.(b), 5.(c) and 5.(d), shall be
paid in monthly or other regular periodic installments no less frequent than
monthly. Amounts equal to the pro rata portion of Xxxxx'x bonus for the year
of termination paid pursuant to paragraphs 5.(a), 5.(b), 5.(c) and 5.(d)
shall be paid at the time they are paid to other participants in the
applicable bonus plan. Deferred compensation, with interest thereon, shall be
paid as provided in the Xxxxxxxx Stores Inc. Deferred Compensation Plan, as
amended from time to time. All such payments shall be made to Xxxxx while he
is living; and in the event of his death, the payments shall be made to
Xxxxx'x wife, if she is then living, or to his estate or any beneficiary or
beneficiaries he designates in writing during his lifetime.
7. Confidentiality and Non-Solicitation.
(a) Xxxxx will not at any time during or after his employment
with the Company, directly or indirectly, disclose or make accessible to any
person or entity or use in any way for his own personal gain (i) any
confidential and secret information as to the prices, costs, discounts, or
profit margins of any goods or services sold, purchased or handled by the
Company (or its subsidiaries), or (ii) any confidential or secret information
relating to the Company's (or its subsidiaries') financial structure, store
layouts, supply sources, designs, procedures, information systems,
administration or operations, except as authorized or directed by the Company
and except that the foregoing restrictions will not apply to information
generally available to others in the Company's line of business, information
in the public domain, information disclosed or made available by the Company
to any other person on a non-confidential basis or disclosures Xxxxx is
required by law to make. Upon termination of Xxxxx'x employment with the
Company for any reason, Xxxxx will immediately return to the Company all
confidential materials over which he exercises any control.
(b) Xxxxx will not at any time during his employment by the
Company and for two years thereafter, directly or indirectly, solicit for any
purpose, interfere with, entice away from the Company (or its subsidiaries)
or hire any employee or agent of the Company (or its subsidiaries) who was
employed by the Company within one year before the termination of his
employment.
(c) Paragraphs 7.(a) and 7.(b) are intended, among other
things, to protect the confidential information described in paragraph 7.(a)
and relate to matters which are of a special and unique character, and their
violation may cause irreparable injury to the Company, the amount
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of which will be extremely difficult, if not impossible, to determine and
which cannot be adequately compensated by monetary damages alone. Therefore,
if Xxxxx breaches or threatens to breach any of those paragraphs, in addition
to any other remedies which may be available to the Company under this
agreement or at law or equity, the Company may obtain an injunction,
restraining order, or other equitable relief against Xxxxx and such other
persons and entities as are appropriate.
8. Miscellaneous Provisions. This Agreement supersedes all
previous employment agreements between the parties. 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 addition to all other
remedies available at law, it shall be specifically enforceable by any court
having jurisdiction. Paragraph headings are for convenience only and shall
not affect the construction of any provision. The rights and obligations
hereunder shall survive the expiration of the term of this Agreement.
IN THE PRESENCE OF: XXXXXXXX STORES INC.
/s/ Xxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx,
Vice Chairman of the Board
/s/ Xxxxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx,
Secretary
/s/ Xxxxx X. Xxxxx /s/ P. Xxxxxx Xxxxx
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P. Xxxxxx Xxxxx
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