EXHIBIT 10.102
EMPLOYMENT AGREEMENT
BETWEEN
GOODY'S FAMILY CLOTHING, INC.
AND
XXXXXX XXXXXX
EXHIBIT 10.102
TABLE OF CONTENTS
1. Definitions..............................................................3
2. Employment...............................................................5
3. Term.....................................................................5
4. Position and Duties; Business Time.......................................5
5. Compensation.............................................................6
6. Termination of Employment................................................8
7. Obligations of the Company Upon Termination..............................9
8. Change of Control.......................................................11
9. Non-exclusivity of Rights...............................................11
10. Full Settlement.........................................................12
11. Arbitration of Disputes.................................................12
12. Confidential Information and Nonsolicitation............................12
13. Limited Indemnity.......................................................13
14. Successors..............................................................13
15. Miscellaneous...........................................................14
EXHIBIT 10.102
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), by and between GOODY'S FAMILY
CLOTHING, INC., a Tennessee corporation (the "Company"), and XXXXXX XXXXXX (the
"Executive"), shall be effective as of the 9th day of February, 2004.
RECITALS:
WHEREAS, the Company plans to hire the Executive as the Executive Vice
President, Chief Marketing Officer of the Company and Executive desires to
accept such employment, upon the terms and subject to the conditions set forth
in this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, and other good and valuable consideration, the Company and the
Executive do hereby agree as follows:
1. Definitions.
(a) "Accrued Obligations" shall mean (i) the Base Salary through the
Date of Termination, (ii) any amounts deferred by the Executive and not yet paid
by the Company pursuant to a valid election to defer the receipt of all or a
portion of such payments made in accordance with any plan of deferred
compensation sponsored by the Company and any earned but unpaid vacation pay for
the current year, (iii) any amounts or benefits owing to the Executive or to the
Executive's beneficiaries under the then applicable employee benefit plans or
policies of the Company and (iv) any amounts owing to the Executive for
reimbursement of expenses properly incurred by the Executive through the Date of
Termination and which are reimbursable in accordance with the reimbursement
policy of the Company described in Section 5(f).
(b) "Base Salary" shall have the meaning set forth in Section 5(a).
(c) "Board" shall mean the Board of Directors of the Company.
(d) "Cause" shall mean that the Executive has, in the judgment of a
majority of the Board (i) committed a felony, or committed an act of fraud,
embezzlement or theft in connection with his duties with the Company or in the
course of his employment with the Company; (ii) willfully caused damage to
property of the Company; (iii) been convicted of a criminal offense (either a
misdemeanor involving acts of dishonesty, theft or moral turpitude, or a
felony); or (iv) engaged in a willful and material breach of his obligations
under Section 4 of this Agreement which breach (under this clause iv) has been
communicated to the Executive with specificity by written notice, and which has
not been cured to the reasonable satisfaction of the Board within a reasonable
period of time, which shall not be less than ten (10) days, nor more than thirty
(30) days, following receipt of such written notice by the Executive. The
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EXHIBIT 10.102
Board shall provide the Executive with an opportunity to meet with the Board in
order to provide the Executive an opportunity to refute or explain acts or
omissions referred to in such written notice. For the purpose of this Section,
no act or omission shall be considered willful unless done or omitted to be done
in bad faith and without reasonable belief that such act or omission was done in
the best interest of the Company.
(e) A "Change of Control" of the Company shall mean and shall be
deemed to have occurred if (i) any person or group (within the meaning of Rule
13d-3 of the rules and regulations promulgated under the Securities Exchange Act
of 1934, as amended (the "1934 Act Rules")), other than Xxxxxx X. Xxxxxxxxxx,
members of his immediate family, his affiliates, trusts or private foundations
established by or on his behalf, and the heirs, executors or administrators of
Xxxxxx X. Xxxxxxxxxx, shall acquire in one or a series of transactions, whether
through sale of stock or merger, more than 50% of the outstanding voting
securities of the Company or any successor entity of the Company, (ii) all or
substantially all of the Company's assets are sold, or (iii) the shareholders of
the Company shall approve a complete liquidation or dissolution of the Company.
(f) "Change of Control Date" shall mean (i) the closing date on
which a Change of Control shall have occurred, (ii) in the case of a sale of all
or substantially all of the Company's assets, the closing date on which a Change
of Control shall have occurred after shareholder approval is obtained, or (iii)
in the case of a complete liquidation or dissolution of the Company, the date on
which shareholder approval is obtained.
(g) "Constructive Termination" shall mean a material breach by the
Company of its obligations under Section 4(a) or another material obligation of
the Company under this Agreement which failure has been communicated to the
Company with specificity by written notice, and which has not been cured within
a reasonable period of time, which shall not be less than ten (10) days, nor
more than thirty (30) days, following receipt of such written notice by the
Company.
(h) "Date of Termination" shall have the meaning set forth in
Section 6(f).
(i) "Disability" shall mean disability whereby the Executive is
unable to perform the essential functions of the position provided for by this
Agreement by reason of illness, injury or incapacity (whether physical, mental,
emotional or psychological), which cannot be reasonably accommodated, for a
period of either (i) ninety (90) consecutive days or (ii) one hundred eighty
(180) days in any consecutive three hundred sixty-five (365) day period.
(j) "Incentive Bonus" shall have the meaning as set forth in Section
5(b).
(k) "Incentive Plan" shall have the meaning as set forth in Section
5(b).
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EXHIBIT 10.102
(l) "Notice of Termination" shall have the meaning as set forth in
Section 6(e).
(m) "Qualified Plan" shall mean any retirement plan maintained by
the Company which is intended to meet the requirements of the Internal Revenue
Code of 1986, as amended.
(n) "Subsidiary" shall mean any majority-owned subsidiary of the
Company.
2. Employment. The Company hereby employs the Executive as Executive
Vice President, Chief Marketing Officer of the Company and the Executive hereby
accepts such employment.
3. Term. The Executive's employment will commence on the effective
date of this Agreement. The Executive shall be considered an at-will employee
and his employment may be terminated by either party subject to the obligations
of the parties upon such termination as set forth in this Agreement.
4. Position and Duties; Business Time.
(a) Position and Duties; Reporting. The Executive shall serve as
Executive Vice President, Chief Marketing Officer of the Company or another
position which shall be either of comparable rank or a promotion and shall
continue to have such responsibilities and duties as assigned to him by Xxxxxx
X. Xxxxxxxxxx ("Xxxxxxxxxx"), the Chairman of the Company, or the Board from
time to time, provided: (i) such assignment of such responsibilities and duties
are those which are customarily associated with the responsibilities of an
executive vice president; (ii) the position in which the Executive shall serve,
if different from the position specified in this Subsection (a), shall not have
materially diminished responsibilities or authority as compared with those of
the position expressly set forth in this Subsection (a); provided, that the
expansion into other store concepts, whether acquired or developed, and the
staffing of such concepts by other employees shall not be deemed a breach of
this provision; and (iii) the Executive shall not be required to relocate by
reason of a change in the location of the Company's principal executive offices
of more than fifty (50) miles from its then current location.
The Executive and the Company further acknowledge that during the
term of this Agreement (subject to the first and last sentences of this Section
4.(a)), the Executive shall report directly to Xxxxxxxxxx, that Xxxxxxxxxx shall
be the Executive's sole supervisor, and that the Executive shall perform his
various duties under the sole direction and control of Xxxxxxxxxx (the
"Reporting Relationship"). If Xxxxxxxxxx dies, becomes disabled (as the term
"Disability" is defined in this Agreement), is no longer employed by the
Company, or ceases his position as Chairman of the Company (collectively, a
"Transition Action"), then in the event of any Transition Action, the
Executive's Reporting Relationship shall immediately cease
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EXHIBIT 10.102
and at such time, the Executive shall then report to and be supervised by a new
chairman of the Company or to another person designated by the new chairman of
the Company or by the Board.
(b) Business Time. The Executive agrees to devote his full business
time to the business and affairs of the Company and to use his best efforts to
perform faithfully and efficiently the responsibilities assigned to him
hereunder, to the extent necessary to discharge such responsibilities, except
for:
(i) time spent in managing his personal, financial and legal
affairs and serving on corporate, civic or charitable boards or committees, in
each case only if and to the extent not substantially interfering with the
performance of such responsibilities, and
(ii) periods of vacation to which he is entitled, periods of
illness and other absences beyond his control.
It is expressly understood and agreed that the continued service by the
Executive on any boards and committees on which he is serving or with which he
is otherwise associated immediately preceding the date hereof, or his service on
any other boards and committees shall not be deemed to interfere with the
performance of the Executive's services to the Company; provided, that in the
case of boards or committees on which the Executive is not currently serving the
Executive provides written notice of his intention to serve and the Board
thereafter approves such service (other than non-compensatory positions with
local boards or committees, e.g. charitable, chamber of commerce or homeowner
associations which shall not require approval).
5. Compensation. The Executive shall be entitled to the following
compensation and benefits for as long as the Executive remains an employee of
the Company:
(a) Base Salary. The Executive shall receive a base salary (the
"Base Salary") payable in equal bi-weekly installments (or such other
installments as are provided by the Company for employees generally) at an
annual rate of $315,000. The Company shall review the Base Salary periodically
and in light of such review may, in its sole discretion, increase (but not
decrease) the Base Salary taking into account any change in the Executive's
responsibilities, increases in compensation of other executives with comparable
responsibilities, performance of the Executive and other pertinent factors, and
such adjusted Base Salary shall then constitute the "Base Salary" for purposes
of this Agreement. Notwithstanding anything to the contrary in this paragraph,
the Employee's Base Salary shall also be reviewed no later than the Company's
first quarter of fiscal 2005.
(b) Short Term Incentive Plan Bonus;. The Company has established a
"Short Term Incentive Plan" (the "Incentive Plan") under which the Executive
shall be eligible to participate for each fiscal year he holds the position
stated in Section 2 and shall be
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EXHIBIT 10.102
eligible to receive an annual incentive target bonus of not less than 60% of
Base Salary and shall be based on performance and other specific objectives
adopted by the Compensation Committee of the Board (the "Incentive Bonus").
(c) Sign-on Bonus. As additional compensation, the Company shall pay
the Executive a sign-on bonus of $100,000, payable within ten (10) days after
the date his employment with the Company commences.
(d) Incentive and Savings Plans; Retirement and Death Benefit
Programs. The Executive shall be entitled to participate in all incentive and
savings plans and programs, including stock option plans and other equity-based
compensation plans, and in all employee retirement, executive retirement and
executive death benefit plans on a basis no less favorable than that basis
generally available to executives of the Company holding comparable positions or
having comparable responsibilities.
(e) Other Benefit Plans. The Executive, his spouse and their
eligible dependents (as defined in, and to the extent permitted by, the
applicable plan), as the case may be, shall be entitled to participate in or be
covered under all medical, dental, group disability, group life, severance,
accidental death and travel accident insurance plans and programs of the Company
to the extent such plans and programs are generally available to executives of
the Company holding comparable positions or having comparable responsibilities
(f) Other Perquisites. The Executive shall also be entitled to:
(i) prompt reimbursement for all reasonable expenses incurred
by the Executive in accordance with the policies and procedures of the Company;
(ii) three (3) weeks paid vacation, such paid vacation time to
be increased (but not decreased) in accordance with Company policy;
(iii) an automobile allowance of $500 per month shall be paid
by the Company, together with gasoline expenses for such automobile, in
accordance with the Company's policies and procedures with respect thereto; and
(iv) an office or offices suitable for an executive officer
with secretarial and other assistance as shall reasonably be required by the
Executive.
(g) Relocation Allowances/Transition Allowance. The Company will
reimburse the Executive (upon presentation of appropriate vouchers or receipts
in accordance with the Company's expense reimbursement policies) up to a maximum
sum of Sixty-Three Thousand Dollars ($63,000.00) (the "Relocation Allowance")
for the following costs and expenses relating to his relocation:
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EXHIBIT 10.102
(i) all reasonable expenses of moving the Executive's
possessions from his Xxxxxx, PA residence (the "Pennsylvania
Residence") to the Executive's new permanent residence in the
Knoxville (the "Knoxville Residence") metropolitan area;
(ii) all reasonable standard fees, commissions, closing costs
and brokerage fees associated with the sale of the
Pennsylvania Residence (including reasonable attorney's fees);
and
(iii) all reasonable standard fees and closing costs
associated with the purchase of the Executive's Knoxville
Residence (including reasonable attorney's fees).
In addition to the Relocation Allowance described directly above, the
Company will pay or otherwise reimburse the Executive (upon presentation of
receipts, invoices or like-kind documentation) a sum not to exceed Twenty
Thousand Dollars ($20,000.00) (the "Transition Allowance") for the fees,
expenses and charges that are incurred by the Executive for the period of his
temporary living arrangements in Knoxville, Tennessee. At such time that the
Executive moves into the permanent Knoxville Residence, the Company will then
pay the Executive the remaining balance, if any, of the Transition Allowance.
(For example, if the Company has paid $12,000 of the Transition Allowance
through the date that Executive moves into his permanent Knoxville Residence,
then, at such time, the Company would pay the Executive the $8,000 balance of
the Transition Allowance).
(h) Equity Opportunity. The Executive shall be granted a
non-qualified stock option under the Company's 1997 Stock Option Plan on the
date of commencement of his employment with the Company to purchase an aggregate
of one hundred thousand (100,000) shares of common stock of the Company at an
exercise price equal to the closing sales price of the common stock on the
business day immediately preceding the date of grant, which option shall vest at
twenty-five thousand (25,000) shares after one (1) year after the date of the
grant; an additional twenty-five thousand (25,000) shares after the second (2nd)
year after the date of the grant; and the remaining fifty-thousand (50,000)
shares after the third (3rd) year after the date of the grant and expire ten
(10) years from the date of grant, and shall be upon such other terms and
conditions as contained in the Company's standard form of option agreement.
6. Termination of Employment.
(a) Disability; Death. The Company may terminate the Executive's
employment after having established the Executive's Disability, by giving to the
Executive written notice of its intention to terminate his employment, and his
employment with the Company shall terminate effective on the thirtieth (30th)
day after receipt of such notice if the Executive shall fail to return to
full-time performance of his duties within thirty (30) days after
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EXHIBIT 10.102
such receipt. If the Executive dies during the term of this Agreement, his
employment hereunder shall be deemed to cease as of the date of his death.
(b) Voluntary Termination by the Executive. Notwithstanding anything
in this Agreement to the contrary, the Executive may, upon not less than thirty
(30) days' written notice to the Company, voluntarily terminate employment for
any reason (including retirement under the terms of the Company's retirement
plan as in effect from time to time), provided that any termination by the
Executive pursuant to Section 6(d) on account of Constructive Termination shall
not be treated as a voluntary termination under this Section 6(b).
(c) Termination by the Company. The Company at any time may
terminate the Executive's employment for Cause or without Cause.
(d) Constructive Termination. The Executive may terminate his
employment for Constructive Termination.
(e) Notice of Termination. Any termination by the Company for Cause
or by the Executive for Constructive Termination shall be communicated by a
written Notice of Termination to the other party hereto given in accordance with
Section 15(c). For purposes of this Agreement, a "Notice of Termination" means a
written notice given in the case of a termination for Cause and in the case of
Constructive Termination which (i) indicates the specific termination provision
in this Agreement relied upon, (ii) sets forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated, and (iii) if the termination date
is other than the date of receipt of such notice, specifies the termination date
(which date shall be not more than thirty (30) days after the receipt of such
notice).
(f) Date of Termination. For the purpose of this Agreement, the term
"Date of Termination" means (i) in the case of a termination for which a Notice
of Termination is required, the date of receipt of such Notice of Termination
or, if later, the date specified therein, as the case may be, and (ii) in all
other cases, the actual date on which the Executive's employment terminates.
7. Obligations of the Company Upon Termination. Upon termination of
the Executive's employment with the Company, the Company shall have the
following obligations:
(a) Death, Disability and Retirement. If the Executive's employment
is terminated by reason of the Executive's death, Disability, or retirement on
or after the attainment of age sixty-five (65), the Company shall have no
further obligations to the Executive's legal representatives under this
Agreement other than payment of the Accrued Obligations. If the Executive's
employment is terminated by reason of the Executive's death or Disability, the
Company shall have the additional obligation, subject to the terms of the
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EXHIBIT 10.102
Incentive Plan and further provided that the Executive has been employed by the
Company for the first six (6) months of the then applicable fiscal year, to pay
a cash amount equal to a portion of the Incentive Bonus, the product of a
fraction, the numerator of which is the number of days elapsed since the date
the Incentive Plan began for the applicable fiscal year through the date of the
Disability or the date of death of the Executive, and the denominator of which
is the total number of days of the applicable fiscal year for such Incentive
Plan. Unless otherwise directed by the Executive (or, in the case of the
Incentive Plan or a Qualified Plan, as may be required by such Incentive Plan or
Qualified Plan) all Accrued Obligations shall be paid to the Executive, his
beneficiaries or his estate, as applicable, in a lump sum in cash within thirty
(30) days of the Date of Termination. In the event of the termination of the
Executive by reason of death or Disability, he and/or his named beneficiaries,
as the case may be, shall be entitled to the benefits available through the
Company sponsored plans and programs designated for such category of termination
on Schedule A. With regard to the termination of the Executive's employment by
reason of retirement on or after the attainment of age sixty-five (65) or
Disability, the Company shall pay the premiums (to the same extent paid prior to
the termination of employment) for the continued participation of the Executive
for a period of twelve (12) months after the Date of Termination in any
individual life insurance policy on the same terms as the Executive and the
Company were participating prior to the Date of Termination. Further, with
regard to the termination of the Executive's employment by reason of the
Executive's death, retirement on or after the attainment of age sixty-five (65)
or Disability, the Company shall, for a period of twelve (12) months after the
Executive's Date of Termination, pay the entire COBRA premium under any Company
medical and dental program that the Executive (and his spouse and eligible
dependents) was participating in prior to the termination of employment. The
Company's premium obligations in the preceding two sentences shall exclude
normal employee contributions paid by the Executive prior to the Date of
Termination. In addition to the foregoing, in the event of termination of the
Executive's employment by reason of the death or Disability of the Executive,
all unvested stock options held by the Executive shall become fully vested,
effective on the Date of Termination, and shall thereafter be exercisable in
accordance with the provisions of the applicable Option Plan (including, without
limitation, Sections 5 and 6 thereof) and Option Agreement.
(b) Termination by the Company for Cause and Voluntary Termination
by the Executive. If the Executive's employment shall be terminated for Cause or
voluntarily terminated by the Executive (other than on account of Constructive
Termination), the Company shall pay the Executive the Accrued Obligations. The
Executive shall be paid all such Accrued Obligations in a lump sum in cash
within thirty (30) days of the Date of Termination and the Company shall have no
further obligations to the Executive under this Agreement, unless otherwise
required by a Qualified Plan or specified pursuant to a valid election to defer
the receipt of all or a portion of such payments made in accordance with any
plan of deferred compensation sponsored by the Company.
(c) Other Termination of Employment. If the Company terminates the
Executive's employment other than for Cause, death or Disability, or the
Executive terminates
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EXHIBIT 10.102
his employment for Constructive Termination, the Company shall pay and provide
to the Executive the following:
(i) Severance Payment. The Company shall pay to the Executive
in a lump sum in cash or certified check within fifteen (15) days after the Date
of Termination a severance payment equal to the sum of the following amounts
(other than amounts payable from the Incentive Plan or Qualified Plans,
non-qualified retirement plans and deferred compensation plans, which amounts
shall be paid in accordance with the terms of such plans):
(A) all Accrued Obligations;
(B) a cash amount equal to twelve (12) months of the
Executive's Base Salary at the rate in effect as of the date when the Notice of
Termination was given;
(C) subject to the terms of the Incentive Plan and
further provided that the Executive has been employed by the Company for the
first six (6) months of the then applicable fiscal year, a cash amount equal to
a portion of the Incentive Bonus, the product of a fraction, the numerator of
which is the number of days elapsed since the date the Incentive Plan began for
the applicable fiscal year through the date of such Constructive Termination or
termination without Cause, and the denominator of which is the total number of
days of the applicable fiscal year for such Incentive Plan.
(ii) Acceleration of Option Vesting. In the case of a
Constructive Termination, all unvested stock options held by the Executive shall
become fully vested, effective on the Date of Termination, and shall be
thereafter exercisable in accordance with the provisions of the applicable
Option Plan (including, without limitation, Sections 5 and 6 thereof) and Option
Agreement.
(d) Release. As a condition precedent to the receipt of any
termination benefits payable to the Executive under this Section 7, the
Executive agrees to execute a general release among other things releasing the
Company from any obligation or liability (other than those contained in Sections
7, 8, 9, 10, 11, 13 and 14 hereof, to the extent an obligation under any such
section arose at or prior to the Date of Termination and remains unfulfilled).
Such release shall exclude the Executive's rights under any Qualified Plan.
(e) Discharge of Company's Obligations. Subject to the performance
of its obligations under Sections 7, 8, 9, 10, 11, 13, 14, and 15 (and then,
only to the extent an obligation under any such section arose at or prior to the
Date of Termination and remains unfulfilled), the Company shall have no further
obligations to the Executive under this Agreement in respect of any termination
of employment.
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EXHIBIT 10.102
8. Change of Control. Upon the occurrence of a Change of Control,
the Company shall pay the Executive, as consideration for assisting the Company
in bringing about a successful transaction, an amount equal to eighteen (18)
months of the Executive's Base Salary at the rate in effect as of the Change of
Control Date. Such amount shall be payable in a lump sum in cash or certified
check within five (5) days after the Change of Control Date.
9. Non-exclusivity of Rights. Nothing in this Agreement shall
prevent or limit the Executive's continuing or future participation in any
benefit, bonus, incentive or other plan or program provided by the Company and
for which the Executive may qualify, nor shall anything herein limit or
otherwise prejudice such rights as the Executive may have under any other
agreements with the Company, including, but not limited to stock option
agreements. Amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any plan or program of the Company at or
subsequent to the Date of Termination shall be payable in accordance with such
plan or program.
10. Full Settlement. The Executive shall not be obligated to seek
other employment by way of mitigation of the amounts payable to the Executive
under any of the provisions of this Agreement. In the event that the Executive
shall in good faith give a Notice of Termination for Constructive Termination
and it shall thereafter be determined that Constructive Termination did not take
place, the employment of the Executive shall, unless the Company and the
Executive otherwise mutually agree, be deemed to have terminated, at the date of
giving such purported Notice of Termination, by mutual consent of the Company
and the Executive and the Executive shall be entitled to receive only those
payments and benefits which he would have been entitled to receive at such date
had he terminated his employment voluntarily at such date under this Agreement.
11. Arbitration of Disputes. In the event that a claim for payment
or benefits under this Agreement is disputed, the Company and the Executive
agree to submit such dispute to final and binding arbitration with United States
Arbitration and Mediation, Inc. ("USAM") in Knoxville, Tennessee or such other
arbitration firm as the Company and the Executive shall mutually agree. Either
party wishing to arbitrate any claim hereunder shall notify the other party and
USAM in writing whereupon USAM shall select a neutral arbitrator and shall
schedule an arbitration hearing within thirty (30) days of receipt of such
notice of arbitration. The arbitration shall be conducted in accordance with the
rules and procedures of USAM. The parties agree that any arbitrator's award may
be presented to a court of competent jurisdiction and judgment entered thereon.
12. Confidential Information and Nonsolicitation.
(a) The Executive shall hold in a fiduciary capacity for the benefit
of the Company all secret or confidential information, knowledge or data,
including without limitation all trade secrets, relating to the Company, and its
business, (i) obtained by the Executive during his employment by the Company,
and (ii) which is not otherwise publicly known (other than by
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EXHIBIT 10.102
reason of an unauthorized act by the Executive) and is subject to efforts that
are reasonable under the circumstances to maintain its secrecy. After
termination of the Executive's employment with the Company, the Executive shall
not, without the prior written consent of the Company, unless compelled pursuant
to an order of a court or other body having jurisdiction over such matter,
communicate or divulge any such information, knowledge or data to anyone other
than the Company and those designated by it.
(b) Upon termination of the Executive's employment for any reason,
the Executive, for the twelve (12) month period following the Notice of
Termination, shall not, on his own behalf or on behalf of any person or entity,
directly or indirectly solicit or aid in the solicitation of any employees of
the Company to leave their employment. In the event the Executive violates the
terms of Section 12(a) or this Section 12(b), the Employee shall forfeit the
right to all salary and benefits that the Executive and/or his family members
were otherwise entitled pursuant to the terms of Section 7. Also, in the event
that this Section 12 is determined to be unenforceable in part, it shall be
construed to be enforceable to the maximum extent permitted by law.
(c) The Executive agrees that the covenants of confidentiality and
non-solicitation contained in this Section 12 are reasonable covenants under the
circumstances and necessary to protect the business interests and properties of
the Company. The Executive agrees that irreparable loss and damage will be
suffered by the Company should the Executive breach any of the covenants
contained in this Section 12. Accordingly, the Executive agrees that the
Company, in addition to all remedies provided at law or in equity, shall be
entitled to a temporary restraining order and temporary and permanent
injunctions to prevent a breach or contemplated breach of any of the covenants
contained in this Section 12.
13. Limited Indemnity. The Executive has represented to the Company
that he may have signed an employment agreement (the "Former Agreement") with
his former employer. The Company agrees to indemnify the Executive for the legal
fees and legal expenses related to any claim, demand or cause of action asserted
against the Executive by his former employer (or its subsidiaries or affiliates)
based on an allegation that the Executive breached his Former Agreement with his
former employer. The Company's indemnity to the Executive is expressly
contingent on the following:
(i) the Executive must notify the Company in writing within
five (5) days of any such claim, demand or cause of action; and
(ii) the Executive agrees that the Company may direct and
fully participate in the defense (including, without limitation, the right to
choose legal counsel to represent the Executive in any such claim, demand, or
cause of action) and settlement of any such claim, demand or cause of action.
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EXHIBIT 10.102
Notwithstanding anything to the contrary, the Company's
maximum aggregate indemnification to the Executive shall be limited solely to
the legal fees and legal expenses incurred directly by the Executive arising
from any claim, demand or cause of action related to the Former Agreement.
Except for the foregoing indemnity for legal fees and legal expenses, in no
event shall the Company be liable to the Executive or any other party for any
claim or damage related to the Executive's Former Agreement.
14. Successors.
(a) This Agreement is personal to the Executive and, without the
prior written consent of the Company, shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the Executive's legal
representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors. The Company shall require any successor to all
or substantially all of the business and/or assets of the Company, whether
direct or indirect, by purchase, merger, consolidation, acquisition of stock, or
otherwise, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent as the Company would be required to perform if no
such succession had taken place.
15. Miscellaneous.
(a) Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Tennessee, applied without
reference to principles of conflict of laws.
(b) Amendments. This Agreement may not be amended or modified
otherwise than by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
(c) Notices. All notices and other communications hereunder shall be
in writing and shall be given by hand delivery to the other party, by overnight
delivery or by registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Executive: at the address listed on the last page hereof
If to the Company: Goody's Family Clothing, Inc.
000 Xxxxx'x Xxxx
X.X. Xxx 00000
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: General Counsel
14
EXHIBIT 10.102
(with a copy to the attention of the Secretary or to such other address as
either party shall have furnished to the other in writing in accordance
herewith). Communications delivered by hand or by overnight delivery shall be
deemed received on the date of delivery and communications sent by registered or
certified mail shall be deemed received three (3) business days after the
sending thereof.
(d) Tax Withholding. The Company may withhold from any amounts
payable under this Agreement such federal, state or local taxes as shall be
required to be withheld pursuant to any applicable law or regulation.
(e) Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
(f) Captions. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect.
(g) Entire Agreement. This Agreement expresses the entire
understanding and agreement of the parties regarding the terms and conditions
governing the Executive's employment with the Company, and all prior agreements
governing the Executive's employment with the Company shall have no further
effect.
IN WITNESS WHEREOF, the Executive has hereunto set his hand and the
Company has caused this Agreement to be executed in its name on its behalf, and
its corporate seal to be hereunto affixed and attested by its Secretary, all
effective as of the day and year first above written.
GOODY'S FAMILY CLOTHING, INC.
By:
----------------------------------------
Xxxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
ATTEST:
-----------------------------
Title: Assistant Secretary
(CORPORATE SEAL)
EXECUTIVE:
--------------------------------------
Xxxxxx Xxxxxx
15
EXHIBIT 10.102
SCHEDULE A - XXXXXX XXXXXX
The following is a summary list of benefits available to the
Executive upon termination of the Executive's employment by reason of retirement
on or after the attainment of age sixty-five (65), death or Disability through
Company sponsored plans and programs as of the date of this Agreement. Nothing
herein shall preclude the Company from amending, altering, suspending,
discontinuing or terminating any of such plans and programs in compliance with
applicable law and regulation.
COVERAGE TYPE
Group Life Insurance -- Basic
High Option
Group Disability Insurance -- Basic 2 year
High Option
(benefit for 5 years)
Coverage by group life and disability insurance policies terminates upon
termination of the Executive's employment for any reason, except death (in the
case of life insurance) and disability (in the case of disability insurance).
The Executive's beneficiaries are entitled to benefits under the group life
insurance policy if the Executive dies during the period he is receiving
disability payments as a result of such disability.
In addition, the Company has a 401(k) plan in which the Executive may
participate on a voluntary basis. Company contributions therein on his behalf
vest in accordance with the terms of the 401(k) plan, which provides that such
contributions become immediately vested in the event of death during the term of
employment. Upon termination for any reason, the Executive must withdraw his
vested funds by the end of the following fiscal quarter.
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