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EXHIBIT 10.11
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made and
effective as of April 30, 1999, by and between XXXXX X. XXXXXX ("Employee"),
residing at 0000 Xxxxx Xxxxx Xxxxx, Xxxxxxxxx, Xxxx 00000, and XXXXXXX, INC., an
Ohio corporation ("Employer"), with its principal place of business at 0000 Xxxx
Xxxxxxx Xxxxxx, Xxxxxx, Xxxx 00000-0000. This Agreement is entered into under
the following circumstances:
WHEREAS, Employee and Employer entered into that certain Employment Agreement
dated May 27, 1997 ("Employment Agreement"), and that Employment Agreement has
governed the relationship of the parties through the effective date of this
Agreement;
WHEREAS, the business and structure of Employer has changed significantly since
the Employment Agreement was entered into by the parties; and
WHEREAS, the parties hereto now desire to clearly define their relationship in
the context of Employer's current business and structure and Employee's current
duties, and wish to enter into this Amended and Restated Agreement.
NOW, THEREFORE, the parties hereto, in consideration of the mutual covenants and
promises contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, do hereby enter into
the following agreement:
SECTION I. EMPLOYMENT. Employer hereby agrees to employ Employee as an executive
officer, elected by the Board of Directors, in such duties, capacities, and
responsibilities as Employer may from time to time assign Employee, and Employee
accepts such employment with Employer, subject to the terms and conditions set
forth in this Agreement. Employee is expected to be and remain an "executive
officer" of Employer during the term of his employment. Employee will report
directly to Employer's Chief Executive Officer. Upon the effective date of this
Agreement, Employee will be named Employer's Executive Vice President-General
Merchandise Manager, and is expected to remain in that position for the
foreseeable future. However, the parties hereto acknowledge and expect that
Employee's title, duties, and responsibilities will change from time to time,
upon approval of the Board of Directors, consistent with the provisions of this
section.
SECTION II. TERM OF EMPLOYMENT. This Agreement, and the employment under it,
shall commence on the day and date first written above and continue until
terminated under the provisions set forth herein. Employee may terminate this
Agreement at any time, upon 30 days written notice to Employer. The payments due
under Section IV of this Agreement will terminate upon the effectiveness of such
termination.
Employer may terminate this Agreement at any time upon 30 days written notice.
If it is terminated for Cause, as defined below, then the payments due under
Section IV of this Agreement will terminate upon the effectiveness of such
termination. If it is terminated for any reason other than Cause, then the
payments provided under Section IV shall continue for one year following the
effectiveness of such termination.
SECTION III. DUTIES OF EMPLOYEE. Employee will serve Employer faithfully and to
the best of his ability, under the direction of the Chief Executive Officer of
Employer. Employee will devote all of his time, energy, and skill during regular
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business hours to such employment. Employee shall perform such services and act
in such executive capacity as the Chief Executive Officer shall direct.
SECTION IV. COMPENSATION. A. Through the term of this Agreement, Employee's
salary shall be set at the rate of not less than $250,000 per year from the day
and date first written above.
B. Employer shall pay Employee's salary in accordance with the pay practices of
Employer, as applied to all executive officers.
C. Employee shall participate in the Xxxxxxx, Inc. Executive Compensation Plan,
as amended from time to time, and any other compensation plans or arrangements
provided to Employer's executive officers.
D. Employer shall provide Employee with a late-model automobile for Employee's
use. Employee hereby acknowledges that any personal use of such automobile shall
be taxable to him pursuant to current income tax law and regulations.
E. Employer shall grant Employee options on 25,000 shares of Employer's common
stock, pursuant to its Amended and Restated 1993 Stock Incentive Plan.
SECTION V. FAILURE TO PAY EMPLOYEE. The failure of Employer to pay Employee's
compensation as provided in Section IV may, in Employee's sole discretion, be
deemed a breach of this Agreement, and unless such breach is cured within ten
days after written notice to Employer, this Agreement shall terminate, including
the provisions of Section IX.
SECTION VI. REIMBURSEMENT OF EXPENSES. Employer shall reimburse Employee for
reasonable out-of-pocket expenses which Employee shall incur in connection with
his services for Employer rendered under this Agreement, upon presentation by
Employee of appropriate vouchers to Employer, and if in accordance with
Employer's travel and reimbursement policies.
SECTION VII. RULES AND REGULATIONS OF EMPLOYER. Employee hereby agrees to abide
by, and observe, the written policies, rules, regulations, and restrictions
imposed on employees and executive officers of Employer, as amended from time to
time, and as provided to Employee, as well as those set forth in this Agreement.
Violation of any such policies, rules, or regulations may be cause for Employer
invoking the provisions of Section VIII of this Agreement.
SECTION VIII. TERMINATION. The Chief Executive Officer of Employer may terminate
Employee, by giving written notice to Employee of such termination, at any time
with or without Cause (as defined below). Cause is defined as one or more of the
following acts or conditions taken by or created by Employee:
1. Employee's failure to strictly adhere to the terms of this
Agreement or any of Employer's written policies, rules, or
regulations, as amended from time to time and provided to
Employee.
2. Commission by Employee of a felony or any crime involving
moral turpitude; commission by Employee of any act that
exposes Employer, or any of its officers or directors, to any
criminal liability for such act of Employee; or any gross
negligence or willful misconduct in the performance of
Employee's duties that results in any detriment to Employer or
its officers or directors.
3. The death of Employee during the term of this Agreement;
provided, however, that Employer shall pay to Employee's
estate any amounts that are owed to Employee under this
Agreement at the date of death.
In the event that Employer proposes to invoke one or more of the provisions of
subsection C.1 or 2 above, Employer shall provide written notice to Employee
setting forth the specific reasons for the proposed termination and shall permit
Employee a thirty-day period in which to address and resolve the points raised
in such notice. In the event such points are not resolved to the reasonable
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satisfaction of the Chief Executive Officer of Employer, then Employee shall be
given written notice of his termination for Cause and this Agreement shall
terminate as of the date of the written notice of such termination to Employee;
provided, however, that Employer shall be liable to Employee for any amounts
owed to Employee through the date of such termination for Cause, that the
provisions of Sections IX through X shall survive such termination for Cause,
and that no further payments will be made to Employee under Section IV
subsequent to termination for Cause.
SECTION IX. SOLICITATION AFTER TERMINATION. Employee agrees that in addition to
any other limitation, for the period time after the termination of his
employment with Employer that any payment is made to Employee pursuant to this
or any other agreement or arrangement with Employee, plus one year (except a
termination caused by Employer in violation of the terms of this Agreement) and
unless otherwise specified, he will not, on behalf of himself or on behalf of
any other person, firm, or corporation, call on any of the employees of
Employer, or any of its affiliates or subsidiaries, for the purpose of
recruiting such employees to employment with Employee, his then-current
employer, or affiliates of his then-current employer. Further, Employee agrees
that, for such period, if any employee of Employer contacts Employee about
employment with Employee, his then-current employer, or any of its affiliates or
subsidiaries, Employee shall contact Employer prior to employing the prospective
employee, and shall permit Employer to discuss the matter with the prospective
employee.
SECTION X. USE OF CONFIDENTIAL INFORMATION. Employee agrees that in addition to
any other limitation, for a period of one year after termination of his
employment, regardless of the circumstances of the termination of employment, he
will not communicate to any person, firm, or corporation any information
relating to customer lists, retail prices, secrets, advertising, vendor product
pricing, nor any confidential knowledge or secrets which he might from time to
time acquire with respect to the business of the Employer, or any of its
affiliates or subsidiaries. Employee acknowledges that Employer has other
confidentiality rules set forth in its employee handbook, and other rules
imposed by NATM Buying Corp., which also apply to Employee. Except as
specifically provided elsewhere herein, this Section XII shall survive the
expiration or termination of this Agreement.
SECTION XI. INJUNCTIVE RELIEF. Employee acknowledges that the services to be
rendered are of a unique, special, and extraordinary character which would be
difficult or impossible for Employer to replace, so Employee agrees that, in the
event of a violation of any of the provisions of this Agreement, Employer shall,
in addition to any other rights and remedies available under this Agreement, at
law or otherwise, be entitled to an injunction to be issued by any court of
competent jurisdiction enjoining and restraining Employee from committing any
violation of this Agreement, and Employee hereby consents to the issuance of
such injunction.
SECTION XII. COMMUNICATIONS TO EMPLOYER. From the time this Agreement commences
until its termination, Employee shall communicate and channel to Employer all
knowledge, business, and any other matters of information which could concern or
be in any way beneficial to the business of Employer, whether acquired by
Employee before or during the term of this Agreement; provided, however, that
nothing in this Agreement shall be construed as requiring such communications
when the information is lawfully protected from disclosure as a trade secret of
a third party. Any such information communicated to Employer shall be and remain
the property of Employer, notwithstanding the subsequent termination of this
Agreement.
SECTION XIII. BINDING EFFECT; MISCELLANEOUS. A. This Agreement shall be binding
on and shall inure to the benefit of any successor or successors of Employer and
the personal representatives of Employee.
B. This Agreement constitutes the entire Agreement between the parties hereto,
and supersedes all prior discussions, drafts, negotiations, proposals, and
agreements between the parties, whether written or oral. This Agreement may not
be amended except by a written instrument executed by the parties hereto.
C. If any provision of this Agreement is ultimately determined to be invalid or
unenforceable, by a final non-appealable ruling of a court of competent
jurisdiction, the remaining provisions of this Agreement shall not be affected
by such determination, shall remain in full force and effect, and shall be
construed in manner most likely to carry out the original intent of the parties.
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D. This Agreement may be executed in any number of counterparts, each of which
shall be an original, and all of which, taken together, constitute one single,
binding, enforceable agreement.
E. Any notice given, or required to be given, under this Agreement, shall be
deemed to have been duly given if it is delivered to the addresses shown above
by either: (1) first-class mail, postage prepaid or (2) a nationally recognized
courier service. The parties may change such addresses at any time by giving
written notice to the other partly to this Agreement in the manner set forth
herein.
SECTION XIV. LAW TO GOVERN CONTRACT. This Agreement shall be governed by the
laws of the State of Ohio. The parties hereby agree that any lawsuit brought
under, by, or through this Agreement shall be brought only in a court of
competent jurisdiction in Xxxxxxxxxx County, Ohio.
SECTION XV. INDEMNIFICATION. Employee has informed Employer that he has certain
agreements with his former employer, Xxxxxx Furniture Incorporated, or its
subsidiaries or affiliates ("LFI"), that may restrict certain of his activities
with respect to Employer. Employee hereby agrees to hold Employer harmless, and
to unconditionally indemnify Employer, from any cost, loss, or expense,
including professional fees, incurred by Employer as the result of a breach, or
alleged breach, of any agreements between Employee and LFI, and he will promptly
reimburse Employer for any such costs, losses, expenses, or fees, upon
presentation of evidence and written request by Employer.
SECTION XVI. REPRESENTATIONS. Each party hereto hereby represents and warrants
that as of the effective date of this Agreement, the Employment Agreement
between them, dated as of May 17, 1997, was and is in full force and effect and
that there has been no event, action, or condition that constitutes or could
constitute a breach of, or condition of default under, such Employment
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and date first stated above.
XXXXXXX, INC., by
/s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx, its
Chief Executive Officer
/s/ XXXXX X. XXXXXX
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XXXXX X. XXXXXX
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