EXHIBIT 10.4
EMPLOYMENT AGREEMENT
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THIS AGREEMENT, made and entered into as of the 31st day of January, 1998,
by and between KOHL'S DEPARTMENT STORES, INC., a Delaware corporation
("Corporation"), and R. Xxxxxxxx Xxxxxxxxxx ("Executive").
W I T N E S S E T H :
WHEREAS, the Corporation desires to employ the Executive in the capacity
and under the terms set forth herein and the Executive desires to be employed by
the Corporation on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth, and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Corporation and the Executive agree as
follows:
ARTICLE I
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Employment Duties
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During the term of the Executive's employment hereunder, the Corporation
shall employ the Executive and the Executive shall serve as Vice Chairman of the
Corporation. Subject to the authority and direction of the Chairman and Chief
Executive Officer and Board of Directors of the Corporation, the Executive shall
have supervision and control over, and responsibility for, the general
management and day-to-day operation of the Corporation. The Executive shall also
have such other powers and duties as may from time to time be prescribed by the
Board of Directors of the Corporation; provided, however, that such duties are
reasonably consistent with the duties
normally performed by a Vice Chairman. The Executive's principal place of
employment shall be at the Corporation's headquarters in Menomonee Falls,
Wisconsin; provided, however, that the Executive acknowledges and agrees that he
may from time to time be required to travel outside Milwaukee, Wisconsin on
behalf of the Corporation. The Executive shall devote his entire working time
and efforts to the business affairs of the Corporation and its affiliates and
shall faithfully and to the best of his ability perform his duties hereunder,
provided that Executive may take reasonable amounts of time to serve on
corporate, civil or charitable boards or committees if such activities do not
interfere with the performance of Executive's duties hereunder. The Executive
hereby agrees to serve as an officer of the Corporation and of affiliates of the
Corporation as part of his contemplated duties hereunder without additional
compensation therefor.
ARTICLE II
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Term
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The term of the Executive's employment (the "Employment Term") under this
Agreement shall commence as of the date first above written (the "Anniversary
Date"), and shall, except as it may otherwise be subject to termination
hereunder, continue thereafter until the third anniversary of such Anniversary
Date; provided, however, that at the end of each day during the Employment Term
the Employment Term shall be automatically extended for one (1) day unless
either party shall give written
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notice to the other not less than thirty (30) days prior thereto that the
Employment Term shall not be so extended.
ARTICLE III
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Compensation
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3.1. Salary. The Corporation shall pay to the Executive an annual base
salary in the amount of Four Hundred Sixty Thousand, Twenty-four Dollars
($460,024) during the Employment Term ("Annual Base Salary"). The Executive's
Annual Base Salary shall be payable in equal installments not less frequently
than monthly. Executive's Annual Base Salary shall be reviewed by the Board of
Directors of the Corporation at least annually and may be increased by such
amount as the Board of Directors, in its sole discretion, may determine, taking
into consideration the profitability of the Corporation relative to its business
plan and such other factors as the Board of Directors may deem relevant for that
purpose. Annual Base Salary shall not be reduced after any such increase and the
term Annual Base Salary as utilized in this Agreement shall refer to Annual Base
Salary as so increased.
3.2. Bonuses. The Executive shall participate in bonus plans
established for the executive officers of the Corporation on terms no less
favorable than those applicable to other employees of the Corporation of
comparable status with the Executive.
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ARTICLE IV
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Termination of Employment
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4.1. Causes for Termination. Notwithstanding the term set forth in Article
II, above, Executive's employment hereunder may be terminated prior to the
expiration of such term upon occurrence of any of the following events:
4.11. Death. The Executive's employment shall terminate upon the
Executive's death.
4.12. Disability. The Executive's employment shall terminate in the
event of the Disability of the Executive. For purposes of this Agreement,
the term "Disability" shall be defined as the inability of the Executive to
perform his normal duties as a full-time employee of the Corporation for a
continuous period of two hundred seventy (270) consecutive days by reason
of physical or mental illness or incapacity, or for periods of physical or
mental illness or incapacity aggregating two hundred fifteen (215) business
days in any consecutive twelve (12) month period. If the Corporation
determines in good faith that the Disability of Executive has occurred it
may give the Executive written notice of its intention to terminate the
Executive's employment. In such event, Executive's employment with the
Corporation shall terminate on the thirtieth (30th) day after receipt of
such notice by the Executive unless within such thirty (30) day period
Executive shall have returned to full-time performance of
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his duties or Executive shall deliver written notice to the Corporation
disagreeing that a Disability has occurred. If there is any dispute as to
whether Executive is disabled, such question shall be submitted to a
licensed physician for the purpose of making such determination. An
examination of the Executive shall be made within thirty (30) days after
written notice by the Corporation to the Executive by a licensed physician
appointed by the Corporation. The Executive shall submit to such
examination and provide such information as such physician may request. If
the Executive shall disagree with the determination of the physician
appointed by the Corporation, he may request an examination to be conducted
by a physician of his own choosing. If the two (2) physicians shall
disagree, the two (2) physicians shall jointly appoint an independent
physician, whose determination shall be binding and conclusive on all
parties concerned for purposes of this Agreement. The termination shall be
deemed effective as of the date of the final determination of Disability.
4.13. Cause. The Corporation may terminate the Executive for
"Cause." A termination for Cause is a termination upon (a) the continued
failure by Executive to substantially perform his duties with the
Corporation (other than any such failure resulting from termination by
Executive for Good Reason) after a written demand for substantial
performance is delivered to Executive that
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specifically identifies the manner in which the Corporation believes that
Executive has not substantially performed his duties, and Executive has
failed to resume substantial performance of his duties on a continuous
basis within sixty (60) days after receiving such demand; (b) the willful
engaging by Executive in conduct which is demonstrably and materially
injurious to the Corporation, monetarily or otherwise; (c) any dishonest or
fraudulent conduct which results or is intended to result in gain to
Executive or Executive's personal enrichment at the expense of the
Corporation; or (d) Executive's conviction of a felony, misdemeanor or
criminal offense (other than traffic violations and other minor offenses).
4.14. Good Reason. The Executive may terminate his employment for
"Good Reason." "Good Reason" shall mean the occurrence of any of the
following:
(a) A change in the Executive's status, title, position or
responsibilities (including reporting responsibilities) which, in the
Executive's reasonable judgment, does not represent a promotion from his
status, title, position or responsibilities as in effect immediately
prior thereto; the assignment to the Executive of any duties or
responsibilities which, in the Executive's reasonable judgment, are
inconsistent with his status, title, position or responsibilities in
effect immediately prior to such assignment; or any
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removal of the Executive from or failure to reappoint or reelect him to
any position, except in connection with the termination of his
employment for Disability, Cause, as a result of his death or by the
Executive other than for Good Reason.
(b) The insolvency or the filing (by any party, including the
Corporation) of a petition for bankruptcy of the Corporation.
(c) Any material breach by the Corporation of this Agreement.
(d) Any purported termination of the Executive's employment for Cause
by the Corporation which does not comply with the terms of this
Agreement.
(e) The failure of the Corporation to obtain an agreement,
satisfactory to the Executive, from any successor or assign of the
Corporation, to assume and agree to perform this Agreement, as
contemplated in Section 9.4 hereof.
Provided, however, that no termination shall be for Good Reason until the
Corporation shall have had at least thirty (30) days to cure any conduct
alleged to have caused Good Reason after a written demand shall have been
delivered to the Corporation specifying the alleged conduct.
The Executive's right to terminate his employment pursuant to this
Section 4.14 shall not be affected by his incapacity due to physical or
mental illness. The
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Executive's continued employment or failure to give Notice of Termination
shall not constitute consent to, or a waiver of rights with respect to, any
circumstances constituting Good Reason hereunder.
Subject to the thirty (30) day cure period set forth above, any good
faith determination of Good Reason made by the Executive shall be
conclusive.
4.15. Voluntary. The Executive's employment shall terminate upon the
Executive's voluntary resignation as an employee of the Corporation.
4.2. Notice of Termination. Any purported termination by the Corporation or
by the Executive (other than by death of the Executive) shall be communicated by
Notice of Termination to the other. For purposes of this Agreement, a "Notice of
Termination" shall mean a written notice which (i) indicates the specific
termination provision in this Agreement relied upon, (ii) to the extent
applicable, 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) the Termination Date. For purposes of this
Agreement, no such purported termination of employment shall be effective
without such Notice of Termination.
4.3. Termination Date, etc. "Termination Date" shall mean in the case of
the Executive's death, his date of death, in the event of Executive's
Disability, the date set forth in
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Paragraph 4.12, or in all other cases, the date specified in the Notice of
Termination subject to the following:
(a) If the Executive's employment is terminated by the Corporation,
the date specified in the Notice of Termination shall be at least thirty
(30) days after the date the Notice of Termination is given to the
Executive, Provided, however, that in the case of Disability, the Executive
shall not have returned to the full-time performance of his duties during
such period of at least thirty (30) days.
(b) If the Executive's employment is terminated for Good Reason, the
date specified in the Notice of Termination shall not be less than thirty
(30) nor more than sixty (60) days after the date the Notice of Termination
is given to the Corporation.
(c) Except in the case of a termination for Disability subject to the
provisions of Paragraph 4.12, in the event that within thirty (30) days
following the date of receipt of the Notice of Termination, one party
notifies the other that a dispute exists concerning the basis for
termination, the Executive's employment hereunder shall not be terminated
except after the dispute is finally resolved and a Termination Date is
determined either by a mutual written agreement of the parties, or by a
binding and final judgment order or decree of a court of competent
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jurisdiction (the time for appeal therefrom having expired and no appeal
having been perfected).
ARTICLE V
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Obligations of the Corporation Upon Termination
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5.1. Good Reason; Other Than for Cause, Death or Disability. If,
during the Employment Term, the Corporation shall terminate the Executive's
employment other than for Cause or Disability or the Executive shall terminate
employment for Good Reason:
(a) The Corporation shall pay to the Executive in a lump sum in
cash within ten (10) days after the Termination Date the aggregate of the
following amounts:
(1) The sum of:
(i) The Executive's Annual Base Salary through the
Termination Date to the extent not theretofore paid.
(ii) The product of (x) the sum of the average bonuses
paid or payable, including any amounts that were deferred, and
the average value of any stock options and stock appreciation
rights awarded (computed solely by reference to the difference
between the value of the stock to which it relates and the
exercise price or base value thereof) to the Executive in respect
of the three (3) fiscal years immediately preceding the fiscal
year in which the Effective Date occurs (the
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"Recent Average Bonus") and (y) a fraction, the numerator of
which is the number of days completed in the current fiscal year
through the Termination Date, and the denominator of which is
365; and
(iii) Except as provided in Paragraph 5.1(b), any
compensation previously deferred by the Executive (together with
any accrued interest or earnings thereon) and any accrued
vacation pay, in each case to the extent not theretofore paid.
The sum of the amounts described in clauses (i), (ii) and
(iii)shall be hereinafter referred to as the "Accrued Obligations";
(2) The amount equal to the product of (i) the number of
days remaining in the Employment Term as of the Termination Date had
the Executive's employment not been terminated (the "Remaining
Employment Term") divided by 365, and (ii) the sum of (x) the
Executive's Annual Base Salary (increased for this purpose by any
Section 401(k) deferrals, cafeteria plan elections, or other deferrals
that would have increased Executive's Annual Base Salary if paid in
cash to Executive when earned) and (y) the Executive's Recent Average
Bonus.
(b) To the extent not theretofore paid or provided, the
Corporation shall timely pay or provide to the Executive any other amounts
or benefits required to be paid or provided or which the Executive is
eligible to receive
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after a termination of Employment under any plan, program, Policy or
practice or contract or agreement of the Corporation (such other amounts
and benefits shall be hereinafter referred to as the "Other Benefits").
5.2. Death. If the Executive's employment is terminated by reason of
the Executive's death during the Employment Term, this Agreement shall terminate
without further obligations to the Executive's legal representatives under this
Agreement, except that the Corporation shall pay or provide the Accrued
Obligations, six (6) months of Annual Base Salary, and the other Benefits. The
Accrued Obligations shall be paid to the Executive's estate or beneficiary, as
applicable, in a lump sum in cash within thirty (30) days of the Termination
Date. The six (6) months of Annual Base Salary shall be paid during the six (6)
month period following the Termination Date on a monthly basis. With respect to
the provision of Other Benefits, the term Other Benefits as utilized in this
section shall include, and the Executive's family shall be entitled to receive,
benefits at least equal to the most favorable benefits provided by the
Corporation to surviving families of peer executives of the Corporation.
5.3. Disability. If the Executive's employment is terminated by reason
of the Executive's Disability during the Employment Term, this Agreement shall
terminate without further obligations to the Executive, except that the Company
shall pay or provide the Accrued Obligations, six (6) months of Annual Base
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Salary (subject to reduction as provided below) and the Other Benefits. The
Accrued Obligations shall be paid to the Executive in a lump sum in cash within
thirty (30) days of the Termination Date. The six (6) months of Annual Base
Salary shall be paid during the six (6) month period following the termination
on a monthly basis. The six (6) months of Annual Base Salary shall be reduced by
any amounts paid to the Executive for such six (6) month period under any
disability insurance or program paid by the Corporation. With respect to the
provision of other Benefits, the term Other Benefits as utilized in this section
shall include, and the Executive shall be entitled to receive, disability and
other benefits at least equal to the most favorable of those generally provided
by the Corporation to disabled executives and/or their families to other peer
executives and their families.
5.4. Cause; Other Than for Good Reason. If the Executive's employment
shall be terminated for Cause during the Employment Term, or if the Executive
voluntarily terminates employment during the Employment Term for other than Good
Reason, this Agreement (other than Paragraph 7.3, if applicable, and Article
VIII thereof) shall terminate without further obligations to the Executive other
than the obligation to pay to the Executive Annual Base Salary through the Date
of Termination, any other amounts earned or accrued through the Termination
Date, and the amount of any compensation previously deferred by the Executive,
in each case to the extent theretofore unpaid;
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provided that if Executive voluntarily terminates Executive shall receive the
benefits normally provided upon normal or early retirement with respect to other
peer Executives and their families to the extent he qualifies therefore. All
salary or compensation hereunder shall be paid to the Executive in a lump sum in
cash within thirty (30) days of the Date of Termination.
5.5. Delinquent Payments. If any of the payments referred to in this
Article V are not paid within the time specified after the Termination Date
(hereinafter a "Delinquent Payment"), in addition to such principal sum, the
Corporation will pay to the Executive interest on all such Delinquent Payments
computed at the prime rate as announced from time to time by Bankers Trust
Company, New York, New York, or its successor, compounded monthly.
5.6. No Mitigation. In no event shall the Executive be obligated to
seek other employment or take any other action by way of mitigation of the
amounts payable to the Executive under any of the provisions of this Agreement
and such amounts shall not be reduced (except to the extent expressly set forth
herein) whether or not the Executive obtains other employment.
5.7. Excise Tax Payments.
(a) Notwithstanding anything contained in this Agreement to the
contrary, in the event that any payment or distribution to or for the
benefit of the Executive, whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise in
connection with,
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or arising out of, his employment with the Corporation (a "Payment" or
"Payments"), would be subject to the excise tax imposed by Section 4999 of
the Internal Revenue Code of 1986, as amended (the "Code")), or any
interest or penalties are incurred by the Executive with respect to such
excise tax (such excise tax, together with any interest and penalties, are
collectively referred to as the "Excise Tax"), then the Executive shall be
entitled to receive an additional payment (a "Gross-Up Payment") in an
amount such that after payment by the Executive of all taxes (including any
interest or penalties imposed with respect to such taxes), including any
Excise Tax, imposed upon the Gross-Up Payment, the Executive retains an
amount of the Gross-Up Payment equal to the Excise Tax imposed upon the
Payments.
(b) A determination shall be made as to whether and when Gross-
Up Payment is required pursuant to this Section 5.7 and the amount of such
Gross-Up Payment, such determination to be made within fifteen (15)
business days of the Termination Date, or such other time as requested by
the Corporation or by the Executive (provided the Executive reasonably
believes that any of the Payments may be subject to the Excise Tax) . Such
determination shall be made by a national independent accounting firm
selected by the Executive (the "Accounting Firm"). All fees, costs and
expenses (including, but not limited to, the cost of retaining experts) of
the Accounting Firm shall be borne by
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the Corporation and the Corporation shall pay such fees, costs and expenses
as they become due. The Accounting Firm shall provide detailed supporting
calculations, acceptable to the Executive, both to the Company and the
Executive. The Gross-Up Payment, if any, as determined pursuant to this
Section 5.7(b) shall be paid by the Corporation to the Executive within
five (5) business days of the receipt of the Accounting Firm's
determination. If the Accounting Firm determines that no Excise Tax is
payable by the Executive with respect to a Payment or Payments, it shall
furnish the Executive with an unqualified opinion that no Excise Tax will
be imposed with respect to any such Payment or Payments. Any such initial
determination by the Accounting Firm of the Gross-Up Payment shall be
binding upon the Corporation and the Executive subject to the application
of Section 5.7 (c).
(c) As a result of the uncertainty in the application of
Sections 4999 and 280G of the Code, it is possible that a Gross-Up Payment
(or a portion thereof) will be paid which should not have been paid (an
"Overpayment") or a Gross-Up Payment (or a portion thereof) which should
have been paid will not have been paid (an 'Underpayment"). An Underpayment
shall be deemed to have occurred upon notice (formal or informal) to the
Executive from any governmental taxing authority that the tax liability of
the Executive (whether in respect of the then current taxable year of the
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Executive or in respect of any prior taxable year of the Executive) may be
increased by reason of the imposition of the Excise Tax on a Payment or
Payments with respect to which the Company has failed to make a sufficient
Gross-Up Payment. An Overpayment shall be deemed to have occurred upon a
"Final Determination" (as hereinafter defined) that the Excise Tax shall
not be imposed upon a Payment or Payments with respect to which the
Executive had previously received a Gross-Up Payment. A Final Determination
shall be deemed to have occurred when the Executive has received from the
applicable governmental taxing authority a refund of taxes or other
reduction in his tax liability by reason of the Overpayment and upon either
(i) the date a determination is made by, or an agreement is entered into
with, the applicable governmental taxing authority which finally and
conclusively binds the Executive and such taxing authority, or in the event
that a claim is brought before a court of competent jurisdiction, the date
upon which a final determination has been made by such court and either all
appeals have been taken and finally resolved or the time for all appeals
has expired or (ii) the expiration of the statute of limitations with
respect to the Executive's applicable tax return. If an Underpayment
occurs, the Executive shall promptly notify the Corporation and the
Corporation shall pay to the Executive at least five (5) business days
prior to the date on which the applicable
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governmental taxing authority has requested payment, an additional Gross-Up
Payment equal to the amount of the Underpayment plus any interest and
penalties imposed on the Underpayment. If an Overpayment occurs, the amount
of the Overpayment shall be treated as a loan by the Corporation to the
Executive and the Executive shall, within ten (10) business days of the
occurrence of such Overpayment, pay to the Corporation the amount of the
Overpayment plus interest at an annual rate equal to the rate provided for
in Section 1274 (b)(2)(B) of the Code from the date the Gross-Up Payment
(to which the Overpayment relates) was paid to the Executive.
(d) Notwithstanding anything contained in this Agreement to the
contrary, in the event it is determined that an Excise Tax will be imposed
on any Payment or Payments, the Corporation shall pay to the applicable
governmental taxing authorities as Excise Tax withholding, the amount of
the Excise Tax that the Corporation has actually withheld from the Payment
or Payments.
ARTICLE VI
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Expenses
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During the term of the Executive's employment hereunder, the
Corporation shall promptly pay or reimburse the Executive for all reasonable and
necessary business expenses
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incurred by the Executive in the interest of the Corporation. The Executive
shall be required to submit an itemized account of such expenditures and such
proof as may be reasonably necessary to establish to the satisfaction of the
Corporation that the expenses incurred by the Executive were ordinary and
necessary business expenses incurred on behalf of the Corporation.
ARTICLE VII
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Fringe Benefits
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7.1. Benefits. During the term of the Executive's employment
hereunder, the Executive shall be entitled to participate in any benefit plans
and programs which the Corporation may from time to time make available to its
executive employees, including, without limitation (i) health and dental
insurance (family plan); (ii) supplemental executive medical plan (without
maximum limit); (iii) long term disability insurance; (iv) annual physical; (v)
business travel accident insurance; and (vi) financial consulting (up to Three
Thousand Five Hundred Dollars ($3,500.00) per year). The Executive acknowledges
that he shall have no vested rights in any such programs except as expressly
provided under the terms thereof and that such programs may be terminated,
modified, altered or reduced as well as supplemented.
7.2. Life Insurance. During the term of the Executive's employment
hereunder, the Corporation shall provide the Executive with term life insurance
equal to not less than three (3) times the annual salary of the Executive;
provided,
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however, that the Executive shall have the option to purchase, at his own
expense, additional insurance equal to his annual salary under such term life
insurance policy.
7.3. Health Insurance. Notwithstanding anything contained herein to
the contrary, in the event the Executive's employment with the Corporation is
terminated (i) at the expiration of the Employment Term, or (ii) prior to such
date for any reason other than (A) a termination for Cause, or (B) a voluntary
termination by the Executive for any reason other than "Good Reason" or other
than approved by the Board of Directors of the Corporation, the Corporation
shall continue, until the Executive's death, to provide the Executive and his
spouse and dependents with health insurance and a supplemental executive medical
plan (with coverage similar to that received by the Executive at the time of
such termination and covering the Executive, his spouse and his dependents (as
defined in such insurance and medical plan), provided such insurance is
reasonably available to the Corporation with respect to the Executive.
7.4. Automobile. The Executive shall be provided with an automobile of
a quality and value comparable to the automobile provided to Executive as of the
date of this Agreement for the Executive's use during the term of this
Agreement. Every two (2) years during the term of this Agreement, the Executive
shall be entitled to exchange the automobile then in his possession for a new
automobile of a quality and value comparable to the vehicle
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being replaced. The Corporation shall provide or reimburse the Executive for all
reasonable insurance and maintenance for such automobile, including repairs, gas
and oil.
7.5. Vacation. The Executive shall be entitled to such vacation time
as the Corporation may from time to time make available to its executive
employees.
ARTICLE VIII
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Non-Competition and Confidential Information
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8.1. Non-Competition. The Executive agrees that he shall not at any
time while he is employed hereunder or at any time during the Restricted Period
(as hereinafter defined), for any reason, either directly or indirectly, whether
as agent, stockholder (except as the holder of not more than five percent (5%)
of the stock of a publicly held company, provided the Executive does not
participate in the business of such company or render advice or assistance to
it), employee, officer, director, trustee, partner, consultant, proprietor or
otherwise:
(i) Engage in, render advice or assistance to, or in any way be
connected with any Competitive Entity (as hereinafter defined) located in
the Restricted Area (as hereinafter defined).
(ii) Except on behalf of the Corporation, entice or attempt to
entice any of the suppliers or customers of the Corporation, so as to
cause, or attempt to cause, any of said suppliers or customers not to do
business with the
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Corporation or to reduce or adversely change the nature of the business
done with the Corporation.
(iii) For purposes of this Paragraph 8, the following definitions
shall apply:
(A) A "Competitive Entity" shall be defined as any
business, person, firm, association, partnership, corporation or other
entity which (x) is engaged directly or indirectly in the retail
department store business or (y) which competes with the business of
the Corporation as such business is conducted from time to time during
the course of the Executive's employment hereunder.
(B) The term "Restricted Area" shall be defined during the
Executive's employment as fifty (50) miles from any store operated by
the Corporation from time to time during the course of the Executive's
employment, and after the termination of the Executive's employment it
shall be defined as fifty (50) miles from any store operated by the
Corporation during the one (1) year period prior to the termination of
the Executive's employment or during the Restricted Period.
(C) The term Restricted Period" shall be defined as two (2)
years from the date of termination of the Executive's employment
hereunder; provided, hereunder, that the Restricted Period shall be
extended
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for the period during which it is determined that the Executive is in
violation of the provisions of this Paragraphs 8.1 or 8.2.
8.2. Confidential Information. The Executive agrees that he shall not,
at any time while he is employed hereunder and during the Restricted Period,
disclose to any person who is not at the time of such disclosure, a person to
whom such disclosure has been authorized by the Board or Chief Executive officer
any confidential information regarding the Corporation or its business obtained
by the Executive while in the employ of the Corporation, including without
limitation, financial information, marketing information and pricing information
(the "Confidential Information"). The Executive acknowledges that he also
understands and agrees that the foregoing shall not constitute a waiver by the
Corporation of any right to protect its trade secrets, including rights under
Section 134.90 of the Wisconsin Statutes and any successor provision thereto.
8.3. Return of Material. The Executive agrees upon termination of his
employment with the Corporation immediately to surrender to the Corporation all
correspondence, letters, contracts, manuals, mailing lists, marketing data,
ledgers, supplies, and all other materials or records of any kind relating to
the Corporation or its business then in his possession or under his control, as
well as all copies of any of the foregoing.
8.4. Specific Performance. The Executive recognizes that irrevocable
injury may result to the Corporation and its
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business and properties, in the event of a breach by him of the restrictions
imposed by this Article VIII and that the Executive's acceptance of such
restrictions was a material factor in the Corporation's decision to enter into
this Agreement. The Executive agrees that if he shall engage in any acts in
violation of this Article VIII, the Corporation shall be entitled, in addition
to such other remedies and damages as may be available to it, to an injunction
prohibiting Executive from engaging in any such acts.
ARTICLE IX
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Miscellaneous
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9.1. Insurance. The Executive agrees to perform all acts and execute
all instruments necessary in connection with the obtaining by the Corporation of
life insurance or disability insurance on the Executive.
9.2. Waiver of Breach. No waiver by either party hereto of any breach
of any provision of this Agreement shall be deemed a waiver by such party of any
subsequent breach.
9.3. Notice. Any notice required or permitted to be given hereunder
shall be in writing and shall be deemed to be sufficiently given and received in
all respects when personally delivered or when deposited in the United States
mail, certified or registered mail, postage prepaid, return receipt requested,
addressed as follows:
IF TO THE Kohl's Department Stores, Inc.
CORPORATION: X00 X00000 Xxxxxxxxx Xxxxx
Xxxxxxxxx Xxxxx, XX 00000
Attention: Chairman
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With a Copy to: Kohl's Department Stores, Inc.
X00 X00000 Xxxxxxxxx Xxxxx
Xxxxxxxxx Xxxxx, XX 00000
Attention: General Counsel
IF TO THE R. Xxxxxxxx Xxxxxxxxxx
EXECUTIVE: 0000 Xxxxx Xxxx Xxxxx
Xxxxxxxxx Xxx, XX 00000
9.4. Assignment. This Agreement shall not be assignable by the
Corporation without the written consent of the Executive, except that if the
Corporation shall merge or consolidate with or into or transfer all or
substantially all of its assets, including goodwill, to another corporation or
other form of business organization, the Corporation shall require any successor
corporation in such merger, consolidation or transfer to assume and perform this
Agreement. The Executive may not assign, pledge or encumber any interest in this
Agreement or any part thereof without the written consent of the Corporation.
9.5. Complete Agreement; Amendment. once the term of this Agreement
commences, this Agreement shall contain the full and complete understanding and
agreement of the parties and supersede all prior agreements and understandings
between the parties with respect to the subject matter hereof. This Agreement
may not be modified, amended, terminated or discharged orally.
9.6. Fees and Expenses. The Corporation shall pay all legal fees and
related expenses (including the costs of experts, evidence and counsel)
reasonably incurred by the Executive as they become due as a result of a
position taken in good faith by the Executive with respect to (i) the
Executive's termination of
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employment.(including all such fees and expenses, if any, incurred in contesting
or disputing any such termination of employment), (ii) the Executive's hearing
before the Board as contemplated in Section 4.13 of this Agreement, (iii) the
Executive's seeking to obtain or enforce any right or benefit provided by this
Agreement or by any other plan or arrangement maintained by the Corporation
under which the Executive is or may be entitled to receive benefits or (iv) a
dispute between the Executive and the Internal Revenue Service (or any other
taxing authority) with regard to an "Underpayment" (as defined in Section 5.7 of
this Agreement).
9.7. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
9.8. Withholding Taxes. The Corporation shall deduct from all payments
to the Executive hereunder any federal, state or local withholding or other
taxes or charges which the Corporation is from time to time required to deduct
under applicable law, and all amounts payable to the Executive hereunder are
stated herein before any such deduction. The Corporation shall have the right to
rely upon written opinion of legal counsel, which may be independent legal
counsel or legal counsel regularly employed by the Corporation, if any questions
should arise as to any such deductions.
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9.9. Governing Law. This Agreement and all questions or its
interpretation, performance, enforceability and the rights and remedies of the
parties hereto shall be governed by and determined in accordance with the laws
of the State of Wisconsin.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day, month and year first above written.
KOHL'S DEPARTMENT STORES, INC.
By:/s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx, CEO
EXECUTIVE:
/s/ R. Xxxxxxxx Xxxxxxxxxx
-----------------------------------
R. Xxxxxxxx Xxxxxxxxxx
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