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Exhibit 10.12
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated May 18, 1999, and effective as of the
Closing Date (as defined in the Contribution Agreement) (the "Effective Date"),
by and among Xxxxx.xxx LLC, an Ohio limited liability company (together with its
successors and assigns permitted under this Agreement, "Xxxxx.xxx"), K.B.
Consolidated, Inc., an Ohio corporation and the member of Xxxxx.xxx (together
with its successors and assigns permitted under this Agreement, "K.B.
Consolidated," and together with Xxxxx.xxx, the "Company"), and XXXXXXX
XXXXXXXXXX (the "Executive").
R E C I T A L S:
A. In connection with the Contribution Agreement by and among KB
Online Holdings, Inc., XxxxxXxxx.xxx, Inc. ("BrainPlay"), and Xxxxx.xxx dated as
of the date hereof (the "Contribution Agreement"), the Executive will become an
employee of the Company;
B. The Company and Executive desire to enter into an employment
arrangement; and
C. The Company has determined that it is in the best interests of
Xxxxx.xxx and K.B. Consolidated and their respective equityholders to enter
into this Agreement setting forth the obligations and duties of both the Company
and the Executive; and
D. The Company wishes to assure itself of the services of the
Executive for Xxxxx.xxx and K.B. Consolidated for the period hereinafter
provided, and the Executive is willing to be employed by the Company for said
period, upon the terms and conditions provided in this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt of
which is mutually acknowledged, the Company and the Executive (individually, a
"Party" and together, the "Parties") agree as follows:
1. EMPLOYMENT. The Company hereby agrees to employ the Executive,
and the Executive hereby agrees to serve the Company, on the terms and
conditions set forth herein.
2. TERM. Subject to the provisions for termination as hereinafter
provided, the term of this Employment Agreement shall begin on the Effective
Date and shall continue for two (2) years hereafter (the "Term of Employment").
This Agreement will be renewed for additional terms of one (1) year unless
either Party sends written notice of termination to the other Party within sixty
(60) days prior to the expiration of this Agreement, or any renewals hereof. The
"Term of Employment" shall be deemed to include any such renewal period.
Notwithstanding the foregoing, the provisions of Section 7(b) shall survive any
termination of this Agreement for the time periods specified therein.
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3. POSITION AND DUTIES.
(a) The Executive shall serve as Chief Executive Officer of
Xxxxx.xxx, and in such other capacity or capacities as the Board of
Managers of Xxxxx.xxx (the "Board") shall reasonably determine,
without additional compensation therefor. As Chief Executive Officer,
the Executive shall, subject to the bylaws of Xxxxx.xxx, and to the
direction of the Board, serve the Company by performing such duties
and carrying out such responsibilities as are normally related to the
position of Chief Executive Officer in accordance with the standards
of the industry.
(b) The Executive shall devote his full time and best efforts to
his employment and perform diligently such duties as are consistent
with his capacity as Chief Executive Officer of Xxxxx.xxx. The
Executive shall devote his entire working time and attention to the
performance of his responsibilities hereunder.
4. BASE SALARY. The Executive shall receive from Xxxxx.xxx an annual
base salary, payable in accordance with the regular payroll practices of
Xxxxx.xxx, of One Hundred Fifty Thousand Dollars ($150,000) (the "Minimum Annual
Compensation"). There shall be a review for merit by the Board no less often
than annually and an increase as deemed appropriate to reflect the value of
services by the Executive. At no time during the Term of Employment shall the
Executive's annual base salary fall below the Minimum Annual Compensation.
5. BONUS. The Executive shall receive a guaranteed minimum annual
bonus of Fifty Thousand Dollars ($50,000). In addition, the Executive may be
paid an additional annual bonus not in excess of Fifty Thousand Dollars
($50,000) conditioned on the achievement of certain milestones to be mutually
determined by the Executive and the Board.
6. EXPENSE REIMBURSEMENT. During the Term of Employment, the
Executive shall be entitled to prompt reimbursement by the Company for all
reasonable out-of-pocket expenses incurred by him in performing services under
this Agreement, upon submission of such accounts and records as may be required
under Company policy.
7. EFFECT OF AGREEMENT ON OTHER BENEFITS.
(a) OTHER BENEFITS. During the Term of Employment, the Executive
will be entitled to such medical, dental, life insurance, 401(k),
stock option plan and such other similar employment privileges and
benefits as are afforded generally from time to time to other
executive officers of Xxxxx.xxx and four (4) weeks paid vacation time
per year to be taken at times mutually acceptable to the Company and
the Executive.
(b) PUT OPTION. If Xxxxx.xxx has not consummated a Capital
Markets Transaction (as defined in the Contribution Agreement) on or
before the third anniversary of the Closing Date (as defined in the
Contribution Agreement), then on such date (the "Put Trigger Date"),
the Executive shall have the right, exercisable for one year after the
Put Trigger Date by written notice to the Company specifying a closing
date for such redemption at least thirty (30) days after the date of
the notice, to require Xxxxx.xxx to purchase all of
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the Executive's ownership interest in BrainPlay at such closing for a
cash purchase price equal to One Million Nine Hundred Thousand Dollars
($1,900,000) plus the amount of any cash contributions after the date
of this Agreement, so long as at the time Xxxxx.xxx is not prohibited
by law from doing so.
8. TERMINATION OF EMPLOYMENT. The Executive's employment may be
terminated under the following circumstances:
(a) DEATH. The Executive's employment is terminated upon his
death.
(b) DISABILITY. The Executive's employment may be terminated due
to illness or other physical or mental disability of the Executive,
resulting in his inability to perform substantially his duties under
this Agreement for a period of one hundred eighty (180) or more
consecutive days or for two hundred seventy (270) days in the
aggregate during any consecutive twelve (12) month period
("Disability").
(c) CAUSE. The Executive's employment may be terminated for
Cause. For purposes of this Agreement, the Company shall have "Cause"
to terminate the Executive's employment upon: (i) the Executive's
final conviction or plea of guilty or nolo contendere to a felony;
(ii) acts of the Executive which constitute willful misconduct on the
part of the Executive in connection with his duties under this
Agreement, including misappropriation or embezzlement in the
performance of his duties as an executive officer of the Company; or
(iii) willfully engaging in conduct materially injurious to the
Company and in violation of the covenants contained in this Agreement.
Notwithstanding the foregoing, the Executive will not be deemed
to have been terminated for "Cause" without an affirmative vote of not
less than eighty percent (80%) of the Board finding that in the good
faith opinion of the Board, the Executive was guilty of conduct set
forth in this subsection 8(c). Any termination for "Cause" will not be
in limitation of any other right or remedy the Company may have under
this Agreement or otherwise.
(d) GOOD REASON. The Executive's employment may be terminated for
Good Reason. For purposes of this Agreement, the Executive shall have
"Good Reason" to terminate his employment upon the occurrence of one
or more of the following events: (i) there is a material reduction or
change of the Executive's reporting relationship, job duties,
responsibilities or requirements that is inconsistent with the
position or positions listed in Section 3 and the Executive's prior
reporting relationship, duties, responsibilities or requirements; (ii)
there is a reduction in the Executive's salary or benefits then in
effect; (iii) the headquarters of the Company are relocated, or the
Company requires the Executive to relocate, to a facility or location
more than 50 miles from the Company's current location in Denver,
Colorado; or (iv) the Company materially breaches any provision of
this Agreement, which breach is not cured within thirty (30) days
after written notice thereof to the Board from the Executive.
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(e) OTHER POSITIONS. Upon termination of this Agreement by the
Executive, the Executive shall be deemed to have resigned from all
offices and directorships held by the Executive with the Company and
any subsidiaries or affiliates.
9. COMPENSATION UPON TERMINATION.
(a) If the Executive's employment is terminated as a result of
the Executive's death or is terminated by the Company as a result of
the Executive's Disability or for Cause, or is terminated by the
Executive without Good Reason, he, or his estate, shall be entitled
to:
(i) any base salary earned but not yet paid;
(ii) any bonus awarded pursuant to Section 5 of this
Agreement but not yet paid;
(iii) reimbursement in accordance with this Agreement of any
business expense incurred by the Executive but not yet paid; and
(iv) other benefits accrued and earned by the Executive
through the date of his death, Disability or termination in
accordance with applicable plans and programs of the Company.
(b) If the Executive's employment is terminated by the Company
without Cause (other than due to Disability or the Executive's death)
or is terminated by the Executive for Good Reason, he shall be
entitled to:
(i) his base salary, at the rate in effect on the date of
his termination of employment, for twenty-four (24) months
following the date of termination (the "Severance Period"),
payable in accordance with the regular payroll practices of the
Company;
(ii) any bonus earned or guaranteed pursuant to Section 5 of
this Agreement but not yet paid, payable in accordance with the
regular payroll practices of the Company;
(iii) continued participation in all employee benefit plans
or programs in which he was participating on the date of his
termination of employment, until the earlier of:
(A) the end of the Severance Period, or
(B) the date he receives equivalent coverage and
benefits under the plans and programs of a subsequent
employer;
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(iv) reimbursement in accordance with this Agreement of any
business expenses incurred by the Executive but not yet paid to
him on the date of his termination of employment; and
(v) other benefits accrued and earned by the Executive
through the date of his termination in accordance with the
applicable plans and programs of the Company.
(c) Any amounts due under this Section 9 are in the nature of
severance payments or liquidated damages or both, and they are not in
the nature of a penalty.
10. COMPENSATION UPON FAILURE OF THE COMPANY TO RENEW THE TERM OF
EMPLOYMENT.
(a) In the event of the failure of the Company to renew the
Executive's employment pursuant to Section 2 above, the Executive
shall be entitled to severance compensation as follows:
(i) his base salary, at the rate in effect on the date of
the expiration of his Term of Employment, for twenty-four (24)
months payable in accordance with the regular payroll practices
of the Company;
(ii) any bonus earned or awarded pursuant to Section 5 of
this Agreement but not yet paid, payable in accordance with the
regular payroll practices of the Company;
(iii) continued participation in all employee benefit plans
or programs in which he was participating on the date of the
expiration of his Term of Employment, until the earlier of:
(A) the second anniversary of the date of the
expiration of his Term of Employment, or
(B) the date he receives equivalent coverage and
benefits under the plans and programs of a subsequent
employer;
(iv) reimbursement in accordance with this Agreement of any
business expenses incurred by the Executive but not yet paid to
him on the date of the expiration of his Term of Employment; and
(v) other benefits accrued and earned by the Executive
through the date of the expiration of his Term of Employment in
accordance with the applicable plans and programs of the Company.
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11. COVENANTS AND CONFIDENTIAL INFORMATION.
(a) The Executive agrees that so long as he is employed by the
Company and for a period of two (2) years thereafter and, as to
subsection 11(a)(iv) below, at any time after the Term of Employment
he will not, directly or indirectly, do or suffer any of the
following:
(i) Own, manage, control or participate in the ownership,
management or control of, or be employed or engaged by or
otherwise affiliated or associated as a consultant, independent
contractor or otherwise with, any other corporation, partnership,
proprietorship, firm, association or other business entity or
otherwise engage in any business that is engaged in any manner
in, or otherwise competes with, the business of Xxxxx.xxx or any
of its subsidiaries (as conducted on the date the Executive
ceases to be employed by the Company in any capacity, including
as a consultant) in any state in the United States or any foreign
country in which Xxxxx.xxx or its subsidiaries are then doing
business and then only with respect to the business of Xxxxx.xxx
or its subsidiaries then being conducted in such states or
countries; provided, however, that the ownership of not more than
1% of the stock of any publicly traded corporation shall not be
deemed a violation of this covenant.
(ii) Induce any person who is an employee, officer, agent,
customer or supplier of Xxxxx.xxx or any of its subsidiaries to
terminate said relationship.
(iii) Solicit or direct business of any current or
prospective customers of Xxxxx.xxx or its subsidiaries, who are
current or prospective customers during the Term of Employment,
in competition with any product or service being offered by
Xxxxx.xxx or its subsidiaries, either for himself or for any
other individual or entity or advise any person or entity with
respect thereto. As used herein, "customer" means any customer of
Xxxxx.xxx or its subsidiaries whose identity the Executive
learned through his employment with the Company or with whom the
Executive and/or Xxxxx.xxx had business contact with respect to
the business of the Company during the twelve (12) month period
immediately before the Executive's employment with the Company
terminated.
(iv) Disclose, divulge, discuss, copy or otherwise use or
suffer to be used in any manner in competition with, or contrary
to the interests of, the Company or its subsidiaries, the
customer lists, product research or engineering data,
requirements, prices or other trade secrets of the Company or its
subsidiaries, it being acknowledged by the Executive that all
such information regarding the business of the Company and its
subsidiaries, compiled or obtained by, or furnished to, the
Executive while the Executive shall have been employed by or
associated with the Company is confidential information and the
Company's exclusive property. Upon termination of this Agreement,
Executive shall promptly return to the Company all books,
manuals, reports, client and customer lists, keys and other
materials referred to above and any other materials that belong
to the Company.
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(b) All business ideas, concepts, inventions, improvements and
developments made or conceived by the Executive during the Term of
Employment and relating to the business of the Company or to any
business or product the Company is actively considering entering or
developing, shall become and remain the exclusive property of the
Company, its successors and assigns.
(c) The Executive expressly agrees and understands that the
remedy at law for any breach by him of this Section 11 will be
inadequate and that the damages flowing from such breach are not
readily susceptible of being measured in monetary terms. Accordingly,
it is acknowledged that upon adequate proof of the Executive's
violation of any legally enforceable provision of this Section 11, the
Company shall be entitled to seek immediate injunctive relief and may
obtain a temporary order restraining any threatened or further breach.
Nothing in this Section 11 shall be deemed to limit the Company's
remedies at law or in equity for any breach by the Executive of any of
the provisions of this Section 11 that may be pursued or availed of by
the Company.
(d) In the event that the Executive shall violate any legally
enforceable provision of this Section 11 as to which there is a
specific time period during which he is prohibited from taking certain
actions or from engaging in certain activities, as set forth in such
provision, then such violation shall toll the running of that time
period from the date of its commencement until the date of its
cessation.
(e) The Executive has carefully considered the nature and extent
of the restrictions upon him and the rights and remedies conferred
upon the Company under this Section 11, and hereby acknowledges and
agrees that the same (i) were a material inducement to the parties
thereto in entering into the Contribution Agreement, and (ii) are
reasonable in time and territory, are designed to eliminate
competition that would otherwise be unfair to the Company, do not
stifle the inherent skill and experience of the Executive, would not
operate as a bar to the Executive's sole means of support, are fully
required to protect the legitimate interests of the Company and do not
confer a benefit upon the Company disproportionate to the detriment to
the Executive.
12. WITHHOLDING TAXES. All payments to the Executive or his
beneficiary shall be subject to withholding on account of federal, state and
local taxes as required by law. If any payment hereunder is insufficient to
provide the amount of such taxes required to be withheld, the Company may
withhold such taxes from any other payment due the Executive or his beneficiary.
In the event all cash payments due the Executive are insufficient to provide the
required amount of such withholding taxes, the Executive or his beneficiary,
within five days after written notice from the Company, shall pay to the Company
the amount of such withholding taxes in excess of all cash payments due the
Executive or his beneficiary.
13. ASSIGNABILITY; BINDING NATURE. This Agreement shall be binding
upon and inure to the benefit of the Parties and their respective successors,
heirs (in the case of the Executive) and assigns. No rights or obligations of
the Company under this Agreement may be assigned or transferred by the Company
except that such rights or obligations may be assigned or transferred pursuant
to (a) a merger or consolidation in which the Company is not the continuing
entity or (b) a
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sale or liquidation of all or substantially all of the assets of the Company,
provided that the assignee or transferee is the successor to all or
substantially all of the assets of the Company and such assignee or transferee
assumes the liabilities, obligations and duties of the Company, as contained in
this Agreement, either contractually or as a matter of law. The Company further
agrees that, in the event of a sale of assets or liquidation as described in the
preceding sentence, it will use its best efforts to cause such assignee or
transferee expressly to assume the liabilities, obligations and duties of the
Company hereunder. No obligations of the Executive under this Agreement may be
assigned or transferred by the Executive.
14. ENTIRE AGREEMENT. Except to the extent otherwise provided herein,
this Agreement contains the entire understanding and agreement between the
Parties concerning the subject matter hereof and supersedes any prior
agreements, whether written or oral, between the Parties concerning the subject
matter hereof.
15. AMENDMENT OR WAIVER. No provision in this Agreement may be
amended unless such amendment is agreed to in writing and signed by both the
Executive and an authorized officer of the Company. No waiver by either Party of
any breach by the other Party of any condition or provision contained in this
Agreement to be performed by such other Party shall be deemed a waiver of a
similar or dissimilar condition or provision at the same or any prior or
subsequent time. Any waiver must be in writing and signed by the Executive or an
authorized officer of the Company, as the case maybe.
16. SEVERABILITY. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, in
whole or in part, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect to the fullest extent
permitted by law.
17. SURVIVORSHIP. The respective rights and obligations of the
Parties hereunder shall survive any termination of the Executive's employment
with the Company to the extent necessary to the intended preservation of such
rights and obligations as described in this Agreement.
18. GOVERNING LAW. This Agreement shall be governed by and construed
and interpreted in accordance with the laws of the State of Colorado, without
reference to principles of conflict of laws.
19. NOTICES. Any notice given to either Party shall be in writing and
shall be deemed to have been given when delivered personally or one (1) day
after having been sent by overnight courier service or three (3) days after
having been sent by certified or registered mail, postage prepaid, return
receipt requested, duly addressed to the Party concerned at the address
indicated below or to such changed address as such Party may subsequently give
such notice of:
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If to the Company or the Board Xxxxx.xxx LLC/K.B. Consolidated, Inc.
or the Board of Directors: c/o Consolidated Stores Corporation
000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000-0000
Attention: General Counsel
With a copy to: Benesch, Friedlander, Xxxxxx & Xxxxxxx LLP
0000 XX Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx Xxxxx, Esq.
If to the Executive: Xxxxxxx Xxxxxxxxxx
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
With a copy to: Xxxxxxx Phieger & Xxxxxxxx LLP
0000 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxxx, Esq.
20. HEADINGS. The headings of the sections contained in this
Agreement are for convenience only and shall not be deemed to control or affect
the meaning or construction of any provision of this Agreement.
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21. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of
the date and year first above written.
XXXXX.XXX LLC
By: K.B. Consolidated, Inc., its Member
By: /s/Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
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Title: Executive Vice President
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K.B. CONSOLIDATED, INC.
By: /s/Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
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Title: Executive Vice President
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XXXXXXX XXXXXXXXXX
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XXX XXXXXXXX:
Consolidated Stores Corporation, an Ohio corporation ("CSC"), on behalf
of itself and its Affiliates, hereby guarantees the payment of any unpaid amount
required to be paid by Xxxxx.xxx to the Executive pursuant to Section 7(b) of
this Agreement.
The liability of CSC under this Guaranty shall be irrevocable,
absolute, independent and unconditional and shall not be affected by any
circumstance which might constitute a discharge of a surety or guarantor other
than the indefeasible payment and performance in full of the obligations set
forth in Section 7(b) of this Agreement. In furtherance of the foregoing and
without limiting the generality thereof, CSC agrees that its liability with
respect to such obligations shall remain in full force and effect without
regard to, and shall not be impaired by, nor shall CSC be exonerated or
discharged by, (a) any insolvency, bankruptcy, reorganization, arrangement,
adjustment, composition, assignment for the benefit of creditors, liquidation,
winding up or dissolution of Xxxxx.xxx, CSC or any of its Affiliates; (b) any
limitation, discharge, or cessation of the liability of Xxxxx.xxx, CSC or its
Affiliates for any of the obligations due to any statute, regulation or rule of
law, or any invalidity or unenforceablity in whole or in part of any of the
obligations; (c) any merger, acquisition, consolidation or change in structure
of Xxxxx.xxx, CSC or its Affiliates, or any sale, lease, transfer or other
disposition of any or all of the assets or shares of Xxxxx.xxx, CSC or its
Affiliates; (d) any claim, defense, counterclaim or setoff, other than that of
prior performance, that Xxxxx.xxx, CSC or its Affiliates may have or assert,
including, without limitation any defense or incapacity or lack of corporate or
other authority to execute or deliver this Guaranty or any other document
related hereto; and (e) any direction of application pursuant to Xxxxx.xxx, CSC
or its Affiliates.
CONSOLIDATED STORES CORPORATION
By: /s/Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Chairman & CEO
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