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EMPLOYMENT AGREEMENT
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This Employment Agreement (the "Agreement") between Xxxxxx Xxxx ("Ford")
and Xxxxxxxx'x Inc. ("Xxxxxxxx'x" or the "Company") intended to be effective as
of June 1, 1997.
WHEREAS, Ford is currently the Executive Vice President and Chief Operating
Officer of Xxxxxxxx'x (hereinafter "EVP and COO"); and
WHEREAS, financial circumstances made it prudent and necessary for
Xxxxxxxx'x to file for reorganization pursuant to Title 11 of the United States
Code and Xxxxxxxx'x seeks to retain Ford as EVP and COO during the pendency of
the reorganization efforts in connection with the Chapter 11 bankruptcy
proceedings; and
WHEREAS, this Agreement is intended to supersede any oral or written
agreements between Xxxxxxxx'x and Ford prior to the effective date hereof which
are in any way inconsistent with this Agreement and any such agreement shall be
deemed to have been satisfied as of the effective date hereof; and
WHEREAS, in recognition of the foregoing and the services to be performed
by Ford in his position as EVP and COO, the Board of Xxxxxxxx'x has authorized
the arrangements set forth in this Agreement, subject to any approval or
modification which may be required by the United States Bankruptcy Court for the
District of Delaware where the Xxxxxxxx'x case is pending;
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NOW, THEREFORE, the parties hereby agree as follows:
1. Effective June 1, 1997, Ford shall continue to serve as EVP and COO to
perform duties consistent with duties performed by an executive in such
positions, and such other duties as directed by the Chief Executive Officer or
Board of Directors of Xxxxxxxx'x or such other individual designated by
Xxxxxxxx'x to supervise Ford. Xxxxxxxx'x shall employ Ford for the period (the
"Employment Period") commencing on June 1, 1997 (the "Commencement Date") and
ending on the first anniversary of the Commencement Date; PROVIDED, HOWEVER,
that the Employment Period shall be automatically extended thereafter so that at
no time is the term of the Agreement less than six months. The Employment Period
and any extension thereof shall be subject to the limitations contained in
paragraph 5.
2. Xxxxxxxx'x will pay to Ford a semi-monthly base salary of $7,916.66 (at
the annual rate of $190,000 if stated on an annual basis).
3. In 1997, Ford shall have a maximum bonus opportunity of up to 50% of the
annualized base salary provided in paragraph 2. Eligibility to earn such bonus
shall be subject to the conditions of the 1997 Management Incentive Plans for
Contractors Warehouse and Xxxxxxxx'x Bargain Outlet, provided that 75% of the
total potential bonus will be based on Contractors Warehouse revised business
plan results and the remaining 25% of the total potential bonus will be based
upon Xxxxxxxx'x Bargain Outlet revised business plan results.
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4. Xxxxxxxx'x shall provide Ford with standard employment benefits provided
to its other executives, except as follows:
X. Xxxx may accrue up to eight (8) weeks of earned vacation pay,
rather than the six (6) week accrual normally accorded executives at his level;
X. Xxxx will continue to be provided with his current company car or,
at Xxxxxxxx'x option, shall be provided a monthly car allowance of $750.00 in
lieu thereof;
X. Xxxx shall be eligible for severance pay in accordance with
provisions of paragraph 5 below, in lieu of any other severance payment plan,
program or entitlement.
5. Either Xxxxxxxx'x or Ford may terminate this Agreement at any time, with
or without cause, upon written notice. The termination of this Agreement and the
termination of Fords employment, shall be effective immediately upon such
notice. For purposes of this Agreement, "cause" for termination shall include
the following acts or omissions by Ford: (1) a breach of fiduciary duty; (2)
commission of a misdemeanor involving personal integrity, any felony or any
other act which brings Xxxxxxxx'x into disrepute; (3) gross negligence or
willful misconduct; or (4) other material breach of this Agreement. If
Xxxxxxxx'x terminates this Agreement with cause, if Ford is offered a
substantially equivalent senior executive management position at an equivalent
salary or if Ford terminates this Agreement for any reason, Xxxxxxxx'x will pay
Ford only the payments due and benefits accrued under paragraphs 2-4 for
services performed prior to termination. If Xxxxxxxx'x terminates this Agreement
without cause or if Ford dies or becomes permanently disabled, Xxxxxxxx'x shall
pay Ford a lump sum benefit payment equivalent to six (6) months of the
annualized base
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salary provided in paragraph 2 above, subject to applicable withholding required
by law, as well as payments due and benefits accrued under paragraphs 2-4 for
services performed prior to termination. Xxxxxxxx'x shall have no further
obligations to Ford upon termination of this Agreement, except as provided in
paragraph 9 below. In addition, in the event that Ford is offered employment in
a senior executive position with an employer other than Xxxxxxxx'x or a
successor thereto on terms and under conditions substantially equivalent to or
more favorable to Ford than the terms hereof, Ford shall notify the Company of
such offer within three business days of receipt of such offer by Ford; upon
receipt of such notice, Xxxxxxxx'x may terminate this Agreement by notice to
Ford within 30 days of receipt of such notice and shall pay Ford only the
payments due and benefits accrued under paragraphs 2 and 4 for services
performed prior to such termination.
6. All notices and other communications shall be in writing, either hand
delivered or mailed by first class registered mail, postage prepaid, if to Ford
at the address set forth below under Ford's signature, or, if to Xxxxxxxx'x, at
00 Xxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, attention of the Secretary, or at such
other address as either party shall designate by written notice to the other. No
notice shall be deemed to have been given until actually received by the party
to whom it is addressed; provided, that a certified, registered mail return
receipt, or proof of delivery from an established overnight delivery service
shall be conclusive evidence of such receipt.
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7. This Agreement may not be changed, waived, discharged or terminated
orally, but only by an instrument in writing, signed by the party against which
enforcement of such change, waiver, discharge or termination is sought, or by
order of a court with jurisdiction and authority to enter such order.
8. Neither this Agreement nor any rights or obligations hereunder may be
assigned by either party without the written consent of the other, except that
this Agreement will be binding upon and inure to the benefit of any successor or
successors of Xxxxxxxx'x whether by merger, consolidation, sale of assets or
otherwise and reference herein to Xxxxxxxx'x is intended to include any such
successor or successors, and any Bankruptcy trustee. For example, a successor
would be bound by the provisions in paragraph 5 above to provide six (6) months
of annualized base pay if Ford's employment is terminated without cause.
9. From the effective date of this Agreement, Ford will be entitled to
indemnification by Xxxxxxxx'x and limitation of liability for acts and omissions
by reason of and in his capacity as an EVP and COO of Xxxxxxxx'x as an
administrative expense under its Agreement subject to any limitations on
indemnification set forth by the Restated Certificate of Incorporation and
By-laws of Xxxxxxxx'x as in effect on the effective date of this Agreement or to
any greater extent provided by any amendment to those documents.
10. All information obtained or possessed by Ford relative to the
activities of Xxxxxxxx'x and its subsidiaries which is of a secret or
confidential nature, including business
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plans, expansion plans, marketing data, financial data, customer lists,
technical know-how, patents, trademarks, developments, inventions, processes or
administrative procedures, is the property of Xxxxxxxx'x and its subsidiaries or
its licensors, as the case may be, and Ford shall not, during the term of this
Agreement or thereafter, use any such information for the benefit of others than
Xxxxxxxx'x and its subsidiaries or disclose it to others; provided, that nothing
herein shall prevent Ford from using or availing himself of his general
commercial, technical and inventive skill, knowledge and experience, including
that pertaining to or derived from the nonsecret and nonconfidential aspects of
the business of Xxxxxxxx'x and its subsidiaries nor shall this paragraph apply
to information made available in Xxxxxxxx'x securities or bankruptcy court
filings or otherwise publically available other than by breach by Ford of his
obligations hereunder.
12. This Agreement shall be governed by and construed in accordance with
the internal laws of the State of Delaware. This Agreement embodies the entire
agreement of the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings. If any one or more of the
provisions of this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such provision shall be in effective to
the extent, but only to the extent, of such invalidity, illegibility or
unenforceability without invalidating the remainder of such invalid, illegal or
unenforceable provision or provisions or any other provision hereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written. XXXXXXXX'X INC.
By:
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Name:
Title:
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Xxxxxx Xxxx
0 Xxxx Xxx Xxxx
Xxxxx Xxxxxx, XX 00000
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