Exhibit 10(c)
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into as of June 11, 1998, between XXXXXXXX
STORES INC., a Michigan corporation, of Jackson, Michigan (the "Company"),
and XXXXX X. XXXXXXXX, of Jackson, Michigan ("Xxxxxxxx").
THE PARTIES HEREBY AGREE that the Employment Agreement between them,
dated as of April 15, 1998 is restated, effective May 28, 1998, as follows:
1. Employment and Term. The Company employs Xxxxxxxx as Executive
Vice President -- Marketing & Stores, and Xxxxxxxx agrees to serve in that
capacity and/or in such other capacity or capacities as the Board of
Directors of the Company deems advisable, for a term commencing April 15,
1998 and continuing through April 14, 2001, unless terminated sooner pursuant
to the provisions of paragraph 5, for the compensation and on the terms set
forth herein. The term shall automatically be extended for one additional
year each April 15, beginning April 15, 1999, unless either party gives the
other party notice before April 15 that the term shall not be extended and
unless terminated sooner pursuant to the provisions of paragraph 5. For
example, if one party gives notice on April 14, 1999 that the term will not
be extended, the term will end on April 14, 2001, unless terminated sooner
pursuant to the provisions of paragraph 5.
2. Compensation. Subject to the provisions of paragraph 5, Xxxxxxxx'x
salary shall be Two Hundred Thousand Dollars ($200,000.00) per year. Xxxxxxxx
shall also participate in such plans and additional benefits as may generally
be available from time to time to other executive officers of the Company.
3. Deferred Compensation. Xxxxxxxx may determine that payment of any
part of Xxxxxxxx'x salary for any year shall be deferred pursuant to, and on
the terms and conditions set forth in, the Xxxxxxxx Stores Inc. Deferred
Compensation Plan, as amended from time to time. If any part of Xxxxxxxx'x
salary for a year is deferred, one-twelfth of such amount shall be deferred
each month during the year. Interest shall accrue on deferred compensation
from the last day of the month for which the compensation is deferred.
Neither Xxxxxxxx, his estate, his wife, nor any beneficiary shall have any
power to assign or encumber the right to receive deferred compensation, and
any attempted assignment or encumbrance thereof shall be null and void.
4. Duties. Xxxxxxxx agrees, as long as his employment by the Company
continues, to devote his entire time and best efforts to furthering the
interests of the Company; to comply with all regulations and policies of the
Company; and to perform the duties requested by the Chief Executive Officer
or the Board of Directors of the Company.
5. Termination. Xxxxxxxx'x employment under this Agreement shall
terminate on the earliest to occur of the following: (i) immediately upon
Xxxxxxxx'x death, (ii) at the Company's option, immediately when notice to
Xxxxxxxx of such termination is given after Xxxxxxxx'x
"Disability" (as defined below), (iii) at the Company's option, immediately
when notice to Xxxxxxxx of such termination is given on or after the
occurrence of "Cause" (as defined below) for termination of his employment
under this Agreement, (iv) not less than 30 days after notice of such
termination is given to Xxxxxxxx by the Company or not less than six months
after notice of such termination is given to the Company by Xxxxxxxx (unless
the Company elects to have such termination occur earlier), and (v) the end
of the term as described in paragraph 1. "Disability" means (1) if Xxxxxxxx
is covered by a Company-provided disability insurance policy, the definition
of disability contained in, and entitling Xxxxxxxx to benefits under, that
policy, or (2) if Xxxxxxxx is not covered by such a policy, Xxxxxxxx'x
inability, whether physical or mental, to perform the normal duties of
Xxxxxxxx'x position for six consecutive months. "Cause" means (1) Xxxxxxxx'x
continued failure either to (A) devote substantially full time to Xxxxxxxx'x
employment duties (except because of Xxxxxxxx'x illness or Disability) or (B)
make a good faith effort to perform Xxxxxxxx'x employment duties; (2) any
other willful act or omission which Xxxxxxxx knew, or had reason to know,
would materially injure the Entity; (3) any breach by Xxxxxxxx of the
provisions of paragraph 7, or (4) Xxxxxxxx'x conviction of a felony involving
dishonesty or fraud. Notice will be deemed to be given on the earliest of (i)
when delivered, or (ii) three business days after mailed by certified or
registered mail, postage prepaid, return receipt requested, or (iii) one
business day after sent by recognized overnight courier, if to Xxxxxxxx, to
Xxxxxxxx'x address on the Company's corporate records, and if to the Company,
to the address of its principal executive offices. The following events
during the term of this Agreement shall have the following respective effects
on the obligations of the Company pursuant hereto:
(a) Death. If employment is terminated due to Xxxxxxxx'x
death, the Company shall (i) continue to pay an amount equal to Xxxxxxxx'x
salary, at the annual rate of his salary in effect immediately prior to his
death, from the date of his death until two years after the date of his
death, and (ii) pay the pro rata bonus, if any, that would have been payable
to Xxxxxxxx under any bonus plan in effect at the time of termination of
Xxxxxxxx'x employment if Xxxxxxxx had been employed by the Company for the
entire year in which Xxxxxxxx'x employment terminates, but based on the
actual number of days Xxxxxxxx was employed by the Company in that year and
the actual salary paid to Xxxxxxxx by the Company with respect to the period
through the date of termination. The Company may offset against the payments
described in this paragraph 5.(a) the proceeds of any life insurance policy
insuring Xxxxxxxx'x life (i) that is acquired after April 15, 1998 and does
not replace insurance provided by the Company to Xxxxxxxx as of April 15,
1998, and (ii) that are paid to a beneficiary designated by Xxxxxxxx or to
his estate, if the Company paid the premiums with respect to such insurance.
If the Company makes such an offset with respect to payments under paragraph
5.(a)(i), the remaining amounts due pursuant to paragraph 5.(a)(i) shall be
paid in equal installments over the same period set forth in paragraph
5.(a)(i). In addition to payments pursuant to this paragraph 5.(a), the
Company will continue to maintain medical and hospitalization insurance with
the same spouse and dependent coverage and in the same amounts as the
insurance maintained by the Company immediately prior to his death, for five
years after the date of Xxxxxxxx'x death. Xxxxxxxx shall cooperate with the
Company in connection with its obtaining any additional life insurance on
Xxxxxxxx'x life and any additional disability insurance with respect to
Xxxxxxxx in connection with the payments required by this paragraph 5.(a),
paragraph 5.(b) or otherwise.
(b) Disability. If employment is terminated due to Xxxxxxxx'x
Disability, the Company shall (i) continue to pay an amount equal to
Xxxxxxxx'x salary, at the annual rate in effect
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immediately prior to the date of his termination due to his Disability
("Termination Date"), from the Termination Date until two years after the
Termination Date, and after two years after the Termination Date at one-half
such annual rate until three years after the Termination Date, and (ii) pay
the pro rata bonus, if any, that would have been payable to Xxxxxxxx under
any bonus plan in effect at the Termination Date if Xxxxxxxx had been
employed by the Company for the entire year in which Xxxxxxxx'x employment
terminates, but based on the actual number of days Xxxxxxxx was employed by
the Company in that year and the actual salary paid to Xxxxxxxx by the
Company with respect to the period through the Termination Date. In addition,
the Company will continue to maintain medical, hospitalization and life
insurance with the same coverage (including any spouse and dependent
coverage) and in the same amounts as the insurance maintained by the Company
immediately prior to his incapacity, for five years after the Termination
Date. The Company may offset against any of the payments described in this
paragraph 5.(b), disability benefits, if any, paid under any insurance
maintained by the Company. In addition, if Xxxxxxxx dies at any time during
the period payments are required under this paragraph 5.(b), the Company may
offset against any of the payments described in this paragraph 5.(b) the
proceeds of any life insurance policy insuring Xxxxxxxx'x life (i) that is
acquired after April 15, 1998 and does not replace insurance provided by the
Company to Xxxxxxxx as of April 15, 1998, and (ii) that are paid to a
beneficiary designated by Xxxxxxxx or to his estate, if the Company paid the
premiums with respect to such insurance. If the Company makes such an offset
with respect to payments under paragraph 5.(b)(i), the remaining amounts due
pursuant to paragraph 5.(b)(i) shall be paid in equal installments over the
same period set forth in paragraph 5.(b)(i). Xxxxxxxx shall cooperate with
the Company in connection with its obtaining any additional life insurance on
Xxxxxxxx'x life and any additional disability insurance with respect to
Xxxxxxxx in connection with the payments required by this paragraph 5.(b),
paragraph 5.(a) or otherwise.
(c) Termination for Cause. If employment is terminated for
Cause, or if Xxxxxxxx resigns before the expiration of the term of this
Agreement, the Company shall have no obligation to pay any salary or any
other amount in lieu thereof for any period after the date of termination of
employment.
(d) Termination Without Cause. Except as otherwise provided in
paragraph 5.(e), if the Company terminates Xxxxxxxx'x employment without
Cause before the expiration of the term of this Agreement (other than as a
result of Xxxxxxxx'x death or Disability), the Company shall (i) continue to
pay an amount equal to Xxxxxxxx'x salary, at the annual rate in effect
immediately prior to such termination of employment, and shall continue to
provide medical and hospitalization insurance with the same coverage
(including any spouse and dependent coverage) and in the same amounts as the
insurance maintained by the Company immediately prior to such termination of
employment, for the balance of the term of this Agreement, without regard to
any termination as a result of Xxxxxxxx'x death, Disability, termination by
the Company for Cause, retirement, resignation or termination by the Company
without Cause, or one year, whichever is greater, and (ii) pay the pro rata
bonus, if any, that would have been payable to Xxxxxxxx under any bonus plan
in effect at the time of termination of Xxxxxxxx'x employment if Xxxxxxxx had
been employed by the Company for the entire year in which Xxxxxxxx'x
employment terminates, but based on the actual number of days Xxxxxxxx was
employed by the Company in that year and the actual salary paid to Xxxxxxxx
by the Company with respect to the period through the date of termination.
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In such event, Xxxxxxxx shall use reasonable efforts to find new employment.
Commencing one year after termination, the Company's continuing payment
obligation, if any, shall be reduced by the amount of any other salary,
consulting fees, or other compensation or remuneration for services, however
designated, received by Xxxxxxxx with respect to any remaining part of the
period covered by the Company's obligation, and its continuing medical and
hospitalization insurance obligation shall be reduced by the amount of any
other medical and hospitalization insurance provided to Xxxxxxxx with respect
to any remaining part of such period.
(e) Change in Control.
(i) Right to Receive Benefits. Xxxxxxxx shall receive
the severance benefits described in paragraph 5.(e)(ii) if (1) a
"Change in Control" (as defined in paragraph 5.(e)(iii)) occurs
during the "Period" (as defined in paragraph 5.(e)(iv)), and (2)
either (A) at any time during the period beginning 90 days before,
and ending two years after, the Change in Control, Xxxxxxxx
terminates his employment with the "Entity" (as defined in paragraph
5.(e)(vii)) for "Good Reason" (as defined in paragraph 5.(e)(viii))
or the "Entity" terminates Xxxxxxxx'x employment without Cause, or
(B) at any time during the 3rd month after the Change in Control,
Xxxxxxxx terminates his employment with the "Entity" for any reason
or for no reason.
(ii) Severance Benefits. If Xxxxxxxx is entitled to
severance benefits under paragraph 5.(e)(i), he will receive the
following:
(1) an amount equal to the annual salary
Xxxxxxxx was receiving immediately before the Change in
Control for the period (the "Time") from the date of such
termination through the later of (1) two years after the date
of such termination, and (2) the balance of the term of this
Agreement, without regard to any termination as a result of
Xxxxxxxx'x death, Disability, termination by the Company for
Cause, retirement, resignation or termination by the Company
without Cause; and
(2) a pro rata bonus for the year of such
termination equal to (1) the bonus paid or payable to Xxxxxxxx
with respect to the last full fiscal year of the Company
before the Change in Control (the "Bonus"), multiplied by (2)
a fraction, the numerator of which shall be the number of days
in the Company's fiscal year in which such termination occurs
through the date of such termination, and the denominator of
which shall be the total number of days in the Company's
fiscal year in which such termination occurs; and
(3) an amount equal to the Time (in years and
fractions of a partial year) multiplied by the amount of the
Bonus; and
(4) a continuation during the Time of (1) the
medical, dental, life, disability, hospitalization, optical
and prescription drug benefits Xxxxxxxx and Xxxxxxxx'x
dependents were receiving from the Company at the time of the
Change in Control (provided that if it is no longer practical
for the Company to furnish
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such benefits, Xxxxxxxx will be reimbursed by the Company
during the Time for the cost to Xxxxxxxx of obtaining such
benefits), and (2) any automobile allowance or benefits
(including automobile insurance and maintenance benefits), and
continued use of any automobile, provided to Xxxxxxxx by the
Company at the time of the Change in Control; and
(5) If the total amount of all payments of cash
or property in the nature of compensation contingent on a
change in the ownership or effective control of the Company or
in the ownership of a substantial portion of the Company's
assets, including, without limitation, the benefits provided
pursuant to this paragraph 5.(e)(ii) and payments relating to
any stock options or restricted stock that vest as a result of
a Change in Control, shall exceed the maximum amount that may
be paid to Xxxxxxxx and not be deemed a "parachute payment"
resulting in an excise tax to Xxxxxxxx and a loss of
compensation deduction to the Company, all within the meaning
of Section 280G of the Internal Revenue Code of 1986, as
amended, or any successor provision, the Company will pay to
Xxxxxxxx (i) the amount of any excise tax imposed on Xxxxxxxx
under Section 4999 of the Internal Revenue Code of 1986, as
amended, or any successor provision, as a result of any
payments by the Company to Xxxxxxxx pursuant to this paragraph
5.(e)(ii) and (ii) any income tax imposed on Xxxxxxxx as a
result of the payments under this paragraph 5.(e)(ii)(5)). The
benefits provided in paragraphs 5.(e)(ii)(1), 5.(e)(ii)(2),
5.(e)(ii)(3) and 5.(e)(ii)(5) shall be paid to Xxxxxxxx in an
undiscounted lump sum within 10 business days after the date
of such termination. The Company may withhold from such
payments all federal, state, city and other taxes to the
extent such taxes are required to be withheld by applicable
law.
(iii) "Change in Control". For purposes of this
Agreement, a "Change in Control" occurs on the first day any one or
more of the following occurs:
(1) any person (as such term is used in Sections
13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), together with all affiliates
and associates of such person (as such terms are defined in
Rule 12b-2 under the Exchange Act) but excluding all "Excluded
Persons" (as defined in paragraph 5.(e)(v)), becomes the
direct or indirect beneficial owner (within the meaning of
Rule 13d-3 under the Exchange Act) of securities of the
Company representing (A) 40% or more of the combined voting
power of all of the Company's outstanding securities entitled
to vote generally in the election of the Company's directors,
or (B) 40% or more of the combined shares of the Company's
capital stock then outstanding, all except in connection with
any merger, consolidation, reorganization or share exchange
involving the Company;
(2) the consummation of any merger,
consolidation, reorganization or share exchange involving the
Company, unless the holders of the Company's capital stock
outstanding immediately before such transaction own more than
50% of the combined outstanding shares of capital stock and
have more than 50% of the
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combined voting power in the surviving entity after such
transaction and they own such securities in substantially the
same proportions (relative to each other) as they owned the
Company's capital stock immediately before such transaction;
(3) the consummation of any sale or other
disposition (in one transaction or a series of related
transactions) of all, or substantially all, of the Company's
assets to a person whose acquisition of 40% or more of the
combined shares of the Company's capital stock then
outstanding would have caused a Change in Control under
paragraph 5.(e)(iii)(1)); or
(4) the "Continuing Directors" (as defined in
paragraph 5.(e)(vi)) cease to be a majority of the Company's
directors.
A determination by the Company's Continuing Directors (by resolution
of at least a majority of the Continuing Directors) as to whether a
Change in Control has occurred for purposes of this Agreement, the
date on which it has occurred or both shall be conclusive for
purposes of this Agreement.
(iv) "Period". The period (the "Period") will begin on
the date of this Agreement and end on the first to occur of (a) the
end of the term of this Agreement, without regard to any termination
as a result of Xxxxxxxx'x death, Disability, termination by the
Company for Cause, retirement, resignation or termination by the
Company without Cause, (b) Xxxxxxxx'x death, (c) Xxxxxxxx'x
Disability, and (d) 90 days after the termination of Xxxxxxxx'x
employment (voluntarily or involuntarily and with or without Cause or
Good Reason) if (1) such termination occurs before a Change in
Control, and (2) a Change in Control does not occur during such 90
day period. Notwithstanding the foregoing, (1) if Xxxxxxxx becomes
entitled to severance benefits under paragraph 5.(e)(i), the
provisions of paragraph 5.(e)(ii) of this Agreement will continue
until Xxxxxxxx'x eligibility to receive severance benefits under this
Agreement ceases and such provisions and the other provisions of this
Agreement not limited by the Period, including, without limitation,
paragraphs 5.(g), 7, 10 and 11 will survive the end of the Period.
(v) "Excluded Persons". For purposes of this Agreement,
the "Excluded Persons" are (i) Xxxxxxxx, (ii) any "group" (as that
term is used in Section 13(d) of the Exchange Act and the rules
thereunder) that includes Xxxxxxxx or in which Xxxxxxxx is, or has
agreed to become, an equity participant, (iii) any entity in which
Xxxxxxxx is, or has agreed to become, an equity participant, (iv) the
Company, (v) any subsidiary of the Company, (vi) any employee benefit
plan of the Company or any subsidiary of the Company or the related
trust, (vii) any entity to the extent it is holding capital stock of
the Company for or pursuant to the terms of any employee benefit plan
of the Company or any subsidiary of the Company, and (viii) any
director or officer of the Company as of the date of this Agreement.
For purposes of this Agreement, Xxxxxxxx shall not be deemed an
"equity participant" in any group or entity (i) in which Xxxxxxxx
owns for investment purposes only no more than 5% of the stock of a
publicly-traded entity whose stock is either listed on a national
stock exchange or quoted in The Nasdaq National Market, if Xxxxxxxx
is not
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otherwise affiliated with such group or entity, or (ii) if Xxxxxxxx'x
participation is fully-disclosed to, and approved by, the Company's
Board of Directors and the Continuing Directors before the Change in
Control occurs.
(vi) "Continuing Directors". For purposes of this
Agreement, the "Continuing Directors" are the directors of the
Company as of the date of this Agreement, and any person who
subsequently becomes a director if such person is appointed to be a
director by a majority of the Continuing Directors or if such
person's initial nomination for election or initial election as a
director is recommended or approved by a majority of the Continuing
Directors.
(vii) "Entity". For purposes of this Agreement, the
"Entity" shall mean both (1) the Company and, (2) in connection with
a Change in Control defined in paragraph 5.(e)(iii)(2) or paragraph
5.(e)(iii)(3), the survivor of the merger, consolidation,
reorganization or share exchange involving the Company and the buyer
of all, or substantially all, of the Company's assets, if such
additional entity described in this clause (2) (if other than the
Company) has offered to employ Xxxxxxxx on such terms that would not
constitute "Good Reason" for termination of Xxxxxxxx'x employment if
imposed by the Company. Therefore, for purposes of this paragraph
5.(e), Xxxxxxxx shall not be deemed to have terminated Xxxxxxxx'x
employment with the Entity for "Good Reason" and the "Entity" shall
not be deemed to have terminated Xxxxxxxx'x employment without Cause
unless such actions are taken by all entities included within the
definition of "Entity". In addition, for purposes of this paragraph
5.(e), Xxxxxxxx shall not be deemed to have terminated Xxxxxxxx'x
employment with the Entity for "Good Reason" and the "Entity" shall
not be deemed to have terminated Xxxxxxxx'x employment without Cause
if (1) the survivor of the merger, consolidation, reorganization or
share exchange involving the Company and the buyer of all, or
substantially all, of the Company's assets has offered to employ
Xxxxxxxx on such terms that would not constitute "Good Reason" for
termination of Xxxxxxxx'x employment if imposed by the Company, (2)
Xxxxxxxx refuses such employment, and (3) the Company terminates
Xxxxxxxx'x employment for any reason or for no reason.
(viii) "Good Reason". Termination of Xxxxxxxx'x
employment for "Good Reason" means Xxxxxxxx'x voluntary termination
of employment with the Entity before or after a Change in Control as
a result of (1) any change by the Entity (without Xxxxxxxx'x consent)
in Xxxxxxxx'x title from Xxxxxxxx'x title immediately before such
Change in Control, (2) any decrease by the Entity (without Xxxxxxxx'x
consent) in Xxxxxxxx'x compensation or incentives from Xxxxxxxx'x
compensation and incentives immediately before such Change in
Control, except with respect to benefits covered by clause (3);
provided that Xxxxxxxx'x bonus shall not be deemed to have decreased
if Xxxxxxxx has a substantially similar opportunity to earn a bonus
as Xxxxxxxx did in the last full fiscal year before the Change in
Control, (3) any decrease by the Entity (without Xxxxxxxx'x consent)
in Xxxxxxxx'x benefits from Xxxxxxxx'x benefits immediately before
such Change in Control, unless such decrease is applied in the same
manner to all executive officers of the Entity, (4) a substantial
change by the Entity (without Xxxxxxxx'x consent) in Xxxxxxxx'x
duties or responsibilities from Xxxxxxxx'x duties and
responsibilities immediately before such Change in Control, (5) any
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requirement by the Entity (to which Xxxxxxxx does not consent) that
Xxxxxxxx change Xxxxxxxx'x primary place of business to be outside
the metropolitan Xxxxxxx area, or (6) if the Change in Control
results in a new entity being a successor to the Company's business,
the failure of the new entity to assume expressly in writing the
Company's obligations under this Agreement and under any written
employment agreement between Xxxxxxxx and the Company in effect
immediately before the Change in Control. "Good Reason" will not
include Xxxxxxxx'x death, Disability or Retirement (as defined
below), or Xxxxxxxx'x resignation other than as provided in the
preceding sentence. For purposes of this Agreement, "Retirement"
means Xxxxxxxx'x retirement from the Entity in accordance with the
Entity's normal policies.
(f) Transfer of Insurance Policies. If Xxxxxxxx'x employment
by the Company is terminated for any reason except Xxxxxxxx'x death or
Disability, the Company will cooperate with Xxxxxxxx, to the extent Xxxxxxxx
so desires, to transfer to Xxxxxxxx, at no cost to the Company and in
exchange for a payment by Xxxxxxxx to the Company equal to the value of the
Company's interest in the policies, the life and disability insurance
maintained by the Company on his behalf immediately before the termination of
his employment, to the extent permitted by the applicable insurance policies.
If Xxxxxxxx'x employment by the Company is terminated as a result of
Xxxxxxxx'x Disability, the Company will cooperate with Xxxxxxxx, to the
extent Xxxxxxxx so desires, to transfer to Xxxxxxxx, at no cost to the
Company and in exchange for a payment by Xxxxxxxx to the Company equal to the
value of the Company's interest in the policies, the life insurance
maintained by the Company on his behalf as of the date five years after the
termination of his employment, to the extent permitted by the applicable
insurance policies.
(g) No Other Employment Benefits. The severance benefits
provided in this Agreement are exclusive and in lieu of any other severance
benefits to which Xxxxxxxx may be entitled, except for any benefits under the
terms of any stock options or restricted stock agreements Xxxxxxxx may have.
6. Payment. Amounts equal to, or based on, salary, other than
deferred compensation, as well as death benefits pursuant to paragraph 5.(a),
other than proceeds of life insurance, and amounts equal to, or based on,
salary, other than deferred compensation and proceeds of life insurance, paid
pursuant to paragraphs 5.(b) and 5.(d), shall be paid in monthly or other
regular periodic installments no less frequent than monthly. Amounts equal to
the pro rata portion of Xxxxxxxx'x bonus for the year of termination paid
pursuant to paragraphs 5.(a), 5.(b), and 5.(d) shall be paid at the time they
are paid to other participants in the applicable bonus plan. Deferred
compensation, with interest thereon, shall be paid as provided in the
Xxxxxxxx Stores Inc. Deferred Compensation Plan, as amended from time to
time. The amounts described in paragraph 5.(e) shall be paid as described in
paragraph 5.(e)(ii)(5). All such payments shall be made to Xxxxxxxx while he
is living; and in the event of his death, the payments shall be made to
Xxxxxxxx'x wife, if she is then living, or to his estate or any beneficiary
or beneficiaries he designates in writing during his lifetime.
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7. Non-Competition; Confidentiality and Non-Solicitation.
(a) Non-Competition. Xxxxxxxx will not, during Xxxxxxxx'x
employment with the Company, directly or indirectly engage in any activity
which is competitive with any business in which the Company engages.
(b) Confidential Information. Xxxxxxxx will not at any time
during or after Xxxxxxxx'x employment with the Company, directly or
indirectly, disclose or make accessible to any person or entity or use in any
way for Xxxxxxxx'x own personal gain (i) any confidential and secret
information as to the prices, costs, discounts, or profit margins of any
goods or services sold, purchased or handled by the Company (or its
subsidiaries), or (ii) any confidential or secret information relating to the
Company's (or its subsidiaries') financial structure, store layouts, supply
sources, designs, procedures, information systems, administration or
operations, except as authorized or directed by the Company and except that
the foregoing restrictions will not apply to information generally available
to others in the Company's line of business, information in the public
domain, information disclosed or made available by the Company to any other
person on a non-confidential basis or disclosures Xxxxxxxx are required by
law to make. Upon termination of Xxxxxxxx'x employment with the Company for
any reason, Xxxxxxxx will immediately return to the Company all confidential
materials over which Xxxxxxxx exercise any control.
(c) Non-Solicitation. Xxxxxxxx will not at any time during
Xxxxxxxx'x employment by the Company and for two years thereafter, directly
or indirectly, solicit for any purpose, interfere with, entice away from the
Company (or its subsidiaries) or hire any employee or agent of the Company
(or its subsidiaries) who was employed by the Company within one year before
the termination of Xxxxxxxx'x employment.
(d) Equitable Remedies. Paragraphs 7.(a), 7.(b) and 7.(c) are
intended, among other things, to protect the confidential information
described in paragraph 7.(b) and relate to matters which are of a special and
unique character, and their violation may cause irreparable injury to the
Company, the amount of which will be extremely difficult, if not impossible,
to determine and which cannot be adequately compensated by monetary damages
alone. Therefore, if Xxxxxxxx breaches or threatens to breach any of those
paragraphs, in addition to any other remedies which may be available to the
Company under this Agreement or at law or equity, the Company may obtain an
injunction, restraining order, or other equitable relief against Xxxxxxxx and
such other persons and entities as are appropriate.
8. Modification. This Agreement is the complete agreement between
Xxxxxxxx and the Company and may be modified only by a written instrument
executed by both parties.
9. Law. The internal laws of the State of Michigan shall govern this
Agreement, its construction, and the determination of any rights, duties or
remedies of the parties arising out of or relating to this Agreement.
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10. Costs of Enforcement. The Company shall pay on demand all of
Xxxxxxxx'x reasonable out-of-pocket fees, costs and expenses (including
reasonable attorneys' fees, court costs and other legal expenses and costs of
investigation) incurred by Xxxxxxxx in connection with the enforcement of
this Agreement (as amended from time to time and including any successor to
this Agreement) or in connection with any disputes concerning the meaning or
interpretation of this Agreement (as amended from time to time and including
any successor to this Agreement). During the pendency of any such enforcement
proceeding or dispute, the Company shall continue to pay the disputed amounts
and benefits provided in this Agreement (as amended from time to time and
including any successor to this Agreement), and if it fails to do so, the
Company shall pay Xxxxxxxx interest, at the prime or base rate announced from
time to time by Comerica Bank, on such amounts from the date they were due
through the date they are actually paid. The obligations contained in this
paragraph 10 shall survive the end of the Period.
11. Arbitration.
(a) Agreement to Arbitrate. Any disputes between the parties
with respect to the terms and conditions of this Agreement (as amended from
time to time and including any successor to this Agreement) (other than those
disputes with respect to which equitable relief (such as specific performance
or an injunction) is the appropriate remedy) that are not resolved within 30
days after one party notifies the other party in writing of the dispute shall
be resolved by and through binding arbitration conducted under the auspices
of the American Arbitration Association (or any like organization successor
thereto) in Jackson, Michigan. Both the foregoing agreement of the parties to
arbitrate any and all claims, and the results, determination, finding,
judgment and/or award rendered through such arbitration, shall be final and
binding on the parties to this Agreement and may be specifically enforced by
legal proceedings, and, pursuant to MCLA ss. 600.5001, the parties agree that
a judgment of any Michigan circuit court may be rendered upon any arbitration
award rendered pursuant to this paragraph 11. The parties agree and
acknowledge that money damages may not be an adequate remedy for any breach
of the provisions of this arbitration agreement and that any party may, in
his or its sole discretion, ask for specific performance and/or injunctive
relief in order to enforce or prevent any violations of the provisions of
this arbitration agreement.
(b) Procedure. Such arbitration shall be initiated by the
written notice of the dispute described in paragraph 11.(a), and such
arbitration shall be a compulsory and binding proceeding on each party. Such
arbitration proceeding shall be conducted under the commercial arbitration
rules (formal or informal) of the American Arbitration Association before one
arbitrator, and the arbitrator in any such arbitration shall be such person
who is expert in the subject matter of the dispute. The costs of the
arbitrator and the arbitration shall be borne by the Company. Each party will
bear separately the cost of its or his respective attorneys, witnesses and
experts in connection with such arbitration, subject to the Company's
obligations under paragraph 10. Time is of the essence of this arbitration
procedure, and the arbitrator shall be requested to render his or her
decision within 10 days following completion of the arbitration.
10
12. Successor Obligations. This Agreement will be binding upon and
inure to the benefit of the Company and its successors and assigns, and the
Company will require any successor to, or transferee of, all or substantially
all of its business or assets to assume all of the Company's obligations
under this Agreement (such successor or assign will be deemed, for purposes
of this Agreement, to be the Company). This Agreement will be binding upon
Xxxxxxxx and will inure to Xxxxxxxx'x benefit, but Xxxxxxxx may not assign
this Agreement without the Company's prior written consent.
13. Duplicate Copies. This Agreement may be executed in counterparts,
both of which together will be deemed an original of this Agreement.
14. Severability. The provisions of this Agreement will be deemed
severable, and if any part of any provision is held illegal, void or invalid
under applicable law, such provision may be changed to the extent reasonably
necessary to make the provision, as so changed, legal, valid and binding. If
any provision of this Agreement is held illegal, void or invalid in its
entirety, the remaining provisions of this Agreement will not in any way be
affected or impaired but will remain binding in accordance with their terms.
15. Miscellaneous Provisions. This Agreement supersedes all previous
employment and severance agreements between the parties. In addition to all
other remedies available at law, it shall be specifically enforceable by any
court having jurisdiction. Paragraph headings are for convenience only and
shall not affect the construction of any provision. The rights and
obligations hereunder, particularly but without limitation including
paragraph 5.(e), shall survive the expiration of the term of this Agreement.
IN THE PRESENCE OF: XXXXXXXX STORES INC.
By: /c/ P. Xxxxxx Xxxxx
------------------------
P. Xxxxxx Xxxxx,
Chairman of the Board and
Chief Executive Officer
By: /c/ Xxxxxxx X. Xxxxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxxxx,
Secretary
/c/ Xxxxx X. Xxxxxxxx
--------------------------
Xxxxx X. Xxxxxxxx
11
