EXHIBIT 10.23
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
December 17, 2003, by and between BAKERS FOOTWEAR GROUP, INC., a Missouri
corporation (the "Company"), and Xxxxxxxx X. Xxxxxxx, Xx. ("Employee").
W I T N E S S E T H :
WHEREAS, the Company desires to retain the services of Employee as
Chief Financial Officer and Executive Vice President of the Company; and
WHEREAS, the Company and Employee desire to enter into this Agreement
to set forth the terms and conditions of the employment relationship between the
Company and Employee.
NOW, THEREFORE, in consideration of the mutual premises contained in
this Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Term. Employee's term of employment (the "Employment Term")
under this Agreement shall be one (1) year, commencing on December 17, 2003, and
shall continue for a period through and including December 16, 2004, and shall
automatically renew for successive one (1) year terms, unless (a) either party
notifies the other in writing of its or his intention not to extend Employee's
Employment Term at least sixty (60) calendar days prior to the end of the then
Employment Term, or (b) the Employment Term is earlier terminated pursuant to
the terms and conditions set forth in this Agreement.
2. Duties. Employee shall perform all duties incident to the
position of Chief Financial Officer/Executive Vice President as well as any
other duties as may from time to time be assigned by the Chairman and Chief
Executive Officer of the Company or his designee, and agrees to abide by all
By-laws, policies, practices, procedures or rules of the Company.
Employee may be reassigned or transferred to another management position, as
designated by the Chairman and Chief Executive Officer of the Company, which may
or may not provide the same level of responsibility as the initial assignment,
in accordance with the terms and conditions of this Agreement.
3. Exclusive Services and Best Efforts. Employee agrees to devote
his best efforts, energies and skill to the discharge of the duties and
responsibilities attributable to his position, and to this end, he will devote
his full time and attention exclusively to the business and affairs of the
Company. Employee also agrees that he shall not take personal advantage of any
business opportunities that arise during his employment and that may benefit the
Company. All material facts regarding such opportunities must be promptly
reported to the Chairman and Chief Executive Officer for consideration by the
Company.
4. Base Salary. During the Employment Term, the Company shall pay
Employee a salary, at a rate per annum to be determined from time to time by the
Compensation Committee of the Board of Directors, but at no time shall it be
less than $100,000 per annum, payable in equal installments at such payment
intervals as are the usual custom of the Company, but not less often than
monthly.
5. Bonus. Employee shall be eligible to participate in the
Company Executive Bonus Plan (the "Plan") on the same basis as other
participants at his level and pursuant to the terms of the Plan in effect on the
date eligibility for a bonus is determined.
6. Benefit Plans. During the Employment Term and as otherwise
provided herein, Employee shall be entitled to participate in any and all
employee welfare and health benefit plans (including, but not limited to,
medical insurance, dental insurance, and disability insurance plans) and other
employee benefit plans, including, but not limited to, the Company 401(k) plan,
established by the Company from time to time for the benefit of all executives
of the Company.
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Employee shall be entitled to paid vacation from work in accordance with the
terms of the Company's vacation policy. Employee shall be required to comply
with the conditions attendant to coverage by such plans and policies and shall
comply with and be entitled to benefits only in accordance with the terms and
conditions of such plans and policies as they may be amended from time to time.
Nothing herein contained shall be construed as requiring the Company to
establish or continue any particular benefit plan in discharge of its
obligations under this Employment Agreement.
7. Deduction from Salary and Benefits. The Company may withhold
from any salary or benefits payable to Employee all federal, state, local and
other taxes and other amounts as permitted or required pursuant to law or legal
compulsion.
8. Reimbursement of Business Expenses. Employee shall be paid or
reimbursed for all reasonable, ordinary and necessary business expenses incurred
by Employee in the performance of his responsibilities and the promotion of the
Company's businesses, including any air travel, lodging, and automobile and
related travel expenses. Employee shall submit to the Company periodic
statements of all expenses so incurred. Subject to such audits as the Company
may deem necessary, the Company shall reimburse Employee the full amount of any
such expenses advanced by him in the ordinary course of business.
9. Change of Control. (a) In the event that (i) there is a Change
of Control of the Company, and (ii) such Change of Control results in (a) a
material diminution of the nature and status of Employee's duties and
responsibilities or (b) the termination of Employee's employment without cause,
Employee shall receive an aggregate payment in one lump sum within thirty (30)
days of such termination, totaling an amount equal to six months of the
Employee's Base Salary in effect at the time of Employee's termination.
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(b) For the purpose of this Agreement, a "Change of
Control" shall mean there has been: (i) A sale by the stockholders of the
Company of more than 50% of either the then outstanding shares of common stock
or the combined voting power of the Company's then outstanding voting securities
entitled to vote generally in the election of directors; (ii) A sale of all or
substantially all of the assets of the Company; or (iii) A relocation of the
Company's home office to a location more than 50 miles from its current
location; or (iv) A reorganization, merger or consolidation, resulting in the
stockholders of the Company immediately prior to such reorganization, merger or
consolidation, immediately thereafter owing, directly or indirectly, less than
50% of the combined voting power entitled to vote generally in the election of
directors of the reorganized, merged or consolidated company. Any transaction
referred to in this paragraph must be to a party not related to a shareholder
for the same to constitute a Change of Control.
10. Death. The Employment Term shall terminate on the date of
Employee's death, in which event Employee's salary and benefits owing to
Employee through the date of Employee's death shall be paid to his estate.
Employee's estate will not be entitled to any other compensation under this
Agreement.
11. Disability. If, during the Employment Term, in the opinion of
the Company, Employee, because of physical or mental illness or incapacity,
shall become unable to perform substantially all of the duties and services
required of him under this Agreement for a period of sixty (60) days in the
aggregate during any twelve-month period, the Company may, upon at least ten
(10) days' prior written notice given at any time after the expiration of such
sixty (60) day period, notify Employee of its intention to terminate the
Employment Term under this Agreement as of the date set forth in the notice. In
case of such termination, Employee shall be entitled to receive salary, benefits
and reimbursable expenses owing to Employee through the date of termination. If
the Employee is disabled as defined in the Company's long-term
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disability plan and is still a valid member of the Company's long-term
disability plan, the Employee shall be entitled to receive salary, benefits and
reimbursable expenses owing to Employee until Employee's long-term disability
coverage begins. Under no circumstances shall the Company pay more than six (6)
months salary under these conditions. The Company shall have no further
obligation or liability to Employee.
12. Termination For Cause. (a) The Company may immediately
terminate the Employment Term under this Agreement for cause. Upon such
termination, the Company shall be released from any and all further obligations
under this Agreement, except for accrued salary and benefits owing to Employee
through the effective date of the termination of the Employment Term. Employee's
other obligations under this Agreement, including but not limited to those under
Paragraph 14 (Non-Competition and Confidential Information) and Paragraph 16
(Other Post-Employment Obligations), shall continue pursuant to the terms and
conditions of this Agreement.
(b) For the purposes of this Agreement, "cause" shall
include, without limitation, the following:
(1) failure or neglect by Employee to perform the duties
of the Employee's position or meet the Company's
performance expectations;
(2) failure of Employee to obey orders given by the
Company or supervisors;
(3) misconduct in connection with the performance of any
of Employee's duties, including, without limitation,
misappropriation of funds or property of the Company,
securing or attempting to secure personally any
profit in connection with any transaction entered
into on behalf of the Company, misrepresentation to
the Company, or any violation of law or regulations
on Company premises or while in the Company's employ
or to which the Company is subject;
(4) commission by Employee of an act involving moral
turpitude, dishonesty, theft or unethical business
conduct, or conduct that impairs or injures the
reputation of, or xxxxx, the Company;
(5) disloyalty by Employee, including, without
limitation, aiding a competitor;
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(6) failure by Employee to devote his full time and best
efforts to the Company's business and affairs;
(7) failure by Employee to work exclusively for the
Company;
(8) failure to fully cooperate in any investigation by
the Company;
(9) any breach of this Agreement or Company rules;
(10) any other act of misconduct by Employee; or
(11) the elimination of Employee's position.
(c) If the Company terminates the Employment Term under
this Agreement for cause as provided in Paragraph 12(b)(11) above, Employee
shall receive the equivalent of six (6) months of Employee's annual salary, less
deductions required by law, payable on a monthly basis, if, and only if,
Employee signs a valid general release of all claims against the Company in a
form provided by the Company.
13. Expiration of Employment Agreement. If pursuant to Paragraph
1(a), the Company notifies the Employee of its intention not to extend the
Employee's Employment Term, at the expiration of the Employee Employment term,
the employee shall receive the equivalent of four (4) months of employee's
annual salary, less deductions required by law, payable on a monthly basis, if,
and only if, Employee signs a valid general release of all claims against the
Company in a form provided by the Company.
14. Termination Without Cause. In the event of a Change of
Control, as that term is defined in Paragraph 9, Employee's Employment Term
maybe terminated without cause upon thirty (30) days written notice. Upon such
termination, the Company shall be released from any and all further obligations
under this Agreement, except that the Company shall be obligated to pay Employee
(i) his salary and benefits owing to Employee through the day on which
Employee's employment is terminated, and (ii) the amount described in Paragraph
9. Any relocation of the Company's home office location to more than 50 miles
from its current location
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shall entitle the Employee to six (6) months severance. Employee's obligations
under this Agreement, including but not limited to those under Paragraphs 15 and
17, shall continue pursuant to the terms and conditions of this Agreement.
15. Non-Competition and Confidential Information.
(a) Non-Competition. The Company does business throughout
the United States. The entities listed on Exhibit A, attached hereto and
incorporated herein by reference, are competitors of the Company that also do
business throughout the United States. During the Employment Term and for a
period of twelve (12) months after the termination for any reason of Employee's
employment with the Company, Employee will not, without the prior written
consent of the Chairman and CEO of the Company or Board, if Employee is then the
Chairman and CEO, in any manner, directly or indirectly, either as an employee,
owner, partner, consultant, shareholder, director or officer, for himself or in
behalf of any person, firm, partnership, entity or corporation, work for, become
employed by or interested directly or indirectly in, or in any other way become
employed by or interested directly or indirectly in, or in any other way become
associated with, any of the entities listed on Exhibit A or any of their
subsidiaries or affiliated or related entities, or any of their successors. The
Board shall have the right to modify, add to, or delete from the list set forth
in Exhibit A, and may do so from time to time until thirty (30) days after the
end of the initial or any succeeding Employment Term, by written notice pursuant
to Paragraph 23 of this Agreement. The aforementioned twelve (12) month time
period shall be extended for a time period equal to the time period during which
a violation of Paragraph 15(a) exists.
(b) Confidentiality. Employee acknowledges that he will
have access to certain proprietary and confidential information and trade
secrets ("Confidential Information") of the Company, including, but not limited
to, Company store volume data, sales projections, profit data, lease terms,
marketing and advertising strategies and plans, product information, cost
information, and financial information of the Company. Employee will not use or
disclose
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any Confidential Information during the Employment Term or thereafter other than
in connection with performing Employee's services for the Company in accordance
with this Agreement.
(c) Enforcement. (1) Employee agrees that the
restrictions set forth in this Paragraph are reasonable and necessary to protect
the Company's goodwill and other legitimate business interests. If any of the
covenants set forth herein are deemed to be overbroad or unenforceably the
parties contemplate that such provisions shall be modified to make them
enforceable to the fullest extent permitted by law.
(2) In the event of a breach or threatened
breach by Employee of any of the provisions of this Paragraph, (i) Employee
acknowledges that the Company will be irreparably harmed and that money damages
may be an insufficient remedy to the Company; and (ii) Employee shall pay all of
the Company's costs and expenses incurred in enforcing this Agreement, whether
or not litigation is commenced. Employee acknowledges that enforcement of the
provisions of this Paragraph by way of injunctive relief would not prevent
Employee from earning a livelihood.
(d) The provisions of this Paragraph shall survive the
termination of Employee's employment, regardless of the reason for the
termination. The provisions of this Paragraph shall be deemed independent of the
other provisions of this Agreement and shall be enforceable in all events,
notwithstanding the termination of Employee's employment or even a breach by the
Company of any provision of this Agreement.
16. Representations and Warranties of Employee. Employee hereby
represents and warrants to the Company as follows: (a) Employee's execution and
delivery of this Agreement and the performance of his obligations hereunder will
not violate or be in conflict with any fiduciary or other duty, instrument,
agreement, document, arrangement or other understanding to which Employee is a
party or by which he is or may be bound or subject; and
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(b) Employee is not a party to any instrument, agreement, document, arrangement
or other understanding with any person (other than the Company) requiring or
restricting the use or disclosure of any confidential information or the
provision of any employment, consulting or other services.
17. Other Post-Employment Obligations.
(a) Company Property. All records, files, lists,
including computer generated lists, documents, computers, computer software
programs, equipment, telephones, telephone numbers, and similar items relating
to the Company's business that Employee shall prepare or receive from the
Company shall remain the Company's sole and exclusive property. Upon termination
of this Agreement, Employee shall promptly return to the Company all property of
the Company in his possession. Employee further represents that he will not copy
or cause to be copied, print out or cause to be printed out any software,
documents or other materials originating with or belonging to the Company.
Employee additionally represents that, upon termination of his employment with
the Company, he will not retain in his possession any such software, documents
or other materials.
(b) Cooperation. Employee agrees that both during and
after his employment he shall, at the request of the Company, render all
assistance and perform all lawful acts that the Company considers necessary or
advisable in connection with any litigation involving the Company or any
director, officer, employee, shareholder, agent, representative, consultant,
customer or vendor of the Company.
(c) The provisions of this Paragraph shall survive the
termination of Employee's employment, regardless of the reason for the
termination. The provisions of this Paragraph shall be deemed independent of the
other provisions of this Agreement and shall be enforceable in all events,
notwithstanding the termination of Employee's employment or even a breach by the
Company of any provision of this Agreement.
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18. Arbitration. Any and all disputes arising under or relating to
the interpretation or application of this Agreement or concerning Employee's
employment with the Company or termination thereof, including, but not limited
to, claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section
1981, the Age Discrimination in Employment Act, the Employee Retirement Income
Security Act, the Family and Medical Leave Act, the Missouri Human Rights Act,
the Missouri Service Letter Law, and any other federal, state, or local law, and
the common law of contract or tort, shall be subject to arbitration in St. Louis
County, Missouri, under the then existing rules of the American Arbitration
Association. Judgment upon the award rendered may be entered in any court of
competent jurisdiction. Nothing contained in this Paragraph shall limit the
right of the Company to enforce by court injunction or other equitable relief
the Employee's obligations under this Agreement, including but not limited to
those under Paragraphs 15 and 17 of this Agreement.
19. Governing Law. This Agreement shall be governed by, construed
and enforced in accordance with the laws of the State of Missouri, without
regard to the conflicts of law rules thereof.
20. Jurisdiction. Each of the parties hereto hereby irrevocably
consents and submits to the jurisdiction of the Circuit Court of St. Louis
County, Missouri, and of the United States District Court for the Eastern
District of Missouri in connection with any suit, action or other proceeding
concerning the interpretation or application of this Agreement, Employee's
employment with the Company or termination thereof, or enforcement of Paragraphs
15 or 17 of this Agreement. Employee waives and agrees not to assert any defense
that the court lacks jurisdiction, that venue is improper, that the forum is
inconvenient, or otherwise.
21. Successors and Assigns. Neither this Agreement, nor any of
Employee's rights, powers, duties or obligations hereunder, may be assigned by
Employee. This Agreement shall
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be binding upon and inure to the benefit of Employee and his heirs and legal
representatives and the Company and its successor and assigns.
22. Waiver. Any waiver or consent from the Company with respect to
any term or provision of this Agreement or any other aspect of Employee's
conduct or employment shall be effective only in the specific instance and for
the specific purpose for which given and shall not be deemed, regardless of
frequency given, to be a further or continuing waiver or consent. The failure or
delay of the Company at any time or times to require performance of, or to
exercise any of its powers, rights or remedies with respect to, any term or
provision of this Agreement or any other aspect of Employee's conduct or
employment shall not in any manner (except as otherwise expressly provided
herein) affect the Company's right at a later time to enforce any such term or
provision.
23. Notices. All notices under this Agreement must be in writing
and shall be deemed to have been duly given if delivered by hand or mailed by
first class mail, registered mail, return receipt requested, postage and
registry fees prepaid, to the applicable party and addressed as follows:
(a) The Company:
Bakers Footwear Group, Inc.
0000 Xxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Chairman and Chief Executive Officer
(b) Employee:
Xxxxx Xxxxxxx
0000 Xxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Addresses may be changed by notice in writing signed by the addressee.
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24. Amendment. No amendment or modification of this Agreement
shall be valid or effective, unless in writing and signed by the parties to this
Agreement.
25. Entire Agreement. (a) This Agreement embodies the entire
agreement of the parties hereto with respect to its subject matter and merges
with and supersedes all prior discussions, agreements, commitments or
understandings or every kind and nature relating thereto, whether oral or
written, between Employee and the Company including the severance agreement from
1997; provided, however, that nothing in this Agreement supersedes the Company's
Class C Stock Option Agreement. Neither party shall be bound by any term or
condition other than as is expressly set forth herein.
(b) Employee represents and agrees that he fully
understands his right to discuss all aspects of this agreement with his private
attorney, that to the extent he desired, he availed himself of this right, that
he has carefully read and fully understands all of the provisions of the
Agreement, that his decision to execute this Agreement has not been obtained by
any duress and that he has read this document in its entirety and fully
understands the meaning, intent and consequences of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first hereinabove set forth.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION, WHICH MAY BE
ENFORCED BY THE PARTIES.
COMPANY: EMPLOYEE:
BAKERS FOOTWEAR GROUP, INC.
By: /s/ Xxxxx Xxxxxx /s/ Xxxxxxxx X. Xxxxxxx, Xx.
------------------------------ ------------------------------
Xxxxx Xxxxxx Xxxxxxxx X. Xxxxxxx, Xx.
Title: Chairman and Chief Executive Officer
X. Xxxxxxx
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[Exhibit A, Competitors of the Company, Omitted. The Registrant undertakes to
furnish a supplemental copy of such exhibit to the SEC upon request.]
