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EXHIBIT (10)(II)
Material Contracts --
Employment Agreement between
Xxxxxxx Gordman 1/2 Price
Stores, Inc. and Xxxxxxx X.
Xxxxxxx, dated June 21, 1997
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EMPLOYMENT AGREEMENT
This Agreement is made as of the 11th day of June, 1997 between Xxxxxxx
Gordman 1/2 Price Stores, Inc., a Delaware corporation with its principal
office located at 00000 Xxxx Xxxxxx Xxxx, Xxxxx, Xxxxxxxx, 00000 ("Employer"),
and Xxxxxxx X. Xxxxxxx ("Employee"), who resides at 0000 Xxxxx 000xx Xxxxxx,
Xxxxx, Xxxxxxxx.
WHEREAS Employer has extended an offer of employment to Employee to
serve as the Vice President of Finance and Chief Financial Officer for
Employer, subject to the terms and provisions set forth in this Agreement; and
WHEREAS Employee accepts employment on the terms and provisions set
forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises set forth in
this Agreement, the Employer and Employee agree as follows:
1. EMPLOYMENT. Employer hereby employs, engages, and hires
Employee to serve as the Vice President of Finance and Chief Financial Officer
for Employer, and Employee hereby accepts and agrees to such hiring,
engagement, and employment, subject to the general supervision and pursuant to
the orders, advice, and direction of Employer. Employee shall perform such
other duties as are customarily performed by one holding such position in
other, same, or similar businesses or enterprises as that engaged in by
Employer, and shall also additionally render such other and unrelated services
and duties as may be assigned to Employee from time to time by Employer.
2. TERM OF EMPLOYMENT. This Agreement is effective June 11, 1997
and continues through the end of fiscal year 1999, subject to the other terms
and provisions herein. Upon the expiration of this period, this Agreement shall
terminate without any further action on the part of either Employer or
Employee, and there shall be no implied renewal or extension of this Agreement
under any circumstance, nor any obligation of Employer to negotiate regarding
any such renewal or extension.
Not less than one year before the expiration of this Agreement, Employer
and Employee shall meet to discuss a new agreement with terms and provisions
similar to those herein, or with terms and provisions that are mutually
acceptable to Employer and Employee. Alternatively, Employer has the option, at
any time, to renew this Agreement for similar periods after its expiration, so
long as such renewal is in writing and is signed by both Employer and Employee,
or to permit this Agreement to terminate.
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3. COMPENSATION AND BENEFITS. During the term of this Agreement,
Employer shall pay Employee an annual salary for services performed on
Employer's behalf as follows:
FISCAL YEAR(S) ANNUAL SALARY
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1997 $125,000
1998 and 1999 To be set by Company's Chief Executive Officer
and approved by Compensation Committee and
Board of Directors at a level not less than
the 1997 fiscal year salary
Employee's salary shall be paid to Employee on a biweekly basis while
this Agreement shall be in force. Employer shall have the right to deduct from
the compensation and benefits payable to Employee under the provisions of this
Agreement all Social Security, federal and state taxes and charges as may now
be in effect or that may be enacted or required after the effective date of
this Agreement.
Employee shall also be entitled to and shall receive all other benefits
and conditions of employment available generally to other employees of Employer
employed at the same level and responsibility of Employee, provided that
eligibility requirements for each benefit program are satisfied. By way of
illustration, but not by way of limitation or guarantee, a description of such
benefits is set forth in Exhibits "A" and "B" which are attached hereto and are
incorporated herein by this reference.
4. BEST EFFORTS OF EMPLOYEE. Employee agrees that he will at all
times faithfully, industriously, and to the best of his ability, experience and
talents, perform all of the duties that may be required of and from him
pursuant to the express and implicit terms of this Agreement, to the reasonable
satisfaction of the Employer. Such duties shall be rendered at Employer's
principal office and at such other places as Employer shall in good faith
require or as the interest, needs, business or opportunity of Employer shall
require.
5. OTHER EMPLOYMENT. Employee shall devote all of his time,
attention, knowledge and skills solely to the business and interest of
Employer, and Employer shall be entitled to all of the benefits, profits or
other issues arising from or incident to all work, services and advice of
Employee. Employee shall not, during the term of this Agreement, be interested
directly or indirectly, in any manner, as a partner, officer, director,
shareholder, advisor, employee or in any other capacity in any other business
similar to Employer's business or any allied trade; provided, however, that
nothing contained in this provision shall be deemed to prevent or to limit the
right of
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Employee to invest any of his money in the capital stock or other securities of
any corporation whose stock or securities are publicly owned or are regularly
traded on any public exchange.
6. CONFIDENTIAL INFORMATION. Employee shall not at any time or
in any manner, either directly or indirectly, divulge, disclose or communicate
to any person, firm, corporation or other entity in any manner whatsoever any
information concerning any matters affecting or relating to the business of
Employer, including without limitation, the prices it has paid or obtained for
its merchandise or any other information concerning the business of Employer,
its manner of operation, its plans, processes or other data, without regard to
whether all of the above-stated matters are generally deemed to be
confidential, material or important. Employer and Employee specifically and
expressly agree that such matters are important, material, confidential and
gravely affect the effective and successful conduct of the business of Employer
and Employer's goodwill, and that any breach of the terms of this provision
shall be a material breach of this Agreement. This provision shall survive
termination of this Agreement.
7. EMPLOYMENT POLICIES AND PROCEDURES. Employee agrees to abide
by all of Employer's employment polices and procedures that apply generally to
other employees at the same level and responsibility of Employee, as such
policies and procedures may be revised from time to time.
8. PERFORMANCE EVALUATION. Employee's performance shall be
evaluated on an annual basis. The results of the evaluations shall be discussed
with Employee.
9. TERMINATION OF EMPLOYMENT. Employee may terminate his
employment pursuant to this Agreement after having provided Employer with
thirty days' written notice of his intention to terminate. Employer may
terminate Employee's employment at any time during the term of this Agreement
for good cause. For purposes of this Agreement, "good cause" for termination of
employment is that which a reasonable employer, acting in good faith, would
regard as good and sufficient reason for terminating the services of an
employee, as distinguished from an arbitrary whim or caprice. This definition
includes, without limitation, termination of employment due to Employee's poor
performance or misconduct, discontinuance of Employer's business or any
significant portion thereof, or Employee's violation of any provision of this
Agreement. The employment of Employee shall also cease upon the expiration of
the term of this Agreement unless Employer has, in writing, renewed this
Agreement or Employer and Employee have entered into a new agreement.
10. EMPLOYER'S OBLIGATION ON ITS TERMINATING EMPLOYEE'S
EMPLOYMENT. If, during the term of this Agreement, Employer terminates
Employee's employment for any reason other than Employee's misconduct or
Employee's violation of any provision of this Agreement, Employee will receive
the Employee's then current salary at the time the notice of termination is
given for either six months after termination or for the remainder of the
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fiscal year during which the notice of termination is given, whichever is
greater. The payments shall be paid on a biweekly basis, pursuant to the
provisions of Paragraph 3 above, and shall be deemed an obligation of Employer
regardless of whether Employee has begun new employment elsewhere.
If Employer terminates Employee's employment due to Employee's
misconduct or Employee's violation of any provision of this agreement, Employee
shall not be entitled to any compensation whatsoever from Employer beyond the
last day Employee worked. "Misconduct" for the purpose of this Agreement is
defined as behavior which evidences (a) wanton or willful disregard of
Employer's interests, (b) deliberate violation Employer's rules, policies or
procedures, (c) disregard of standards of behavior which Employer can
rightfully expect from Employee, or (d) negligence which manifests culpability,
wrongful intent, evil design or intentional and substantial disregard or
Employer's interests or of Employee's duties and obligations.
Employee shall not be entitled to any severance or payment beyond his
last day worked if Employee terminates his employment with Employer or if this
Agreement terminates upon the expiration on its three-year term.
Notwithstanding anything in this Agreement to the contrary, in the event
Employee breaches his obligations under this Agreement, including without
limitation Employee's obligations under Sections 6, 11 or 12, Employer shall
have no obligation to pay any severance benefits under this Section 10 and
shall be entitled to recover any severance benefits previously paid to
Employee.
11. COOPERATION WITH EMPLOYER AFTER TERMINATION OF EMPLOYMENT.
Following the termination of Employee's employment, by either Employee or
Employer, Employee shall fully cooperate with Employer in all matters relating
to the continuation or completion of Employee's pending work on behalf of
Employer and the orderly transfer of any such pending work to other employees
as may be designated by Employer. Employer shall be entitled to such full-time
or part-time services of Employee as Employer may reasonably require during all
or any part of the 30-day period following any notice of termination of
employment by Employee.
12. EMPLOYER'S RELATIONSHIP WITH OTHER EMPLOYEES. Employer and
Employee agree that any attempt on the part of Employee to induce others to
leave the employ of Employer, or any effort by Employee to interfere with
Employer's relationship with other employees, will be harmful and damaging to
Employer. Employee therefore expressly agrees that during the term of this
Agreement and for a period of two years thereafter, he will not in any way,
directly or indirectly (a) induce or attempt to induce any employee to quit
employment with Employer, (b) interfere with or disrupt Employer's relationship
with other employees, or (c) employ or attempt to employ any person employed by
Employer.
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13. TERMINATION BY DEATH OR INCAPACITY OF EMPLOYEE. In spite of
anything in this Agreement to the contrary, this Agreement shall terminate
prior to the expiration of the term specified above if Employee dies or becomes
permanently disabled. As used in this paragraph, "permanently disabled" is
defined as the inability of Employee to perform the essential functions of his
position, either with or without reasonable accommodation, for a period
extending beyond six months.
14. ASSUMPTION AND MERGER. The rights and duties of Employer and
Employee under this Agreement shall not be assignable by either party, except
that this Agreement and all of the rights hereunder may be assigned by Employer
to any corporation or other business entity that succeeds to the business of
Employer through merger, consolidation, corporate re-organization or by
acquisition of all or substantially all of the assets of Employer, and which
assumes Employer's obligations under this Agreement.
15. AGREEMENT OUTSIDE OF CONTRACT. This Agreement contains the
complete agreement concerning the employment arrangement between Employer and
Employee and shall, as of the effective date hereof, supersede all other
agreements between Employer and Employee. Employer and Employee agree that
neither of them has made any representation with respect to the subject matter
of this Agreement except such representations as are specifically set forth in
this Agreement. Employer and Employee acknowledge that each of them have relied
on their own judgment in entering into this Agreement. Employer and Employee
further acknowledge that any payments or representations that may have been
made by either of them to the other prior to the date of executing this
Agreement are of no effect and that neither of them has relied thereon in
connection with their dealings with the other.
16. MODIFICATION OF AGREEMENT. Any modification of this Agreement
or additional obligations assumed by either Employer or Employee in connection
with this Agreement shall be binding only if evidenced in writing signed by
both Employer and Employee or their authorized representatives.
17. EFFECT OF PARTIAL INVALIDITY. The invalidity of any portion
of this Agreement shall not be deemed to affect the validity of any other
provision of this Agreement. In the event that any provision of this Agreement
is held to be invalid, Employer and Employee agree that the remaining
provisions shall be deemed to be in full force and effect as if they had been
executed by both parties subsequent to the expungement of the invalid
provision.
18. CHOICE OF LAW AND FORUM. It is the intention of Employer and
Employee that this Agreement and any actions and special proceedings brought in
connection with this Agreement be construed in accordance with and pursuant to
the laws of the State of Nebraska, which shall govern to the exclusion of the
law of any other forum. Employer and Employee further agree that any action or
special proceeding that may be brought in connection with this Agreement shall
be brought in the State of Nebraska.
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19. ARBITRATION. Any differences, claims or matters in dispute
between Employer and Employee in connection with this Agreement shall be
submitted by them to arbitration by the American Arbitration Association or its
successor, and the determination of the arbitrator or its successor shall be
final and absolute. The arbitrator shall be governed by the duly promulgated
rules and regulations of the American Arbitration Association or its successor,
and the pertinent provisions of the laws of the State of Nebraska, relating to
arbitration. The decision of the arbitrator may be entered as a judgment in any
court of the State of Nebraska or elsewhere.
20. NO WAIVER. The failure of either Employer or Employee to
insist upon the performance of any of the terms and provisions of this
Agreement, or the waiver of any breach of any of the terms or provisions of
this Agreement, shall not be construed as thereafter waiving any such terms and
provisions, but the same shall continue and remain in full force and effect as
if no such forbearance or waiver had occurred.
IN WITNESS WHEREOF, Employer and Employee have executed this Agreement
as of the day and year first above written.
XXXXXXX GORDMAN EMPLOYEE:
1/2 PRICE STORES, INC.
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxx
President and CEO
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