Exhibit 10(a)
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 P. XXXXXX XXXXX, of Chelsea, Michigan ("Xxxxx").
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 Xxxxx as Chairman of the
Board and Chief Executive Officer, and Xxxxx 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 October 31, 1996 and
continuing through April 15, 2000, unless terminated sooner pursuant to the
provisions of paragraph 5, for the compensation and on the terms set forth in
this Agreement.
2. Compensation.
(a) Salary. Subject to the provisions of paragraph 5, Xxxxx'x
salary shall be Three Hundred Thousand Dollars ($300,000.00) per year.
(b) Bonus. Xxxxx shall participate in the 1996 Xxxxxxxx Stores
Inc. Management Incentive Plan and, while employed by the Company, in any
successor management incentive plan established from time to time by the
Company.
(c) Vacation and Other Benefits. While he is employed by the
Company, Xxxxx shall be entitled to four weeks of vacation each year
beginning in fiscal 1997. Xxxxx 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 and for which Xxxxx is eligible.
(d) Stock Option. Effective October 31, 1996, Xxxxx was granted
an option to purchase 300,000 of the Company's Common Shares, par value $1.00
a share, at $8.375 a share (the "Option"). Xxxxx'x right to purchase 200,000
Common Shares subject to the Option was subject to shareholder approval of an
amendment to the Xxxxxxxx Stock Option Plan of 1994 (the "Plan") increasing
the number of shares subject to the Plan, which was obtained at the 1997
Annual Meeting of Shareholders.
3. Deferred Compensation. Xxxxx may determine that payment of any
part of Xxxxx'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 Xxxxx'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 Xxxxx, 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. Xxxxx agrees, as long as his employment by the Company
continues, to devote his 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 Board of Directors of the Company.
5. Termination. Xxxxx'x employment under this Agreement shall
terminate on the earliest to occur of the following: (i) immediately upon
Xxxxx'x death, (ii) at the Company's option, immediately when notice to Xxxxx
of such termination is given after Xxxxx'x "Disability" (as defined below),
(iii) at the Company's option, immediately when notice to Xxxxx 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 Xxxxx by the Company, (v)
not less than six months after notice of such termination is given to the
Company by Xxxxx (unless the Company elects to have such termination occur
earlier), and (vi) April 15, 2000. "Disability" means (1) if Xxxxx is covered
by a Company-provided disability insurance policy, the definition of
disability contained in, and entitling Xxxxx to benefits under, that policy,
or (2) if Xxxxx is not covered by such a policy, Xxxxx'x inability, whether
physical or mental, to perform the normal duties of Xxxxx'x position for six
consecutive months. "Cause" means (1) Xxxxx'x continued failure either to (A)
devote substantially full time to Xxxxx'x employment duties (except because
of Xxxxx'x illness or Disability) or (B) make a good faith effort to perform
Xxxxx'x employment duties; (2) any other willful act or omission which Xxxxx
knew, or had reason to know, would materially injure the Entity; (3) any
breach by Xxxxx of the provisions of paragraph 7, or (4) Xxxxx'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 Xxxxx, to Xxxxx'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 to this
Agreement:
(a) Death. If employment is terminated due to Xxxxx'x death, the
Company shall have no obligation to pay any salary or other amounts or
benefits under this Agreement or otherwise for any period after the date of
termination of employment, but benefits may continue to the extent provided
in any wage continuation program, insurance, or other employee benefit plans
that are generally applicable to all executive officers of the Company and
that are maintained by the Company at that time. Xxxxx shall be entitled to
his accrued salary through the date of termination and the pro rata bonus, if
any, that would have been payable to Xxxxx under any bonus plan in effect at
the time of termination of Xxxxx'x employment if Xxxxx had been employed by
the Company for the entire year in which Xxxxx'x employment terminates, but
based on the actual number of days Xxxxx was employed by the Company in that
year and the actual salary paid to Xxxxx by the Company with respect to the
period through the date of termination.
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(b) Disability. If employment is terminated due to Xxxxx'x
Disability, the Company shall have no obligation to pay any salary or other
amounts or benefits under this Agreement or otherwise for any period after
the date of termination of employment, but benefits may continue to the
extent provided in any wage continuation program, insurance, or other
employee benefit plans that are generally applicable to all executive
officers of the Company and that are maintained by the Company at that time.
Xxxxx shall be entitled to his accrued salary through the date of termination
and the pro rata bonus, if any, that would have been payable to Xxxxx under
any bonus plan in effect at the time of termination of Xxxxx'x employment if
Xxxxx had been employed by the Company for the entire year in which Xxxxx'x
employment terminates, but based on the actual number of days Xxxxx was
employed by the Company in that year and the actual salary paid to Xxxxx by
the Company with respect to the period through the date of termination.
(c) Termination for Cause. If employment is terminated for Cause,
or if Xxxxx 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.
Xxxxx shall be entitled to his accrued salary through the date of termination
and the pro rata bonus, if any, that would have been payable to Xxxxx under
any bonus plan in effect at the time of termination of Xxxxx'x employment if
Xxxxx had been employed by the Company for the entire year in which Xxxxx'x
employment terminates, but based on the actual number of days Xxxxx was
employed by the Company in that year and the actual salary paid to Xxxxx by
the Company with respect to the period through the date of termination.
(d) Termination Without Cause. Except as otherwise provided in
paragraph 5.(e), if the Company terminates Xxxxx'x employment without Cause
before the expiration of the term of this Agreement (other than as a result
of Xxxxx'x death or Disability), the Company shall (i) continue to pay an
amount equal to Xxxxx'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 Xxxxx'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 Xxxxx under any bonus plan in
effect at the time of termination of Xxxxx'x employment if Xxxxx had been
employed by the Company for the entire year in which Xxxxx'x employment
terminates, but based on the actual number of days Xxxxx was employed by the
Company in that year and the actual salary paid to Xxxxx by the Company with
respect to the period through the date of termination. In such event, Xxxxx
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
Xxxxx 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
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hospitalization insurance provided to Xxxxx with respect to any remaining
part of such period. The Option shall be exercisable to purchase all of the
Common Shares subject to the Option immediately, to the extent not already
purchased, 30 days before such termination of Xxxxx'x employment by the
Company.
(e) Change in Control.
(i) Right to Receive Benefits. Xxxxx 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, Xxxxx
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 Xxxxx'x employment
without Cause, or (B) at any time during the 3rd month after the
Change in Control, Xxxxx terminates his employment with the
"Entity" for any reason or for no reason.
(ii) Severance Benefits. If Xxxxx is entitled to severance
benefits under paragraph 5.(e)(i), he will receive the following:
(1) an amount equal to the annual salary Xxxxx was
receiving immediately before the Change in Control for the
period (the "Time") from the date of such termination through
two years after the date of such termination; and
(2) a pro rata bonus for the year of such termination
equal to (1) the bonus paid or payable to Xxxxx 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 Xxxxx and Xxxxx'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 such benefits, Xxxxx will be reimbursed by
the Company during the Time for the cost to Xxxxx of
obtaining such benefits), and (2) any automobile allowance or
benefits (including automobile insurance and maintenance
benefits), and continued use of any
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automobile, provided to Xxxxx 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 Xxxxx and not be deemed a "parachute payment"
resulting in an excise tax to Xxxxx 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
Xxxxx (i) the amount of any excise tax imposed on Xxxxx 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 Xxxxx pursuant to this paragraph
5.(e)(ii) and (ii) any income tax imposed on Xxxxx 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
Xxxxx 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 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;
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(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 Xxxxx'x death, Disability, termination
by the Company for Cause, retirement, resignation or termination
by the Company without Cause, (b) Xxxxx'x death, (c) Xxxxx'x
Disability, and (d) 90 days after the termination of Xxxxx'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
Xxxxx becomes entitled to severance benefits under paragraph
5.(e)(i), the provisions of paragraph 5.(e)(ii) of this Agreement
will continue until Xxxxx'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) Xxxxx, (ii) any "group" (as that term
is used in Section 13(d) of the Exchange Act and the rules
thereunder) that includes Xxxxx or in which Xxxxx is, or has
agreed to become, an equity participant, (iii) any entity in
which Xxxxx 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, Xxxxx shall not be deemed an "equity participant"
in any group or entity (i) in which Xxxxx 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 Xxxxx is not
otherwise affiliated with such group or entity,
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or (ii) if Xxxxx'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 Xxxxx on such terms that
would not constitute "Good Reason" for termination of Xxxxx'x
employment if imposed by the Company. Therefore, for purposes of
this paragraph 5.(e), Xxxxx shall not be deemed to have
terminated Xxxxx'x employment with the Entity for "Good Reason"
and the "Entity" shall not be deemed to have terminated Xxxxx'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), Xxxxx shall not be deemed
to have terminated Xxxxx'x employment with the Entity for "Good
Reason" and the "Entity" shall not be deemed to have terminated
Xxxxx'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 Xxxxx on such terms that
would not constitute "Good Reason" for termination of Xxxxx'x
employment if imposed by the Company, (2) Xxxxx refuses such
employment, and (3) the Company terminates Xxxxx'x employment for
any reason or for no reason.
(viii) "Good Reason". Termination of Xxxxx'x employment for
"Good Reason" means Xxxxx'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 Xxxxx'x consent) in
Xxxxx'x title from Xxxxx'x title immediately before such Change
in Control, (2) any decrease by the Entity (without Xxxxx'x
consent) in Xxxxx'x compensation or incentives from Xxxxx'x
compensation and incentives immediately before such Change in
Control, except with respect to benefits covered by clause (3);
provided that Xxxxx'x bonus shall not be deemed to have decreased
if Xxxxx has a substantially similar opportunity to earn a bonus
as Xxxxx did in the last full fiscal year before the Change in
Control, (3) any decrease by the Entity (without Xxxxx'x consent)
in Xxxxx'x benefits from Xxxxx'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 Xxxxx'x consent) in Xxxxx'x duties
or responsibilities from Xxxxx'x duties and responsibilities
immediately before such Change in Control, (5) any requirement by
the Entity (to which Xxxxx does not consent)
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that Xxxxx change Xxxxx'x primary place of business to be outside
the metropolitan Xxxxxxx area, (6) Xxxxx'x removal from, or
failure to be elected to, the Entity's Board of Directors or the
Entity's failure to nominate Xxxxx for election to the Entity's
Board of Directors, or (7) 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 Xxxxx and the Company in effect
immediately before the Change in Control. "Good Reason" will not
include Xxxxx'x death, Disability or Retirement (as defined
below), or Xxxxx'x resignation other than as provided in the
preceding sentence. For purposes of this Agreement, "Retirement"
means Xxxxx'x retirement from the Entity in accordance with the
Entity's normal policies.
(f) Transfer of Insurance Policies. If Xxxxx'x employment
by the Company is terminated for any reason except Xxxxx'x death, the Company
will cooperate with Xxxxx, to the extent Xxxxx so desires, to transfer to
Xxxxx, at no cost to the Company and in exchange for a payment by Xxxxx to
the Company equal to the value of the Company's interest in the policies, any
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.
(g) No Other Employment Benefits. The severance benefits
provided in this Agreement are exclusive and in lieu of any other severance
benefits to which Xxxxx may be entitled, except for any benefits under the
terms of any stock options or restricted stock agreements Xxxxx may have.
6. Payment. Amounts equal to, or based on, salary, other than
deferred compensation, as well as death benefits, if any, pursuant to
paragraph 5.(a), other than proceeds of life insurance, and amounts equal to,
or based on, salary, if any, other than deferred compensation and proceeds of
life insurance, paid pursuant to paragraphs 5.(b), 5.(c) 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 Xxxxx'x bonus for the year
of termination paid pursuant to paragraphs 5.(a), 5.(b), 5.(c) 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 Xxxxx while he is living; and in the event of his death, the payments
shall be made to Xxxxx'x wife, if she is then living, or to his estate or any
beneficiary or beneficiaries he designates in writing during his lifetime.
7. Confidentiality and Non-Solicitation.
(a) Non-Competition. Xxxxx will not, during Xxxxx'x
employment with the Company, directly or indirectly engage in any activity
which is competitive with any business in which the Company engages.
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(b) Confidential Information. Xxxxx will not at any time
during or after his employment with the Company, directly or indirectly,
disclose or make accessible to any person or entity or use in any way for his
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 Xxxxx is required by law to make. Upon
termination of Xxxxx'x employment with the Company for any reason, Xxxxx will
immediately return to the Company all confidential materials over which he
exercises any control.
(c) Non-Solicitation. Xxxxx will not at any time during his
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 his 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 Xxxxx 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 Xxxxx and
such other persons and entities as are appropriate.
8. Modification. This Agreement is the complete agreement between
Xxxxx 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..
10. Costs of Enforcement. The Company shall pay on demand all of
Xxxxx'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 Xxxxx 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
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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 Xxxxx 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.
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
Xxxxx and will inure to Xxxxx'x benefit, but Xxxxx may not assign this
Agreement without the Company's prior written consent.
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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 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 shall survive the expiration of the term of this Agreement.
IN THE PRESENCE OF: XXXXXXXX STORES INC.
By: /c/ Xxxx X. Xxxxxxx
---------------------
Xxxx X. Xxxxxxx,
Vice Chairman of the Board
By: /c/ Xxxxxxx X. Xxxxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxxxx,
Secretary
/c/ P. Xxxxxx Xxxxx
--------------------
P. Xxxxxx Xxxxx
11
