MANAGEMENT CONTINUITY AGREEMENT
Exhibit
10.2
(Tier
2 Form of Agreement)
THIS
MANAGEMENT CONTINUITY AGREEMENT (this “Agreement”) is made
and entered into as of the ____ day of
__________________, ____, by and between XXXX’X
COMPANIES, INC., a North Carolina corporation (the “Company”), and
_________________ (“Executive”).
WHEREAS,
the Company desires to enter into this Agreement to (i) assure that the Company
will have the continued dedication of Executive, notwithstanding the
possibility, threat or occurrence of a Change in Control (as defined below) of
the Company, (ii) diminish the inevitable distraction of Executive by virtue of
the personal uncertainties and risks created by a pending or threatened Change
in Control, (iii) encourage Executive’s full attention and dedication to the
Company currently and in the event of any threatened or pending Change in
Control, and (iv) provide Executive with compensation and benefits arrangements
upon a Change in Control which ensure that the compensation and benefits
expectations of Executive will be satisfied and which are competitive with those
of other corporations,
NOW
THEREFORE, in order to accomplish these objectives, the Company and Executive
agree as follows:
1. Certain
Definitions.
(a) The
“Effective
Date” shall mean the first date during the Change in Control Period (as
defined in Section 1(b)) on which a Change in Control (as defined in
Section 2) occurs. Anything in this Agreement to the contrary
notwithstanding, if a Change in Control occurs and if Executive’s employment
with the Company is terminated prior to the date on which the Change in Control
occurs, and if it is reasonably demonstrated by Executive that such termination
of employment (i) was at the request of a third party who has taken steps
reasonably calculated to effect a Change in Control or (ii) otherwise arose in
connection with or anticipation of a Change in Control, then for all purposes of
this Agreement the “Effective Date” shall mean the date immediately prior to the
date of such termination of employment.
(b) The
“Change in Control
Period” shall mean the period commencing on the date hereof and ending on
the first anniversary of the date hereof; provided, however, that
commencing on the date one year after the date hereof, and on each annual
anniversary of such date (such date and each annual anniversary thereof shall be
hereinafter referred to as a “Renewal Date”),
unless previously terminated, the Change in Control Period shall be
automatically extended so as to terminate one year from the Renewal Date, unless
at least 60 days prior to a Renewal Date the Company shall give notice to
Executive that the Change in Control Period shall not be so
extended.
2. Change in
Control. For the purposes of this Agreement, a “Change in Control”
shall mean:
(a) individuals
who, at the Effective Date, constitute the Board (the “Incumbent Directors”)
cease for any reason to constitute at least a majority of the Board, provided
that any person becoming a director after the Effective Date and whose election
or nomination for election was approved by a vote of at least a majority of the
Incumbent Directors then on the Board (either by a specific vote or by approval
of the proxy statement of the Company in which such person is named as a nominee
for director, without written objection to such nomination) shall be an
Incumbent Director; provided, however, that no
individual initially elected or nominated as a director of the Company as a
result of an actual or threatened election contest (as described in
Rule 14a-11 under the Exchange Act (“Election Contest”) or
other actual or threatened solicitation of proxies or consents by or on behalf
of any “person” (as such term is defined in Section 3(a)(9) of the Exchange
Act and as used in Section 13(d)(3) and 14(d)(2) of the Exchange Act) other
than the Board (“Proxy
Contest”), including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest, shall be deemed an Incumbent
Director;
(b) any
person becomes a “beneficial owner” (as defined in Rule 13d- 3 under the
Exchange Act), directly or indirectly, of securities of the Company representing
25% or more of the combined voting power of the Company’s then outstanding
securities eligible to vote for the election of the Board (the “Company Voting
Securities”); provided, however, that the
event described in this subparagraph (b) shall not be deemed to be a Change
in Control of the Company by virtue of any of the following
acquisitions: (i) an acquisition directly by or from the Company or
any affiliated companies; (ii) an acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any affiliated
companies, (iii) an acquisition by an underwriter temporarily holding securities
pursuant to an offering of such securities, or (iv) an acquisition pursuant to a
Non-Qualifying Transaction (as defined in subparagraph (c) below);
or
(c) the
consummation of a reorganization, merger, consolidation, statutory share
exchange or similar form of corporate transaction involving the Company that
requires the approval of the Company’s shareholders, whether for such
transaction or the issuance of securities in the transaction (a “Reorganization”), or
the sale or other disposition of all or substantially all of the Company’s
assets to an entity that is not an affiliate of the Company (a “Sale”), unless
immediately following such Reorganization or Sale: (i) more than 60%
of the total voting power of (A) the corporation resulting from such
Reorganization or the corporation which has acquired all or substantially all of
the assets of the Company (in either case, the “Surviving
Corporation”), or (B) if applicable, the ultimate parent corporation that
directly or indirectly has beneficial ownership of 100% of the voting securities
eligible to elect directors of the Surviving Corporation (the “Parent Corporation”),
is represented by the Company Voting Securities that were outstanding
immediately prior to such Reorganization or Sale (or, if applicable, is
represented by shares into which such Company Voting Securities were converted
pursuant to such Reorganization or Sale), and such voting power among the
holders thereof is in substantially the same proportion as the voting power of
such Company Voting Securities among the holders thereof immediately prior to
the Reorganization or Sale, (ii) no person (other than (A)
the
Company, (B) any employee benefit plan (or related trust) sponsored or
maintained by the Surviving Corporation or the Parent Corporation, or (C) a
person who immediately prior to the Reorganization or Sale was the beneficial
owner of 25% or more of the outstanding Company Voting Securities) is the
beneficial owner, directly or indirectly, of 25% or more of the total voting
power of the outstanding voting securities eligible to elect directors of the
Parent Corporation (or, if there is no Parent Corporation, the Surviving
Corporation), and (iii) at least a majority of the members of the board of
directors of the Parent Corporation (or, if there is no Parent Corporation, the
Surviving Corporation) following the consummation of the Reorganization or Sale
were Incumbent Directors at the time of the Board’s approval of the execution of
the initial agreement providing for such Reorganization or Sale (any
Reorganization or Sale which satisfies all of the criteria specified in (i),
(ii) and (iii) above shall be deemed to be a “Non-Qualifying
Transaction”).
3. Employment
Period. The Company hereby agrees to continue Executive in its
employ, and Executive hereby agrees to remain in the employ of the Company
subject to the terms and conditions of this Agreement, for the period commencing
on the Effective Date and ending on the second anniversary of such date (the
“Employment
Period”).
4. Terms of
Employment.
(a) Position and
Duties.
(i) During
the Employment Period, (A) Executive’s position (including status, offices,
titles and reporting requirements), authority, duties and responsibilities shall
be at least commensurate in all material respects with the most significant of
those held, exercised and assigned at any time during the 120-day period
immediately preceding the Effective Date and (B) Executive’s services shall be
performed at the location where Executive was employed immediately preceding the
Effective Date or any office or location less than 35 miles from such
location.
(ii) During
the Employment Period, and excluding any periods of vacation and sick leave to
which Executive is entitled, Executive agrees to devote reasonable attention and
time during normal business hours to the business and affairs of the Company
and, to the extent necessary to discharge the responsibilities assigned to
Executive hereunder, to use Executive’s reasonable best efforts to perform
faithfully and efficiently such responsibilities. During the
Employment Period it shall not be a violation of this Agreement for Executive to
(A) serve on corporate, civic or charitable boards or committees, (B) deliver
lectures, fulfill speaking engagements or teach at educational institutions and
(C) manage personal investments, so long as such activities do not significantly
interfere with the performance of Executive’s responsibilities as an employee of
the Company in accordance with this Agreement. It is expressly
understood and agreed that to the extent that any such activities have been
conducted by Executive prior to the Effective Date, the continued conduct of
such activities (or the conduct of activities similar in nature and scope
thereto) subsequent to the Effective Date shall not thereafter be deemed to
interfere with the performance of Executive’s responsibilities to the
Company.
(b) Compensation.
(i) Base
Salary. During the Employment Period, Executive shall receive
an annual base salary (“Annual Base Salary”),
which shall be paid at a monthly rate, at least equal to 12 times the highest
monthly base salary paid or payable, including any base salary which has been
earned but deferred, to Executive by the Company and its affiliated companies in
respect of the 12-month period immediately preceding the month in which the
Effective Date occurs. During the Employment Period, the Annual Base
Salary shall be reviewed no more than 12 months after the last salary increase
awarded to Executive prior to the Effective Date and thereafter at least
annually. Any increase in Annual Base Salary shall not serve to limit
or reduce any other obligation to Executive under this
Agreement. Annual Base Salary shall not be reduced after any such
increase and the term Annual Base Salary as utilized in this Agreement shall
refer to Annual Base Salary as so increased. As used in this
Agreement, the term “affiliated companies”
shall include any company controlled by, controlling or under common control
with the Company.
(ii) Annual
Bonus. In addition to Annual Base Salary, Executive shall be
awarded, for each fiscal year ending during the Employment Period, an annual
bonus opportunity (the “Annual Bonus”) at
least as favorable as that to which he would have been entitled under the annual
bonus plan of the Company in effect for the last year prior to the Effective
Date (annualized in the event that Executive was not employed by the Company for
the whole of such fiscal year) (the “Recent Annual
Bonus”). Each such Annual Bonus shall be paid in a single lump
sum in cash at a time determined by the Company but in no event later than 2-½
months after the end of the fiscal year for which the Annual Bonus is awarded,
unless Executive shall elect to defer the receipt of such Annual
Bonus.
(iii) Incentive, Savings and
Retirement Plans. During the Employment Period, Executive
shall be entitled to participate in all incentive, savings and retirement plans,
practices, policies and programs applicable generally to other peer executives
of the Company and its affiliated companies (“Peer
Executives”).
(iv) Welfare Benefit
Plans. During the Employment Period, Executive and/or
Executive’s family, as the case may be, shall be eligible for participation in
and shall receive all benefits under the welfare benefit plans, practices,
policies and programs provided by the Company and its affiliated companies
(including, without limitation, medical, prescription drug, dental, disability,
employee life, group life, accidental death and travel accident insurance plans
and programs) (“Welfare Plans”) to
the extent applicable generally to Peer Executives.
(v) Expenses. During
the Employment Period, Executive shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by Executive in accordance
with the policies, practices and procedures of the Company and its affiliated
companies to the extent applicable generally to Peer Executives.
(vi) Fringe
Benefits. During the Employment Period, Executive shall be
entitled to fringe benefits in accordance with the plans, practices, programs
and policies of the Company and its affiliated companies with respect to Peer
Executives.
5. Separation from
Service.
(a) Death, Retirement or
Disability. Executive’s employment shall terminate
automatically upon Executive’s death or Retirement (pursuant to the definition
of Retirement set forth below) during the Employment Period. For
purposes of this Agreement, “Retirement” shall
mean Executive’s voluntary separation from service on or after the later of (i)
90 days after Executive has provided written notice to the Company’s corporate
secretary of his decision to retire, or (ii) Executive’s attainment of age 60
(but shall not include Executive’s voluntary termination after he has been given
notice that he may be terminated for Cause). If the Company
determines in good faith that the Disability of Executive has occurred during
the Employment Period (pursuant to the definition of Disability set forth
below), it may give to Executive written notice in accordance with
Section 12(b) of this Agreement of its intention to terminate Executive’s
employment. In such event, Executive shall separate from service with
the Company effective on the 30th day
after receipt of such notice by Executive (the “Disability Effective
Date”), provided that, within the 30 days after such receipt, Executive
shall not have returned to full-time performance of Executive’s
duties. For purposes of this Agreement, “Disability” shall
mean mental or physical disability as determined by the Board in accordance with
standards and procedures similar to those under the Company’s employee long-term
disability plan, if any. At any time that the Company does not
maintain such a long-term disability plan, Disability shall mean any illness or
other physical or mental condition of Executive that renders Executive incapable
of performing his customary and usual duties for the Company, or any medically
determinable illness or other physical or mental condition resulting from a
bodily injury, disease or mental disorder which, in either case, has lasted or
can reasonably be expected to last for at least 180 days out of a period of 365
consecutive days. The Board may require such medical or other
evidence as it deems necessary to judge the nature and permanency of Executive’s
condition.
(b) Cause. The
Company may terminate Executive’s employment during the Employment Period for
Cause. For purposes of this Agreement, “Cause” shall
mean:
(i) the
willful and continued failure of Executive to perform substantially Executive’s
duties with the Company (other than any such failure resulting from incapacity
due to physical or mental illness and specifically excluding any failure by
Executive, after reasonable efforts, to meet performance expectations), after a
written demand for substantial performance is delivered to Executive by the
Board or the Chief Executive Officer of the Company which specifically
identifies the manner in which the Board or Chief Executive Officer believes
that Executive has not substantially performed Executive’s duties,
or
(ii) the
willful engaging by Executive in illegal conduct or gross misconduct which is
materially and demonstrably injurious to the Company.
For
purposes of the definition of Cause, no act or failure to act, on the part of
Executive, shall be considered “willful” unless it is done, or omitted to be
done, by Executive in bad faith or without reasonable belief that Executive’s
action or omission was in the best interests of the Company. Any act,
or failure to act, based upon authority given pursuant to a resolution duly
adopted by the
Board or
upon the instructions of the Chief Executive Officer or a senior officer of the
Company or based upon the advice of counsel for the Company shall be
conclusively presumed to be done, or omitted to be done, by Executive in good
faith and in the best interests of the Company. The cessation of
employment of Executive shall not be deemed to be for Cause unless and until
there shall have been delivered to Executive a copy of a resolution duly adopted
by the affirmative vote of not less than a majority of the entire membership of
the Board at a meeting of the Board called and held for such purpose (after
reasonable notice is provided to Executive and Executive is given an
opportunity, together with counsel, to be heard before the Board), finding that,
in the good faith opinion of the Board, Executive is guilty of the conduct
described in subparagraph (i) or (ii) above, and specifying the particulars
thereof in detail.
(c) Good
Reason. Executive’s employment may be terminated by Executive
for Good Reason. For purposes of this Agreement, “Good Reason” shall
mean:
(i) the
assignment to Executive of any duties inconsistent in any material respect with
Executive’s position (including status, offices, titles and reporting
requirements), authority, duties or responsibilities as contemplated by
Section 4(a) of this Agreement, or any other action by the Company which
results in a material diminution in such position, authority, duties or
responsibilities, excluding for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith and which is remedied by the Company
promptly after receipt of notice thereof given by Executive;
(ii) any
failure by the Company to comply with any of the provisions of Section 4(b)
of this Agreement, other than an isolated, insubstantial and inadvertent failure
not occurring in bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by Executive;
(iii) the
failure by the Company (A) to continue in effect any compensation plan in which
Executive participates as of the Effective Date that is material to Executive’s
total compensation, unless an equitable arrangement (embodied in an ongoing
substitute or alternative plan) has been made with respect to such plan, or (B)
to continue Executive’s participation therein (or in such substitute or
alternative plan) on a basis not materially less favorable, both in terms of the
amount of benefits provided and the level of Executive’s participation relative
to Peer Executives;
(iv) the
Company’s requiring Executive, without his consent, to be based at any office or
location more than 35 miles from the office or location at which Executive was
based on the date immediately prior to the Effective Date, or to travel on
Company business to a substantially greater extent than required immediately
prior to the Effective Date;
(v) any
purported termination by the Company of Executive’s employment otherwise than as
expressly permitted by this Agreement; or
(vi) any
failure by the Company to comply with and satisfy Section 11(c) of this
Agreement.
(d) Notice of
Termination. Any termination by the Company for Cause, or by
Executive for Good Reason, shall be communicated by Notice of Termination to the
other party hereto given in accordance with Section 12(b) of this
Agreement. For purposes of this Agreement, a “Notice of
Termination” means a written notice which (i) indicates the specific
termination provision in this Agreement relied upon, (ii) to the extent
applicable, sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of Executive’s employment under the provision
so indicated, and (iii) if the Date of Separation from Service (as defined
below) is other than the date of receipt of such notice, specifies the
termination date (which date shall be not more than 30 days after the giving of
such notice). If a dispute exists concerning the provisions of this
Agreement that apply to Executive’s termination of employment (other than a
determination of “Cause” which shall be made as provided in Section 5(b)),
the parties shall pursue the resolution of such dispute with reasonable
diligence. Within 5 days of such a resolution, any party owing any
payments pursuant to the provisions of this Agreement shall make all such
payments together with interest accrued thereon at the rate provided in
Section 1274(b)(2)(B) of the Code. The failure by either party
to set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause shall not waive any right of
such party hereunder or preclude such party from asserting such fact or
circumstance in enforcing such party’s rights hereunder.
(e) Date of Separation from
Service. “Date of Separation from
Service” means (i) if Executive’s employment is terminated for any reason
other than death, Retirement or Disability, the date specified in the Notice of
Termination, and (ii) if Executive’s employment is terminated by reason of
death, Retirement or Disability, the Date of Separation from Service shall be
the date of death or Retirement of Executive or the Disability Effective Date,
as the case may be, provided in each such case, Executive’s termination of
employment also constitutes a separation from service under Section 409A of the
Code.
6. Obligations of the Company
upon Separation from Service.
(a) Good Reason; Other Than for
Cause, Death or Disability. If, during the Employment Period,
the Company shall terminate Executive’s employment other than for Cause or
Executive’s death or Disability or Executive shall separate from service for
Good Reason, then in consideration for services rendered by Executive prior to
the Date of Separation from Service:
(i) the
Company shall pay to Executive in a lump sum in cash within 30 days after the
Date of Separation from Service the aggregate of the following
amounts:
(A) the
sum of (1) Executive’s Annual Base Salary through the Date of Separation from
Service to the extent not theretofore paid, and (2) any accrued vacation pay to
the extent not theretofore paid (the sum of the amounts described in
clauses (1) and (2) shall be hereinafter referred to as the “Accrued
Obligations”); and
(B) the
amount equal to the present value of the continuation of Executive’s Base Salary
for a period of two (2) years after the Date of Separation from Service; such
present value to be determined by applying a discount rate equal to 120 percent
of the
applicable
federal rate provided in Section 1274(d) of the Code, compounded semi-annually
(the “Discount
Rate”); and
(C)
the amount equal to the present value of two (2) times the greater of (1)
Executive’s annual bonus for the year prior to the year in which the Change in
Control occurred (the “Prior Year”), or (2)
Executive’s target annual bonus for the year in which the Change in Control
occurred (the “Current
Year”); such present value to be determined by applying the Discount Rate
and assuming two equal annual payments on each of the first and second
anniversaries of the Date of Separation from Service; and
(D) the
amount equal to the present value of two (2) times the annual cost to
the Company and Executive of participation in the Welfare Plans described in
Section 4(b)(iv) of this Agreement with respect to either the Prior Year or
the Current Year, whichever year in which such annual cost was higher; such
present value to be determined by applying the Discount Rate and assuming 24
monthly payments beginning on the Date of Separation from Service;
and
(ii) to
the extent not theretofore paid or provided, the Company shall timely pay or
provide to Executive any other amounts or benefits required to be paid or
provided or which Executive is eligible to receive under any plan, program,
policy or practice or contract or agreement of the Company and its affiliated
companies (such other amounts and benefits shall be hereinafter referred to as
the “Other
Benefits”) at the time and in the manner provided in the documentation
establishing or describing such Other Benefits.
(b) Death, Retirement or
Disability. If Executive’s employment is terminated by reason
of Executive’s death, Retirement or Disability during the Employment Period,
this Agreement shall terminate without further obligations to Executive’s legal
representatives under this Agreement, other than for payment of Accrued
Obligations and the timely payment or provision of Other
Benefits. Accrued Obligations shall be paid to Executive’s estate or
beneficiary, as applicable, in a lump sum in cash within 30 days of the Date of
Separation from Service. Other Benefits shall be paid at the time and
in the manner provided in the documentation establishing or describing such
Other Benefits. With respect to the provision of Other Benefits, the
term Other Benefits as utilized in this Section 6(b) shall include without
limitation, and Executive’s estate and/or beneficiaries shall be entitled to
receive, death, retirement or disability benefits then applicable to
Executive.
(c) Cause; Other than for Good
Reason. If Executive’s employment shall be terminated for
Cause, or if Executive voluntarily separates from service during the Employment
Period, excluding a separation from service for Good Reason, this Agreement
shall terminate without further obligations to Executive, other than for Accrued
Obligations and the timely payment or provision of Other Benefits. In
such case, all Accrued Obligations shall be paid to Executive in a lump sum in
cash within 30 days of the Date of Separation from Service. Other
Benefits shall be paid at the time and in the manner provided in the
documentation establishing or describing such Other Benefits.
(d) Special Rule for Specified
Employees. Notwithstanding anything in this Agreement to the
contrary, if Executive is a specified employee as of the Date of Separation
from
Service, then to the extent, and only to the extent, necessary to comply with
Code Section 409A: (i) if any payment or distribution is payable
hereunder in a lump sum, Executive’s right to receive payment or distribution
will be delayed until the earlier of Executive’s death or the 7th month
following the Date of Separation from Service, and (ii) if any payment,
distribution or benefit is payable or provided hereunder over time, the amount
of such payment, distribution or benefit that would otherwise be payable or
provided during the 6 month period immediately following the Date of Separation
from Service will be accumulated, and Executive’s right to receive such
accumulated payment, distribution or benefit will be delayed until the earlier
of Executive’s death or the seventh month following the Date of Separation from
Service and paid or provided on the earlier of such dates, without interest, and
the normal payment or distribution schedule for any remaining payments,
distributions or benefits will commence. For purposes of this
Agreement, Executive shall be a “specified executive”
during the 12 month period beginning April 1 each year if the Executive met the
requirements of Section 416(i)(1)(A)(i), (ii) or (iii) of the Code (applied in
accordance with the regulations thereunder and disregarding Section 416(i)(5) of
the Code) at any time during the 12 month period ending on the December 31
immediately preceding the Date of Separation from Service.
7. Non-exclusivity of
Rights. Nothing in this Agreement shall prevent or limit
Executive’s continuing or future participation in any plan, program, policy or
practice provided by the Company or any of its affiliated companies and for
which Executive may qualify, nor, subject to Section 12(f), shall anything
herein limit or otherwise affect such rights as Executive may have under any
contract or agreement with the Company or any of its affiliated
companies. Amounts which are vested benefits or which Executive is
otherwise entitled to receive under any plan, policy, practice or program of or
any contract or agreement with the Company or any of its affiliated companies at
or subsequent to the Date of Separation from Service shall be payable in
accordance with such plan, policy, practice or program or contract or agreement
except as explicitly modified by this Agreement.
8. Full Settlement; Cost of
Enforcement. The Company’s obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against
Executive or others. In no event shall Executive be obligated to seek
other employment or take any other action by way of mitigation of the amounts
payable to Executive under any of the provisions of this Agreement and such
amounts shall not be reduced whether or not Executive obtains other
employment. The Company agrees to pay as incurred, to the full extent
permitted by law, all legal fees and expenses which Executive may reasonably
incur as a result of any contest (regardless of the outcome thereof) by the
Company, Executive or others of the validity or enforceability of, or liability
under, any provision of this Agreement or any guarantee of performance thereof
(including as a result of any contest by Executive about the amount of any
payment pursuant to this Agreement).
9. Obligations of the
Executive.
(a) Non-Competition. For
the one (1) year period beginning on the Date of Separation from Service, the
Executive shall not directly or indirectly engage in Competition (as defined
below) with the Company; provided, that it shall not be a violation of this
Section 9(a) for the Executive to become the registered or beneficial owner of
up to 5% of any class of the
capital
stock of a competing corporation registered under the Securities Exchange Act of
1934, as amended, provided that the Executive does not actively participate in
the business of such corporation until such time as this covenant
expires. For purposes of this Agreement, “Competition” by the
Executive shall mean the Executive’s engaging in, or otherwise directly or
indirectly being employed by or acting as a consultant or lender to, or being a
director, officer, employee, principal, agent, stockholder (other than as
specifically provided for herein), member, owner or partner of, or permitting
his name to be used in connection with the activities of any other business or
organization that owns, operates, controls or maintains retail or warehouse
hardware or home improvement stores in the United States, Puerto Rico, Canada or
Mexico with total annual sales of at least $500 million. Such
businesses or organizations include, but are not limited to, the following
entities and each of their subsidiaries, affiliates, assigns, or successors in
interest, in whole or in part: The Home Depot, Inc., Sears Holdings
Corporation, Wal-Mart Stores, Inc. and Xxxxxx, Inc.
(b) Non-Interference. For
the one (1) year period beginning on the Date of Separation from Service, the
Executive shall not directly or indirectly (i) solicit or induce any officer,
director, regional vice president, district manager, co-manager, store manager,
regional human resource manager or regional loss prevention manager of the
Company to terminate his or her employment with the Company or (ii) solicit,
contact or attempt to influence any vendor or supplier of the Company to limit,
curtail, cancel or terminate any business it transacts with the
Company.
(c) Confidential
Information. The Executive shall hold in a fiduciary capacity
for the benefit of the Company all trade secrets, confidential information, and
knowledge or data relating to the Company and its businesses, which were
obtained by the Executive during the Executive’s employment by the
Company. The Executive shall not, without the prior written consent
of the Company or as may otherwise be required by law or legal process,
communicate or divulge any such trade secrets, information, knowledge or data to
anyone other than the Company and those designated by the Company.
10. Enforcement. The Executive understands
and agrees that any breach or threatened breach by the Executive of any of the
provisions of Section 9 shall be considered a material breach of this Agreement,
and in the event of such a breach or threatened breach, the Company shall be
entitled to pursue any and all of its remedies under law or in equity arising
out of such breach. The Executive further agrees that in the event of
his breach of any of the provisions of Section 9, unless otherwise prohibited by
law, (i) the Company shall be released from
any obligation to make any payments or further payments to the Executive
under Section 6 and no
payments shall be due or payable to the Executive thereunder, and (ii) the Executive shall remit to the
Company, upon demand by the Company, any payments previously paid by the Company
to the Executive pursuant to Section 6. The Executive further agrees that the remedies in
the immediately preceding sentence will not preclude injunctive relief, and if
the Company pursues either a temporary restraining order or temporary injunctive
relief, then the Executive waives any requirement that the Company post a
bond.
11. Successors.
(a) This
Agreement is personal to Executive and without the prior written consent of the
Company shall not be assignable by Executive otherwise than by will or the laws
of descent and distribution. This Agreement shall inure to the
benefit of and be enforceable by Executive’s legal representatives.
(b) This
Agreement shall inure to the benefit of and be binding upon the Company and its
successors and assigns.
(c) The
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company to assume expressly and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. As used
in this Agreement, “Company” shall mean
the Company as hereinbefore defined and any successor to its business and/or
assets as aforesaid which assumes and agrees to perform this Agreement by
operation of law, or otherwise.
12. Miscellaneous.
(a) This
Agreement shall be governed by and construed in accordance with the laws of the
State of North Carolina, without reference to principles of conflict of
laws. The captions of this Agreement are not part of the provisions
hereof and shall have no force or effect. This Agreement may not be
amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal
representatives.
(b) All
notices and other communications hereunder shall be in writing and shall be
given by hand delivery to the other party or by registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
If to
Executive:
At the
Executive’s address of record on file with the Company
If to the
Company:
Xxxx’x
Companies, Inc.
0000
Xxxxx Xxxxxxxxx
Xxxxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention: General
Counsel
or to
such other address as either party shall have furnished to the other in writing
in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this
Agreement.
(d) The
Company may withhold from any amounts payable under this Agreement such Federal,
state, local or foreign taxes as shall be required to be withheld pursuant to
any applicable law or regulation.
(e) Executive’s
or the Company’s failure to insist upon strict compliance with any provision of
this Agreement or the failure to assert any right Executive or the Company may
have hereunder, including, without limitation, the right of Executive to
terminate employment for Good Reason pursuant to Section 5(c) of this
Agreement, shall not be deemed to be a waiver of such provision or right or any
other provision or right of this Agreement.
(f) Executive
and the Company acknowledge that, except as may otherwise be provided under any
other written agreement between Executive and the Company, the employment of
Executive by the Company is “at will” and, subject to Section 1(a) hereof,
prior to the Effective Date, Executive’s employment and/or this Agreement may be
terminated by either Executive or the Company at any time prior to the Effective
Date, in which case Executive shall have no further rights under this
Agreement. From and after the Effective Date this Agreement shall
supersede any other agreement between the parties with respect to the subject
matter hereof.
IN
WITNESS WHEREOF, Executive has hereunto set Executive’s hand and, pursuant to
the authorization from its Board of Directors, the Company has caused these
presents to be executed in its name on its behalf, all as of the day and year
first above written.
EXECUTIVE
_______________________________
_______________________________
XXXX’X
COMPANIES, INC.
By: _____________________________
Name: ___________________________
Title: ___________________________