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Exhibit 10.44
EMPLOYMENT AGREEMENT
Entered into on March 10, 1997
between
FEDERATED CORPORATE SERVICES, INC.
and
XXXXX X. XXXXXXXXX
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EMPLOYMENT AGREEMENT
--------------------
THIS AGREEMENT, made in the City of Cincinnati and State of
Ohio, on the 10th day of March, 1997 (the "Agreement Effective Date"), between
Federated Corporate Services, Inc., a Delaware corporation (hereinafter called
the "Employer"), and Xxxxx X. Xxxxxxxxx of Cincinnati, Ohio (hereinafter called
the "Employee").
RECITALS
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Employer and Employee are parties to an Employment Agreement
dated as of December 9, 1994.
Employer and Employee are desirous of entering into a new
employment agreement with a term commencing on May 16, 1997.
IT IS AGREED by and between the parties hereto as follows:
ARTICLE I
EMPLOYMENT
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1.1 TERM AND DUTIES. The Employer agrees to and does employ
the Employee to perform the duties of Chairman of the Board ("Chairman") and
Chief Executive Officer of Federated Department Stores, Inc. ("Federated") in
accordance with the terms of this Agreement. The period (the "Term") of such
employment shall begin on May 16, 1997 and shall end on the later of May 16,
2001 or such later date as agreed by the Employer and Employee. The duties of
the Employee shall be those commensurate with the office of Chairman of the
Board and Chief Executive Officer of Federated. In such capacity he shall have
general charge of the business and affairs of Federated, with particular
responsibility for the overall merchandising activities of Federated, in
addition to his duties of general supervision. Neither the Employee's title nor
any of his functions shall be changed without his consent. While it is
understood that the right to elect directors and officers of Federated is by law
vested in the stock-
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holders and directors of Federated, it is nevertheless mutually contemplated,
subject to such rights, that the Employee shall, at all times during his
employment, be Chairman of the Board and Chief Executive Officer of Federated
and shall be a member of the Board of Directors of Federated.
1.2 COMPENSATION. In consideration of Employee's services
during the Term, the Employer agrees to (a) pay the Employee an annual salary in
the amount of One Million Two Hundred Fifty Thousand Dollars ($1,250,000) ("Base
Salary"), (b) permit the Employee to participate in Federated's annual and
long-term bonus programs as set forth on Exhibit A and (c) grant the Employee
stock options as set forth on Exhibit A. Nothing in this Agreement shall
preclude or in any way affect the grant by the Employer or the receipt by the
Employee of increases in such salary or any such bonuses or other forms of
additional compensation, including additional equity or equity-based awards, any
such salary and/or bonus increases and additional compensation, contingent or
otherwise, to be determined solely in the discretion of the Board of Directors
of the Employer or persons to whom such authority is delegated by such Board of
Directors. The Employee's salary shall never be reduced during the Term without
the Employee's consent.
1.3 PAYMENT SCHEDULE. The Base Salary specified in Section
1.2(a) hereof shall be payable as current salary, in installments not less
frequently than monthly, and at the same rate for any fraction of a month
unexpired at the end of the Term.
1.4 EXPENSES. During the Term the Employee shall be allowed
reasonable traveling expenses and shall be furnished office space, assistance
and accommodations suitable to the character of his position with Federated and
adequate for the performance of his duties hereunder.
1.5 BENEFITS. The Employee and/or the Employee's family, as
the case may be, shall be eligible for participation in and shall receive all
benefits under savings and retirement programs, welfare benefit plans, fringe
benefit programs and perquisites provided by the Employer and its affiliates
(including, for example, without limitation, medical, prescription,
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dental, disability, salary continuance, executive life, group life, accidental
death and travel accident insurance plans and programs, use of an automobile,
financial counseling, and suitable business and country club memberships), at
least as favorable as the most favorable of such plans and programs provided to
key executives of Federated in effect from time to time.
1.6 TERMINATION IN CASE OF DISABILITY. The Employee shall not
be in breach of this Agreement if he shall fail to perform his duties hereunder
because of physical or mental disability. If for a continuous period of 12
months during the Term the Employee fails to render services to the Employer
because of the Employee's physical or mental disability, the Board or its
delegate may end the Term prior to its stated termination date. If there should
be any dispute between the parties as to the Employee's physical or mental
disability at any time, such question shall be settled by the opinion of an
impartial reputable physician agreed upon for the purpose by the parties or
their representatives, or failing agreement within 10 days of a written request
therefor by either party to the other, then one designated by the then president
of the local Academy of Medicine. The written opinion of such physician as to
the matter in dispute shall be final and binding on the parties.
1.7 TERMINATION OF SERVICES. If, prior to the end of the Term,
(a) the Employer shall terminate the Employee's employment other than for Cause,
or (b) the Executive shall terminate his employment for Good Reason, then the
Employer shall immediately thereupon pay the Employee in a lump sum in cash (a)
the full amount of salary that would be payable to the Employee under Section
1.2 and (b) the aggregate of the target level annual bonus for which the
Employee is eligible under the Employer's 1992 Incentive Bonus Plan as set forth
in Exhibit A for each year remaining in the Term following such termination.
Employee shall be credited with vesting and benefit service through the
remainder of the Term.
1.8 TERMINATION FOR CAUSE. The Employer may terminate the
employment of the Employee and this Agreement and all of its obligations
hereunder, except for obligations accrued but unpaid to the effective date of
termination, for Cause upon notice given pursuant to this Section. As used in
this Agreement, the term "Cause" shall mean (a) the willful breach of
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duty by the Employee in the course of his employment, (b) the Employee's
habitual neglect of his duties, (c) a material willful breach by the Employee of
his duties under this Agreement which breach is not cured by the Employee within
ten (10) days of receipt of written notice thereof from the Employer to the
Employee, or (d) the Employee's final conviction of a felony, which conviction
is nonappealable or for which the period of filing an appeal has expired.
"Cause" shall not include (a) bad judgment or negligence of the Employee (other
than his habitual neglect of duty), or (b) any act or omission believed by the
Employee in good faith to have been in or not opposed to the interests of the
Employer (without intent of gaining therefrom directly or indirectly a profit to
which he was not legally entitled) and reasonably believed by the Employee not
to have been improper or unlawful, or (c) any act or omission in respect of
which a determination could properly have been made by the Board of Directors of
Federated that the Employee met the applicable standard of conduct prescribed
for indemnification or reimbursement under the bylaws of Federated or the laws
of Delaware, in each case in effect at the time of such act or omission, or (d)
an act or omission with respect to which notice of termination is given more
than twelve months after the earliest date on which any non-employee director of
Federated who was not a party to such act or omission knew or should have known
of such act or omission.
1.9 The term "Good Reason" means:
A. The assignment to the Employee of any duties materially
inconsistent with the Employee's position (including status, offices, titles and
reporting requirements), authority, duties or responsibilities as contemplated
in Article I of this Agreement, or any other action by the Employer which
results in a material diminution in such position, authority, duties or
responsibilities, excluding for this purpose an action not taken in bad faith
and which is remedied by the Employer within ten (10) days after receipt of
written notice thereof given by the Employee, provided that repeated instances
of such action shall be evidence of the bad faith of the Employer;
B. any material failure by the Employer to comply with any
of the provisions of this Agreement, other than a failure not occurring in bad
faith and which is reme-
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died by the Employer within ten (10) days after receipt of written notice
thereof given by the Employee, provided that repeated failures shall be evidence
of the bad faith of the Employer;
C. failure of the Employee to be elected or reelected
Chairman and Chief Executive Officer of the Federated or to be elected or
reelected to membership on the Federated's Board of Directors; or
D. any purported termination by the Employer of the
Employee's employment otherwise than as expressly permitted by this Agreement.
1.10 LOCATION OF EMPLOYMENT. Employer shall not require
Employee to be based in any office or location other than within the Cincinnati,
Ohio Standard Metropolitan Statistical Area without his agreement, except for
travel reasonably required in the performance of the Employee's
responsibilities.
ARTICLE II
OTHER PROVISIONS
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2.1 PERFORMANCE OF DUTIES. The Employee agrees that during the
Term (a) he will faithfully and in conformity with the directions of the Board
of Directors of Federated, perform the duties of his employment hereunder, and
that he will devote to the performance of said duties all such time and
attention as they shall reasonably require, taking, however, from time to time
(as the Employer agrees that he may) reasonable vacations; and (b) he will not,
without the express consent of the Board of Directors of Federated, or persons
to whom such authority is delegated by such Board of Directors become actively
associated with or engaged in any competing business (as hereinafter defined)
while he is employed by Employer or within one (1) year of the first to occur of
(i) the expiration of the Term or (ii) the termination of his employment by the
Employer for Cause or by the Employee other than for Good Reason prior to or at
the end of the Term, and he will do nothing inconsistent with his duties to the
Employer.
Notwithstanding the foregoing, the aforesaid one (1) year
period shall be shortened to whatever shorter period, if any, is adopted at any
time subsequent to the date hereof by
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the Compensation Committee of the Board of Directors of Federated as the
standard period during which such non-compete provisions in the Employer's
standard employment agreements shall apply.
In the event that (i) the Employee is advised at any time by
the Employer in writing that his services will no longer be required during the
Term or (ii) the employment of the Employee is terminated by the Employee for
Good Reason, Employee shall be free to become actively engaged with another
business regardless of whether it is a competing business.
Employee agrees that he will not disclose to anyone outside of
the Employer, or use in other than the Employer's business, confidential
information relating to the Employer's business, in any way obtained by him
while employed by the Employer, unless authorized by the Employer in writing. It
is understood that violation of this provision would cause irreparable harm to
the Employer and that Employer may seek to enjoin any such violation or to take
any other applicable action. The Employee also agrees that he will not engage in
any activity which would violate the Conflict of Interest or Business Ethics
Statement signed from time to time by the Employee.
As used in this Section 2.1 a "competing business" shall be
any business which:
A. at the time of determination, is substantially similar to
the whole or a substantial part of the business at the end of the period of
active employment, conducted by Employer, or any of its subsidiaries, or
subsidiaries of subsidiaries, or affiliates, or divisions, or substantially
similar to some substantial part of said business; and
B. at the time of determination, is operating a store or
stores which, during its or their fiscal year preceding the determination, in
the aggregate had aggregate net sales, including sales in leased and licensed
departments, in excess of $10,000,000, which store or stores is or are located
in a city or within a radius of twenty-five (25) miles from the outer limits of
a city where Employer, or any of its subsidiaries, or subsidiaries of
subsidiaries, or affiliates, or divisions is operating a store or stores which,
during its or their fiscal year preceding the determina-
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tion, in the aggregate had aggregate nets sales, including sales in leased and
licensed departments, in excess of $10,000,000; and
C. had aggregate net sales at all its locations, including
sales in leased and licensed departments and sales by its divisions,
subsidiaries and affiliates, during its fiscal year preceding that in which the
Employee made such an investment therein, or first rendered personal services
thereto, following his termination of service, in excess of $25,000,000.
ARTICLE III
MISCELLANEOUS
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3.1 ASSIGNMENT. This Agreement shall not be assignable by the
Employer without the written consent of the Employee. The Employee may not
assign, pledge, or encumber his interest in this Agreement, or any part thereof,
without the written consent of the Employer.
3.2 GOVERNING LAW. This Agreement has been executed on behalf
of the Employer by an officer of the Employer located in the City of Cincinnati,
Ohio. This Agreement and all questions arising in connection herewith shall be
governed by the internal substantive laws of the State of Ohio. The Employer and
the Employee each consent to the jurisdiction of, and agree that any controversy
between them arising out of this Agreement shall be brought in, the United
States District Court for the Southern District of Ohio, Western Division; the
Court of Common Pleas for Xxxxxxxx County, Ohio; or such other court venued
within Xxxxxxxx County, Ohio as may have subject matter jurisdiction over the
controversy.
3.3 SEVERABILITY. If any portion of this Agreement is held to
be invalid or unenforceable, such holding shall not affect any other portion of
this Agreement.
3.4 ENTIRE AGREEMENT. This Agreement comprises the entire
agreement between the parties hereto and as of the date hereof, supersedes,
cancels and annuls any and all prior agreements between the parties hereto. This
Agreement may not be modified, renewed or
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extended orally, but only by a written instrument referring to this Agreement
and executed by the parties hereto.
3.5 GENDER AND NUMBER. Words in the masculine herein may be
interpreted as feminine or neuter, and words in the singular as plural, and vice
versa, where the sense requires.
3.6 NOTICES. Any notice or consent required or permitted to be
given under this Agreement shall be in writing and shall be effective when given
by personal delivery or five business days after being sent by certified US
mail, return receipt requested, to the Secretary of Federated Department Stores,
Inc. at its principal place of business in the City of Cincinnati or to the
Employee at his last known address as shown on the records of the Employer.
3.7 WITHHOLDING TAXES. The Employer may withhold from any
amounts payable under this Agreement all federal, state, city or other taxes as
shall be required pursuant to any law or governmental regulation or ruling.
3.8 WAIVER AND RELEASE. In consideration of the Employer's
entering into this Agreement, and the receipt of other good and valuable
consideration, the sufficiency of which is expressly acknowledged, the Employee,
for himself and his successors, assigns, heirs, executors and administrators,
hereby waives and releases and forever discharges the Employer and its
affiliates and their officers, directors, agents, employees, shareholders,
successors and assigns from all claims, demands, damages, actions and causes of
action whatsoever which he now has on account of any matter, whether known or
unknown to him and whether or not previously disclosed to the Employee or the
Employer, that relates to or arises out of (a) any existing or former employment
agreement (written or oral) entered into between the Employee and the Employer
or any of its affiliates (or any amendment or supplement to any such agreement),
(b) any agreement providing for a payment or payments or extension of the
employment relationship triggered by a merger or sale or other disposition of
the stock or assets or restructuring of the Employer or any affiliate of the
Employer, or (c) any applicable severance plan.
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3.9 ENFORCEMENT OF AGREEMENT. If the Employee incurs legal or
other fees and expenses in an effort to establish entitlement to benefits under
this Agreement, regardless of whether the Employee ultimately prevails, the
Employer shall reimburse him for such fees and expenses, unless a court of
competent jurisdiction determines that the Employee made such effort in bad
faith.
Reimbursement of fees and expenses described in the preceding
paragraph shall be made monthly during the course of any action upon the written
submission of a request for reimbursement together with proof that the fees and
expenses were incurred
3.10 MISCELLANEOUS. Except as specifically provided herein,
all accounts payable pursuant to this Agreement shall be paid without reduction
regardless of any amounts of salary, compensation or other amounts which may be
paid or payable to Employee from any source or which Employee could have
obtained upon seeking other employment; provided that the Company shall be
permitted to make all payments pursuant to this Agreement net of any legally
required tax withholdings. Employee shall not be required to seek other
employment, and there shall be no offset to amounts due hereunder as a result of
any salary, compensation or other amounts Employee may be paid from other
sources.
IN WITNESS WHEREOF, the parties hereto have hereunto and to a
duplicate hereof set their signatures on March 10, 1997.
FEDERATED CORPORATE SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
Title: President
XXXXX X. XXXXXXXXX
/s/ Xxxxx X. Xxxxxxxxx
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EXHIBIT A
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to
EMPLOYMENT AGREEMENT
Entered into on March 10th, 1997 between
FEDERATED CORPORATE SERVICES, INC.
and
XXXXX X. XXXXXXXXX
(All capitalized terms used in this Exhibit are defined as set
forth in the Agreement)
ANNUAL BONUS: For each year during the Term (including fiscal 1997),
the annual bonus payable (if any) under the terms of the
1992 Incentive Bonus Plan (as such may be amended from
time to time) of Federated Department Stores, Inc.
(Federated) will be based on performance goals
established for the senior executives of the Employer on
an annual basis by the Board of Directors of Federated or
a Committee thereof, with the amount of bonus equal to a
sliding percent of Employee's annual base salary in
effect as of the last day of the performance period based
on performance against the targeted annual goal, as
follows:
PERFORMANCE AGAINST TARGET PAYOUT AS PERCENT
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OF ANNUAL SALARY
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Below 95% of Target 0.0%
95% of Target 24.0%
Target 50.0%
110% of Target 70.0%
120% of Target 90.0%
Any annual bonus payable hereunder shall be paid in the
fiscal year following the annual performance period in
respect of which the bonus is payable in accordance with
Federated's 1992 Incentive Bonus Plan.
By operation of Federated's Supplementary Executive
Retirement Plan, annual bonuses paid to Employee under
Federated's 1992
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Incentive Bonus Plan are included as eligible compensation
under Federated's Pension Plan.
LONG TERM PLAN:
For each three-year performance period commencing with the
1995-1997 performance period, the bonus payable (if any)
under the terms of Federated's 1992 Incentive Bonus Plan
(as such may be amended from time to time) will be based
on performance goals established for the senior executives
of Federated in respect of each such three-year
performance period by the Board of Directors of Federated
or a Committee thereof, with the amount of bonus equal to
a sliding percent of Employee's annual base salary
(prorated on an annual basis for any change in Employee's
base salary occurring at any time during any such
three-year period and determined for any such year in the
three-year period based on the annual base salary in
effect as of the last day of the fiscal year) based on
performance against the targeted three-year goal, as
follows:
PERFORMANCE AGAINST TARGET PAYMENT AS PERCENT
-------------------------- ------------------
OF ANNUAL SALARY
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Below 95% of Target 0.0%
95% of Target 24.0%
Target 50.0%
110% of Target 70.0%
120% of Target 90.0%
Illustratively, in respect of the fiscal 1995-1997
performance period, assuming achievement of the 1995-1997
goal at the 50% target level, the long-term incentive
payout in 1998 in respect of such three-year period would
be $541,250 (the sum of (i) 50% (target level) x
$1,000,000 (the base salary in effect at the end of each
of the 1995 and 1996 fiscal years) x 67% (the percent of
time during the three-year period that the $1,000,000 is
deemed applicable for purposes of calculating the
long-term payout, i.e., two years out of the three-year
period because the Employee's base salary at the end of
each of the 1995 and 1996 fiscal years was $1,000,000) +
(ii) 50% (target level) x $1.25 million (the base salary
in effect at the end of the 1997 fiscal year) x 33% (the
percent of time during the three-year period that the
$1.25 million base salary is deemed applicable for
purposes of calculating the long-term payout, i.e., one
year out of the three-year period because Employee's base
salary at the end of the 1997 fiscal year will be $1.25
million).
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Employee shall be entitled to a pro rata portion of a
long-term bonus, if any is payable under the terms of
Federated's 1992 Incentive Bonus Plan (as such may be
amended from time to time), for any three-year performance
period commencing on or after fiscal 1995 but which
performance period has not ended as of the end of the
Term. The pro rata payment is based on the length of
Employee's service of employment within such three-year
performance period. Illustratively, if the performance
period covers the 1996-1998 fiscal years and the
employment terminates on the last day of the 1997 fiscal
year, Employee would have been employed for sixty-seven
percent (67%) of the performance period and would be
eligible for sixty-seven percent (67%) of any long-term
bonus payable as provided above if and when any bonus is
paid in respect of that period under the terms of
Federated's 1992 Incentive Plan (as may be amended) based
upon the performance goals established for the senior
executives of the Employer for that period by the Board of
Directors of Federated or a Committee thereof.
Any long-term bonus payable hereunder shall be paid in the
fiscal year following the three-year performance period in
respect of which the bonus is payable in accordance with
Federated's 1992 Incentive Bonus Plan.
STOCK OPTIONS: Federated shall grant, to Employee, effective
March 28, 1997 (the "Grant Date"), options for 450,000
shares, with vesting of 100,000 shares on the first
anniversary of the Grant Date, 100,000 shares on the
second anniversary of the Grant Date and 250,000 shares on
the third anniversary of the Grant Date, except that 100%
vesting shall occur immediately upon the effective date of
the termination of the employment of Employee (a) by
Employer other than for Cause, (b) by Employee for Good
Reason or (c) by Employer and Employee by mutual consent;
the options will be issued at one hundred percent of the
closing market price of Federated's common stock on the
New York Stock Exchange as listed in THE WALL STREET
JOURNAL on the trading day immediately preceding the Grant
Date; the grant is subject to the terms of the attached
form of Nonqualified Stock Option Agreement with
Federated.
