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AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
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THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT is entered into as of
the 27th day of June, 2000, by and among CONSOLIDATED STORES CORPORATION, a
Delaware corporation ("CSC"), CONSOLIDATED STORES CORPORATION, an Ohio
corporation ("Consolidated") (CSC and Consolidated are hereinafter jointly
referred to as "Employer"), and Xxxxxxx X. Xxxxxx, an individual residing in
Florida ("Executive").
W I T N E S S E T H:
WHEREAS, Executive was formerly employed by each of CSC and
Consolidated as its Chief Executive Officer, President and Chairman of the Board
of Directors; and
WHEREAS, effective as of June 27, 2000 (the "Amendment Effective
Date"), Executive voluntarily resigned from his positions as Chief Executive
Officer and President of CSC and Consolidated, resigned from his position as
Chairman of the Board of Directors of Consolidated and retired from all service
as an employee, officer and director of each of CSC's other direct and indirect
subsidiaries; and
WHEREAS, Executive will continue as Chairman of the Board of Directors
of CSC (the "Board") until the date prior to the date of the next scheduled
meeting of the Board of CSC which will be August 14, 2000 and thereafter will
continue as an employee of Employer pursuant to this Employment Agreement; and
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WHEREAS, the parties desire to set forth the terms and conditions of
Executive's continued employment with Employer;
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties agree as follows:
1. RESIGNATIONS.
(a) Executive acknowledges and agrees that, effective as of the
Amendment Effective Date, he voluntarily resigned from his positions as Chief
Executive Officer and President of each of CSC and Consolidated, resigned from
his position as Chairman of the Board of Directors of Consolidated and retired
from all service as an employee, officer and director of each of CSC's other
direct and indirect subsidiaries.
(b) Executive shall serve as Chairman of the Board of CSC until August
14, 2000, whereupon he shall voluntarily resign as director and Chairman of the
Board of CSC.
2. EMPLOYMENT DUTIES.
(a) EMPLOYMENT. During the term of this Employment Agreement, and in
addition to his duties as Chairman of the Board of CSC until August 14, 2000,
Employer shall employ Executive as an employee of Employer, with the duty of
providing advice and counsel from time to time to the Board of CSC and to
Employer's senior management relating to (i) merchandising matters, (ii) the
competitors of Employer, (iii) mergers and acquisitions and (iv) such other
strategic matters as determined by the Board of CSC or by senior management of
Employer. Executive shall
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report directly to the Vice Chairman of the Board of CSC. Executive shall
prepare monthly reports (one per quarter which shall be in writing) summarizing
his activities and shall prepare such other summary reports as the Vice Chairman
of the Board of CSC may reasonably request on matters within the scope of the
Executives duties hereunder. Except for his position as Chairman of the Board of
CSC until August 14, 2000, Executive shall not be an officer or director of CSC
or any of its subsidiaries.
(b) DUTIES AND ATTENTION. Executive shall, from time to time, devote
such portion of his business time and attention to his duties and
responsibilities hereunder as is necessary to fulfill those duties and shall
perform diligently such duties. Subject to Paragraph 9(a), so long as it does
not interfere in any material respect with his duties under this Employment
Agreement, Executive may (i) render services of a business, professional,
commercial or other nature for compensation to other persons or firms, (ii)
attend to outside investments and serve as a director, trustee or officer of or
otherwise participate in educational, welfare, social, religious and civic
organizations and (iii) serve as a director of public or private corporations
that are not engaged in the Company Business (as defined in Paragraph 9(a)
hereof).
(c) BUSINESS DECISIONS. Executive shall have no liability to Employer
for any act or omission undertaken during the term of this Employment Agreement
in his good faith business judgment in furtherance of his duties as prescribed
in or under this Employment Agreement.
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(d) INDEMNIFICATION. For service through the Amendment Effective Date
as a director or officer of CSC, Consolidated or any subsidiary of either of
them and for service as Chairman of the Board of CSC through August 14, 2000,
which service shall in each instance be deemed to be at the request of CSC and
its Board of Directors, Executive shall be entitled to the protection of the
applicable indemnification provisions of the charter and by-laws of CSC,
Consolidated and any such subsidiary, and Employer agrees to indemnify and hold
harmless Executive from and against any claims, liabilities, damages or expenses
incurred by Executive in or arising out of the status, capacities and activities
as an officer or director of CSC, Consolidated and any subsidiary of either to
the maximum extent permitted by law.
3. TERM.
Subject to the effectiveness of this Employment Agreement pursuant to
Section 22, Executive's service as an employee hereunder shall commence as of
the Amendment Effective Date and shall end on August 14, 2002, unless earlier
terminated as provided herein.
4. COMPENSATION.
(a) SALARY. For Executive's service as an employee hereunder, Employer
shall pay to Executive a base salary as follows, (i) for the period commencing
on the Amendment Effective Date and ending on August 14, 2001, a salary at the
rate of nine hundred eighty-two thousand dollars ($982,000.00) per annum, and
(ii) for the period August 15, 2001 through August 14, 2002, a salary of two
hundred thousand dollars
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($200,000) and, in the case of each of (i) and (ii), payable in those
installments customarily used in payment of salaries to Employer's executives
(but in no event less frequently than monthly).
(b) BONUS. (i) In addition to the salary compensation as above stated,
Employer shall pay to Executive bonus compensation for the fiscal year 2000
equal to the bonus to which he would have been entitled under Employer's Key
Associate Annual Incentive Compensation Plan as in effect on the date hereof had
he remained Chairman of the Board and Chief Executive Officer of CSC through the
end of such fiscal year, multiplied by a fraction, the numerator of which is 199
(the number of days in fiscal year 2000 through August 14, 2000) and the
denominator of which is 365. Executive's bonus as set forth in this Paragraph
4(b) shall be the only cash incentive compensation to which Executive shall be
entitled in respect of his services during the term of this Employment
Agreement.
(ii) Any bonus paid for the fiscal year 2000 under Paragraph 4(b)(i)
shall be paid as and when such bonuses are paid to senior management of
Employer. In the event of a termination of Executive's employment prior to the
payment of said bonus as a consequence of Executive's death or "permanent
disability" (as defined below), Executive or his estate, as the case may be,
shall be entitled to receive said bonus when and as provided in the first
sentence of this Paragraph 4(b)(ii). For the purposes of this Employment
Agreement, Executive's "permanent disability" occurrence and benefits
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shall be determined in the same manner as are other such occurrences and
benefits under Employer's Disability Policy in effect at the date of the
occurrence.
(c) ACCELERATED PAYMENTS. (i) Upon a "Change in Control" of CSC, all
amounts payable under this Paragraph 4 shall become immediately due and payable.
(ii) As used herein, "Change in Control" means any of the
following events: (i) any person or group (as defined for purposes of Section
13(d) of the Securities Exchange Act of 1934) becomes the beneficial owner of,
or has the right to acquire (by contract, option, warrant, conversion of
convertible securities or otherwise), 20% or more of the outstanding equity
securities of CSC entitled to vote for the election of directors; (ii) a
majority of the Board of Directors of CSC is replaced within any period of two
years or less by directors not nominated and approved by a majority of the
directors of CSC in office at the beginning of such period (or their successors
so nominated and approved), or a majority of the Board of Directors of CSC at
any date consists of persons not so nominated and approved; (iii) the
stockholders of CSC approve an agreement to reorganize, merge or consolidate
with another corporation (other than Consolidated or an affiliate); or (iv) the
stockholders of CSC adopt a plan or approve an agreement to sell or otherwise
dispose of all or substantially all of CSC's assets (including without
limitation, a plan of liquidation or dissolution), in a single transaction or
series of related transactions. The effective date of any such Change in Control
shall be the date upon which the last event occurs or last action taken such
that the definition of such Change in Control (as set forth above) has been met.
For purposes of this Employment
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Agreement, the term "affiliate" shall mean: (i) any person or entity qualified
as part of an affiliated group which includes Consolidated and CSC pursuant to
Section 1504 of the Code; or (ii) any person or entity qualified as part of a
parent-subsidiary group of trades and businesses under common control within the
meaning of Treasury Regulation Section 1.414(c)(2)(b). Determination of
affiliate status shall be tested as of the date immediately prior to any event
constituting a Change in Control. The other provisions of this Paragraph
4(c)(iii) notwithstanding, the term "Change in Control" shall not mean any
transaction, merger, consolidation, or reorganization in which CSC exchanges or
offers to exchange newly issued or treasury shares in an amount less than 50% of
the then outstanding equity securities of CSC entitled to vote for the election
of directors, for 51% or more of the outstanding equity securities entitled to
vote for the election of at least the majority of the directors of a corporation
other than Consolidated or an affiliate thereof (the "Acquired Corporation"), or
for all or substantially all of the assets of the Acquired Corporation.
5. TRANSPORTATION. During the term of this Employment
Agreement, Employer shall continue to provide Executive with the automobile
being used by the Executive as of the Amendment Effective Date. Employer shall
pay all maintenance and repair expenses with respect to the automobile, procure
and maintain in force at Employer's expense collision, comprehensive, and
liability insurance coverage with respect to the automobile, and pay operating
expenses with respect to the automobile to the extent such operating expenses
are incurred in the conduct of Employer's business.
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Employer shall also pay for all costs and expenses in transporting such
automobile from Columbus, Ohio to Naples, Florida. At the end of the lease term,
Executive shall be permitted to purchase such automobile in accordance with
applicable Employer policy.
6. LIFE INSURANCE, OTHER BENEFITS AND STOCK OPTIONS.
(a) VACATION AND SICK LEAVE. During the term of this Employment
Agreement, Executive shall be entitled to such periods of vacation and sick
leave allowance each year which shall not be less than as provided under
Employer's Vacation and Sick Leave Policy for executive officers.
(b) GROUP PLANS, ETC. During the term of this Employment Agreement,
Executive shall be entitled to participate in any group life, hospitalization,
or disability insurance plan, health program, retirement plan or other executive
benefit plan (other than bonus compensation or performance plans) that is
generally available to senior executive officers, as distinguished from general
management, of Employer. Executive's participation in and benefits under any
such plan shall be on the terms and subject to the conditions specified in the
governing document of the particular plan. Executive shall be entitled to 100%
reimbursement of his medical and dental expenses incurred during the term of
this Employment Agreement.
(c) Any and all options to purchase shares of common stock of Employer
or any of its subsidiaries under any plan of Employer or any of its subsidiaries
shall remain outstanding, shall continue to vest and be and become exercisable
in accordance with their terms as set forth in any applicable stock option
agreement and, to
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the extent vested and exercisable upon termination of Executive's employment
hereunder, shall remain outstanding and exercisable for 90 days thereafter.
7. TERMINATION AND FURTHER COMPENSATION.
(a) The employment of Executive under this Employment Agreement and the
term hereof may be terminated by Employer for cause at any time. For purposes
hereof; the term "cause" shall mean:
(A) Executive's conviction of a felony or acts
of embezzlement, fraud or theft, in each
case from or involving Employer or any
subsidiary;
(B) Executive's breach of any of the Restrictive
Covenants (as defined in Paragraph 9(b)
below) or Executive's willful breach in a
material respect of any other material
provision of this Employment Agreement which
failure has not been cured in all
substantial respects within ten (10) days
after Employer gives written notice thereof
to Executive; or
(C) Executive's willful, wrongful engagement in
any Competitive Activity (as that term is
hereinafter defined).
Any termination of Executive for "cause" shall not be effective until
all the following shall have taken place:
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(i) The Secretary of CSC pursuant to resolution of the
Board, shall have given written notice to Executive
that, in the opinion of the Board, Executive may be
terminated for cause, specifying the details;
(ii) Executive shall have been given a reasonable
opportunity to appear before the Board prior to the
determination of the Board evidenced by such
resolution;
(iii) With respect to any matters other than Executive's
conviction of a felony or acts of embezzlement, fraud
or theft, Executive shall neither have ceased to
engage in the activity giving rise to the proposed
termination for cause within thirty (30) days after
his receipt of such written notice nor diligently
taken all reasonable steps to that end during such
thirty (30) day period and thereafter;
(iv) After complying with the procedures set forth in
subparagraphs (i) through (iii) above, Executive
shall have been delivered a certified copy of a
resolution of the Board adopted by the affirmative
vote of not less than three-fourths (3/4) of the
entire membership of the Board finding that Executive
was guilty of the conduct giving rise to the
termination for cause.
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Any termination by reason of the foregoing shall not be in limitation
of any other right or remedy Employer may have under this Employment Agreement,
at law, in equity or otherwise.
The term "Competitive Activity" shall mean Executive's participation,
without the written consent of the Board, in the management of any business
operation of any enterprise if such operation (a "Competitive Operation")
engages in substantial and direct competition with Employer or any subsidiary.
For purposes of this Employment Agreement, a business enterprise shall be
considered in substantial and direct competition with Employer or any subsidiary
if such business operation's sales of closeout merchandise, furniture
merchandise or toy merchandise amount to ten percent (10%) or more of such
business operation's total sales. "Competitive Activity" shall not include (i)
the mere ownership of securities in any publicly traded enterprise and the
exercise of rights appurtenant thereto or (ii) participation in management of
any publicly traded enterprise or business operation thereof other than in
connection with the Competitive Operation of such enterprise.
(b) In the event of termination for "cause" set forth in subparagraph
(a) of this Paragraph 7, except as otherwise provided in Paragraph 8 of this
Employment Agreement, Executive shall be entitled to no further compensation or
other benefits under this Employment Agreement (other than as provided by law),
except as to that portion of any unpaid salary and other benefits accrued and
earned by him hereunder up to and including the effective date of such
termination.
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(c) If Executive hires legal counsel with respect to any alleged
failure by Employer to comply with any of the terms of this Employment
Agreement, or institutes any negotiation or institutes or responds to any legal
action to assert or defend the validity of or to enforce Executive's rights
under, or to recover damages for breach of, this Employment Agreement, Employer
shall pay Executive's expenses for reasonable attorneys' fees and disbursements,
together with such additional payments, if any, as may be necessary so that the
net after-tax payments so made to Executive equal such fees and disbursements;
provided, that Executive shall be responsible for his own fees and expenses with
respect to any lawsuit between Executive and Employer to enforce rights or
obligations under this Employment Agreement in which Employer is the prevailing
party. The fees and expenses incurred by Executive in instituting or responding
to any such negotiation or legal action shall be paid by Employer as they are
incurred, in advance of the final disposition of the action or proceeding, upon
receipt of an undertaking by Executive to repay such amounts if Employer is
ultimately determined to be the prevailing party.
(d) If any amount due Executive hereunder is not paid when due, then
Employer shall pay interest on said amount at an annual rate equal to the base
lending rate of National City Bank, Cleveland, Ohio, or successor, as in effect
from time to time, for the period between the date on which such payment is due
and the date said amount is paid.
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(e) Employer's obligation to pay Executive the compensation and to make
the arrangements required hereunder shall be absolute and unconditional and
shall not be affected by any circumstance, including, without limitation, any
setoff, counterclaim, recoupment, defense or other right that Employer may have
against Executive or otherwise. All amounts payable by Employer hereunder shall
be paid without notice or demand. Each and every payment made hereunder by
Employer shall be final and Employer shall not seek to recover all or any part
of such payment from Executive or from whosoever may be entitled thereto, for
any reason whatsoever. Executive shall not be obligated to seek other employment
or compensation or insurance in mitigation of any amount payable or arrangement
made under any provision of this Employment Agreement, and the obtaining of any
such other employment or compensation or insurance shall in no event effect any
reduction of Employer's obligations to make the payments and arrangements
required to be made under this Employment Agreement.
(f) From and after any termination of Executive's employment, Executive
shall retain in confidence and not use for his own benefit or on behalf of any
other person or entity any confidential information known to him concerning
Employer, its subsidiaries and their respective businesses so long as such
information is not publicly disclosed by someone other than Executive.
(g) Any provision in this Employment Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
only to the
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extent of such prohibition or unenforceability without invalidating or affecting
the remaining provisions hereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
8. EXPENSES.
(a) Employer shall reimburse Executive during the term of this
Employment Agreement for those expenses reasonably incurred by Executive in
connection with his duties hereunder which are approved in advance by Employer.
Executive shall furnish such documentation with respect to reimbursement to be
paid under this Paragraph 8 as Employer shall reasonably request. From and after
August 14, 2000, Employer shall cease payment or reimbursement of any cellular
telephone expenses incurred by Executive and any expenses for security
monitoring or other security services being provided to Executive; provided,
however, that the security system in place at Executive's residence at 0000
Xxxxxxx Xxxx, Xxxxxxxx, Xxxx, shall be maintained by Employer at its expense
through the sale of such residence, but in no event beyond the term of the
Employment Agreement.
(b) Employer shall reimburse Executive for expenses reasonably incurred
by Executive in connection with Executive's resignations pursuant to Paragraph 1
hereof and in connection with the negotiation and execution of this Employment
Agreement.
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9. COVENANTS OF EXECUTIVE AND EMPLOYER.
(a) COVENANT AGAINST COMPETITION. Executive acknowledges that (i) the
principal businesses of Employer include the operation of its "Odd Lots", "Big
Lots", "MacFrugal's" and "Pic N' Save" discount general merchandise consumer
goods retail outlets, the inventories of which are acquired primarily through
special purchase situations such as overstocks, closeouts, liquidations,
bankruptcies, wholesale distribution of overstock, distress, liquidation and
other volume inventories, the operation of its K-B Toy, K-B Toy Works, K-B Toy
Liquidator toy stores and the X-Xxxxx.xxx website, and the operation of its Big
Lots Furniture and Odd Lots Furniture stores (the "Company Business"); (ii)
Employer is one of the limited number of persons who has developed such
business; (iii) the Company Business is national in scope; (iv) Executive's work
for Employer will give him access to the confidential affairs of Employer; and
(v) the agreements and covenants of Executive contained in this Paragraph 9 are
essential to the business and goodwill of Employer. Accordingly, Executive
covenants and agrees that:
(A) While the Executive is an employee of Employer or, if
later, until August 14, 2002, (the "Restricted
Period"), Executive shall not in any location where
Employer's or any of its subsidiaries retail stores
are located throughout the United States of America,
directly or indirectly, (1) engage in the Company
Business for Executive's own account (other than
pursuant to this Employment Agreement), (2) render
any
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services to any person engaged in such activities
(other than Employer), or (3) or engage in any
Competitive Activity (as defined above); provided,
however, that the covenant against competition set
forth in this Paragraph 9(a)(A) shall cease to be of
any force and effect as of the first day immediately
following the six-month anniversary of a Change in
Control.
(B) While the Executive is an employee of Employer and
thereafter, Executive shall keep secret and retain in
strictest confidence, and shall not use for his
benefit or the benefit of others, any confidential
matters relating to the Company Business hereafter
learned by Executive, and shall not disclose them to
anyone except with Employer's express written consent
and except for information which (i) is at the time
of receipt, or thereafter becomes, publicly known
through no wrongful act of Executive, or (ii) is
received from a third party not under an obligation
to keep such information confidential and without
breach of this Employment Agreement.
(C) During the Restricted Period, the Executive shall
not, without Employer's prior written consent,
directly or indirectly, solicit or encourage to leave
the employment of Employer or any of
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its subsidiaries, any executive of Employer or any of
its subsidiaries.
(D) All memoranda, notes, lists, records and other
documents (and all copies thereof) made or compiled
by Executive or made available to Executive
concerning the Company Business shall be Employer's
property and shall be delivered to Employer at any
time on request.
(E) While the Executive is an employee of Employer and
thereafter, (i) Executive will not make or publish
any materially disparaging statements (whether
written, electronic or oral) regarding, or otherwise
malign the business reputation of, Employer, any of
its subsidiaries or affiliates, or any employee,
officer or director of any of them, and (ii) CSC will
not make or publish any materially disparaging
statements (whether written, electronic or oral)
regarding, or otherwise malign Executive.
(b) RIGHTS AND REMEDIES UPON BREACH. If Executive breaches any of the
provisions of Paragraph 9(a) (the "Restrictive Covenants"), or a breach thereof
is imminent, Employer shall have the following rights and remedies, each of
which rights and remedies shall be independent of the other and severally
enforceable, and all of which
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rights and remedies shall be in addition to, and not in lieu of, any other
rights and remedies available to Employer under law or in equity:
(i) The right and remedy to have the Restrictive
Covenants specifically enforced by any court having
equity jurisdiction, including, without limitation,
the right to an entry against Executive of
restraining orders and injunctions (preliminary,
temporary or permanent) against violations,
threatened or actual, and whether or not then
continuing, of such covenants, it being acknowledged
and agreed that any such breach or threatened breach
will cause irreparable injury to Employer and that
money damage will not provide adequate remedy to
Employer; and
(ii) The right and remedy to require Executive to account
for and pay over to Employer all compensation,
profits, monies, accruals, increments, or other
benefits derived or received by him as the result of
any transactions constituting a breach of the
Restrictive Covenants. Employer may set off any
amounts finally determined to be due it under this
Paragraph 9(b) against any amounts owed to Executive.
(c) SEVERABILITY OF COVENANTS. Executive acknowledges and agrees that
the Restrictive Covenants are reasonable in geographical and temporal scope,
with respect
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to the activities restricted and in all other respects. If it is determined that
any of the Restrictive Covenants, or any part thereof, is invalid or
unenforceable, the remainder of the Restrictive Covenants shall not thereby be
affected and shall be given full effect, without regard to the invalid portions.
(d) BLUE-PENCILLING. If it is determined that any of the Restrictive
Covenants, or any part thereof, is unenforceable because of the duration or
geographical scope of such provision, the duration or scope of such provision,
as the case may be, shall be reduced so that such provision becomes enforceable
and, in its reduced form, such provision shall then be enforceable and shall be
enforced.
(e) COVENANT REGARDING NOTICE OF SALE OF COMMON STOCK. If at any time
Executive wishes to sell shares of common stock of CSC, he shall first give
notice to the Chief Executive Officer of CSC of the number of shares of common
stock to be sold and the proposed date or dates of the sale and, if the sale is
other than a sale on an established securities exchange, the name and address of
the proposed transferee and the terms and conditions of the sale. Executive
acknowledges that CSC and its subsidiaries and affiliates, and their employees,
directors, consultants and advisors, (i) may from time to time be in possession
of material, non-public information concerning CSC and its subsidiaries and
affiliates and (ii) shall have no obligation to provide (and shall not provide)
any such information to Executive other than at the times, and in the manner,
such information is provided to stockholders of CSC generally. Employer
acknowledges that Executive shall have no obligation hereunder to obtain prior
approval of any sale of
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common stock of CSC. Executive covenants that he shall not at any time seek to
obtain any material, non-public information concerning CSC or any of its
subsidiaries or affiliates from any employee or director of, or consultant or
advisor to, CSC or any of its subsidiaries or affiliates.
10. WITHHOLDING TAXES. Except as otherwise provided, all payments to
Executive, including the bonus compensation under this Employment Agreement,
shall be subject to withholding on account of federal, state, and local taxes as
required by law. Any amounts remitted by Employer to the appropriate taxing
authorities as taxes withheld by Employer from Executive on income realized by
Executive shall reduce the amounts payable by Employer to Executive hereunder.
If any particular payment required hereunder is insufficient to provide the
amount of such taxes required to be withheld, Employer may withhold such taxes
from any other payment due Executive.
11. NO CONFLICTING AGREEMENTS. Executive represents and warrants that
he is not a party to any agreement, contract or understanding, whether
employment or otherwise, which would restrict or would prohibit him from
undertaking or performing employment in accordance with the terms and conditions
of this Employment Agreement.
12. SEVERABLE PROVISIONS. The provisions of this Employment Agreement
are severable, and if any one or more provisions may be determined to be illegal
or otherwise unenforceable, in whole or in part, the remaining provisions and
any partially unenforceable provision to the extent enforceable in any
jurisdiction shall, nevertheless, be binding and enforceable.
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13. BINDING AGREEMENT. Employer shall require any successor (whether
direct or indirect), by purchase, merger, consolidation, reorganization or
otherwise, to all or substantially all of the business and/or assets of any of
them expressly to assume and to agree to perform this Employment Agreement in
the same manner and to the same extent that each of them would be required to
perform if no such succession has taken place. This Employment Agreement shall
be binding upon and inure to the benefit of Employer and any of its successors,
including without limitation any persons acquiring directly or indirectly all or
substantially all of the business and/or assets of Employer whether by sale,
merger, consolidation, reorganization or otherwise (and such successor shall
thereafter be deemed the "Employer" for purposes of this Employment Agreement),
but shall not otherwise be assignable or delegatable by Employer.
This Employment Agreement shall inure to the benefit of and be
enforceable by Executive and each of Executive's personal or legal
representatives, executive, administrators, successor, heirs, distributees
and/or legatees.
14. NOTICES. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally, telegraphed,
telexed, sent by facsimile transmission or sent by certified, registered or
express mail, postage prepaid. Any such notice shall be deemed given when so
delivered personally, telegraphed, telexed, or sent by facsimile transmission
or, if mailed five (5) days after the date of deposit in the United States mails
as follows:
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(i) if to Employer to:
Consolidated Stores Corporation
000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000-0000
Attention: Xxxxxx X. Xxxx, Esq., Vice Chairman and Chief
Administrative Officer
with a copy to: Chairman of the Compensation Committee of CSC
(ii) if to the Executive to:
Xxxxxxx X. Xxxxxx
0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
with a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxx, Day, Xxxxxx & Xxxxx
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000-0000
Any such person may by notice given in accordance with this Paragraph
14 to the other parties hereto, designate another address or person for receipt
by such person of notices hereunder.
15. WAIVER. The failure of either party to enforce any provision or
provisions of this Employment Agreement shall not in any way be construed as a
waiver of any such provision or provisions as to any future violations thereof;
nor prevent that party thereafter from enforcing each and every other provision
of this Employment Agreement. The rights granted the parties herein are
cumulative and the waiver of any single remedy shall not constitute a waiver of
such party's rights to assert all other legal remedies available to it under the
circumstances.
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16. MISCELLANEOUS. This Employment Agreement supersedes all prior
agreements and understandings between the parties (including, without
limitation, the Employment Agreement dated May 19, 1998 to which Executive is a
party (the "Prior Agreement")) and may not be modified or terminated orally. No
modification, termination or attempted waiver shall be valid unless in writing
and signed by the party against whom the same is sought to be enforced. If
Executive is successful in any proceeding against Employer to collect amounts
due Executive under this Employment Agreement, Employer shall reimburse
Executive for his court costs and reasonable attorneys' fees in connection
therewith.
17. GOVERNING LAW. This Employment Agreement shall be governed by and
constructed according to the laws of the State of Ohio.
18. CAPTIONS AND PARAGRAPHS HEADINGS. Captions and paragraph headings
used herein are for convenience and are not a part of this Employment Agreement
and shall not be used in construing it.
19. INTERPRETATION. Where necessary or appropriate to the meaning
hereof, the singular and plural shall be deemed to include each other, and the
masculine, feminine and neuter shall be deemed to include each other.
20. AMENDMENTS. Neither Employer nor Executive shall amend, terminate,
or suspend this Employment Agreement or any provision hereof without the written
consent of the other party.
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21. LEGAL FEES AND EXPENSES. It is the intent of Employer that
Executive not be required to incur the expenses associated with the enforcement
of his rights under this Employment Agreement in the event of a Change in
Control by litigation or other legal action because the cost and expense thereof
would substantially detract from the benefits intended to be extended to
Executive hereunder. Accordingly, if it should appear to Executive that Employer
has failed to comply with any of its obligations under this Employment
Agreement, or in the event that Employer or any other person takes any action to
declare this Employment Agreement void and/or unenforceable, or institutes any
litigation designed to deny, and/or to recover from, Executive the benefits
intended to be provided to Executive hereunder, Employer hereby irrevocably
authorizes Executive from time to time to retain counsel of his choice at the
expense of Employer to represent Executive in connection with the initiation or
defense of any litigation and/or other legal action, whether by or against
Employer or any director, officer, stockholder, or other person affiliated with
Employer in any jurisdiction. Notwithstanding any existing or prior
attorney-client relationship between Employer and such counsel, into an
attorney-client relationship with such counsel, and in that connection Employer
acknowledges that a confidential relationship shall exist between Executive and
such counsel. Employer shall pay and be solely responsible for any and all
attorneys' and related fees and expenses incurred by Executive as a result of
Employer or any person contesting the validity and/or enforceability of this
Employment Agreement or any provision hereof.
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22. RELEASE OF CLAIMS; EFFECTIVE DATE. Contemporaneously with the
execution of this Employment Agreement, Executive is executing a general release
of claims in favor of CSC, its subsidiaries, affiliates, employees, officers and
directors (the "Release"). This Employment Agreement shall not become effective
until the Release Effective Date (as defined in the Release). In the event that
Executive revokes the Release prior to the Release Effective Date, this
Employment Agreement shall become null and void, such that, without limitation,
neither this Employment Agreement nor the Release will have any effect on the
effectiveness of the Prior Agreement.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement, effective as of the Amendment Effective Date.
Attest: CONSOLIDATED STORES CORPORATION,
a Delaware Corporation
/s/ Xxxxxxx X Xxxxxxxxx By: /s/ Xxxxxx X. Xxxx
--------------------------------- --------------------------------------
Assistant Secretary Xxxxxx X. Xxxx
Vice Chairman and Chief Administrative
Officer
CONSOLIDATED STORES CORPORATION,
an Ohio Corporation
By: /s/ Xxxxxx X. Xxxx
--------------------------------------
Xxxxxx X. Xxxx
Vice Chairman and Chief Administrative
Officer
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------
XXXXXXX X. XXXXXX
337548 (7/18/00)
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