Exhibit 10(a)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into this 29th
day of July, 2002, between Big Lots Stores, Inc., 000 Xxxxxxxx Xxxx, Xxxxxxxx,
Xxxx 00000, and its parent, affiliated, predecessor, successor, subsidiary and
other related companies ("Employer") and Xxxx Xxxxxxx ("Executive").
WITNESSETH:
WHEREAS, the Employer desires to engage Executive to perform services
for the Employer and Executive desires to perform such services, on the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the sufficiency of which is hereby mutually acknowledged, the
Parties hereby agree as follows:
1. EMPLOYMENT.
(a) DUTIES AND SERVICES. Employer hereby employs Executive, as an
Executive Vice President (or other appropriate title as
designated by the Employer in its sole discretion) and
Executive hereby accepts such employment, and shall perform
services of a business, professional or commercial nature for
the Employer in furtherance of the Employer's business. In
performance of these duties, Executive shall be subject to the
direction of and report to an individual holding one or more
of the following titles: Chairman of the Board, Chief
Executive Officer, President, Vice Chairman, and/or Chief
Administrative Officer.
(b) ADDITIONAL POSITIONS. Executive shall, without any
compensation in addition to that which is specifically
provided in this Agreement, serve as an officer of the
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Employer and in such substitute or further offices or
positions with Employer as shall from time to time be
reasonably requested by the Employer. Each office and position
with the Employer in which Executive may serve or to which he
may be appointed shall be consistent in title and duties with
Executive's position. For service as a director or officer of
Employer, which service shall in each instance be deemed to be
at the request of the Employer and its Board of Directors,
Executive shall be entitled to the protection of the
applicable indemnification provisions of the charter and
by-laws of Employer 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 the Employer, to the maximum extent permitted by
law and in accordance with any agreement for indemnification.
On any termination of this Agreement, Executive shall be
deemed to have resigned from all offices and directorships
held by Executive.
(c) FULL TIME AND ATTENTION. Executive agrees to his employment as
described herein and agrees to devote all of his time and best
efforts to the performance of his duties under this Agreement.
Except as expressly permitted herein, Executive shall not,
without the prior written consent of Employer, directly or
indirectly during the term of this Agreement, render services
of a business, professional or commercial nature to any other
person or firm, whether for compensation or otherwise. So long
as it does not interfere with his full-time employment
hereunder, Executive may attend to outside investments and
serve as a director,
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trustee or officer of or otherwise participate in educational,
welfare, social, religious and civic organizations.
2. TERM.
Subject to the provisions for termination provided in this Agreement,
the term of this Agreement shall commence on December 16, 2001 and
shall continue thereafter until Executive's employment is terminated as
provided in this Agreement.
3. COMPENSATION AND BENEFITS.
(a) BASE SALARY. As full compensation for his services hereunder,
the Employer shall pay Executive, an annual base salary (the
"Base Salary") payable in equal installments on regular
payroll dates designated by the Employer, an annual rate of
Three Hundred and Fifty Thousand Dollars ($350,000). The base
salary may be adjusted from time to time in a manner that is
consistent with Employer's compensation policies in effect for
executives in the same or similar job classification, at the
discretion of the Employer. Provided, however, that in no
event shall the base salary be adjusted to an amount lower
than the annual rate initially enumerated in this Paragraph.
(b) BENEFITS. Executive shall be entitled to participate in any
group health care, hospitalization, life insurance, dental,
disability or other benefit plans ("Benefit Plans") available
to executives in the same or similar job classification (other
than bonus compensation or performance plans to the extent
that such plans, in the case of Executive, are in lieu of the
bonus plan set forth in Paragraph 4 herein). Executive's
participation in and benefits under any such Benefit Plans
shall be in
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accordance with the terms and subject to the conditions
specified in the governing document of the particular Benefit
Plan(s).
(c) VACATION AND SICK LEAVE. Executive shall be entitled to such
periods of vacation and sick leave each year as provided under
Employer's Vacation and Sick Leave Policy for executives of
the same or similar job classification.
(d) AUTOMOBILE ALLOWANCE. During the term of this Agreement,
Employer shall provide Executive with an automobile or a
monthly automobile allowance, in accordance with applicable
policies of the Employer for executives of the same or similar
job classification.
4. BONUS.
Executive shall be eligible to receive bonus compensation ("Bonus"),
for the fiscal year beginning February 3, 2002, and for each subsequent
fiscal year of employment completed during the term of this Agreement.
Executive's bonus shall be an amount equal to the Base Salary at the
end of such fiscal year multiplied by the Bonus Payout percentage as
determined by the Bonus Program set each fiscal year by the
Compensation Committee of Big Lots Inc's Board of Directors. The Bonus
Program is based upon the achievement of Employer's annual financial
plan. The Target Bonus for Executive is 60% of Base Salary and the
Stretch Bonus for Executive is 120% of Base Salary, both of which are
defined in the Bonus Program and are subject to adjustment by Big Lots,
Inc's Board of Directors; provided however, Executive's Target Bonus
shall never fall below 60% of Base Salary and Executive's Stretch Bonus
shall never fall below 120% of base salary. Payment of the Bonus
described in this Paragraph is subject to the following:
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(a) TIME OF PAYMENT. The Bonus herein will be paid at a time
consistent with payment of a bonus to executives in the same
or similar job classification;
(b) CONTINUOUS EMPLOYMENT. In order to receive the Bonus,
Executive must remain continuously employed by the Employer
pursuant to the terms and conditions of this Agreement;
(c) TERMINATION/RESIGNATION. No Bonus (or prorata portion thereof)
will be paid if Executive is: (i) Terminated for cause
pursuant to the terms contained in this Agreement, or (ii)
voluntarily terminates or resigns his employment prior to the
conclusion of the Employer's fiscal year or prior to the
issuance of the bonus payment.
(d) FISCAL YEAR. The term "fiscal year" shall mean the period
commencing on the Sunday next following the Saturday closest
to January 31 in a calendar year and ending the next following
calendar year on the Saturday closest to January 31.
5. EXPENSES.
Employer shall reimburse Executive during the term of this Agreement
for travel, entertainment and other expenses reasonably incurred by
Executive in the promotion of Employer's business. Executive shall
furnish such documentation and/or receipts with respect to
reimbursement to be paid as requested by the Employer.
6. TERMINATION.
The employment of Executive under this Agreement and term hereof shall
be controlled by this Agreement, exclusively and without regard to any
termination, severance, income continuation, or similar policies of
Employer. Such employment may be terminated:
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(a) WITHOUT CAUSE, EMPLOYER TERMINATION. By Employer without cause
at any time upon thirty (30) days notice to the Executive of
such termination, or
(b) WITHOUT CAUSE, EXECUTIVE TERMINATION. By Executive without
cause at any time upon thirty (30) days notice to the Employer
of such termination, or
(c) UPON DEATH OR LONG-TERM DISABILITY OF EXECUTIVE. By Employer
upon the death or long-term disability of Executive, or
(d) FOR CAUSE, EMPLOYER TERMINATION. By Employer for cause at any
time. For purposes hereof, the term "cause" shall mean:
(i) Executive's conviction of fraud, a felony or other
crime involving moral turpitude or Executive's
commission of acts of embezzlement or theft in
connection with his duties or in the course of his
employment;
(ii) Executive engaging in Competitive Activities,
disclosing confidential information, or his willful
breach of any material provision of this Agreement.
(iii) The term "Competitive Activities" shall mean
Executive's participation, without the written
consent of the Board of Directors of the Employer, in
any business enterprise if such business enterprise
engages in direct competition with the Employer. For
purposes of this Agreement, a business enterprise
shall be considered in direct competition with the
Employer, if such business enterprise's sales,
related to any activity then engaged in by the
Employer, amount to ten percent (10%) or more of such
business enterprise's total sales or one percent (1%)
of Employer's annual sales. "Competitive Activities"
shall not include the mere ownership of
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securities in any publicly-traded enterprise and the
exercise of rights appurtenant thereto.
(iv) Any termination of Executive for "cause" shall not be
effective until Employer delivers written notice to
Employee pursuant to the terms of Paragraph 11 of
this Employment Agreement.
(v) Any termination by reasons of the foregoing
Subparagraphs (i)-(iv) shall not be in limitation of
any other right or remedy the Employer may have under
this Agreement, at law, in equity or otherwise.
7. EFFECT OF TERMINATION.
(a) WITHOUT CAUSE EFFECT, EMPLOYER TERMINATION. In the event of
the termination of Executive's employment by Employer pursuant
to Paragraph 6(a) above, Employer shall have no obligation to
pay any compensation or benefits of any kind to Executive
other than,
(i) Base Salary that has been earned but not been paid up
to and including the date of termination;
(ii) A prorata portion of the Bonus under this Agreement
based upon the amount of time worked by the Executive
in the fiscal year when such termination is
effective, provided, however, that such prorata
portion will be determined in the ordinary course of
business and paid at such time following the close of
the fiscal year that such other eligible executives
receive such payment;
(iii) A continuation of Base Salary, automobile allowance
(or use of present company automobile), any Benefit
Plans for which Executive is eligible
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and enrolled, for twelve (12) months following the
termination of this Agreement;
(iv) The Benefit Plans and automobile allowance/use
contained in Subparagraph (iii), above, shall cease
if during the twelve (12) months following
termination, Executive is entitled to receive the
same or similar benefits from another employer.
(b) WITHOUT CAUSE EFFECT, EXECUTIVE TERMINATION. In the event of
the termination of Executive's employment by Executive
pursuant to Paragraph 6(b) above, Employer shall have no
obligation to pay any compensation or benefits of any kind to
Executive other than Base Salary that has been earned but not
been paid up to and including the date of termination, and
Executive shall not be entitled to receive any Bonus under
this Agreement or otherwise.
(c) DEATH OR LONG-TERM DISABILITY. In the event of the termination
of Executive's employment by reason of death or long-term
disability pursuant to Paragraph 6(c) above, Employer shall
have no obligation to pay any compensation or benefits of any
kind to Executive or the Executive's estate, other than as
follows:
(i) Base Salary that has been earned but not been paid up
to and including the date of termination;
(ii) A prorata portion of the Bonus under this Agreement
based upon the amount of time worked by the Executive
in the fiscal year when such termination is
effective, provided, however, that such prorata
portion will be determined in the ordinary course of
business and paid at such time
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following the close of the fiscal year that such
other eligible executives receive such payment;
(iii) In the case of long-term disability, a continuation
of Base Salary and any Benefit Plans for which
Executive is eligible and enrolled for six (6) months
following the termination of this Agreement and any
long-term disability benefits for which Executive is
eligible under the Employer's long-term disability
group insurance plan.
(iv) The term "Long-Term Disability" shall be construed as
it is defined in the Employer's long-term disability
group insurance plan.
(d) FOR CAUSE EFFECT. In the event of termination for any of the
reasons for cause set forth in Paragraph 6(d), Executive shall
not be entitled to further compensation or other benefits
under this Agreement (other than as provided by law), except
as to Base Salary that has been earned but not been paid up to
and including the date of termination. Further, Executive
shall not be entitled to receive any Bonus determined under
this Agreement or otherwise.
8. CHANGE IN CONTROL.
If there is a Change in Control (as defined herein) and Executive's
employment is thereupon terminated or terminated within twenty four
(24) months after the effective date thereof, Executive shall be
entitled to the termination benefits as set forth in this Paragraph in
lieu of any termination benefits described in other Paragraphs of this
Agreement. The provisions of this Paragraph shall not apply if the
Employer terminates Executive's employment for cause (as defined in
Paragraph 6(d) hereof) or if Executive terminates or resigns his
employment (as defined in Paragraph 6(b) hereof).
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(a) CHANGE IN CONTROL BENEFITS. The benefits payable to Executive
are as follows:
(i) Employer shall pay to Executive a lump sum cash
payment, net of any applicable withholding taxes, in
an amount equal to two (2) times his Base Salary
immediately prior to the effective date of such
Change in Control (the "Lump Sum Payment"); provided,
that if there are fewer than twenty four (24) months
remaining from the date of Executive's termination to
Executive's normal retirement date at age 65,
Employer shall instead pay Executive a prorata amount
of the Lump Sum Payment based upon the number of
months remaining until Executive's normal retirement
date at age 65. The applicable amount shall be paid
on or before the next regular payroll date following
the termination of the Executive's employment.
(ii) In addition to the payment described in Paragraph
8(a)(i) above, Employer shall pay to Executive a lump
sum cash payment, net of any applicable withholding
taxes, in an amount equal to two (2) times the
Executive's then current Stretch Bonus, as defined in
and determined annually by the Compensation Committee
of the Employer's Board of Directors; provided, that
(A) In the event the Executive's Bonus is
undefined or is not subject to a maximum
payout, the Executive's Bonus shall be
deemed to be 200% of the Executive's then
current Base Salary, and
(B) If there are fewer than twenty four (24)
months remaining from the date of
Executive's termination to Executive's
normal retirement date at age 65, Employer
shall instead pay Executive a prorata
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amount of the Lump Sum Bonus Payment based
upon the number of months remaining until
Executive's normal retirement date at age
65. Executive shall receive the Lump Sum
Bonus Payment at the same time Executive
receives the Lump Sum Payment described
above.
(iii) A continuation of any Benefit Plans for which
Executive is eligible and enrolled for twelve (12)
months following the termination of this Agreement;
provided, that Executive's participation in the plans
referred to herein shall be terminated (other than as
provided by law) when and to the extent that
Executive is entitled to receive the same or similar
benefits from another employer during such period.
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 Benefit Plan(s).
(iv) If all or any portion of the amount payable under
paragraph 8(a)(i) and 8(a)(ii) of this Employment
Agreement, either alone or together with other
amounts that Executive is entitled to receive in
connection with a Change in Control, constitutes
"excess parachute payments" within the meaning of
Section 280G of the Internal Revenue Code of 1986, as
amended (the "Code"), or any successor provision,
that are subject to the excise tax imposed by Section
4999 of the Code (or any similar tax or assessment),
the amounts payable hereunder shall be increased to
the extent necessary to place Executive in the same
after-tax position as Executive would have
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been had no such excise tax or assessment been
imposed on any such payment paid or payable to
Executive under Paragraph 8(a)(i) and 8(a)(ii) of
this Employment Agreement or any other payment that
Executive may receive as a result of such Change in
Control. The determination of the amount of any such
tax or assessment and the resulting amount of
incremental payment required hereby in connection
therewith shall be made by the independent accounting
firm employed by Employer immediately prior to the
applicable Change in Control, within thirty (30)
calendar days after the payment of the amount payable
pursuant to Paragraph 8(a)(i) and 8(a)(ii) of this
Employment Agreement. Said incremental payment shall
be made within five (5) business days after said
determination has been made.
(v) If, after the date upon which any payment is to made
under this Paragraph had been made, it is determined
(pursuant to final judgment of a court of competent
jurisdiction or an agreed upon tax assessment) that
the amount of excise or other similar taxes or
assessments payable by Executive is greater than the
amount initially so determined, then Employer shall
pay Executive an amount equal to the sum of (i) such
additional excise or other similar taxes, plus (ii)
any interest, fines and penalties resulting from such
underpayment, plus (iii) an amount necessary to
reimburse Executive for any income, excise or other
tax or assessment payable by Executive with respect
to the amounts specified in (i) and (ii) above, and
the reimbursement provide by this clause (iii).
Payment thereof shall be made
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within five (5) business days after the date upon
which such subsequent determination is made.
(vi) In addition to the benefits described above,
Executive shall be entitled to all rights derived
under the Big Lots, Inc. 1996 Performance Incentive
Plan, as Amended (f/k/a Consolidated Stores
Corporation 1996 Performance Incentive Plan, as
Amended) in the event of a Change in Effective
Control (as defined in that plan).
(b) CHANGE IN CONTROL DEFINED. 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 Employer
entitled to vote for the election of directors;
(ii) A majority of the Board of Directors of Employer is
replaced within any period of two (2) years or less
by directors not nominated and approved by a majority
of the directors of Employer in office at the
beginning of such period (or their successors so
nominated and approved), or a majority of the Board
of Directors of Employer at any date consists of
persons not so nominated and approved;
(iii) The stockholders of Employer approve an agreement to
reorganize, merge or consolidate with another
corporation (other than Employer or an affiliate); or
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(iv) The stockholders of Employer adopt a plan or approve
an agreement to sell or otherwise dispose of all or
substantially all of Employer's assets (including
without limitation, a plan of liquidation or
dissolution), in a single transaction or series of
related transactions.
(c) EFFECTIVE DATE/TERMS. 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 Agreement, the term "affiliate" shall mean:
(i) Any person or entity qualified as part of an
affiliated group which includes Employer pursuant to
Section 1504 of the Internal Revenue Code of 1986; 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 shall be tested as of the date immediately
prior to any event constituting a Change in Control.
The other provisions of this Paragraph
notwithstanding, the term "Change in Control" shall
not mean any transaction, merger, consolidation, or
reorganization in which Employer exchanges or offers
to exchange newly issued or treasury shares in an
amount less than 50% of the then outstanding equity
securities of Employer 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 Employer or an
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affiliate thereof (the "Acquired Corporation"), or
for all or substantially all of the assets of the
Acquired Corporation.
9. COVENANTS OF EXECUTIVE.
(a) COVENANTS. Executive acknowledges that the principal
businesses of Employer include the operation of its "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
Big Lots Furniture Stores, and its wholesale operations (the
"Company Business"); and Employer is one of the limited number
of entities who have developed such business; and the Company
Business is national in scope; and Executive's work for
Employer will give him access to the confidential affairs of
Employer; and the agreements and covenants of Executive
contained in Subparagraphs (i)-(iii) herein ("Restrictive
Covenants") are essential to the business and goodwill of
Employer. Accordingly, Executive covenants and agrees that:
(i) During the term of Executive's employment with
Employer and for a period of one (1) year (the
"Restricted Period") following the termination of his
employment in any manner, Executive shall not in any
location where Employer's retail stores are located
throughout the United States, directly or indirectly,
(1) engage in the Company Business for Executive's
own account (other than pursuant to this Agreement),
(2) render any services to any person engaged in such
activities (other than Employer), or
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(3) become employed, in any manner, by Wal-Mart,
Kmart, Target, Dollar General, Family Dollar, Dollar
Tree, Value City/Schottenstein Stores Corporation,
Fred's, 99(cent) Stores, Canned Foods, Tuesday
Morning, TJX Corporation, or any grocery store chain,
regardless of size. Further, Employee agrees not to
become employed, in any manner, by any parent or
subsidiary of the above listed entities. However, in
the event of a Change in Control as defined in this
Agreement, the Restricted Period shall be for a
period of six (6) months.
(ii) During the term of Executive's employment with
Employer and for a period of two (2) years following
the termination of his employment in any manner,
Executive shall keep secret and retain in strictest
confidence, and shall not use for his benefit or the
benefit of others, all 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 is at the time of
receipt or thereafter, becomes publicly known through
no wrongful act of Executive, or is received from a
third party not under an obligation to keep such
information confidential and without breach of this
Agreement.
(iii) During the term of Executive's employment with
Employer and for a period of two (2) years following
the termination of his employment in any manner,
without Employer's prior written consent, Employee
will not directly or indirectly, solicit or encourage
to leave the employment of Employer any employee of
Employer.
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(b) ACKNOWLEDGMENT. Executive acknowledges that the foregoing
restrictions are reasonable in light of the nature of the
services the Employer provides. Executive and the Employer
agree that the Employer has legitimate reasons for requiring
such Restrictive Covenants from Executive. Executive
acknowledges that he understands the restrictions and has had
an opportunity to fully discuss these restrictions with the
Employer and accepts the restrictions.
(c) MAXIMUM ENFORCEABLE RESTRICTION. In the event that any or all
of the Restrictive Covenants contained in this Paragraph shall
be determined by a court of competent jurisdiction to be
unenforceable by reason of the temporal restrictions being too
great, or by reason that the range of activities covered are
too great, or for any other reason, they shall be interpreted
to extend over the maximum period of time, range of activities
or other restrictions as to which they may be enforceable.
(d) INJUNCTIVE RELIEF. The Parties agree that a breach of the
Restrictive Covenants contained in this Paragraph may cause
irreparable damage to the Employer, the extent of which may be
difficult to ascertain, and that the award of damages may not
be adequate relief. Therefore, Executive agrees that, in the
event of a breach or a threatened breach of the Restrictive
Covenants, the Employer may institute an action to compel the
specific performance of same and obtain injunctive relief,
without bond; Executive agrees not to assert adequacy of money
damages as a defense and agrees that such remedy shall be
cumulative, not exclusive, and in addition to any other
available remedies, and that the Employer may require
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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
by a court of competent jurisdiction to be due it under this
Paragraph against any amounts owed to Executive. The Parties
agree that any action for breach of the Restrictive Covenants
and/or injunctive relief shall be venued in the Court of
Common Pleas, Franklin County, Ohio, and that Ohio law governs
the terms of this Agreement.
(e) TOLLING PERIOD. Executive acknowledges that under the terms of
the Restrictive Covenants contained in this Paragraph, the
Employer is entitled to receive a period of one (1) year of
non-competition, and two (2) years of non-solicitation and
confidentiality immediately following termination of
Executive's employment. Executive agrees that if any of these
obligations to the Employer are breached during the one (1)
year period or non-competition, and/or the two (2) year period
of non-solicitation and confidentiality, then the time period
will be extended for the length of time that Executive failed
to fulfill his obligations.
10. WITHHOLDING TAXES.
Except as otherwise provided, all payments to Executive, including the
bonus compensation under this Agreement, shall be subject to
withholding on account of federal, state, and local taxes as required
by law.
11. NOTICES.
Any notice or other communication required or permitted hereunder shall
be in writing and shall be delivered personally, sent by facsimile
transmission or sent by certified or
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priority mail, postage prepaid. Any such notice shall be deemed given
when so delivered personally, or sent by facsimile transmission or, if
mailed, five (5) days after the date of deposit in the United States
mail as follows:
(a) If to the Employer to: Big Lots Stores, Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000-0000
Attention: Vice President and
General Counsel
With a copy to: Big Lots Stores, Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000-0000
Attention: Chief Executive Officer
(b) If to the Executive to: Xxxx Xxxxxxx
0000 Xxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
(c) CHANGE OF ADDRESS. Any such person may by notice given in
accordance with this Paragraph to the other parties hereto,
designate another address or person for receipt by such person
of notices hereunder.
12. SEVERABLE PROVISIONS.
The provisions of this Agreement are severable, and if any one or more
provisions may be determined to be invalid or otherwise unenforceable,
in whole or in part, the remaining provisions and any partially
unenforceable provision, to the maximum extent enforceable, shall,
nevertheless, be binding and enforceable.
13. MODIFICATION.
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This Agreement collectively sets forth the entire understanding of the
Parties with respect to the subject matter hereof, supersedes all
existing agreements between them concerning such subject matter, and
may be modified only by a written instrument duly executed by each
party.
14. WAIVER.
Any waiver by either party of a breach of any provision of this
Agreement shall not operate as or be construed to be a waiver of any
other breach of such provision or of any breach of any other provision
of this Agreement. The failure of a party to insist upon strict
adherence to any term of this Agreement on one or more occasions shall
not be considered a waiver or deprive that party of the right
thereafter to insist upon strict adherence to that term or any other
term of this Agreement. Any waiver must be in writing.
15. BINDING EFFECT.
Executive's rights and obligations under this Agreement shall not be
transferable by assignment or otherwise, such rights shall not be
subject to commutation, encumbrance, or the claims of Executive's
creditors, and any attempt to do any of the foregoing shall be void.
The provisions of this Agreement shall be binding upon and inure to the
benefit of Executive and his heirs and personal representatives, and
shall be binding upon and inure to the benefit of the Employer and its
successors.
16. NO THIRD-PARTY BENEFICIARIES.
This Agreement does not create, and shall not be construed as creating,
any rights enforceable by any person not a party to this Agreement.
17. HEADINGS.
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The headings in this Agreement are solely for the convenience of
reference and shall be given no effect in the construction or
interpretation of this Agreement.
18. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
19. GOVERNING LAW, JURISDICTION AND ARBITRATION.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Ohio, without giving effect to conflict of
laws. Any dispute arising out of or relating to this Agreement or any
breach of this Agreement, with the exceptions of the Restrictive
Covenants contained in Paragraph 9, shall be submitted to and
determined in binding arbitration, and such method shall be the
exclusive method for resolving such disputes. This provision includes
any and all claims and remedies that the Executive could bring against
the Employer arising out of his employment, including, but not limited
to, claims for negligence, wrongful discharge, discrimination,
harassment, intentional tort, infliction of emotional distress,
defamation, or loss of consortium. Submission may be made by either
party and must be made within thirty (30) days subsequent to the
dispute arising. Thereafter, the parties hereto shall take such steps
as are necessary to assure that the dispute will be promptly settled by
arbitration, in accordance with the then-current Commercial Arbitration
Rules of the American Arbitration Association, within ninety (90) days
of its submission. The arbitration shall be conducted by a single
arbitrator selected by the parties. If the parties have not selected an
arbitrator within ten (10) days of written demand for arbitration, the
arbitrator shall be selected by the American Arbitration Association.
Each party shall bear all its own legal
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fees and expenses. All arbitration proceedings shall be conducted in
the federal judicial district where Executive maintains his principal
place of employment for the Company. Judgment upon any award rendered
by the arbitrator may be entered in any court having jurisdiction
thereof.
20. EMPLOYER PROPERTY.
Upon termination of Executive's employment for any reason, or at any
time at the Employer's request, Executive shall deliver up to the
Employer, all property, keys, materials, documents, records, manuals,
notebooks, or papers and any copies thereof maintained in any form that
in any way relate to the business and activities of the Employer that
may be in the possession, or under the control of Executive.
21. CONFLICTING AGREEMENTS.
Executive represents and warrants that he is free to enter into this
Agreement and that Executive has not made and will not make any
agreements in conflict with this Agreement.
22. SURVIVAL.
The covenants, agreements, representations, and warranties contained in
or made pursuant to this Agreement shall survive Executive's
termination of employment, whatever the reason for termination of such
employment, and shall survive any termination of this Agreement,
irrespective of any investigation made by or on behalf of any party.
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WHEREUPON, the Parties hereto voluntarily enter into this Agreement as
of this 29th day of July, 2002.
Big Lots Stores, Inc. Executive
/s/ Xxxxxx X. Xxxx /s/ Kent X. X. Xxxxxxx
------------------------------- -----------------------------------------
By: Xxxxxx X. Xxxx Printed Name: Xxxx Xxxxxxx
----------------------------
Its: Vice Chairman and CAO
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