EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into
as of the 6th day of November, 1996 by and between JUST FOR FEET,
INC., an Alabama corporation (the "Company"), and XXXX XXXX (the
"Executive"), an individual.
For and in consideration of the mutual covenants described
below, the parties hereto agree as follows:
1. EMPLOYMENT. The Company agrees to employ
Executive, and Executive agrees to accept such employment, upon the
following terms and conditions.
2. DUTIES. Executive shall assume the responsibilities and
perform the duties of Executive Vice President of Strategic Development
of the Company. Such duties may be revised from time to time at the sole
discretion of the Board of Directors of the Company, and Executive shall
perform such duties at such location(s) as the Company may direct from
time to time. Executive agrees to devote his full time and energy to the
furtherance of the business of the Company and shall be loyal to the
Company and use his best efforts to further its interests, and shall not
during the term hereof, without the prior written consent of the Company,
work or perform services in any advisory or other capacity for any
individual, firm, company, or corporation other than for the Company.
3. COMPENSATION.
3.1 Base Salary. The Company shall pay Executive as
compensation for all the services to be rendered by Executive hereunder
a base salary equal to a rate of $150,000 per year for each of the years
during the Initial Term hereof (as hereinafter defined). Thereafter, if this
Agreement is extended pursuant to Section 4(a) below, Executive's base
salary shall be subject to review and increase in the discretion of the
Board of Directors. Executive's salary shall be payable beginning with
the period starting February 1, 1997 in equal monthly installments. The
Company's obligation to pay Executive any compensation shall cease
upon termination of Executive's employment with the Company.
Executive's annual base salary shall be prorated on a daily basis for the
years in which Executive commences and terminates his employment
relationship with the Company.
3.2 Living Allowance. During the Initial Term (as hereinafter
defined) Company shall pay to Executive as a living allowance the sum
of $50,000 per year beginning February 1, 1997. Said amount shall be
payable in equal monthly installments and shall be prorated on a daily
basis for the years in which Executive commences and terminates his
employment relationship with the Company.
3.3 Bonus. Executive shall be eligible to receive a
performance-based bonus during each year of his employment
hereunder beginning with the year ending January 31, 1998 equal in an
amount up to $200,000 per year. Such bonus shall be based on the
performance of the Company and shall be measured against standards
and criteria agreed to between Executive and representatives of the
Company.
3.4 Stock Options. Subject to Executive's execution of and
compliance with the terms of that certain Just For Feet, Inc. Incentive
Stock Option Agreement substantially in the form attached hereto as
Exhibit A, which executed agreement shall in all respects be in form and
substance satisfactory to the Company, Executive is hereby granted
options to acquire 200,000 shares of the common stock of the Company.
3.5 Other Benefits. Executive shall be entitled to receive
health and dental insurance benefits, vacation benefits and other
benefits substantially similar to those provided to other executives of the
Company. Company shall have the right to change said benefit program
at any time or times.
3.6 Reimbursement of Expenses. In addition to the
compensation described in this Agreement, Employee shall be entitled to
reimbursement by Company for all actual, reasonable and direct
expenses incurred by him in the performance of his duties hereunder,
provided such expenses are properly characterized as being business
expenses that are properly tax deductible for Company, and further
provided that such expenses were incurred only in accordance with the
policies and procedures established by the Board of Directors from time
to time. Employee shall provide Company with written documentation of
such expenses in form complying with the records required of Company
by the Internal Revenue Service and appropriate state authorities for tax
deductibility purposes in such cases, and reimbursement for each item of
approved expense shall be made within a reasonable time after receipt
by Company of the written documentation thereof.
3.7 Vacation. The Employee shall be entitled to two (2) weeks
annual paid vacation and such holidays as the Board of Directors may
approve. In the event of any termination of employment, Executive shall
not be entitled to receive payment for any unused vacation time.
3.8 Withholdings. All amounts payable to Executive pursuant
to this Agreement shall be subject to all applicable withholdings as
required by all laws.
4. TERM AND TERMINATION.
(a) This Agreement shall be effective upon the date first set forth
above and, unless earlier terminated as provided herein, shall remain in
full force and effect for an initial period which ends on January 31, 1999
(the "Initial Term"). This Agreement may be renewed on the same terms
and conditions for additional successive periods of one (1) year upon
the execution of a written agreement by the parties hereto.
(b) Notwithstanding anything contained herein to the contrary, the
Company may terminate Executive's employment immediately for cause.
For purposes of this Agreement, "for cause" shall mean the occurrence
of the following: (i) the commission of any act of fraud, dishonesty,
misappropriation or moral turpitude on the part of the Executive, (ii) a
material breach by the Executive of, or a material failure by the Executive
to perform, his duties and obligations hereunder, (iii) continued neglect by
Executive in fulfilling his duties as an executive officer of the Company
as a result of alcoholism, addiction to illegal substances, or excessive
unauthorized absenteeism, after written notification from the Board of
Directors of such neglect, setting forth in detail the matters involved and
Employee's failure to cure the problem resulting in such neglect within a
reasonable time thereafter, (iv) the Executive becomes Completely
Disabled (as hereinafter defined), or (v) the death of Executive. For
purposes of this Agreement, "Completely Disabled" shall mean
Executive's inability, due to illness, accident or any other physical or
mental incapacity, to perform the duties provided for herein for an
aggregate of 91 days during any period of 180 consecutive days during
the term hereof. In addition, termination of Executive's employment upon
the occurrence of any act specified in (i) through (iii) above shall result,
to the extent not otherwise prohibited by law, in Executive's loss of any
benefits provided by the Company.
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(c) Upon termination of employment for any reason, Executive shall
return immediately to the Company all documents, property, and other
records of the Company, and all copies thereof, within Executive's
possession, custody or control, including but not limited to any materials
containing any Trade Secrets or Confidential Information (each as
defined below) or any portion thereof.
5. RELOCATION.
5.1 Expenses. The Company agrees to reimburse Employee for the following
moving expenses incurred with respect to Employee's relocation from Portland,
Oregon to Birmingham, Alabama: (i) reasonable expenses incurred for the movement
of normal household goods and one (1) automobile, (ii) reasonable closing costs
paid with respect to the sale of Employee's existing home up to a maximum of six
(6%) percent of the sales price and (iii) actual closing costs paid with respect
to the purchase by Employee of a new home in Birmingham, Alabama up to a maximum
of $2500.00
5.2 Additional Payments. If Executive's home in Portland,
Oregon does not sell prior to Executive moving to Birmingham, Alabama,
the Company shall pay Executive the sum of One Thousand Three
Hundred Sixty-Three Dollars ($1,363.00) per month toward Executive's
mortgage payment on his Portland, Oregon home to the earlier to occur of
the time the Portland, Oregon home sells or six (6) months from the date
the original payment is made; provided, however, said payments shall not
exceed in the aggregate Eight Thousand One Hundred Seventy-Eight
Dollars ($8,178.00).
6. TRADE SECRETS AND CONFIDENTIAL INFORMATION.
(a) The Company may disclose to Executive certain Trade Secrets
and Confidential Information (each as defined below). Executive
acknowledges and agrees that the Trade Secrets and Confidential
Information are the sole and exclusive property of the Company (or a
third party providing such information to the Company) and that the
Company or such third party owns all worldwide rights therein under
patent, copyright, trade secret, confidential information, or other property
rights laws. Executive acknowledges and agrees that the disclosure of
the Trade Secrets and Confidential Information to Executive does not
confer upon Executive any license, interest or rights of any kind in or to
the Trade Secrets or Confidential Information. Executive may use the
Trade Secrets and Confidential Information solely for the benefit of the
Company while Executive is employed or retained by the Company.
Except in the performance of services for the Company, Executive will
hold in confidence and not reproduce, distribute, transmit, reverse
engineer, decompile, disassemble, or transfer, directly or indirectly, in
any form, by any means, or for any purpose, the Trade Secrets or the
Confidential Information or any portion thereof. Executive agrees to
return to the Company, upon request by the Company, the Trade Secrets
and Confidential Information and all materials relating thereto.
(b) Executive's obligations under this Agreement with regard to the
Trade Secrets shall remain in effect for as long as such information shall
remain a trade secret under applicable law. Executive acknowledges
that its obligations with regard to the Confidential Information shall remain
in effect while Executive is employed or retained by the Company and for
five (5) years thereafter. As used herein, "Trade Secrets" means
information of the Company, its licensors, suppliers, customers, or
prospective licensors or customers, including, but not limited to, technical
or nontechnical data, formulas, patterns, compilations, programs,
devices, methods, techniques, drawings, processes, financial data,
financial plans, product plans, or a list of actual or potential customers or
suppliers, which (i) derives economic value, actual or potential, from not
being generally known to, and not being readily ascertainable by proper
means by, other persons who can obtain economic value from its
disclosure or use; and (ii) is the
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subject of efforts that are reasonable under the circumstances to maintain its
secrecy. As used herein, "Confidential Information" means information, other
than Trade Secrets, that is of value to its owner and is treated as
confidential, including, but not limited to, future business plans, financial
information, marketing strategies and advertising campaigns, information
regarding Company's executives and employees, and the terms and conditions of
this Agreement. For purposes of this Agreement, "Confidential Information" and
"Trade Secrets" shall not include the following: (i) anything or any information
that was or becomes generally available to the public other than as a result of
a disclosure by the Executive, (ii) was available to the Executive on a
nonconfidential basis prior to its disclosure to the Executive by the Company,
(iii) becomes available to the Executive on a nonconfidential basis from a
source other than the Company, provided that such source is not prohibited from
disclosing such information by a contractual or legal obligation to the Company
of such information, or (iv) that the Executive can conclusively show by
documentary evidence was independently developed by the Executive without use of
any information disclosed to Executive by the Company. Executive and the Company
acknowledge that the intent of this Section 5 is not to restrict Executive's
employment following his tenure with the Company, but rather it is to protect
the rights that the Company has in its Trade Secrets and Confidential
Information.
7. COVENANT NOT TO COMPETE.
7.1 Executive will not, during the term of his employment with
the Company and for a period of one (1) year after termination for any
reason of his employment with the Company, directly or indirectly,
engage in or carry on within a fifty (50) mile radius of any of the
Company's retail outlets existing upon the date of termination of such
employment, any business, like or similar to that engaged in by Company,
either individually or as a stockholder, director, officer, consultant,
independent contractor, Executive, agent, member or otherwise of or
through any corporation, partnership, association, joint venture, firm,
individual or otherwise, or in any other capacity: The above one (1)
year period shall be extended by any period of time during which
Executive is in default of the covenants contained in this Agreement.
7.2 In the event of a breach or threatened breach by Executive of all or
any part of the provisions of Section 7.1, the Company shall be entitled to an
injunction restraining Executive from such breach without limiting any other
rights or remedies available to the Company for such breach or threatened
breach.
7.3 Notwithstanding any provision to the contrary herein
contained, Section 6.1 shall not apply:
(i) Upon the termination of the Executive's employment
by the Company other than for cause within one (1) year following a
Sale of the Company; and
(ii) Upon the voluntary termination of employment by
the Executive for any reason within the thirty (30) day period immediately
after the one (1) year period following a Sale of the Company.
7.4 In the event of a Sale of the Company following the
execution of this Agreement, Executive expressly agrees that the terms
and conditions set forth in this Section 6 shall be binding upon Executive
and shall be fully enforceable by the successor to the Company.
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7.5 For purposes of this Agreement, "Sale of the Company"
shall mean (i) the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), (a "Person"), of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of more than 50% of either the then outstanding shares
of common stock of the Company (the "Outstanding Common Stock") or
the combined voting power of the then outstanding voting securities of
the Company entitled to vote generally in the election of directors (the
"Outstanding Voting Securities"), or (ii) consummation by the Company of
a reorganization, merger or consolidation, or sale or other disposition of
all or substantially all of the assets of the Company; unless, following
such acquisition of beneficial ownership or transaction (A) more than
60% of the then outstanding shares of common stock of the Person
resulting from such reorganization, merger or consolidation, or (B) more
than 60% of the then outstanding shares of common stock of the Person
acquiring such beneficial ownership or assets, and the combined voting
power of the then outstanding voting securities of such Person entitled
to vote generally in the election of directors of such Person, is then
beneficially owned, directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of
Outstanding Common Stock and Outstanding Voting Securities
immediately prior to such acquisition or transaction, in substantially the
same proportion as their ownership of Outstanding Common Stock and
Outstanding Voting Securities prior to such event.
8. CUSTOMER NON-SOLICITATION. Executive agrees that
for a period of eighteen (18) months immediately following termination of
Executive's employment with the Company for any reason, including,
without limitation, voluntary resignation from employment by Executive
(the "Non-Solicitation Period"), Executive shall not, on Executive's own
behalf or on behalf of any person, firm, partnership, association,
corporation or business organization, entity or enterprise, solicit, contact,
call upon, communicate with or attempt to communicate with any
customer or prospect of the Company, or any representative of any
customer or prospect of the Company, with a view to selling or providing
any product or service competitive or potentially competitive with any
product or service sold or provided or under development by the
Company during the time of two (2) years immediately preceding
cessation of Executive's employment with the Company, provided that
the restrictions set forth in this paragraph shall apply only to customers
or prospects of the Company, or representatives of customers or
prospects of the Company, with which Executive had contact during
such two (2) year period. Executive acknowledges that the Company
provides products and services to customers throughout the Territory.
9. EMPLOYEE NON-SOLICITATION. Executive agrees that
Executive shall not call upon, solicit, recruit, or assist others in calling
upon, recruiting or soliciting any person who is or was an employee of
the Company within the Non-Solicitation Period, for the purpose of having
such person work in any other corporation, association, entity, or
business engaged in providing products or services of the same or
similar kind as offered by the Company.
10. EQUITABLE RELIEF. The parties to this Agreement
acknowledge that a breach by Executive of any of the terms or
conditions of this Agreement will result in irrevocable harm to the
Company and that the remedies at law for such breach may not
adequately compensate the Company for damages suffered.
Accordingly, Executive agrees that in the event of such breach, the
Company shall be entitled to injunctive relief or such other equitable
remedy as a court of competent jurisdiction may provide. Nothing
contained herein will be construed to limit the Company's right to any
remedies at law, including the recovery of damages for breach of this
Agreement.
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11. ARBITRATION. Any difference, claim or matter in dispute
arising between the parties out of this Agreement or connected
therewith (other than claims by the Company to enforce the provisions of
Paragraphs 6 through 9 hereof) shall be submitted by them to arbitration
by a panel of three arbitrators appointed by and in accordance with the
rules of the American Arbitration association. The determination or
decision rendered by the arbitrators shall be final and absolute. The
arbitrators shall apply Alabama law and the arbitration shall take place in
Birmingham, Alabama. The decision of the arbitrators may be entered as
a judgment in any court of the State of Alabama or elsewhere.
12. SEVERABILITY. If any provision or part of any provision
of this Agreement is held invalid or unenforceable by a court of
competent jurisdiction, such holding shall not affect the enforceability of
any other provisions or parts thereof, and all other provisions and parts
thereof shall continue in full force and effect.
13. MISCELLANEOUS. This Agreement shall not be amended
or modified except by a writing executed by both parties. This
Agreement shall be binding upon and inure to the benefit of the Company
and its successors and assigns. Due to the personal nature of this
Agreement, Executive shall not have the right to assign Executive's rights
or obligations under this Agreement without the prior written consent of
Company. This Agreement shall be governed by the laws of the State of
Alabama without regard to its rules governing conflicts of law. This
Agreement and any attached exhibits represent the entire understanding
of the parties concerning the subject matter hereof and supersede all
prior communications, agreements and understandings, whether oral or
written, relating to the subject matter hereof. All communications
required or otherwise provided under this Agreement shall be in writing
and shall be deemed given when delivered to the address provided
below such party's signature (as may be amended by notice from time to
time), by hand, by courier or express mail, or by registered or certified
United States mail, return receipt requested, postage prepaid. Exhibit A
attached hereto is incorporated herein by this reference.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement under seal effective as of the date first above written.
JUST FOR FEET, INC.
By:
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Title:
-----------------------------
[CORPORATE SEAL]
Address:
000 Xxxxxx Xxxxxx Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
EXECUTIVE:
--------------------------------(SEAL)
XXXX XXXX
Address:
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