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EXHIBIT 10.59
EMPLOYMENT AGREEMENT
(Xxxx X. Xxxxxx)
THIS AGREEMENT is by and between Value City Department Stores, Inc. ("Company")
and Xxxx X. Xxxxxx ("Executive"), and is effective as of the date it has been
fully executed by both parties.
Company agrees to employ Executive as Executive Vice President and Chief
Operating Officer-Home ("EVP"), and Executive accepts such employment and
appointment and agrees to serve Company subject to the general supervision,
advice and direction of Company's President, and upon the following terms and
conditions:
1. Position and Duties. Effective July 12, 1999, Executive shall be employed
as Executive Vice President and Chief Operating Officer-Home Products, with such
authority and duties as are customary for this position, and shall perform such
other services and duties as the Chief Executive Officer and/or President may
from time to time designate.
1.1. Executive agrees to devote his full business time, best efforts, and
undivided attention to the business and affairs of Company, except for any
vacations, illness, or disability. Executive shall not engage in any other
businesses that would interfere with his duties, provided that nothing contained
herein is intended to limit Executive's right to make passive investments in the
securities of publicly-owned companies or other businesses which will not
interfere or conflict with his duties hereunder.
1.2. Executive agrees that he shall at all times observe and be bound by
all rules, policies, practices, and resolutions heretofore or hereafter adopted
in writing by the Company which are generally applicable and provided to
Company's officers and employees and which do not otherwise conflict with this
Agreement.
2. Term. This Agreement shall terminate three years from Executive's first
date of employment unless sooner terminated as provided herein; provided,
however, that this Agreement shall be extended automatically for successive
12-month periods unless either party notifies the other of an intent to
terminate, in writing, at least 60 calendar days prior to the date of automatic
extension.
3. Compensation.
3.1. Base Salary. Company shall pay Executive an annual base salary of
$432,000 as compensation for his services hereunder, payable in equal
installments in accordance with Company's payroll practices for executive
employees. Executive's base salary may be increased annually at Company's sole
discretion.
3.2. Bonus. Executive will be eligible to receive an annual performance
bonus targeted at 60% of his base salary. This bonus shall be calculated based
on agreed-upon, Board-approved, pre-determined performance targets and measures
set prior to the end of each fiscal year. Any performance bonus due will be paid
within 120 calendar days after the close of Company's fiscal year and completion
of an outside audit by Company's then current outside audit firm.
3.3. Signing Incentive. Within five business days after the effective date
of this Agreement, Company shall pay him a signing incentive of $250,000, which
shall be grossed up for tax purposes. Executive agrees that he shall reimburse
Company this amount in full if any of the following occur: (i) he fails to start
as agreed upon; (ii) he does not relocate to Columbus, OH and make it his
primary residence within 90 days of his employment, or (iii) he voluntarily
resigns within the first 12 months of his employment. (The term "grossed up" as
used in this Agreement refers to a payment to Executive in an amount that, after
reduction for any income or excise taxes due, is equal to the net amount
payable.)
3.4. Stock Grant. Subject to the Board's approval, Executive shall receive
a restricted stock grant of 50,000 shares. Said grant shall be subject to
exercise in accordance with Company's "Restricted Stock Agreement" typically
used for executives.
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3.5. Stock Options. Subject to the Board's approval, Executive shall
receive a non-qualified option to purchase 75,000 shares of common stock of the
Company. All options granted hereunder shall be priced and subject to exercise
in accordance with Company's "1991 Stock Option Plan" (as amended or revised
with Board approval).
3.6. Loan. On Executive's first day of employment, Company agrees to loan
him the sum of $250,000 and Executive agrees to sign a "Promissory Note" for the
same. This loan shall be paid back to Company in accordance with the terms set
forth in the Promissory Note (i.e, in equal yearly installments along with
accrued interest on the anniversary date of Executive's employment); provided,
however, that if Executive voluntarily resigns, this loan shall become due and
payable in full within 30 days along with all accrued interest.
3.7. Vacation. Executive shall be entitled to vacation commensurate with
other Company executives. The dates of said vacations must be mutually agreed
upon by Company's President.
3.8. Business Expenses. Company shall pay, advance or reimburse Executive
for all normal and reasonable business-related expenses, including travel
expenses, incurred in the performance of his duties on the same basis as paid to
other executives. Company shall furnish Executive with company credit cards
provided to other executives for use solely in the performance of his duties.
3.9. Car. Company will pay Executive a car allowance sufficient to cover
the annual lease of a Range Rover such as that currently driven by Executive,
which sum shall be grossed up for tax purposes and paid in regular increments
along with Executive's salary.
3.10. Taxes. The compensation provided to Executive hereunder is subject to
any withholdings and deductions required by any applicable tax laws.
3.11. Benefit Plans. Executive is entitled to participate in any deferred
compensation or other employee benefit plans, including any profit sharing or
401(k) plans; group life, health, hospitalization and disability insurance
plans; deferred compensation plan; annual executive physical; discount
privileges; and other employee welfare benefits made available generally to, and
under the same terms as, Company's executives.
4. Living/Commuting Expenses and Relocation.
4.1. Company will pay Executive's temporary living expenses in Columbus, OH
for up to 90 days. Thereafter, Executive agrees to relocate to Columbus, OH. The
parties may mutually agree to extend this time period, so long as such agreement
is in writing and signed by both parties.
4.2. Company will pay Executive's round-trip commuting expenses to
California up to eleven times per year in order for Executive to see his family;
provided, however, that Executive will use his best efforts to combine such
trips with a business purpose. However, if the parties mutually agree to extend
the time period set forth in paragraph 4.1., the number of trips set forth in
this paragraph may be reduced as mutually agreed upon by the parties, so long as
such agreement is in writing and signed by both parties.
4.3. Company will pay for Executive to relocate to the Columbus, OH area.
Executive agrees to handle relocation in accordance with Company's "Tier One
Relocation Package," a copy of which is attached hereto. Company agrees to
reimburse Executive, after submission of the appropriate expense reports and
receipts, for the reasonable out-of-pocket expenses related to said relocation.
In addition, if Executive decides to relocate his children to the Columbus, OH
area during the first 24 months of this Agreement, or thereafter as mutually
agreed upon by the parties, Company agrees to pay for their relocation as well.
4.4. If any of these expenses are determined to be taxable, they will be
grossed up.
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5. Executive's Obligations.
5.1. Confidential Information. Executive agrees that during and after his
employment, any "confidential information" as defined below shall be held in
confidence and treated as proprietary to Company. Executive agrees not to use or
disclose any confidential information except to promote and advance the business
interests of Company. Executive agrees that upon his separation from employment,
for any reason whatsoever, he shall not take or copy, and shall immediately
return to Company, any documents that constitute or contain confidential
information. "Confidential information" includes, but is not limited to, any
confidential data, figures, projections, estimates, pricing data, customer
lists, buying manuals or procedures, distribution manuals or procedures, other
policy and procedure manuals or handbooks, supplier information, tax records,
personnel histories and records, information regarding sales, information
regarding properties and any other confidential information regarding the
business, operations, properties or personnel of Company which are disclosed to
or learned by Executive as a result of his employment, but shall not include his
personal personnel records. Confidential information shall not include any
information that (i) Executive had in his possession prior to his first
performing services for Company; (ii) becomes a matter of public knowledge
thereafter through sources independent of Executive; (iii) is disclosed by
Company without restriction on its use; or (iv) is required to be disclosed by
law or governmental order or regulation.
5.2. Solicitation.
5.2.1. Employees. Executive agrees that during his employment and for
two years after the end of his employment, for any reason, he shall not,
directly or indirectly, solicit Company's employees to leave their employment;
he shall not employ or seek to employ them; and, he shall not cause or induce
any of Company's competitors to solicit or employ Company's employees.
5.2.2. Third Parties. Executive agrees that during his employment and
for two years following the end of his employment, for any reason, he shall not,
either directly or indirectly, recruit, solicit or otherwise induce or influence
any customer, supplier, sales representative, lender, lessor or any other person
having a business relationship with Company to discontinue or reduce the extent
of such relationship except in the course of his duties pursuant to this
Agreement and with the good faith objective of advancing Company's business
interests.
5.3. Noncompetition. Executive agrees that if his employment ends for any
reason, for 12 months thereafter or through the remainder of this Agreement,
whichever period is longer, he shall not, either directly or indirectly, accept
employment with, act as a consultant to, or otherwise perform the same services
(which shall be determined regardless of job title) for any business that
directly competes with Company's business, which shall be understood as the sale
of discount and off-price merchandise (including shoes and accessories).
5.4. Cooperation.
5.4.1. With Company. Executive agrees to cooperate with Company during
the course of all third-party proceedings arising out of Company's business
about which Executive has knowledge or information. Such proceedings may
include, but are not limited to, internal investigations, administrative
investigations or proceedings, and lawsuits (including pre-trial discovery). For
purposes of this paragraph, cooperation includes, but is not limited to,
Executive's making himself available for interviews, meetings, depositions,
hearings, and/or trials without the need for subpoena or assurances by Company,
providing any and all documents in his possession that relate to the proceeding,
and providing assistance in locating any and all relevant notes and/or
documents.
5.4.2. With Third Parties. Executive agrees to communicate with, or
give statements to, third parties relating to any matter about which Executive
has knowledge or information as a result of his employment only to the extent
that it is Executive's good faith belief that such communication or statement is
in Company's business interests.
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5.4.3. With Media. Executive agrees to communicate with, or give
statements to, any member of the media (print, television or radio) relating to
any matter about which Executive has knowledge or information as a result of his
employment only to the extent that it is Executive's good faith belief that such
communication or statement is in Company's business interests.
5.5. Remedies. Executive agrees that any disputes under paragraph 5 shall
not be subject to arbitration. If Executive breaches paragraph 5, the damage
will be substantial, although difficult to quantify, and money damages may not
afford Company an adequate remedy; therefore, if Employee breaches or threatens
to breach this paragraph, Company shall be entitled, in addition to other rights
and remedies, to specific performance, injunctive relief and other equitable
relief to prevent or restrain such conduct.
6. Termination and Related Benefits.
6.1. Death. This Agreement shall terminate automatically upon Executive's
Death, and Company shall pay his surviving spouse, or if he leaves no spouse,
his estate, any base salary earned by Executive, and any rights or benefits that
have vested.
6.2. Permanent Disability. Upon Executive's permanent disability, Company
shall have the right to terminate this Agreement immediately with written
notice. For these purposes, permanent disability shall mean that Executive fails
to perform his duties on a full-time basis for a period of more than 90 calendar
days during any 12-month period, due to a physical or mental disability or
infirmity. If this Agreement is terminated due to Executive's permanent
disability, Company shall pay Executive any base salary earned and any rights or
benefits that have vested.
6.3. Termination by Company.
6.3.1. At End of Term. Company may terminate this Agreement at the end
of its term or any extension of this Agreement by giving 60 calendar days'
written notice to Executive. Company may, in its sole discretion, require
Executive to cease active employment and pay out the 60-day notice period.
Company shall thereafter have no obligations or liabilities under this
Agreement, unless otherwise provided herein.
6.3.2. During the Term. Except as provided below in paragraph 6.3.3.,
Company may terminate this Agreement during its term, for any reason, upon 30
days' written notice to Executive. Company may, in its sole discretion, require
Executive to cease active employment immediately. In the event of such a
termination, Company shall have the following obligations:
Pay Executive his base salary for 18 months, with either being payable in
the form of salary continuation or in a lump sum (subject to present value
calculation), at Company's sole discretion;
(ii) Provide health benefits (excluding disability and life insurance)
during the period of salary continuation or, if a lump sum payment is
made, during the period that Executive's salary would have been
continued) under the same terms as provided to other Company
executives;
(iii) Executive's restricted stock shall be exercisable in accordance with
Executive's "Restricted Stock Agreement" and his stock options shall
be exercisable in accordance with Company's "Stock Option Plan;" and
(iv) Company shall thereafter have no further obligations or liabilities
under this Agreement, unless otherwise provided herein.
6.3.3. For Cause. Company may terminate this Agreement during its term
if it has "cause" to do so. For purposes of this paragraph, the term "cause"
means the following:
(i) violation of laws and regulations governing Company;
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(ii) failure to substantially comply with any material terms of this
Agreement, provided Company shall make a written demand for
substantial compliance setting forth the specific reason(s) for same
and Executive shall have 60 days to cure, if possible;
(iii) breach of fiduciary duties;
(iv) damage, misrepresentation, or dishonesty which Company determines has
had or is likely to have a material adverse effect upon Company's
operations, assets, reputation, or financial conditions; or
(v) breach of any stated material employment policy of Company.
Executive may have an opportunity to be heard by the Board prior to a
termination for cause. In the event of termination for cause, Company's
obligations hereunder cease on Executive's last day of active employment, unless
otherwise provided herein.
6.3.4. Method of Payment. Executive agrees that Company shall have the
option of paying the present value of any amount(s) due under this paragraph in
a lump sum or in the form of salary continuation, but in no event shall such
payout period exceed the remainder of the term of this Agreement. Present value
shall be calculated based upon National City Bank's prime interest rate.
6.4. Termination by Executive.
6.4.1. At End of Term. Executive may terminate this Agreement at the
end of its term or any extension of this Agreement by giving 60 calendar days'
written notice to Company's President. Company may, in its sole discretion,
accept Executive's termination effective immediately; provided, however, that it
shall continue to pay Executive for 60 calendar days. Company shall thereafter
have no obligations to Executive under this Agreement.
6.4.2. Voluntary Resignation. Executive may terminate this Agreement
by his voluntary resignation. Executive shall give at least 60 calendar days'
written notice of his intention to resign to Company's President, which Company
may accept immediately. In the event of Executive's resignation, Company will
have no further obligations or liability hereunder.
6.5. Salary Due at Termination. In the event of any termination of
Executive's employment under this Agreement, Executive (or his estate) shall be
paid any unpaid portion of his salary that has accrued by virtue of his
employment during the period prior to termination, and any unpaid, declared
bonus, together with any unpaid business expenses properly incurred under this
Agreement prior to termination.
7. Arbitration. Unless stated otherwise herein, the parties agree that
arbitration shall be the sole and exclusive remedy to redress any dispute, claim
or controversy involving the interpretation of this Agreement or the terms,
conditions or termination of this Agreement or the terms, conditions or
termination of Executive's employment with Company. The parties intend that any
arbitration award shall be final and binding and that a judgment on the award
may be entered in any court of competent jurisdiction and enforcement may be had
according to its terms. This paragraph shall survive the termination or
expiration of this Agreement.
7.1. Arbitration shall be held in Columbus, Ohio, and shall be conducted by
a retired federal judge or other qualified arbitrator mutually agreed upon by
the parties in accordance with the Voluntary Arbitration Rules of the American
Arbitration Association then in effect. The parties shall have the right to
conduct discovery pursuant the Federal Rules of Civil Procedure; provided,
however, that the Arbitrator shall have the authority to establish an expedited
discovery schedule and cutoff and to resolve any discovery disputes. The
Arbitrator shall not have jurisdiction or authority to change any provision of
this Agreement by alterations of, additions to or subtractions from the terms
hereof. The Arbitrator's sole authority in this regard shall be to interpret or
apply any provision(s) of this Agreement. The Arbitrator shall be limited to
awarding compensatory damages, including unpaid wages or benefits, but shall
have no authority to award punitive, exemplary or similar-type damages.
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7.2. Any claim or controversy not sought to be submitted to arbitration, in
writing, within 120 days of when it arose shall be deemed waived and the moving
party shall have no further right to seek arbitration or recovery with respect
to such claim or controversy.
7.3. The arbitrator shall be entitled to award expenses, including the
costs of the proceeding, and reasonable counsel fees.
7.4. The parties hereby acknowledge that since arbitration is the exclusive
remedy, neither party has the right to resort to any federal, state or local
court or administrative agency concerning breaches of this Agreement, except as
otherwise provided herein in paragraph 5, and that the decision of the
Arbitrator shall be a complete defense to any suit, action or proceeding
instituted in any federal, state or local court before any administrative agency
with respect to any arbitrable claim or controversy.
8. General Provisions.
8.1. The parties agree that the covenants and promises set forth in
paragraphs 5, 6 and 7 shall survive the termination of this Agreement and
continue in full force and effect.
8.2. Except as otherwise provided in paragraph 7.2 above, failure to insist
upon strict compliance with any term hereof shall not be considered a waiver of
any such term.
8.3. In computing the number of days for purposes of this Agreement, all
days shall be counted, including Saturdays, Sundays, and legal holidays;
provided, however, that if the final day of any time period falls on a Saturday,
Sunday, or legal holiday, then such final day shall be deemed to be the next day
which is not a Saturday, Sunday, or legal holiday.
8.4. Executive represents and warrants to Company that he is not now under,
or bound to be under in the future, any obligation to any person, firm or
corporation which is or would be inconsistent or in conflict with this
Agreement, or that would prevent, limit, or impair in any way the performance of
his obligations hereunder.
8.5. This Agreement, along with any other document or policy or practice
referenced herein (which are collectively referred to as "Agreement" herein),
contain the entire agreement of the parties regarding Executive's employment and
supersede any prior written or oral agreements or understandings relating to the
same. No modification or amendment of this Agreement shall be valid unless in
writing and signed by or on behalf of both parties.
8.6. Once signed by both parties, this Agreement shall be binding upon and
shall inure to the benefit of the heirs, successors, and assigns of the parties.
8.7. This Agreement is intended to be performed in accordance with, and
only to the extent permitted by, all applicable laws, ordinances, rules and
regulations. If any provisions of this Agreement, or the application thereof to
any person or circumstance, shall, for any reason and to any extent, be held
invalid or unenforceable, such invalidity and unenforceability shall not affect
the remaining provisions hereof and the application of such provisions to other
persons or circumstances, all of which shall be enforced to the greatest extent
permitted by law.
8.8. The validity, construction, and interpretation of this Agreement and
the rights and duties of the parties hereto shall be governed by the laws of the
State of Ohio, without reference to the Ohio choice of law rules.
8.9. Any written notice required or permitted hereunder shall be mailed,
certified mail (return receipt requested) or hand-delivered, addressed to
Company's President at Company's then principal office, or to Executive at his
most recent home address. Notices are effective upon receipt.
8.10. The rights of Executive under this Agreement shall be solely those of
an unsecured general creditor of Company.
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8.11. The headings in this Agreement are inserted for convenience of
reference only and shall not be a part of or control or affect the meaning of
any provision hereof.
IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement
consisting of nine pages.
EXECUTIVE
/s/ Xxxx Xxxxxx 6/28/99
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Xxxx Xxxxxx / date signed
VALUE CITY DEPARTMENT STORES, INC.
By: /s/ Xxx Xxxxxxxxxxxxx 6/28/99
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Xxx Xxxxxxxxxxxxx / date signed
Its: Chairman and Chief Executive Officer
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