EXHIBIT 10(b)
SEVERANCE COMPENSATION AGREEMENT
This Severance Compensation Agreement (the "Agreement") by and between
Xxxxxxxx Stores Inc., a Michigan corporation (the "Company") with its principal
place of business at 0000 Xxxxxxx Xxxx, Xxxxxxx, XX 00000 and XXXX X. XXXXXXX,
of Jackson, Michigan (the "Executive") shall be effective as of the date the
Agreement is approved by the United States Bankruptcy Court for the Eastern
District of Michigan (the "Bankruptcy Court").
WHEREAS, the Company and certain of its affiliates filed voluntary
petitions to reorganize their businesses under Chapter 11 of the United States
Bankruptcy Code, as amended, on January 15, 2002, which cases have been
administratively consolidated under the heading "Xxxxxxxx Stores Inc., et. al."
and have been assigned case number 02-40597 (the "Chapter 11 Case");
WHEREAS, the Board of Directors of the Company has determined that it
is in the best interests of the Company and its stakeholders that certain key
members of management be provided with the appropriate incentives to cause them
to remain employed by the Company pending the Company's reorganization;
NOW THEREFORE, in consideration of the agreements contained
herein including the undertakings of the parties hereto, the receipt and
sufficiency of which are hereby acknowledged by each of the parties hereto, it
is covenanted and agreed as follows:
1. Severance Compensation upon Termination of Employment.
In the event that the Executive's employment with the Company is
terminated for one of the reasons described below, the Company shall pay to the
Executive or his/her beneficiaries or heirs, as applicable, the cash severance
payment corresponding to that reason (the "Severance Payment"):
(a) Termination Without Cause or For Good Reason. In the event the
Executive's employment with the Company is terminated (x) by
the Company without Cause or (y) by the Executive for "good
reason" (as defined in Section 1(f)(iv) below), the Severance
Payment shall be the Executive's Annual Base Salary for a
period of 12 months and shall be payable to the Executive in a
single lump sum cash payment within ten (10) business days of
the Termination Date,(1) which payment shall not by offset by
salary, earned income, deferred income, or other income earned
by the Executive from other employment.
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(1) Provided, however, if the Company determines in its sole discretion, that it
does not have adequate levels of cash availability to pay the Severance Payment
as provided for herein, then Executive shall be entitled to an administrative
expense claim in the Chapter 11 case in the amount of any unpaid Severance
Payment.
(b) Change of Control. In the event that the Executive's
employment with the Company is terminated by the Company or
any successor thereto following or in connection with a
"change of control" as defined in Exhibit A hereto then the
Severance Payment shall be a payment equal to Executive's
Annual Base Salary for a period of 12 months made to the
Executive in a single lump sum cash payment within ten (10)
business days of the Termination Date,(2) which payment shall
not by offset by salary, earned income, deferred income, or
other income earned by the Executive from other employment.
(c) Liquidation of Company. In the event that the Executive's
employment with the Company is terminated by the Company or
its estate following or in connection with the conversion of
the Company's Chapter 11 Case to a case under Chapter 7 of the
United States Bankruptcy Code or other liquidation of the
Company, the Severance Payment shall be a payment equal to
Executive's Annual Base Salary for a period of 12 months made
to the Executive in a single lump sum cash payment within ten
(10) business days of the Termination Date,(3) which payment
shall not by offset by salary, earned income, deferred income
or other payment income earned by the Executive from other
employment.
(d) Death of Executive. In the event that the Executive's
employment with the Company is terminated as a result of the
Executive's death, the Severance Payment shall be a payment
equal to Executive's Annual Base Salary for a period of 12
months, payable to Executive's beneficiaries or heirs as
applicable, in a single lump sum cash payment within 30 days
of the Executive's death,(4) against which the Company will
offset, if
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(2) Provided, however, if the Company determines in its sole discretion,
that it does not have adequate levels of cash availability to pay the Severance
Payment as provided for herein, then Executive shall be entitled to an
administrative expense claim in the Chapter 11 case in the amount of any unpaid
Severance Payment.
(3) Provided, however, if the Company determines in its sole discretion, that it
does not have adequate levels of cash availability to pay the Severance Payment
as provided for herein, then Executive shall be entitled to an administrative
expense claim in the Chapter 11 case in the amount of any unpaid Severance
Payment.
(4) Provided, however, if the Company determines in its sole discretion, that it
does not have adequate levels of cash availability to pay the Severance Payment
as provided for herein, then Executive's beneficiaries or estate shall be
entitled to an administrative expense claim in the Chapter 11 case in the amount
of any unpaid Severance Payment.
(5) Provided, however, if the Company determines in its sole discretion, that
it does not have adequate levels of cash availability to pay the Severance
Payment as provided for herein, then Executive's beneficiaries or estate shall
be entitled to an administrative expense claim in the Chapter 11 case in the
amount of any unpaid Severance Payment.
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applicable, the proceeds of any life insurance policy
maintained by the Company insuring Executive's life that is
acquired after the date of this agreement and that are paid to
a beneficiary designated by the Executive or to his or her
estate, if the Company paid the premiums with respect to such
insurance.
(e) Disability. In the event that the Executive's employment with
the Company is terminated as a result of the Executive's
Disability, the Severance Payment shall be a payment equal to
Executive's Annual Base Salary for a period of 12 months,
payable to Executive in a single lump sum cash payment within
30 days of the Executive's termination, against which the
Company will offset, if applicable, the benefits paid to
Executive under any disability insurance policy maintained by
the Company.(6)
(f) Certain Definitions. For purposes of this Agreement, the
following words and phrases shall have the following meanings:
(i) "Annual Base Salary" shall mean the Executive's base
salary in effect on the date of this Agreement, as
such base salary may be increased from time to time.
(ii) "Disability" shall mean (1) if the employee is
covered by a company-provided disability insurance
policy, the definition of disability contained in,
and entitling the employee to benefits under, that
policy, or (2) if the employee is not covered by such
a policy, the employee's inability to perform fully
the duties and responsibilities of the employee's
employment with the Company by reason of illness,
injury or incapacity for a period of 26 consecutive
weeks, with or without reasonable accommodation.
(iii) "Termination Date" shall mean the date upon which the
Executive formally ceases all regular employment
activities on behalf of the Company as recognized by
the records of the Company.
(iv) A termination for "good reason" shall be deemed to
have occurred, and the Executive shall be entitled to
the benefits set forth in this Section 1, if the
Executive voluntarily terminates his/her employment
after the occurrence of any of the following events:
(1) the assignment to the Executive of any duties
inconsistent with the highest position (including
status, offices, titles and reporting requirements),
authority, duties or responsibilities attained by the
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(6) Provided, however, if the Company determines in its sole discretion, that it
does not have adequate levels of cash availability to pay the Severance Payment
as provided for herein, then Executive shall be entitled to an administrative
expense claim in the Chapter 11 case in the amount of any unpaid Severance
Payment.
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Executive during the period of his/her employment by
the Company; (2) a relocation of the Executive more
than thirty (30) miles from Company's present
offices; or (3) a decrease in the Executive's
compensation (including base salary, bonus or fringe
benefits).
(v) "Cause" shall mean (1) the Executive's continued
failure either to (x) devote substantially all of his
or her business time to his or her employment duties
(except because of Executive's illness or Disability)
or (y) make a good faith effort to perform
Executive's employment duties; (2) any other willful
act or omission which Executive knew, or had reason
to know, would materially injure the Company; or (3)
Executive's conviction of a felony involving
dishonesty or fraud.
2. Effective Date.
This Agreement shall become effective as of the date on which the
Bankruptcy Court grants its approval thereto.
3. Release of Liability.
Notwithstanding anything to the contrary herein, as a condition
precedent to the Company's obligation to make the Severance Payment described in
Section 1 hereof, Executive shall execute and deliver to the Company a release
and waiver of employment liabilities in substantially the form attached to this
Agreement as Exhibit B, provided, however, that the Company may modify such form
from time to time in order for such form to comply with the continually
developing law of employment release enforceability.
4. Confidential Information.
The Executive will never use for his/her own advantage or disclose any
proprietary or confidential information relating to the business operations or
properties of the Company, any affiliate thereof or any of their respective
customers, suppliers, landlords or licensees. On the Termination Date, the
Executive will surrender and deliver to the Company all documents and
information of every kind relating to or connected with the Company and its
affiliates and their respective businesses, customers, suppliers, landlords and
licensees.
5. Nonsolicitation of Employees.
(a) Unless Executive's termination is a result of a liquidation of
the Company, as provided in Section 1(c) hereof, for a one (1)
year period following the Termination Date, Executive will
not, in any manner, hire or engage, or assist any company or
business organization by which he/she is employed
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or which is directly or indirectly controlled by him/her to
hire or engage, any person who is or was employed by the
Company or one of its affiliates at any time during his/her
employment with the Company or during the period of one (1)
year thereafter.
(b) Unless Executive's termination is a result of a liquidation of
the Company, as provided in Section 1(c) hereof, for a one (1)
year period following the Termination Date, Executive will
not, in any manner, solicit, recruit or induce, or assist any
company or business organization by which he is employed or
which is directly or indirectly controlled by him to solicit,
recruit or induce, any person who is or was employed by the
Company or one of it affiliates (or is or was an agent,
representative, contractor, project consultant or consultant
of the Company or one of its affiliates) at any time during
his/her employment with the Company, or during the period of
one (1) year thereafter, to leave his/her employment,
relationship or engagement with the Company.
6. Nonsolicitation of Customers.
(a) Executive agrees that, for a period of one (1) year following
the Termination Date he/she will not, in any manner, solicit
for business (or assist any company or business organization
by which he/she is employed or which is directly or indirectly
controlled by him/her to solicit or do business) any customer
or client of the Company or any of its affiliates with whom
Executive has had the contact or for whom Executive has
performed services during his/her employment with the Company.
(b) Executive agrees that, for a period of one (1) year following
the Termination Date, Executive will not, in any manner,
solicit for business (or assist any company or business
organization by which he/she is employed or which is directly
or indirectly controlled by him/her to solicit or do business)
any customer or client of the Company made known to him/her by
the Company during his/her employment with the Company.
7. Company's Sole Severance Obligation.
Executive acknowledges and agrees that the Severance Payment set forth
in Section 1 is in lieu of and shall preclude any and all other severance or
termination payments that would otherwise be made by Company to Executive as the
result of Company policy, agreement, state or federal laws or regulations or
otherwise and that Company's commitment to make said Severance Payment is
subject to and conditioned upon the prior execution by Executive of the release
and waiver described in Section 3 above.
8. Nonguarantee of Employment.
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Nothing contained in this Agreement shall be construed as a contract of
employment between the Company and the Executive, or as a right of the Executive
to continue in the employ of the Company, or as a limitation of the right of the
Company to discharge the Executive with or without cause.
9. Successors.
(a) This Agreement shall be binding upon the Company, its
successors and assigns, and in the event of a Change of
Control of the Company or in the event the Company shall be
merged or consolidated or otherwise combined into one or more
other corporations or other entities, or substantially all of
its assets are sold or otherwise transferred to one or more
other corporations or entities, this Agreement shall be
binding upon the corporation or entity resulting from such
merger or consolidation or to which such assets shall be sold
or transferred and shall be assignable by it by way of
transfer of assets, merger, consolidation or combination to
the same extent as if it were the Company. Except as provided
above in this Section 8(a), this Agreement shall not be
assignable by the Company or its successors and assigns. The
Company will require any successor or assign (whether direct
or indirect, by purchase, merger, consolidation or otherwise)
to all or substantially all of this business and/or assets of
the Company, by agreement in form and substance satisfactory
to the Executive, expressly, absolutely and unconditionally to
assume or agree to perform this Agreement in the same manner
and to the same extent that the Company would be required to
perform it if no such succession or assignment had taken
place.
(b) This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs,
distributes, devisees and legatees.
10. Assignment by Executive.
This Agreement shall not be assignable by the Executive and shall not
be subject to attachment, executive, pledge or hypothecation.
11. Notice.
For the purpose of this Agreement, notices and all other communications
provided for in this Agreement shall be in writing and either delivered in hand
or by mail by United States registered or certified mail, return receipt
requested, postage prepaid, or by nationally recognized overnight courier, and
shall be deemed to have been duly given the sooner of when actually received or
three (3) days following deposit (a) in the mail by United States registered or
certified mail, return receipt requested, postage prepaid or (b) with a
nationally recognized overnight courier, as follows:
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If to the Company:
Xxxxxxxx Stores Inc.
0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Chairman of the Board
Copy to:
Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP
2290 First National Building
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Xx., Esq.
If to the Executive:
XXXX X. XXXXXXX
0000 XXXXXXXX XXXXX
XXXXXXX, XXXXXXXX 00000
or to such other address as either party may furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
12. Modification.
No provision of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing signed by
the Executive and the Company. No waiver by either party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such party shall be deemed a waiver of any other provisions hereof or of any
similar of dissimilar provisions of conditions at the same or any prior of
subsequent time. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject mater hereof have been made by either party
which are not set forth expressly in this Agreement.
13. Validity.
The invalidity or unenforceability of any provisions of this Agreement
shall not affect the validity or enforceability of any other provisions of this
Agreement, which shall remain in full force and effect.
14. Governing Law.
This Agreement shall be governed by the laws of Michigan without giving
effect
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to the conflicts of law principles thereof. The parties hereby agree that
Bankruptcy Court shall retain exclusive jurisdiction to determine any disputes
under this Agreement during the pendency of the Chapter 11 Case (or any
conversion of such case to a case under Chapter 7 of the United States
Bankruptcy Court).
15. Entire Agreement.
This Agreement constitutes the entire understanding of the parties, and
revokes and supersedes all prior employment agreements between the parties and
is intended as a final expression of their Agreement. This Agreement shall take
precedence over any other documents that may be in conflict therewith.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
XXXXXXXX STORES INC.
BY: /s/ Xxxxx Xxxxxxxx
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EXECUTIVE:
/s/ Xxxx X. Xxxxxxx
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XXXX X. XXXXXXX
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EXHIBIT A
"Change of Control" means (i) any "person" as such terms is used in
Sections 13(d) and 14(d) of the Exchange Act (other than Company, any
trustee or other fiduciary holding securities under an employee benefit
plan of the Company, or any company owned directly or indirectly, by
the share owners of the Company in substantially the same proportions
as their ownership of stock in the Company) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly (through a plan of reorganization or otherwise),
of securities of the Company representing 50% or more of the combined
voting power of the Company's then outstanding securities; (ii) the
share owners of the Company approve (or, if share owner approval is not
required, the consummation of) a merger or consolidation of the Company
with any other company, other than (1) merger or consolidation which
would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the
surviving entity) more than 50% of the combined voting power of the
voting securities of the company or such surviving entity outstanding
immediately after such merger or consolidation, or (2) a merger or
consolidation effected to implement a recapitalization of the Company
(or similar transaction) in which no "person" (as defined in (i) above)
acquires more than 50% of the combined voting power of the Company's
then outstanding securities; or (iii) the share owners of the Company
approve (or, if share owner approval is not required, the consummation
of) a plan of liquidation of the Company or a sale or disposition by
the Company of all or substantially all of the Company's assets.
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EXHIBIT B
Form of Release
In exchange for the amounts described in the Severance Compensation
Agreement executed on April 4, 2002 and other good and valuable consideration,
the receipt of which is hereby acknowledged, Executive and his/her
representatives, agents, estate, heirs, successors and assigns, without
limitation, hereby irrevocably and unconditionally release and forever discharge
the Company, its predecessors, successors, parents, subsidiaries, divisions,
affiliates, assigns, and its and their current and former officers, agents,
directors, supervisors, employees, representatives, successors and assigns, and
all persons acting by, through, under, or in concert with, any of them, from any
and all changes, complaints, claims, suits, contracts, causes of actions, debts,
sums of money, controversies, agreements, promises, damages, and liabilities of
any kind or nature whatsoever, both at law and equity, known or unknown,
suspected or unsuspected (hereinafter referred to as "claim" or "claims")
arising from conduct occurring up to and through the date of this release,
including, without limitation, any claims incidental to or arising out of
Executive's employment with the Company or the termination thereof. This release
is intended by the parties to be all encompassing and to act as a full and total
release of any claims, whether specifically enumerated herein or not, that
Executive has, may have or has had, that exist or ever had existed, on or prior
to the date of this Agreement, including, but not limited to, any claims based
upon federal or state law or regulation dealing with either employment or
employment discrimination such as those laws or regulations concerning
discrimination on the basis of age, race, color, religion, creed, sex, sex
harassment, sexual orientation, national origin, ancestry, marital status,
handicap, or physical disability, mental disability, medical condition or status
as a disabled or Vietnam-era veteran, veteran status or any military service or
application for military service; any contract, whether oral or written, express
or implied; any tort; or common law.
IF APPLICABLE:
Waiver of Rights and Claims Under the Age Discrimination in Employment Act of
1967.
Since Executive is 40 years of age or older, Executive has been
informed and agrees that Executive:
(a) has or may have specific rights and/or claims under the Age
Discrimination in Employment Act ("ADEA") of 1967;
(b) is, in consideration for the amounts and benefits described in the
Severance Compensation Agreement dated March ___, 2002, specifically waiving
such rights and/or claims he/she might have against the Company, its
predecessors, successor, parents, subsidiaries, divisions, affiliates, assigns,
and its and their current and former officers, agents, directors, supervisors,
employees, representatives, successors and assigns, and all persons acting by,
through, under, or in concert with any of them, to the
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extent such rights and/or claims arose prior to the date this release was
executed;
(c) understands that rights or claims under ADEA which may arise after
the date this release is executed are not waived by him/her;
(d) was advised when presented by the Company with the original draft
of this release that he/she had at least 21 days within which to consider this
release; this 21-day review period will not be affected or extended by any
revisions which might be made to this release;
(e) has been advised to consider the terms of this release carefully
and of his/her right to consult with or seek advice from an attorney of his/her
choice or any other person of his/her choosing prior to executing this release
and has not been subject to any undue or improper influence interfering with the
exercise of his/her free will in deciding whether to execute this release;
(f) has carefully read and fully understands all of the provision of
this release, and he/she knowingly and voluntarily agrees to all of the terms
set forth in this release; and
(g) after signing this release, Executive may revoke this release for a
period of seven (7) days following said execution. The release shall not become
effective or enforceable until this revocation period has expired.
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[Name of Executive]
Sworn to before me this
day of , 2002
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Notary Public
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