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EXHIBIT 10.11.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and effective as of
July 30, 1996, by and between XXXXXXX X. XXX ("Employee"), residing at 000 Xxx
Xxxxxx Xxxxx, XX, Xx. Xxxxxxxxxx, Xxxxxxx 00000 and XXXXXXX, INC., an Ohio
corporation ("Employer"), with its principal place of business at 0000 Xxxx
Xxxxxxx Xxxxxx, Xxxxxx, Xxxx 00000-0000. In consideration of the mutual
covenants and promises of the parties hereto, Employer and Employee agree as
follows:
SECTION I. EMPLOYMENT. Upon approval of its Board of Directors, Employer hereby
agrees to employ Employee as President-Tampa Market, and in such other duties,
capacities, and responsibilities as Employer may, from time to time, assign
Employee, and Employee accepts such employment with Employer, subject to the
terms and conditions set forth in this Agreement. Employee is expected to be
elected an "executive officer" of Employer by the Board of Directors of
Employer.
SECTION II. TERM OF EMPLOYMENT. This Agreement, and the employment under it,
shall commence on the day and date first written above and continue for one year
thereafter, unless earlier terminated under the provisions set forth herein.
SECTION III. DUTIES OF EMPLOYEE. Employee will serve Employer faithfully and to
the best of his ability, under the direction of the President of Employer.
Employee will devote all of his time, energy, and skill during regular business
hours to such employment. Employee shall perform such services and act in such
executive capacity as the President shall direct.
SECTION IV. COMPENSATION. (a) Employee's salary shall be set at the rate of
$105,000 per year from the day and date first written above through the first
anniversary of this Agreement.
(b) Employer shall pay Employee's salary in accordance with the pay
practices of Employer, as applied to all executive officers.
(c) Employee shall participate in the Xxxxxxx, Inc. Executive
Compensation Plan, as amended from time to time, and any other compensation
plans or arrangements provided to Employer's executive officers.
(d) Employer shall provide Employee with a late-model automobile for
Employee's use. Employee hereby acknowledges that any personal use of such
automobile shall be taxable to him pursuant to current income tax law and
regulations.
SECTION V. FAILURE TO PAY EMPLOYEE. The failure of Employer to pay Employee his
salary as provided in Section IV may, in Employee's sole discretion, be deemed a
breach of this Agreement, and unless such breach is cured within ten days after
written notice to Employer, this Agreement shall terminate, including the
provisions of Sections X and XI.
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SECTION VI. OPTION TO PURCHASE COMMON STOCK. Subject to approval by Employer's
Board of Directors, Employer shall deliver to Employee an option to purchase
10,000 shares of the common stock of Employer, in accordance with the terms of
the Xxxxxxx, Inc. 1993 Stock Incentive Plan.
SECTION VII. REIMBURSEMENT OF EXPENSES. Employer shall reimburse Employee for
reasonable out-of-pocket expenses which Employee shall incur in connection with
his services for Employer rendered under this Agreement, on presentation by
Employee of appropriate vouchers to Employer.
SECTION VIII. RULES AND REGULATIONS OF EMPLOYER. Employee hereby agrees to abide
by, and observe, the written policies, rules, regulations, and restrictions
imposed on employees and executive officers of Employer, as amended from time to
time, and as provided to Employee, as well as those set forth in this Agreement.
Violation of any such policies, rules, or regulations may be cause for Employer
invoking the provisions of Section IX of this Agreement.
SECTION IX. TERMINATION. (a) If Employee shall fail or be unable to perform the
services required by this Agreement because of any physical or mental infirmity,
and such failure or inability shall continue for three consecutive months, or
for six months during any twelve-consecutive-month period, Employer shall have
the right to terminate this Agreement 90 days after delivering written notice of
the termination to Employee; provided, however, that Employee shall continue to
receive his full compensation to the date of termination, notwithstanding any
such infirmity. The provisions of Sections X and XI shall continue in full force
and effect notwithstanding the termination of this Agreement, but if after
recovery from such infirmity as evidenced by a medical certificate of a
physician of Employer, Employer does not choose to hire Employee in some
executive capacity, the provisions of Sections X and XI, if still in effect,
shall thereupon terminate.
(b) The President of Employer may terminate Employee, by giving written
notice to Employee of such termination, at any time with or without Cause (as
defined below); provided, however, that if such termination is for any reason
other than for Cause, the provisions of this Agreement, including the
compensation arrangements set forth in Section IV, shall continue through the
term of this Agreement, as set forth in Section II.
(c) The President of Employer may terminate Employee for "Cause." Cause
is defined as one or more of the following acts or conditions taken by or
created by Employee:
(1) Employee's failure to strictly adhere to the terms of this
Agreement or any of Employer's written policies, rules, or
regulations, as amended from time to time and provided to
Employee.
(2) Commission by Employee of a felony or any crime involving
moral turpitude; commission by Employee of any act that
exposes Employer, or any of its officers or directors, to any
criminal liability for such act of Employee; or any gross
negligence or willful misconduct in the performance of
Employee's duties that results in any detriment to Employer or
its officers or directors.
(3) The death of Employee during the term of this Agreement;
provided, however, that Employer shall pay to Employee's
estate any amounts that are owed to Employee under this
Agreement at the date of death.
In the event that Employer proposes to invoke one or more of the
provisions of subsection (c),(1-2) above, Employer shall provide written notice
to Employee setting forth the specific reasons for the proposed termination and
shall permit Employee a thirty-day period in which to address and resolve the
points raised in such notice. In the event such points are not resolved to the
satisfaction of the President of Employer, in his sole judgment and discretion,
then Employee shall be given written notice of his termination for Cause and
this Agreement shall terminate as of the date
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of the written notice of such termination to Employee; provided, however, that
Employer shall be liable to Employee for any amounts owed to Employee through
the date of such termination for Cause, that the provisions of Sections X
through XII shall survive such termination for Cause, and that no further
payments will be made to Employee under Section IV subsequent to termination for
Cause.
(d) The parties to this Agreement recognize, and anticipate, that the
employment of Employee with Employer will continue beyond the expiration of this
Agreement. Upon the expiration of this Agreement, Employer and Employee may: (i)
reach agreement to extend the term of this Agreement; (ii) enter into a new
employment agreement; or (iii) continue the employment of Employee without a
formal agreement. In the event that Employee's employment continues under
alternative (iii) above, this Agreement shall expire and shall be of no further
force or effect except for those provisions that survive termination or
expiration, as specifically set forth herein.
SECTION X. NONCOMPETITION AFTER TERMINATION. (a) Employee agrees that in
addition to any other limitation, for a period of one year after the termination
of his employment with Xxxxxxx, Inc., except a termination caused by Employer in
violation of the terms of this Agreement, and unless otherwise specified, he
will not directly or indirectly engage in, or in any manner be connected with or
employed by, any person, firm, or corporation engaged in the retail sale of
products similar to those sold by Employer within a radius of 200 miles of any
facility of Employer, its affiliates, or its subsidiaries, or any facility that
Employer has publicly announced its intention to open.
(b) Notwithstanding anything in subparagraph (a) above, if Employer
terminates Employee without Cause, the period of noncompetition, as set forth in
subparagraph (a) above, shall be from the date of termination through the date
this Agreement would otherwise expire under the provisions of Section II.
(c) If Employer continues the employment of Employee without a formal
employment agreement, as contemplated in Section IX,(d),(iii), then this Section
X shall not survive the expiration of the Agreement.
SECTION XI. SOLICITATION AFTER TERMINATION. Employee agrees that in addition to
any other limitation, for a period of two years after the termination of his
employment with Xxxxxxx, Inc., except a termination caused by Employer in
violation of the terms of this Agreement, and unless otherwise specified, he
will not, on behalf of himself or on behalf of any other person, firm, or
corporation, call on any of the employees of Employer, or any of its affiliates
or subsidiaries, for the purpose of recruiting such employees to employment with
Employee, his then-current employer, or affiliates of his then-current employer.
Further, Employee agrees that, for such two-year period, if any employee of
Employer contacts Employee about employment with Employee, his then-current
employer, or any of its affiliates or subsidiaries, Employee shall contact
Employer prior to employing the prospective employee, and shall permit Employer
to discuss the matter with the prospective employee.
SECTION XII. USE OF CONFIDENTIAL INFORMATION. Employee agrees that in addition
to any other limitation, regardless of the circumstances of the termination of
employment, he will not communicate to any person, firm, or corporation any
information relating to customer lists, retail prices, secrets, advertising,
vendor product pricing, nor any confidential knowledge or secrets which he might
from time to time acquire with respect to the business of the Employer, or any
of its affiliates or subsidiaries. Employee acknowledges that Employer has other
confidentiality rules set forth in its employee handbook, and other rules
imposed by NATM Buying Corp., which also apply to Employee. Except as
specifically provided elsewhere herein, this Section XII shall survive the
expiration or termination of this Agreement.
SECTION XIII. INJUNCTIVE RELIEF. Employee acknowledges that the services to be
rendered are of a unique, special, and extraordinary character which would be
difficult or impossible for Employer to replace, so Employee agrees that, in the
event of a violation of any of the provisions of this Agreement, Employer shall,
in addition to any other rights and remedies available under this Agreement, at
law or otherwise, be entitled to an injunction to be issued by any court
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of competent jurisdiction enjoining and restraining Employee from committing any
violation of this Agreement, and Employee hereby consents to the issuance of
such injunction.
SECTION XIV. COMMUNICATIONS TO EMPLOYER. From the time this Agreement commences
until its termination, Employee shall communicate and channel to Employer all
knowledge, business, and any other matters of information which could concern or
be in any way beneficial to the business of Employer, whether acquired by
Employee before or during the term of this Agreement; provided, however, that
nothing in this Agreement shall be construed as requiring such communications
when the information is lawfully protected from disclosure as a trade secret of
a third party. Any such information communicated to Employer shall be and remain
the property of Employer, notwithstanding the subsequent termination of this
Agreement.
SECTION XV. TERMINATION BY EMPLOYEE. If Employer shall cease conducting its
business, take any action looking toward its dissolution or liquidation, make an
assignment for the benefit of its creditors, admit in writing its inability to
pay its debts as they become due, file a voluntary, or be the subject of an
involuntary, petition in bankruptcy, or be the subject of any state or federal
insolvency proceeding of any kind, then Employee may, in his sole discretion, by
written notice to Employer, terminate his employment and Employer consents to
his release under such circumstances and agrees that if Employer ceases to
operate or exist as a result of such event, the noncompetition and other
provisions of Sections X through XII shall thereupon terminate.
SECTION XVI. BINDING EFFECT; MISCELLANEOUS. (a) This Agreement shall be binding
on and shall inure to the benefit of any successor or successors of Employer and
the personal representatives of Employee.
(b) This Agreement constitutes the entire Agreement between the parties
hereto, and supersedes all prior discussions, drafts, negotiations, proposals,
and agreements between the parties, whether written or oral. This Agreement may
not be amended except by a written instrument executed by the parties hereto.
(c) If any provision of this Agreement is ultimately determined to be
invalid or unenforceable, by a final non-appealable ruling of a court of
competent jurisdiction, the remaining provisions of this Agreement shall not be
affected by such determination, shall remain in full force and effect, and shall
be construed in manner most likely to carry out the original intent of the
parties.
(d) This Agreement may be executed in any number of counterparts, each
of which shall be an original, and all of which, taken together, constitute one
single, binding, enforceable agreement.
(f) Any notice given, or required to be given, under this Agreement,
shall be deemed to have been duly given if it is delivered to the addresses
shown above by either (i) first-class mail, postage prepaid or (ii) a nationally
recognized courier service. The parties may change such addresses at any time by
giving written notice to the other partly to this Agreement in the manner set
forth herein.
SECTION XVII. LAW TO GOVERN CONTRACT. This Agreement shall be governed by the
laws of the State of Ohio.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and date first stated above.
XXXXXXX, INC., by
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, its
President
/s/ Xxxxxxx X. Xxx
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XXXXXXX X. XXX
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