Exhibit 10(c)
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into as of April 15, 1998, between
▇▇▇▇▇▇▇▇ STORES INC., a Michigan corporation, of Jackson, Michigan (the
"Company"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, of Jackson, Michigan ("▇▇▇▇▇▇▇▇").
THE PARTIES HEREBY AGREE as follows:
1. Employment and Term. The Company employs ▇▇▇▇▇▇▇▇ as Executive
Vice President -- Marketing & Stores, and ▇▇▇▇▇▇▇▇ agrees to serve in that
capacity and/or in such other capacity or capacities as the Board of
Directors of the Company deems advisable, for a term commencing April 15,
1998 and continuing through April 14, 2001, unless terminated sooner pursuant
to the provisions of paragraph 5, for the compensation and on the terms set
forth herein. The term shall automatically be extended for one additional
year each April 15, beginning April 15, 1999, unless either party gives the
other party notice before April 15 that the term shall not be extended and
unless terminated sooner pursuant to the provisions of paragraph 5. For
example, if one party gives notice on April 14, 1999 that the term will not
be extended, the term will end on April 14, 2001, unless terminated sooner
pursuant to the provisions of paragraph 5.
2. Compensation. Subject to the provisions of paragraph 5,
▇▇▇▇▇▇▇▇'▇ salary shall be Two Hundred Thousand Dollars ($200,000.00) per
year. ▇▇▇▇▇▇▇▇ shall also participate in such plans and additional benefits
as may generally be available from time to time to other executive officers
of the Company.
3. Deferred Compensation. ▇▇▇▇▇▇▇▇ may determine that payment of
any part of ▇▇▇▇▇▇▇▇'▇ salary for any year shall be deferred pursuant to, and
on the terms and conditions set forth in, the ▇▇▇▇▇▇▇▇ Stores Inc. Deferred
Compensation Plan, as amended from time to time. If any part of ▇▇▇▇▇▇▇▇'▇
salary for a year is deferred, one-twelfth of such amount shall be deferred
each month during the year. Interest shall accrue on deferred compensation
from the last day of the month for which the compensation is deferred.
Neither ▇▇▇▇▇▇▇▇, his estate, his wife, nor any beneficiary shall have any
power to assign or encumber the right to receive deferred compensation, and
any attempted assignment or encumbrance thereof shall be null and void.
4. Duties. ▇▇▇▇▇▇▇▇ agrees, as long as his employment by the
Company continues, to devote his entire time and best efforts to furthering
the interests of the Company; to comply with all regulations and policies of
the Company; and to perform the duties requested by the Chief Executive
Officer or the Board of Directors of the Company.
5. Termination. ▇▇▇▇▇▇▇▇'▇ employment under this Agreement shall
terminate on the earliest to occur of the following: (i) immediately upon
▇▇▇▇▇▇▇▇'▇ death, (ii) at the Company's option, immediately when notice to
▇▇▇▇▇▇▇▇ of such termination is given after ▇▇▇▇▇▇▇▇'▇ "Disability" (as
defined below), (iii) at the Company's option, immediately when notice to
▇▇▇▇▇▇▇▇ of such termination is given on or after the occurrence of "Cause"
(as defined below) for termination of his employment under this Agreement,
(iv) immediately when notice of such termination is given to ▇▇▇▇▇▇▇▇ by the
Company or 30 days after notice of such termination is given to the Company
by ▇▇▇▇▇▇▇▇, and (v) the end of the term as described in paragraph 1.
"Disability" means (1) if ▇▇▇▇▇▇▇▇ is covered by a Company-provided
disability insurance policy, the definition of disability contained in, and
entitling ▇▇▇▇▇▇▇▇ to benefits under, that policy, or (2) if ▇▇▇▇▇▇▇▇ is not
covered by such a policy, ▇▇▇▇▇▇▇▇'▇ inability, whether physical or mental,
to perform the normal duties of ▇▇▇▇▇▇▇▇'▇ position for six consecutive
months. "Cause" means (1) ▇▇▇▇▇▇▇▇'▇ continued failure either to (A) devote
substantially full time to ▇▇▇▇▇▇▇▇'▇ employment duties (except because of
▇▇▇▇▇▇▇▇'▇ illness or Disability) or (B) make a good faith effort to perform
▇▇▇▇▇▇▇▇'▇ employment duties; (2) any other willful act or omission which
▇▇▇▇▇▇▇▇ knew, or had reason to know, would materially injure the Entity; (3)
any breach by ▇▇▇▇▇▇▇▇ of the provisions of paragraph 7, or (4) ▇▇▇▇▇▇▇▇'▇
conviction of a felony involving dishonesty or fraud. Notice will be deemed
to be given on the earliest of (i) when delivered, or (ii) three business
days after mailed by certified or registered mail, postage prepaid, return
receipt requested, or (iii) one business day after sent by recognized
overnight courier, if to ▇▇▇▇▇▇▇▇, to ▇▇▇▇▇▇▇▇'▇ address on the Company's
corporate records, and if to the Company, to the address of its principal
executive offices. The following events during the term of this Agreement
shall have the following respective effects on the obligations of the Company
pursuant hereto:
(a) Death. If employment is terminated due to ▇▇▇▇▇▇▇▇'▇
death, the Company shall (i) continue to pay an amount equal to ▇▇▇▇▇▇▇▇'▇
salary, at the annual rate of his salary in effect immediately prior to his
death, from the date of his death until two years after the date of his
death, and (ii) pay the pro rata bonus, if any, that would have been payable
to ▇▇▇▇▇▇▇▇ under any bonus plan in effect at the time of termination of
▇▇▇▇▇▇▇▇'▇ employment if ▇▇▇▇▇▇▇▇ had been employed by the Company for the
entire year in which ▇▇▇▇▇▇▇▇'▇ employment terminates, but based on the
actual number of days ▇▇▇▇▇▇▇▇ was employed by the Company in that year and
the actual salary paid to ▇▇▇▇▇▇▇▇ by the Company with respect to the period
through the date of termination. The Company may offset against the payments
described in this paragraph 5.(a) the proceeds of any life insurance policy
insuring ▇▇▇▇▇▇▇▇'▇ life (i) that is acquired after April 15, 1998 and does
not replace insurance provided by the Company to ▇▇▇▇▇▇▇▇ as of April 15,
1998, and (ii) that are paid to a beneficiary designated by ▇▇▇▇▇▇▇▇ or to
his estate, if the Company paid the premiums with respect to such insurance.
If the Company makes such an offset with respect to payments under paragraph
5.(a)(i), the remaining amounts due pursuant to paragraph 5.(a)(i) shall be
paid in equal installments over the same period set forth in paragraph
5.(a)(i). In addition to payments pursuant to this paragraph 5.(a), the
Company will continue to maintain medical and hospitalization insurance with
the same spouse and dependent coverage and in the same amounts as the
insurance maintained by the Company immediately prior to his death, for five
years after the date of ▇▇▇▇▇▇▇▇'▇ death. ▇▇▇▇▇▇▇▇ shall cooperate with the
Company in connection with its obtaining any additional life insurance on
▇▇▇▇▇▇▇▇'▇ life and any additional disability insurance with respect to
▇▇▇▇▇▇▇▇ in connection with the payments required by this paragraph 5.(a),
paragraph 5.(b) or otherwise.
(b) Disability. If employment is terminated due to
▇▇▇▇▇▇▇▇'▇ Disability, the Company shall (i) continue to pay an amount equal
to ▇▇▇▇▇▇▇▇'▇ salary, at the annual rate in effect
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immediately prior to the date of his termination due to his Disability
("Termination Date"), from the Termination Date until two years after the
Termination Date, and after two years after the Termination Date at one-half
such annual rate until three years after the Termination Date, and (ii) pay
the pro rata bonus, if any, that would have been payable to ▇▇▇▇▇▇▇▇ under
any bonus plan in effect at the Termination Date if ▇▇▇▇▇▇▇▇ had been
employed by the Company for the entire year in which ▇▇▇▇▇▇▇▇'▇ employment
terminates, but based on the actual number of days ▇▇▇▇▇▇▇▇ was employed by
the Company in that year and the actual salary paid to ▇▇▇▇▇▇▇▇ by the
Company with respect to the period through the Termination Date. In addition,
the Company will continue to maintain medical, hospitalization and life
insurance with the same coverage (including any spouse and dependent
coverage) and in the same amounts as the insurance maintained by the Company
immediately prior to his incapacity, for five years after the Termination
Date. The Company may offset against any of the payments described in this
paragraph 5.(b), disability benefits, if any, paid under any insurance
maintained by the Company. In addition, if ▇▇▇▇▇▇▇▇ dies at any time during
the period payments are required under this paragraph 5.(b), the Company may
offset against any of the payments described in this paragraph 5.(b) the
proceeds of any life insurance policy insuring ▇▇▇▇▇▇▇▇'▇ life (i) that is
acquired after April 15, 1998 and does not replace insurance provided by the
Company to ▇▇▇▇▇▇▇▇ as of April 15, 1998, and (ii) that are paid to a
beneficiary designated by ▇▇▇▇▇▇▇▇ or to his estate, if the Company paid the
premiums with respect to such insurance. If the Company makes such an offset
with respect to payments under paragraph 5.(b)(i), the remaining amounts due
pursuant to paragraph 5.(b)(i) shall be paid in equal installments over the
same period set forth in paragraph 5.(b)(i). ▇▇▇▇▇▇▇▇ shall cooperate with
the Company in connection with its obtaining any additional life insurance on
▇▇▇▇▇▇▇▇'▇ life and any additional disability insurance with respect to
▇▇▇▇▇▇▇▇ in connection with the payments required by this paragraph 5.(b),
paragraph 5.(a) or otherwise.
(c) Termination for Cause. If employment is terminated for
Cause, or if ▇▇▇▇▇▇▇▇ resigns before the expiration of the term of this
Agreement, the Company shall have no obligation to pay any salary or any
other amount in lieu thereof for any period after the date of termination of
employment.
(d) Termination Without Cause. Except as otherwise
provided in paragraph 5.(e), if the Company terminates ▇▇▇▇▇▇▇▇'▇ employment
without Cause before the expiration of the term of this Agreement (other than
as a result of ▇▇▇▇▇▇▇▇'▇ death or Disability), the Company shall (i)
continue to pay an amount equal to ▇▇▇▇▇▇▇▇'▇ salary, at the annual rate in
effect immediately prior to such termination of employment, and shall
continue to provide medical and hospitalization insurance with the same
coverage (including any spouse and dependent coverage) and in the same
amounts as the insurance maintained by the Company immediately prior to such
termination of employment, for the balance of the term of this Agreement,
without regard to any termination as a result of ▇▇▇▇▇▇▇▇'▇ death,
Disability, termination by the Company for Cause, retirement, resignation or
termination by the Company without Cause, or one year, whichever is greater,
and (ii) pay the pro rata bonus, if any, that would have been payable to
▇▇▇▇▇▇▇▇ under any bonus plan in effect at the time of termination of
▇▇▇▇▇▇▇▇'▇ employment if ▇▇▇▇▇▇▇▇ had been employed by the Company for the
entire year in which ▇▇▇▇▇▇▇▇'▇ employment terminates, but based on the
actual number of days ▇▇▇▇▇▇▇▇ was employed by the Company in that year and
the actual salary paid to ▇▇▇▇▇▇▇▇ by the Company with respect to the period
through
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the date of termination. In such event, ▇▇▇▇▇▇▇▇ shall use reasonable
efforts to find new employment. Commencing one year after termination, the
Company's continuing payment obligation, if any, shall be reduced by the
amount of any other salary, consulting fees, or other compensation or
remuneration for services, however designated, received by ▇▇▇▇▇▇▇▇ with
respect to any remaining part of the period covered by the Company's
obligation, and its continuing medical and hospitalization insurance
obligation shall be reduced by the amount of any other medical and
hospitalization insurance provided to ▇▇▇▇▇▇▇▇ with respect to any remaining
part of such period.
(e) Change in Control.
(i) Right to Receive Benefits. ▇▇▇▇▇▇▇▇ shall
receive the severance benefits described in paragraph 5.(e)(ii) if
(1) a "Change in Control" (as defined in paragraph 5.(e)(iii))
occurs during the "Period" (as defined in paragraph 5.(e)(iv)), and
(2) either (A) at any time during the period beginning 90 days
before, and ending two years after, the Change in Control, ▇▇▇▇▇▇▇▇
terminates his employment with the "Entity" (as defined in paragraph
5.(e)(vii)) for "Good Reason" (as defined in paragraph 5.(e)(viii))
or the "Entity" terminates ▇▇▇▇▇▇▇▇'▇ employment without Cause, or
(B) at any time during the 3rd month after the Change in Control,
▇▇▇▇▇▇▇▇ terminates his employment with the "Entity" for any reason
or for no reason.
(ii) Severance Benefits. If ▇▇▇▇▇▇▇▇ is entitled
to severance benefits under paragraph 5.(e)(i), he will receive the
following:
(1) an amount equal to the annual salary
▇▇▇▇▇▇▇▇ was receiving immediately before the Change in
Control for the period (the "Time") from the date of such
termination through the later of (1) two years after the
date of such termination, and (2) the balance of the term
of this Agreement, without regard to any termination as a
result of ▇▇▇▇▇▇▇▇'▇ death, Disability, termination by the
Company for Cause, retirement, resignation or termination
by the Company without Cause; and
(2) a pro rata bonus for the year of such
termination equal to (1) the bonus paid or payable to
▇▇▇▇▇▇▇▇ with respect to the last full fiscal year of the
Company before the Change in Control (the "Bonus"),
multiplied by (2) a fraction, the numerator of which shall
be the number of days in the Company's fiscal year in which
such termination occurs through the date of such
termination, and the denominator of which shall be the
total number of days in the Company's fiscal year in which
such termination occurs; and
(3) an amount equal to the Time (in years
and fractions of a partial year) multiplied by the amount
of the Bonus; and
(4) a continuation during the Time of (1)
the medical, dental, life, disability, hospitalization,
optical and prescription drug benefits ▇▇▇▇▇▇▇▇ and
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▇▇▇▇▇▇▇▇'▇ dependents were receiving from the Company at
the time of the Change in Control (provided that if it is
no longer practical for the Company to furnish such
benefits, ▇▇▇▇▇▇▇▇ will be reimbursed by the Company during
the Time for the cost to ▇▇▇▇▇▇▇▇ of obtaining such
benefits), and (2) any automobile allowance or benefits
(including automobile insurance and maintenance benefits),
and continued use of any automobile, provided to ▇▇▇▇▇▇▇▇
by the Company at the time of the Change in Control; and
(5) If the total amount of all payments
of cash or property in the nature of compensation
contingent on a change in the ownership or effective
control of the Company or in the ownership of a substantial
portion of the Company's assets, including, without
limitation, the benefits provided pursuant to this
paragraph 5.(e)(ii) and payments relating to any stock
options or restricted stock that vest as a result of a
Change in Control, shall exceed the maximum amount that may
be paid to ▇▇▇▇▇▇▇▇ and not be deemed a "parachute payment"
resulting in an excise tax to ▇▇▇▇▇▇▇▇ and a loss of
compensation deduction to the Company, all within the
meaning of Section 280G of the Internal Revenue Code of
1986, as amended, or any successor provision, the Company
will pay to ▇▇▇▇▇▇▇▇ (i) the amount of any excise tax
imposed on ▇▇▇▇▇▇▇▇ under Section 4999 of the Internal
Revenue Code of 1986, as amended, or any successor
provision, as a result of any payments by the Company to
▇▇▇▇▇▇▇▇ pursuant to this paragraph 5.(e)(ii) and (ii) any
income tax imposed on ▇▇▇▇▇▇▇▇ as a result of the payments
under this paragraph 5.(e)(ii)(5)). The benefits provided
in paragraphs 5.(e)(ii)(1), 5.(e)(ii)(2), 5.(e)(ii)(3) and
5.(e)(ii)(5) shall be paid to ▇▇▇▇▇▇▇▇ in an undiscounted
lump sum within 10 business days after the date of such
termination. The Company may withhold from such payments
all federal, state, city and other taxes to the extent such
taxes are required to be withheld by applicable law.
(iii) "Change in Control". For purposes of this
Agreement, a "Change in Control" occurs on the first day any one or
more of the following occurs:
(1) any person (as such term is used in
Sections 13(d) and 14(d)(2) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act")), together with
all affiliates and associates of such person (as such terms
are defined in Rule 12b-2 under the Exchange Act) but
excluding all "Excluded Persons" (as defined in paragraph
5.(e)(v)), becomes the direct or indirect beneficial owner
(within the meaning of Rule 13d-3 under the Exchange Act)
of securities of the Company representing (A) 40% or more
of the combined voting power of all of the Company's
outstanding securities entitled to vote generally in the
election of the Company's directors, or (B) 40% or more of
the combined shares of the Company's capital stock then
outstanding, all except in connection with any merger,
consolidation, reorganization or share exchange involving
the Company;
(2) the consummation of any merger,
consolidation, reorganization or share exchange involving
the Company, unless the holders of the Company's capital
stock outstanding immediately before such transaction own
more than 50% of the combined outstanding shares of capital
stock and have more than 50% of the
5
combined voting power in the surviving entity after such
transaction and they own such securities in substantially
the same proportions (relative to each other) as they owned
the Company's capital stock immediately before such
transaction;
(3) the consummation of any sale or other
disposition (in one transaction or a series of related
transactions) of all, or substantially all, of the
Company's assets to a person whose acquisition of 40% or
more of the combined shares of the Company's capital stock
then outstanding would have caused a Change in Control
under paragraph 5.(e)(iii)(1)); or
(4) the "Continuing Directors" (as
defined in paragraph 5.(e)(vi)) cease to be a majority of
the Company's directors.
A determination by the Company's Continuing Directors (by resolution
of at least a majority of the Continuing Directors) as to whether a
Change in Control has occurred for purposes of this Agreement, the
date on which it has occurred or both shall be conclusive for
purposes of this Agreement.
(iv) "Period". The period (the "Period") will
begin on the date of this Agreement and end on the first to occur of
(a) the end of the term of this Agreement, without regard to any
termination as a result of ▇▇▇▇▇▇▇▇'▇ death, Disability, termination
by the Company for Cause, retirement, resignation or termination by
the Company without Cause, (b) ▇▇▇▇▇▇▇▇'▇ death, (c) ▇▇▇▇▇▇▇▇'▇
Disability, and (d) 90 days after the termination of ▇▇▇▇▇▇▇▇'▇
employment (voluntarily or involuntarily and with or without Cause
or Good Reason) if (1) such termination occurs before a Change in
Control, and (2) a Change in Control does not occur during such 90
day period. Notwithstanding the foregoing, (1) if ▇▇▇▇▇▇▇▇ becomes
entitled to severance benefits under paragraph 5.(e)(i), the
provisions of paragraph 5.(e)(ii) of this Agreement will continue
until ▇▇▇▇▇▇▇▇'▇ eligibility to receive severance benefits under
this Agreement ceases and such provisions and the other provisions
of this Agreement not limited by the Period, including, without
limitation, paragraphs 5.(g), 7, 10 and 11 will survive the end of
the Period.
(v) "Excluded Persons". For purposes of this
Agreement, the "Excluded Persons" are (i) ▇▇▇▇▇▇▇▇, (ii) any "group"
(as that term is used in Section 13(d) of the Exchange Act and the
rules thereunder) that includes ▇▇▇▇▇▇▇▇ or in which ▇▇▇▇▇▇▇▇ is, or
has agreed to become, an equity participant, (iii) any entity in
which ▇▇▇▇▇▇▇▇ is, or has agreed to become, an equity participant,
(iv) the Company, (v) any subsidiary of the Company, (vi) any
employee benefit plan of the Company or any subsidiary of the
Company or the related trust, (vii) any entity to the extent it is
holding capital stock of the Company for or pursuant to the terms of
any employee benefit plan of the Company or any subsidiary of the
Company, and (viii) any director, officer or beneficial owner of at
least 10% of the Company's outstanding Common Stock as of the date
of this Agreement. For purposes of this Agreement, ▇▇▇▇▇▇▇▇ shall
not be deemed an "equity participant" in any group or entity (i) in
which ▇▇▇▇▇▇▇▇ owns for investment purposes only no more than 5% of
the stock of a publicly-traded entity whose stock is either listed
on a national stock exchange or quoted in The Nasdaq National
Market, if ▇▇▇▇▇▇▇▇ is not otherwise affiliated
6
with such group or entity, or (ii) if ▇▇▇▇▇▇▇▇'▇ participation is
fully-disclosed to, and approved by, the Company's Board of
Directors and the Continuing Directors before the Change in Control
occurs.
(vi) "Continuing Directors". For purposes of this
Agreement, the "Continuing Directors" are the directors of the
Company as of the date of this Agreement, and any person who
subsequently becomes a director if such person is appointed to be a
director by a majority of the Continuing Directors or if such
person's initial nomination for election or initial election as a
director is recommended or approved by a majority of the Continuing
Directors.
(vii) "Entity". For purposes of this Agreement,
the "Entity" shall mean both (1) the Company and, (2) in connection
with a Change in Control defined in paragraph 5.(e)(iii)(2) or
paragraph 5.(e)(iii)(3), the survivor of the merger, consolidation,
reorganization or share exchange involving the Company and the buyer
of all, or substantially all, of the Company's assets, if such
additional entity described in this clause (2) (if other than the
Company) has offered to employ ▇▇▇▇▇▇▇▇ on such terms that would not
constitute "Good Reason" for termination of ▇▇▇▇▇▇▇▇'▇ employment if
imposed by the Company. Therefore, for purposes of this paragraph
5.(e), ▇▇▇▇▇▇▇▇ shall not be deemed to have terminated ▇▇▇▇▇▇▇▇'▇
employment with the Entity for "Good Reason" and the "Entity" shall
not be deemed to have terminated ▇▇▇▇▇▇▇▇'▇ employment without Cause
unless such actions are taken by all entities included within the
definition of "Entity". In addition, for purposes of this paragraph
5.(e), ▇▇▇▇▇▇▇▇ shall not be deemed to have terminated ▇▇▇▇▇▇▇▇'▇
employment with the Entity for "Good Reason" and the "Entity" shall
not be deemed to have terminated ▇▇▇▇▇▇▇▇'▇ employment without Cause
if (1) the survivor of the merger, consolidation, reorganization or
share exchange involving the Company and the buyer of all, or
substantially all, of the Company's assets has offered to employ
▇▇▇▇▇▇▇▇ on such terms that would not constitute "Good Reason" for
termination of ▇▇▇▇▇▇▇▇'▇ employment if imposed by the Company, (2)
▇▇▇▇▇▇▇▇ refuses such employment, and (3) the Company terminates
▇▇▇▇▇▇▇▇'▇ employment for any reason or for no reason.
(viii) "Good Reason". Termination of ▇▇▇▇▇▇▇▇'▇
employment for "Good Reason" means ▇▇▇▇▇▇▇▇'▇ voluntary termination
of employment with the Entity before or after a Change in Control as
a result of (1) any change by the Entity (without ▇▇▇▇▇▇▇▇'▇
consent) in ▇▇▇▇▇▇▇▇'▇ title from ▇▇▇▇▇▇▇▇'▇ title immediately
before such Change in Control, (2) any decrease by the Entity
(without ▇▇▇▇▇▇▇▇'▇ consent) in ▇▇▇▇▇▇▇▇'▇ compensation or
incentives from ▇▇▇▇▇▇▇▇'▇ compensation and incentives immediately
before such Change in Control, except with respect to benefits
covered by clause (3); provided that ▇▇▇▇▇▇▇▇'▇ bonus shall not be
deemed to have decreased if ▇▇▇▇▇▇▇▇ has a substantially similar
opportunity to earn a bonus as ▇▇▇▇▇▇▇▇ did in the last full fiscal
year before the Change in Control, (3) any decrease by the Entity
(without ▇▇▇▇▇▇▇▇'▇ consent) in ▇▇▇▇▇▇▇▇'▇ benefits from ▇▇▇▇▇▇▇▇'▇
benefits immediately before such Change in Control, unless such
decrease is applied in the same manner to all executive officers of
the Entity, (4) a substantial change by the Entity (without
▇▇▇▇▇▇▇▇'▇ consent) in ▇▇▇▇▇▇▇▇'▇
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duties or responsibilities from ▇▇▇▇▇▇▇▇'▇ duties and
responsibilities immediately before such Change in Control, (5) any
requirement by the Entity (to which ▇▇▇▇▇▇▇▇ does not consent) that
▇▇▇▇▇▇▇▇ change ▇▇▇▇▇▇▇▇'▇ primary place of business to be outside
the metropolitan ▇▇▇▇▇▇▇ area, or (6) if the Change in Control
results in a new entity being a successor to the Company's business,
the failure of the new entity to assume expressly in writing the
Company's obligations under this Agreement and under any written
employment agreement between ▇▇▇▇▇▇▇▇ and the Company in effect
immediately before the Change in Control. "Good Reason" will not
include ▇▇▇▇▇▇▇▇'▇ death, Disability or Retirement (as defined
below), or ▇▇▇▇▇▇▇▇'▇ resignation other than as provided in the
preceding sentence. For purposes of this Agreement, "Retirement"
means ▇▇▇▇▇▇▇▇'▇ retirement from the Entity in accordance with the
Entity's normal policies.
(f) Transfer of Insurance Policies. If ▇▇▇▇▇▇▇▇'▇
employment by the Company is terminated for any reason except ▇▇▇▇▇▇▇▇'▇
death or Disability, the Company will cooperate with ▇▇▇▇▇▇▇▇, to the extent
▇▇▇▇▇▇▇▇ so desires, to transfer to ▇▇▇▇▇▇▇▇, at no cost to the Company and
in exchange for a payment by ▇▇▇▇▇▇▇▇ to the Company equal to the value of
the Company's interest in the policies, the life and disability insurance
maintained by the Company on his behalf immediately before the termination of
his employment, to the extent permitted by the applicable insurance policies.
If ▇▇▇▇▇▇▇▇'▇ employment by the Company is terminated as a result of
▇▇▇▇▇▇▇▇'▇ Disability, the Company will cooperate with ▇▇▇▇▇▇▇▇, to the
extent ▇▇▇▇▇▇▇▇ so desires, to transfer to ▇▇▇▇▇▇▇▇, at no cost to the
Company and in exchange for a payment by ▇▇▇▇▇▇▇▇ to the Company equal to the
value of the Company's interest in the policies, the life insurance
maintained by the Company on his behalf as of the date five years after the
termination of his employment, to the extent permitted by the applicable
insurance policies.
(g) No Other Employment Benefits. The severance benefits
provided in this Agreement are exclusive and in lieu of any other severance
benefits to which ▇▇▇▇▇▇▇▇ may be entitled, except for any benefits under the
terms of any stock options or restricted stock agreements ▇▇▇▇▇▇▇▇ may have.
6. Payment. Amounts equal to, or based on, salary, other than
deferred compensation, as well as death benefits pursuant to paragraph 5.(a),
other than proceeds of life insurance, and amounts equal to, or based on,
salary, other than deferred compensation and proceeds of life insurance, paid
pursuant to paragraphs 5.(b) and 5.(d), shall be paid in monthly or other
regular periodic installments no less frequent than monthly. Amounts equal to
the pro rata portion of ▇▇▇▇▇▇▇▇'▇ bonus for the year of termination paid
pursuant to paragraphs 5.(a), 5.(b), and 5.(d) shall be paid at the time they
are paid to other participants in the applicable bonus plan. Deferred
compensation, with interest thereon, shall be paid as provided in the
▇▇▇▇▇▇▇▇ Stores Inc. Deferred Compensation Plan, as amended from time to
time. The amounts described in paragraph 5.(e) shall be paid as described in
paragraph 5.(e)(ii)(5). All such payments shall be made to ▇▇▇▇▇▇▇▇ while he
is living; and in the event of his death, the payments shall be made to
▇▇▇▇▇▇▇▇'▇ wife, if she is then living, or to his estate or any beneficiary
or beneficiaries he designates in writing during his lifetime.
8
7. Non-Competition; Confidentiality and Non-Solicitation.
(a) Non-Competition. ▇▇▇▇▇▇▇▇ will not, during ▇▇▇▇▇▇▇▇'▇
employment with the Company, directly or indirectly engage in any activity
which is competitive with any business in which the Company engages.
(b) Confidential Information. ▇▇▇▇▇▇▇▇ will not at any
time during or after ▇▇▇▇▇▇▇▇'▇ employment with the Company, directly or
indirectly, disclose or make accessible to any person or entity or use in any
way for ▇▇▇▇▇▇▇▇'▇ own personal gain (i) any confidential and secret
information as to the prices, costs, discounts, or profit margins of any
goods or services sold, purchased or handled by the Company (or its
subsidiaries), or (ii) any confidential or secret information relating to the
Company's (or its subsidiaries') financial structure, store layouts, supply
sources, designs, procedures, information systems, administration or
operations, except as authorized or directed by the Company and except that
the foregoing restrictions will not apply to information generally available
to others in the Company's line of business, information in the public
domain, information disclosed or made available by the Company to any other
person on a non-confidential basis or disclosures ▇▇▇▇▇▇▇▇ are required by
law to make. Upon termination of ▇▇▇▇▇▇▇▇'▇ employment with the Company for
any reason, ▇▇▇▇▇▇▇▇ will immediately return to the Company all confidential
materials over which ▇▇▇▇▇▇▇▇ exercise any control.
(c) Non-Solicitation. ▇▇▇▇▇▇▇▇ will not at any time during
▇▇▇▇▇▇▇▇'▇ employment by the Company and for two years thereafter, directly
or indirectly, solicit for any purpose, interfere with, entice away from the
Company (or its subsidiaries) or hire any employee or agent of the Company
(or its subsidiaries) who was employed by the Company within one year before
the termination of ▇▇▇▇▇▇▇▇'▇ employment.
(d) Equitable Remedies. Paragraphs 7.(a), 7.(b) and 7.(c)
are intended, among other things, to protect the confidential information
described in paragraph 7.(b) and relate to matters which are of a special and
unique character, and their violation may cause irreparable injury to the
Company, the amount of which will be extremely difficult, if not impossible,
to determine and which cannot be adequately compensated by monetary damages
alone. Therefore, if ▇▇▇▇▇▇▇▇ breaches or threatens to breach any of those
paragraphs, in addition to any other remedies which may be available to the
Company under this Agreement or at law or equity, the Company may obtain an
injunction, restraining order, or other equitable relief against ▇▇▇▇▇▇▇▇ and
such other persons and entities as are appropriate.
8. Modification. This Agreement is the complete agreement
between ▇▇▇▇▇▇▇▇ and the Company and may be modified only by a written
instrument executed by both parties.
9. Law. The internal laws of the State of Michigan shall
govern this Agreement, its construction, and the determination of any rights,
duties or remedies of the parties arising out of or relating to this
Agreement.
9
10. Costs of Enforcement. The Company shall pay on demand all of
▇▇▇▇▇▇▇▇'▇ reasonable out-of-pocket fees, costs and expenses (including
reasonable attorneys' fees, court costs and other legal expenses and costs of
investigation) incurred by ▇▇▇▇▇▇▇▇ in connection with the enforcement of
this Agreement (as amended from time to time and including any successor to
this Agreement) or in connection with any disputes concerning the meaning or
interpretation of this Agreement (as amended from time to time and including
any successor to this Agreement). During the pendency of any such enforcement
proceeding or dispute, the Company shall continue to pay the disputed amounts
and benefits provided in this Agreement (as amended from time to time and
including any successor to this Agreement), and if it fails to do so, the
Company shall pay ▇▇▇▇▇▇▇▇ interest, at the prime or base rate announced from
time to time by Comerica Bank, on such amounts from the date they were due
through the date they are actually paid. The obligations contained in this
paragraph 10 shall survive the end of the Period.
11. Arbitration.
(a) Agreement to Arbitrate. Any disputes between the
parties with respect to the terms and conditions of this Agreement (as
amended from time to time and including any successor to this Agreement)
(other than those disputes with respect to which equitable relief (such as
specific performance or an injunction) is the appropriate remedy) that are
not resolved within 30 days after one party notifies the other party in
writing of the dispute shall be resolved by and through binding arbitration
conducted under the auspices of the American Arbitration Association (or any
like organization successor thereto) in Jackson, Michigan. Both the foregoing
agreement of the parties to arbitrate any and all claims, and the results,
determination, finding, judgment and/or award rendered through such
arbitration, shall be final and binding on the parties to this Agreement and
may be specifically enforced by legal proceedings, and, pursuant to MCLA ss.
600.5001, the parties agree that a judgment of any Michigan circuit court may
be rendered upon any arbitration award rendered pursuant to this paragraph
11. The parties agree and acknowledge that money damages may not be an
adequate remedy for any breach of the provisions of this arbitration
agreement and that any party may, in his or its sole discretion, ask for
specific performance and/or injunctive relief in order to enforce or prevent
any violations of the provisions of this arbitration agreement.
(b) Procedure. Such arbitration shall be initiated by the
written notice of the dispute described in paragraph 11.(a), and such
arbitration shall be a compulsory and binding proceeding on each party. Such
arbitration proceeding shall be conducted under the commercial arbitration
rules (formal or informal) of the American Arbitration Association before one
arbitrator, and the arbitrator in any such arbitration shall be such person
who is expert in the subject matter of the dispute. The costs of the
arbitrator and the arbitration shall be borne by the Company. Each party will
bear separately the cost of its or his respective attorneys, witnesses and
experts in connection with such arbitration, subject to the Company's
obligations under paragraph 10. Time is of the essence of this arbitration
procedure, and the arbitrator shall be requested to render his or her
decision within 10 days following completion of the arbitration.
10
12. Successor Obligations. This Agreement will be binding upon
and inure to the benefit of the Company and its successors and assigns, and
the Company will require any successor to, or transferee of, all or
substantially all of its business or assets to assume all of the Company's
obligations under this Agreement (such successor or assign will be deemed,
for purposes of this Agreement, to be the Company). This Agreement will be
binding upon ▇▇▇▇▇▇▇▇ and will inure to ▇▇▇▇▇▇▇▇'▇ benefit, but ▇▇▇▇▇▇▇▇ may
not assign this Agreement without the Company's prior written consent.
13. Duplicate Copies. This Agreement may be executed in
counterparts, both of which together will be deemed an original of this
Agreement.
14. Severability. The provisions of this Agreement will be
deemed severable, and if any part of any provision is held illegal, void or
invalid under applicable law, such provision may be changed to the extent
reasonably necessary to make the provision, as so changed, legal, valid and
binding. If any provision of this Agreement is held illegal, void or invalid
in its entirety, the remaining provisions of this Agreement will not in any
way be affected or impaired but will remain binding in accordance with their
terms.
15. Miscellaneous Provisions. This Agreement supersedes all
previous employment and severance agreements between the parties. In addition
to all other remedies available at law, it shall be specifically enforceable
by any court having jurisdiction. Paragraph headings are for convenience only
and shall not affect the construction of any provision. The rights and
obligations hereunder, particularly but without limitation including
paragraph 5.(e), shall survive the expiration of the term of this Agreement.
IN THE PRESENCE OF: ▇▇▇▇▇▇▇▇ STORES INC.
By: /s/ P. ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------- ---------------------------------
P. ▇▇▇▇▇▇ ▇▇▇▇▇,
Chairman of the Board and
Chief Executive Officer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------- ---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Secretary
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------- -------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
11
