EXHIBIT 10(i)
STATE OF NORTH CAROLINA
EMPLOYMENT AGREEMENT
COUNTY OF MECKLENBURG
THIS AGREEMENT, made and entered into effective the 29th day
of April 1997, by and between FAMILY DOLLAR STORES, INC., a
Delaware corporation (hereinafter referred to as the "Company");
and Xxxxxx X. Xxxxxx (hereinafter referred to as the "Employee");
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Employee and the
Employee desires to be employed by the Company;
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, the Company and the Employee agree as follows:
1. DEFINITIONS. When used in this Agreement, these words
shall be defined as follows:
1.01 "Affiliate" - Any corporation directly or
indirectly controlling, controlled by or under the common control
of or with the Company.
1.02. "Group" - The Company and all Affiliates.
1.03. "Confidential Information" - Any information
(including, without limitation, any method of operation,
source of supply, organizational details, personnel information,
information regarding real estate activities, including
landlords, prospective landlords and lease data, business
secret, or any formula, pattern, patent, device, plan, process
or compilation of information) which (a) is, or is designed to
be, used in the business of any member of the Group, (b) is
private or confidential in that it is not generally known or
available to the public, and (c) gives any member of the Group an
opportunity to obtain an advantage over competitors who do not
know or use it.
1.04. "Present Territory" - All counties, towns and
cities in North Carolina, Virginia, Georgia, South Carolina, West
Virginia, Maryland, Pennsylvania, Kentucky, Tennessee,
Mississippi, Alabama, Florida, Louisiana, Arkansas, Ohio, Texas,
Delaware, Indiana, New Jersey, Missouri, Oklahoma, Illinois,
Michigan, Kansas, Iowa, New York, Wisconsin, Massachusetts,
Connecticut, Rhode Island, Vermont, New Hampshire, Minnesota,
Nebraska, South Dakota, Colorado, New Mexico and Maine.
1.05. "Future Territory" - All counties, towns and
cities in States other than those listed in the definition of
Present Territory in which the Company does business while the
Employee is employed by the Company.
1.06. "Competitive Company" - A corporation,
partnership, proprietorship or any other legal entity operating
discount retail stores in the Present Territory or the Future
Territory, the majority of which stores each have 50,000 square
feet or less of total space, including non-selling areas, and
that sell or offer for sale merchandise similar or identical to
the merchandise sold by the Group.
1.07. "Cause" -
(a) Willful failure of the Employee to comply with
reasonable written directives of the Chairman of the Board or
Executive Committee or Board of Directors of the Company.
(b) Chronic absenteeism not resulting from Medical
Disability.
(c) Willful misconduct or gross negligence.
(d) Willful violation of substantive Company
policies, practices or procedures.
(e) Indictment of or conviction of the Employee of a
crime involving an act of moral turpitude.
(f) Should the Employee become an alcoholic or become
addicted to habit-forming drugs.
1.08. "Medical Disability" - An illness or medical
condition preventing the Employee from being able to actively and
regularly perform his duties and responsibilities under this
Agreement for period of ninety (90) work days or longer during
any fiscal year of the Company.
2. EMPLOYMENT. The Employee shall be employed by the
Company and any Affiliate in the capacity provided for in
Paragraph 3 for the period commencing April 29, 1997, (the
"Commencement Date"), and ending on August 31, 1998, or upon the
termination of this Agreement as provided in Paragraph 6.
3. DUTIES AND RESPONSIBILITIES. The Employee shall be
employed as President and Chief Operating Officer of the Company
and shall perform such reasonable duties and responsibilities as
the Chairman of the Board of the Company or Board of Directors of
the Company or the Executive Committee of the Board of Directors
of the Company may, from time to time, assign to the Employee.
The Employee agrees to accept this employment and to devote his
full time and attention and his best efforts, ability and
fidelity to the performance of the duties attaching to such
employment. In addi-tion, the Employee shall serve as a director
and officer of the Company and any corporation in the Group, if
appropriately elected. During the period of his employment, the
Employee shall not, for remuneration or profit, directly or
indirectly, render any service to, or undertake any employment
for, any other person, firm or corporation, whether in an
advisory or consulting capacity or otherwise, without first
obtaining the written consent of the Company.
4. COVENANT NOT TO COMPETE AND DISCLOSE CONFIDENTIAL
INFORMATION.
4.01. The Employee will not, directly or indirectly,
for a period of one (1) year from the date of the termination of
his employment with the Company, whether such termination is
voluntary or involuntary or due to the expiration of the term of
this Agreement, (a) engage in competition with the Company, any
Affiliates, or their successors or assigns, for or on behalf of
any Competitive Company, or (b) provide information to, or
travel, canvass, advertise, solicit or sell for, or acquire an
interest in, become employed by, act as agent for, or in any
manner assist, any Competitive Company; provided that the
Employee may become employed by or act as agent or consultant
for, in any capacity, a Competitive Company when his duties and
responsibilities with the Competitive Company do not, directly or
indirectly, involve any business activity in the Present
Territory or the Future Territory; or (c) directly or indirectly
approach, solicit, offer employment to or in any manner induce or
seek to induce any employee of the Group to become employed by a
Competitive Company or to otherwise interfere with the Company's
relationship with any employee in the Group.
The foregoing provisions, however, shall not
prohibit the Employee from making investments in any securities
listed on the New York or American Stock Exchanges or actively
traded in the over-the-counter market in amounts not exceeding 1%
of any single class of such securities outstanding, nor prohibit
the Employee from making investments of any nature in any
securities of the Company.
4.02. The Employee acknowledges that the signing of
this Agreement is a condition of employment and understands
that in the performance of his services hereunder, he may have
access to and obtain knowledge of Confidential Information (as
hereinbefore defined) relating to the business and activities of
the Group. The Employee shall not, without the written consent
of the Company, either during the period of his employment or
thereafter (a) use or disclose any Confidential Information
outside the Group, (b) publish any article with respect thereto,
or (c) except in the performance of his services hereunder,
remove or aid in the removal from the premises of the members of
the Group any such Confidential Information or any property or
material which relates thereto.
5. COMPENSATION.
5.01. In consideration of the services to be
rendered by the Employee pursuant to this Agreement, the Company
shall pay, or cause to be paid, to the Employee a weekly base
salary from the Commencement Date to August 31, 1998 of $5,769.24
($300,000.00 per annum).
The salary shall be payable at such intervals
in conformity with the Company's prevailing practice as such
practice shall be established or modified from time to time.
5.02. In addition, the Employee shall be entitled to:
(a) Participate in the Company's Target Bonus
Plan, as it may be amended or modified in any respect, including
achievement of established goals, as President, for the fiscal
years commencing September 1, 1996, and September 1, 1997. The
Target Bonus Plan generally will give the Employee the
opportunity to earn a bonus of up to fifty (50%) percent of the
Employee's base salary actually received for services on and
after April 29, 1997, through August 31, 1997, for the fiscal
year ending August 31, 1997, and up to fifty (50%) percent of the
Employee's base salary actually received for services on and
after September 1, 1997, through August 31, 1998, for the fiscal
year ending August 31, 1998, subject to the Company's achievement
of certain financial goals to be established, the Employee's
performance, and all terms and conditions of the Target Bonus
Plan as in effect for each such fiscal year; provided that the
amount of bonus paid may not be increased by the annual
individual performance rating of the Employee by the Chairman of
the Board. The Employee acknowledges that he has received a copy
of the form of the Target Bonus Plan and Bonus Conditions and is
familiar with the terms and conditions thereof. Nothing
contained herein shall limit the Company's right to alter, amend
or terminate the Target Bonus Plan at any time for any reason.
The Employee further acknowledges that, as provided in the Target
Bonus Plan, in the event the Employee is not employed by the
Company, for whatever reason, at the time the bonus for the
fiscal year is customarily paid in December or January following
the end of the fiscal year, the Employee will not be entitled to
receive the bonus.
(b) Take fifteen days (exclusive of Saturdays,
Sundays and paid Company holidays) of vacation during the twelve
month period commencing May 1, 1997. For the period from May 1,
1998, through the end of the term of this Agreement on August 31,
1998, five days of vacation may be taken. Vacation time will
accrue ratably during the course of said periods and cannot be
accumulated from year to year.
(c) Additional benefits and/or compensation in
such form and in such manner and at such times as the Board of
Directors of the Company, in the exercise of its absolute
discretion, shall determine. It is understood and agreed that
any additional salary, benefits and compensation shall only be
paid by the Company upon the approval of the Board of Directors
and not by any officer or any other person acting on behalf of
the Company.
(d) All insurance and other fringe benefits
afforded to the Company employees pursuant to any plan adopted by
the Company in accordance with the terms of the plan and his
position in the Company.
6. TERMINATION.
6.01. It is agreed that either party may terminate
this Agreement for any reason at any time upon three (3) days'
prior written notice to the other party, whereupon (except as
provided in Paragraph 4), this Agreement shall no longer be of
any force and effect (the expiration date of this notice period
is herein called the "Termination Date"). If either party
terminates this Agreement, the Company may relieve the Employee
of all duties and responsibilities effective on the date of the
notice. The Company may also terminate this Agreement should the
Employee experience a Medical Disability, which termination shall
be effective upon the Company's giving written notice to the
Employee following the expiration of the Medical Disability
period. Upon the death of the Employee, the Company shall pay to
his widow if he is married or his estate if he is not married or
his widow predeceases him only such amount as was due and payable
to the Employee at the time of his death. The Company may
terminate this Agreement at any time, without notice, for Cause.
6.02. Upon termination of this Agreement by the
Company, other than for Cause, except for the provisions of
Paragraph 4, the Employee's employment under the terms of this
Agreement and all other agreements and contracts between the
Employee, the Company and the Company's Affiliate and subsidiary
corporations, shall be terminated effective on the Termination
Date. Should the Company terminate this Agreement prior to the
end of the term of this Agreement, for reasons other than for
Cause or Medical Disability, it shall pay to the Employee, one
hundred eighty (180) days of the base salary set forth in
Paragraph 5.01 above in effect on the date of the notice (which
shall constitute payment in full of the compensation due to the
Employee hereunder). Any such payments shall be made in six (6)
equal monthly installments with the first such installment due
and payable not later than thirty (30) days after the Termination
Date. Such payments made by the Company to the Employee are
herein called "Termination Compensation." In the event the
Employee accepts or begins other employment as an employee,
consultant or in any other capacity prior to the date on which
the sixth monthly installment of Termination Compensation is due
and payable, the monthly payments of any unpaid balance of the
Termination Compensation as of the date of such new employment
shall be (i) eliminated if the monthly base salary and all other
monthly remuneration and compensation from the new employment
exceeds the monthly base salary of the Employee in effect on the
date of the notice, or (ii) reduced to the amount by which the
monthly base salary of the Employee in effect on the date of the
notice exceeds the monthly base salary and all other monthly
remuneration and compensation from the new employment. The
Employee agrees to pursue reasonable, good faith efforts to
obtain other employment in a position suitable to his background
and experience.
6.03. On the Termination Date and at the end of the
term of this Agreement, the Employee agrees that the Company, its
Affiliates, and their officers, directors, members of the
Executive Committee, and employees, and their successors, heirs
and assigns, shall be fully released and discharged from any and
all expenses, claims, considerations, liabilities, obligations
and causes of action of every kind and nature arising out of or
in any manner related to this Agreement, and any and all previous
agreements, contracts and other rights, claims and obligations
between the parties, to the Employee's employment with the
Company, its Affiliate and subsidiary corporations, and to the
Employee's association or relationship with the Company and its
Affiliates, including but not limited to, all compensations,
salaries, bonuses (including Target Bonus Plan bonuses and
guarantees of bonuses thereunder), director's pay, vacation pay,
stock options, stockholder's claims or suits, loans and other
similar liabilities or related claims; provided, that nothing
herein contained shall qualify or in any manner restrict the
right of the Employee to realize his Termination Compensation, if
any, and his interests in any of the fringe benefits (such as
insurance, 401(k) plan and stock options) of the Company to which
he has become legally entitled.
6.04. On the Termination Date or at the end of
the term of this Agreement, the Employee agrees that he will
resign as an officer, director and member of the Executive
Committee of the Company, its Affiliate and subsidiary
corporations (if and when elected), and from any other
positions, which resignations shall become effective on the
Termination Date.
6.05. After the Termination Date or the end of the
term of this Agreement, the Employee covenants to render further
advice and assistance to the Company as may be required from time
to time, and to provide all information available to him on
matters handled by and through him while employed by the Company
or of which he has personal knowledge, and by making available to
the Company at reasonable times and circumstances, upon request
by the Company, information pertinent to its operations in his
possession; and, to the extent that it is necessary, to cooperate
with and assist the Company to conclude any matters that are
pending and which may require his assistance; provided, that he
shall be paid reasonable compensation by the Company in the event
he is required to expend time in the performance of such
services; and provided further, that the Employee may perform
such services in a manner that does not unreasonably interfere
with other employment obtained by the Employee. The Employee
shall be reimbursed for any expenses incurred by him in
the performance of the covenants herein set forth in this
Section 6.05.
6.06. After the Termination Date or the end of the
term of this Agreement, the Employee agrees that he will not
discuss his employment and resignation or termination or
Termination Compensation, if any, with any representatives of the
media, either directly or indirectly, without the written consent
and approval of the Company.
7. SPECIAL PROVISIONS. This Agreement shall inure to the
benefit of any successor to or assignee of the Company, and the
Employee specifically agrees on demand to execute any and all
necessary documents in connection with the performance of this
Agreement. No waiver by either party of any breach by the other
of any provision hereof shall be deemed to be a waiver of any
later or other breach thereof or as a waiver of any such or other
provision of this Agreement. If any provision of this Agreement
shall be declared invalid or unenforceable as a matter of law,
such invalidity or unenforceability shall not affect the validity
or enforceability of any other provision of this Agreement or of
the remainder of this Agreement as a whole.
This Agreement sets forth all of the terms of the
understanding between the parties with reference to the subject
matter set forth herein and may not be waived, changed,
discharged or terminated orally or by any course of dealing
between the parties, but only by an instrument in writing signed
by the party against whom any waiver, change, discharge or
termination is sought.
8. NORTH CAROLINA LAW APPLIES. This Agreement shall be
governed by and construed in accordance with the laws of the
State of North Carolina.
9. NOTICES. Any notice or other communications to be
given hereunder shall be deemed to have been given or delivered
when delivered by hand to the individuals named below or when
deposited in United States mail, registered or certified, with
proper postage and registration or certification fees prepaid,
addressed to the parties as follows (or to such other address as
one party shall give the other in the manner provided herein):
Family Dollar Stores, Inc. Xxxx Xxxxxx Xxx 0000
Xxxxxxxxx, XX 00000-0000
Attention: Xx. Xxxx Xxxxxx
With copy to: Xxxxxx X. Xxxxxxx, Xx.
Family Dollar Stores, Inc.
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxx, XX 00000-0000
Xxxxxx X. Xxxxxx: Family Dollar Stores, Inc.
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxx, XX 00000-0000
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement in triplicate, all as of the day and year first above
written.
FAMILY DOLLAR STORES, INC.
By XXXX XXXXXX
XXXX XXXXXX
Chairman of the Board
Attest:
XXXXXX X. XXXXXXX, XX.
XXXXXX X. XXXXXXX, XX.
Secretary
(Corporate Seal)
XXXXXX X. XXXXXX (SEAL)
XXXXXX X. XXXXXX
Witness:
XXXXXX X. XXXXXX
XXXXXX X. XXXXXX
