Exhibit 10(d)
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into April 12 , 1998, between XXXXXXXX
STORES INC., a Michigan corporation, of Jackson, Michigan (the "Company"),
and Xxxxxx X. Xxxxxx the "Employee").
THE PARTIES AGREE AS FOLLOWS:
1. Employment and Term. The Company employs Employee as Senior Vice
President-General Merchandise Manager , and Employee agrees to serve in that
capacity and/or in such other capacity or capacities as the Chief Executive
Officer of the Company deems advisable, commencing April 12, 1998, and
continuing through April 15, 1999, unless terminated sooner pursuant to the
provisions of paragraph 4, for the salary and on the terms set forth herein.
2. Compensation. Subject to the provisions of paragraph 4, the
Company agrees to pay Employee salary at an annual rate of $ 150,000 , in
bi-weekly or other regular periodic installments no less frequent than
monthly.
3. Duties. Employee agrees, as long as employment by the Company
continues, to devote Employee's 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 any officers and
executives of the Company to whom the Employee is directed to report.
4. Termination. Employee's employment under this Agreement shall
terminate on the earliest to occur of the following: (1) immediately upon
Employee's death, (2) at the Company's option, immediately when notice to
Employee of such termination is given after Employee's permanent incapacity
(established to the reasonable satisfaction of the Chief Executive Officer of
the Company), (3) at the Company's option, immediately when notice to
Employee of such termination is given (for any reason or for no reason and
regardless of whether there is good cause for such termination), (4) 30 days
after notice of such termination is given to the Company by Employee, and (5)
April 15, 1999. Notice will be deemed to be given on the earliest of (1) when
delivered, or (2) three business days after mailed by certified or registered
mail, postage prepaid, return receipt requested, or (3) one business day
after sent by recognized overnight courier, if to Employee, to Employee's
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) If employment is terminated due to Employee's death or
permanent incapacity, the Company shall have no obligation to pay any salary
or other amounts or benefits under this Agreement or otherwise for any period
after the date of termination of employment, but benefits may continue to the
extent provided in any wage continuation program, insurance, or other
employee benefit plans that are generally applicable to all employees of the
Company and that are maintained by the Company at that time.
(b) Except as otherwise provided in paragraph 4(c), if
employment is terminated by the Company (for any reason or for no reason and
regardless of whether there is good cause for such termination), or if
Employee resigns or retires before or at the expiration of the term, the
Company shall have no obligation to pay any salary or other amounts or
benefits under this Agreement or otherwise for any period after the date of
termination of employment, but benefits may continue to the extent provided
in any severance program, wage continuation program, insurance, or other
employee benefit plans that are generally applicable to all employees of the
Company and that are maintained by the Company at that time.
(c) If (1) a "Change in Control" (as defined below) occurs
during the term of Employee's employment under this Agreement, and (2) either
Employee terminates Employee's employment with the "Entity" (as defined
below) for "Good Reason" (as defined below) or the "Entity" terminates
Employee's employment without "Cause" (as defined below), both within one
year after the Change in Control, Employee will receive an amount equal to
Employee's annual salary at the rate set forth in paragraph 2 for the period
from the date of such termination through the date that is 24 months after
the date such Change in Control occurs. Such payments shall be made at the
times provided in paragraph 2. 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. The Company's obligation to pay
the salary continuation payments provided in this paragraph 4(c) shall
survive the expiration of the term.
(i) For purposes of this Agreement, a "Change in
Control" occurs on the first day any one or more of the following
occurs:
(A) 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 4(c)(ii)), 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;
(B) 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 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;
(C) 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
4(c)(i)(A); or
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(D) the "Continuing Directors" (as defined in
paragraph 4(c)(iii)) 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.
(ii) For purposes of this Agreement, the "Excluded
Persons" are (1) Employee, (2) any "group" (as that term is used
in Section 13(d) of the Exchange Act and the rules thereunder)
that includes Employee or in which Employee is, or has agreed to
become, an equity participant, (3) any entity in which Employee
is, or has agreed to become, an equity participant, (4) the
Company, (5) any subsidiary of the Company, (6) any employee
benefit plan of the Company or any subsidiary of the Company or
the related trust, (7) 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 (8) 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, Employee shall
not be deemed an "equity participant" in any group or entity (1)
in which Employee 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 Employee is not otherwise affiliated with such
group or entity, or (2) if Employee's participation is
fully-disclosed to, and approved by, the Company's Chief Executive
Officer before the Change in Control occurs.
(iii) 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.
(iv) Termination of Employee's employment for "Good
Reason" means Employee's voluntary termination of employment with
the Entity after a Change in Control as a result of (1) any
decrease by the Entity (without Employee's consent) in Employee's
salary from Employee's salary immediately before such Change in
Control; provided, that no such decrease shall constitute "Good
Reason" if such decrease is applied in the same manner to all
officers or employees at the same employment level as Employee
(such as all officers or all store managers, as the case may be),
(2) a substantial change by the Entity (without Employee's
consent) in Employee's duties or responsibilities from Employee's
duties and responsibilities immediately before such Change in
Control, or (3) any requirement by the Entity (to which Employee
does not consent) that Employee change Employee's primary place of
business. "Good Reason" will not include Employee's death,
permanent incapacity or Retirement (as defined below), or
Employee's resignation other than as provided in the preceding
sentence. For purposes of this Agreement, "Retirement" means
Employee's retirement from the Entity in accordance with the
Entity's normal policies.
(v) The Entity's termination of Employee's employment
without "Cause" means a termination other than for (1) Employee's
continued failure either to (A) devote substantially full time to
Employee's employment duties (except because of Employee's illness
or disability) or (B) make a good faith effort to perform
Employee's employment duties; (2) any other willful act or
omission which Employee knew, or had reason to know, would
materially injure the Entity; or (3) Employee's conviction of a
felony involving dishonesty or fraud.
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(vi) 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 4(c)(i)(B) or paragraph
4(c)(i)(C), 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 Employee on such terms that
would not constitute "Good Reason" for termination of Employee's
employment if imposed by the Company. Therefore, for purposes of
this paragraph 4(c), Employee shall not be deemed to have
terminated Employee's employment with the Entity for "Good Reason"
and the "Entity" shall not be deemed to have terminated Employee's
employment without "Cause" unless such actions are taken by all
entities included within the definition of "Entity". In addition,
for purposes of this paragraph 4(c), Employee shall not be deemed
to have terminated Employee's employment with the Entity for "Good
Reason" and the "Entity" shall not be deemed to have terminated
Employee's 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 Employee on such terms that
would not constitute "Good Reason" for termination of Employee's
employment if imposed by the Company, (2) Employee refuses such
employment, and (3) the Company terminates Employee's employment
for any reason or for no reason.
(d) The severance benefits provided in this paragraph 4 are
exclusive and in lieu of any other severance benefits to which Employee may
be entitled, except for any benefits under the terms of any stock options or
restricted stock agreements Employee may have.
(e) There is not, nor will there be unless in writing signed
by both Employee and the Company, any express or implied agreement as to
Employee's continued employment by the Company after the end of the term of
Employee's employment under this Agreement. Employee's subsequent employment
with the Company, if any, will be employment "at will", and the provisions of
this Agreement will not apply to any such employment.
5. Previous Agreements Superseded. This Agreement supersedes all
previous employment agreements between the parties.
6. Miscellaneous Provisions. This Agreement may be amended only by
written agreement signed by either the Chairman or Vice Chairman of the
Company. It shall be construed according to the laws of Michigan, and shall
be binding on and enforceable by the parties and their successors in
interest.
IN THE PRESENCE OF: XXXXXXXX STORES INC.
By: /s/ P. Xxxxxx Xxxxx
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Its Chairman of the Board
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COMPANY
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/s/ Xxxxxx X. Xxxxxx
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EMPLOYEE
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