EMPLOYMENT AGREEMENT
AGREEMENT (the "Agreement") dated September 18, 1995 between
_____________, currently residing at ___________________, _______,
Missouri _____ ("Employee"), and Edison Brothers Stores, Inc., a
Delaware corporation (the "Company").
In consideration of the mutual covenants contained herein, the
parties hereto agree as follows:
1. Employment. Subject to the terms and conditions hereinafter
set forth, the Company hereby agrees to employ Employee, and Employee
hereby agrees to be employed by the Company, during the two-year period
beginning on the date hereof and ending on September 17, 1997 (the
"Employment Term"). The Employment Term may be extended by mutual
written agreement of the parties or terminated pursuant to the
provisions of Section 4 or Section 5 hereof. In the event a Change in
Control (as hereinafter defined) occurs at a time when Employee is still
employed hereunder, the Employment Term shall be extended for a period
ending two years after the date of occurrence of the Change in Control.
2. Duties. Employee shall be employed in the capacity of
_______________________________________________________. Employee shall
have such duties as may reasonably be assigned to him by or at the
direction of the Board of Directors of the Company. Employee shall
perform such duties diligently and to the best of his ability, and shall
comply with the Company's Business Conduct Policy and other policies as
in effect from time to time. Employee's duties shall be performed
primarily at the Company's home office in St. Louis, Missouri, with such
foreign and domestic travel as the performance of his duties may
require. During the Employment Term, Employee shall devote his entire
working time, attention and energy to the business of the Company, and
shall not be engaged in any other business activity that conflicts with
or interferes with Employee's performance of his duties hereunder except
as authorized by the Board of Directors of the Company.
3. Compensation and Benefits.
A. Salary. During the Employment Term, the Company shall pay
Employee for his services hereunder a base salary at the rate of
$_______, subject to upward adjustment in accordance with the Company's
salary review practices and procedures in effect from time to time.
Such salary shall be payable semi-monthly on the 15th and last day of
each month.
B. Benefits and Perquisites. During the Employment Term, Employee
shall be entitled to participate in, to the extent Employee is eligible
under the terms thereof, the Company's Medical, Dental, Life Insurance,
Disability, Pension and 401(k) Savings Plans, its Officer Perquisite
Program, and all such other benefit programs as are generally provided
from time to time by the Company to its executive personnel. Subject to
the rights of Employee set forth in Sections 5 and 6 hereof, nothing
herein shall preclude the Company from terminating or amending any
employee benefit plan or program.
C. Vacation. During the Employment Term, Employee shall be
entitled to a vacation of ____ weeks per calendar year to be taken in
accordance with the Company's normal policies.
D. Bonuses and Stock Options. Subject to the provisions of the
next sentence, Employee shall be entitled to receive a lump sum cash
bonus equal to four times Employee's monthly base salary at the highest
rate in effect at any time between the date hereof and the payment date.
Such bonus shall be payable on September 17, 1997 or such earlier date
as there occurs a Change in Control, provided that Employee is still in
the employ of the Company as of that date. Notwithstanding the
foregoing, if (i) in the absence of or prior to the occurrence of a
Change in Control and (ii) after eighteen months from the date hereof
but prior to September 17, 1997, Employee's employment is terminated by
the Company Without Cause (as hereinafter defined) or is terminated by
Employee for Good Reason (as hereinafter defined), then the Company
shall pay to Employee on the Termination Date (as hereinafter defined) a
lump sum cash amount equal to four times Employee's monthly base salary
at the highest rate in effect at any time between the date hereof and
the Termination Date multiplied by a fraction, the numerator of which
shall be the number of months from the date hereof to the Termination
Date, including partial months, and the denominator of which shall be
twenty-four. Employee shall also be eligible for such other bonus
payments and shall be granted such options to purchase common stock of
the Company as the Board of Directors of the Company, or a duly
constituted committee thereof, shall determine in its discretion.
E. Travel and Business Expenses. Upon submission of itemized
expense statements in the manner specified by the Company, Employee
shall be entitled to reimbursement for reasonable travel and other
business expenses incurred by Employee in the performance of his duties
hereunder.
F. Payment. Payment of all compensation and benefits to Employee
hereunder shall be made in accordance with the relevant policies of the
Company in effect from time to time and shall be subject to all
applicable employment and withholding taxes.
G. Cessation of Employment. If Employee shall cease to be employed
by the Company for any reason, then Employee's compensation and benefits
shall cease as of the Termination Date, except as otherwise provided
herein or in any applicable employee benefit plan or program.
4. Termination of Employment of Employee by the Company.
(a) Employee's employment may be terminated by the Company for
Cause (as hereinafter defined) at any time, effective upon the
giving to Employee of a written notice of termination specifying in
detail the particulars of the conduct of Employee deemed by the
Company to justify such termination for Cause.
(b) Employee's employment may be terminated by the Company
Without Cause at any time, effective upon the giving to Employee of
a written notice of termination specifying that such termination is
Without Cause.
(c) Upon a termination by the Company of Employee's employment
for Cause, Employee shall be entitled to the payments specified in
subparagraph (a) of Section 6 of this Agreement. Upon a
termination by the Company of Employee's employment Without Cause,
Employee shall be entitled to all of the payments and benefits
provided for in Section 6 hereof.
(d) If, as a result of Employee's incapacity due to physical
or mental illness, Employee shall have been absent from Employee's
duties hereunder for 180 days within any 365 day period, the
Company may, by notice to Employee, terminate Employee's employment
hereunder for "Disability". Upon a termination of Employee's
employment for Disability, Employee shall be entitled to the
payments specified in subparagraph (a) of Section 6 of this
Agreement. During any period that Employee fails to perform
Employee's duties hereunder as a result of incapacity due to
physical or mental illness (a "Disability Period"), Employee shall
continue to receive the compensation and benefits provided for in
Section 3 hereof unless and until Employee's employment hereunder
is terminated; provided, however, that the amount of compensation
and benefits received by Employee during the Disability Period
shall be reduced by the aggregate amounts, if any, payable to
Employee under disability benefit plans and programs of the Company
or under the Social Security disability insurance program.
5. Termination of Employment by Employee. Employee shall be
entitled to terminate his employment with the Company at any time. If
such termination is for Good Reason, Employee shall be entitled to all
of the payments and benefits specified in Section 6 hereof. If such
termination is for other than Good Reason, Employee shall be entitled to
the payments specified in subparagraph (a) of Section 6. Employee shall
give the Company written notice of any such voluntary termination of
employment, which notice need specify only Employee's desire to
terminate his employment and, if such termination is for Good Reason,
set forth in reasonable detail the facts and circumstances claimed by
Employee to constitute Good Reason.
6. Payments and Benefits Upon Termination. To the extent provided
in Sections 4 and 5 hereof, upon termination of his employment, Employee
shall be entitled to receive the following payments and benefits:
(a) The Company shall pay to Employee on the Termination Date
(i) the full base salary earned by Employee through the Termination
Date and unpaid at the Termination Date, plus (ii) credit for any
vacation earned by Employee but not taken at the Termination Date,
plus (iii) all other amounts earned by Employee and unpaid as of
the Termination Date.
(b) The Company shall pay to Employee on the Termination Date
a lump sum cash amount equal to Employee's monthly salary at the
highest rate in effect at any time between the date hereof and the
Termination Date multiplied by the greater of (i) twelve or
(ii) the number of months remaining until the Completion Date (as
hereinafter defined), including partial months.
(c) The Company shall maintain in full force and effect for
Employee's continued benefit until the earlier of (i) the
Completion Date or twelve months from the Termination Date,
whichever is later, or (ii) Employee's similar coverage by a new
employer, all life insurance, medical, dental, and disability
plans, programs or arrangements in which Employee was entitled to
participate immediately prior to the Termination Date, provided
that Employee's continued participation is possible under the terms
and provisions of such plans, programs or arrangements. In the
event that Employee's participation in any such plan, program or
arrangement is barred by the terms thereof, the Company shall
arrange to provide Employee with benefits substantially similar to
those which Employee would otherwise be entitled to receive under
such plans, programs or arrangements. Any continuation of benefits
under this Section 6(c) shall not be counted towards the benefits
extension period mandated by the Consolidated Omnibus Budget
Reconciliation Act of 1985.
(d) The Company shall pay to Employee (or his beneficiary upon
his death) the excess, if any, of (i) the benefit Employee (or his
beneficiary, as the case may be) would have been entitled to
receive under the Edison Brothers Stores Pension Plan and any
supplemental pension plan or any successor or similar plans then in
effect (collectively the "Plan") had he remained an employee of the
Company until the earlier of the Completion Date or his death at a
salary at the highest rate of Employee's compensation in effect
during the twelve months immediately preceding the Termination
Date, over (ii) the benefit actually payable to Employee (or his
beneficiary, as the case may be) under the Plan. Such excess
benefit shall be determined in accordance with the provisions,
rules and assumptions of the Plan but shall be actually paid from
the general assets of the Company.
Employee shall not be required to mitigate the amount of any payment
provided for in this Section 6 by seeking other employment or otherwise,
nor shall the amount of any payment provided for in this Section 6 be
reduced by any compensation or other amounts paid to or earned by
Employee as the result of employment by another employer after the
Termination Date or otherwise.
7. Tax Indemnity. If any amounts, reimbursements or benefits
payable by the Company to Employee pursuant to this Agreement or any
other plan, agreement or arrangement of the Company are determined to be
subject to an excise or similar tax pursuant to Section 4999 of the
Internal Revenue Code of 1986, as amended, or any successor or other
comparable federal, state or local tax laws, the Company shall pay to
Employee such additional sum as is necessary (after taking into account
all federal, state and local income taxes payable by the Employee as a
result of the receipt of such additional sum) to place Employee in the
same after-tax position he would have been in had no such excise or
similar purpose tax been paid or incurred.
8. Employee's Expenses. All costs and expenses (including
reasonable legal and accounting fees) incurred by Employee to (a) defend
the validity of this Agreement, (b) contest the termination of his
employment by the Company or any determinations by the Company
concerning the amounts payable by the Company under this Agreement or
(c) otherwise obtain or enforce any right or benefit provided to
Employee by this Agreement (including, without limitation, any right or
benefit under this Section 8), shall be paid by the Company if Employee
is the prevailing party.
9. Confidential Information. Employee, during the period of his
employment by the Company and thereafter, irrespective of whether the
termination of his employment is voluntary or involuntary, will not,
directly or indirectly (without the Company's prior written consent),
use for himself, or use for or disclose to any other party, any
confidential information regarding the Company. For purposes of this
Agreement, such confidential information shall include any data or
information regarding the business of the Company or any subsidiary or
affiliate of the Company that is not generally known to the public,
including without limitation any confidential information or data
regarding the cost of products sold by, or the plans of, the Company or
its affiliates or the business methods of the Company or its affiliates
not in general use by others or the identity of any customers or
suppliers of the Company or its affiliates or information respecting
transactions or prospective transactions therewith.
10. Notice. All notices hereunder shall be in writing and shall
be deemed to have been duly given (a) when delivered personally or by
courier, or (b) on the third business day following the mailing thereof
by registered or certified mail, postage prepaid, in each case addressed
as set forth below:
(a) If to the Company
Edison Brothers Stores, Inc.
000 Xxxxx Xxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
(b) If to Employee:
_____________________
_____________________
_____________________
Any party may change the address to which notices are to be addressed by
giving the other party written notice in the manner herein set forth.
11. Definitions.
(a) "Cause," when used in connection with the termination of
Employee's employment by the Company, shall mean (i) the willful or
repeated failure by Employee substantially to perform his duties or
otherwise comply with any of his obligations hereunder, which
failure is not or cannot be cured within five business days after
the Company has given written notice thereof to Employee specifying
in detail the particulars of the acts or omissions deemed to
constitute such failure; (ii) the engaging by Employee in any act
of dishonesty or willful misconduct of more than trifling
significance; (iii) the engaging by Employee in any act of moral
turpitude that is reasonably likely to materially and adversely
affect the Company or its business; or (iv) Employee's conviction
of, or entry of a plea of nolo contendere with respect to, any
felony.
(b) "Change in Control" shall mean the occurrence of any of
the following events:
(i) at any time during any 24-month period, the membership of
the Board of Directors of the Company is not at least two-
thirds constituted by (1) individuals who were directors at
the beginning of such period or (2) individuals whose
election, or nomination for election by the Company's
stockholders, to the Board during such period was approved by
the vote of two-thirds of those directors then still in office
who were directors at the beginning of such period; or
(ii) the stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the
sale or disposition by the Company of all or substantially all
of the Company's assets; or
(iii) the Board determines in its sole and absolute discretion
that there has been a change in control of the Company.
(c) "Company" shall have the definition set forth in
Section 12 hereof.
(d) "Completion Date" shall mean the date the Employment Term
would have ended under the provisions of Section 1 hereof had it
not been terminated pursuant to Section 4 or Section 5.
(e) "Good Reason," when used with reference to a voluntary
termination by Employee of his employment with the Company in the
absence of or prior to the occurrence of a Change in Control, shall
mean a reduction in Employee's base salary as in effect on the date
hereof or as the same may be increased from time to time. "Good
Reason," when used with reference to a voluntary termination by
Employee of his employment with the Company after the occurrence of
a Change in Control, shall mean:
(i) the assignment to Employee of any duties materially
inconsistent with, or the reduction of powers or functions
associated with, his positions, responsibilities or status
with the Company immediately prior to the Change in Control,
or any removal of Employee from or any failure to re-elect
Employee to any positions or offices held by Employee
immediately prior to the Change in Control, except in
connection with the termination of Employee's employment by
the Company for Cause or for Disability;
(ii) a reduction in Employee's base salary as in effect on the
date hereof or as the same may be increased from time to time;
(iii) the mandatory transfer of Employee to another geographic
location, except for required travel on Company business to an
extent substantially consistent with Employee's business
travel obligations immediately prior to the Change in Control;
(iv) the failure by the Company to continue in effect any
employee benefit plan, program or arrangement in which
Employee was participating immediately prior to the Change in
Control (or plans, programs or arrangements providing Employee
with substantially similar benefits), or the taking of any
action by the Company which would adversely affect Employee's
participation in, or materially reduce Employee's benefits
under, any of such plans, programs or arrangements, or the
failure by the Company to provide Employee with the number of
paid vacation days to which Employee was entitled immediately
prior to the Change in Control;
(v) the failure by the Company to obtain an express written
assumption of the obligations of the Company to perform this
Agreement by any successor (whether by purchase, merger or
otherwise) to all or substantially all of the business and/or
assets of the Company upon or prior to the effective date of
any such succession; or
(vi) any purported termination of Employee's employment by the
Company which is not effected pursuant to the requirements of
this Agreement.
(e) "Termination Date" shall mean the effective date as
provided hereunder of the termination of Employee's employment.
(f) "Without Cause," when used in connection with the
termination of Employee's employment by the Company, shall mean any
termination of the employment of Employee by the Company which is
not a termination of employment for Cause.
12. Successors; Binding Agreement.
(a) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all
or substantially all of the business and/or assets of the Company,
upon or prior to such succession, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent
that the Company would have been required to perform it if no such
succession had taken place. A copy of such assumption and
agreement shall be delivered to Employee promptly after its
execution by the successor. Failure of the Company to obtain such
agreement upon or prior to the effectiveness of any such succession
shall be a breach of this Agreement and shall entitle Employee to
benefits from the Company in the same amounts and on the same terms
as Employee would be entitled hereunder if Employee terminated his
employment for Good Reason after a Change in Control. For purposes
of the preceding sentence, the date on which any such succession
becomes effective shall be deemed the Termination Date. As used in
this Agreement, "Company" shall mean the Company as hereinbefore
defined and any successor to its business and/or assets as
aforesaid which executes and delivers the agreement provided for in
this Section 12(a) or which otherwise becomes bound by the terms
and provisions of this Agreement by operation of law.
(b) This Agreement is personal to Employee and Employee may
not assign or delegate any part of his rights or duties hereunder
to any other person, except that this Agreement shall inure to the
benefit of and be enforceable by Employee's legal representatives,
executors, administrators, heirs and beneficiaries.
13. Severability. If any provision of this Agreement or the
application thereof to any person or circumstance shall to any extent be
held to be invalid or unenforceable, the remainder of this Agreement and
the application of such provision to persons or circumstances other than
those as to which it is held invalid or unenforceable shall not be
affected thereby, and each provision of this Agreement shall be valid
and enforceable to the fullest extent permitted by law.
14. Headings. The headings in this Agreement are inserted for
convenience of reference only and shall not in any way affect the
meaning or interpretation of this Agreement.
15. Counterparts. This Agreement may be executed in one or more
identical counterparts, each of which shall be deemed an original but
all of which together shall constitute one and the same instrument.
16. Waiver. Neither any course of dealing nor any failure or
neglect of either party hereto in any instance to exercise any right,
power or privilege hereunder or under law shall constitute a waiver of
such right, power or privilege or of any other right, power or privilege
or of the same right, power or privilege in any other instance. Without
limiting the generality of the foregoing, Employee's continued
employment without objection shall not constitute Employee's consent to,
or a waiver of Employee's rights with respect to, any circumstances
constituting Good Reason. All waivers by either party hereto must be
contained in a written instrument signed by the party to be charged
therewith, and, in the case of the Company, by its duly authorized
officer.
17. Entire Agreement. This instrument constitutes the entire
agreement of the parties in this matter and supersedes any other
agreement between the parties, oral or written, concerning the same
subject matter, including that certain agreement dated February 21,
1990, between the Company and Employee.
18. Amendment. This Agreement may be amended only by a writing
which makes express reference to this Agreement as the subject of such
amendment and which is signed by Employee and by a duly authorized
officer of the Company.
19. Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of
Missouri, without reference to the conflict of laws rules of such State.
20. Post Employment Term Change in Control. In the event a Change
in Control occurs after the end of the Employment Term but at a time
when Employee is still employed by the Company, and if, within two years
after the occurrence of such Change in Control, Employee's employment is
terminated by the Company Without Cause or is terminated by Employee for
Good Reason, then Employee shall be entitled to all of the payments and
benefits provided for in Section 6 of this Agreement. For purposes
hereof, the term "Completion Date" as used in Section 6 shall be deemed
to be the last day of such two-year period.
21. Survival. This Agreement, and the respective rights and
obligations of the Company and Employee hereunder, shall survive and
remain in full force and effect following the expiration of the
Employment Term and the termination of Employee's employment hereunder.
IN WITNESS WHEREOF, Employee and the Company have executed this
Agreement as of the day and year first above written.
EDISON BROTHERS STORES, INC.
By: _______________________________
Name: Xxxx X. Xxxxxx
Title: Chairman, President and
Chief Executive Officer
_______________________________
[name of employee]
