Exhibit 10.2
Circuit City Stores, Inc.
Employment Agreement for Xxxxx X. Xxxxxx
This EMPLOYMENT AGREEMENT ("Agreement") is made, entered into, and is
effective as of the 18th day of August, 2008 (the "Effective Date"), by and
between Circuit City Stores, Inc. (the "Company") and Xxxxx X. Xxxxxx (the
"Executive").
WHEREAS, the Company desires to employ the Executive as Vice Chairman of
Circuit City Stores, Inc.;
WHEREAS, the Company recognizes the Executive's intimate knowledge and
experience in the business of the Company, and desires to secure the employment
of the Executive in the role of Vice Chairman of the Company;
WHEREAS, upon execution of this Agreement, any prior employment agreement
by and between the Executive and the Company, whether oral or written, will have
no force and effect with respect to the terms and conditions of the Executive's
employment and will be fully replaced and superseded by the terms of this
Agreement; and
WHEREAS, the Executive will develop and/or come in contact with the
Company's proprietary and confidential information which is not readily
available to the public, and which is of great importance to the Company and is
treated by the Company as secret and confidential information.
NOW, THEREFORE, in consideration of the Executive's continued employment
and of the mutual covenants and agreements of the parties set forth in this
Agreement, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
Article 1. Term of Employment
The Company hereby agrees to employ the Executive and the Executive hereby
accepts employment as Vice Chairman in accordance with the terms and conditions
set forth herein, for an initial period of one (1) year, commencing as of the
Effective Date of this Agreement as indicated above (the "Initial Term");
subject, however, to earlier termination as expressly provided herein.
The Initial Term shall automatically be renewed for additional periods of
one (1) year each at the end of the Initial Term, and then again after each
successive year thereafter (collectively, the "Renewal Periods," which, together
with the Initial Term, constitute the "Term" of this Agreement). However, either
party may terminate this Agreement at the end of the Initial Term, or at the end
of any Renewal Period, by giving the other party written notice of intent not to
renew, delivered at least forty-five (45) days prior to the end of the Initial
Term or any Renewal Period.
Article 2. Position and Responsibilities
During the Term of this Agreement, the Executive agrees to serve as Vice
Chairman of the Company. In his capacity as Vice Chairman, the Executive shall
report directly to the Chief Executive Officer, and shall have the duties and
responsibilities of Vice Chairman of the Company and such other duties and
responsibilities not inconsistent with the performance of his duties as Vice
Chairman of the Company.
Article 3. Standard of Care
During the term of this Agreement, the Executive agrees to devote
substantially his full-time attention and energies to the Company's business.
The Executive covenants, warrants, and represents that he shall:
(a) Devote his full and best efforts and talents full time to the
performance of his employment obligations and duties for the Company;
(b) Exercise the highest degree of loyalty and the highest standards of
conduct in the performance of his duties;
(c) Comply with all rules, regulations, and policies established or issued
by the Company; and
(d) Refrain from taking advantage, for himself or others, of any corporate
opportunities of the Company.
Article 4. Other Employment
The Executive shall not, during the term hereof, be interested directly or
indirectly, in any manner, as partner, officer, director, investor, stockholder,
advisor, employee, or in any other capacity, in any other business similar to
Company's business for the Executive's personal advantage or benefit or that of
others. Any other employment or position which might reasonably be deemed
contrary to the best interests of the Company is prohibited. During the term of
employment hereunder, the Executive agrees to obtain the Company's written
consent prior to entering into any other occupation, even if dissimilar to that
of the Company. Such consent may be granted or withheld, in the Company's
absolute discretion. Nothing herein contained shall be deemed to prevent or
limit the right of the Executive to invest in the capital stock or other
securities of any corporation whose stock or securities are regularly traded on
any public exchange, nor shall anything herein contained be deemed to prevent
the Executive from investing in real estate for his own benefit (so long as such
investment (a) is not related to or in support of any entity engaged in a
business similar to that of the Company or (b) does not detract from the
Executive's performance of his duties and obligations hereunder).
Article 5. Compensation and Benefits
As remuneration for all services to be rendered by the Executive during his
employment, and as consideration for complying with the covenants herein, the
Company shall pay and provide to the Executive the following:
5.1. Base Salary. During the Term of this Agreement, the Company shall pay
the Executive a Base Salary in an amount which shall be established and approved
by the Compensation and Personnel Committee of the Board of Directors; provided,
however, that such Base Salary shall be established at a rate of not less than
$750,000.00 gross per year. This Base Salary shall be subject to all appropriate
federal and state withholding taxes and payable in accordance with the normal
payroll practices of the Company. The Base Salary shall be reviewed at least
annually following the Effective Date of this Agreement, while the Term of this
Agreement is in force, to ascertain whether, in the judgment of the Compensation
and Personnel Committee, such Base Salary should be changed. If changed, the
Base Salary as stated above shall, likewise, be changed for all purposes of this
Agreement.
5.2 Annual Incentive. In addition to his Base Salary, the Executive shall
be entitled to participate in the Company's short-term incentive program, as
such program may exist from time to time during the Term of this Agreement.
Under the Company's short-term incentive plan, the Executive has the
opportunity to earn an incentive with respect to any fiscal year of the Company
("Annual Incentive"). The incentive will be payable in equity, cash, or a
combination thereof, at the discretion of the Chief Executive Officer and the
Company's Compensation and Personnel Committee.
5.3. Long-Term Incentives. During the Term of this Agreement, the Executive
shall be eligible to participate in the Company's long-term incentive plan, to
the extent that the Board of Directors of the Company or the Compensation and
Personnel Committee, in their discretion, determines is appropriate.
5.4. Retirement Benefits. During the Term of this Agreement, the Company
shall provide to the Executive the opportunity for participation in all Company
retirement, insurance, fringe benefit, and executive compensation plans and
programs, subject to the eligibility and participation requirements of such
plans.
5.5. Employee Benefits. During the Term of this Agreement, the Company
shall provide the Executive all benefits, subject to the eligibility
requirements and other provisions of such arrangements. Such benefits may
include group term life insurance, comprehensive health and major medical
insurance, dental and life insurance, and short-term and long-term disability.
5.6. Perquisites. During the Term of this Agreement, the Company shall
provide to the Executive, at the Company's cost, all perquisites, to the extent
that the Board of Directors of the Company or the Compensation and Personnel
Committee, in their discretion, determines is appropriate.
5.7. Right to Change Plans. By reason of Articles 5.5 and 5.6 herein, the
Company shall not be obligated to institute, maintain, or refrain from changing,
amending, or discontinuing any benefit plan or perquisite.
Article 6. Expenses
During the Term of this Agreement, the Company shall pay or reimburse the
Executive for all ordinary and necessary expenses, in a reasonable amount, which
the Executive incurs in performing his duties under this Agreement including,
but not limited to, travel, entertainment, professional dues and subscriptions,
and all dues, fees, and expenses associated with membership in various
professional, business, and civic associations and societies in which the
Company finds that the Executive's participation is in the best interests of the
Company. The payment of reimbursement of expenses shall be subject to such rules
concerning documentation of expenses and the type or magnitude of such expenses
as the Compensation and Personnel Committee of the Board of Directors may
establish from time to time.
Article 7. Employment Termination
7.1. Termination Due to Retirement or Death. In the event the Executive's
employment ends by reason of Retirement (defined as voluntary "Normal
Retirement" under the then established definitions and rules of the Company's
tax-qualified retirement plan) or the Executive's death during the term of this
Agreement, the Executive's benefits shall be determined in accordance with the
Company's retirement, survivor's benefits, insurance, and/or other applicable
programs of the Company then in effect. In addition, in the case of the
Executive's death, all stock grants will become immediately vested and may be
exercised by the Executive's personal representatives, distributees, legatees,
or estate at any time before the expiration date of the grant.
The Effective Date of Termination due to Retirement or death shall be (a)
ninety (90) days following the date the Executive provides the Company with
written notice that the Executive is ending employment by reason of Retirement
or (b) on the Executive's date of death, as the case may be. Upon the Effective
Date of Termination, the Company shall be obligated to pay the Executive or, if
applicable, the Executive's estate; (a) any Base Salary or Annual Incentive that
was accrued but not yet paid as of the Effective Date of Termination; and (b)
all other rights and benefits that the Executive is vested in, pursuant to other
plans and programs of the Company.
7.2. Termination Due to Disability. The Company shall have the right to
terminate the Executive's employment for disability. For the purposes of this
Agreement, disability shall mean any physical or mental illness or injury that
causes the Executive to be unable to substantially perform the Executive's
normal duties; provided however that the Executive shall not be considered
disabled until: (i) the Executive has been so disabled for 180 days during any
period of twelve (12) consecutive months; (ii) the Executive's attending
physician shall have furnished to the Company certification that the return of
the Executive to his normal duties is impossible or improbable; or (iii) the
Executive is determined to be totally disabled by the disability insurer then
insuring the Executive, if any.
The Effective Date of Termination due to Disability shall be specified, in
a written notice, by the Executive's immediate manager, and such written notice
shall be delivered to the Executive, but shall be no less than thirty (30)
calendar days after the delivery of such written notice to the Executive. Upon
the Effective Date of Termination, the Company shall be obligated to pay the
Executive (or, if applicable, the Executive's estate): (a) any salary that was
accrued but not yet paid as of the Effective Date of Termination; (b) the unpaid
Annual Incentive, if any, with respect to the fiscal year preceding the
Effective Date of Termination (such Annual Incentive, if any, to be determined
in the manner it would have been determined and payable at the time it would
have been payable under Article 5.2 had there been no termination of the
Employment Period); and (c) all other rights and benefits that the Executive is
vested in, pursuant to other plans and programs of the Company.
It is expressly understood that the Disability of the Executive for a
period of one hundred eighty (180) calendar days or less in the aggregate during
any period of twelve (12) consecutive months, in the absence of any reasonable
expectation that his Disability will exist for more than such a period of time,
shall not constitute a failure by him to perform his duties hereunder and shall
not be deemed a breach or default, and the Executive shall receive full
compensation for any such period of Disability or for any other temporary
illness or incapacity during the term of this Agreement.
If the employment of the Executive terminates because of Disability, all of
the Executive's outstanding stock grants, excluding restricted stock grants
issued under a performance based plan, will become immediately vested, effective
as of the date of the Executive's Disability. Then, the Executive, the
Executive's personal representatives, distributees, or legatees may exercise the
Executive's grants at any time before the expiration date of the grant.
7.3. Voluntary Termination by the Executive. The Executive may terminate
his employment and this Agreement at any time by giving the Company at least
forty-five (45) days written notice. The Company reserves the right to require
the Executive not to work during the notice period but shall pay the Executive
his full Base Salary, at the rate then in effect as provided in Article 5.1
herein, through the notice period plus all other benefits to which the Executive
has a vested right on the last day of employment (for purposes of this
paragraph, the Executive shall not be paid any Annual Incentive with respect to
the fiscal year in which voluntary termination under this Article 7.3 occurs).
The Company thereafter shall have no further obligations under this Agreement.
7.4 Involuntary Termination by the Company Without Cause. The Company may
terminate the Executive's employment, at any time, for any reason other than
death, Disability, Retirement, or for "Cause", by providing the Executive with
at least forty-five (45) days written notice; provided, however, that for
purposes of this Article 7.4 (a), no variation, alteration, modification,
cancellation, change or amendment made to this Agreement pursuant to Article
12.3 or 12.4 shall be deemed an involuntary termination without Cause.
(a) Upon the Effective Date of Termination specified by the Company for
termination by the Company without cause, the Company shall pay to the
Executive, an amount equal to one (1) year of the Executive's Base
Salary and the Executive's target Annual Incentive established for the
fiscal year in which the Executive's Effective Date of Termination
occurs according the Company's regularly scheduled payroll practices.
If, however, the Company determines that such payments are subject to
Treasury Regulation Service 1.409A-3(g)(2), payment shall begin on the
first day of the month following the six (6) month anniversary of the
Executive's Effective Date of Termination, with 6/12 of the total
payment made on such date and 1/12 of the payment made on the first
day of each month in the six (6) month period thereafter.
(b) In addition, the Company shall continue, at the same cost to the
Executive as existed as of the Effective Date of Termination, all
health and welfare benefit plan participation, as permitted by law,
for one (1) full year following the Executive's termination of
employment; provided, however, that the applicable COBRA "period of
coverage" under any plan subject to Section 4980B of the Internal
Revenue Code of 1986, as amended (the "Code"), or Sections 601 through
609 of the Employee Retirement Income Security Act of 1974 (ERISA)
shall begin as of the Effective Date of Termination.
(c) The Company shall also provide the Executive with six (6) months of
outplacement services.
(d) Any unvested stock options or any outstanding restricted stock,
excluding performance-based restricted stock grants, as of the
Effective Date of Termination, that would become vested (that is,
exercisable in the case of stock options or transferable and
non-forfeitable in the case of restricted stock) if the Executive
remained an employee through the Initial Term or the then current
Renewal Period of this Agreement will become vested as of the date of
the Effective Date of Termination. The Executive must satisfy the tax
withholding requirements.
The Company thereafter shall have no further obligations under this
Agreement.
7.5. Termination For Cause. Nothing in this Agreement shall be construed to
prevent the Company from terminating the Executive's employment under this
Agreement, without notice or liability for doing so, for "Cause."
For purposes of this Agreement, "Cause" means:
(a) The Executive's material breach of this Agreement, which breach is not
cured within ten (10) days of receipt by the Executive of written
notice from the Company specifying the breach;
(b) The Executive's gross negligence in the performance of his material
duties hereunder, intentional nonperformance or intentional
misperformance of such duties, misconduct or refusal to abide by or
comply with the directives of the Board, his superior officers, or the
Company's policies and procedures, which actions continue for a period
of ten (10) days after receipt by the Executive of written notice of
the need to cure or cease;
(c) Conviction of a felony or any crime involving moral turpitude;
(d) The Executive engaging in illegal conduct, dishonesty or fraud with
respect to the business or affairs of the Company that in the
reasonable judgment of the Company materially and adversely affects
the operations or reputation of the Company;
(e) Failure of the Executive to disclose to the Executive's manager a
conflict of interest, of which the Executive knew or, with reasonable
diligence, would have known, in connection with any transaction
entered into on behalf of the Company;
(f) Failure of the Executive to agree to a modification of this Agreement,
pursuant to paragraph 12.3 below, when the purpose of the modification
is to comply with applicable federal, state and/or local laws or
regulations, or when such modification is designed to further define
the restrictions of Article 8 or otherwise enhance the enforcement of
Article 8 without increasing the scope of the Article 8 restrictions;
or
(g) The Executive engages in any act or omission which the Company
believes could injure or bring discredit upon the reputation and/or
goodwill of the Company and/or its respective officers, directors or
shareholders.
In the event this Agreement is terminated for Cause, the Company shall pay
the Executive his Base Salary through the Effective Date of Termination for
cause and the Executive shall immediately thereafter forfeit all rights and
benefits (other than vested benefits) he would otherwise have been entitled to
receive under this Agreement. The Company thereafter shall have no further
obligations under this Agreement.
7.6. Termination for Good Reason. At any time during the term of this
Agreement, the Executive may terminate this Agreement for Good Reason (as
defined below) by giving the Company forty-five (45) days written notice, which
notice sets forth in detail the facts and circumstances claimed to provide a
basis for such termination. However, the Company shall, at its option, have
thirty (30) days from receipt of such written notice to cure any event or
circumstance that could constitute Good Reason.
If the Company chooses not to cure, the Effective Date of Termination for
Good Reason shall occur upon the expiration of the forty-five (45) days prior
notice period that is specified by the Executive in the written notice, and the
Company shall pay and provide to the Executive the benefits set forth in this
Article 7.6.
Subject to the last paragraph of this Article 7.6, and for purposes of this
Agreement, Good Reason shall mean, without the Executive's express written
consent, the occurrence of any one (1) or more of the following:
(a) Failing to maintain the Executive's participation in the Company's
annual incentive and long-term incentive plan in a manner determined
by the Board of Directors of the Company or the Compensation and
Personnel Committee;
(b) Failing to maintain the Executive's benefits under, or relative level
of participation in, the Company's employee benefit or retirement
plans, perquisites, policies, practices, or arrangements in which the
Executive participates as of the Effective Date of this Agreement;
(c) Reducing the Executive's Base Salary which reduction is not made
pursuant to an agreement between the Executive and the Company;
(d) Terminating the Executive's employment otherwise than as expressly
permitted by this Agreement; or
(e) Failing to comply with and satisfy Article 10.1 by requiring any
successor to the Company to assume and agree to perform the Company's
obligations hereunder.
Upon the Effective Date of Termination, the Executive shall be entitled to
receive the same payments and benefits as he is entitled to receive following an
involuntary termination of his employment by the Company without Cause, as
specified in Article 7.4 herein. Said payment shall commence within forty-five
(45) calendar days following the Effective Date of Termination.
The Executive's right to terminate employment for Good Reason shall not be
affected by the Executive's incapacity due to physical or mental illness.
Additionally, Company reorganizations and/or changes in reporting structures do
not constitute a sufficient basis for invoking this Article 7.6.
Article 8. Noncompetition and Confidentiality
8.1. Noncompetition.
(a) During the Executive's employment and for a period of one (1) year
following the last day of the Executive's employment, the Executive
shall not directly or indirectly compete with the Company by engaging,
in a competitive capacity, in any business that is engaged in the same
or similar business of the Company, specifically including, but not
limited to, Best Buy Co., Inc.; Dell, Inc; eBay; Wal-Mart Stores;
Xxxxxx.xxx, and any of the related or affiliated entities for each of
the above companies. A business will not be considered to be in
competition with the Company for purposes of this paragraph 8.1(a) or
paragraph 8.1(b) below if:
(i) The business or the operating unit of the business in which
the Executive is employed or with which the Executive is
associated (collectively the "Business Unit") is not engaged
in the retail sales of consumer electronics;
(ii) If sales of the Business Unit's products or services in the
retail sales and service of consumer electronics constitute
less than ten percent (10%) of such Business Unit's sales;
or
(iii) If the sales of the Business Unit in the retail sales and
service of consumer electronics do constitute more than ten
percent (10%) of the sales of the Business Unit, but the
Business Unit solely operates outside of North America.
Notwithstanding the foregoing, nothing herein shall be deemed to
prevent or limit the right of the Executive to invest in the capital
stock or other securities of any corporation whose stock or securities
are regularly traded on any public exchange, nor shall anything herein
contained be deemed to prevent Employee from investing in real estate
for his own benefit (as long as such investment is not related to or
in support of any entity engaged in the same or similar business as
the Company in competition with the Company in one or more
Metropolitan Statistical Areas ("MSAs") in which the Company is doing
business during the Executive's employment).
(b) During the Executive's employment and for a period of one (1) year
following the last day of the Executive's employment, the Executive
shall not directly or indirectly compete with the Company by engaging,
in a competitive capacity, in any business engaged in the same or
similar business of the Company in one or more MSAs where, on the last
day of the Executive's employment, the Company is engaged in real
estate site selection or has taken further steps toward the
commencement of operations in the future, of which the Executive is
aware.
(c) The Executive agrees that competition, as set forth in Article 8.1(a)
above, shall include, but not be limited to, engaging in competitive
activity, as an individual, as a partner, as a joint venturer with any
other person or entity, or as an employee, agent, or representative of
any other person or entity.
(d) It is the specific intent of the parties that the Executive shall be
restricted from competing directly or indirectly with any segment of
the Company's business in which the Executive engaged prior to the
last day of his employment and from any segment of the Company's
business about which the Executive acquired proprietary or
confidential information during the course of his employment.
(e) If any provision of this Article 8.1 relating to the time period,
geographic area or scope of restricted activities shall be declared by
a court of competent jurisdiction to exceed the maximum time period,
geographic area or scope of activities, as applicable, that such court
deems reasonable and enforceable, said time period, geographic area or
scope of activities shall be deemed to be, and thereafter shall
become, the maximum time period, scope of activities or largest
geographic area that such court deems reasonable and enforceable and
this Agreement shall automatically be considered to have been amended
and revised to reflect such determination.
(f) The Executive and the Company have examined in detail this Covenant
Not to Compete and agree that the restraint imposed upon the Executive
is reasonable in light of the legitimate interests of the Company, and
it is not unduly harsh upon the Executive's ability to earn a
livelihood.
8.2. Non-Solicitation of Employees. The Executive agrees that during the
Executive's employment with the Company and for a period of one (1) year
following the last day of the Executive's employment, the Executive shall not,
directly or indirectly, solicit or induce, or attempt to solicit or induce, any
employee of the Company to leave the Company for any reason whatsoever or hire
any individual employed by the Company. For purposes of this Article 8.2,
employee shall mean any individual employed by the Company on the last day of
the Executive's employment or within the three-month period prior to the last
day of the Executive's employment.
8.3. Confidentiality. The Company has advised the Executive and the
Executive acknowledges that it is the policy of the Company to maintain as
secret and confidential all Protected Information (as defined below), and that
Protected Information has been and will be developed at substantial cost and
effort to the Company. The Executive agrees to hold in strict confidence and
safeguard any information of or about the Company gained by the Executive in any
manner or from any source during the Executive's employment. The Executive shall
not, without the prior written consent of the Company, at any time, directly or
indirectly, divulge, furnish, use, disclose or make accessible to any person,
firm, corporation, association, or other entity (otherwise than as may be
required in the regular course of the Executive's employment), either during the
Executive's employment with the Company or subsequent to the last day of the
Executive's employment, any Protected Information, or cause any such information
of the Company to enter the public domain.
The Executive understands and agrees that any information, data and/or
trade secrets about Company or its suppliers and/or distributors is the property
of the Company and is essential to the protection of the Company's goodwill and
to the maintenance of the Company's competitive position and accordingly should
be kept secret. For purposes of this Agreement, "Protected Information" means
trade secrets, confidential and proprietary business information of or about the
Company, and any other information of the Company, including, customer lists
(including potential customers), sources of supply, processes, plans, materials,
pricing information, internal memoranda, marketing plans, promotional plans,
internal policies, research, purchasing, accounting and financial information,
computer programs, hardware, software, and products and services which may be
developed from time to time by the Company and its agents or employees,
including the Executive; provided, however, that information that is in the
public domain (other than as a result of a breach of this Agreement), approved
for release by the Company or lawfully obtained from third parties who are not
bound by a confidentiality agreement with the Company, is not Protected
Information.
Nothing contained in this Article is intended to reduce in any way
protection available to the Company pursuant to the Uniform Trade Secrets Act as
adopted in the Commonwealth of Virginia or any other state or other applicable
laws which prohibit the misuse or disclosure of confidential or proprietary
information.
8.4. Acknowledgement of Covenants. The parties hereto acknowledge that the
Executive's services are of a special, extraordinary, and intellectual character
which gives him unique value, and that the business of the Company and its
subsidiaries is highly competitive, and that violation of any of the covenants
provided in this Article 8 would cause immediate, immeasurable, and irreparable
harm, loss, and damage to the Company not adequately compensable by a monetary
award. The Executive acknowledges that the time, scope of activities and
geographical area restrained by the provisions of this Article 8 are reasonable
and do not impose a greater restraint than is necessary to protect the goodwill
of the Company's business. The Executive further acknowledges that he and the
Company have negotiated and bargained for the terms of this Agreement and that
the Executive has received adequate consideration for entering into this
Agreement. In the event of any such breach or threatened breach by the Executive
of any one or more of such covenants, the Company shall be entitled to such
equitable and injunctive relief as may be available to restrain the Executive
from violating the provisions hereof. Nothing herein shall be construed as
prohibiting the Company from pursuing any other remedies available at law or in
equity for such breach or threatened breach, including the recovery of damages
and the immediate termination of the employment of the Executive hereunder for
cause.
Article 9. Change in Control
9.1. Change in Control. This Article 9 shall not become effective, and the
Company shall have no obligation hereunder, if the employment of the Executive
with the Company shall terminate prior to a Change in Control (as defined in
Article 9.2 below) of the Company.
9.2. Definition of Change in Control. Change in Control of the Company
means, and shall be deemed to have occurred, upon the first to occur of any of
the following events:
(a) The acquisition by any individual, entity, or group (a "Person"),
including a "person" within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), but excluding an Affiliate (as defined below) of the
Company, of beneficial ownership within the meaning of Rule 13d-3
promulgated under the Exchange Act, of thirty-five percent (35%) or
more of either: (i) the then outstanding shares of common stock of
Circuit City (the "Outstanding Common Stock"); or (ii) the combined
voting power of the then outstanding securities of the Company
entitled to vote generally in the election of directors (the
"Outstanding Voting Securities"); excluding, however, the following:
(A) any acquisition directly from the Company (excluding an
acquisition resulting from the exercise of an option, conversion
right, or exchange privilege unless the security being so exercised,
converted or exchanged was acquired directly from the Company); (B)
any acquisition by the Company; (C) any acquisition by an employee
benefit plan (or related trust) sponsored or maintained by the Company
or any corporation controlled by the Company; or (D) any acquisition
by any corporation pursuant to a transaction which complies with
clauses (i), (ii), and (iii) of subsection (c) of this Article 9.2;
(b) Individuals who, as of the Effective Date, constitute the Board of
Directors (the "Incumbent Board") cease for any reason to constitute
at least a majority of such Board; provided that any individual who
becomes a director of the Company subsequent to the Effective Date,
whose election, or nomination for election by the Company's
stockholders, was approved by the vote of at least a majority of the
directors then comprising the Incumbent Board shall be deemed a member
of the Incumbent Board; and provided further, that any individual who
was initially elected as a director of the Company as a result of an
actual or threatened election contest, as such terms are used in Rule
14a-11 of Regulation 14A promulgated under the Exchange Act, or any
other actual or threatened solicitation of proxies or consents by or
on behalf of any Person other than the Board shall not be deemed a
member of the Incumbent Board;
(c) The consummation of a reorganization, merger or consolidation of the
Company or sale or other disposition of all or substantially all of
the assets of the Company (a "Corporate Transaction"); excluding,
however, a Corporate Transaction pursuant to which: (i) all or
substantially all of the individuals or entities who are the
beneficial owners, respectively, of the Outstanding Common Stock and
the Outstanding Voting Securities immediately prior to such Corporate
Transaction will beneficially own, directly or indirectly, more than
sixty percent (60%) of, respectively, the outstanding shares of common
stock, and the combined voting power of the outstanding securities of
such corporation entitled to vote generally in the election of
directors, as the case may be, of the corporation resulting from such
Corporate Transaction (including, without limitation, a corporation,
which as a result of such transaction owns the Company or all or
substantially all of the Company's assets either directly or
indirectly) in substantially the same proportions relative to each
other as their ownership, immediately prior to such Corporate
Transaction, of the Outstanding Common Stock and the Outstanding
Voting Securities, as the case may be; (ii) no Person (other than: the
Company; any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the
Company; the corporation resulting from such Corporate Transaction;
and any Person which beneficially owned, immediately prior to such
Corporate Transaction, directly or indirectly, twenty-five percent
(25%) or more of the Outstanding Common Stock or the Outstanding
Voting Securities, as the case may be) will beneficially own, directly
or indirectly, twenty-five percent (25%) or more of, respectively, the
outstanding shares of common stock of the corporation resulting from
such Corporate Transaction or the combined voting power of the
outstanding securities of such corporation entitled to vote generally
in the election of directors; and (iii) individuals who were members
of the Incumbent Board will constitute at least a majority of the
members of the board of directors of the corporation resulting from
such Corporate Transaction; or
(d) The consummation of a plan of complete liquidation, dissolution, or
sale of substantially all the assets of the Company.
For purposes of this Article 9, "Affiliate" shall mean with reference to a
specified Person, any Person that directly or indirectly through one (1) or more
intermediaries controls or is controlled by or is under common control with the
specified Person. For purposes of this definition, "control" (including, with
correlative meaning, the terms "controlled by" and "under common control with"),
as used in respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of management and
policies of such Person, whether through ownership of voting securities or by
contract or otherwise.
9.3. Change-in-Control Severance Benefits. If at any time during the Term
of this Agreement there is a Change in Control of the Company and the
Executive's employment is terminated for any reason other than death,
Disability, Retirement, Voluntary Termination other than Good Reason or Cause
within the one (1) year period following the Change in Control or the Executive
voluntarily terminates for any reason in the thirteenth month following a Change
in Control of the Company, the Company shall provide to the Executive the
following:
(a) Base Salary and all other benefits due him as if he had remained an
employee pursuant to Article 5 through the remainder of the month in
which the termination occurs, less applicable withholding taxes and
other authorized payroll deductions;
(b) A lump-sum severance allowance in an amount that is equal to the
product of two (2) times both the Executive's Base Salary at the rate
in effect immediately prior to the termination and the Executive's
target Annual Incentive established for the fiscal year in which the
Executive's termination of employment occurs;
(c) Continuation at the same cost to the Executive as existed as of the
Effective Date of Termination of Agreement of all health, welfare, and
benefit plan participation for two (2) full years following employment
termination;
(d) Provision of outplacement services for the Executive for six (6)
months;
(e) A lump-sum payment equal to the two (2) year cost of perquisites
outlined in Article 5.6 above; and
(f) Any unvested stock options or any outstanding restricted stock,
excluding restricted stock grants issued under a performance based
plan, that would become vested (that is, transferable and
non-forfeitable) if the Executive remained an employee through the
Initial Term or the then current Renewal Period of this Agreement will
become vested as of the date of the Executive's termination of
employment. The Executive must satisfy the tax withholding
requirements.
9.4. Excise Tax Equalization Payment. In the event that the Executive
becomes entitled to severance benefits under this Agreement or any other
agreement with or plan of the Company (in the aggregate, the "Total Payments"),
if any of the Total Payments will be subject to the tax (the "Excise Tax")
imposed by Section 4999 of the Code or any similar excise tax that may hereafter
be imposed), the Company shall pay to the Executive in cash an additional amount
(the "Gross-Up Payment"), such that the net amount retained by the Executive
after deduction of any Excise Tax upon the Total Payments and any federal,
state, and local income tax and Excise Tax upon the Gross-Up Payment provided
for by this Article 9.4 (including FICA and FUTA), shall be equal to the Total
Payments. The Company shall make such payment to the Executive as soon as
practicable following the Effective Date of Termination, but in no event beyond
thirty (30) days from such date.
For purposes of determining the amount of the Gross-Up Payment, the
Executive shall be deemed to pay federal income taxes at the highest marginal
rate of federal income taxation in the calendar year in which the Gross-Up
Payment is to be made, and state and local income taxes at the highest marginal
rate of taxation in the state and locality of the Executive's residence on the
Effective Date of Termination, net of the maximum reduction in federal income
taxes which could be obtained from deduction of such state and local taxes.
The Company's Compensation and Personnel Committee shall determine, based
upon the advice of the Company's independent certified public accountants,
whether any payments or benefits hereunder are subject to the Excise Tax.
9.5. Subsequent Recalculation. In the event the Internal Revenue Service
adjusts the computation of the Company under Article 9.4 herein so that the
Executive did not receive the greatest net benefit, the Company shall reimburse
the Executive for the full amount necessary to make the Executive whole, plus a
market rate of interest, as determined by the Compensation and Personnel
Committee.
9.6. Limit on Change-in-Control Severance Benefits. Notwithstanding
anything in this agreement to the contrary, the value of change-in-control
severance benefits payable under this agreement, determined as set forth below,
may not exceed 2.99 times the sum of the Executive's Base Salary plus the most
recent bonus paid to the Executive (or, if no bonus has been paid to the
Executive in the Executive's current position, the Executive's target bonus).
This limit shall apply to lump sum severance payments, periodic cash payments,
consulting fees (other than fees paid on an hourly or per diem basis for work
actually performed), the value of post-termination employee benefit plan and
fringe benefit continuation and additional service credit under the Company's
defined benefit pension plan. The value of accelerated vesting of stock options
and other long-term incentive awards is not subject to the limit, nor is
accelerated payment of an amount that would otherwise be due to the Executive at
a later date. Excise tax equalization payments, as provided under Article 9.4
will continue to apply in these situations and may cause the total benefits paid
to the Executive to exceed the 2.99 limit.
Article 10. Assignment
10.1. Assignment by Company, This Agreement may and shall be assigned or
transferred to, and shall be binding upon and shall inure to the benefit of, any
successor of the Company, and any such successor shall be deemed substituted for
all purposes of the "Company" under the terms of this Agreement. As used in this
Agreement, the term "successor" shall mean any person, firm, corporation, or
business entity which, at any time, whether by merger, purchase, or otherwise,
acquires all or substantially all of the assets or the business of the Company.
In addition, the obligations of the Executive under Articles 8 and 12 of this
Agreement shall continue after the termination of the Executive's employment and
shall be binding on the Executive's heirs, executors, legal representatives and
assigns.
Failure of the Company to obtain the agreement of any successor to be bound
by the terms of this Agreement prior to the effectiveness of any such succession
shall be a breach of this Agreement, and shall immediately entitle the Executive
to compensation from the Company in the same amount and on the same terms as the
Executive would be entitled in the event of a Termination of Employment for Good
Reason as provided by Article 7.6. Except as provided herein, the Company may
not otherwise assign this Agreement.
10.2. Assignment by Executive. The services to be provided by the Executive
to the Company hereunder are personal to the Executive, and the Executive's
duties may not be assigned by the Executive; provided, however, that this
Agreement shall inure to the benefit of and be enforceable by the Executive's
personal or legal representatives, executors, and administrators, successors,
heirs, distributees, devisees, and legatees. If the Executive dies while any
amounts payable to the Executive hereunder remain outstanding, all such amounts,
unless otherwise provided herein, shall be paid in accordance with the terms of
this Agreement to the Executive's devisee, legatee, or other designee or, in the
absence of such designee, to the Executive's estate.
Article 11. Dispute Resolution and Notice
11.1. Issue Resolution. Except for actions initiated by the Company to
enjoin a breach by, and/or recover damages from the Executive related to
violation of any of the restrictive covenants in Article 8 of this Agreement,
which Company may bring in an appropriate court of law or equity, any
disagreement between the Executive and the Company concerning anything covered
by this Agreement or concerning other terms or conditions of the Executive's
employment or the termination of the Executive's employment will be settled by
final and binding arbitration pursuant to the Company's Associate Issue
Resolution Program. The Dispute Resolution Agreement and the Dispute Resolution
Rules and Procedures are incorporated herein by reference as if set forth in
full in this Agreement. The decision of the arbitrator will be final and binding
on both the Executive and the Company and may be enforced in a court of
appropriate jurisdiction.
11.2. Notice. Any notices, requests, demands, or other communications
provided for by this Agreement shall be sufficient if in writing, and if sent by
registered or certified mail to the Executive at the last address he has filed
in writing with the Company or, in the case of the Company, at its principal
offices.
Article 12. Miscellaneous
12.1. Entire Agreement. This Agreement supersedes any prior agreements or
understandings, oral or written, between the parties hereto, with respect to the
subject matter hereof, and constitutes the entire agreement of the parties with
respect thereto. Without limiting the generality of the foregoing sentence, this
Agreement completely supersedes any and all prior employment agreements entered
into by and between the Company, and the Executive, and all amendments thereto,
in their entirety.
12.2. Return of Materials. Upon the termination of the Executive's
employment with the Company, however such termination is effected, the Executive
shall promptly deliver to Company all property, records, materials, documents,
and copies of documents concerning the Executive's business and/or its customers
(hereinafter collectively "Company Materials") which the Executive has in his
possession or under his control at the time of termination of his employment.
The Executive further agrees not to take or extract any portion of Company
Materials in written, computer, electronic or any other reproducible form
without the prior written consent of the Executive's immediate manager.
12.3. Modification. This Agreement shall not be varied, altered, modified,
canceled, changed, or in any way amended except by mutual agreement of the
parties in a written instrument executed by the parties hereto or their legal
representatives. It is the intention of the parties that this Agreement may be
modified to ensure that this Agreement is in compliance with all federal laws
and regulations, including but not limited to, Internal Revenue Code Section
409A and regulations thereunder.
12.4. Severability. It is the intention of the parties that the provisions
of the restrictive covenants herein shall be enforceable to the fullest extent
permissible under the applicable law. If any clause or provision of this
Agreement is held to be illegal, invalid, or unenforceable under present or
future laws effective during the term hereof, then the remainder of this
Agreement shall not be affected thereby, and in lieu of each clause or provision
of this Agreement which is illegal, invalid or unenforceable, there shall be
added, as a part of this Agreement, a clause or provision as similar in terms to
such illegal, invalid or unenforceable clause or provision as may be possible
and as may be legal, valid, and enforceable.
12.5. Counterparts. This Agreement may be executed in one (1) or more
counterparts, each of which shall be deemed to be an original, but all of which
together will constitute one and the same Agreement.
12.6. Tax Withholding. The Company may withhold from any benefits payable
under this Agreement all federal, state, city, or other taxes as may be required
pursuant to any law or governmental regulation or ruling.
12.7. Restrictive Covenants of the Essence. The restrictive covenants of
the Executive set forth herein are of the essence of this Agreement; they shall
be construed as independent of any other provision in this Agreement; and the
existence of any claim or cause of action of the Executive against the Company,
whether predicated on this Agreement or not, shall not constitute a defense to
the enforcement by the Company of the restrictive covenants contained herein.
The Company shall at all times maintain the right to seek enforcement of these
provisions whether or not the Company has previously refrained from seeking
enforcement of any such provision as to the Executive or any other individual
who has signed an agreement with similar provisions.
12.8 Beneficiaries. The Executive may designate one (1) or more persons or
entities as the primary and/or contingent beneficiaries of any amounts to be
received under this Agreement. Such designation must be in the form of a signed
writing acceptable to the Executive's immediate manager. The Executive may make
or change such designation at any time.
12.9. Payment Obligation Absolute. The Company's obligation to make the
payments and the arrangement provided for herein shall be absolute and
unconditional, and shall not be affected by any circumstances, including,
without limitation, any offset, counterclaim, recoupment, defense, or other
right which the Company may have against the Executive or anyone else. All
amounts payable by the Company hereunder shall be paid without notice or demand.
Each and every payment made hereunder by the Company shall be final, and the
Company shall not seek to recover all or any part of such payment from the
Executive or from whomsoever may be entitled thereto, for any reasons
whatsoever.
The Executive shall not be obligated to seek other employment in mitigation
of the amounts payable or arrangements made under any provision of this
Agreement, and the obtaining of any such other employment shall in no event
effect any reduction of the Company's obligations to make the payments and
arrangements required to be made under this Agreement; provided, however, that
continued health, welfare, and benefit plan participation pursuant to Article
7.4 or Article 9.3 herein shall be discontinued in the event the Executive
becomes eligible to receive substantially similar benefits from a successor
employer.
12.10. Contractual Rights to Benefits. This Agreement establishes and vests
in the Executive a contractual right to the benefits to which he is entitled
hereunder. However, nothing herein contained shall require or be deemed to
require, or prohibit or be deemed to prohibit, the Company to segregate,
earmark, or otherwise set aside any funds or other assets, in trust or
otherwise, to provide for any payments to be made or required hereunder.
Article 13. Governing Law
To the extent not preempted by federal law, the provisions of this
Agreement shall be construed and enforced in accordance with the laws of the
Commonwealth of Virginia, without reference to Virginia's choice of law statutes
or decisions.
IN WITNESS WHEREOF, the Executive and the Company have executed this
Agreement as of the Effective Date.
CIRCUIT CITY STORES, INC.
By: /s/ Xxxx X. Xxxxx, Xx.
--------------------------------------------------
Xxxx X. Xxxxx, Xx.
Senior Vice Vice Chairman, Human Resources
EXECUTIVE:
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
SSN: ___-____-____
