EXHIBIT 10.17
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT is made effective as
of June 1, 1995, by and between Xxxx Stores, Inc. (the "Company") and
Xxxxxx X. Xxxxxx (the "Executive"). The Executive is presently employed
by the Company as its Chairman of the Board and Chief Executive Officer
pursuant to an employment contract of June 8, 1994, as amended on March
16, 1995 (the "Prior Contract"), and it is now the intention of the
Company and the Executive to enter into a new employment agreement and
to terminate the Prior Contract. Accordingly, the Company and the
Executive hereby terminate the Prior Contract and enter into this
Agreement.
1. Term. Subject to paragraph 3, the employment of the Executive
by the Company will continue as of the date hereof and end on
February 3, 1997, unless extended or terminated in accordance with this
Agreement. During August 1996, and during August every year thereafter
for so long as the Executive is employed by the Company, upon the
written request of the Executive the Board of Directors of the Company
(the "Board") shall consider extending the Executive's employment with
the Company. Such request must be delivered to the Chairman of the
Compensation Committee no later than the July 31st which precedes the
August in which the requested extension will be considered. The Board
shall advise the Executive, in writing, on or before the September 1st
following its consideration of the Executive's written request, whether
it approves of such extension. The failure of the Board to provide such
written advice shall constitute approval of the Executive's request for
extension. If the Executive's request for an extension is approved,
this Agreement shall be extended one additional year.
2. Position and Duties. Subject to paragraph 3, the Executive
shall continue to serve as the Chairman of the Board and Chief Executive
Officer of the Company with overall responsibility for the Company's
corporate policy-making and the accomplishment of its plans and
objectives until February 3, 1997, all on a mutually-agreeable work
schedule (which after January 31, 1995, has been reduced from the
Executive's prior level of time commitment). The Executive shall
report directly to the Company's Board and shall himself be a member of
such Board. The Executive shall devote substantially all of his working
time and efforts to the business and affairs of the Company while acting
as Chief Executive Officer. During the term of his employment, the
Executive may engage in outside activities provided those activities do
not detract from his duties and responsibilities hereunder, and provided
further that the Executive gives written notice to the Board of any
significant outside business activity in which he plans to become
involved, whether or not such activity is pursued for profit. The
Executive may not render services to any business competitive with any
existing business of the Company.
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3. Consulting Relationship. During the period (a) commencing on
the earlier of (i) February 4, 1997 or (ii) the effective date that the
Executive terminates his employment with the Company pursuant to
subsection 8e.(iii) and (b) ending on January 31, 1998 (the "Consultancy
Termination Date"), the Executive shall cease to be employed by and
shall be retained as a consultant to the Company and shall be available
to spend an average of between two and three days a week (at times
reasonably convenient to the Executive and the Company) performing such
consulting services as shall be reasonably requested by the Chief
Executive Officer of the Company. The foregoing notwithstanding, if the
Executive's employment with the Company is extended one additional year
pursuant to paragraph 1, then the Executive's retention as a consultant
shall commence on the expiration of his extended employment and the
Consultancy Termination Date shall be twelve months after such
retention.
4. Place of Performance. The Executive shall be employed or
retained as a consultant at the principal executive or operational
offices of the Company (or, at the option of the Company while the
Executive is retained as a consultant, at separate offices maintained at
the expense of the Company) in the San Francisco Bay Area. The
Executive's travel schedule will be substantially consistent with the
Executive's present business travel obligations during his employment
and will be limited to four business trips during his consultancy.
Nothing herein shall preclude the Executive from rendering consulting
services from his home office.
5. Compensation, Consulting Fees and Related Matters.
a. Salary and Consulting Fees.
(i) During his employment, the Company shall pay the
Executive a salary of not less than $542,000 per annum; provided,
however, for the fiscal year beginning February 4, 1996, the Executive
shall be paid a salary of not less than $750,000 per annum.
(ii) Upon the commencement of his consultancy with the
Company and until the Consultancy Termination Date, the Executive shall
be paid a consulting fee of $62,500 per month; provided however, if the
consultancy commences prior to February 4, 1996, then the consulting fee
shall be $45,167 per month until such date. At the election of the
Executive, such consulting services may be performed by a corporation
wholly owned and controlled by the Executive (a "Controlled
Corporation"), in which event all consulting fees shall be payable to
the Controlled Corporation. The foregoing notwithstanding, the
consulting fees payable to the Executive or a Controlled Corporation
shall be increased to provide that the Executive receives the same net
after tax amounts he received as an employee of the Company. In other
words, the consulting fees payable to the Executive or a Controlled
Corporation shall be adjusted to take into account additional employment
or other tax liability, if any, that the Executive or Controlled
Corporation may incur as a result of being a consultant to, rather than
an employee of, the Company.
(iii) The Executive's salary shall be payable in
equal installments in accordance with the Company's normal payroll
practices applicable to senior officers. Consulting fees
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shall be payable to the Executive as mutually agreed upon between the
Executive and the Company upon the Executive's submission of appropriate
invoices.
b. Bonus. During his employment or consultancy, the
Company shall continue to pay the Executive an annual bonus in
accordance with the terms of the existing bonus incentive plan that
covers the Executive (or any replacement or new plan of substantially
equivalent or greater value that may subsequently be established and in
effect at the time for such action). The preceding sentence
notwithstanding, each such bonus shall be in an amount equal to the
greater of (A) the bonus attributable to 1995 or (B) the bonus
attributable to the year prior to the termination of the Executive's
employment or consultancy or (C) the bonus that the Executive would have
earned under the Company's bonus plan in the year that he was terminated
had he remained in its employment or as a consultant to the Company;
provided, however, that such post-termination bonuses shall not be paid
until due under the Company's present bonus plan.
c. Expenses. During his employment or consultancy, the
Executive shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by him in performing services hereunder,
including all reasonable expenses of travel and living while away from
home, provided that such expenses are incurred and accounted for in
accordance with the policies and procedures established by the Company.
d. Other Benefits.
(i) Except as hereafter noted, during his employment and
consultancy, the Executive shall be entitled to continue to participate
in all of the Company's employee benefit plans and arrangements in
effect on the date hereof in which the Executive now participates
(including without limitation each pension and retirement plan and
arrangement, supplemental pension and retirement plan, deferred
compensation plan, short-term and long-term incentive plan, stock option
plan, life insurance and health-and-accident plan and arrangement,
medical insurance plan, physical examination program, dental care plan,
accidental death and disability plan, survivor income plan, relocation
plan, financial, tax and legal counseling programs, and vacation plan).
The Company shall not make any changes in such plans or arrangements
which would adversely affect the Executive's rights or benefits
thereunder, unless such change occurs pursuant to a program applicable
to all senior executives of the Company and does not result in a
proportionately greater reduction in the rights of, or benefits to, the
Executive as compared with any other senior executive of the Company.
The Executive shall be entitled to participate in or receive benefits
under any employee benefit plan or arrangement made available by the
Company in the future to its executives and key management employees,
subject to, and on a basis consistent with, the terms, conditions and
overall administration of such plans and arrangements. Except as
otherwise specifically provided herein, nothing paid to the Executive
under any plan or arrangement presently in effect or made available in
the future shall be in lieu of the salary and consulting fee or bonus
payable under subsections (a) and (b).
(ii) If, as a result of the Company's retention of the
Executive as a consultant, the Executive shall be ineligible to
participate in any of the Company's employee benefit plans and
arrangements in effect on the date hereof in which the Executive now
participates, then the
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consulting fees payable to the Executive pursuant to paragraph 5(a)
shall be appropriately increased to enable the Executive to procure (to
the extent available) such benefits at no additional after tax cost to
the Executive.
(iii) The foregoing notwithstanding, during the
period of his consultancy the Executive shall not participate in any new
awards under the Company's stock option, stock purchase and restricted
stock plans.
(iv) Upon the termination of the Executive's employment
with the Company (other than for death), during the remainder of his
life, the Executive and all members of his immediate family shall be
entitled to employee discount cards
e. Vacations. The Executive shall be entitled to the number
of vacation days in each calendar year, and to compensation in respect
of earned but unused vacation days, determined in accordance with the
Company's vacation plan. The Executive shall also be entitled to all
paid holidays given by the Company to its executives. Unused vacation
days shall not be forfeited once they have been earned and, if still
unused at the time of the Executive's termination of employment with the
Company, shall be promptly paid to the Executive at their then current
value, based on the Executive's rate of pay at the time of his
termination of employment. It is agreed between the parties that the
Executive intends to spend up to ten weeks on vacation during the summer
of 1997 but shall nevertheless be available to provide an average of
between two and three days of consultancy to the Company (less normal
vacation time) during the consultancy period.
f. Services Furnished. As contemplated in paragraph 4,
during his employment or consultancy, the Company shall furnish the
Executive, at the Company's expense, with office space (comparable to
his current office) and such services as are suitable to the Executive's
position and adequate for the performance of his duties, including the
services of his present secretary to the extent that she is able and
willing to provide such services.
6. Offices. For so long as the Executive holds the office of
Chief Executive Officer of the Company and, at the option of the
Executive while a consultant to the Company, the Executive agrees to
serve, if elected or appointed thereto, as a director of the Company and
any of its subsidiaries and in one or more executive offices of any of
the Company's subsidiaries, provided that the Executive is indemnified
for serving in any and all such capacities on a basis no less favorable
than is currently provided by the Company's by-laws and applicable state
law.
7. Confidential Information.
a. The Executive agrees not to disclose, either while in the
Company's employ or retained as a consultant or at any time thereafter,
to any person not employed by the Company, or not engaged to render
services to the Company, any confidential information obtained while in
the employ of or acting as a consultant to the Company, including,
without limitation, any of the Company's inventions, processes, methods
of distribution or customers or trade secrets; provided, however, that
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this provision shall not preclude the Executive from use or disclosure
of information known generally to the public or from disclosure required
by law or court order.
b. The Executive agrees that upon leaving the Company's
employ or consultancy he will make himself reasonably available to
answer questions from Company officers regarding his former duties and
responsibilities and the knowledge he obtained in connection therewith.
In addition, he will not take with him, without the prior written
consent of any officer authorized to act in the matter by the Board, any
study, memoranda, drawing, blueprint, specification or other document of
the Company, its subsidiaries, affiliates and divisions, which is of a
confidential nature relating to the Company, its subsidiaries,
affiliates and divisions.
8. Termination. The Executive's employment or consultancy may be
terminated during the term of this Agreement only as follows:
a. Death. The Executive's employment or consultancy shall
terminate upon his death.
b. Disability. If, as a result of the Executive's
incapacity due to physical or mental illness, the Executive shall have
been absent from his duties hereunder on a full-time basis for the
entire period of six consecutive months, and within thirty days after
written notice of termination is given by the Company or the Executive
(which may occur before or after the end of such six-month period), the
Executive shall not have returned to the performance of his duties
hereunder on a full-time basis, the Executive's employment or
consultancy shall terminate. A termination of employment or consultancy
pursuant to this paragraph 8(b) shall be deemed an involuntary
termination for purposes of this Agreement or any plan or practice of
the Company.
c. Cause. The Company may terminate the Executive's
employment or consultancy for Cause. The Company shall have "Cause" to
terminate the Executive's employment or consultancy upon (A) the
continued failure by the Executive to substantially perform his duties
hereunder (other than a failure resulting from a disability as defined
in subsection (b)) after written notice is delivered by the Company that
specifically identifies the manner in which the Executive has not
substantially performed his duties, or (B) the engaging by the Executive
in knowing, illegal or grossly negligent conduct which is materially
injurious to the Company monetarily or otherwise.
d. Without Cause. The Company may terminate the Executive's
employment or consultancy at any time without cause. A termination
"without cause" is a termination of the Executive's employment or
consultancy by the Company for any reason other than those set forth in
subsections (a)[Death], (b)[Disability] or (c)[For Cause] of this
paragraph.
e. Termination by the Executive for Good Reason. The
Executive may terminate his employment [subparagraph (iii) only] or
consultancy with the Company for Good Reason which shall be deemed to
occur if he terminates his employment or consultancy within six months
after (i) written notice of a failure by the Company to comply with any
material provision of this Agreement, which failure has not been cured
within ten days after such written notice of noncompliance has been
given by the Executive to the Company, (ii) a significant diminishment
in the nature or scope of the
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authority, power, function or duty attached to the position which the
Executive currently maintains or maintains as a consultant without the
express written consent of the Executive or (iii) upon the election by
the Board of Directors of the Company of the Executive's successor as
Chief Executive Officer of the Company.
f. Termination Following Change of Control. The Executive
may terminate his employment or consultancy with the Company within six
months after a Change of Control, which shall be deemed to have occurred
in the event of: (i) the direct or indirect sale or exchange by the
stockholders of the Company of all or substantially all of the stock of
the Company, in a single or series of related transactions, after which
sale or exchange the stockholders of the Company immediately prior to
such transaction(s) do not retain, directly or indirectly, at least a
majority of the beneficial interest in the voting stock of the Company;
(ii) a merger in which the Company is a party after which merger the
stockholders of the Company do not retain, directly or indirectly, at
least a majority of the beneficial interest in the voting stock of the
surviving company; or (iii) the sale, exchange, or transfer of all or
substantially all of the Company's assets (other than a sale, exchange,
or transfer to one or more corporations where the stockholders of the
Company before such sale, exchange, or transfer retain, directly or
indirectly, at least a majority of the beneficial interest in the voting
stock of the corporation(s) to which the assets were transferred).
Provided, however, that the Executive shall not be entitled to terminate
his employment or consultancy under this subsection in the event that
the purchaser of the Company, or any successor by merger, consolidation
or otherwise, or the entity to which all or a significant portion of the
Company's assets have been transferred, shall have expressly assumed in
writing all duties and obligations of the Company under this Agreement.
g. Voluntary Termination. The Executive may voluntarily
terminate his employment or consultancy with the Company at any time. A
termination of employment or consultancy by the Executive pursuant to
paragraph 8(e)[For Good Reason] or (f)[Change of Control] shall not be
deemed a voluntary termination by the Executive for purposes of this
Agreement or any plan or practice of the Company but shall be deemed an
involuntary termination.
h. Non-Renewal. If the Executive fails to request an
extension of this Agreement in accordance with paragraph 1, or if the
Board shall fail to approve such request, the Executive's employment
with the Company shall terminate on February 3, 1997, or on such earlier
date as is contemplated in paragraph 3 and this Agreement shall
automatically expire on the Consultancy Termination Date. If the
Executive's employment is extended in accordance with paragraph 1, then
the expiration of such employment and this Agreement shall be extended
appropriately. Any such expiration shall not entitle the Executive to
any compensation or benefits except as earned by the Executive through
the date of expiration of this Agreement. The parties shall have no
further obligations to each other thereafter except as set forth in
paragraphs 7, 10(f) and 13.
9. Notice and Effective Date of Termination.
a. Notice. Any termination of the Executive's employment or
consultancy by the Company or by the Executive during the term of this
Agreement (other than as a result of death or as a result of the
expiration of this Agreement) shall be communicated by written notice of
termination to
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the other party hereto. Such notice shall indicate the specific
termination provision in this Agreement relied upon and shall set forth
in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment or consultancy under
that provision.
b. Date of Termination. The date of termination shall be:
(i) if the Executive's employment or consultancy is
terminated by his death, the date of his death;
(ii) if the Executive's employment or consultancy is
terminated pursuant to paragraph 8(b)[Disability], the date of
termination shall be the 31st day following delivery of the notice of
termination;
(iii) if the Executive's employment or consultancy is
terminated for any other reason by either party, the date on which a
notice of termination is delivered to the other party; and
(iv) if the Agreement expires pursuant to paragraph
8(h)[Non-Renewal], the date of termination shall be the Consultancy
Termination Date.
10. Compensation and Benefits Upon Termination.
a. Disability, Without Cause or For Good Reason. If the
Executive's employment or consultancy terminates pursuant to paragraph
8(b)[Disability], (d)[Without Cause] or (e)[For Good Reason], the
Company shall:
(i) Salary: continue to pay the Executive his then-
current salary and/or consulting fee through the Consultancy Termination
Date;
(ii) Bonus: continue to pay the Executive an annual
bonus(es) through the Consultancy Termination Date; each such bonus
shall be in an amount equal to the greater of (A) the bonus
attributable to 1995 or (B) the bonus attributable to the year prior to
his termination or (C) the bonus that the Executive would have earned
under the Company's bonus plan in the year that he was terminated had he
remained in its employment or as a consultant; provided, however, that
such post-termination bonuses shall not be paid until due under the
Company's present bonus plan;
(iii) Stock Options: with respect to any stock
options granted to the Executive by the Company, the Executive shall
immediately become vested in any unvested stock options upon such
termination; and
(iv) Restricted Stock: with respect to any restricted
stock granted to the Executive by the Company which has not become
vested as of such termination, the Executive shall immediately become
vested in a pro rata portion of such unvested stock in accordance with
the terms of the applicable stock grant agreements. The foregoing
notwithstanding, in the event that the
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Executive's employment is terminated by the Executive pursuant to
subparagraph 8(e)(iii), then any restricted stock granted to the
Executive shall become fully vested as of the date of such termination.
The Company shall have no further obligations to the Executive as a
result of such termination except as set forth in paragraphs 10(f) and
13.
b. For Cause. If the Executive's employment or consultancy
is terminated for cause as defined in paragraph 8(c)(A)[Failure to
Perform], the Executive shall receive the post-termination compensation
and benefits described in paragraph 10(a)[Compensation and Benefits Upon
Disability, Termination Without Cause or For Good Reason]. If the
Executive's employment is terminated for cause as defined in paragraph
8(c)(B)[Materially Injurious Conduct], he shall only receive the post-
termination compensation and benefits described in paragraph
10(d)[Compensation and Benefits Upon Voluntary Termination].
c. Change of Control. Upon a Change of Control (whether or
not the Executive's employment terminates), the Executive shall
immediately become vested in any shares of restricted stock granted to
the Executive by the Company which had not vested prior to the Change of
Control in accordance with the terms of the applicable stock grant
agreements. In addition, if the Executive's employment or consultancy
terminates pursuant to paragraph 8(f)[Change of Control], the Company
shall:
(i) Salary/Consulting Fee: continue to pay the
Executive (or his designee or estate) his then-current salary and/or
consulting fee through the Consultancy Termination Date;
(ii) Bonus: continue to pay the Executive (or his
designee or estate) his annual bonus(es) through the Consultancy
Termination Date; each such bonus shall be in an amount equal to the
greater of (A) the bonus attributable to 1995 or (B) the bonus
attributable to the year prior to his termination or (C) the bonus that
the Executive would have earned under the Company's bonus plan in the
year that he was terminated had he remained in its employment or as a
consultant; provided, however, that such post-termination bonuses shall
not be paid until due under the Company's present bonus plan; and
(iii) Stock Options: with respect to any stock
options granted to the Executive by the Company, the Executive shall
immediately become vested in any unvested stock options upon such
termination.
The Company shall reimburse the Executive for (a) any excise taxes paid
by the Executive pursuant to Internal Revenue Code section 4999 as a
result of any "excess parachute payments" that he receives from the
Company as determined under section 280G of said Code and (b) any
similar California state taxes paid by the Executive. This
reimbursement shall not include any additional amount to cover the
Executive's income or other taxes on such reimbursement. The Company
shall have no further obligations to the Executive as a result of such
termination, except as set forth in paragraphs 10(f) and 13.
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d. Death or Voluntary Termination. If the Executive's
employment or consultancy terminates pursuant to paragraph 8(a)[Death]
or 8(g)[Voluntary Termination], he (or his designee or his estate) shall
be paid his salary or consulting fee through his termination date and
not thereafter. He (or his designee or his estate) shall not be
entitled to any bonus payments that were not fully earned prior to his
termination date, and he (or his designee or his estate) shall not be
entitled to any pro-rated bonus payment for the year in which his
employment or consultancy terminates. Any stock options granted to the
Executive by the Company will continue to vest only through the date on
which his employment terminates [provided, however, that if the
Executive's employment terminates as a result of his voluntary
termination (but not as a result of his death) within six months after a
Change of Control, the Executive shall immediately become fully-vested
in any unvested stock options previously granted to him by the Company]
and any restricted stock that was granted to the Executive by the
Company which is unvested as of the date on which his employment
terminates will automatically be reacquired by the Company and the
Executive (or his designee or his estate) shall have no further rights
with respect to such restricted stock. The Company shall have no
further obligations to the Executive as a result of the termination of
his employment or consultancy pursuant to paragraph 8(a)[Death] or
8(g)[Voluntary Termination], except as set forth in paragraphs 10(f) and
13.
e. Non-Renewal. If the Agreement expires as set forth in
paragraph 8(h)[Non-Renewal], the Company shall have no further
obligations to the Executive except as set forth in paragraphs 10(f) and
13.
f. Continued Benefits Upon Any Termination. In the event
that the parties' employment relationship terminates for any of the
reasons set forth in paragraph 8 (death, disability, for cause, without
cause, for good reason, change of control, voluntary termination or non-
renewal) the Company shall continue the Executive's (and/or his eligible
dependents) Health Care and Executive Health Care coverage under the
Company's benefit program at no cost to the Executive for a five year
period, and after such five year period, the Executive (and/or his
eligible dependents) will then be entitled to elect continued group
Health Care and Executive Health Care coverage at their own expense
until August 25, 2013, when the Executive will be eligible for Medicare
coverage. If for any reason the Executive (or his dependents) shall not
be eligible to participate in such group Health Care and Executive
Health Care coverage, the Company shall secure a policy providing
equivalent health care coverage for their benefit, and any cost payable
by the Executive (or his dependents) under this section shall not exceed
the cost that would have been payable by the Executive (or his
dependents) if eligible to participate.
11. Exercise of Stock Options Following Termination. If the
Executive's employment terminates pursuant to paragraph 8(a)[Death] or
(b)[Disability], he (or his estate) may exercise his right to purchase
any vested stock under the stock options granted to him by the Company
for up to one year following the date of his termination, but not later
than the termination date of such options. In all other instances, he
may exercise that right for up to three months following the date of his
termination, but not later than the termination date of such options.
All such purchases must be made by the Executive in accordance with the
applicable stock option plans and agreements between the parties.
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12. Successors; Binding Agreement. This Agreement and all
rights of the Executive hereunder shall inure to the benefit of and be
enforceable by the Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees. If the Executive should die while any amounts would still be
payable to him hereunder all such amounts shall be paid in accordance
with the terms of this Agreement to the Executive's written designee or,
if there be no such designee, to the Executive's estate.
13. Insurance and Indemnity. The Company shall, to the extent
permitted by law, include the Executive during the term of this
Agreement under any directors and officers liability insurance policy
maintained for its directors and officers, with coverage at least as
favorable to the Executive in amount and each other material respect as
the coverage of other directors and officers covered thereby. This
obligation to provide insurance and indemnify the Executive shall
survive expiration or termination of this Agreement with respect to
proceedings or threatened proceedings based on acts or omissions of the
Executive occurring during the Executive's employment with the Company
or with any affiliated company. Such obligations shall be binding upon
the Company's successors and assigns and shall inure to the benefit of
the Executive's heirs and personal representatives.
14. Notice. For the purposes of this Agreement, notices, demands
and all other communications provided for in the Agreement shall be in
writing and shall be deemed to have been duly given when delivered or
(unless otherwise specified) mailed by United States registered mail,
return receipt requested, postage prepaid, addressed as follows:
If to the Executive: Xxxxxx X. Xxxxxx
c/o Ross Stores, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
If to the Company: Xxxx Stores, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Corporate Secretary
or to such other address as any party may have furnished to the other in
writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
15. Modification or Waiver; Entire Agreement. No provision of
this Agreement may be modified or waived except in a document signed by
the Executive and the chairman of the Compensation Committee of the
Board or such other person as may be designated by the Board. This
Agreement, along with any stock option or restricted stock agreements
between the parties, constitute the entire agreement between the parties
regarding their employment relationship, and any other agreements,
including the Initial Contract, are terminated and of no further force
or legal effect. To the extent that this Agreement is in any way
inconsistent with any prior restricted stock or stock option agreements
between the parties, this Agreement shall control. Provided, however,
that nothing in this
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Agreement is intended to or shall modify in any way the Stock Grant
Agreement of March 16, 1992 between the parties, which shall remain in
full force and effect. No agreements or representations, oral or
otherwise, with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement.
16. Governing Law; Severability. The validity, interpretation,
construction and performance of this Agreement shall be governed by the
laws of the State of California. The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement.
17. No Mitigation. The Executive shall have no duty to seek other
employment or consulting clients in order to mitigate payments that the
Company may be required to make to him or for his benefit hereunder in
the event of the termination of his employment or consultancy.
Provided, however, that if the Executive obtains other employment or
other consulting clients during any period in which he is entitled to
receive continued salary, consulting fees or bonus payments under
paragraph 10, any salary, consulting fees or bonus payments earned by
the Executive during such period shall reduce the Company's obligation
to pay continued salary, consulting fees and/or bonus payments under
paragraph 10 by the amount of the salary, consulting fees and/or bonus
payments so earned by the Executive.
18. Withholding. All payments required to be made by the Company
hereunder to the Executive or his estate or beneficiaries shall be
subject to the withholding of such amounts as the Company may reasonably
determine it should withhold pursuant to any applicable law. To the
extent permitted, the Executive may provide all or any part of any
necessary withholding by contributing Company stock with value,
determined on the date such withholding is due, equal to the number of
shares contributed multiplied by the closing NASDAQ price on the date
preceding the date the withholding is determined.
19. Arbitration. In the event of any dispute or claim relating
to or arising out of the parties' employment or consulting relationship
or this Agreement (including, but not limited to, any claims of breach
of contract, wrongful termination or age, race, sex, disability or other
discrimination), all such disputes shall be fully, finally and
exclusively resolved by binding arbitration conducted by the American
Arbitration Association in Alameda County, California; provided,
however, that this arbitration provision shall not apply to any disputes
or claims relating to or arising out of the misuse or misappropriation
of the Company's trade secrets or proprietary information.
20. Attorneys' Fees. Each party shall bear its own attorneys'
fees and costs incurred in any action or dispute arising out of this
Agreement. The Company, however, shall pay the Executive's reasonable
attorney's fees incurred in the negotiation of this Agreement but not in
excess of $2,500.
21. Miscellaneous. No right or interest to, or in, any payments
shall be assignable by the Executive; provided, however, that this
provision shall not preclude Executive from designating in writing one
or more beneficiaries to receive any amount that may be payable after
Executive's death and shall not preclude the legal representative of
Executive's estate from assigning any right hereunder
12
to the person or persons entitled thereto. This Agreement shall be
binding upon and shall inure to the benefit of the Executive, his heirs
and legal representatives and the Company and its successors.
IN WITNESS WHEREOF, the parties have executed this Amended and
Restated Employment Agreement effective as of the date and year first
above written.
XXXX STORES, INC.
By: /s/X. Xxxxx /s/Xxxxxx X. Xxxxxx
Title: Chairman, Compensation Committee EXECUTIVE
