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EXHIBIT 10(c)
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FORM OF EMPLOYMENT AGREEMENT
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FOR SENIOR VICE PRESIDENTS
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THIS AGREEMENT, dated as of the _____ day of _________, 1997,
between The Xxxxx-Xxxxxxx Stores Corp., an Ohio corporation (the "Employer"),
and __________________ (the "Executive").
R E C I T A L S :
1. On October 17, 1995, Employer and its subsidiaries
(collectively, the "Debtors") filed voluntarily petitions for relief under
chapter 11 of the Bankruptcy Code, 11 U.S.C. Sections 101-1330 (the "Bankruptcy
Code"). The Debtors continue to manage and operate their businesses as debtors
in possession pursuant to sections 1107 and 1108 of the Bankruptcy Code.
Employer's chapter 11 case is pending in the United States Bankruptcy Court for
the Southern District of Ohio, Western Division (the "Bankruptcy Court").
2. Employer has determined that it is critical to the success
of its efforts to reorganize under chapter 11 that it select the most qualified
person to serve as Senior Vice President - [_______] for Employer upon the
Effective Date (as defined in Debtors' Second Amended Joint Plan of
Reorganization) of a plan of reorganization.
3. Employer wants to enter into this Agreement with Executive
based on its belief that Executive is uniquely qualified to assume the role of
Senior Vice President - [ ] upon the Effective Date, subject to the terms and
conditions set forth below.
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4. Executive wants to enter into this Agreement with Employer,
subject to the terms and conditions set forth below, including the entry of an
order of the Bankruptcy Court authorizing Employer to enter into and perform
this Agreement.
NOW THEREFORE, in consideration of the foregoing and the
mutual covenants herein and for good and valuable consideration, the receipt of
which is hereby acknowledged, it is agreed as follows:
ARTICLE I
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DEFINITIONS
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The following terms shall have the respective meanings set
forth below, unless the context clearly otherwise requires:
1.1 "AFFILIATE" means, with respect to a particular Entity, an Entity
that directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such Entity, and an Entity shall
be "unaffiliated" with another Entity if such Entities are not Affiliates with
respect to one another.
1.2 "CAUSE" means (i) an intentional act of fraud, embezzlement, theft
or any other material violation of law in connection with Executive's duties or
in the course of his employment with Employer involving material harm to
Employer; (ii) intentional wrongful damage to material assets of Employer; (iii)
intentional wrongful engagement in any activity that would constitute a material
breach of Sections 3.1 through 3.4 hereof; or (iv) physical or mental disability
that causes Executive to fail to perform his duties under this Agreement for a
continuous period of 12 months, as provided in Section 2.7(b). No act or
omission by Executive shall be deemed "intentional" if it was due to negligence
and shall be deemed "intentional" only
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if done, or omitted to be done, by Executive not in good faith and without
reasonable belief that his action or omission was in or not opposed to the best
interests of Employer and its subsidiaries. Failure to meet performance
standards or objectives of Employer shall not constitute "Cause" for purposes
hereof. To terminate the employment of Executive for Cause, Employer must
deliver to Executive a Notice of Termination given within 90 days after the
Board of Directors both (i) has knowledge of conduct or an event allegedly
constituting Cause and (ii) has reason to believe that such conduct or event
could be grounds for Cause. For purposes of this Agreement a "Notice of
Termination" shall mean a copy of a resolution duly adopted by the affirmative
vote of not less than a simple majority of the membership of the Board of
Directors, excluding Executive, at a meeting called for the purpose of
determining that Executive has engaged in conduct that constitutes Cause (and at
which Executive had a reasonable opportunity, together with his counsel, to be
heard before the Board of Directors prior to such vote).
1.3 "CHANGE OF OWNERSHIP" means any one of the following events: (i)
the sale to any purchaser unaffiliated with Employer of all or substantially all
of the assets of Employer; (ii) the sale, distribution, or accumulation of more
than 50% of the outstanding voting stock of Employer to/by any acquiror or group
of affiliated acquirors that are unaffiliated with Employer; (iii) individuals
who, on the completion of Employer's chapter 11 reorganization under the
Bankruptcy Code, constitute the Board of Directors (the "Incumbent Directors")
cease for any reason to constitute at least a majority of the Board, provided
that any person becoming a director subsequent to such completion whose election
or nomination for election was approved by a vote of at least two-thirds of the
Incumbent Directors then on the Board (either by a specific vote or by approval
of the proxy statement of Employer in which such person is named as a
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nominee for director, without objection to such nomination) shall be an
Incumbent Director; PROVIDED, HOWEVER, that no individual elected or nominated
as a director of Employer initially as a result of an actual or threatened
election contest with respect to directors or any other actual or threatened
solicitation of proxies or consents by or on behalf of any person other than the
Board shall be deemed to be an Incumbent Director; or (iv) the merger or
consolidation of Employer with another Entity unaffiliated with Employer if,
immediately after such merger or consolidation, less than two-thirds of the
combined voting power of the then outstanding securities of such Entity are
held, directly or indirectly, in the aggregate by the holders immediately prior
to such transaction of the then outstanding securities of Employer entitled to
vote generally in the election of directors.
In no event shall "Change of Ownership" be construed to include any
change of control of Employer or any subsidiary of Employer that occurs solely
as a result of any exchange or distribution of equity securities of Employer or
any such subsidiary upon consummation of a plan of reorganization for Employer
or any such subsidiary in its chapter 11 case pending as of the date of this
Agreement.
1.4 "CODE" means the Internal Revenue Code of 1986, as amended.
1.5 "COMPETING BUSINESS" means any of the following companies: (i)
Mercantile Stores Co., Inc.; Xxxxxxxx'x, Inc.; or Xxxxxx Xxxxx Xxxxx & Co.,
including each of their respective Affiliates; (ii) Lazarus, Inc.; (iii) Lazarus
PA, Inc.; or (iv) Rich's Department Stores, Inc.
1.6 "ENTITY" shall have the meaning provided in section 101(16) of the
Bankruptcy Code.
1.7 "GOOD REASON" means (i) the assignment to Executive of any duties
materially inconsistent with Executive's position (including status, offices,
titles and reporting
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requirements), authority, duties or responsibilities as contemplated in Article
II, or any other action by Employer that results in a material diminution in
such position, authority, duties or responsibilities, excluding for this purpose
an action not taken in bad faith and that is remedied by Employer within 10 days
after receipt of written notice thereof given by Executive, provided that
repeated instances of such action shall be evidence of the bad faith of
Employer; (ii) a reduction in the Executive's annual Base Salary of at least
10%; (iii) the relocation of Employer's principal executive offices to a
location more than 75 miles from the current location of such offices; (iv) any
material failure by Employer to comply with any of the provisions of this
Agreement, other than a failure not occurring in bad faith and which is remedied
by Employer within 10 days after receipt of written notice thereof given by
Executive, provided that repeated failures shall be evidence of the bad faith of
Employer; or (v) removal of Executive as Senior Vice President - [___________],
other than for Cause.
ARTICLE II
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EMPLOYMENT
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2.1 EFFECTIVENESS. Notwithstanding any other provision of the
Agreement, the Agreement shall not be effective until the Effective Date.
2.2 TERM. Employer shall employ Executive, and Executive shall serve
Employer pursuant to the terms of this Agreement, starting on the Effective
Date. The term of this Agreement shall extend initially until the [SECOND OR
THIRD] anniversary of the Effective Date. The term of this Agreement shall be
automatically extended on the [SECOND OR THIRD] anniversary of the Effective
Date and each anniversary of the Effective Date thereafter for a period of one
year unless Employer or Executive shall have given written notice of termination
to the other not
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less than 120 days prior to such anniversary of the Effective Date. Upon
termination of this Agreement pursuant to any such notice, Executive's
employment with Employer shall terminate, and Employer's only obligation to
Executive will be payment of the amounts described in Section 2.7(c)(ii).
2.3 DUTIES. Executive will serve as and perform the duties of Senior
Vice President - [____________] of Employer in accordance with the terms of this
Agreement. The duties of Executive shall be those commensurate with his office
and shall include those responsibilities reasonably assigned to Executive by the
Chairman or President of the Employer, with responsibility for reporting to the
Chairman or President of the Employer.
2.4 COMPENSATION. In consideration of Executive's services hereunder,
Employer shall pay Executive cash compensation consisting of an annual "Base
Salary" and "Bonus." As of the Effective Date, Executive's Base Salary shall be
$________ per year, and his 1997 fiscal year Bonus shall consist of an incentive
bonus that includes a pro rata share, based on the percentage of days served
during fiscal 1997 after the Effective Date, of up to 30% of Executive's Base
Salary and a pro rata share, based on the percentage of days served during
fiscal 1997 before the Effective Date, of up to [ ]% of Executive's annual
salary immediately prior to the Effective Date. In each fiscal year thereafter,
Executive's Bonus shall consist of an incentive bonus up to 30% of his Base
Salary, to be earned as determined by the Board of Directors. For purposes of
the preceding sentences, the "year" for which the Bonus is payable to Executive
shall be the Employer's fiscal year beginning in February 1997 and each
subsequent fiscal year of the Employer. Executive's Base Salary shall be subject
to review at the discretion of the Board of Directors from time to time taking
into account changes in Executive's responsibilities, increases
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in the cost of living, performance by Executive, increases in salary to other
executives of Employer and other pertinent factors.
2.5 PAYMENT SCHEDULE. The Compensation specified in Section 2.4 hereof
shall be payable as current salary and bonus in accordance with Employer's
payroll and bonus procedures for other executives. Base Salary shall be paid in
installments not less frequently than monthly and at the same rate for any
fraction of a month unexpired at the end of the term. Bonuses shall be paid
annually in a lump sum not later than April 15 or, if such day is not a business
day on which the Employer's executive offices are open, the first business day
thereafter.
2.6 EXPENSES. Executive shall be allowed reasonable traveling expenses
and other reasonable expenses in carrying out his duties under this Agreement
and shall be furnished office space, assistance and accommodations suitable to
the character of his position with Employer and adequate for the performance of
his duties hereunder.
2.7 TERMINATION OF EMPLOYMENT.
(a) TERMINATION FOLLOWING A CHANGE OF OWNERSHIP. If (i) before
the second anniversary of a Change of Ownership Employer notifies Executive that
Executive is being terminated, and such termination is without Cause; (ii)
before the second anniversary of a Change of Ownership Executive terminates his
employment for Good Reason; (iii) Executive terminates his employment with
Employer for any reason, or without reason, during the 30-day period immediately
following the first anniversary of a Change of Ownership; or (iv) Executive's
employment with Employer is terminated in connection with but prior to a Change
of Ownership and termination occurs following the commencement of any discussion
with any third party that ultimately results in a Change of Ownership, Executive
shall be entitled (except as otherwise provided in paragraphs (b), (c) and (d)
of this Section 2.7 and subject to Section 5.1) to receive a
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lump sum payment as severance compensation equal to the greater of (I) 2.99
times his "base amount" as such term is defined in Section 280G of the Code, or
(II) 2 times his most recent Base Salary and Bonus. Employer shall make such
payment not later than 45 days after the date of termination. If any payment
made to the Executive pursuant to this Section 2.7(a) or otherwise pursuant to
or by reason of any other agreement, policy, plan, program or arrangement,
including without limitation any stock option, stock appreciation right or
similar right, or the lapse or termination of any restriction on or the vesting
or exercisability of any of the foregoing (a "Payment") is determined to be
subject to the excise tax imposed by Section 4999 of the Code (or any successor
provision thereto) by reason of being considered "contingent on a change in
ownership or control" of the Employer, within the meaning of Section 280G of the
Code (or any successor provision thereto) or to any similar tax imposed by state
or local law, or to any interest or penalties with respect to such tax (such tax
or taxes, together with any such interest and penalties, being hereafter
collectively referred to as the "Excise Tax"), then the Executive shall be
entitled to receive an additional payment or payments (collectively, a "280G
Gross-Up Payment"). The 280G Gross-Up Payment shall be in an amount such that,
after payment by the Executive of all taxes (including any interest or penalties
imposed with respect to such taxes), including any excise tax imposed upon the
280G Gross-Up Payment, the Executive retains a portion of the 280G Gross-Up
Payment equal to the Excise Tax imposed upon the Payment.
(b) DISABILITY. Executive shall not be in breach of this
Agreement if he shall fail to perform his duties hereof because of physical or
mental disability. If Executive fails to render services to Employer because of
Executive's physical or mental disability for a continuous period of 12 months,
the Board of Directors or its delegate may terminate Executive's employment
prior to the end of the then current term. If any dispute exists between the
parties as
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to Executive's physical or mental disability at any time, such question shall be
settled by the opinion of an impartial reputable physician agreed upon for that
purpose by the parties or their representatives. Failing agreement upon an
impartial physician for purposes of the preceding sentence, the question of
Executive's physical or mental disability shall be resolved within 10 days of a
written request therefor by either party to the other, by a physician designated
by the then Executive Vice President of the Ohio Academy of Family Physicians.
The written opinion of the physician as to the matter in dispute shall be final
and binding on the parties.
(c) OTHER TERMINATIONS BY EMPLOYER. (i) CAUSE. Employer may
terminate the employment of Executive for Cause at any time upon notice given
pursuant to Section 5.6. Upon such termination, this Agreement and all of
Employer's obligations under this Agreement shall terminate, except that
Employer shall remain obligated to pay to Executive any unpaid Base Salary
through the effective date of such termination and any vacation accrued but
unused as of Executive's last day worked.
(ii) NOT FOR CAUSE. Employer may terminate the
employment of Executive at any time for any reason. However, if such termination
of employment does not occur pursuant to Section 2.2 or under the circumstances
described in paragraphs (a), (b) or (c)(i) of this Section 2.7, Employer shall
remain obligated to Executive for (I) payment of Executive's unpaid Base Salary
(as described in Section 2.4) through the then-remaining term of this Agreement
pursuant to Section 2.2, (II) any Bonus (as described in Section 2.4) paid on or
before Executive's last day worked and (III) payment for any vacation accrued
but unused as of before Executive's last day worked.
(d) DEATH. If Executive dies while rendering services under
this Agreement, there shall be payable to his estate an amount equal to his Base
Salary for the lesser of one year
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or the then remaining term of this Agreement. Such amount shall be paid to
Executive's estate in a single lump sum.
2.8 MITIGATION; OFFSET. Executive shall not be required to mitigate the
amount of any payment or benefit provided for in the Agreement by seeking other
employment or otherwise. However, any amount payable pursuant to this Agreement
following the termination of Executive's employment shall reduce any amount
payable by Employer to or with respect to Executive pursuant to any other
severance pay or other similar plan, program or arrangement of Employer,
including, without limitation, the Employer's Master Severance Plan for Key
Employees.
ARTICLE III
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CERTAIN OBLIGATIONS OF EXECUTIVE
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3.1 NO PARTICIPATION IN OTHER BUSINESSES. Executive shall not, without
the consent of the Board of Directors, become actively associated with or
engaged in any business other than that of Employer or a division or Affiliate
of Employer, and he shall do nothing inconsistent with his duties to Employer.
3.2 TRADE SECRETS AND CONFIDENTIAL INFORMATION.
(a) UNAUTHORIZED DISCLOSURE, USE OR SOLICITATION. Executive
will keep in strict confidence, and will not, directly or indirectly, at any
time during or after his employment with Employer, disclose, furnish,
disseminate, make available or, except in the course of performing his duties of
employment under this Agreement, use any trade secrets or confidential business
and technical information of Employer or its customers, vendors or property
owners or managers, without limitation as to when or how Executive may have
acquired such information.
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Such confidential information will include, without limitation, Employer's
unique selling methods and trade techniques; management, training, marketing and
selling manuals; promotional materials; training courses and other training and
instructional materials; any personnel information; material nonpublic financial
information; any corporate organizational information; lease terms; vendor,
owner, manager and product information; customer lists; other customer
information; and other trade information. Executive specifically acknowledges
that all such confidential information including, without limitation, customer
lists, other customer information and other trade information, whether reduced
to writing, maintained on any form of electronic media, or maintained in the
mind or memory of Executive and whether compiled by Employer and/or Executive,
derives independent economic value from not being readily known to or
ascertainable by proper means by others who can obtain economic value from its
disclosure or use, that reasonable efforts have been made by Employer to
maintain the secrecy of such information, that such information is the sole
property of Employer and that any retention and use of such information by
Executive during his employment with Employer (except in the course of
performing his duties and obligations under this Agreement) or after the
termination of his employment will constitute a misappropriation of Employer's
trade secrets.
(b) POST-TERMINATION. Executive agrees that, upon termination
of Executive's employment with Employer, for any reason, Executive will return
to Employer, in good condition, all property of Employer, including without
limitation, the originals and all copies of all management, training, marketing
and selling manuals; promotional materials; other training and instructional
materials; financial information; vendor, owner, manager and product
information; customer lists; other customer information; and all other selling,
service and trade information and equipment. If such items are not returned,
Employer will have the right to
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charge Executive for all reasonable damages, costs, attorneys' fees and other
expenses incurred in searching for, taking, removing and/or recovering such
property.
3.3 NONCOMPETITION. Executive and Employer recognize that Executive's
duties under this Agreement will entail the receipt of trade secrets and
confidential information, which include not only information concerning
Employer's current operations, procedures, suppliers and other contacts, but
also its short-range and long-range plans, and that such trade secrets and
confidential information may have been developed by Employer and its Affiliates
at substantial cost and constitute valuable and unique property of Employer.
Accordingly, Executive acknowledges that the foregoing makes it reasonably
necessary for the protection of Employer's business interests that Executive not
compete with Employer or any of its Affiliates during the term of this Agreement
and for a reasonable and limited period thereafter. Therefore, during the term
of this Agreement and for one year after termination of the Agreement, Executive
shall not have any investment in a Competing Business other than a de minimis
investment and shall not render personal services to any such Competing Business
in any manner, including, without limitation, as owner, partner, director,
trustee, officer, employee, consultant or advisor thereof; PROVIDED, HOWEVER,
that this Section 3.3 shall not apply if Executive terminates his employment for
Good Reason or Employer terminates Executive other than for Cause. For purposes
of the preceding sentence, a de minimis investment is ownership of less than 1/2
of 1% of the outstanding stock or debt of any Competing Business.
Notwithstanding Section 2.7 above, if Executive shall breach the
covenants contained in this Section 3.3 or in Section 3.2, Employer shall have
no further obligations to Executive pursuant to this Agreement and may recover
from Executive all such damages as it may be entitled to at law or in equity. In
addition, Executive acknowledges that any such breach is likely
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to result in immediate and irreparable harm to Employer for which money damages
are likely to be inadequate. Accordingly, Executive consents to injunctive and
other appropriate equitable relief that Employer may seek to protect Employer's
rights under this Agreement. Such relief may include, without limitation, an
injunction to prevent Executive from disclosing any trade secrets or
confidential information concerning Employer to any Entity, to prevent any
Entity from receiving from Executive or using any such trade secrets or
confidential information and/or to prevent any Entity from retaining or seeking
to retain any other employees of Employer.
3.4 CONFLICTS OF INTEREST. Executive shall not engage in any activity
that would violate any Conflict of Interest or Business Ethics Statement of
Employer that Executive may sign from time to time.
ARTICLE IV
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OTHER BENEFITS
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4.1 EMPLOYEE BENEFITS.
(a) Executive and Executive's family, as applicable, shall be
eligible for participation in and shall receive all benefits under the savings
and retirement programs, welfare benefit plans, fringe benefit programs and
perquisites that Employer provides to senior executives of Employer in effect
from time to time.
(b) Subject to Section 5.1, upon termination under
Section 2.7(a) hereof:
(i) The benefits described in Section 4.1(a) will
continue until the Executive obtains new employment providing substantially
similar benefits, but in any event no later than two years after the date of
termination. During the period of continued coverage pursuant to this
Subsection, the Executive will be required to pay the same cost of coverage, co-
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pays, deductibles and other similar payments paid by active senior executives of
the Company having elected the same type of coverage. The Executive will cease
to be eligible for continued health and life insurance benefits provided by the
Employer if he (I) waives such coverage or (II) fails to pay any amount required
for such coverage.
(ii) The Executive will be reimbursed by the Employer for reasonable
expenses incurred for outplacement counseling that are pre-approved by the
Employer's Senior Vice President - Human Resources, (II) that do not exceed 15%
of the Executive's Base Salary and (III) that are incurred by the Executive
within 6 months following such termination.
4.2 RELOCATION. Executive may, but is not required to, relocate to a
residence within 35 miles of downtown Dayton, Ohio. If Executive relocates as
described in the previous sentence within six months of the date hereof,
payments and reimbursements made on behalf of or to Executive on account of such
relocation shall be made in accordance with the Employer's applicable relocation
policy.
4.3 INCENTIVE COMPENSATION. Employer and Executive recognize that the
primary objective for Employer over the coming years is to increase the value of
its business through superior performance in achieving growth in operating
profits. The enhancement of business value is critical to all constituencies of
Employer, including creditors, shareholders, management, employees, vendors and
customers. Accordingly, Employer has formulated, and will implement as part of
its chapter 11 plan of reorganization, the Equity and Performance Incentive Plan
that will award equity interests in Employer to key employees based on both
annual and long-term incentives from time to time after emergence from chapter
11. The terms of such program and the awards to be made to Executive are
comparable to the terms of similar programs implemented by comparable companies.
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4.4 VACATION AND SICK LEAVE. Executive shall be entitled to vacation
and sick leave each year, in accordance with Employer's policies in effect from
time to time; PROVIDED, HOWEVER, that Executive shall be entitled to a minimum
of three weeks vacation per year.
ARTICLE V
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MISCELLANEOUS
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5.1 RELEASE. Payment of the amount described in Section 2.7(a) and the
benefits described in Section 4.1(b) to the Executive is conditioned upon the
Executive executing and delivering a release satisfactory to the Employer
releasing the Employer from any and all claims, demands, damages, actions and/or
causes of action whatsoever, which the Executive may have had on account of the
termination of his employment, including, but not limited to claims of
discrimination, including on the basis of sex, race, age, national origin,
religion, or handicapped status (with all applicable periods during which the
Executive may revoke the release or any provision thereof having expired), and
any and all claims, demands and causes of action for retirement (other than
under the retirement plans maintained by the Employer that are qualified under
Section 401(a) of the Code or under any "welfare benefit plan" of the Employer
(as the term "welfare benefit plan" is defined in Section 3(1) of the Employee
Retirement Income Security Act of 1974, as amended)), severance or other
termination pay. Such release will not, however, apply to the ongoing
obligations of the Employer arising under this Agreement, or rights of
indemnification the Executive may have under the Employer's policies or by
contract or by statute.
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5.2 SUCCESSORS AND BINDING AGREEMENT.
(a) Employer will require any successor to all or
substantially all of the businesses or assets of Employer (whether direct or
indirect, by purchase, merger, consolidation, reorganization or otherwise), by
agreement in form and substance reasonably satisfactory to Executive, expressly
to assume and agree to perform this Agreement in the same manner and to the same
extent Employer would be required to perform if no such succession had taken
place. This Agreement will be binding upon and inure to the benefit of Employer
and any successor to Employer, including without limitation any persons
acquiring directly or indirectly all or substantially all of the businesses or
assets of Employer whether by purchase, merger, consolidation, reorganization or
otherwise (and such successor will thereafter be deemed "Employer" for the
purposes of this Agreement).
(b) This Agreement will inure to the benefit of and be
enforceable by the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees and legatees.
(c) This Agreement is personal in nature and neither of the
parties hereto will, without the consent of the other, assign, transfer or
delegate this Agreement or any rights or obligations hereof except as expressly
provided in Sections 5.2(a) and (b). Without limiting the generality or effect
of the foregoing, Executive's right to receive payments hereof will not be
assignable, transferable or delegable, whether by pledge, creation of a security
interest, or otherwise, other than by a transfer by Executive's will or by the
laws of descent and distribution and, if Executive attempts any assignment or
transfer contrary to this Section 5.2, Employer will have no liability to pay
any amount Executive attempts to assign, transfer or delegate.
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5.3 GOVERNING LAW; ARBITRATION. This Agreement has been executed on
behalf of Employer by an officer of Employer located in the City of Moraine,
Ohio. This Agreement and all questions arising in connection with it shall be
governed by the internal substantive law of the State of Ohio, without giving
effect to principles of conflict of laws. Subject to the following sentence, all
disputes arising out of, or in connection with this Agreement, which are not
promptly settled by mutual agreement of the parties hereto, shall be finally
settled by arbitration in accordance with the rules of the American Arbitration
Association. Notwithstanding, Employer may, at its option, seek injunctive
relief as contemplated in Section 3.3 above either in lieu of or in addition to
the arbitration remedies provided for in this Section 5.3
Arbitration shall be conducted by one or more arbitrators appointed in
accordance with such rules on the request of any party to the agreement giving
rise to the dispute. Arbitration shall take place in Dayton, Ohio. Such
arbitration shall be governed by this Agreement and shall be binding upon the
parties hereto. The validity, construction, performance or termination of any
agreement by and between the parties submitted to arbitration shall be
determined on the basis of the contractual obligations of the parties. The
arbitrator shall determine his jurisdiction over persons and subject matter if
such jurisdiction is challenged by one of the parties. The award of the
arbitrator shall: (a) be rendered in writing stating the grounds on which the
arbitrators base same, and how the costs of arbitration being borne; the
expenses of Executive to successfully petition or defend his interests shall be
borne by Employer; and (b) be carried out voluntarily and without delay, and
failing this, be made enforceable through either party by entry of a judgment in
a competent court of any jurisdiction.
5.4 SEVERABILITY. If any portion of this Agreement is held to be
invalid or unenforceable, such holding shall not affect any other portion of
this Agreement.
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5.5 ENTIRE AGREEMENT. This Agreement comprises the entire agreement
between the parties hereto and, as of the date hereof, supersedes any prior
agreements between the parties. This Agreement may not be modified, renewed or
extended except by a written instrument referring to this Agreement and executed
by the parties hereto.
5.6 NOTICES. Any notice or consent required or permitted to be given
under this Agreement shall be in writing and shall be effective: (a) when given
by personal delivery, (b) one business day after being sent by overnight
delivery service or (c) five business days after being sent by certified U.S.
mail, return receipt requested, to the Secretary of Employer at its principal
place of business in the City of Moraine or to Executive at his last known
address as shown on the records of Employer.
5.7 WITHHOLDING TAXES. Employer may withhold from any amounts payable
under this Agreement all federal, state, city or other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and year first above written.
THE XXXXX-XXXXXXX STORES CORP.
By:
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Name: Xxxxxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
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Executive
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