EXHIBIT 10.1
EMPLOYMENT AGREEMENT
RETAIL VENTURES, INC. AND ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
THIS EMPLOYMENT AGREEMENT (this "Agreement") is by and between Retail
Ventures, Inc. (the "Company") and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the "Executive"), and has
been fully executed by both parties effective as of the 1st day of November,
2004. This Agreement shall supercede and replace the agreement between the
Executive and Filene's Basement, Inc. ("Filene's"), dated as of February 3, 2003
(the "Prior Agreement") and any other oral or written employment-related
agreements between the Executive and the Company and its affiliates, except that
all previously awarded equity compensation shall continue in full force and
effect with the continuation of existing vesting schedules and rights under the
incentive plans and agreements pursuant to which they were issued. The Company
agrees to employ the Executive, and the Executive hereby accepts such employment
and agrees to serve the Company faithfully and loyally, as the President and
Chief Executive Officer of the Company, subject to the supervision, advice and
direction of the Chairman (the "Chairman") of the Company's Board of Directors
(the "Board") and upon the following terms and conditions:
1. Term. The Initial Term of this Agreement shall extend from the date
hereof through the end of the Company's 2007 fiscal year (the "Initial Term").
Subject to subsection 10.7, this Agreement shall automatically extend for
successive one-fiscal-year periods, immediately following the Initial Term,
unless the Company gives written notice to the Executive that it does not wish
the next automatic extension to continue the Agreement, which notice must be
given by the Company to the Executive at least 180 days before the end of the
Initial Term of the Agreement or at least 180 days before the end of any such
extended one-year term or unless it has been previously terminated as provided
in this Agreement (the Initial Term, together with any extensions of the
Agreement pursuant to this sentence, the "Term").
2. Employment Functions.
2.1. Position. During the Term, the Executive shall serve as the
President and Chief Executive Officer of the Company with such authority and
duties as are customary for this position. During the Term, the Executive shall
report directly to and be subject to the supervision, advice and direction of
the Chairman, and shall be appointed to the Board.
2.2. Duties. During the Term, the Executive shall devote his full
business time, best efforts and undivided attention to the business and affairs
of the Company, except for any vacations, illness or disability. The Executive
is knowledgeable about the current business affairs and financial status of the
Company, and shall have the duties and responsibilities customarily incident to
the position of President and Chief Executive Officer. The Executive agrees that
he shall observe and be bound by all rules, policies, practices and resolutions
heretofore or hereafter adopted in writing by the Company which are generally
applicable and provided to the Company's officers and employees and which do not
otherwise conflict with this Agreement. Nothing contained in this subsection 2.2
shall be construed to prevent the Executive from: (1) making or holding passive
investments in outstanding shares in the securities of publicly-owned companies
or other businesses other than organizations competitive with the businesses of
the Company and its affiliates, regardless of when and how that investment was
made, (2) serving on corporate, civic, religious, educational and/or charitable
boards or committees, or (3) delivering periodic lectures or fulfilling periodic
speaking engagements; provided, however, that none of the foregoing activities
may lead to a conflict with the Executive's position, duties or any other
obligation in this Agreement.
2.3. Place of Performance. The Executive's duties will principally
be performed in Boston, Massachusetts and/or New York, New York, except for
required travel on the Company's business and except to the extent to which the
Board or the Chairman requires the Executive to perform duties at another
Company office. The Executive may maintain his place of residence in the Boston
or New York City metropolitan area.
3. Compensation.
3.1. Salary. Effective November 1, 2004, the Company shall pay to
the Executive an annualized base salary of $1,000,000 as compensation for his
services under this Agreement. The annualized base salary shall be paid in equal
installments in accordance with the Company's payroll practices for executive
employees. The Executive's annualized base salary will be increased annually (as
of the first day of each fiscal year of the Company) during the Term by a
minimum of 2.5 percent of the base salary payable to the Executive hereunder
during the preceding fiscal year of the Company (provided that the first such
increase hereunder shall occur at the beginning of the 2006 fiscal year ("Fiscal
Year 2006")) and may be further increased during the Term at the discretion of
the Compensation Committee of the Board.
3.2. Incentive Compensation.
3.2.1. Incentive Compensation. During the Term, the Executive
shall be eligible to receive incentive compensation calculated under the terms
of the Company's annual incentive compensation plan for key executives, with a
target annual bonus per fiscal year of 100 percent of base salary and a maximum
annual bonus per fiscal year of 200 percent of base salary. The actual
performance metrics and goals shall be determined in good faith by the Board or
the appropriate committee thereof. The Company shall provide the Executive with
the following minimum bonus guarantees: For the 2004 fiscal year ("Fiscal Year
2004"), the Executive is guaranteed a $800,000 minimum bonus, payable in April
2005; for the 2005 fiscal year ("Fiscal Year 2005"), the Executive is guaranteed
a $1,000,000 minimum bonus, payable in April 2006; for Fiscal Year 2006, the
Executive is guaranteed $250,000, payable in April 2007. There are no guaranteed
minimum bonuses for fiscal years subsequent to Fiscal Year 2006. Subject to
Section 5.4.2, these bonus guarantees are subject to the Executive's continued
employment through the end of the applicable fiscal year.
3.3. Equity Compensation.
3.3.1. SARs. Subject to the terms of the Retail Ventures, Inc.
Amended and Restated 2000 Stock Incentive Plan (the "Stock Incentive Plan"), the
Company on November 5, 2004 (the "Grant Date") granted to the Executive 930,000
freestanding stock appreciation rights (the "SARs") in respect of Company common
stock, with an exercise price of $6.18 (the "▇▇▇▇▇ ▇▇▇▇▇"). This special grant
is considered to be a three year, front-loaded grant as part of the long-term
equity program approved by the Compensation Committee of the Board
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of Directors. 360,000 of these SARs are "Standard SARs," and 570,000 of these
SARs are "Performance SARs." One-third of the Standard SARs shall, subject to
continued employment and to Section 5, vest on each of the first three
anniversaries of the Grant Date; provided, however, that if on any such
scheduled vesting date, the ▇▇▇▇▇ ▇▇▇▇▇ equals or exceeds the Fair Market Value
(as defined in the Stock Incentive Plan) of a share of Company common stock, the
Standard SARs scheduled to vest on such scheduled vesting date shall instead,
subject to continued employment and to Section 5, vest on the first anniversary
of such scheduled vesting date on which the Fair Market Value of a share of
Company common stock exceeds the ▇▇▇▇▇ ▇▇▇▇▇ of such Standard SAR (unless such
anniversary occurs subsequent to the eighth anniversary of the Grant Date). The
Performance SARs shall, subject to continued employment and to Section 5, vest
on the eighth anniversary of grant, provided that they will be subject to
special accelerated vesting provisions based on the attainment of two equally
weighted performance objectives: one-half of the Performance SARs will vest
following a rise in the value of Company common stock (based upon the average
closing price for 60 consecutive trading days, weighted by share volume each
day) to 50% above the ▇▇▇▇▇ ▇▇▇▇▇, while the remaining Performance SARs will
vest following a rise in the value of Company common stock (based upon the
average closing price for 60 consecutive trading days, weighted by share volume
each day) to 125% above the ▇▇▇▇▇ ▇▇▇▇▇. The terms of each SAR provide that
immediately upon vesting of such SAR, the Executive will be deemed immediately
to exercise such SAR and the Company will pay to the Executive in redemption and
cancellation of such SAR a lump sum amount equal to the excess, if any, of (x)
the Fair Market Value of a share of Company common stock on the date of such
vesting minus (y) the ▇▇▇▇▇ ▇▇▇▇▇. For the avoidance of doubt, the ▇▇▇▇▇ ▇▇▇▇▇
for purposes of the performance goals set forth in this subsection 3.3.1 shall
be subject to appropriate adjustment pursuant to Section 4.3 of the Stock
Incentive Plan.
3.3.2. Restricted Stock Units. The Company granted to the
Executive on the Grant Date 250,000 restricted stock units (the "Units"). The
Units will vest, subject to continued employment and subject to Section 5, in
three equal installments on each of the first three anniversaries of the Grant
Date. On the date of vesting of any Unit, the Company shall pay to the Executive
an amount in cash in redemption and cancellation of such Unit equal to the Fair
Market Value of a share of Company common stock on such vesting date. Although
the Units are not granted pursuant to the Stock Incentive Plan, the number of
Units shall be subject to appropriate adjustment by the Committee (as defined in
the Stock Incentive Plan) in the event of the occurrence of an event described
in Section 4.3 of the Stock Incentive Plan.
3.3.3. Additional Awards. The Executive shall be eligible for
discretionary grants of equity compensation as the Board or the appropriate
committee thereof may determine from time to time.
3.4. Benefit Plans. During the Term, the Executive will be entitled
to participate in any deferred compensation or other employee benefit plans,
including any profit sharing or 401(k) plans; group life, health,
hospitalization and disability insurance plans; discount privileges; and other
employee welfare benefits made available generally to, and under the same terms
as, the Company's other executives.
3.5. Vacations. Subject to the terms of the Company's vacation
policy applicable to senior executives, the Executive shall be entitled to four
weeks of vacation. The
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dates of said vacations shall be mutually agreed upon by the Chairman or its
designee and the Executive.
3.6. Effect on Prior Agreement. Although this Agreement is a
substitution for and replaces the Prior Agreement, the Executive, the Company
and Filene's agree that this substitution and replacement will not be treated as
a termination of the Executive's employment under the Prior Agreement or under
any compensation or benefit arrangement in which the Executive participated or
benefited. However, the Executive's compensation and any other benefits of
continuing employment following the date hereof will be governed by the terms of
this Agreement and not the terms of the Prior Agreement.
3.7. Housing and Relocation. During the Term, the Executive may
maintain his principal residence in Boston, Massachusetts for as long as he
deems appropriate. If requested by the Executive, the Company will provide the
Executive with a furnished apartment in New York City during the Term. In the
event that the Executive determines that it is appropriate to relocate his
principal residence from Boston to New York during the Term, the Company agrees
to purchase the Executive's current residence at the Executive's full investment
as evidenced by receipts and supporting documentation, including all
construction and "finishing" expenses (in the event of such a relocation, the
Executive will no longer be entitled to the apartment described in the previous
sentence). The purchase of the Executive's residence by the Company shall be
completed within 60 days of the Executive's request to the Company. The Company
will pay reasonable and customary relocation expenses if the Executive so
relocates himself to New York. Any such reimbursement or relocation payments
will be grossed up for taxes at the Executive's actual tax rate.
3.8. Air Travel. The Company shall pay for first class business
travel by the Executive.
3.9. Expenses. During his employment, the Executive shall be
entitled to receive prompt reimbursement for all normal and reasonable expenses
incurred by him in performing services under this Agreement, including all
reasonable expenses of travel, provided that such expenses are incurred and
accounted for in accordance with the policies and procedures established by the
Company, and shall be entitled to an annual perquisite allowance from the
Company of $50,000 (which amount already includes any associated tax gross-up),
payable in equal installments in accordance with the Company's payroll practices
for executive employees. The Company shall furnish the Executive with the
Company credit cards provided to its other senior executives for use solely in
the performance of his duties under this Agreement.
3.10. Taxes. The compensation provided to the Executive hereunder
shall be subject to any withholdings and deductions required by any applicable
tax laws.
4. Executive's Obligations. In consideration of employing the Executive
and providing him with the compensation and promises made in this Agreement, the
Executive agrees, with respect to the Company (which, for these purposes,
includes the Company and all of its subsidiaries, parent corporation and
affiliated entities) as follows:
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4.1. Confidential Information. The Executive acknowledges that the
Company has a legitimate and continuing proprietary interest in the protection
of its confidential information and has invested, and will continue to invest,
substantial sums of money to develop, maintain and protect confidential
information. The Executive therefore agrees that during and after his employment
with the Company and its affiliates, any Confidential Information, as defined
below, shall be held in confidence and treated as proprietary to the Company.
The Executive agrees not to use or disclose any Confidential Information except
to promote and advance the business interests of the Company. The Executive
agrees that upon his separation from employment, for any reason whatsoever, he
shall not take or copy, and shall immediately return to the Company any
documents that constitute or contain Confidential Information. "Confidential
Information" includes, but is not limited to, any confidential data, figures,
projections, estimates, pricing data, customer lists, buying manuals or
procedures, distribution manuals or procedures, other policy and procedure
manuals or handbooks, supplier information, tax records, personnel histories and
records, information regarding sales, information regarding properties and any
other confidential information regarding the business, operations, properties or
personnel of the Company and its affiliates which are disclosed to or learned by
the Executive as a result of his employment, but shall not include his personal
personnel records. Confidential Information also shall not include any
information that (1) the Executive had in his possession prior to his first
performing services for the Company (or any of its subsidiaries) that was a
matter of public knowledge, (2) became or becomes a matter of public knowledge
thereafter through sources independent of the Executive, (3) has been or is
disclosed by the Company without restriction on its use, or (4) has been or is
required to be disclosed by law or governmental order or regulation. The
Executive agrees, if there is any reasonable doubt whether an item is "public
knowledge," that he will not regard the item as "public knowledge" until and
unless the Chairman confirms to the Executive that the information is public
knowledge or an arbitrator, acting pursuant to Section 9, determines that the
information is "public knowledge."
4.2. Solicitation of Employees. The Executive agrees that during
his employment with the Company and its affiliates, and following the
termination of such employment for the longer of two years or any period of
salary continuation (such period of employment plus such longer post-employment
period, the "Restricted Period"), he shall not (without the written consent of
the Company or its subsidiaries as applicable) directly or indirectly, solicit
the employees of the Company and its subsidiaries to leave their employment; he
shall not employ or seek to employ them; and he shall not cause or induce any of
the Company's direct competitors to solicit or employ the employees of the
Company and its parent or subsidiaries.
4.3. Solicitation of Third Parties. The Executive agrees that
during the Restricted Period, he shall not, either directly or indirectly,
recruit, solicit or otherwise induce or influence any customer, supplier, sales
representative, lender, lessor or any other person having a business
relationship with the Company and its subsidiaries or affiliates to discontinue
or reduce the extent of such relationship except in the course of his duties
pursuant to this Agreement and with the good faith objective of advancing the
Company's business interests.
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4.4. Post-Termination Cooperation. The Executive agrees that upon
termination of his employment with the Company, he will continue to cooperate in
the following areas:
4.4.1. With the Company. The Executive agrees that he will
make himself reasonably available to answer questions for the Company's officers
regarding his position or duties or any project, initiative or effort for which
the Executive was responsible during his employment with the Company or its
respective affiliates. The Executive also agrees to cooperate with the Company
during the course of all third party proceedings arising out of the Company's
business about which the Executive has knowledge or information. Such
proceedings may include, but are not limited to, internal investigations,
administrative investigations or proceedings and lawsuits (including pre-trial
discovery and trial testimony). For purposes of this subsection, cooperation
includes, but is not limited to, the Executive's making himself reasonably
available for interviews, meetings, depositions, hearings and/or trials without
the need for subpoena or assurances by the Company, providing any and all
documents in his possession that relate to the proceeding, and providing
assistance in locating any and all relevant notes and/or documents. The
Executive will be entitled to receive reasonable compensation and reimbursement
for reasonable expenses incurred in connection with any activity described in
this subsection.
4.4.2. With Third Parties. The Executive agrees not to
communicate with, or give statements or testimony to, any opposing attorney,
opposing attorney's representative (including private investigator) or current
or former employee relating to any matter about which the Executive has
knowledge or information (other than knowledge or information that is "public
knowledge" as defined in subsection 4.l) as a result of his employment with the
Company (or any of its affiliates) unless compelled to do so by lawfully-served
subpoena or court order. Such matters specifically include, but are not limited
to, any pending or threatened lawsuits or administrative investigations. The
Executive also agrees to notify the Chairman immediately if he is contacted by a
third party or receives a subpoena or court order to appear and testify.
4.4.3. With Media. The Executive agrees not to communicate
with, or give statements to, any member of the media (print, television or
radio) relating to any matter about which the Executive has knowledge or
information (other than knowledge or information that is "public knowledge" as
defined in subsection 4.1) as a result of his employment with the Company and
any affiliate of Company. Such matters specifically include, but are not limited
to, any pending or threatened lawsuits or administrative investigations. The
Executive also agrees to notify the Chairman immediately if he is contacted by
any member of the media.
4.5. Non-Disparagement. The Executive and the Company agree that
during and after the Term of this Agreement, neither shall make any disparaging
remarks about the other and the Executive will not make any disparaging remarks
about the Company's Chairman or any of the Company's senior executives provided,
however, that no disparaging remark shall be deemed made by the Company unless
made by a senior officer or director of the Company. However, this subsection
will not preclude (1) any remarks that may be made by the Executive under the
terms of subsection 4.4, (2) the Company from making disparaging remarks to
employees or agents of the Company (with a need to know) about the Executive
concerning any
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conduct that may lead to a termination for Cause, as defined in subsection 5.3
(including, but not limited to, initiating a good faith inquiry or investigation
that may result in a termination for Cause), but only to the extent reasonably
necessary to investigate the Executive's conduct and to protect the Company's
interests, (3) the Executive from making disparaging remarks about the Company,
concerning any conduct that may lead to a termination for Good Reason, as
defined in subsection 5.4 (including, but not limited to, initiating an inquiry
or Investigation that may result in a termination for Good Reason), but only to
the extent reasonably necessary to investigate the Company's conduct and to
protect the Executive's interests, (4) the Company or the Executive from making
disparaging remarks in connection with any litigation or arbitration between
them, (5) the Company or the Executive from testifying truthfully in response to
a subpoena or (6) the Executive from non-publicly raising any objections
regarding his duties or directions under Section 2.
4.6. Remedies. Except as expressly provided in subsection 4.1, the
Executive agrees that any disputes under Section 4 shall not be subject to
arbitration under Section 9. If the Executive breaches any provision of Section
4 of this Agreement, the damage may be substantial, although difficult to
quantify, and money damages may not afford the Company an adequate remedy;
therefore, if the Executive breaches or threatens to breach Section 4, the
Company shall be entitled, in addition to other rights and remedies, to seek
specific performance, injunctive relief and other equitable relief to prevent or
restrain such conduct.
5. Termination and Related Benefits. Subject to subsection 10.7, this
Agreement shall terminate upon the occurrence of the events described in this
section. The incentive compensation, Units, SARs, and severance benefits
provided under this Agreement are provided in exchange for the covenants and
releases made and entered into by and between the Executive and the Company,
which covenants and releases have a value equal to 100 percent of such incentive
compensation, Units, SARs, and severance benefits.
5.1. Death. This Agreement shall terminate automatically on the
date of the Executive's death. In the event of termination under this subsection
5.1, the Company shall make the following payments to the beneficiary the
Executive designates on the attached form or, with respect to any equity
compensation, the beneficiary the Executive designates under the Stock Incentive
Plan ("Beneficiary"):
5.1.1. Base Salary. Base salary earned and unpaid as of the
date of termination.
5.1.2. Incentive Compensation. The pro rata share of any
incentive compensation that, but for the Executive's death, he would have
otherwise received under the Company's annual incentive compensation plans for
key executives for the year of termination, based on the extent to which
performance standards are met on the last day of the year in which the Executive
died.
5.1.3. SARs. Any SARs that would have vested if the Executive
had continued to be employed through the last day of the fiscal year during
which he died shall vest on the date they would have so vested. Any SARs that
remain unvested at the conclusion of such fiscal year shall be forfeited.
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5.1.4. Other Company Equity. All existing Company equity other
than SARs shall be governed by the terms of the existing Company plans and the
applicable award agreement thereunder. Any unvested Units shall be forfeited.
5.2. Disability. Upon the Executive's permanent disability, the
Company shall have the right to terminate this Agreement immediately upon notice
to the Executive. For these purposes, permanent disability shall mean that the
Executive cannot, with a reasonable accommodation, perform his duties on a
full-time basis for a period of more than six consecutive calendar months due to
a physical or mental disability or infirmity. In the event of termination as a
result of permanent disability, the Company shall pay to the Executive (and not
the Executive's Beneficiary) the amounts and benefits described in subsection
5.1 as if the Executive died on the date his permanent disability is
established.
5.3. Cause. The Company may terminate the Executive's employment
for Cause upon notice to the Executive. The Company shall have "Cause" to
terminate the Executive's employment upon the Executive's (1) material failure
to substantially perform his position or duties, provided that the Company shall
make a written demand for substantial performance setting forth the specific
reason(s) for same and the Executive shall, if the failure is one that can be
cured, have 60 days to cure, (2) illegal or grossly negligent conduct which is
materially injurious to the Company, (3) material violation of laws or
regulations governing the Company, (4) material act of fraud or dishonesty which
has had or is likely to have a material adverse effect upon the Company's
operations or financial conditions, or (5) material breach of Section 4 of this
Agreement. The Company's dissatisfaction with the Executive's performance, or
the business results achieved, shall not constitute Cause under this Section
5.3. The Executive shall have an opportunity to be heard by the Board prior to a
termination for Cause. In the event of a termination for Cause, the Company
shall pay to the Executive:
5.3.1. Base Salary. Any base salary earned to the date of
termination.
5.3.2. Incentive Compensation. Any unpaid incentive
compensation earned under the terms of the Company's annual incentive
compensation plan for key executives for the fiscal year that ends before the
fiscal year during which he is terminated for Cause, as defined in subsection
5.3 (but no incentive compensation will be given with respect to the fiscal year
during which he is terminated for Cause, as defined in subsection 5.3).
5.3.3. Equity Compensation Awards. All equity compensation
awards shall be governed by the terms of the Stock Incentive Plan and the
applicable award agreement thereunder. Any unvested Units shall be forfeited.
5.4. Without Cause or Good Reason. The Company may terminate the
Executive's employment at any time Without Cause upon notice to the Executive. A
termination "Without Cause" is a termination of the Executive's employment by
the Company for any reason other than those set forth in subsections 5.1, 5.2,
5.3, or 5.8 of this subsection. Also, the Executive may terminate his employment
for "Good Reason" (as defined in this section). Except as provided in subsection
5.6, in the event of a termination by the Company Without Cause or by the
Executive for Good Reason, the Company shall, subject to subsection 10.5, pay to
the Executive:
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5.4.1. Base Salary and Welfare Benefits Continuation. Base
salary continuation for a period following the effective date of termination
equal to the shorter of (x) the remainder of the Term (as then in effect) plus
18 months or (y) the three-year period commencing on the date of termination,
which base salary continuation shall be paid in equal installments in accordance
with the Company's payroll practices for executive employees. The Company shall
also reimburse the Executive for his cost of maintaining continuing health care
coverage for a period of no more than 18 months following the effective date of
termination; provided, however, that health insurance reimbursements shall cease
upon the Executive's becoming eligible for similar coverage under another
benefit plan and further provided that the amount of this reimbursement will not
be larger than the sum of the premiums the Executive would have incurred under
COBRA to maintain coverage for 18 months under the Company's plan in which he
was participating (and at the same level he was participating) when his
employment terminated.
5.4.2. Incentive Compensation. The pro rata share of any
incentive compensation that, but for the Executive's termination, he would have
otherwise received under the Company's annual incentive compensation plans for
key executives for the year of termination, based upon the extent to which
performance standards are met on the last day of such year; provided, however,
that if the date of termination occurs prior to the end of Fiscal Year 2006,
such prorated bonus shall in no event be less than the amount of the guaranteed
bonus provided for the fiscal year during which occurs the date of termination
pursuant to subsection 3.2.1. In addition, if the date of termination occurs
prior to commencement of a fiscal year with respect to which the Executive is
guaranteed a guaranteed bonus pursuant to subsection 3.2.1, the Company shall
pay to the Executive the amount of such guaranteed bonus for such fiscal year
not yet commenced, such payment to be made at the same time as bonus payments
for such fiscal year not yet commenced are made to other Company executives.
5.4.3. SARs and Units. Any SARs and Units that would have
vested during the three months following such termination shall vest on the date
they would have so vested. Any SARs and Units that remain unvested at the
conclusion of such three months shall be forfeited.
5.4.4. Other Company Equity. All existing Company equity other
than SARs and Units shall be governed by the Stock Incentive Plan and the
applicable award agreement thereunder.
5.4.5. Definition of Good Reason. For purposes of this
Agreement, "Good Reason" means without the Executive's express prior written
consent, the occurrence of any one or more of the following events during the
term of this Agreement and which is not corrected to the Executive's reasonable
satisfaction within 60 days after he gives notice to the Chairman of the
Company's Board of the circumstance that he believes does or may constitute Good
Reason:
(1) A material reduction in the Executive's duties,
responsibilities or status with respect to the Company, as compared to
those in effect on the effective date of this Agreement (but will not
include any changes resulting directly from implementation of a plan that
restructures the business organization of the Company and its affiliates,
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including, without limitation, by way of disaffiliation or liquidation of
a subsidiary or division), it being understood that the mere occurrence of
a sale of the Company or of a controlling interest therein to a third
party shall not constitute such a material reduction as a result of the
Company ceasing to be publicly traded or because the Company becomes a
subsidiary of another entity;
(2) Deprivation of the Executive of the titles of Chief
Executive Officer and President of the Company without a simultaneous
grant of a more senior title;
(3) The permanent assignment to the Executive of job duties
materially inconsistent with those contemplated by Section 2;
(4) The failure of the Company to maintain the Executive's
relative level of coverage under the employee benefit or retirement plans,
policies, practices or arrangements as in effect on the effective date of
this Agreement, both in terms of the amount of benefits provided and the
relative level of the Executive's participation. However, Good Reason will
not arise under this subsection if the Company eliminates and/or modifies
any of these programs if required by law to do so, to the extent needed to
preserve the tax-character of the plan, policy, practice or arrangement,
or if such elimination and/or modification applies uniformly to other
Company employees similarly situated to the Executive;
(5) Any material breach of this Agreement including failure to
make any payment or grant provided under this Agreement when due by or on
or in behalf of the Company; or
(6) After a Change in Control, (i) a requirement that the
Executive relocate his principal office or worksite (or the indefinite
assignment of the Executive) to a location more than 50 miles distant from
(A) the principal office or worksite to which he was permanently assigned
as of the date hereof or (B) any location to which the Executive is
permanently assigned, with his consent, after the date hereof or (ii)
relocation of the Company's corporate headquarters to a site that is more
than 50 miles distant from (A) its location on the effective date of this
Agreement or (B) any location to which it is moved with his concurrence
after the effective date of this Agreement. For purposes of this
subsection, the Executive will be deemed to have consented to any
relocation undertaken as part of a plan that restructures the Company's
business organization and which the Executive designed or was materially
involved in designing and to which the Executive has specifically agreed
in writing or which is contemplated by subsection 2.3.
5.5. Voluntary Termination by Executive. The Executive may
voluntarily terminate his employment with the Company at any time. In the event
of the Executive's voluntary termination, the Company shall pay to the Executive
the amounts described in subsection 5.3 as if the termination had been pursuant
to that subsection.
5.6. Change in Control. Subject to subsection 5.7, if the Company
terminates the Executive's employment Without Cause, as defined in subsection
5.4, or if the Executive
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terminates employment for Good Reason within the 180-day period concluding on
the date a Change in Control (as defined in subsection 5.6.4) occurs or within
the two-year period beginning on the day following the date of a Change in
Control (such 180-day and two-year periods, together, the "Protected Period"),
the Company will, subject to subsection 10.5, pay the following amounts (reduced
by any amounts paid or benefit provided under subsection 5.4 on account of a
termination Without Cause or for Good Reason within the six-month period
concluding on the date a Change in Control occurs):
5.6.1. Base Salary and Incentive Compensation. Within 30 days,
the Company will pay to the Executive a lump sum amount equal to the product of
(x) the sum of (1) the Executive's base salary (at the annual rate in effect on
the date of termination), plus (2) the Executive's target bonus (at the annual
rate in effect on the date of termination), plus (3) $50,000, times (y) three.
5.6.2. Welfare Benefits Continuation. The Company shall also
reimburse the Executive for his cost of maintaining continuing health care
coverage for the period concluding on the 18-month anniversary of the
then-scheduled conclusion of the Term; provided, however, that health insurance
reimbursements shall cease upon the Executive's becoming eligible for similar
coverage under another benefit plan and further provided that the amount of this
reimbursement will not be larger than the sum of the premiums the Executive
would have incurred under COBRA to maintain coverage for such period under the
Company's plan in which he was participating (and at the same level he was
participating) when his employment terminated.
5.6.3. SARs and Units. All unvested SARs and Units will vest
in full upon such termination.
5.6.4. Other Company Equity. All existing Company equity other
than SARs and Units shall be governed by the Stock Incentive Plan and the
applicable award agreement thereunder.
5.6.5. Change in Control. For purposes of this Agreement and
except as provided below, "Change in Control" means the occurrence of the
following:
(1) An acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a
"Person") that results in beneficial ownership (within the meaning of Rule
13d 3 promulgated under the Exchange Act) by such Person of 25% or more of
either (i) the then outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (ii) the combined voting power of
the then outstanding voting securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Company Voting
Securities"), if upon consummation of such acquisition Schottenstein
Stores Corporation ("SSC") (or any successor thereto) and its affiliates
(which for purposes of this Section 5.6.5 shall include, without
limitation, any trusts established for the benefit of any of ▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇, any of their respective spouses, children, or
lineal descendants, any Person controlled by any such trust, and any
beneficiaries of any such trust) (SSC, any
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successors thereto, and such affiliates, collectively, the "SSC Group") do
not own, in the aggregate, a greater percentage than any other Person of
the combined voting power of the Outstanding Company Voting Securities;
provided, however, that for purposes of this subsection 5.6.5(1), the
following acquisitions shall not constitute a Change in Control: (w) any
acquisition directly from the Company, other than an acquisition by virtue
of the exercise of a conversion privilege unless the security being so
converted was itself acquired directly from the Company, (x) any
acquisition by the Company and its affiliates (collectively, the "RVI
Group"), (y) Any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or RVI Group members, or (z)
any acquisition pursuant to a transaction which complies with clauses (i),
(ii) and (iii) of subsection 5.6.5(3); or
(2) Other than as a result of the exercise by Cerebrus
Partners, L.P. of board representation rights under the Amended and
Restated Senior Convertible Loan Agreement, dated as of June 11, 2002, as
amended from time to time, there occurs a change in the composition of the
Board such that the individuals who, as of the date hereof, constitute the
Board (such Board shall be hereinafter referred to as the "Incumbent
Board") cease for any reason to constitute at least a majority of the
Board; provided, however, for purposes of this subsection 5.6.5(2), that
any individual who becomes a member of the Board subsequent to the date
hereof, whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of those
individuals who are members of the Board and who were also members of the
Incumbent Board (or deemed to be such pursuant to this proviso) shall be
considered as though such individual were a member of the Incumbent Board;
but, provided, further, that any such individual whose initial assumption
of office occurs as a result of an actual or threatened election contest
with respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person
other than the Board shall not be so considered as a member of the
Incumbent Board; or
(3) Consummation of a reorganization, merger or consolidation
or sale or other disposition of all or substantially all of the assets of
the Company ("Corporate Transaction") if upon consummation of such
Corporate Transaction, the SSC Group does not own, in the aggregate, at
least 50% of the combined voting power of the outstanding voting
securities of the corporation resulting from the 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 through one or more subsidiaries) entitled to
vote generally in the election of directors; excluding, however, such a
Corporate Transaction pursuant to which (i) all or substantially all of
the individuals and entities who are the beneficial owners, respectively,
of the Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such Corporate Transaction will
beneficially own, directly or indirectly, more than 50% of, respectively,
the outstanding shares of common stock, and the combined voting power of
the then outstanding voting securities 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
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directly or through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Corporate
Transaction, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities, as the case may be, (ii) no Person (other than
the Company and its affiliates, any employee benefit plan (or related
trust) of the Company and its affiliates, or such corporation resulting
from such Corporate Transaction) will beneficially own, directly or
indirectly, 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 voting securities of such
corporation entitled to vote generally in the election of directors except
to the extent that such ownership existed prior to the Corporate
Transaction, and (iii) at least a majority of the members of the board of
directors of such corporation resulting from such Corporate Transaction
were members of the Incumbent Board at the time of the execution of the
initial agreement or of the action of the Board providing for such
Corporate Transaction; or
(4) The approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company.
In no event will an initial public offering of any direct or indirect subsidiary
of the Company or a distribution of the shares of any such subsidiary to
shareholders of the Company or an affiliate of the Company be treated as a
Change in Control for purposes of this Agreement.
5.7. Excise Tax Equalization Payment.
5.7.1. If the Executive becomes entitled to a payment under
subsection 5.6 and/or any other payment or benefit under this Agreement or under
any other agreement with or plan of the Company (in the aggregate, the "Total
Payments") and if any of the Total Payments will be subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the
"Code") or any similar tax that may hereafter be imposed (the "Excise Tax"), the
Company shall pay to the Executive in cash an additional lump sum 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, wage, employment and Excise Tax upon the Gross-Up Payment
(including FICA), shall be equal to the Total Payments. Such payment shall be
made by the Company to the Executive as soon as practicable following the
effective date of the Executive's termination, but in no event beyond thirty
(30) days from such date. Notwithstanding the foregoing provisions of this
Section 5.7.1, if it shall be determined that some of the Total Payments would
be subject to the Excise Tax, but that the Parachute Value of the Total Payments
does not exceed 110% of the Safe Harbor Amount, then no Gross-Up Payment shall
be made to the Executive and the amounts payable to the Executive under this
Agreement shall be reduced so that the Parachute Value of the Total Payments, in
the aggregate, equals the Safe Harbor Amount. For purposes of the preceding
sentence, (i) "Parachute Value" of a Total Payment shall mean the present value
as of the date of the change of control for purposes of Section 280G of the Code
of the portion of such Total Payment that constitutes a "parachute payment"
under Section 280G(b)(2) of the Code, and (ii) "Safe Harbor Amount" means 2.99
times the Executive's "base amount," within the meaning of Section 280G(b)(3) of
the Code.
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5.7.2. In determining the potential impact of the Excise
Tax, the Company may rely on any advice it deems appropriate, including, but not
limited to, the counsel of its independent auditors. For purposes of determining
whether any of the Total Payments will be subject to the Excise Tax and the
amounts of such Excise Tax:
(1) Any other payments or benefits received or to be
received by the Executive in connection with a Change in Control or the
Executive's termination of employment (whether pursuant to the terms of
this Agreement or any other plan, arrangement or agreement with the
Company, or with any Person (as defined in subsection 5.6.4) whose actions
result in a Change in Control or any Person affiliated with the Company or
such Persons) shall be treated as "parachute payments" within the meaning
of Section 280G(b)(2) of the Code, and all "excess parachute payments"
within the meaning of Section 280G(b)(l) shall be treated as subject to
the Excise Tax, unless in the opinion of the Company's independent
auditors, such other payments or benefits (in whole or in part) do not
constitute parachute payments, or unless such excess parachute payments
(in whole or in part) represent reasonable compensation for services
actually rendered within the meaning of Section 280G(b)(4) of the Code in
excess of the base amount within the meaning of Section 280G(b)(3) of the
Code, or are otherwise not subject to the Excise Tax;
(2) The amount of the Total Payments which shall be
treated as subject to the Excise Tax shall be equal to the amount of
excess parachute payments within the meaning of Section 280G(b)(1) of the
Code (after applying subsection 5.7.2(1)); and
(3) The value of any non-cash benefits or any deferred
payment or benefit shall be determined by the Company's independent
auditors in accordance with the principles of Sections 280G(d)(3) and (4)
of the Code.
(4) 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 the
Executive's termination, net of the maximum reduction in federal income
taxes which could be obtained from deduction of such state and local
taxes.
5.7.3. In the event the Internal Revenue Service adjusts
the computation of the Company under subsection 5.7.2 so that the Executive did
not receive the greatest net benefit to which he should been entitled under this
Agreement, 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 Company; provided, however, that the Executive follows the
procedures set forth in this subsection 5.7.3.
(1) The Executive shall notify the Company if and when
he consents to the extension of the statute of limitations for any year
for which a payment is made under subsection 5.6;
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(2) The Executive shall notify the Company in writing of
any claim by the Internal Revenue Service that, if successful, would
require the payment by the Company of the Gross-Up Payment. Such
notification shall be given as soon as practicable but no later than ten
(10) business days after the later of either: (A) the date the Executive
has actual knowledge of such claim or (B) ten (10) days after the Internal
Revenue Service issues to the Executive either a written report proposing
imposition of the Excise Tax or a statutory notice of deficiency with
respect thereto, and shall apprise the Company of the nature of such claim
and the date on which such claim is requested to be paid. The Executive
shall not pay such claim prior to the expiration of the thirty (30) day
period following the date on which it gives such notice to the Company (or
such shorter period ending on the date that any payment of taxes with
respect to such claim is due). If the Company notifies the Executive in
writing prior to the expiration of such period that it desires to contest
such claim, the Executive shall:
(i) Give the Company any information reasonably
requested by the Company relating to such claim;
(ii) Take such action in connection with
contesting such claim as the Company shall reasonably request in
writing from time to time, including, without limitation, accepting
legal representation with respect to such claim by an attorney
reasonably selected by the Company; provided, however, (A) nothing
in this Agreement shall obligate the Executive to extend any statute
of limitations with respect to any tax return, if any other tax
issues have been, or might be, raised by the Internal Revenue
Service in connection with such return and (B) the Executive shall
be entitled to be represented by counsel of his own choosing with
respect to such other issue(s) and such counsel and the counsel
selected by the Company shall reasonably cooperate with one another
in the respective representations;
(iii) Cooperate with the Company in good faith in
order effectively to contest such claim; and
(iv) Permit the Company to participate in any
proceedings relating to such claims.
(3) The Company shall directly bear and pay all costs
and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Executive
harmless, on an after-tax basis, for any Excise Tax or income tax,
including interest and penalties with respect thereto, imposed as a result
of such representation and payment of costs and expenses. Without
limitation of the foregoing provisions of this subsection 5.7.3, the
Company shall control all proceedings taken in connection with such
contest and, at its sole option, may pursue or forego any and all
administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim. However, if the Executive does
not comply in, every respect with the procedures described in this
subsections (A) the Company will not be obliged to defend (or participate
in the defense of) the Executive against any claim
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made by the Internal Revenue Service and (B) will not be liable in any
respect for any additional taxes interest or penalties assessed against
the Executive.
(4) If, after the receipt by the Executive of an amount
pursuant to this subsection 5.7 (including the Gross-Up Payment), the
Executive becomes entitled to receive any refund with respect to such
claim due to an overpayment of any Excise Tax or income tax, including
interest and penalties with respect thereto, the Executive shall (subject
to the Company's complying with the requirements of this subsection 5.7.3)
promptly pay to the Company the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto).
5.8. Non-Renewal. The Executive's employment shall terminate on the
last day of the then-scheduled Term if the Company fails to renew the Agreement
as provided for in Section 1. In the event of termination by non-renewal that
does not occur during the Protected Period, the Company will, subject to
subsection 10.5, pay the Executive base salary continuation for a period of 18
months following the date of termination, which shall be paid in equal
installments in accordance with the Company's payroll practices for executive
employees. The Company shall also reimburse the Executive for his cost of
maintaining continuing health care coverage for a period of no more than 18
months following the effective date of termination; provided, however, that
health insurance reimbursements shall cease upon the Executive's becoming
eligible for similar coverage under another benefit plan; and further provided
that the amount of this reimbursement will not be larger than the sum of the
premiums the Executive would have incurred under COBRA to maintain coverage for
18 months under the Company's plan in which he was participating (and at the
same level he was participating) when his employment terminated. Any SARs and
Units that would have vested during the three months following such termination
shall vest on the date they would have so vested. Any SARs and Units that remain
unvested at the conclusion of such three months shall be forfeited. All existing
Company equity other than SARs and Units shall be governed by the Stock
Incentive Plan and the applicable award agreement thereunder. Notwithstanding
the foregoing, if the Company fails to renew the Agreement at any point during
the Protected Period, the Executive will receive the payments and benefits
described in subsections 5.6 and 5.7.
5.9. Method of Payment. The Company, at its option, may elect to
pay, as a lump sum, any installment payments due under Section 5. If the Company
decides to accelerate payment of any installment obligation due under Section 5,
the amount paid will be reduced to reflect the value of the accelerated payment.
This reduction will be based on the rate paid under 90-day U.S. Treasury Bills
issued on the first issue date after this Agreement terminates.
5.10. Application of Pro Rata. Whenever a pro rata share is required
to be paid under this Section 5, it will be based on the number of days between
the first day of the fiscal year during which the Executive terminates
employment and the date that the Executive terminates employment divided by the
number of days in the fiscal year during which the Executive terminates
employment.
6. Notice.
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6.1. How Given. Whenever in this Agreement notice is permitted or
required, the notice shall be in writing and delivered in person or by
registered, U.S. mail, return receipt requested, postage prepaid, or through
Federal Express, UPS, DHL and any other reputable professional delivery service
that maintains a confirmation of delivery system. In the event of delivery by
mail, the notice shall be addressed to the Chairman of the Board at the
Company's then current corporate offices and to the Executive at his
then-current address as contained in his personnel file.
6.2. Effective Date. Notice is effective on the date it is
delivered in, the event of personal delivery, or on the date its receipt is
acknowledged in the event of delivery by registered mail or through a
professional delivery service described in subsection 6.1.
6.3. Termination. Any notice pertaining to termination of
employment under Section 5 of this Agreement shall indicate the specific
provision relied upon in this Agreement and describe in reasonable detail the
facts and circumstances that purport to provide the basis for the termination.
7. Release. In exchange for the payments and benefits to the Executive
described in this Agreement, as well as any and all other mutual promises made
in this Agreement, the Executive and his personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees, legatees
and assigns agree to release and forever discharge the Company and its
subsidiaries, parent corporations and affiliated entities, and its and their
executives, officers, directors, agents, attorneys, successors and assigns, from
any and all claims, suits and/or causes of action that grow out of or are in any
way related to his recruitment to or his employment with the Company, except the
Executive does not release and discharge the Company for any claim that the
Company has breached this Agreement and such claims will be subject to
arbitration pursuant to Section 9 of this Agreement. This release includes, but
is not limited to, any claims that the Company violated the Employee Retirement
and Income Security Act, the Age Discrimination in Employment Act, the Older
Worker's Benefit Protection Act, the Americans with Disabilities Act, Title VII
of the Civil Rights Act of 1964 (as amended), the Family and Medical Leave Act,
any law prohibiting discrimination, harassment or retaliation in employment, any
claim of promissory estoppel or detrimental reliance, defamation, intentional
infliction of emotional distress, the public policy of any state, or any
federal, state or local law. The Executive agrees that, upon termination of his
employment, he shall reaffirm and execute this release in writing. If the
Executive fails to reaffirm and execute this release, or if the Executive
revokes the release during any statutorily required period of revocation, the
Executive agrees that he will not receive any payment from the Company other
than the salary, earned incentive pay and benefits due and payable as a result
of actual work for the Company. Specifically, the Executive agrees that a
necessary condition for the payment of any of the amounts described in Section 5
in the event of termination (except termination under subsection 5.1) is the
Executive's reaffirmation of this release upon termination of his employment.
The Executive agrees that he is an experienced senior executive knowledgeable
about the claims that might arise in the course of his employment with the
Company and that he knowingly agrees that the payments upon termination (except
those upon the Executive's Death) provided for in the Agreement are satisfactory
consideration for the release of such possible claims. The Executive is advised
to consult with an attorney prior to executing this Agreement. The Executive
agrees that he has been given 21 days in which to consider this release.
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8. Insurance and Indemnification. 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. The coverage shall be 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 for
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.
9. Arbitration. UNLESS STATED OTHERWISE IN THIS AGREEMENT, THE PARTIES
AGREE THAT ARBITRATION SHALL BE THE SOLE AND EXCLUSIVE REMEDY FOR EACH OF THEM
TO REDRESS ANY DISPUTE, CLAIM OR CONTROVERSY INVOLVING THE INTERPRETATION OF
THIS AGREEMENT OR THE TERMS, CONDITIONS OR TERMINATION OF THIS AGREEMENT OR THE
TERMS, CONDITIONS OR TERMINATION OF THE EXECUTIVE'S EMPLOYMENT WITH THE COMPANY,
INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS FOR ANY TORT BREACH OF CONTRACT,
VIOLATION OF PUBLIC POLICY OR DISCRIMINATION WHETHER SUCH CLAIM ARISES UNDER
FEDERAL OR STATE LAW.
9.1. The Executive expressly understands and agrees that the claims
that are subject to arbitration under this subsection include, but are not
limited to, asserted violations of the Employee Retirement Income Security Act
of 1974, the Age Discrimination in Employment Act the Americans with
Disabilities Act, Title VII of the Civil Rights Act of 1964 (as amended, the
Family and Medical Leave Act, the Older Worker's Benefit Protection Act; and any
other federal, state or local statute, common law or regulation governing
employment relationships, employment discrimination, harassment or retaliation.
9.2. The parties intend that any arbitration award shall be final
and binding and that a judgment on the award may be entered in any court of
competent jurisdiction, and shall be enforceable in accordance with its terms.
This subsection shall survive the termination or expiration of this Agreement.
9.3. Arbitration shall be held in a location mutually agreed to by
the parties, and shall be conducted by a retired federal judge or other
qualified arbitrator. The arbitrator will be mutually agreed upon by the parties
and the arbitration will be conducted in accordance with the Voluntary
Arbitration Rules of the American Arbitration Association then in effect. The
parties shall have the right to conduct discovery pursuant to the Federal Rules
of Civil Procedure; provided, however, that the Arbitrator shall have the
authority to establish an expedited discovery schedule and cutoff and to resolve
any discovery disputes. The Arbitrator shall not have jurisdiction or authority
to change any provision of this Agreement by alterations of, additions to or
subtractions from the terms hereof. The Arbitrator's sole authority in this
regard shall be to interpret or apply any provision(s) of this Agreement or any
public law alleged to have been violated.
9.4. Any claim or controversy not sought to be submitted to
arbitration, in writing, within 120 days of when the party asserting the claim
knew, or through reasonable diligence should have known, of the facts giving
rise to that party's claim, shall be deemed
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waived and the party asserting the claim shall have no further right to seek
arbitration or recovery with respect to such claim or controversy. Both parties
agree to strictly comply with the time limitation specified in this subsection.
For purposes of this section, a claim or controversy is sought to be submitted
to arbitration if either party gives notice to the other that (1) an issue has
arisen or is likely to arise that, unless resolved otherwise, may be resolved
through arbitration under this section and (2) unless the issue is resolved
otherwise, the complaining party intends to submit the matter to arbitration
under the terms of this section.
9.5. To the extent allowed by law, the parties shall split the
arbitrator's fee. Additionally, and also to the extent allowed by law, the
Company will reimburse the Executive for all other costs of the arbitration
(including any attorney's fees) he incurred in connection with an arbitration
affecting a matter under this Agreement and in which the Executive prevailed;
provided, however, that the amount of this reimbursement will be no more than
the smaller of (1) the amount incurred or (2) the larger of (A) the additional
amount awarded by the arbitrator as a result of the arbitration with respect to
which the costs and attorney fees were incurred or (B) the amount the arbitrator
believes is an equitable reimbursement taking into account the nature and
significance of the matter raised.
9.6. The parties hereby acknowledge that since arbitration is the
exclusive remedy, neither party has the right to resort to any federal, state or
local court or administrative agency concerning breaches of this Agreement or
any other matter subject to arbitration, except as otherwise provided in this
Agreement, and that the decision of the Arbitrator shall be a complete defense
to any suit, action or proceeding instituted in any federal, state or local
court before any administrative agency with respect to any arbitrable claim or
controversy.
9.7. EXECUTIVE AND THE COMPANY EACH WAIVE THE RIGHT TO HAVE A CLAIM
OR DISPUTE WITH ONE ANOTHER DECIDED IN A JUDICIAL FORUM OR BY A JURY, EXCEPT AS
OTHERWISE PROVIDED IN THIS AGREEMENT.
10. General Provisions.
10.1. Representation or Executive. The Executive represents and
warrants that he is not under any contractual or legal restraint that prevents
or prohibits him from entering into this Agreement or performing his obligations
under this Agreement.
10.2. 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 or such other person as may be designated by the Board. This
Agreement, and any attachments referenced in the Agreement, constitute the
entire agreement between the parties regarding their employment relationship,
and any other agreements are terminated and of no further force or legal effect.
No agreements or representations, oral or otherwise, with respect to the subject
matter hereof have been made or relied upon by either party which are not set
forth expressly in this Agreement.
10.3. Governing Law; Severability. This Agreement is intended to be
performed in accordance with, and only to the extent permitted by, all
applicable laws, ordinances, rules and regulations. If any provisions of this
Agreement, or the application thereof
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to any person or circumstance, shall, for any reason and to any extent, be held
invalid or unenforceable, such invalidity and unenforceability shall not affect
the remaining provisions hereof and the application of such provisions to other
persons or circumstances, all of which shall be enforced to the greatest extent
permitted by law. The validity, construction and interpretation of this
Agreement and the rights and duties of the parties hereto shall be governed by
the laws of the State of Ohio, without reference to the Ohio choice of law
rules.
10.4. No Waiver. Except as otherwise provided in subsection 9.4,
failure to insist upon strict compliance with any term hereof shall not be
considered a waiver of any such term.
10.5. Offset. If the Executive obtains other employment during any
period in which he is entitled to receive continued salary or incentive payments
under Section 5, any salary or bonus payments (but excluding directors' fees)
earned by the Executive during such period shall reduce the Company's obligation
to pay continued salary and/or other incentive pay amounts under Section 5 by an
amount equal to 50% of the salary and/or incentive compensation amounts so
earned.
10.6. 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.
10.7. Survival. Subject to the terms of the Executive's beneficiary
designation form, the parties agree that the covenants and promises set forth in
Sections 3 through 10 shall survive the termination of this Agreement and
continue in full force and effect.
10.8. Miscellaneous. No right or interest to, or in, any payments
shall be assignable by the Executive; provided, however, that this provision
shall not preclude the Executive from designating in writing one or more
beneficiaries to receive any amount that may be payable after the Executive's
death and shall not preclude the legal representative of the Executive's estate
from assigning any right hereunder 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. The headings in this Agreement are inserted for convenience of
reference only and shall not be a part of or control or affect the meaning of
any provision hereof.
10.9. Successors to 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 essentially all of the assets of the business of the
Company. Notwithstanding such assignment, the Company shall remain, with such
successor, jointly and severally liable for all its obligations under this
Agreement.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement, which includes an arbitration provision, and consists of 22 pages.
EXECUTIVE
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Signed: November 18, 2004
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RETAIL VENTURES, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
------------------------
Signed: November 17, 2004
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