Exhibit 10(b)
SEVERANCE AGREEMENT
This SEVERANCE AGREEMENT (the "Agreement"), dated as of June 10,
2002, but effective as provided herein, is made and entered into by and between
The Elder-Beerman Stores Corp., an Ohio corporation (the "Company"), and Edward
A. Tomechko (the "Executive").
WHEREAS, the Company believes that it would benefit from the
application of Executive's particular and unique skill, experience and
background to the management and operation of the Company, and that the
Executive will make major contributions to the short- and long-term
profitability, growth and financial strength of the Company;
WHEREAS, the Company considers it in the best interests of its
stockholders to foster the continuous employment of certain key management
personnel;
WHEREAS, the Company recognizes that, as is the case for most
publicly held companies, the possibility of a Change in Control (as defined
herein) exists;
WHEREAS, the Company wishes to assure itself of both present and
future continuation of management, including in the event of a Change in
Control; and
WHEREAS, the Company wishes to provide additional inducement for the
Executive to accept the Company's offer of employment and to remain employed by
the Company;
NOW, THEREFORE, in consideration of the promises and of the mutual
covenants herein contained, it is agreed as follows:
1. TERM. This Agreement shall be effective for a term (the "Term")
commencing on June 10, 2002 (the "Effective Date") and ending on the date of
termination of this Agreement as set forth by either party to this Agreement in
a prior written notice of termination of this Agreement provided to the other
party in accordance with Section 8.5.
2. INVOLUNTARY TERMINATION.
2.1 INVOLUNTARY TERMINATION.
(a) The Executive's employment may be involuntarily terminated
by the Company during the Term and the Executive shall be entitled to the
severance compensation and benefits provided by Section 3.1 or 4.1(a), as the
case may be, unless such termination is the result of the occurrence of one or
more of the following events:
(i) the Executive's death;
(ii) the Exective's Disability (as provided in Section
2.2); or
(iii) Cause (as provided in Section 2.3).
If, during the Term, the Executive's employment is involuntarily terminated by
the Company other than for a reason specified in Section 2.1(a)(i), 2.1(a)(ii)
or 2.1(a)(iii), the Executive will be entitled to the severance compensation and
benefits provided by Section 3.1 or 4.1(a), as the case may be. For purposes of
the foregoing, the termination of the Term and this Agreement by reason of the
Company having given written notice of termination of this Agreement pursuant to
Section 1 shall be deemed an involuntary termination of Executive's employment
by the Company occurring immediately prior to the end of the Term for a reason
other than as specified in Section 2.1(a)(i), 2.1(a)(ii) or 2.1(a)(iii),
provided that prior to such termination of the Term and this Agreement the
Executive has neither (i) terminated employment with, or had his employment
terminated by, the Company for any other reason, nor (ii) committed or engaged
in an act constituting Cause.
(b) The Executive will be treated for purposes of this Agreement
as having been involuntarily terminated by the Company for reasons other than
death, Disability or Cause if the Executive terminates his employment with the
Company for any of the following reasons (each, a "Good Reason") within 30 days
following the occurrence of such Good Reason but prior to the date of the
Executive's death, Disability or on which the Executive has committed or engaged
in an act constituting Cause:
(i) a reduction in the scope or value of the aggregate
Employee Benefits (as defined below) and long-term incentive
compensation provided to the Executive or the termination or denial of
the Executive's rights to such benefits or incentive compensation, any
of which is not remedied by the Company within 10 calendar days after
receipt by the Company of written notice from the Executive of such
reduction or termination;
(ii) if the Executive has been elected to the Board of
Directors of the Company (the "Board"), the Executive is not reelected
to or is removed from the Board;
(iii) the Board fails to appoint the Executive as Chief
Financial Officer of the Company or the Executive is removed from such
position;
(iv) a reduction in the Executive's annual base salary rate
("Base Salary") or the opportunity to earn annual incentive
compensation on a basis at least as favorable to the Executive (in
terms of each of the amount of benefits, levels of coverage and
performance measures and criteria and levels of required performance)
as the benefits payable thereunder prior to the reduction, or the
failure to pay the Executive Base Salary or incentive compensation
earned when due; or
(v) The relocation of the Company's principal executive
offices if the Executive's principal location of work is then in such
offices, or requirement that the Executive have the Executive's
principal location of work changed, to any location that is in excess
of 50 miles from the location thereof immediately preceding the
relocation without the Executive's prior written consent.
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(c) For purposes of this Agreement, "Employee Benefits" means
the perquisites, benefits and service credit for benefits as provided under any
and all employee retirement income and welfare benefit policies, plans, programs
or arrangements in which Executive is entitled to participate (other than this
Agreement), including without limitation any stock option, performance share,
performance unit, stock purchase, stock appreciation, savings, pension,
supplemental executive retirement, or other retirement income or welfare
benefit, deferred compensation, incentive compensation, group or other life,
health, medical/hospital or other insurance (whether funded by actual insurance
or self-insured by the Company or a Subsidiary, as defined below in Sectioin
2.3(b)), disability, salary continuation, expense reimbursement and other
employee benefit policies, plans, programs or arrangements that may now exist or
any equivalent successor policies, plans, programs or arrangements that may be
adopted hereafter by the Company or a Subsidiary, providing perquisites,
benefits and service credit for benefits at least as great in the aggregate as
are payable thereunder prior to a reduction therein
2.2 DISABILITY.
(a) If the Company determines in good faith that the Executive
has incurred a Disability (as defined below) prior to the end of the Term, the
Company may give the Executive written notice of its intention to terminate the
Executive's employment. In such event, the Executive's employment with the
Company will terminate effective on the 30th calendar day after receipt of such
notice by the Executive, provided that within the 30 calendar days after such
receipt, the Executive will not have returned to full-time performance of his
duties.
(b) For purposes of this Agreement, "Disability" will mean the
Executive's incapacity due to physical or mental illness or injury to
substantially perform his duties on a full-time basis for six consecutive months
and within 30 calendar days after a notice of termination is thereafter given by
the Company the Executive will not have returned to the full-time performance of
the Executive's duties; provided, however, if the Executive disagrees with a
determination to terminate him because of Disability, the question of the
Executive's Disability will be subject to the certification of a qualified
medical doctor agreed to by the Company and the Executive or, in the event of
the Executive's incapacity to designate a doctor, the Executive's legal
representative. In the absence of agreement between the Company and the
Executive on the choice of a doctor, the question of the Executive's Disability
shall be resolved within 10 business days of a written request therefor by
either party to the other, by a qualified medical doctor designated by the
Executive Vice President of the Ohio Academy of Family Physicians. The written
opinion of the doctor shall be final and binding upon the parties. In order to
facilitate such determination, the Executive will, as reasonably requested by
the Company, (i) make himself available for medical examinations by a doctor in
accordance with this Section 2.2(b), and (ii) grant the Company and any such
doctor access to all relevant medical information concerning him, arrange to
furnish copies of medical records to such doctor and use his best efforts to
cause his own doctor to be available to discuss his health with such doctor.
2.3 CAUSE.
(a) The Company may terminate the Executive's employment for
Cause (as defined below) prior to the end of the Term by written notice as
provided in Section 8.5.
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(b) For purposes of this Agreement, "Cause" means that, prior to
the end of the Term, the Executive shall have committed or engaged in:
(i) an intentional act of fraud, embezzlement, theft or any
other material violation of law in connection with the Executive's
duties or in the course of the Executive's employment with the Company;
(ii) an intentional breach of any of the express covenants
set forth in Section 6.1, 6.2 or 6.3; or
(iii) intentional wrongful damage to property of the Company
or any entity in which the Company directly or indirectly owns 50% or
more of the then-outstanding securities or interests entitled to vote
generally in the election of directors or other controlling persons (a
"Subsidiary").
For purposes of this Agreement, no act or failure to act on the part of the
Executive shall be deemed "intentional" if it was due primarily to negligence,
but shall be deemed "intentional" only if done or omitted to be done by the
Executive not in good faith and without reasonable belief that the Executive's
action or omission was in and not opposed to the best interest of the Company
and its Subsidiaries. Notwithstanding the foregoing, to terminate the employment
of the Executive for Cause, the Company must deliver to the Executive a Notice
of Termination (as defined below) given within 90 days after the Board of
Directors of the Company (the "Board) both (A) has knowledge of conduct or an
event allegedly constituting Cause and (B) 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, excluding the Executive, at a meeting called for the purpose of
determining that the Executive has engaged in conduct that constitutes Cause
(and at which the Executive had a reasonable opportunity, together with his
counsel, to be heard before the Board prior to such vote).
2.4 OTHER BENEFITS. An involuntary termination by the Company will
not affect any rights that the Executive may have pursuant to any other
agreement, policy, plan, program or arrangement of the Company or Subsidiary
providing benefits, which rights shall be governed by the terms thereof;
provided, however, that any payment or payments under Section 3.1 or 4.1(a) to
which the Executive is entitled shall be in lieu of any severance payments and
benefits to which the Executive may be entitled under any severance pay plan or
policy of the Company or its Subsidiaries, which payments and benefits the
Executive hereby waives.
3. SEVERANCE COMPENSATION AND BENEFITS.
3.1 FORM AND AMOUNT. Upon the Executive's involuntary termination by
the Company during the Term other than by reason of death, Disability or Cause,
as provided in Section 2.1, the Company will:
(a) continue to pay to the Executive as severance compensation
an amount equal to the Executive's Base Salary, as in effect immediately prior
to his termination of employment, for one year following his termination of
employment, such payments to be payable at the times and in the manner
consistent with the Company's general policies regarding compensation for
executive employees; and
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(b) for a period of up to 12 months following the Executive's
involuntary termination (the "Continuation Period") and provided the Executive
was enrolled in the medical and dental plans made available to Company employees
immediately prior to his termination, the Company will arrange to provide the
Executive and his dependents with medical and dental benefits on terms and
conditions (including employee contributions toward premium payments)
substantially similar to those applicable generally to Company employees and
their dependents during the Continuation Period. If and to the extent that any
such benefit is not or cannot be paid or provided under any policy, plan,
program or arrangement of the Company or any Subsidiary, as the case may be,
then the Company will itself pay or provide for the payment to the Executive and
his dependents of such medical and dental benefits on such terms and conditions.
Notwithstanding the foregoing or any other provision of this Agreement, for
purposes of determining the period of continuation coverage to which the
Executive or any of his dependents is entitled pursuant to Section 4980B of the
Internal Revenue Code of 1986, as amended (the "Code"), or any successor
provision thereto, under the Company's medical and dental plans, or successor
plans, the Executive's "qualifying event" shall be the termination of the
Continuation Period and the Executive shall be considered to have remained
actively employed on a full-time basis through that date. Without otherwise
limiting the purposes or effect of Section 5, benefits otherwise receivable by
the Executive pursuant to this Section 3.1(b) will be reduced to the extent
comparable welfare benefits are actually received by the Executive from another
employer during the Continuation Period following the Executive's involuntary
termination, and any such benefits actually received by the Executive shall be
reported by the Executive to the Company.
3.2 CONDITIONS.
(a) Resignation. If at the Executive's termination of employment
the Executive is a member of the Board or a board of any affiliate of the
Company, no amount or benefits will be paid or made available under Section 3.1
or Section 4.1(a) unless the Executive first executes and delivers to the
Company a resignation from membership on the Board and from membership on the
boards of all affiliates of the Company, as the case may be, such resignation to
be effective as of the Executive's termination of employment.
(b) Release. Payment of any amount or benefits described in
Section 3.1 or Section 4.1(a) is conditioned upon the Executive executing and
not revoking a Release of Claims Agreement in the form attached hereto as
Exhibit A.
4. CHANGE IN CONTROL PROVISIONS.
4.1 IMPACT OF CHANGE IN CONTROL.
(a) In the event of a "Change in Control" of the Company, as
defined in Section 4.2, if the Executive's employment is involuntarily
terminated by the Company other than by reason of death, Disability or Cause
prior to the end of the Term but within two years after the Change in Control,
upon such termination the Executive shall not be entitled to the payments and
benefits provided in Section 3.1, but instead shall be entitled, subject to the
provisions of Section 3.2, to receive:
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(i) subject to the deduction provided for in Section
4.1(a)(ii) below, a lump sum cash payment to be paid within 45 days
after termination in an amount equal to two times his Base Salary as in
effect immediately prior to his termination; and
(ii) for a period of up to 24 months following the
Executive's involuntary termination (the "Change-in-Control
Continuation Period") and provided the Executive was enrolled in the
medical and dental plans made available to Company employees
immediately prior to his termination, the Company will arrange to
provide the Executive and his dependents with medical and dental
benefits on terms and conditions (including employee contributions
toward premium payments) substantially similar to those applicable
generally to Company employees and their dependents during the
Change-in-Control Continuation Period. If and to the extent that any
such benefit is not or cannot be paid or provided under any policy,
plan, program or arrangement of the Company or any Subsidiary, as the
case may be, then the Company will itself pay or provide for the
payment to the Executive and his dependents of such medical and dental
benefits on such terms and conditions. For purposes of the foregoing,
to the extent that immediately prior to the Executive's termination of
employment the medical and dental plans in which the Executive is
enrolled require employee contributions in order to participate
therein, an amount equal to 24 multiplied by the monthly contribution
rate being paid by the Executive under such plans immediately prior to
his termination will be deducted from the amount to which the Executive
would otherwise be entitled under Section 4.1(a)(i) and the Executive
will have no further obligation to pay contributions towards the
premium payments for medical and dental benefits to be provided under
this Section 4.1(a)(ii) during the Change-in-Control Continuation
Period. Notwithstanding the foregoing or any other provision of this
Agreement, for purposes of determining the period of continuation
coverage to which the Executive or any of his dependents is entitled
pursuant to Section 4980B of the Code (or any successor provision
thereto) under the Company's medical and dental plans, or successor
plans, the Executive's "qualifying event" shall be the termination of
the Change-in-Control Continuation Period and the Executive shall be
considered to have remained actively employed on a full-time basis
through that date. Without otherwise limiting the purposes or effect of
Section 5, benefits otherwise receivable by the Executive pursuant to
this Section 4.1(a)(ii) will be reduced to the extent comparable
welfare benefits are actually received by the Executive from another
employer during the Change-in-Control Continuation Period following the
Executive's involuntary termination, and any such benefits actually
received by the Executive shall be reported by the Executive to the
Company.
(b) Following a Change in Control, the definition of Good
Reason, as set forth in Section 2.1(b) above, will be expanded to include the
following and the Executive will be treated for purposes of this Agreement,
including Sections 2.1 and 4.1(a), as having been involuntarily terminated by
the Company for reasons other than death, Disability or Cause if, for a Good
Reason, the Executive terminates his employment with the Company prior to the
end of the Term but within two years after the Change in Control and prior to
the date of the
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Executive's death, Disability or on which the Executive has committed or
engaged in an act constituting Cause:
(i) a successor or assign (whether direct or indirect, by
purchase, merger, consolidation, operation of law or otherwise) to all
or substantially all of the business and/or assets of the Company fails
to assume all duties, obligations and liabilities of the Company under
the Agreement pursuant to Section 8.1(a); or
(ii) a significant adverse change in the nature or scope of
authorities, powers, functions, responsibilities or duties attached to
the position held by the Executive from those authorities, powers,
functions, responsibilities or duties which the Executive held
immediately prior to the Change in Control.
(c) In the event of a Change in Control and if prior to the end
of the Term and within two years after the Change in Control, the Executive
terminates his employment for any reason or his employment is terminated by the
Company for reasons other than Cause, the covenant of Section 6.1 will be
inapplicable to the Executive.
4.2 DEFINITION OF CHANGE IN CONTROL. For purposes of this Agreement,
a "Change in Control" will be deemed to occur if at any time during the Term any
of the following events occur:
(a) The sale to any purchaser unaffiliated with the Company of
all or substantially all of the assets of the Company;
(b) The sale, distribution, or accumulation of more than 50% of
the outstanding voting stock of the Company to or by any acquiror or group of
affiliated acquirors that are unaffiliated with the Company;
(c) If, during any period of two consecutive years, individuals
who at the beginning of any such period constitute the Directors of the Company
cease for any reason to constitute at least a majority of the Board; PROVIDED,
HOWEVER, that for purposes of this Section 4.2(c) each Director who is first
elected, or first nominated by the Directors of the Company for election by the
Company's stockholders, by a vote of at least two-thirds of the Directors of the
Company (or a committee thereof) then still in office who were Directors of the
Company at the beginning of any such period will be deemed to have been a
Director of the Company at the beginning of such period; or
(d) The merger or consolidation of the Company with another
entity (as such term is defined in section 101(16) of the Bankruptcy Code, 11
U.S.C. Sections 101-1330) (an "Entity") unaffiliated with the Company if,
immediately after such merger or consolidation, less than a majority 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 the Company entitled
to vote generally in the election of directors.
(e) In no event may a "Change in Control" be construed to
include any change of control of the Company or any Subsidiary that occurs
solely as a result of any
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exchange or distribution of equity securities of the Company or any Subsidiary
upon consummation of a plan of reorganization for the Company or any Subsidiary
in a chapter 11 case.
5. MITIGATION AND OFFSET. The payment of severance compensation by the
Company to the Executive in accordance with the terms of the Agreement is hereby
acknowledged by the Company to be reasonable, and the Executive is under no
obligation to mitigate damages or the amount of any payment or benefits provided
for hereunder by seeking other employment or otherwise; nor will any profits,
income, earnings or other benefits from any source whatsoever create any
mitigation, offset, reduction or any other obligation on the part of the
Executive hereunder or otherwise, except as expressly provided in the last
sentences of Section 3.1(b) and 4.1(a)(ii).
6. COMPETITION; CONFIDENTIALITY; NONSOLICITATION.
6.1 Subject to Section 4.1(c), the Executive hereby covenants and
agrees that during the Term and for one year following the Term he will not,
without the prior written consent of the Board, engage in Competition (as
defined below) with the Company. The foregoing covenant, however, will not apply
during the period following the Executive's termination of employment if his
employment is terminated by the Company for reasons other than Cause. For
purposes of this Agreement, if the Executive takes any of the following actions
he will be engaged in "Competition": engaging in or carrying on, directly or
indirectly, any enterprise, whether as an advisor, principal, agent, partner,
officer, director, employee, stockholder, associate or consultant to any person,
partnership, corporation or any other business entity that is principally
engaged in the business of the Company and its Subsidiaries in their market
areas; provided, however, that "Competition" will not include the mere ownership
of 1% or less of the outstanding securities in any enterprise and exercise of
rights appurtenant thereto.
6.2 The Executive acknowledges that in the course of his employment
by the Company, he will or may have access to and become informed of
confidential or proprietary information, trade secrets, substances and
inventions which are a competitive asset of the Company or its Subsidiaries
("Confidential Information"), including, without limitation, (a) the terms of
any agreement between the Company or Subsidiary and any employee, customer or
supplier, (b) pricing strategy, (c) merchandising and marketing methods, (d)
product development ideas and strategies, (e) personnel training and development
programs, (f) financial results, (g) strategic plans and demographic analyses,
(h) proprietary computer and systems software, and (i) any non-public
information concerning the Company, its employees, suppliers or customers. The
Executive agrees that he will keep all Confidential Information in strict
confidence and as belonging to the Company during the term of his employment by
the Company and thereafter, and will never directly or indirectly, without the
prior written consent of the Company make known, divulge, reveal, furnish, make
available, or use any Confidential Information (except in the course of his
regular authorized duties on behalf of the Company). The Executive agrees that
the obligations of confidentiality hereunder shall survive termination of his
employment at the Company regardless of any actual or alleged breach by the
Company of this Agreement, until and unless any such Confidential Information
shall have become, through no fault of the Executive, generally known to the
public or the Executive is required by law to make disclosure (after giving the
Company notice and an opportunity to contest such requirement). The Executive's
obligations under this Section 6.2 are in addition to, and not in
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limitation of or preemption of, all other obligations of confidentiality which
the Executive may have to the Company under general legal or equitable
principles.
6.3 The Executive hereby covenants and agrees that during the Term
and for one year thereafter the Executive will not attempt to influence,
persuade or induce, or assist any other person in so influencing, persuading or
inducing, any employee of the Company or a Subsidiary to give up, or to not
commence, employment or a business relationship with the Company, or hire any
employee of the Company or its Subsidiaries either directly or on behalf of
others.
6.4 The Executive agrees that the Company would suffer an
irreparable injury if the Executive were to breach the covenants contained in
Sections 6.1, 6.2 or 6.3, and that the Company would by reason of such breach or
threatened breach be entitled to injunctive relief in a court of appropriate
jurisdiction and the Executive hereby stipulates to the entering of such
injunctive relief prohibiting the Executive from engaging in such breach.
7. SURVIVAL. The expiration or termination of the Term will not impair
the rights or obligations of any party hereto that accrue hereunder prior to
such expiration or termination, except to the extent specifically stated herein.
In addition to the foregoing, the Executive's covenants contained in Sections
6.1, 6.2 and 6.3 and the Company's obligations under Sections 3 and 4 will
survive the expiration or termination of this Agreement or the termination of
the Executive's employment for any reason whatsoever.
8. MISCELLANEOUS PROVISIONS.
8.1 SUCCESSORS AND BINDING AGREEMENT. (a) The Company will require
any successor (whether direct or indirect, by purchase, merger, consolidation,
reorganization, operation of law or otherwise) to all or substantially all of
the business or assets of the Company, by agreement in form and substance
satisfactory to the Executive, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent the Company would be
required to perform if no such succession had taken place. This Agreement will
be binding upon and inure to the benefit of the Company and any successor to the
Company, including without limitation any persons acquiring directly or
indirectly all or substantially all of the business or assets of the Company
whether by purchase, merger, consolidation, reorganization, operation of law or
otherwise (and such successor shall thereafter be deemed the "Company" for the
purposes of this Agreement), but will not otherwise be assignable, transferable
or delegable by the Company.
(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 shall, without the consent of the other, assign, transfer or
delegate this Agreement or any rights or obligations hereunder except as
expressly provided in Sections 8.1(a) and 8.1(b). Without limiting the
generality or effect of the foregoing, the Executive's right to receive payments
hereunder 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
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laws of descent and distribution and, in the event of any attempted assignment
or transfer contrary to this Section 8.1(c), the Company shall have no liability
to pay any amount so attempted to be assigned, transferred or delegated.
8.2 GOVERNING LAW. This Agreement will be governed, construed,
interpreted and enforced in accordance with the substantive laws of the State of
Ohio, without regard to conflicts of law principles.
8.3 WITHHOLDING OF TAXES. The Company may withhold from any amounts
payable under this Agreement all federal, state, city or other taxes as the
Company is required to withhold pursuant to any law or government regulation or
ruling.
8.4 SEVERABILITY. Any provision of this Agreement that is deemed
invalid, illegal or unenforceable in any jurisdiction will, as to that
jurisdiction be ineffective to the extent of such invalidity, illegality or
unenforceability, without affecting in any way the remaining provisions hereof
in such jurisdiction or rendering that or any other provisions of this Agreement
invalid, illegal, or unenforceable in any other jurisdiction. If any covenant
should be deemed invalid, illegal or unenforceable because its scope is
considered excessive, such covenant will be modified so that the scope of the
covenant is reduced only to the minimum extent necessary to render the modified
covenant valid, legal and enforceable.
8.5 NOTICES. For all purposes of this Agreement, all communications,
including without limitation notices, consents, requests or approvals, required
or permitted to be given hereunder will be in writing and will be deemed to have
been duly given when hand delivered or dispatched by electronic facsimile
transmission (with receipt thereof confirmed), or five business days after
having been mailed by United States registered or certified mail, return receipt
requested, postage prepaid, or three business days after having been sent by a
nationally recognized overnight courier service such as Federal Express, UPS, or
Purolator, addressed to the Company (to the attention of the Secretary of the
Company) at its principal executive offices and to the Executive at his
principal residence, or to such other address as any party may have furnished to
the other in writing and in accordance herewith, except that notices of changes
of address will be effective only upon receipt.
(a) TO THE COMPANY. If to the Company, addressed to the
attention of the Corporate Secretary, 3155 El-Bee Road, Dayton, Ohio 45439,
(fax) 937-296-4625.
(b) TO THE EXECUTIVE. If to the Executive, to him at his
residence as identified in the Company's payroll system at the time of the
applicable notice.
8.6 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which will be deemed to be an original, but all of which
together will constitute one and the same Agreement.
8.7 ENTIRE AGREEMENT. The terms of this Agreement are intended by
the parties to be the final expression of their agreement with respect to the
Executive's severance compensation payable by the Company and shall supercede
and may not be contradicted by evidence of any prior or contemporaneous
agreement. The parties further intend that this Agreement will constitute the
complete and exclusive statement of its terms and that no extrinsic
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evidence whatsoever may be introduced in any judicial, administrative or other
legal proceeding to vary the terms of this Agreement.
8.8 AMENDMENTS; WAIVERS. This Agreement may not be modified,
amended, or, other than as provided in Section 1, terminated except by an
instrument in writing, signed by the Executive and the Company. Failure on the
part of either party to complain of any action or omission, breach or default on
the part of the other party, no matter how long the same may continue, will
never be deemed to be a waiver of any rights or remedies hereunder, at law or in
equity. The Executive or the Company may waive compliance by the other party
with any provision of this Agreement that such other party was or is obligated
to comply with or perform only through an executed writing; provided, however,
that such waiver will not operate as a waiver of, or estoppel with respect to,
any other or subsequent failure.
8.9 NO INCONSISTENT ACTIONS. The parties will not voluntarily
undertake or fail to undertake any action or course of action that is
inconsistent with the provisions or essential intent of this Agreement.
Furthermore, it is the intent of the parties hereto to act in a fair and
reasonable manner with respect to the interpretation and application of the
provisions of this Agreement.
8.10 HEADINGS AND SECTION REFERENCES. The headings used in this
Agreement are intended for convenience or reference only and will not in any
manner amplify, limit, modify or otherwise be used in the construction or
interpretation of any provision of this Agreement. All section references are to
sections of this Agreement, unless otherwise noted.
8.11 AFFILIATES. For purposes of this Agreement, the term
"affiliate" means with respect to the Company or any other entity, an entity
that directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, the Company or such other
entity, and an entity shall be "unaffiliated" with another entity if such
entities are not "affiliates" with respect to one another.
8.12 EMPLOYMENT RIGHTS. Nothing expressed or implied in this
Agreement will create any right or duty on the part of the Company or the
Executive to have the Executive remain in the employment of the Company or any
Subsidiary. The Executive and the Company understand and acknowledge that the
Executive's employment with the Company constitutes "at-will" employment.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written, but effective as provided in Section 1.
/s/ Edward A. Tomechko
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EDWARD A. TOMECHKO
THE ELDER-BEERMAN STORES CORP.
By: /s/ Byron L. Bergren
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Byron L. Bergren
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