EXHIBIT 10(r)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into as of the 1st
day of February, 2004, by and among Big Lots, Inc., an Ohio corporation ("BLI"),
Big Lots Stores, Inc., an Ohio corporation ("BLSI") (BLI, BLSI and their
respective affiliates, predecessor, successor, subsidiaries and other related
companies are hereinafter jointly referred to as "Employer"), and Donald A.
Mierzwa ("Executive").
WITNESSETH:
WHEREAS, the Employer desires to engage Executive to perform services
for the Employer and Executive desires to perform such services, on the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the sufficiency of which is hereby mutually acknowledged, the
Parties hereby agree as follows:
1. EMPLOYMENT.
(a) DUTIES AND SERVICES. Employer hereby employs Executive as an
Executive Vice President (or other appropriate title as
designated by the Employer in its sole discretion) and
Executive hereby accepts such employment, and shall perform
services of a business, professional or commercial nature for
the Employer in furtherance of the Employer's business. In
performance of these duties, Executive shall be subject to the
direction of and report to an individual holding one or more
of the following titles: Chief Executive Officer, President,
and/or Chief Administrative Officer of Employer.
(b) ADDITIONAL POSITIONS. Executive shall, without any
compensation in addition to that which is specifically
provided in this Agreement, serve as an officer of the
Employer and in such substitute or further offices or
positions with Employer as shall from time to time be
reasonably requested by the Employer. Each office and position
with the Employer, in which Executive may serve or to which he
may be appointed, shall be consistent in title and duties with
Executive's position. For service as a director or officer of
Employer, which service shall in each instance be deemed to be
at the request of the Employer and its Board of Directors,
Executive shall be entitled to the protection of the
applicable indemnification provisions of the charter and code
of regulations of Employer and Employer agrees to indemnify
and hold harmless Executive from and against any claims,
liabilities, damages or expenses incurred by Executive in or
arising out of the status, capacities and activities as an
officer or director of the Employer, to the maximum extent
permitted by law and in accordance with any agreement for
indemnification. On any termination of his employment,
Executive shall be deemed to have resigned from all offices
and directorships held by Executive.
(c) FULL TIME AND ATTENTION. Executive agrees to his employment as
described herein and agrees to devote all of his time and best
efforts to the performance of his duties under this Agreement.
Except as expressly permitted herein, Executive shall not,
without the prior written consent of Employer, directly or
indirectly during the term of this Agreement, render services
of a business, professional or commercial nature to any other
person or firm, whether for compensation or otherwise. So long
as it does not interfere with his full-time employment
hereunder, Executive may attend to outside investments and
serve as a director, trustee or officer of or otherwise
participate in educational, welfare, social, religious and
civic organizations.
2. TERM.
Subject to the provisions for termination provided in this Agreement,
the term of this Agreement shall commence on February 1, 2004 and shall
continue thereafter until Executive's employment is terminated. This
Agreement supersedes and replaces the July 29, 2002 Employment
Agreement between Big Lots Stores, Inc. and its parent, affiliated,
predecessor, successor, subsidiary and other related companies and
Executive.
3. COMPENSATION AND BENEFITS.
(a) BASE SALARY. As compensation for his services hereunder, the
Employer shall pay Executive, an annual base salary (the "Base
Salary") payable in equal installments on regular payroll
dates designated by the Employer, an annual rate of Three
Hundred Fifty Thousand Dollars ($350,000). At least annually,
the Compensation Committee of the BLI Board of Directors shall
review Executive's performance and determine whether an
increase in the Executive's Base Salary is merited. Provided,
however, that in no event shall the Base Salary be adjusted to
an amount lower than the annual rate initially enumerated in
this Paragraph.
(b) BENEFITS. Executive shall be entitled to participate in any
group health care, hospitalization, life insurance, dental,
disability or other benefit plans ("Benefit Plans") available
to executives in the same or similar job classification (other
than bonus compensation or performance plans to the extent
that such plans, in the case of Executive, are in lieu of the
bonus plan set forth in Paragraph 4 herein). Executive's
participation in and benefits under any such Benefit Plans
shall be in accordance with the terms and subject to the
conditions specified in the governing document of the
particular Benefit Plan(s).
(c) VACATION AND SICK LEAVE. Executive shall be entitled to such
periods of vacation and sick leave each year as provided under
Employer's Vacation and Sick Leave Policy for executives of
the same or similar job classification.
(d) AUTOMOBILE ALLOWANCE. During the term of this Agreement,
Employer shall provide Executive with an automobile or a
monthly automobile allowance, in accordance with applicable
policies of the Employer for executives of the same or similar
job classification.
4. BONUS.
Executive shall be eligible to participate in the 1998 Big Lots, Inc.
Key Associate Annual Compensation Plan, as amended (or any such
successor plan, hereinafter "Bonus Program"). Executive shall be
eligible to receive a bonus for the fiscal year beginning February 1,
2004, and for each subsequent fiscal year of employment completed
during the term of this Agreement. Executive's bonus shall be an amount
equal to the Base Salary at the end of such fiscal year multiplied by
the Bonus Payout percentage as determined by the Bonus Program set each
fiscal year by the Compensation Committee of BLI's Board of Directors.
The Bonus Program is based upon the achievement of Employer's annual
financial plan. The Target Bonus for Executive is 60% of Base Salary
and the Stretch Bonus for Executive is 120% of Base Salary, both of
which are defined by the Compensation Committee of BLI's Board of
Directors and are subject to adjustment by BLI's Board of Directors;
provided however, Executive's Target Bonus shall never fall below 60%
of Base Salary and Executive's Stretch Bonus shall never fall below
120% of base salary. Payment of the Bonus described in this Paragraph
is subject to the terms of the Bonus Program and any agreements issued
thereunder.
5. EXPENSES.
Employer shall reimburse Executive during the term of this Agreement
for travel, entertainment and other expenses reasonably incurred by
Executive in the promotion of Employer's business. Executive shall
furnish such documentation and/or receipts with respect to
reimbursement to be paid as requested by the Employer.
6. TERMINATION.
The employment of Executive under this Agreement and term hereof shall
be controlled by this Agreement, exclusively and without regard to any
termination, severance, income continuation, or similar policies of
Employer. Such employment may be terminated:
(a) WITHOUT CAUSE, EMPLOYER TERMINATION. By Employer without cause
at any time upon thirty (30) days notice to the Executive of
such termination, or
(b) WITHOUT CAUSE, EXECUTIVE TERMINATION. By Executive without
cause at any time upon thirty (30) days notice to
the Employer of such termination, or
(c) UPON DEATH OR LONG-TERM DISABILITY OF EXECUTIVE. By Employer
upon the death or long-term disability of Executive, or
(d) FOR CAUSE, EMPLOYER TERMINATION. By Employer for cause at any
time. For purposes hereof, the term "cause" shall mean:
(i) Executive's conviction of fraud, a felony or other
crime involving moral turpitude or Executive's
commission of acts of embezzlement or theft in
connection with his duties or in the course of his
employment.
(ii) Executive engaging in Competitive Activities,
disclosing confidential information, or his willful
breach of any material provision of this Agreement.
(iii) The term "Competitive Activities" shall mean
Executive's participation, without the written
consent of the Board of Directors of the Employer, in
any business enterprise if such business enterprise
engages in direct competition with the Employer. For
purposes of this Agreement, a business enterprise
shall be considered in direct competition with the
Employer, if such business enterprise's sales,
related to any activity then engaged in by the
Employer, amount to ten percent (10%) or more of such
business enterprise's total sales or one percent (1%)
of Employer's annual sales. "Competitive Activities"
shall not include the mere ownership of securities in
any publicly-traded enterprise and the exercise of
rights appurtenant thereto.
(iv) Any termination of Executive for "cause" shall not be
effective until Employer delivers written notice to
Employee pursuant to the terms of Paragraph 11 of
this Agreement.
(v) Any termination by reasons of the foregoing
Subparagraphs (i)-(iv) shall not be in limitation of
any other right or remedy the Employer may have under
this Agreement, at law, in equity or otherwise.
7. EFFECT OF TERMINATION.
(a) WITHOUT CAUSE EFFECT, EMPLOYER TERMINATION. In the event of
the termination of Executive's employment by Employer pursuant
to Paragraph 6(a) above, except as otherwise provided in
Paragraph 5 of this Agreement, Employer shall have no
obligation to pay any compensation or benefits of any kind to
Executive other than,
(i) Base Salary that has been earned but not been paid up
to and including the date of termination;
(ii) A prorata portion of the Bonus under this Agreement
based upon the amount of time worked by the Executive
in the fiscal year when such termination is
effective, provided, however, that such prorata
portion will be determined in the ordinary course of
business and paid at such time following the close of
the fiscal year that such other eligible executives
receive such payment;
(iii) A continuation of Base Salary, automobile allowance
(or use of present company automobile), any Benefit
Plans for which Executive is eligible and enrolled,
for twelve (12) months following the termination of
this Agreement;
(iv) The Benefit Plans and automobile allowance/use
contained in Subparagraph (iii), above, shall cease
if during the twelve (12) months following
termination, Executive is entitled to receive the
same or similar benefits from another employer.
(b) WITHOUT CAUSE EFFECT, EXECUTIVE TERMINATION. In the event of
the termination of Executive's employment by Executive
pursuant to Paragraph 6(b) above, Employer shall have no
obligation to pay any compensation or benefits of any kind to
Executive other than Base Salary that has been earned but not
been paid up to and including the date of termination, and
Executive shall not be entitled to receive any Bonus under
this Agreement or otherwise.
(c) DEATH OR LONG-TERM DISABILITY. In the event of the termination
of Executive's employment by reason of death or long-term
disability pursuant to Paragraph 6(c) above, Employer shall
have no obligation to pay any compensation or benefits of any
kind to Executive or the Executive's estate, other than as
follows:
(i) Base Salary that has been earned but not been paid up
to and including the date of termination;
(ii) A prorata portion of the Bonus under this Agreement
based upon the amount of time worked by the Executive
in the fiscal year when such termination is
effective, provided, however, that such prorata
portion will be determined in the ordinary course of
business and paid at such time
following the close of the fiscal year that such
other eligible executives receive such payment;
(iii) In the case of long-term disability, a continuation
of Base Salary and any Benefit Plans for which
Executive is eligible and enrolled for six (6) months
following the termination of this Agreement and any
long-term disability benefits for which Executive is
eligible under the Employer's long-term disability
group insurance plan.
(iv) The term "Long-Term Disability" shall be construed as
it is defined in the Employer's long-term disability
group insurance plan.
(d) FOR CAUSE EFFECT. In the event of termination for any of the
reasons for cause set forth in Paragraph 6(d) above, except as
otherwise provided in Paragraph 5 of this Agreement, Executive
shall not be entitled to further compensation or other
benefits under this Agreement (other than as provided by law),
except as to Base Salary that has been earned but not been
paid up to and including the date of termination. Further,
Executive shall not be entitled to receive any Bonus
determined under this Agreement or otherwise.
8. CHANGE IN CONTROL.
If there is a Change in Control (as defined herein) and Executive's
employment is thereupon terminated or terminated within twenty four
(24) months after the effective date thereof, Executive shall be
entitled to the termination benefits as set forth in this Paragraph and
its subparagraphs in lieu of other provisions of this Agreement. For
purposes of this Paragraph, Executive's employment shall be deemed to
have been terminated following a change in control only if Employer
terminates such employment without cause (as defined in paragraph 6(a)
above), or if a Constructive Termination occurs. "Constructive
Termination" shall mean a resignation by Executive because of any
material adverse change or material diminution in Executive's then
current reporting relationships, job description, duties,
responsibilities, compensation, perquisites, office or location of
employment (as reasonably determined by Executive in his good faith
discretion); provided, however, that Executive shall notify Employer in
writing at least forty five (45) days in advance of any election by
Executive to terminate his employment because of a Constructive
Termination hereunder, specifying the nature of the alleged adverse
change or diminution and Employer shall have a period of ten (10)
business days after the receipt of such notice to cure such alleged
adverse change or diminution before Executive shall be entitled to
exercise any such rights and remedies. Executive shall not be entitled
to the benefits available hereunder unless such notice is timely given.
(a) CHANGE IN CONTROL BENEFITS. The benefits payable to Executive
are as follows:
(i) Employer shall pay to Executive a lump sum cash
payment, net of any applicable withholding taxes, in
an amount equal to two (2) times his Base Salary
immediately prior to the effective date of such
Change in Control (the "Lump Sum Payment"); provided,
that if there are fewer than twenty four (24) months
remaining from the date of Executive's termination to
Executive's normal retirement date at age 65,
Employer shall instead pay Executive a prorata amount
of the Lump Sum Payment based upon the number of
months remaining until Executive's normal retirement
date at age 65. The applicable amount shall be paid
on or before the next regular payroll date following
the termination of the Executive's employment.
(ii) In addition to the payment described in Paragraph
8(a)(i) above, Employer shall pay to Executive a lump
sum cash payment, net of any applicable withholding
taxes, in an amount equal to two (2) times the
Executive's then current Stretch Bonus, as defined in
and determined annually by the Compensation Committee
of BLI's Board of Directors; provided, that:
(A) In the event the Executive's Bonus is
undefined or is not subject to a maximum
payout, the Executive's Bonus shall be
deemed to be 200% of the Executive's then
current Base Salary, and
(B) If there are fewer than twenty four (24)
months remaining from the date of
Executive's termination to Executive's
normal retirement date at age 65, Employer
shall instead pay Executive a prorata amount
of the Lump Sum Bonus Payment based upon the
number of months remaining until Executive's
normal retirement date at age 65. Executive
shall receive the Lump Sum Bonus Payment at
the same time Executive receives the Lump
Sum Payment described above.
(iii) A continuation of any Benefit Plans for which
Executive (and his spouse and/or dependents, if their
participation is permitted under the terms of the
subject plan) is eligible and enrolled for twelve
(12) months following the termination of this
Agreement; provided, that Executive's participation
in the plans referred to herein shall be terminated
(other than as provided by law) when and to the
extent that Executive is entitled to receive the same
or similar benefits from another employer during such
period. Executive's participation in and benefits
under any such plan shall be on the terms and subject
to the conditions specified in the governing document
of the particular Benefit Plan(s).
(iv) If all or any portion of the amount payable under
paragraph 8(a)(i) and 8(a)(ii) of this Agreement,
either alone or together with other amounts that
Executive is entitled to receive in connection with a
Change in Control, constitutes "excess parachute
payments" within the meaning of Section 280G of the
Internal Revenue Code of 1986, as amended (the
"Code"), or any successor provision, that are subject
to the excise tax imposed by Section 4999 of the Code
(or any similar tax or assessment), the amounts
payable hereunder shall be increased to the extent
necessary to place Executive in the same after-tax
position as Executive would have been had no such
excise tax or assessment been imposed on any such
payment paid or payable to Executive under Paragraph
8(a)(i) and 8(a)(ii) of this Agreement or any other
payment that Executive may receive as a result of
such Change in Control. The determination of the
amount of any such tax or assessment and the
resulting amount of incremental payment required
hereby in connection therewith shall be made by the
independent accounting firm employed by Employer
immediately prior to the applicable Change in
Control, within thirty (30) calendar days after the
payment of the amount payable pursuant to Paragraph
8(a)(i) and 8(a)(ii) of this Agreement. Said
incremental payment shall be made within five (5)
business days after said determination has been made.
(v) If, after the date upon which any payment is to be
made under this Paragraph, it is determined (pursuant
to final judgment of a court of competent
jurisdiction or an agreed upon tax assessment) that
the amount of excise or other similar taxes or
assessments payable by Executive is greater than the
amount initially so determined, then Employer shall
pay Executive an amount equal to the sum of (i) such
additional excise or other similar taxes, plus (ii)
any interest, fines and penalties resulting from such
underpayment, plus (iii) an amount necessary to
reimburse Executive for any income, excise or other
tax or assessment payable by Executive with respect
to the amounts specified in (i) and (ii) above, and
the reimbursement provided by this clause (iii).
Payment thereof shall be made within five (5)
business days after the date upon which such
subsequent determination is made.
(vi) In addition to the benefits described above,
Executive shall be entitled to all rights derived
under the Big Lots, Inc. 1996 Performance Incentive
Plan, as Amended (f/k/a Consolidated Stores
Corporation 1996 Performance Incentive Plan, as
Amended) in the event of a "Change in Effective
Control" (as defined in that plan).
(b) CHANGE IN CONTROL DEFINED. As used herein, "Change in Control"
means any of the following events:
(i) Any person or group (as defined for purposes of
Section 13(d) of the Securities Exchange Act of 1934)
becomes the beneficial owner of, or has the right to
acquire (by contract, option, warrant, conversion of
convertible securities or otherwise), 20% or more of
the outstanding equity securities of BLI entitled to
vote for the election of directors;
(ii) A majority of the Board of Directors of BLI is
replaced within any period of two (2) years or less
by directors not nominated and approved by a majority
of the directors of BLI in office at the beginning of
such period (or their successors so nominated and
approved), or a majority of the Board of Directors of
BLI at any date consists of persons not so nominated
and approved;
(iii) The stockholders of BLI approve an agreement to
reorganize, merge or consolidate with another
corporation (other than BLSI or an affiliate); or
(iv) The stockholders of BLI adopt a plan or approve an
agreement to sell or otherwise dispose of all or
substantially all of BLI's assets (including without
limitation, a plan of liquidation or dissolution), in
a single transaction or series of related
transactions.
(c) EFFECTIVE DATE/TERMS. The effective date of any such Change in
Control shall be the date upon which the last event occurs or
last action taken such that the definition of such Change in
Control (as set forth above) has been met. For purposes of
this Agreement, the term "affiliate" shall mean:
(i) Any person or entity qualified as part of an
affiliated group which includes BLSI and BLI pursuant
to Section 1504 of the Code; or
(iii) Any person or entity qualified as part of a
parent-subsidiary group of trades and businesses
under common control within the meaning of Treasury
Regulation Section 1.414(c-2)(b). Determination of
affiliate shall be tested as of the date immediately
prior to any event constituting a Change in Control.
The other provisions of this Paragraph
notwithstanding, the term "Change in Control" shall
not mean any transaction, merger, consolidation, or
reorganization in which BLI exchanges or offers to
exchange newly issued or treasury shares in an amount
less than 50% of the then outstanding equity
securities of BLI entitled to vote for the election
of directors, for 51% or more of the outstanding
equity securities entitled to vote for the election
of at least the majority of the directors of a
corporation other than BLI or an affiliate thereof
(the "Acquired Corporation"), or for all or
substantially all of the assets of the Acquired
Corporation.
(d) LEGAL COUNSEL. If Executive hires legal counsel with respect
to any alleged failure of Employer to comply with any terms of
Paragraph 8 of this Agreement, or institutes any negotiation
or institutes or responds to any legal action to assert or
defend the validity of or to enforce Executive's rights under
Paragraph 8 of this Agreement, or to recover damages for
breach of Paragraph 8 of this Agreement, Employer shall pay
Executive's actual expenses for attorneys' fees and
disbursements, together with such additional payments, if any,
as may be necessary so that the net after-tax payments so made
to Executive equal such fees and disbursements; provided,
however, that Executive shall be responsible for his own fees
and expenses with respect to any lawsuit between Executive and
Employer to enforce rights or obligations under this Paragraph
8 in which Employer is the prevailing party. The fees and
expenses incurred by Executive in instituting or responding to
any such negotiation or legal action shall be paid by Employer
as they are incurred, in advance of the final disposition of
the action or proceeding, upon receipt of an undertaking by
Executive to repay such amounts if Employer is ultimately
determined to be the prevailing party.
(e) INTEREST. If any amount due Executive by the terms of this
Paragraph 8 is not paid when due, then Employer shall pay
interest on said amount at an annual rate equal to the base
lending rate of National City Bank, Cleveland, Ohio, or
successor, as in effect from time to time, for the period
between the date on which such payment is due and the date
said amount is paid.
(f) NO RIGHT OF SETOFF. Employer's obligation to pay Executive the
compensation and to make the arrangement required in this
Paragraph 8 shall be absolute and unconditional and shall not
be affected by any circumstance, including, without
limitation, any setoff, counterclaim, recoupment, defense or
other right that Employer may have against Executive or
otherwise. All amounts payable by Employer hereunder shall be
paid without notice or demand. Subject to the proviso in this
Paragraph 8, each and every payment made hereunder by Employer
shall be final and Employer shall not seek to recover all or
any part of such payment from Executive or from whosoever may
be entitled thereto, for any reason whatsoever. Executive
shall not be obligated to seek other employment or
compensation or insurance in mitigation of any amount payable
or arrangement made under this Paragraph 8, and the obtaining
of any such other employment or compensation or insurance,
except as otherwise provided in this Agreement, shall in no
event effect any reduction of Employer's obligations to make
the payments and arrangements required under this Paragraph 8.
9. COVENANTS OF EXECUTIVE.
(a) Covenants. Executive acknowledges that the principal
businesses of Employer include the operation of its "Big Lots"
discount general merchandise consumer goods retail outlets,
the inventories of which are acquired primarily through
special purchase situations such as overstocks, closeouts,
liquidations, bankruptcies, wholesale distribution of
overstock, distress, liquidation and other volume inventories,
the operation of its Big Lots Furniture Stores, and its
wholesale operations (the "Company Business"); and
Employer is one of the limited number of entities who have
developed such business; and the Company Business is national
in scope; and Executive's work for Employer will give him
access to the confidential affairs of Employer; and the
agreements and covenants of Executive contained in
Subparagraphs (i)-(iii) herein ("Restrictive Covenants") are
essential to the business and goodwill of Employer.
Accordingly, Executive covenants and agrees that:
(i) During the term of Executive's employment with
Employer and for a period of one (1) year (the
"Restricted Period") following the termination of his
employment in any manner, Executive shall not in any
location where Employer's retail stores are located
throughout the United States, directly or indirectly,
(1) engage in the Company Business for Executive's
own account (other than pursuant to this Agreement),
(2) render any services to any person engaged in such
activities (other than Employer), or (3) render any
services to, or in any manner become employed, by
Wal-Mart, Kmart, Target, Dollar General, Family
Dollar, Dollar Tree, Retail Ventures, Inc., Fred's,
99(cent) Stores, Canned Foods, Tuesday Morning, TJX
Corporation, or any grocery store chain, regardless
of size. Further, Employee agrees not to render any
services to, or in any manner become employed by, any
parent, subsidiary or other related entity of the
above listed entities. However, in the event of a
Change in Control as defined in this Agreement, the
Restricted Period shall be for a period of six (6)
months.
(ii) During the term of Executive's employment with
Employer and for a period of two (2) years following
the termination of his employment in any manner,
Executive shall keep secret and retain in strictest
confidence, and shall not use for his benefit or the
benefit of others, all confidential matters relating
to the Company Business hereafter learned by
Executive, and shall not disclose them to anyone
except with Employer's express written consent and
except for information which is at the time of
receipt or thereafter, becomes publicly known through
no wrongful act of Executive, or is received from a
third party not under an obligation to keep such
information confidential and without breach of this
Agreement.
(iii) During the term of Executive's employment with
Employer and for a period of two (2) years following
the termination of his employment in any manner,
without Employer's prior written consent, Executive
will not directly or indirectly, solicit, encourage
to leave the employment of Employer or hire any
employee of Employer.
(b) ACKNOWLEDGMENT. Executive acknowledges that the foregoing
restrictions are reasonable in light of the nature of the
services the Employer provides. Executive and the Employer
agree that the Employer has legitimate reasons for requiring
such Restrictive Covenants from Executive. Executive
acknowledges that he understands the restrictions and has had
an opportunity to fully discuss these restrictions with the
Employer and accepts the restrictions.
(c) MAXIMUM ENFORCEABLE RESTRICTION. In the event that any or all
of the Restrictive Covenants contained in this Paragraph shall
be determined by a court of competent jurisdiction to be
unenforceable by reason of the temporal restrictions being too
great, or by reason that the range of activities covered are
too great, or for any other reason, they shall be interpreted
to extend over the maximum period of time, range of activities
or other restrictions as to which they may be enforceable.
(d) INJUNCTIVE RELIEF. The Parties agree that a breach of the
Restrictive Covenants contained in this Paragraph may cause
irreparable damage to the Employer, the extent of which may be
difficult to ascertain, and that the award of damages may not
be adequate relief. Therefore, Executive agrees that, in the
event of a breach or a threatened breach of the Restrictive
Covenants, the Employer may institute an action to compel the
specific performance of same and obtain injunctive relief,
without bond; Executive agrees not to assert adequacy of money
damages as a defense and agrees that such remedy shall be
cumulative, not exclusive, and in addition to any other
available remedies, and that the Employer may require
Executive to account for and pay over to Employer all
compensation, profits, monies, accruals, increments, or other
benefits derived or received by him as the result of any
transactions constituting a breach of the Restrictive
Covenants. Employer may set off any amounts finally determined
by a court of competent jurisdiction to be due it under this
Paragraph against any amounts owed to Executive. The Parties
agree that any action for breach of the Restrictive Covenants
and/or injunctive relief shall be venued in the Court of
Common Pleas, Franklin County, Ohio, and that Ohio law governs
the terms of this Agreement.
(e) TOLLING PERIOD. Executive acknowledges that under the terms of
the Restrictive Covenants contained in this Paragraph, the
Employer is entitled to receive a period of one (1) year of
non-competition, and two (2) years of non-solicitation and
confidentiality immediately following termination of
Executive's employment. Executive agrees that if any of these
obligations to the Employer are breached during the one (1)
year period or non-competition, and/or the two (2) year period
of non-solicitation and confidentiality, then the time period
will be extended for the length of time that Executive failed
to fulfill his obligations.
10. WITHHOLDING TAXES.
Except as otherwise provided, all payments to Executive, including the
bonus compensation under this Agreement, shall be subject to
withholding on account of federal, state, and local taxes as required
by law.
11. NOTICES.
Any notice or other communication required or permitted hereunder shall
be in writing and shall be delivered personally, sent by facsimile
transmission or sent by certified or priority mail, postage prepaid.
Any such notice shall be deemed given when so delivered personally, or
sent by facsimile transmission or, if mailed, five (5) days after the
date of deposit in the United States mail as follows:
(a) If to the Employer to: Big Lots Stores, Inc.
300 Phillipi Road
Columbus, Ohio 43228-1310
Attention: General Counsel
With a copy to: Big Lots Stores, Inc.
300 Phillipi Road
Columbus, Ohio 43228-1310
Attention: Chief Executive Officer
(b) If to the Executive to: Donald A. Mierzwa
5739 Medallion Drive
Westerville, Ohio 43082
(c) CHANGE OF ADDRESS. Any such person may by notice given in
accordance with this Paragraph to the other parties hereto,
designate another address or person for receipt by such person
of notices hereunder.
12. SEVERABLE PROVISIONS.
The provisions of this Agreement are severable, and if any one or more
provisions may be determined to be invalid or otherwise unenforceable,
in whole or in part, the remaining provisions and any partially
unenforceable provision, to the maximum extent enforceable, shall,
nevertheless, be binding and enforceable.
13. MODIFICATION.
This Agreement collectively sets forth the entire understanding of the
Parties with respect to the subject matter hereof, supersedes all
existing agreements between them concerning such subject matter, and
may be modified only by a written instrument duly executed by each
party.
14. WAIVER.
Any waiver by either party of a breach of any provision of this
Agreement shall not operate as or be construed to be a waiver of any
other breach of such provision or of any breach of any other provision
of this Agreement. The failure
of a party to insist upon strict adherence to any term of this
Agreement on one or more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement. Any waiver
must be in writing.
15. BINDING EFFECT.
Executive's rights and obligations under this Agreement shall not be
transferable by assignment or otherwise, such rights shall not be
subject to commutation, encumbrance, or the claims of Executive's
creditors, and any attempt to do any of the foregoing shall be void.
The provisions of this Agreement shall be binding upon and inure to the
benefit of Executive and his heirs and personal representatives, and
shall be binding upon and inure to the benefit of the Employer and its
successors.
16. NO THIRD-PARTY BENEFICIARIES.
This Agreement does not create, and shall not be construed as creating,
any rights enforceable by any person not a party to this Agreement.
17. HEADINGS.
The headings in this Agreement are solely for the convenience of
reference and shall be given no effect in the construction or
interpretation of this Agreement.
18. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
19. GOVERNING LAW, JURISDICTION AND ARBITRATION.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Ohio, without giving effect to conflict of
laws. Any dispute arising out of or relating to this Agreement or any
breach of this Agreement, with the exceptions of the Restrictive
Covenants contained in Paragraph 9, shall be submitted to and
determined in binding arbitration, and such method shall be the
exclusive method for resolving such disputes. This provision includes
any and all claims and remedies that the Executive could bring against
the Employer arising out of his employment, including, but not limited
to, claims for negligence, wrongful discharge, discrimination,
harassment, intentional tort, infliction of emotional distress,
defamation, or loss of consortium. Submission may be made by either
party and must be made within thirty (30) days subsequent to the
dispute arising. Thereafter, the parties hereto shall take such steps
as are necessary to assure that the dispute will be promptly settled by
arbitration, in accordance with the then-current Commercial Arbitration
Rules of the American Arbitration Association, within ninety (90) days
of its submission. The arbitration shall be conducted by a single
arbitrator selected by the parties. If the parties have not selected an
arbitrator within ten (10) days of written demand for arbitration, the
arbitrator shall be selected by the American Arbitration Association.
Each party shall bear all its own legal fees and expenses. All
arbitration proceedings shall be conducted in the federal judicial
district where Executive maintains his principal place of employment
for the Company. Judgment upon any award rendered by the arbitrator may
be entered in any court having jurisdiction thereof.
20. EMPLOYER PROPERTY.
Upon termination of Executive's employment for any reason, or at any
time at the Employer's request, Executive shall deliver up to the
Employer, all property, keys, materials, documents, records, manuals,
notebooks, or papers and any copies thereof maintained in any form that
in any way relate to the business and activities of the Employer that
may be in the possession, or under the control of Executive.
21. CONFLICTING AGREEMENTS.
Executive represents and warrants that he is free to enter into this
Agreement and that Executive has not made and will not make any
agreements in conflict with this Agreement.
22. SURVIVAL.
The covenants, agreements, representations, and warranties contained in
or made pursuant to this Agreement shall survive Executive's
termination of employment, whatever the reason for termination of such
employment, and shall survive any termination of this Agreement,
irrespective of any investigation made by or on behalf of any party.
WHEREUPON, the Parties hereto voluntarily enter into this Agreement as
of this 15th day of February, 2004.
Big Lots, Inc. Executive
/s/ Albert J. Bell /s/ Donald A. Mierzwa
- ---------------------------------------- -------------------------------
By: Albert J. Bell Printed Name: Donald A. Mierzwa
Its: Chief Administrative Officer
Big Lots Stores, Inc.
/s/ Brad A. Waite
- ----------------------------------------
By: Brad A. Waite
Its: Executive Vice President