Employment Agreement - OfficeMax Inc. and Michael Feuer
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT is entered into
as of the 5th day of March, 1998, between OFFICEMAX, INC., an Ohio corporation
(the "Company"), and MICHAEL FEUER ("Executive").
W I T N E S S E T H :
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WHEREAS, the Company and Executive are parties to an Amended
and Restated Employment Agreement entered into as of March 9, 1995 (the "Prior
Employment Agreement"); and
WHEREAS, the Compensation Committee (the "Compensation
Committee") of the Board of Directors (the "Board") of the Company has approved
and recommended the amendment of the Prior Employment Agreement so as, INTER
ALIA, to provide for the determination of the amount of bonus compensation to be
included in the payments by the Company to Executive in the event of the
termination by the Company of Executive's employment with the Company without
"Cause" (as hereinafter defined); and
WHEREAS, in furtherance of the foregoing, it is deemed
advisable to amend and restate in full the Prior Employment Agreement as
provided herein; and
WHEREAS, the Board approved the execution and delivery of this
Agreement by the Company at a meeting of the Board held on March 5, 1998,
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties hereby agree as follows:
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1. EMPLOYMENT.
(a) The Company hereby employs Executive as its
Chairman of the Board and Chief Executive Officer, and Executive hereby accepts
such employment, on the terms and conditions set forth herein.
(b) During the term of this Agreement and any
renewal hereof (all references herein to the term of this Agreement shall
include references to the period of renewal hereof, if any), Executive shall be
and have the titles, duties and authority of the Chairman of the Board and Chief
Executive Officer of the Company and shall devote his entire business time and
all reasonable efforts to his employment and perform diligently such duties as
are customarily performed by the chairman of the board, president and chief
executive officer of a company the size and structure of the Company, together
with such other duties as may be reasonably requested from time to time by the
Board, which duties shall be consistent with his position as set forth above and
as provided in Paragraph 2.
(c) Executive shall not, without the prior
written consent of the Company, directly or indirectly, during the term of this
Agreement, other than in the performance of duties naturally inherent to the
businesses of the Company and in furtherance thereof, render services of a
business, professional or commercial nature to any other person or firm, whether
for compensation or otherwise; provided, however, that so long as it does not
materially interfere with his full-time employment hereunder, Executive may
attend to outside investments, serve as
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a director of a corporation which does not compete with the Company (as provided
in Paragraph 10), and serve as a director, trustee or officer of, or otherwise
participate in, educational, welfare, social, religious and civic organizations.
The Company hereby acknowledges that Executive is currently serving a three year
term as a member of the Advisory Committee of the New York Stock Exchange Board
of Directors.
2. TERM AND POSITIONS.
(a) Subject to the provisions for renewal and
termination hereinafter provided, the term of this Agreement shall begin on the
date hereof and shall continue for the current "Fiscal Year" (as hereinafter
defined) and for the succeeding two (2) Fiscal Years. As of January 24, 1999,
and the first day of each succeeding Fiscal Year thereafter, such term
automatically shall be extended for one (1) additional Fiscal Year, beginning
with the Fiscal Year commencing January 28, 2001, and thereafter, unless (i)
this Agreement is terminated as provided in Paragraph 8, or (ii) either the
Company or Executive shall give at least two (2) Fiscal Years' written notice of
termination of this Agreement to the other at least thirty (30) days before
January 24, 1999, or thereafter, at least thirty (30) days before the beginning
of any such succeeding Fiscal Year (for example, unless such written notice of
termination is given on or prior to December 25, 1998, the term of this
Agreement automatically will be extended, effective January 24, 1999, until the
end of the second Fiscal Year succeeding the Fiscal Year including such date,
which is January 26, 2002). The term "Fiscal Year" means
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the period beginning on the day after the Saturday immediately preceding the
last Wednesday in January of one year and ending on the Saturday immediately
preceding the last Wednesday in January of the immediately following year.
(b) Executive, without any compensation in
addition to that which is specifically provided in this Agreement, shall serve,
and shall be entitled and have the right to serve, as a member of the Board,
Chairman of the Board, President and Chief Executive Officer of the Company.
Without limiting the generality of any of the foregoing, except as hereafter
expressly agreed in writing by Executive (i) Executive shall not be required to
report to any single individual and shall report only to the Board as an entire
body, (ii) no individual shall be elected or appointed as Chairman of the Board,
President or Chief Executive Officer of the Company, (iii) the highest levels of
Vice-Presidents and other executive officers of the Company shall report to no
individual other than Executive, and (iv) no individual or group of individuals
(including a committee established or other designee appointed by the Board)
shall have any authority over or equal to the authority of Executive in his role
as Chairman of the Board, President and Chief Executive Officer (except that the
Compensation Committee shall continue to have such powers as may be required to
maintain the compliance of the Company's benefit plans under Section 16 of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder), and neither the Company, the Board, nor any member of
the Board
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shall take any action which will or could have the effect of, or appear to have
the effect of, giving such authority to any such individual or group. For
service as a director, officer and employee of the Company, Executive shall be
entitled to the full protection of the applicable indemnification provisions of
the corporate charter, code of regulations, by-laws and other policies and
procedures of the Company.
(c) If:
(i) the Company materially changes
Executive's duties and responsibilities as set forth in
Paragraphs 1(b) and 2(b) without his consent (including,
without limitation, by violating any of the provisions of
clauses (i), (ii), (iii) and (iv) of Paragraph 2(b)); or
(ii) Executive's place of employment or the
principal executive offices of the Company are located more
than fifty (50) miles from the geographical center of
Cleveland, Ohio; or
(iii) there occurs a material breach by the
Company of any of its obligations under this Agreement, which
breach has not been cured in all material respects within ten
(10) days after Executive gives notice thereof to the Company;
or
(iv) there occurs a "Change in Control" (as
hereinafter defined) of the Company,
then in any such event Executive shall have the right to terminate his
employment with the Company, but such termination
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shall not be considered a voluntary resignation or termination by Executive of
such employment or of this Agreement but rather a discharge of Executive by the
Company without "Cause" (as hereinafter defined).
(d) Executive shall be deemed not to have
consented to any material change in his duties and responsibilities unless he
shall give written notice of his consent thereto to the Board within fifteen
(15) days after receipt of a written proposal setting forth such change. If
Executive shall not have given such consent, the Company shall have the
opportunity to withdraw such proposed material change by written notice to
Executive given within ten (10) days after the end of said fifteen (15) day
period.
(e) The term "Change in Control" means the first
to occur of the following events:
(i) any person or group of commonly
controlled persons owns or controls, directly or indirectly,
thirty percent (30%) or more of the voting control or value of
the capital stock of the Company; or
(ii) the shareholders of the Company approve
an agreement to merge or consolidate with another corporation
or other entity resulting (whether separately or in connection
with a series of transactions) in a change in ownership of
thirty percent (30%) or more of the voting control or value of
the capital stock of the Company, or an agreement to
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sell or otherwise dispose of all or substantially all
of the Company's assets (including, without limitation,
a plan of liquidation or dissolution), or otherwise
approve of a fundamental alteration in the nature of
the Company's business.
3. COMPENSATION.
(a) For all services he may render to the Company
during the term of this Agreement, the Company shall pay to
Executive the following:
(i) for the period beginning on the date
hereof and ending January 23, 1999, salary equal to an annual
salary of Nine Hundred Fifty Thousand Dollars ($950,000)
MULTIPLIED BY the ratio of the number of days in the period
beginning on the date hereof and ending on the last day of the
current Fiscal Year to the total number of days in such Fiscal
Year;
(ii) for the Fiscal Year beginning on
January 24, 1999, and for each Fiscal Year thereafter during
the term of this Agreement, salary as determined by the
Compensation Committee, which in no event shall be less than
the annual salary that was payable by the Company to Executive
under this Paragraph 3(a) for the immediately preceding Fiscal
Year; and
(iii) notwithstanding the foregoing, at any
time and from time to time during the term of this Agreement,
the Compensation Committee may increase (but not decrease)
Executive's annual salary.
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Salary payable by the Company to Executive under this Paragraph 3(a) shall be
payable in those installments customarily used in payment of salaries to the
Company's executives (but in no event less frequently than monthly).
(b) In addition to the salary provided in
Paragraph 3(a), the Company shall pay to Executive bonus compensation (i) under
the OfficeMax, Inc. Annual Incentive Bonus Plan, or (ii) if such plan ceases to
be in effect in substantially the same form as in effect on the date of this
Agreement, at least annually in respect of each Fiscal Year not later than
ninety (90) days after the close of each Fiscal Year as determined by the
Compensation Committee and based on the performance of the Company (which shall
be based on criteria no less favorable to Executive than criteria used by the
Compensation Committee to determine bonus compensation for other senior
executives of the Company).
4. SALARY AND BONUS; PAYMENT IN THE EVENT OF DEATH OR
PERMANENT DISABILITY. In the event of Executive's death or "Permanent
Disability" (as hereinafter defined) during the term of this Agreement:
(a) The Company shall pay to Executive a pro rata
portion of the bonus applicable to the Fiscal Year in which such death or
Permanent Disability occurs, as such bonus is determined under Paragraph 3(b).
Such pro rata portion shall be determined by MULTIPLYING the amount, if any, of
bonus that would have been payable pursuant to such Paragraph 3(b) if Executive
had remained employed under this Agreement for the entire applicable Fiscal
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Year and achieved 100% of Executive's personal goals for the fiscal year by a
fraction (the "Partial Year Fraction"), the numerator of which is the number of
days in the applicable Fiscal Year elapsed prior to the date of death or
Permanent Disability, as the case may be, and the denominator of which is three
hundred sixty-five (365). In the event of Executive's Permanent Disability
during the term of this Agreement, in addition to the foregoing bonus payment,
the Company shall pay to Executive an amount equal to three (3) times
Executive's then effective annual salary, as determined under Paragraph 3(a).
(b) The pro rata portion of the bonus described
in Paragraph 4(a) shall be paid when and as provided in Paragraph 3(b). The
remainder of the benefit to be paid pursuant to Paragraph 4(a) shall be paid
within ninety (90) days after the date of Permanent Disability.
(c) Except as otherwise provided in Paragraphs
4(a), 5, 6 and 7, Executive's employment hereunder shall terminate and Executive
shall be entitled to no further compensation or other benefits under this
Agreement, except as to that portion of any unpaid salary and other benefits
accrued and earned by him hereunder up to and including the date of such death
or Permanent Disability, as the case may be.
(d) For purposes of this Agreement, Executive's
"Permanent Disability" shall be deemed to have occurred after one hundred twenty
(120) days in the aggregate during any consecutive twelve (12) month period, or
after ninety (90) consecutive days, during which one hundred twenty (120) or
ninety (90) days, as the
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case may be, Executive, by reason of his physical or mental disability or
illness, shall have been unable to discharge his duties under this Agreement.
The date of Permanent Disability shall be such one hundred twentieth (120th) or
ninetieth (90th) day, as the case may be. In the event either the Company or
Executive, after receipt of notice of Executive's Permanent Disability from the
other, disputes Executive's Permanent Disability, Executive promptly shall
submit to a physical examination by the chief of medicine of any major
accredited hospital in the Cleveland, Ohio, area and, unless such physician
shall issue his written statement to the effect that in his opinion, based on
his diagnosis, Executive is capable of resuming his employment and devoting his
full time and energy to discharging his duties within thirty (30) days after the
date of such statement, such Permanent Disability shall be deemed to have
occurred.
5. OPTIONS TO ACQUIRE COMMON SHARES; CERTAIN OTHER
PAYMENTS.
(a) The Company has granted to Executive under
the Prior Employment Agreement and pursuant to Stock Option Agreements executed
prior to the date hereof options (all of which, together with any additional
options hereafter granted under the Plan (defined below) are referred to as the
"Options") to purchase common shares of the Company, without par value, under
the OfficeMax, Inc. Equity-Based Award Plan as in effect on the date of this
Agreement (the "Plan", the terms in this
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Paragraph 5 having the same meaning as under the Plan, unless otherwise defined
in this Agreement).
(b) The Compensation Committee has determined that
the following provisions shall apply to the grant of the Options, in addition to
or in substitution for the provisions of the Plan:
(i) Except as otherwise provided in this
Agreement, (A) the Options granted to Executive as of March 9,
1995 (the "1995 Options") shall expire on March 9, 2005, and
shall not be exercisable thereafter, and (B) Executive may
exercise, and shall have the irrevocable and nonforfeitable
right to exercise, the 1995 Options to the extent not
previously exercised and thereby purchase any number of Shares
up to but not in excess of the cumulative number of Shares set
forth below on or after the corresponding dates:
- 337,500 Shares on or after January 27, 1996;
- 675,000 Shares on or after January 25, 1997; and
- 1,012,500 Shares on or after January 24, 1998.
(ii) In the event of the cessation of
Executive's employment with the Company for Cause prior to the
end of the term of this Agreement (subject to the provisions
of Paragraph 2(c)), any unexercised Options shall terminate
and be of no further force or effect simultaneously with such
cessation; otherwise, the Options and Executive's right to
exercise the Options shall not be affected by the cessation of
his
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employment with the Company for any reason except as expressly
provided in this Agreement or in the Plan.
(iii) In the event of the cessation of
Executive's employment with the Company for any reason other
than (A) Cause, (B) Executive's death, or (C) Permanent
Disability, in addition to any other Options which Executive
is then entitled to exercise hereunder, prior to any of the
dates referred to in Paragraph 5(b)(i) Executive shall be
entitled to exercise all of the Options. In the event of the
cessation of Executive's employment with the Company as a
result of his death or Permanent Disability, in addition to
any other Options which Executive is then entitled to exercise
hereunder, prior to any of the dates referred to in Paragraph
5(b)(i) Executive shall be entitled to exercise a number of
Options equal to the additional number he would have been
eligible to exercise on the next date described in Paragraph
5(b)(i) after Executive's death or Permanent Disability
MULTIPLIED BY the Partial Year Fraction in respect of the
Fiscal Year in which such death or Permanent Disability
occurred.
(iv) In the event of and in connection with
any Change in Control, all of the Options shall be fully and
immediately exercisable by Executive, notwithstanding the
terms of Paragraph 5(b)(i).
(v) Notwithstanding the provisions of
Paragraph 5(b)(i) or of any Stock Option Agreement
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between the Company and Executive relating to the period
during which Options may be exercised, if one of the events
described in Paragraphs 5(b)(iii) or 5(b)(iv) occurs, thereby
accelerating any dates under Paragraph 5(b)(i) on which
Options first may be exercised, all of the Options shall
expire on the date which is three (3) years after the date of
such event, and shall not be exercisable thereafter.
(c) If the Plan is altered, amended, suspended or
discontinued as provided in Section 11 thereof in a manner that could have the
effect of denying Executive the benefits of the Options as granted under the
Plan as in effect on the date hereof, subject to the provisions of this
Agreement, the terms of the Plan as in effect on the date hereof shall be deemed
to be incorporated into and thereby become obligations of the Company under this
Agreement, notwithstanding such alteration, suspension or discontinuation of the
Plan.
(d) If all or any portion of the amounts payable
to Executive under this Agreement, including under this Paragraph 5(d) and the
issuance of Shares, constitutes "excess parachute payments" within the meaning
of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"),
that are subject to the excise tax imposed by Section 4999 of the Code (or any
similar tax or assessment) and is not payable to Executive as a result of the
termination of his employment for Cause or the voluntary termination of his
employment by him prior to the end of the term of this Agreement (subject to the
provisions of
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Paragraph 2(c)), the amounts payable hereunder shall be increased to the extent
necessary to place Executive in the same after-tax position as he would have
been in had no such tax assessment been imposed on any such payment paid or
payable to Executive under this Agreement or any other payment that Executive
may receive in connection therewith. Such incremental payment shall be made
promptly after the amount has been determined and in any event no later than
five (5) business days before such excise or other similar tax or assessment is
due. If it subsequently is determined (pursuant to final regulations or
published rulings of the Internal Revenue Service, final judgment of a court of
competent jurisdiction, Internal Revenue Service audit assessment, or otherwise)
that the amount of such excise or other similar taxes or assessments payable by
Executive is greater than the amount initially so determined, then the Company
shall pay Executive an amount equal to the sum of: (i) such additional excise or
other 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 assessment payable by Executive with respect to the
amounts specified in (i) and (ii) above, and the reimbursement provided by this
clause (iii), in the manner described above in this Paragraph 5(d). Payment
thereof shall be made within five (5) business days after the date upon which
such subsequent determination is made.
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6. RETIREMENT BENEFITS.
Executive shall participate in all retirement and other
benefit plans of the Company (both qualified and nonqualified) generally
available to classifications of employees of the Company of which Executive is a
member and for which Executive qualifies under the terms thereof (and nothing in
this Agreement shall or shall be deemed to in any way adversely affect
Executive's right and benefits thereunder).
7. LIFE INSURANCE AND OTHER BENEFITS.
(a) The Company shall provide to Executive and his
spouse and dependents the life, health and dental insurance coverage described
on Annex A to this Agreement.
(b) The Company shall provide Executive with a
monthly automobile allowance which shall not be less than the monthly automobile
allowance for Executive in effect on the date hereof, adjusted annually to
reflect inflation as measured by changes in the Consumer Price Index or other
comparable index.
(c) Executive shall be entitled to such periods of
vacation and sick leave allowance each year determined by Executive in his
reasonable and good faith discretion, which in any event shall be not less than
as provided under the Company's vacation and sick leave policy for executive
officers.
(d) Executive shall be entitled to participate in any
equity or other employee benefit plan that is generally available to senior
executive officers, as distinguished from general management, of the Company.
Executive's participation in and benefits under any such plan shall be on the
terms and
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subject to the conditions specified in the governing document of the particular
plan.
(e) The Company shall provide Executive with tax and
financial advisory and tax return preparation services at an annual cost to the
Company not to exceed five thousand dollars ($5,000), adjusted annually to
reflect inflation as measured by changes in the Consumer Price Index or other
comparable index.
8. TERMINATION.
(a) The employment of Executive under this Agreement,
and the term hereof, may be terminated by the Company:
(i) on death or Permanent Disability of
Executive, or
(ii) for Cause at any time by action of the
Board. For purposes hereof, the term "Cause" shall mean:
(A) Executive's fraud, commission of
a felony or of an act or series of acts which result
in material injury to the business reputation of the
Company, commission of an act or series of repeated
acts of dishonesty, which act is or acts are
materially inimical to the best interests of the
Company, or Executive's willful and repeated failure
to perform his duties under this Agreement, which
failure has not been cured within fifteen (15) days
after the Company gives notice thereof to Executive;
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(B) Executive's material breach of
any material provision of this Agreement, which
breach has not been cured in all substantial respects
within ten (10) days after the Company gives notice
thereof to Executive;
(C) Executive's engagement as an
officer, director, employee or consultant of an
entity in competition with the Company (as defined in
Paragraph 10(b)); or
(D) Executive's direct or indirect
involvement as a shareholder, proprietor or partner
of an entity in competition with the Company (as
defined in Paragraph 10(b)); provided, however, that
ownership of less than one percent (1%) of a class of
publicly traded securities of an entity shall not be
deemed to be a violation of the foregoing clause.
Any termination by reason of the foregoing shall not be in
limitation of any other right or remedy the Company may have
under this Agreement or otherwise. On any termination of this
Agreement, Executive shall be deemed to have resigned from all
offices and directorships held by Executive in the Company and
in each of its subsidiaries and affiliates, as the case may
be.
(b) In the event of a termination claimed by the
Company to be for "Cause" pursuant to Paragraph 8(a)(ii),
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Executive shall have the right to have the justification for said termination
determined by arbitration in Cleveland, Ohio. In such event, Executive shall
serve on the Company within thirty (30) days after termination a written request
for arbitration. The Company immediately shall request the appointment of an
arbitrator by the American Arbitration Association and thereafter the question
of "Cause" shall be determined under the rules of the American Arbitration
Association, and the decision of the arbitrator shall be final and binding on
both parties. The parties shall use all reasonable efforts to facilitate and
expedite the arbitration, and shall act to cause the arbitration to be completed
as promptly as possible. During the pendency of the arbitration, Executive shall
continue to receive all compensation and benefits to which he is entitled
hereunder, and if at any time during the pendency of such arbitration the
Company fails to pay and provide all compensation and benefits to Executive in a
timely manner the Company shall be deemed to have automatically waived whatever
rights it then may have had to terminate Executive's employment for Cause.
Expenses of the arbitration shall be borne by the Company.
(c) In the event of termination for any of the
reasons set forth in subparagraph (a) of this Paragraph 8, except as otherwise
provided in Paragraphs 4, 5, 6 and 7, Executive shall be entitled to no further
compensation or other benefits under this Agreement, except as to that portion
of any unpaid salary and other benefits accrued and earned by him hereunder up
to and including the effective date of such termination.
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(d) In the event of the termination by the Company of
Executive's employment with the Company for any reason other than one of the
reasons set forth in subparagraph (a) of this Paragraph 8, in addition to
whatever other rights or remedies Executive may have against the Company as a
result of such termination, the Company shall continue for the remainder of the
term of this Agreement then in effect to pay and provide to Executive all of the
salary and bonus compensation and other rights and benefits provided for herein;
provided, however, that such bonus compensation in respect of each Fiscal Year
included within the remainder of the term of this Agreement then in effect shall
be the greater of (i) the bonus compensation paid or payable to Executive in
respect of the Fiscal Year immediately preceding the Fiscal Year during which
such termination occurs or (ii) the average of the bonus compensation paid or
payable to Executive in respect of each of the three Fiscal Years immediately
preceding the Fiscal Year during which such termination occurs.
9. REIMBURSEMENT. The Company shall reimburse Executive or
provide him with an expense allowance during the term of this Agreement for
travel, entertainment and other expenses reasonably and necessarily incurred by
Executive in connection with the Company's business. Executive shall furnish
such documentation with respect to reimbursement to be paid under this Paragraph
9 as the Company shall reasonably request.
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10. COVENANTS AND CONFIDENTIAL INFORMATION.
(a) During the term of this Agreement, including any
periods during which Executive is not providing services to the Company but is
receiving payments of compensation hereunder (but not including payments under
Paragraphs 5, 6 or 7), Executive shall not, directly or indirectly, do or suffer
any of the following:
(i) Own, manage, control or participate in
the ownership, management, or control of, or be employed or
engaged by or otherwise affiliated or associated as a
consultant, independent contractor or otherwise with, any
other corporation, partnership, proprietorship, firm,
association or other business entity, or otherwise engage in
any business, which is in competition with the Company (as
described in Paragraph 10(b)); provided, however, that the
ownership of not more than one percent (1%) of any class of
publicly traded securities of any entity shall not be deemed a
violation of this covenant;
(ii) Employ, assist in employing, or
otherwise associate in business with any senior executive of
the Company who was so employed or retained at any time during
the one (1) year period preceding the date on which
Executive's employment with the Company ceases;
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(iii) Induce any person who is a senior
executive or officer of the Company to terminate said
relationship; and
(iv) Disclose, divulge, discuss, copy or
otherwise use or suffer to be used in any manner, in
competition with, or contrary to the interests of, the Company
any confidential information or trade secrets of the Company,
it being acknowledged by Executive that all such information
regarding the business of the Company compiled or obtained by,
or furnished to, Executive while Executive shall have been
employed by or associated with the Company is confidential
information and the Company's exclusive property.
(b) For purposes of this Agreement, an entity shall
be deemed to be in competition with the Company if and only if more than
twenty-five per cent (25%) of the gross revenues of such entity are derived from
the business of selling office supplies, office furniture, computers, and such
other products of the type as are sold at or from a majority of OfficeMax stores
on the date of the termination of Executive's employment hereunder.
(c) Executive expressly agrees and understands that
the remedy at law for any breach by him of this Paragraph 10 will be inadequate
and that the damages flowing from such breach are not readily susceptible to
being measured in monetary terms. Accordingly, it is acknowledged that, upon
adequate proof of Executive's violation of any legally enforceable provision of
this Paragraph 10, the Company shall be entitled to immediate
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injunctive relief and may obtain a temporary order restraining any threatened or
further breach. Nothing in this Paragraph 10 shall be deemed to limit the
Company's remedies at law or in equity for any breach by Executive of any of the
provisions of this Paragraph 10 which may be pursued or availed of by the
Company.
(d) Executive has carefully considered the nature and
extent of the restrictions upon him and the rights and remedies conferred upon
the Company under this Paragraph 10, and hereby acknowledges and agrees that the
same are reasonable in time and territory, are designed to eliminate competition
which otherwise would be unfair to the Company, do not stifle the inherent skill
and experience of Executive, would not operate as a bar to Executive's sole
means of support, are fully required to protect the legitimate interests of the
Company and do not confer a benefit upon the Company disproportionate to the
detriment to Executive.
11. WITHHOLDING TAXES. Certain payments to Executive under
this Agreement may be subject to withholding on account of federal, state and
local taxes as required by law. Except with respect to income realized by
Executive as described in Paragraph 5(d), if any particular payment required
hereunder is insufficient to provide the amount of such taxes required to be
withheld, the Company may withhold such taxes from any other payment due
Executive. Except with respect to income realized by Executive as described in
Paragraph 5(d), in the event all cash payments due Executive are insufficient to
provide the required
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amount of such withholding taxes, Executive, within five (5) days of written
notice from the Company, shall pay to the Company the amount of such withholding
taxes in excess of all cash payments due Executive at the time such withholding
is required to be made by the Company.
12. SEVERABLE PROVISIONS. The provisions of this Agreement are
severable and if any one or more provisions may be determined to be illegal or
otherwise unenforceable, in whole or in part, the remaining provisions and any
partially unenforceable provision to the extent enforceable in any jurisdiction
nevertheless shall be binding and enforceable.
13. BINDING AGREEMENT. The rights and obligations of the
Company under this Agreement shall inure to the benefit of, and shall be binding
on, the Company and its successors and assigns, and the rights and obligations
(other than obligations to perform services) of Executive under this Agreement
shall inure to the benefit of, and shall be binding upon, Executive and his
heirs, personal representatives and successors and assigns.
14. ENFORCEMENT OF RIGHTS; ARBITRATION.
(a) If the Company terminates Executive's employment
with the Company other than for Cause or as a result of his death or Permanent
Disability or Executive alleges that the Company otherwise has breached or the
Company otherwise breaches this Agreement or any of its obligations hereunder,
in order for Executive to enforce and continue to enjoy his rights hereunder,
including without limitation the right to continue to receive compensation and
other payments and benefits hereunder
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for the remainder of the term of this Agreement, Executive shall be under no
duty to seek other employment or otherwise mitigate his damages as a result of
such termination of employment or alleged breach or breach by the Company.
(b) The Company shall indemnify and reimburse
Executive for his costs and expenses, including reasonable attorneys' fees,
incurred in connection with enforcing his rights hereunder.
(c) Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, shall be settled by
arbitration in accordance with the Rules of the American Arbitration Association
then pertaining in the City of Cleveland, Ohio, and judgment upon the award
rendered by the arbitrator or arbitrators may be entered in any court having
jurisdiction thereof. The arbitrator or arbitrators shall be deemed to possess
the powers to issue mandatory orders and restraining orders in connection with
such arbitration; provided, however, that nothing in this Paragraph 14 shall be
construed so as to deny the Company the right and power to seek and obtain
injunctive relief in a court of equity for any breach or threatened breach by
Executive of any of his covenants contained in Paragraph 10 hereof.
15. NOTICES. Any notice to be given under this Agreement shall
be personally delivered in writing or shall have been deemed duly given when
received after it is posted in the United States mail, postage prepaid,
registered or certified, return receipt requested, and if mailed to the Company,
shall be
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addressed to its principal place of business, attention: General Counsel, and if
mailed to Executive, shall be addressed to him at his home address last known on
the records of the Company, or at such other address or addresses as either the
Company or Executive may hereafter designate in writing to the other.
16. WAIVER. The failure of either party to enforce any
provision or provisions of this Agreement shall not in any way be construed as a
waiver of any such provision or provisions as to any future violations thereof,
nor prevent that party thereafter from enforcing each and every other provision
of this Agreement. The rights granted the parties herein are cumulative and the
waiver of any single remedy shall not constitute a waiver of such party's right
to assert all other legal remedies available to it under the circumstances.
17. MISCELLANEOUS. This Agreement supersedes all prior
agreements and understandings between the parties and may not be modified or
terminated orally. No modification, termination or attempted waiver shall be
valid unless in writing and signed by the party against whom the same is sought
to be enforced.
18. GOVERNING LAW. This Agreement shall be governed by and
construed according to the laws of the State of Ohio.
19. CAPTIONS AND PARAGRAPH HEADINGS. Captions and paragraph
headings used herein are for convenience and are not a part of this Agreement
and shall not be used in construing it.
20. MISCELLANEOUS. Where necessary or appropriate to the
meaning hereof, the singular and plural shall be deemed to
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include each other, and the masculine, feminine and neuter shall be deemed to
include each other.
IN WITNESS WHEREOF, the parties have executed this Agreement
effective on the day and year first set forth above.
OFFICEMAX, INC.
By: /s/ Ross Pollock
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Ross H. Pollock
Secretary
/s/ Michael Feuer
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Michael Feuer
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