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EXHIBIT 10.23
SENIOR EXECUTIVE EMPLOYMENT AGREEMENT
AGREEMENT made as of the day of between Venator Group, Inc.
(the "Company"), a New York corporation with its principal office located in New
York, New York, and ("Executive").
W I T N E S S E T H:
WHEREAS, the Company believes that the establishment and maintenance of
a sound and vital management of the Company is essential to the protection and
enhancement of the interests of the Company and its shareholders;
WHEREAS, the Company wishes to provide for the continued employment of
the Executive with the Control Group, and the Executive is willing to commit
himself to continue to serve the Company, on the terms and conditions herein
provided; and
WHEREAS, this Agreement supersedes any employment agreement, severance
plan, policy and/or practice of the Company in effect on the date hereof for the
Executive.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto hereby agree as follows:
1. Definitions. The following terms shall have the meanings set forth
in this section as follows:
(a) "Affiliate" shall mean the Company and any entity
affiliated with the Company within the meaning of Code Section 414(b) with
respect to a controlled group of corporations, Code Section 414(c) with respect
to trades or businesses under common control with the Company, Code Section
414(m) with respect to affiliated service groups and any other entity required
to be aggregated with the Company under Section 414(o) of the Code. No entity
shall be treated as an Affiliate for any period during which it is not part of
the controlled group, under common control or otherwise required to be
aggregated under Code Section 414.
(b) "Beneficiary" shall mean the individual designated by the
Executive, on a form acceptable by the Committee, to receive benefits payable
under this Agreement in the event of the Executive's death. If no Beneficiary is
designated, the Executive's Beneficiary shall be his spouse, or if the Executive
is not survived by a spouse, the Executive's estate.
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(c) "Board" shall mean the Board of Directors of the Company.
(d) "Bonus" shall mean an amount equal to the target bonus
expected to be earned by the Executive under the Company's Annual Incentive
Compensation Plan or such other annual bonus plan or program that may then be
applicable to the Executive in a fiscal year, if the applicable target
performance goal is satisfied.
(e) "Cause" shall mean (with regard to the Executive's
termination of employment with the Control Group): (i) the refusal or willful
failure by the Executive to substantially perform his duties, (ii) with regard
to the Control Group or any of their assets or businesses, the Executive's
dishonesty, willful misconduct, misappropriation, breach of fiduciary duty or
fraud, (iii) the willful breach by the Executive of any material provision of
this Agreement, which breach is not cured within ten (10) business days from the
date of the Company's notice of the occurrence of such breach to the Executive,
or (iv) the Executive's conviction of a felony (other than a traffic violation)
or any other crime involving, in the sole discretion of the Committee, moral
turpitude.
(f) "Change in Control" shall have the meaning set forth in
Appendix A attached hereto.
(g) "Code" shall mean the Internal Revenue Code of 1986, as
amended and as hereafter amended from time to time.
(h) "Committee" shall mean the Compensation Committee of the
Board or an administrative committee appointed by the Compensation Committee.
(i) "Competition" shall mean the (i) participating, directly
or indirectly, as an individual proprietor, stockholder, officer, employee,
director, joint venturer, investor, lender, or in any capacity whatsoever
(within the United States of America, or in any country where any of the
Executive's former employing members of the Control Group does business) in (A)
a business in competition with the retail, catalog, or on-line sale of athletic
footwear, athletic apparel and sporting goods conducted by the Control Group
(the "Athletic Business"), or (B) a business that in the prior fiscal year
supplied product to the Control Group for the Athletic Business having a value
of $20 million or more at cost to the Company or any of its subsidiaries or
affiliates; provided, however, that such participation shall not include (X) the
mere ownership of not more than 1 percent of the total outstanding stock of a
publicly held company; (Y) the performance of services for any enterprise to the
extent such services are not performed, directly or indirectly, for a business
in competition with the Athletic Business or for a business which supplies
product to the Control Group for
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the Athletic Business; or (Z) any activity engaged in with the prior written
approval of the Chief Executive Officer of the Company; or (ii) intentional
recruiting, soliciting or inducing, of any employee or employees of the Control
Group to terminate their employment with, or otherwise cease their relationship
with the former employing members of the Control Group where such employee or
employees do in fact so terminate their employment.
(j) "Control Group" shall mean the Company and its Affiliates.
(k) "Good Reason" shall mean (with respect to an Executive's
termination of employment with the Control Group):
(i) Prior to a Change in Control, a reduction in the
Executive's rate of base salary as payable from time to time, other than a
reduction that occurs in connection with, and in the same percentage as, an
across-the-board reduction over any three-year period in the base salaries of
all executives of the Company of a similar level and where the reduction is less
than 20 percent of the Executive's base salary measured from the beginning of
such three-year period;
(ii) On or after a Change in Control, (A) any
reduction in the Executive's rate of base salary as payable from time to time or
(B) a failure of the Company to continue in effect the benefits applicable to,
or the Company's reduction of the benefits applicable to, the Executive under
any benefit plan or arrangement (including without limitation, any pension, life
insurance, health or disability plan) in which the Executive participates as of
the date of the Change in Control without implementation of a substitute plan(s)
providing materially similar benefits in the aggregate to those discontinued or
reduced, except for a discontinuance of, or reduction under, any such plan or
arrangement that is legally required, and provided that in either such event the
Company provides similar benefits (or the economic effect thereof) to the
Executive in any manner determined by the Company;
(iii) At any time, (A) any material demotion of the
Executive or any material reduction in the Executive's authority or
responsibility, except in each case in connection with the termination of the
Executive's employment for Cause or disability or as a result of the Executive's
death, or temporarily as a result of the Executive's illness or other absence;
(B) a reduction in the Executive's annual bonus classification level other than
in connection with a redesign of the applicable bonus plan that affects all
employees at the Executive's bonus level; or (C) the failure of any successor to
the Company to assume in writing the obligations hereunder.
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(l) "Non-Competition Period" shall mean (i) the period the
Executive is employed by the Control Group and (ii) at any time prior to a
Change in Control, the one (1) year period commencing on the Termination Date if
the Executive's employment is terminated (A) by the Company for any reason (B)
by the Executive for any reason, or (C) by reason of the Company's decision not
to extend the term of this Agreement as provided in Section 2 hereof.
(m) "Salary" shall mean an Executive's base cash compensation
rate for services paid to the Executive by the Company or an Affiliate at the
time of his termination of employment from the Control Group. Salary shall not
include commissions, bonuses, overtime pay, incentive compensation, benefits
paid under any qualified plan, any group medical, dental or other welfare
benefit plan, noncash compensation or any other additional compensation but
shall include amounts reduced pursuant to an Executive's salary reduction
agreement under Sections 125 or 401(k) of the Code (if any) or a nonqualified
elective deferred compensation arrangement to the extent that in each such case
the reduction is to base salary.
(n) "Severance Benefit" shall mean (i) in the case of the
Executive's termination of employment with the Control Group that does not occur
within the 24 month period following a Change in Control and such termination is
a termination of employment by the Company without Cause or by the Executive for
Good Reason, two weeks' Salary plus 1/26 of the Bonus multiplied by the
Executive's Years of Service; provided, however, that the Severance Benefit
shall be no less than 52 weeks' Salary; or (ii) in the case of an Executive's
termination of employment with the Control Group that occurs within the 24 month
period following a Change in Control and such termination is a termination of
employment by the Company without Cause or by the Executive for Good Reason, two
weeks' Salary plus 1/26 of the Bonus multiplied by the Executive's Years of
Service; provided, however, that the Severance Benefit shall be no less than the
Bonus multiplied by two plus 104 weeks' Salary.
(o) "Severance Period" shall mean (i) in the case of the
Executive's termination of employment that does not occur within the 24 month
period following a Change in Control and such termination is a termination of
employment by the Company without Cause or by the Executive for Good Reason, two
weeks' multiplied by the Executive's Years of Service, with a minimum of 52
weeks; or (ii) in the case of an Executive's termination of employment within
the 24 month period following a Change in Control and such termination is a
termination of employment by the Company without Cause or by the Executive for
Good Reason, two weeks multiplied by the Executive's Years of Service, with a
minimum of 104 weeks.
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(p) "Termination Date" shall mean in the case of the
Executive's death, the date of death, or in all other cases, the date specified
in the Notice of Termination; provided, however, that if the Executive's
employment is terminated by the Company due to disability as provided in Section
7(b), the date specified in the Notice of Termination shall be at least thirty
(30) days from the date the Notice of Termination is given to the Executive.
(q) "Year of Service" shall mean each 12 consecutive month
period commencing on the Executive's date of hire by the Company or an Affiliate
and each anniversary thereof in which the Executive is paid by the Company or an
Affiliate for the performance of full-time services as an Executive. For
purposes of this section, full-time services shall mean that the Employee is
employed for at least 30 hours per week. A Year of Service shall include any
period during which an Employee is not working due to disability, leave of
absence or layoff so long as he is being paid by the Company or an Affiliate
(other than through any employee benefit plan). A Year of Service also shall
include service in any branch of the armed forces of the United States by any
person who is an Executive on the date such service commenced, but only to the
extent required by applicable law.
2. Term. The initial term of this Agreement shall commence on and
shall end on December 31, 2001, unless further extended or sooner terminated as
hereinafter provided. The term shall be automatically renewed for additional
one-year periods unless the Company notifies the Executive prior to December 1,
2001, with regard to the initial term, and any December 1 of any year
thereafter, with regard to renewal terms, that the term shall not be renewed. In
no event, however, shall the term of the Executive's employment extend beyond
the date of the Executive's actual retirement under a retirement plan of the
Company. Notwithstanding anything in this Agreement to the contrary, if the
Company becomes obligated to make any payment to the Executive pursuant to the
terms hereof at or prior to the expiration of this Agreement, then this
Agreement shall remain in effect until all of the Company's obligations
hereunder are fulfilled.
3. Position and Duties. The Executive shall serve as of the
Company and shall have such responsibilities, duties and authority as he may
have as of the effective date of this Agreement (or any position to which he may
be promoted after the effective date of this Agreement) and as may from time to
time be assigned to the Executive by the Chief Executive Officer of the Company
that are consistent with such responsibilities, duties and authority. The
Executive shall devote substantially all of his working time and efforts to the
business and affairs of the Company and its Affiliates.
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4. Place of Performance. In connection with the Executive's employment
by the Company, the Executive shall be based in , except for
required travel on the Company's business.
5. Compensation and Related Matters
(a) Salary. During the period of the Executive's employment
hereunder, the Company or an Affiliate shall pay to the Executive a salary at a
rate not less than the rate in effect as of the effective date of this Agreement
or such higher rate as may from time to time be determined by the Company, such
salary to be paid in accordance with the Company's normal payroll practices.
(b) Expenses. During the term of the Executive's employment
hereunder, the Executive shall be entitled to receive prompt reimbursement for
all reasonable and customary expenses incurred by the Executive in performing
services hereunder, including all expenses of travel and living expenses while
away from home on business or at the request of and in the service of the
Company or an Affiliate, provided that such expenses are incurred and accounted
for in accordance with the polices and procedures established by the Company.
(c) Other Benefits. The Company shall maintain in full force
and effect, and the Executive shall be entitled to continue to participate in,
all of the employee benefit plans and arrangements in effect on the date hereof
in which the Executive participates or plans or arrangements providing the
Executive with at least equivalent benefits thereunder (including without
limitation each retirement plan, supplemental and excess retirement plans,
annual and long-term incentive compensation plans, stock option and purchase
plans, group life insurance and accident plan, medical and dental insurance
plans, and disability plan), and the Company shall not make any changes in such
plans or arrangements that would adversely affect the Executive's rights or
benefits thereunder; provided, however, that such a change may be made,
including termination of such plans or arrangements, to the extent permitted by
the respective plan or arrangement, if it occurs pursuant to a program
applicable to all comparably situated executives of the Company and does not
result in a proportionately greater reduction in the rights of or benefits to
the Executive as compared with any other comparably situated executive of the
Company. The Executive shall be entitled to participate in or receive benefits
under any employee benefit plan or arrangement made available by the Company in
the future to its comparably situated executives and key management employees,
subject to and on a basis consistent with the terms, conditions and overall
administration of such plans and arrangements. Nothing paid to the Executive
under any plan or arrangement presently in effect or made available in the
future shall be deemed to be in lieu of the salary payable to the Executive
pursuant to Section 5(a). Any payments or benefits payable to the Executive
hereunder in respect of any calendar year during
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which the Executive is employed by the Company for less than the entire year
shall, unless otherwise provided in the applicable plan or arrangement, be
prorated in accordance with the number of days in such calendar year during
which he is so employed.
(d) Vacations. The Executive shall be entitled to no less than
the number of vacation days in each calendar year that is determined in
accordance with the Company's vacation policy as in effect on the date hereof.
The Executive shall also be entitled to all paid holidays and personal days
given by the Company to its executives.
6. Offices. Subject to Sections 3 and 4, the Executive agrees to serve
without additional compensation, if elected or appointed thereto, as a director
of the Company and any of its Affiliates and in one or more executive offices of
any of the Company's Affiliates, provided that the Executive is indemnified for
serving in any and all such capacities on a basis no less favorable than is
currently provided by the Company to any other director of the Company or any of
its Affiliates.
7. Termination. The Executive's employment hereunder may be terminated
without any breach of this Agreement only upon the following circumstances:
(a) Death. The Executive's employment hereunder shall
automatically terminate upon his death.
(b) Disability. If, as a result of the Executive's incapacity
due to physical or mental illness as determined by the Company in its sole
discretion, the Executive shall have been absent from his duties hereunder on a
full-time basis for a period of six consecutive months, and within 30 days after
written Notice of Termination is given (which may occur before or after the end
of such six month period) shall not have returned to the performance of his
duties hereunder on a full-time basis, the Company may immediately terminate the
Executive's employment hereunder.
(c) Cause. The Company may terminate the Executive's
employment hereunder for Cause by, at any time at its election within six months
after the Company shall obtain knowledge of the grounds for termination, giving
the Executive notice of its intention to terminate the Executive for cause and
stating the termination date and the grounds for termination.
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(d) Good Reason. The Executive may terminate his employment
hereunder for Good Reason upon 30 days' prior written notice to the Company;
provided, however, that prior to a Change in Control, if the Company corrects
the matter that has given rise to the Good Reason event, and makes the Executive
whole for any loss to the Executive resulting from such Good Reason event, the
Executive may not so terminate his employment.
(e) Without Cause. The Company may terminate the Executive's
employment hereunder without Cause upon 30 days' prior written notice to the
Executive.
(f) Without Good Reason. The Executive may terminate his
employment hereunder without Good Reason upon 30 days' prior written notice to
the Company.
Any termination of the Executive's employment by the Company or by the
Executive (other than termination pursuant to Section 7(a)) shall be
communicated by written Notice of Termination to the other party hereto in
accordance with Section 19. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated.
8. Benefits Upon Termination.
(a) In the event the Executive's employment with the Control
Group is terminated by his death, the Company shall pay any amounts due to the
Executive under Section 5 through the date of his death in accordance with
Section 13.
(b) In the event the Executive's employment with the Control
Group is terminated under Section 7(b), the Company shall pay any amounts due to
the Executive under Section 5 through the date of his termination and shall have
no other obligation to the Executive or his dependents other than amounts due,
if any, under the Company's long-term disability plan, and any benefits offered
by the Company under its then policy to employees who become disabled while
employed by the Company.
(c) In the event Executive's employment with the Control Group
is terminated for Cause, the Company shall pay any amounts due to the Executive
under Section 5 through the Termination Date and shall have no other obligation
to the Executive or his dependents other than any amounts, if any, due to
Executive under its then existing policies to employees whose employment is
terminated for Cause or under the specific terms of any welfare, pension, fringe
benefit or incentive plan.
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Other than as provided in the preceding sentence, in the event the Executive's
employment is terminated for Cause, he shall not be entitled to the continuance
of benefits during the Severance Period provided for in Section 8(g).
(d) In the event the Executive's employment with the Control
Group is terminated by the Company without Cause, or the Executive terminates
employment with the Control Group within 60 days after the occurrence of a Good
Reason event with regard to the Executive, or the Company provides the Executive
with the notice provided for in Section 2 that the term of this Agreement shall
not be extended beyond its then-current termination date (other than in
connection with a program applicable to all similarly situated executives by
which the Company enters into a new employment or severance agreement with
Executive to become effective upon the termination of this Agreement and
providing benefits to Executive substantially similar to, or better than, those
provided herein), the Company shall pay any amounts due to the Executive under
Section 5 through the date of his termination and shall pay the Executive a
Severance Benefit as set forth below.
(i) The Executive shall receive 50 percent of his
Severance Benefit in the form of a lump sum cash payment as soon as
administratively feasible following his Termination Date, provided, however,
that interest shall be payable beginning on the tenth day following the
Termination Date at the prime rate of interest as stated in The Wall Street
Journal.
(ii) The Executive shall receive the remaining 50
percent of his Severance Benefit in the form of a lump sum cash payment as soon
as administratively feasible following the one year anniversary of the
Executive's Termination Date, subject to Section 8(e), provided, however, that
interest shall be payable beginning on the tenth day following the Termination
Date at the prime rate of interest as stated in The Wall Street Journal.
Notwithstanding the foregoing, if a Change in Control occurs prior to the
Executive's receipt of the remaining 50 percent of his Severance Benefit, the
Executive shall receive such remaining 50 percent within 10 days following the
Change in Control (and, if not paid within such 10 day period, with interest
payable beginning on the tenth day following the Change in Control at the prime
rate of interest as stated in The Wall Street Journal).
(e) The Executive shall only be entitled to the portion of his
Severance Benefit described in Section 8(d)(ii) if the Executive has not engaged
in Competition during the one year period following his Termination Date and has
not violated the provisions of Section 9(b). The Executive shall forfeit the
portion of the Severance Benefit described in 8(d)(ii) in the event the
Executive engages in Competition during such period or violates the provisions
of Section 9(b).
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(f) Notwithstanding anything to the contrary contained herein,
if, within 24 months following a Change in Control, the Executive's employment
with the Control Group is terminated without Cause or if the Executive
terminates employment with the Control Group within sixty (60) days after the
occurrence of a Good Reason event with regard to the Executive, (i) the
Executive shall receive 100 percent of his Severance Benefit in the form of a
lump sum cash payment within 10 days following his Termination Date (and, if not
paid within such 10 day period, with interest payable beginning on the tenth day
following the Termination Date at the prime rate of interest as stated in The
Wall Street Journal), and (ii) the restriction on Competition contained in
Section 9(a) shall not apply.
(g) Except as otherwise provided in Section 8(c), the
Executive shall continue, to the extent permitted under legal and underwriting
requirements (if any), to participate during his Severance Period in any group
medical, dental or life insurance plan he participated in prior to his
Termination Date, under substantially similar terms and conditions as an active
Employee; provided that participation in such group medical, dental and life
insurance benefits shall correspondingly cease at such time as the Executive
becomes eligible for a future employer's medical, dental and/or life insurance
coverage (or would become eligible if the Executive did not waive coverage) or
violates the provisions of Sections 9(a) or 9(b). Notwithstanding the foregoing,
the Executive may not continue to participate in such plans on a pre-tax or
tax-favored basis. Notwithstanding anything else herein, the Executive shall not
be entitled to any benefits during the Severance Period other than the benefits
provided in Section 8 and, without limiting the generality of the foregoing, the
Executive specifically shall not be entitled to continue to participate in any
group disability or voluntary accidental death or dismemberment insurance plan
he participated in prior to his Termination Date. The Executive's entitlement to
elect continuation coverage under the Company's group health plans pursuant to
the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
("COBRA"), shall commence on the earlier of the date participation in such plans
ceases or following the expiration of the Severance Period. Without limiting the
generality of the foregoing, the Executive shall not accrue additional benefits
under any pension plan of the Company or an Affiliate (whether or not qualified
under Section 401(a) of the Code) during the Severance Period, provided,
however, that to the extent provided for under any applicable plan, the amount
of any Severance Benefit may be included in the Executive's earnings for
purposes of calculating the Executive's benefit under the Venator Group
Retirement Plan, the Venator Group Excess Cash Balance Plan, and the Venator
Group 401(k) Plan.
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(h) In the event of the Executive's death after becoming
eligible for the portion of the Severance Benefit described in Section 8(d)(i)
and prior to payment of such amount, such portion of the Severance Benefit shall
be paid to the Executive's Beneficiary. In addition to the foregoing, in the
event of the Executive's death prior to payment of the portion of the Severance
Benefit described in Section 8(d)(ii), such amount shall be paid to the
Executive's Beneficiary, but only to the extent that the Executive satisfied the
provisions set forth in Sections 9(a) and 9(b) for the period following the
Executive's Termination Date and prior to his death.
(i) Notwithstanding anything else herein, to the extent the
Executive would be subject to the excise tax under Section 4999 of the Code on
the amounts in Sections 8(d)(i) and (ii) and such other amounts or benefits he
received from the Company and its Affiliates required to be included in the
calculation of parachute payments for purposes of Sections 280G and 4999 of the
Code, the amounts provided under this Agreement shall be automatically reduced
to an amount one dollar less than that which, when combined with such other
amounts and benefits required to be so included, would subject the Executive to
the excise tax under Section 4999 of the Code if, and only if, the reduced
amount received by the Executive on a net after-tax basis after taking into
account federal, state and local income and social security taxes at the maximum
marginal rates would be greater than the unreduced amount to be received by the
Executive on a net after-tax basis after taking into account federal, state and
local income and social security taxes at the maximum marginal rates minus the
excise tax payable under Section 4999 of the Code on such amount and the other
amounts and benefits received by the Executive and required to be included in
the calculation of a parachute payment for purposes of Sections 280G and 4999 of
the Code.
9. Non-Competition and Confidentiality.
(a) (i) The Executive agrees that he shall not engage in
Competition during the Non-Competition Period, subject to the Company's option
to waive all or any portion of the Non-Competition Period, as more specifically
provided for in the following paragraph.
(ii) As additional consideration for the covenant not
to compete during the Non-Competition Period described above, the Company shall
pay the Executive, on a monthly basis, the sum of 25 percent of the Executive's
monthly Salary, less the amount of the Executive's "Monthly Severance Benefit,"
if any. This additional consideration shall be payable for the one (1) year
period commencing on the Termination Date and shall be payable on the first day
of each month. For purposes of this provision, the "Monthly Severance Benefit"
shall be equal to the Severance Benefit divided by the number of months in the
Severance Period. The Company has the option, for any reason, to elect to waive
all or any portion of the
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one (1) year period of Non-Competition commencing on the Termination Date, by
giving the Executive written notice of such election not less than thirty (30)
days following the Termination Date. In that event, the Company shall not be
obligated to pay the Executive under this paragraph for any months as to which
the covenant not to compete has been waived. The Company may discontinue
payments being made pursuant to this paragraph at any time during the
Non-Competition Period that (i) Executive is engaged in full-time employment
that, in the Company's opinion, does not violate the provisions of Section
9(a)(i) hereof, or (ii) Executive violates the provisions of Section 9(a)(i)
hereof.
(b) The Executive shall not at any time during the term of
this Agreement, or thereafter, communicate or disclose to any unauthorized
person, or use for the Executive's own account, without the prior written
consent of the Chief Executive Officer of the Company, nonpublic information of
any kind concerning the Company or any of its subsidiaries or affiliates,
including, but not limited to, nonpublic information concerning finances,
financial plans, accounting methods, strategic plans, operations, personnel,
organizational structure, methods of distribution, suppliers, customers, client
relationships, marketing strategies, real estate strategies or the like. In the
event of the termination of Executive's employment, Executive shall, on or
before the Termination Date, return all Confidential Information in his
possession, in whatever form, to the Company. It is understood, however, that
the obligations set forth in this paragraph shall not apply to the extent that
the aforesaid matters (a) are disclosed in circumstances in which the Executive
is legally required to do so or (b) become generally known to and available for
use by the public other than by the Executive's wrongful act or omission.
(c) The Executive agrees that any breach of the terms of
Sections 9(a) or 9(b) would result in irreparable injury and damage to the
Company for which the Company would have no adequate remedy at law; the
Executive therefore agrees that in the event of a breach or threatened breach by
the Executive of the provisions of Sections 9(a) or 9(b), the Company shall be
entitled to an immediate injunction and restraining order to prevent such breach
or threatened breach or continued breach by the Executive, including any and all
persons and entities acting for or with the Executive, without having to prove
damages, and to all costs and expenses, including reasonable attorneys' fees and
costs, in addition to any other remedies to which the Company may be entitled at
law or in equity. The terms of this paragraph shall not prevent the Company from
pursuing any other available remedies for any breach or threatened breach
hereof, including but not limited to the recovery of damages from the Executive.
The Executive and the Company further agree that the provisions of the covenant
not to compete are reasonable and that the Company would not have entered into
this Agreement but for the inclusion of such covenant herein. If any provision
of the covenants set forth in Section 9 is found by any court of competent
jurisdiction to be unenforceable because it extends for too long a period of
time or
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over too great a range of activities or in too broad a geographic area, it shall
be interpreted to extend over the maximum period of time, range of activities or
geographic area as to which it may be enforceable.
(d) The provisions of Section 9 shall survive any termination
of this Agreement and the existence of any claim or cause of action by the
Executive against the Control Group, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Company of
the covenants and agreements of Section 9.
10. No Duty to Mitigate/Set-off. The Company agrees that if the
Executive's employment with the Control Group is terminated during the term of
this Agreement, the Executive shall not be required to seek other employment or
to attempt in any way to reduce any amounts payable to the Executive by the
Company pursuant to this Agreement. Further, except to the extent provided for
in Section 8(d)(ii), the amount of the Severance Benefit provided for in this
Agreement shall not be reduced by any compensation earned by the Executive or
benefit provided to the Executive as the result of employment by another
employer or otherwise. Except as otherwise provided herein, the Company's
obligations to make the payments provided for in this Agreement and otherwise to
perform its obligations hereunder shall not be affected by any circumstances,
including without limitation, any set-off, counterclaim, recoupment, defense or
other right which the Company may have against the Executive. The Executive
shall retain any and all rights under all pension plans, welfare plans, equity
plans and other plans, including other severance plans, under which the
Executive would otherwise be entitled to benefits.
11. Withholding. The Company shall have the right to make such
provisions as it deems necessary or appropriate to satisfy any obligations it
may have to withhold federal, state or local income or other taxes incurred by
reason of payments pursuant to this Agreement. In lieu thereof, the Company
shall have the right to withhold the amount of such taxes from any other sums
due or to become due from the Company or an Affiliate to the Executive upon such
terms and conditions as the Committee may prescribe.
12. Release. In consideration of the Executive's entitlement hereunder
to a Severance Benefit which exceeds the severance benefit provided for under
the Company's standard severance program and as a condition of receiving any
Severance Benefit hereunder with regard to a termination of employment occurring
prior to a Change in Control, the Executive shall be required to provide the
Company with a release of all claims of the Executive (except with regard to
claims for payment of benefits specifically payable or providable hereunder
which have not been paid as of the effective date of the release, claims for
vested accrued benefits or claims under COBRA) of any kind whatsoever against
the Control Group, its past or present
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officers, directors and employees, known or unknown, as of the date of the
release. The release shall be in such form as may reasonably be specified by the
Company.
13. Successors; Binding Agreement. In addition to any obligations
imposed by law upon any successor to the Company, the Company will require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree in writing to perform this Agreement in
the same manner and to the same extent that the Company would be required to
perform it if no such succession had taken place. This Agreement shall inure to
the benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Executive shall die while any amount would still
be payable to the Executive hereunder if the Executive had continued to live,
all such amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to the Executive's Beneficiary, or the
executors, personal representatives or administrators of the Executive's estate.
14. Termination of Severance Agreement. The severance agreement entered
into between the Company and the Executive dated as of May 5, 1999 is hereby
terminated as of December 31, 1999 without any further obligation of the parties
thereto.
15. Miscellaneous. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by the Executive and such officer as may be specifically
designated by the Company. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not expressly set
forth in this Agreement. All references to sections of the Code or any other law
shall be deemed also to refer to any successor provisions to such sections and
laws.
16. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
17. Severability. If any provisions of this Agreement shall be declared
to be invalid or unenforceable, in whole or in part, such invalidity or
unenforceability shall not affect the remaining provisions hereof which shall
remain in full force and effect.
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18. Arbitration. Any dispute or controversy arising under or in
connection with this Agreement or the breach thereof, other than injunctive
relief pursuant to Section 9, shall be settled by arbitration, conducted before
a panel of three arbitrators in New York, New York, or in such other city in
which the Executive is then located, in accordance with the rules of the
American Arbitration Association then in effect. The determination of the
arbitrators, which shall be based upon a de novo interpretation of this
Agreement, shall be final and binding and judgment may be entered on the
arbitrators' award in any court having jurisdiction. The costs assessed by the
American Arbitration Association for arbitration shall be borne by the Company.
19. Notice. Any notice to either party hereunder shall be in writing,
and shall be deemed to be sufficiently given to or served on such party, for all
purposes, if the same shall be given personally delivered to such party, or sent
to such party by registered mail, postage prepaid, addressed as follows:
If to the Company: Venator Group, Inc.
000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: President
If to the Executive:
Either party may change the address to which notices are to be
sent to such party hereunder by written notice of such new address given to the
other party hereto. Notices shall be deemed given when received if delivered
personally or three days after mailing if mailed as aforesaid.
20. Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of New
York without regard to its conflicts of laws principles. For purposes of Section
9, the Executive consents to the jurisdiction of state and federal courts in New
York County.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed and the Executive's hand has hereunto been set as of the date first set
forth above.
VENATOR GROUP, INC.
By:
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APPENDIX A
Change in Control
A Change in Control shall mean any of the following: (i) (A) the making
of a tender or exchange offer by any person or entity or group of associated
persons or entities (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934 (a "Person") (other than the Company or its
Affiliates) for shares of common stock of the Company pursuant to which
purchases are made of securities representing at least twenty percent (20%) of
the total combined voting power of the Company's then issued and outstanding
voting securities; (B) the merger or consolidation of the Company with, or the
sale or disposition of all or substantially all of the assets of the Company to,
any Person other than (a) a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving or parent entity) fifty percent (50%) or
more of the combined voting power of the voting securities of the Company or
such surviving or parent entity outstanding immediately after such merger or
consolidation; or (b) a merger or capitalization effected to implement a
recapitalization of the Company (or similar transaction) in which no Person is
or becomes the beneficial owner, directly or indirectly (as determined under
Rule 13d-3 promulgated under the Securities Exchange Act of 1934), of securities
representing more than the amounts set forth in (C) below; (C) the acquisition
of direct or indirect beneficial ownership (as determined under Rule 13d-3
promulgated under the Securities Exchange Act of 1934), in the aggregate, of
securities of the Company representing twenty percent (20%) or more of the total
combined voting power of the Company's then issued and outstanding voting
securities by any Person acting in concert as of the date of this Agreement;
provided, however, that the Board may at any time and from time to time and in
the sole discretion of the Board, as the case may be, increase the voting
security ownership percentage threshold of this item (C) to an amount not
exceeding forty percent (40%); or (D) the approval by the shareholders of the
Company of any plan or proposal for the complete liquidation or dissolution of
the Company or for the sale of all or substantially all of the assets of the
Company; or (ii) during any period of not more than two (2) consecutive years,
individuals who at the beginning of such period constitute the Board, and any
new director (other than a director designated by a person who has entered into
agreement with the Company to effect a transaction described in clause (i))
whose election by the Board or nomination for election by the Company's
stockholders was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously so approved,
cease for any reason to constitute at least a majority thereof.
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