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EXHIBIT 10.13
SETTLEMENT AND RELEASE AGREEMENT
This is an agreement between you, Xxxxxxx X. Xxxxxxxx, (on behalf of
yourself, your spouse, your family, and anyone acting for you including
attorneys, agents, representatives, heirs, executors, and assigns) ("You"or
"Xxxxxxxx"), and Florsheim Group, Inc. (on behalf of its present or former
parents, subsidiaries, affiliates, companies, insurers, predecessors,
successors, assigns, agents and each of them, and any and all Florsheim
employees, officers, directors and attorneys acting on behalf of Florsheim or in
their individual and personal capacities) (Collectively referred to as
"Florsheim" of "The Company").
1. PAYMENTS AND OTHER CONSIDERATION. As consideration for the
agreements and covenants set forth in this Settlement and Release Agreement
("Agreement"), you will be paid a total, gross amount equal to twelve months of
severance at your current base salary ($500,000) less legally required
withholdings. First, Florsheim will continue your salary payments for the next
six months in the total, gross amount of two hundred fifty thousand dollars. The
payments described in this paragraph will be made in the same manner in which
you are currently compensated by the Company. Second, the remaining portion of
two hundred fifty thousand dollars will be paid in twelve equal monthly amounts
of twenty thousand eight hundred thirty three dollars ($20,833) beginning thirty
days after the conclusion of the salary continuation period and concluding
twelve months thereafter. In addition, Florsheim will maintain your current
health insurance for twelve months commencing July 1, 1999 and ending June 30,
2000. Your eligibility for COBRA will commence on July 1, 2000. Florsheim also
agrees to vest those options that would otherwise have vested on September 5,
1999 under the terms of the Company's Xxxxxxx X. Xxxxxxxx Stock Option Plan.
Finally, you will retain the facsimile, notebook computer and cellular phone
currently in your possession provided that you bear all ongoing expenses for
these machines. You will continue to accrue credited service towards the
Florsheim Group defined benefit pension plan until September 5, 2000. Florsheim
will also provide, upon request, a mutually agreeable reference letter. You will
immediately return all other company property, including all credit cards. The
parties agree that this is sufficient and adequate consideration and does not
represent any payment to which you are otherwise entitled.
The foregoing benefits are in addition to and exceed that to which you
would be entitled to receive without signing this Agreement.
2. CONFIDENTIAL INFORMATION.
(a) Xxxxxxxx acknowledges that, by reason of Xxxxxxxx'x
employment by the Company, Xxxxxxxx had access to confidential information and
knowledge pertaining to products, inventions, discoveries, improvements,
inventions, designs, ideas, trade secrets, proprietary information,
manufacturing, packaging, advertising, distribution and sales methods, sales and
profit figures, customer and client lists and relationships between Company and
dealers, distributors, sales representatives, wholesalers, customers, clients,
suppliers and others who have business dealings with them ("Confidential
Information"). Employee acknowledges that such Confidential Information is a
valuable and unique asset of Company and covenants that, both
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during and after the payment of severance to Xxxxxxxx, Xxxxxxxx will not
disclose any Confidential Information to any person without the prior written
authorization of the Company Board. The obligation of confidentiality imposed by
this section shall not apply to information that becomes generally known in the
industry through no act of Xxxxxxxx in breach of this Agreement.
(b) Xxxxxxxx acknowledges that all documents, files and other
materials received from the Company during the Employment Term (with the
exception of documents relating to Xxxxxxxx'x compensation or benefits to which
Xxxxxxxx is entitled following the Employment Term) were for use of Xxxxxxxx
solely in discharging Xxxxxxxx'x duties and responsibilities hereunder and that
Xxxxxxxx has no claim or right to the continued use or possession of such
documents, files or other materials. Xxxxxxxx agrees that he will not retain any
such documents, files or other materials and will promptly return to the Company
any documents, files or other materials in his possession or custody, except
that Xxxxxxxx shall be entitled to retain a copy of correspondence written by
him so long as the Company also has a copy and such correspondence does not
contain Confidential Information.
3. NON-COMPETITION. During the severance term and for six months
thereafter Xxxxxxxx shall not, unless acting pursuant hereto or with the prior
written consent of the Company Board, directly or indirectly, own, manage,
operate, finance, join, control or participate in the ownership, management,
operation, financing or control of, or be connected as an officer, director,
employee, partner, principal, agent, representative, consultant or otherwise
with, or use or permit Xxxxxxxx'x name to be used in connection with any
Competing Business (defined below); provided, however, that notwithstanding the
foregoing, this provision shall not be construed to prohibit the ownership by
Xxxxxxxx of not more than 1% of the capital stock of any corporation which is
engaged in any of the foregoing businesses having a class of securities
registered pursuant to the Exchange Act.
The Term "Competing Business" shall mean any business or enterprise
engaged in the business of designing, manufacturing, distributing, marketing or
selling men's dress, dress casual or casual footwear within (i) any state of the
United States or the District of Columbia or (ii) any foreign country in which
Company or any of its subsidiaries engages in such business; provided, however,
that if a business or enterprise has subsidiaries or units engaged in such
business that provide less than five percent of the overall revenues of such
business or enterprise, and Xxxxxxxx is not directly involved in any aspect of
the business of such subsidiaries or units, such business or enterprise shall
not constitute a Competing Business for purposes of this Agreement.
In the event that the provisions of this paragraph should ever be
adjudicated to exceed the time, geographic, product or other limitations
permitted by applicable law in any jurisdiction, then such provisions shall be
deemed reformed in such jurisdiction to the maximum time, geographic, product or
other limitations permitted by applicable law.
4. EQUITABLE RELIEF. Employee acknowledges that the restrictions
contained in paragraphs 2 and 3 hereof are, in view of the nature of the
business of the Company and its subsidiaries, reasonable and necessary to
protect the legitimate interests of the Company, and that any violation of any
provision of those paragraphs may result in irreparable injury to the
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Company. Xxxxxxxx also acknowledges that in the event of any such violations,
the Company shall be entitled to preliminary and permanent injunctive relief,
without the necessity of proving actual damages and to an equitable accounting
of all earnings, profits and other benefits arising from any such violation,
which rights shall be cumulative and in addition to any other rights or remedies
to which the Company may be entitled. Xxxxxxxx agrees that in the event of any
such violation, an action may be commenced for any such preliminary and
permanent injunctive relief and other equitable relief in any federal or state
court of competent jurisdiction sitting in Chicago, Illinois or in any other
court of competent jurisdiction. Xxxxxxxx hereby waives, to the fullest extent
permitted by law, any objection that Xxxxxxxx may now or hereafter have to such
jurisdiction or to the laying of the venue of any such suit, action or
proceeding brought in such a court and any claim that such suit, action or
proceeding has been brought in an inconvenient forum. Xxxxxxxx agrees that
effective service of process may be made upon Xxxxxxxx by mail at his home at
0000 Xxxxx Xxxxxxx Xxxx, Xxxx Xxxxxx, Xx., 00000.
5. COVENANT NOT TO XXX/RELEASE AND WAIVER. In exchange for the
benefits listed in paragraph one (1), you agree to release and never to
institute any suit, charge, complaint or action, at law or in equity, in any
court of the United States or any state thereof, or before any administrative
agency of either the United States or any state, county or municipality thereof,
or before any other tribunal, pubic or private, against the Company (which, as
defined in the preamble to this Agreement, includes all individuals, employees,
officers or directors, acting either in their business or individual capacities)
with respect to any and all known and unknown claims of any type, including but
not limited to those arising out of any aspect of your employment or the
termination of your employment, as of the date of the Agreement. This includes
claims that the Company:
- has violated its personnel policies, handbooks, contracts of
employment, or covenants of good faith and fair dealing
between you and the Company specifically including the
Agreement signed between you and the Company;
- has discriminated against you on the basis of age, race,
color, sex (including sexual harassment), national origin,
ancestry, disability, religion, sexual orientation, marital
status, parental status, source of income, entitlement to
benefits, or any union activities in violation of any local,
state or federal law, constitution, ordinance, or regulation,
including but not limited to: the Age Discrimination in
Employment Act, as amended; Title VII of the Civil Rights Act
of 1964, as amended; 42 X.X.X.xx. 1981, as amended; the Equal
Pay Act; the Americans With Disabilities Act; the Family
Medical Leave Act; the Employee Retirement Income Security
Act, Section 510; and the National Labor Relations Act; the
Illinois Human Rights Act; the Xxxx County Ordinance of Human
Relations; and the Chicago Ordinance on Human Relations; the
Fair Credit Reporting Act;
- has violated public policy or common law (including but not
limited to claims for retaliatory discharge; negligent hiring,
retention or supervision; defamation, intentional or negligent
infliction of emotional distress and/or mental anguish;
intentional interference with contract; negligence;
detrimental reliance; loss of consortium to you or any member
of your family and/or promissory estoppel;
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assault; battery); and
- excluded from this release are any claims which cannot be
waived by law, including but not limited to the right to file
an administrative charge of discrimination.
YOU UNDERSTAND THAT, OTHER THAN AS EXPRESSLY EXCEPTED HEREIN, THIS
RELEASE AND SETTLEMENT AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND
UNKNOWN CLAIMS AGAINST THE COMPANY TO THE DATE OF THIS AGREEMENT.
6. COVENANT NOT TO XXX/RELEASE AND WAIVER. In exchange for the
benefits listed in paragraphs two (2) and three (3), Florsheim agrees to release
and never to institute any suit, charge, complaint or action, at law or in
equity, in any court of the United States or any state thereof, or before any
administrative agency of either the United States or any state, county or
municipality thereof, or before any other tribunal, public or private, against
You (which, as defined in the preamble to this Agreement, includes all
attorneys, agents, representatives, heirs, executors, and assigns) with respect
to any and all known claims of any type including but not limited to those
arising out of any aspect of your employment or the termination of your
employment as of the date of the Agreement.
7. OTHER AGREEMENTS BY YOU. In addition by executing this
Agreement you are also agreeing that:
- You are entering into this Agreement knowingly, voluntarily,
and with full knowledge of its significance. You have not been
coerced, threatened, or intimidated into signing this
Agreement;
- You have been paid for all hours worked, that you have not
suffered any on-the-job injury for which you have not already
filed a claim, and that you have received all sick and
vacation pay and other benefits to which you are entitled.
8. NON-DISPARAGEMENT. Xxxxxxxx agrees for himself and all others
acting on his behalf, either directly or indirectly, not to take, support,
encourage, induce or voluntarily participate in any action or attempted action
that would negatively comment on, disparage, or call into question the business
operations, proposals or conduct of the Company, or to act in any way that would
damage the reputation, business relations, or present or future business, or the
reputation of any past or present directors, executives, officers, employees,
agents or affiliates and subsidiaries of the Company. Xxxxxxxx agrees that he
will not comment about the Company to any person or entity, except as required
by law or as necessary for Xxxxxxxx to defend himself in any civil, criminal,
administrative, judicial, arbitral or administrative proceeding; provided that
Xxxxxxxx may comment about his work experience with the Company in connection
with bona fide efforts at seeking employment, but in such event, will not
disparage the Company in any way. Florsheim agrees that no current member of the
Board of Directors will publically disparage or call into question the
performance of Xxxxxxxx and that any report on Xxxxxxxx regarding the
allegations of Xxxxxxxx Xxxxxxxxx will be maintained in confidence. For these
purposes, public
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means situations in which non-officers of Florsheim are present. This does not
prevent any disclosures as required by law or necessary to the possible sale of
the business, such as information necessary for disclosure to potential
purchasers, or as necessary to the Company's lending institutions. The parties
have agreed on the terms of the press release announcing Xxxxxxxx'x departure
from Florsheim.
9. CONFIDENTIALITY. The parties acknowledge that the absolute
confidentiality of this Agreement is of utmost importance to the parties. Except
as may be required by law, neither Xxxxxxxx, nor his attorney, nor any person
acting by, through, or in concert with him, nor the Company, shall directly or
indirectly, publish, disseminate, disclose, or cause or permit to be published,
disseminated, or disclosed to any individual or entity, any information relating
to the content of this Agreement or the circumstances and discussions that led
up to it, including, without limitation, the fact or amount of payment provided
herein. The provisions of this paragraph shall also apply to members of
Xxxxxxxx'x immediate family, their attorneys and any person acting as their
agent. If asked, the parties may respond that the matter has been resolved
amicably. This paragraph shall not be construed, however, to prevent the Company
from disclosing and/or discussing this Agreement or its terms with individuals
within its respective organization as deemed necessary by the Company or as
otherwise required by law. This paragraph further shall not be construed to
prevent you from disclosing information to any attorney, accountant or tax
advisor with whom you may consult for the purpose of obtaining professional
advice or services, or to any governmental taxing authority, or to members of
your immediate family; provided, however, that prior to disclosing any such
information, you shall advise any such person to whom they intend to disclose
the information (other than taxing authorities) that such information is
confidential and may not be disclosed by such person, except in response to
subpoena or judicial order. You specifically covenant that you have not and will
never review, discuss or disclose, either orally or in writing, this Agreement
or any of its terms with any current or former employee of the Company.
Should you be found by a court of competent jurisdiction to have
violated the agreements made herein with respect to disparagement or
confidentiality, you will forfeit any remaining payments under this Agreement
and hereby consent to the entry of an award of liquidated damages in the amount
of $100,000. Further, in the event that either party should prevail in a lawsuit
brought to enforce the confidentiality provisions of this Agreement, the
prevailing party shall be entitled to an award of reasonable attorneys' fees.
10. SALE OF FLORSHEIM STOCK. You acknowledge and agree that from
the date of this Agreement through August 20, 1999 or such earlier date that is
at least two (2) business days following the public release and disclosure of
Florsheim's financial information for the period ending July 3, 1999, you shall
not purchase, transfer, dispose or sell securities (or options) of Florsheim,
directly or indirectly, including, without limitation, by reducing risk through
any purchase or sale of any derivative security (or options) without the prior
disclosure to, and consent of , the designated legal representative of
Florsheim, which consent shall not unreasonably be withheld.
11. FULL DISCLOSURE BY XXXXXXXX. You acknowledge and represent
that, to the best of your knowledge, you have fully disclosed to Florsheim any
and all actions by you during your
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employment with Florsheim that could create liability for Florsheim other than
authorized actions you may have taken in the normal course of conducting your
duties as Chief Executive Officer. In the event that Florsheim becomes aware of
such conduct, not previously disclosed, then Florsheim retains all rights to
assert claims against you, including the right to institute legal action or to
assert claims of indemnification, notwithstanding the provisions of this
agreement. Further, should Xxxxxxxx have made a material misrepresentation or
omission or Florsheim be required to defend or institute litigation as a result
of such undisclosed information, Florsheim will have the right to cease any
remaining payments otherwise due under this agreement.
12. ENFORCEMENT. Each of the parties reserves the right to
initiate and pursue any legal action necessary to enforce the terms of this
Agreement. In the event of any legal action or proceeding to enforce the terms
of this Agreement, the prevailing party shall be entitled to recover from the
losing party, in addition to any and all other relief awarded or recovered, its
reasonable expenses, attorneys' fees and costs.
13. WAIVER OF EMPLOYMENT AND REEMPLOYMENT RIGHTS. Effective with
the execution of this agreement, you will have resigned all your positions as
director or officer of Florsheim and each of its subsidiaries and you hereby
confirm such resignation and agree that you have no further responsibility or
authority to act on behalf of Florsheim after that date. You further agree to
waive any right or claim you may have to employment or reemployment with
Florsheim. You further agree that you will not in the future seek employment or
any agency relationship with Florsheim, either as an employee or on any other
basis.
14. TIME TO REVIEW AND REVOKE. You acknowledge that you have been
given at least 21 days to consider this Agreement and have taken as much time as
necessary to consider it before signing. You further agree and understands that
you may revoke this Agreement within seven (7) days after execution and that the
Agreement will not become enforceable until eight (8) days after the date on
which you sign below. Any revocation must be in writing and must be delivered by
certified mail on or before the end of the seventh day after which you sign this
Agreement to Florsheim's attorney, J. Stephen Poor, Seyfarth, Shaw, Xxxxxxxxxxx
& Xxxxxxxxx, 00 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000.
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15. ENTIRE AGREEMENT/SEVERABILITY. This Agreement sets forth the
entire agreement between you and the Company and supersedes any other written or
oral understandings. You and the Company agree that if any provision of this
Agreement or application thereof is held to be invalid, the invalidity shall not
affect other provisions or applications of this Agreement. Should the payment
terms set forth in paragraph 1 above not be met, you will notify Florsheim, by
writing to its counsel, of the failure to receive payment. Florsheim will be
provided fourteen (14) days in which to cure such deficiency. Should Florsheim
not make the required payment, you may either declare this Agreement null and
void or choose to enforce the Agreement.
16. FULL KNOWLEDGE, CONSENT AND VOLUNTARY SIGNING OF AGREEMENT.
You agree and acknowledge that you have had sufficient time to consult with your
attorney, to fully consider this entire agreement and all of its consequences,
and that you have in fact, consulted with your attorney and fully considered
this agreement and its consequences prior to signing below. You acknowledge and
agree that : (A) you carefully read this Agreement and fully understand its
meaning, intent and terms; (B) you have full knowledge of its legal
consequences; (C) you agree to all the terms of the Agreement and are
voluntarily signing below; (D) other than as stated in this Agreement, no
promise or inducement has been offered for this Agreement; and (E) you are
legally competent to execute this Agreement and accept full responsibility for
it.
ACKNOWLEDGMENT BY EMPLOYEE: By signing this Agreement I acknowledge
that the benefits that I will receive are in exchange for a release of all
claims that I have against the Company and an agreement not to xxx the Company.
I understand that if I sign this agreement and then choose to xxx the Company on
any ground covered by the Agreement, I will be required to return the payments
set forth in Paragraph 1 less $10.00 and all obligations on behalf of the
Company with respect to payments not yet tendered shall be extinguished. I
further understand that if I xxx the Company and do not return the entire
amount, I will be deemed to have ratified this Agreement, regardless of any
alleged or actual invalidities in this Agreement, and the Company will be
entitled to judgment in its favor
/s/ Xxxxxxx X. Xxxxxxxx 6/22/99
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Xxxxxxx X. Xxxxxxxx Date:
The Florsheim Group, Inc
By: /s/ Xxxxxx X. Xxxxxx 6/22/99
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Date:
