NS GROUP, INC. FORM 10-Q SEPTEMBER 30, 2002 EXHIBIT 10.1
SEPARATION AND RELEASE AGREEMENT
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This Separation and Release Agreement ("Agreement") is made as of
the 20th day of September, 2002, by and between NS Group, Inc., a Kentucky
corporation ("the Company") and Xxxxxxx X. Xxxxxx Xx. ("Employee"). The
Agreement is made under the following circumstances:
A. Employee's employment with the Company will terminate on
September 30, 2002.
B. The Company has agreed to provide severance pay and other
benefits to Employee as described herein.
C. Employee has agreed to release the Company, and all of its
affiliated companies, from all claims arising out of his employment or his
separation from employment, and to forebear from certain conduct as set forth
below.
NOW, THEREFORE, the parties agree, in consideration of the
provisions and payments described below, as follows:
1. The Company will pay Employee severance pay in the amount of $263,900, which
equals twelve months of Employee's base pay. This amount will be paid to
Employee on the first regularly scheduled pay date and thereafter following the
eighth day after Employee executes the Agreement in twenty-four (24)
semi-monthly installments. You can continue with direct deposit if you choose.
Participation in the NS Group, Inc. Retirement Savings Plan will terminate as of
the Termination Date and any Company match will continue through the Termination
Date.
2. The Company will continue to provide Employee with health (incl. medical,
prescription, dental) and life insurance for the earlier of (12) months or if
the Employee becomes employed and is eligible for health and life insurance.
Company health and life insurance will be provided under the same terms and
conditions as presently exist (e.g. where applicable, Employee will be required
to pay his share of the premium). The COBRA period will begin at the end of the
12 month severance benefit. In the event Employee elects not to enter this
Agreement, the Company's obligation to pay for Employee's health insurance will
terminate. Employer will provide Employee with COBRA information as required by
law.
3. The Company agrees to pay Employee executive level outplacement services up
to six (6) months or Employee may decide to receive $20,000 in cash (with all
appropriate withholdings).
4. The Company agrees to provide reimbursement for professional, legal, or
financial planning services up to $5,000.
5. The Company will gross-up Kentucky Company paid living expenses (e.g.
apartment, car) as has been done in prior years through the Termination Date.
6. As per your Non-Qualified Stock Option Agreements, your vested stock options
shall be exercisable (to the same extent they were exercisable on the date
Employee ceased to be employed) for a period of two (2) years after Employee's
Termination Date (but such period of exercisability shall not, in any event,
extend beyond the term of the Option, as such term is set forth in Section 7 of
the Non-Qualified Stock Option Agreement).
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7. The Company agrees to pay Employee any unused vacation for the calendar year
as of his termination date.
8. Employee's participation in the Company's other benefit plans will end on his
termination date, or as provided for in the applicable plan.
9. Employee agrees that the severance benefits provided by this Agreement are in
lieu of, replace, and exceed any severance benefits for which he might have been
eligible, or entitled to, under Company policy.
10. For and in consideration of the severance benefits provided in Paragraphs 1,
2, 3, 4, 5, and 6 of this Agreement, Employee, on behalf of himself, his heirs,
administrators, assigns, and agents, fully settles, releases, and forever
discharges the Company, (defined for purposes of this release to include NS
Group, Inc., its subsidiaries, and related companies) and its present and former
officers, directors, agents, and employees of and from any and all claims,
demands, liabilities, costs, damages, actions, and causes of action arising out
of or related to his employment or his termination from employment with the
Company, (including but not limited to that certain Salary Continuation
Agreement between the parties dated February 15, 2002), including but not
limited to any claims which might have been brought under Title VII of the Civil
Rights Act of 1964, as amended, the Employee Retirement Income Security Act,
Title 42 of the United States Code, the Americans with Disabilities Act, the Age
Discrimination in Employment Act of 1967, the Fair Labor Standards Act,
Pennsylvania civil rights laws, Kentucky civil rights laws, or any other
federal, state, local or common law, regulation or ordinance, as well as any
claim for wrongful discharge, breach of contract, breach of public policy,
promissory estoppel, intentional or negligent infliction of emotional distress,
personal injury, tort or punitive damages.
11. In further consideration of the payments and benefits described in
Paragraphs 1, 2, 3, 4, 5, and 6 above, Employee agrees:
(a) to transfer his responsibilities in an appropriate manner and take such
actions as are necessary to assure a smooth transition;
(b) not to represent or bind the Company or enter into any agreement on
behalf of the Company at any time after his separation from employment;
(c) to return to the Company on or prior to his separation from the Company
all Company property and materials, including but not limited to all Company
credit cards, keys, door cards, files, computer hardware, computer software
disks or other media, computer files, books, documents, records and memoranda,
and repay all cash advances and file a final expense report if Employee has any
unreimbursed expenses or outstanding advances;
(d) that except as specifically authorized in writing by an officer of the
Company or as may be required by applicable law, he will not use or disclose,
directly or indirectly, to anyone not connected with the Company any
confidential, commercial, strategic product information, manufacturing process
information, financial information, or trade or business secrets obtained during
the term of employment, nor make copies of any memoranda, books, records,
customer lists, price lists or other documents (whether on computer or not) for
use outside the Company;
(e) nor by speech or actions disparage the Company or any of its officers,
directors, employees or shareholders;
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(f) that for a period of one (1) year after his separation from employment
with the Company he will not solicit, take away, hire, employ or endeavor to
employ any of the employees of the Company without prior written approval from
the President;
(g) that for one (1) year immediately after his separation from employment
with the Company he shall not, without the prior written consent of the Company,
directly or indirectly, own, manage, operate, join, control or participate in
the ownership, management, operation or control of or become an employee of any
business which competes with the Company, any of its parent or subsidiary
companies, or any of its successors. However, nothing herein shall be construed
so as to prohibit Employee from owning less than five percent (5%) of the
outstanding common stock of any corporation, the stock of which is publicly
traded on a national securities exchange or n the over-the-counter market;
(h) to cooperate fully and assist the Company with any litigation matters
or agency proceedings for which Employee's testimony or cooperation is
requested, provided that Employee is compensated for any reasonable and
necessary expenses incurred or actual income lost as a result of his cooperation
and assistance;
(i) not to apply for or otherwise seek employment at any time with the
Company or any of its affiliated and subsidiary companies; and
(j) not to disclose either in writing or verbally any part or section of
this Agreement to any party other than the Employee's spouse or legal counsel.
12. This Agreement does not constitute an admission by the Company that it has
violated any contract, law, or regulation, or in any way infringed Employee's
rights or privileges.
13. The provisions of this Agreement are divisible. If any provision shall be
deemed invalid or unenforceable, it shall not affect the applicability or
validity of any other provision of this Agreement, but rather such provision
shall be amended to the extent necessary to render it valid and enforceable.
14. This Agreement shall be binding upon the parties hereto and upon their
heirs, administrators, representatives, officers, agents, shareholders,
directors, employees, executors, successors and assigns, and shall inure to the
benefit of said parties and each of them to their heirs, administrators,
representatives, officers, agents, shareholders, directors, employees,
executors, successors and assigns.
15. The foregoing terms represent the entire agreement between the parties and
the only consideration for signing this Agreement. No other promises or
agreements of any kind have been made to or with the parties to cause them to
execute this Agreement. The parties state that they have carefully read this
Agreement, that its contents have been fully explained to them, that they have
had full opportunity to review its contents with their own legal counsel, and
that they know and understand its contents and its legal effect, including, but
not limited to, its binding effect, and that they sign this Agreement as their
own free act and deed.
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ACKNOWLEDGMENT
Pursuant to and in compliance with the Age Discrimination in Employment Act
("ADEA") and the Older Workers Benefit Protection Act ("OWBPA"), Employee:
(i) acknowledges that this Separation and Release Agreement and waiver of
rights and claims under the ADEA is written in a manner which he
understands;
(ii) acknowledges that this waiver specifically relates to rights or claims
under the ADEA;
(iii) acknowledges that he does not waive any rights or claims under the
ADEA that may arise after the date of execution of this Agreement;
(iv) acknowledges that he waives rights and claims under the ADEA in
exchange for consideration in addition to anything of value to which
he is already entitled;
(v) acknowledges that he does not waive his right to file a charge with
the Equal Employment Opportunity Commission or State deferral agency,
but that he may not recover any personal damages as a result of said
charge;
(vi) is hereby advised to consult an attorney prior to execution of this
Agreement;
(vii) is afforded a period of twenty-one (21) days to consider this
Agreement; and
(viii) may revoke this Agreement during the seven (7) days following its
execution.
Date: September 23, 2002 /s/ Xxxx X. Xxxxxxxxx
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For the Company
Date: September 23, 2002 /s/ Xxxxxxx X. Xxxxxx Xx.
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Employee
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