Exhibit 10(c)
Agreement
This Agreement (the "Agreement") is entered into between X. X. Xxxxxx
Company, Inc. (the "Company"), and Xxxxx X. Xxxxxxxxxxxxx (the "Associate") as
of September 30, 2000.
In consideration of the Associate's agreement in March, 2000 to remain as
the Company's Chairman of the Board and Chief Executive Officer for a then
indefinite period until his successor was in place, Associate's agreement to
assist in the subsequent transition, and following his retirement and during the
term hereof to be available as needed, and in order to provide Associate with
appropriate office and clerical support, and in consideration of the following
covenants and mutual promises, the Company and the Associate have agreed to
enter into this Agreement.
While an executive with the Company, Associate has been entrusted with,
acquired, or developed substantial knowledge and expertise of a special nature
relating to the business, financial and functional areas of the Company, as well
as other information and knowledge concerning the Company and its internal
business affairs. As an executive of the Company and in such capacity Associate
has obtained highly confidential business, customer, and strategic information,
as well as business and other information relating to the internal affairs of
the Company.
Payments. Following the execution of this Agreement, the Company shall
make a lump sum payment to Associate in the amount of $3,000,000.
Non-Competition, Nonsolicitation and Confidentiality. For the period
beginning on the date hereof and ending on September 29, 2003 (the "Agreement
Term") the Associate agrees that he will not become employed by, be or become an
officer or director of, agree personally to perform services for, or enter into
a consulting arrangement with a company included in the S&P 500 Retail Index for
department stores (individually and collectively, the "Competitors"). During
the Agreement Term, the Associate further agrees that he will not (i) directly
or indirectly seek to employ on behalf of Associate or any other person or
entity, any person who is employed at the time by the Company; (ii) be engaged
in or be involved with, directly or indirectly, any investments in any
Competitor; or (iii) solicit any customer of the Company on behalf of or for the
benefit of a Competitor. The Associate further agrees not to disclose, in any
manner except to authorized representatives of the Company or when compelled by
legal process after notice to the Company (if such notice is feasible by a good
faith effort), information about or related to the Company that was obtained by
the Associate during his employment with the Company, other than information
generally available to the public.
Release and Waiver. In consideration of the benefits provided under this
Agreement, the Associate has entered into the Release and Waiver which is
attached hereto as Exhibit A. This Release and Waiver shall for purposes of
this Agreement be treated as incorporated into this Section in the form attached
hereto.
Severability. If all or any part of this Agreement is declared by any
court or governmental authority to be unlawful or invalid, such unlawfulness or
invalidity shall not invalidate any other portion of this Agreement. Any
section or a part of a section declared to be unlawful or invalid shall, if
possible, be construed in a manner which will give effect to the terms of the
section to the fullest extent possible while remaining lawful and valid.
Amendment. This Agreement shall not be altered, amended, or modified
except by written instrument executed by the Company and the Associate. A
waiver of any portion of this Agreement shall not be deemed a waiver of any
other portion of this Agreement.
Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but all of which together will
constitute one and the same instrument.
Applicable Law. The provisions of this Agreement shall be governed,
construed, interpreted and enforced in accordance with the laws of the State of
Texas, without regard to its choice of law or conflict of law principles.
X. X. Xxxxxx Company, Inc.
By: /s/ XXXX X. XXXXXXXX
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Title: Chairman of P&C Committee
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/s/ XXXXX X. XXXXXXXXXXXXX
--------------------------------
Xxxxx X. Xxxxxxxxxxxxx
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EXHIBIT A
WAIVER AND RELEASE
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TWO ORIGINALS OF THIS WAIVER AND RELEASE MUST BE SIGNED AFTER TERMINATION OF
EMPLOYMENT. AFTERWARDS, BOTH ORIGINALS MUST BE RETURNED TO XXXXXXX X. XXXXXX
EXECUTIVE VICE PRESIDENT, SECRETARY, AND GENERAL COUNSEL, AT 0000 XXXXXX XXXXX,
XXXXX, XXXXX 00000-0000 WITHIN 21 DAYS OF TERMINATION OR WITHIN 21 DAYS OF
RECEIPT OF THE WAIVER AND RELEASE, WHICHEVER OCCURS LATER. YOU MAY NOT MAKE ANY
CHANGES TO THIS FORM.
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This Waiver and Release ("Release") is entered into on this 8th day of November,
2000, between Xxxxx X. Xxxxxxxxxxxxx (hereinafter, "Associate") and X.X. Xxxxxx
Company, Inc., (referred to as the "Company").
Xxxxx X. Xxxxxxxxxxxxx is entering into this Release also on behalf of his
heirs, executors, administrators, successors and assigns (collectively referred
to for purposes of this Release as "Associate"). The Company is entering into
this Release through its designated official also for its past and present
subsidiaries and affiliates, its Welfare, Retirement, Pension and Benefit
committees and plans including all Voluntary Employee Beneficiary Plans, and its
past and present officers, directors, associates, insurers, and agents in their
personal or official capacities (collectively referred to for purposes of this
Release as the "Company").
For the promises, agreements and other valuable consideration noted herein and
in the Agreement, it is agreed as follows:
1. Associate agrees that this Release is an enforceable legal document and that
he has been encouraged to review it with his attorney. He has had a period
of not less than twenty-one (21) days in which to review the provisions of
this Release with his counsel. Associate acknowledges that if he chooses to
sign the Release before the expiration of twenty-one (21) days, Associate is
doing so knowingly and voluntarily, under no pressure from the Company. He
agrees that this Release sets forth his entire understanding with the
Company, supersedes all prior agreements or understandings between them, and
may not be modified, altered, or changed except upon prior written consent
by the Associate and the Company. Associate is entering into this Release of
his own free will.
2. Associate, for and in consideration of the benefits set forth in that
certain Agreement dated as of September 30, 2000 between Associate and the
Company (the "Agreement"), does hereby acknowledge full and complete
satisfaction of, and does unconditionally release and forever discharge the
Company from any and all claims, demands, liabilities, obligations, causes
or causes of action of whatever kind or nature, whether known or unknown,
suspected or unsuspected by him, which he now has, or at anytime had,
against the Company, including specifically but not exclusively and without
limiting the generality of the foregoing, any and all claims
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relating to discrimination under any federal, state, or local statute,
including the Age Discrimination in Employment Act, as amended, 29 U.S.C.
Sec. 621, et seq., including the Older Workers Benefits Protection Act,
Title VII of the Civil Rights Act, as amended, 42 U.S.C. Sec. 2000e, et
seq., ERISA, or claims in contract or tort including emotional distress
which arise out of or in any way relate to his employment with, and
separation from, the Company (including this Release and his voluntary
election to accept the terms and conditions of the Release, but excluding
the parties' performance under the Release).
Associate understands that he is releasing claims that he may not know about
and this is his intent. Associate expressly waives all rights under any laws
that are intended to prevent unknown claims from being released. Associate
understands the significance of doing so.
3. Associate also expressly waives any right or claim that he may have, or
assert to have, regarding employment or reinstatement to employment with the
Company or to any type of benefit which is not outlined herein unless
otherwise due him in accordance with Company plans. In furtherance of this
Release, Associate agrees that he will not under any circumstances seek
personal relief by submitting an Internal Review Process request or Notice
of Intent to Arbitrate a Termination Claim under the JCPenney Alternative
Program or by filing a charge or lawsuit against the Company for any such
claim in any federal, state or local court, or administrative agency, except
for those statutory rights which are nonwaivable.
4. Associate will have seven days to revoke this Release after it has been
signed by Associate and returned to the Company, such revocation to be
effected by means of written memorandum signed by him and delivered to the
individual denoted in the box on the first page of this Waiver and Release.
If such a signed, written notice of revocation is not actually received by
the individual designated above (delivery to any post office or other
delivery agent is insufficient) by the close of business on the tenth
calendar day following execution, this Release becomes effective and fully
enforceable by either Associate or the Company. If Associate violates
paragraph 2 of this Release, the Company shall be entitled to an immediate
refund of the lump sum payment to Associate described in the Agreement, and
to recover reasonable attorneys' fees incurred by the Company because of
such violation.
5. Associate expressly agrees to reimburse the Company for any and all damages
which the Company may incur as a result of the assertion of any claim by any
attorney against the Company for attorney's fees, costs or disbursements for
services rendered to or on behalf of Associate in this matter.
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7. Associate certifies he has made no changes to this Release other than
providing his name and the date the Release is entered into in the first two
paragraphs above and signing and providing the information required in the
signature section below.
/s/ XXXXX X. XXXXXXXXXXXXX
----------------------------- X. X. Penney Company, Inc.
Signature of Associate
Xxxxx X. Xxxxxxxxxxxxx
----------------------------- By: /s/ XXXX X. XXXXXXXX
Printed Name of Associate ----------------------------
[omitted]
----------------------- Date: 11/8/00
Social Security Number --------------------------
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