Exhibit 10.35
EMPLOYMENT AGREEMENT
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This agreement (the "Agreement") is made as of August 30, 2000 (the
"Effective Date"), by and between Xxxx X. Xxxxxxx (the "Employee") and Xxxxxxx
Shoe Company Inc., a Delaware corporation (the "Company").
WHEREAS, the Board of Directors of the Company (the "Board") recognizes
the Employee's past and continuing contribution to the growth and success of the
Company and desires to assure the Company of the Employee's continued employment
in an executive capacity and to compensate him therefor; and
WHEREAS, the Company and the Employee each wishes that this Agreement
supersede and render void that certain Employment Agreement dated as of April
27, 1998 by and between the Company and the Employee, as amended; and
WHEREAS, the Employee wishes to continue his employment by the Company
and to commit himself to serve the Company on the terms herein provided;
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein contained, the parties hereto
agree as follows:
1. Position, Responsibilities and Term of Employment.
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1.01 Position and Responsibilities. The Employee shall serve as
Chairman of the Board, Chief Executive Officer and President of the Company and
in such additional management position(s) as the Board shall designate. In this
capacity the Employee shall, subject to the by-laws of the Company and to the
direction of the Board, have general supervisory responsibility for the
operations of the Company's business. The Employee shall be accountable to the
Board and shall perform and discharge, faithfully, diligently and to the best of
his ability, his duties and responsibilities hereunder. The Employee shall
devote substantially all of his working time and efforts to the business and
affairs of the Company.
1.02 Term. Subject to the provisions of Sections 1.03, 1.04, 1.05 and
1.06 hereof, the term of this Agreement shall commence on the Effective Date and
shall expire on the fifth anniversary of the Effective Date.
1.03 Termination on Account of the Employee's Death. In the event of
the Employee's death during the term of this Agreement, this Agreement shall
terminate except as provided in this Section 1.03. Following the Employee's
death, the beneficiary or beneficiaries indicated below shall be entitled to the
following benefits:
(a) For a period of six months subsequent to the date of the Employee's
death, the Company shall continue to pay an amount equal to the
Employee's Base Salary (as defined in Section 2.01 hereof) to Xxxxx X.
Xxxxxxx, the Employee's beneficiary, or such other beneficiary or
beneficiaries as he may later designate (or to his estate, if he fails
to make such designation) at the salary rate in effect on
the date of his death, said payments to be made on the same periodic
dates as salary payments would have been made to the Employee had he
not died.
(b) For a period of six months subsequent to the date of the Employee's
death, the Employee's surviving spouse, if any, shall continue to
receive all benefits described in Section 2.03 hereof in effect on the
date of his death. For purposes of determining the amount of such
benefits, the Employee shall be deemed to have remained in the employ
of the Company, with an annual salary at the rate in effect on the date
of his death. In addition, service credits under the benefit plans will
continue to accrue during such six-month period as if the Employee had
remained an employee of the Company. If benefits or service credits
contemplated by the previous two sentences cannot be provided under any
benefit plan because of a prohibition in the terms of the plan, the
Company shall pay or provide directly for payment of any benefits which
would have been payable if the terms of such benefit plan allowed for
the crediting required by the two previous sentences.
The Employee may change the beneficiary for the purposes of this Section 1.03 by
making a written designation and delivering such designation to the Secretary of
the Company. If the Employee makes more than one such written designation, the
designation last received by the Chairman of the Board before the Employee's
death shall control.
1.04. Termination for Cause. The Company shall have the right, after
fourteen (14) days' written notice to the Employee, to terminate his employment
for cause. For purposes of this Agreement, cause ("Cause") shall mean (a)
committing fraud, misappropriation or embezzlement in the performance of duties
as an employee of the Company, (b) conviction of a felony involving a crime of
moral turpitude, (c) willful disregard of any written directive of the Board
that is not inconsistent with the Company's Certificate of Incorporation,
by-laws or applicable law, (d) an act of the Employee constituting willful
material breach by the Employee of any material provision of this Agreement or
(e) the Employee willfully engaging in any business activity that materially
conflicts with Employee's duties owed to the Company. Any termination of the
Employee for Cause after a Change of Control occurs (as defined in Section
4.03(a) hereof) must relate to an act or omission of the Employee occurring
after the Change of Control occurs.
1.05 Termination for Other than Cause. Subject to the provisions of
Section 4 hereof, the Employee's employment may be terminated by either party by
giving thirty (30) days written notice to the other party. If the Employee
terminates his employment, it shall be considered to be a termination of the
Employee's employment by the Company for other than Cause if any of the
following events shall occur: if the Company (a) fails to appoint (or elect) the
Employee to the position or positions listed in Section 1.01 hereof; (b) fails
to comply with the provisions of Section 2 hereof; (c) engages in conduct that,
against the Employee's volition, would cause the Employee to commit fraudulent
acts or would expose the Employee to criminal liability; (d) reduces or attempts
to reduce the Employee's annual compensation (as described in Section 2 hereof);
(e) takes or attempts to take from the Employee a title or an office; (f)
effects or attempts to effect a significant change in the Employee's
responsibilities and/or duties which constitutes a demotion in the judgment of
the Employee (such judgment being exercised in good faith); or (g)
requires the Employee to be regularly based at any office or location that is
more than 50 miles from the Company's current headquarters in Hyde Park
(Boston), MA.
1.06 Extensions. On the fifth anniversary of the Effective Date, and on
each subsequent annual anniversary of the Effective Date thereafter, this
Agreement shall be automatically extended for an additional year unless either
party notifies the other in writing more than six months prior to the relevant
anniversary date that this Agreement is no longer to be extended.
2. Compensation.
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2.01 Base Salary. The Base Salary shall be determined by the Company's
Compensation and Stock Option Committee; provided, however, that such Base
Salary shall be paid at an annual rate of not less than $578,813. The Employee's
Base Salary shall be payable in periodic instruments in accordance with the
Company's usual practice for its senior executive officers.
2.02 Performance Bonus. The Employee shall be eligible to receive an
annual performance bonus (the "Performance Bonus"), the amount of which shall be
determined pursuant to the Company's Senior Management Incentive Plan
established by the Company's Compensation and Stock Option Committee. Any
Performance Bonus earned under this Section 2.02 shall be payable in accordance
with the Company's normal practices with respect to bonus payments made to the
Company's senior executive officers; provided, however, that any such
Performance Bonus shall be paid not later than thirty (30) days after audited
financial statements with respect to the Company's fiscal year during which such
bonus was earned become available.
2.03 Participation in Benefit Plans. The Employee shall be entitled to
participate in, and receive benefits under, all the Company employee benefit
plans and arrangements in effect on the Effective Date for as long as such plans
and arrangements may remain in effect (including, but not limited to,
participation in any pension and profit-sharing plan adopted by the Company, any
employee stock option plan and all group life, health, dental, disability and
other insurance) or any substitute or additional plans, policies or arrangements
made available in the future to the executives and key management employees of
the Company, subject to and on a basis consistent with the terms, conditions and
overall administration of such plans, policies and arrangements. Nothing paid to
the Employee under any plan, policies or arrangement presently in effect or made
available in the future shall be deemed to be in lieu of other compensation to
the Employee hereunder as described in this Section 2.
2.04 Vacation Days; Sick Leave. The Employee shall be entitled to
annual vacation time and sick leave without reduction in Base Salary in the same
amount and manner as other senior executive officers of the Company.
2.05 Expenses. During the term of his employment hereunder, the
Employee shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by him (in accordance with the policies and procedures
established by the Board for its senior executive
officers) in performing services hereunder, provided that the Employee properly
accounts therefor in accordance with Company policy.
3. Rights and Obligations Binding on Employee, the Company and its
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Successor(s).
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This Agreement and the rights and obligations of the parties hereto
shall bind and inure to the benefit of each of the parties hereto and shall also
bind and inure to the benefit of any successor or successors, or assignee or
assignees, of the Company. Except as to any such successor or assignee of the
Company, neither this Agreement nor any rights, obligations or benefits
hereunder may be assigned by the Company or by the Employee. As used in this
Agreement, a "successor" or "assignee" of the Company shall include but not be
limited to (a) any person or entity succeeding the Company, whether by sale or
exchange of stock or assets, merger, consolidation, recapitalization, or a
reorganization of any kind, including but not limited to all reorganizations
defined in section 368 of the Internal Revenue Code of 1986, as amended (the
"Code"), or (b) any person or entity receiving, directly or indirectly, any
substantial portion of the business, properties or assets of the Company, in any
type of transfer, including, but not limited to, any sale, exchange or other
transfer of any assets of the Company, or any transfer in connection with the
liquidation and/or dissolution of the Company, or the bankruptcy of the Company.
For any such transaction in which the successor or assignee does not succeed to
the obligations of the Company under this Agreement by operation of law, the
Company agrees that it shall be a precondition to the closing of such
transaction that the successor or assignee expressly assume the Company's
obligations under this Agreement. Except as provided in Section 4.03 hereof, the
rights and obligations of the parties to this Agreement shall not be limited in
any way or affected by a Change of Control (as defined in Section 4.03 (a)
hereof).
4. Consequences of Early Termination of Agreement.
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4.01 Termination by the Company Other than for Cause. If the Company
terminates this Agreement other than for Cause (including if the Employee
terminates this Agreement under the circumstances described in the second
sentence of Section 1.05 hereof), then the Employee (or the Employee's
beneficiary designated pursuant to Section 1.03 hereof if the Employee is
deceased at the time of payment) shall continue, throughout the remainder of
what would have been the normal term of this Agreement, to receive such
compensation and benefits as are provided to the Employee pursuant to Section 2
hereof; provided, however, that in no event shall the Employee receive, during
the period beginning with the date of termination of the Employee's employment
and the end of what would have been the normal term of this Agreement, an
aggregate amount of compensation and benefits less than one and one-half (1 1/2)
times the Employee's total compensation (including, for purposes of computing
total compensation under this Section 4.01, the amount of any bonus or employee
benefits accrued during the relevant period) earned during the twelve-month
period immediately preceding the effective date of such termination. The
Employee's right to receive such compensation and benefits shall not be subject
to any obligations on the part of the Employee to perform any work or other
obligations on behalf of the Company, its successor(s) or assignee(s), or to
mitigate his damages; provided, however, that if the Employee actually receives
compensation for services rendered to any person other than the Company, which
services were rendered after the date the Employee was terminated by the Company
and before the date constituting the end of what would have been the normal term
of this Agreement, then the amount of any such compensation
shall be subtracted from the amount otherwise owed to the Employee by the
Company pursuant to this Section 4.01. For the purposes of determining the
amount of benefits to which the Employee shall continue to be entitled pursuant
to Section 2.03 above, the Employee shall be deemed, throughout the period of
his entitlement pursuant to this Section 4.01, to have remained in the employ of
the Company with an annual salary at the rate in effect on the date of his
termination of employment. If continuation of any of the benefits described in
Section 2.03 cannot be provided as contemplated by this Section 4.01 on account
of a prohibition in the terms of a benefit plan, the Company shall pay or
provide directly for payment of any benefits which would have been payable if
the terms of such plan allowed for the crediting anticipated in this Section
4.01.
4.02 Termination by the Company for Cause. If the Company terminates
this Agreement for Cause, then the Company shall thereafter have no further
obligations or liability to the Employee under this Agreement; provided,
however, that the Employee shall be entitled to receive within thirty (30) days
after the effective date of such termination such compensation and benefits as
are accrued and unpaid on the effective date of such termination.
4.03 Termination Following Change of Control. If there is a Change of
Control while this Agreement is in effect, the provisions of this Section 4.03
shall apply and shall continue to apply for a two-year period following the
Change of Control, regardless of whether or not this Agreement is terminated. If
during the two-year period following a Change of Control the Employee's
employment is terminated by the Company without Cause, the Employee (or the
Employee's beneficiary designated pursuant to Section 1.03 hereof if the
Employee is deceased at the time of payment) shall receive such compensation as
is provided to the Employee pursuant to subsections (b) and (c) of this Section
4.03.
(a) For the purposes of this Section 4.03, Change of Control shall mean
the occurrence of one or more of the following three events:
(i) any one beneficial stockholder or affiliated group of
beneficial stockholders becomes at any time the beneficial
holder of twenty-five percent (25%) or more of the aggregate
voting power of the issued and outstanding securities of the
Company with rights to vote for the election of directors of
the Company;
(ii) at any time after any "reorganization" involving the
Company, as such term is defined in section 368 of the Code,
or any other type of reorganization, recapitalization, merger,
consolidation or sale of assets involving the Company, or a
contested election of a Company director, or any combination
of the foregoing, the individuals who were directors of the
Company immediately prior thereto shall cease to constitute a
majority of the Board; or
(iii) at any time after a tender offer or exchange offer for
voting securities of the Company (other than by the Company),
the individuals who were directors of the Company immediately
prior thereto shall cease to constitute a majority of the
Board.
(b) If the Employee becomes entitled to receive compensation
pursuant to this Section 4.03, then, in addition to any
payments to which the Employee is entitled under Section 4.01
hereof, the Employee shall receive within thirty (30) days of
the termination of his employment a lump-sum payment equal to
three (3) times the Employee's average annual total
compensation (including, for purposes of computing total
compensation under this Section 4.03, the amount of any bonus
and employee benefits accrued during the relevant period)
earned during the five-year period immediately preceding the
effective date of the change of control (such payment
hereinafter referred to as the "Termination Payment"). In the
event that any amount or benefit that may be paid or otherwise
provided to or in respect of the Employee by or on behalf of
the Company or any affiliate, whether pursuant to this
Agreement or otherwise (collectively, "Covered Payments"), is
or may become subject to the tax imposed under Code Section
4999 ("Excise Tax"), the Company will pay to the Employee a
"Reimbursement Amount" equal to the total of: (A) any Excise
Tax on the Covered Payments, plus (B) any Federal, state, and
local income taxes, employment and excise taxes (including the
Excise Tax) on the Reimbursement Amount, plus (C) the product
of any deductions disallowed for Federal, state or local
income tax purposes because of the inclusion of the
Reimbursement Amount in the Employee's adjusted gross income
multiplied by the Employee's combined Federal, state, and
local income tax rate for the calendar year in which the
Reimbursement Amount is includible in the Employee's taxable
income, plus (D) any interest, penalties or additions to tax
imposed under applicable law in connection with the Excise Tax
or the Reimbursement Amount. For purposes of this Section
4.03(b), the Employee will be deemed to pay (Y) Federal income
taxes at the highest applicable marginal rate of Federal
income taxation applicable to individuals for the calendar
year in which the Reimbursement Amount is includible in the
Employee's taxable income and (Z) any applicable state and
local income taxes at the highest applicable marginal rate of
taxation applicable to individuals for the calendar year in
which such Reimbursement Amount is includible in the
Employee's taxable income, net of the maximum reduction in
Federal income taxes which could be obtained from the
deduction of such state or local taxes if paid in such year
(determined without regard to limitations on deductions based
upon the amount of the Employee's adjusted gross income). The
payment of a Reimbursement Amount under this sub-Section
4.03(b) shall not be conditioned upon the Employee's
termination of employment. Notwithstanding the foregoing
provisions of this sub-Section 4.03(b), if it shall be
determined that, absent this sentence, the Employee is
entitled to a Reimbursement Amount, but that the portion of
the Covered Payments that would be treated as "parachute
payments" under Code Section 280G ("Covered Parachute
Payments") does not exceed 120% of the greatest amount of
Covered Parachute Payments that could be paid to the Employee
such that the receipt of such Covered Parachute Payments would
not give rise to any Excise Tax (the "Safe Harbor Amount"),
then no Reimbursement Amount shall be paid to the Employee
(unless for any reason Employee is determined to be subject to
the Excise Tax after application of the balance of this
sentence) and the Covered Parachute Payments payable under
this Agreement shall be reduced so
that the Covered Parachute Payments, in the aggregate, are
reduced to the Safe Harbor Amount. For purposes of reducing
the Covered Parachute Payments to the Safe Harbor Amount, only
amounts payable under this Agreement shall be reduced. If the
reduction of the amounts payable under this Agreement would
not result in a reduction of the Covered Parachute Payments to
the Safe Harbor Amount, no amounts payable under this
Agreement or otherwise shall be reduced pursuant to this
Section 4.03(b). The Company shall notify the Employee of any
intent to reduce the amount of any Covered Payments in
accordance with this sub-Section 4.03(b) (which notice, if
practicable, shall be given prior to the occurrence of an
event that would give rise to a Covered Parachute Payment),
and Employee shall have the right to designate which of the
Covered Payments shall be reduced and to what extent, provided
that the Employee may not so elect to the extent that, in the
determination of counsel to the Company, such election would
cause the Employee to be subject to the Excise Tax.
(c) If during the two-year period following a Change of
Control the Employee's employment is terminated by the Company
without Cause, for three years after the termination date, or
such longer period as may be provided by the terms of the
appropriate plan, program, practice or policy, the Company
shall continue benefits to the Employee and/or the Employee's
family at least equal to those which would have been provided
to them in accordance with the welfare benefit plans,
practices, policies and programs provided by the Company and
its affiliated companies (including, without limitation,
medical, prescription, dental, disability, salary continuance,
employee life, group life, accidental death and travel
accident insurance plans and programs) if the Employee's
employment had not been terminated (and at a cost to the
Employee no greater than the cost to the Employee under such
plans, programs, practices and policies) or, if more favorable
to the Employee, as in effect generally at any time thereafter
with respect to other peer employees of the Company and its
affiliated companies, but in no event shall such plans,
practices, policies and programs provide the Employee with
benefits which are less favorable, in the aggregate, than the
most favorable of such plans, practices, policies and programs
in effect for the Employee at the time of a Change of Control;
provided, however, that if the Employee becomes re-employed
with another employer and is eligible to receive medical or
other welfare benefits under another employer-provided plan,
the medical and other welfare benefits described herein shall
be secondary to those provided under such other plan during
such applicable period of eligibility.
4.04 Other Terminations. If the Employee terminates his employment
under this Agreement under such circumstances as would not cause the Employee to
be deemed to be terminated by the Company for other than Cause as provided in
the second sentence of section 1.05 hereof, and Section 4.03 does not apply to
such termination, then the Employee shall be entitled to receive within thirty
(30) days after the effective date of such termination such compensation and
benefits as are accrued and unpaid on the effective date of such termination,
and neither party to this Agreement shall thereafter have any further liability
to the other under this Agreement.
5. Miscellaneous.
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5.01 Governing Law. This Agreement shall be construed in accordance
with and governed for all purposes by the laws of The Commonwealth of
Massachusetts.
5.02 Interpretation. In case any one or more of the provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement, but
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
5.03 Legal Fees. Any legal expenses incurred by either party to this
Agreement in enforcing its rights hereunder (including any legal expenses
incurred with respect to any arbitration proceeding pursuant to Section 5.04
hereof) shall be borne and paid solely by such party. Notwithstanding the
foregoing or anything to the contrary contained in this Agreement, no provision
of this Agreement shall be construed as a limitation on or waiver of any rights
that one party to this Agreement may have to be reimbursed by the other party to
this Agreement for such first party's attorneys' fees pursuant to any statute or
other applicable law.
5.04 Arbitration of Disputes. Any controversy or claim arising out of,
or relating to, any provision of this Agreement shall be settled by binding
arbitration in accordance with the laws of The Commonwealth of Massachusetts by
three arbitrators, one of whom shall be appointed by the Company, one by the
Employee, and the third by the first two arbitrators. If the first two
arbitrators cannot agree on the appointment of a third arbitrator, then the
third arbitrator shall be appointed by the American Arbitration Association in
the City of Boston. Such arbitration shall be conducted in the City of Boston in
accordance with the rules of the American Arbitration Association, except with
respect to the selection of arbitrators, which shall be as provided in this
Section 5.04. Judgment on the award rendered by the arbitrators may be entered
in any court having jurisdiction thereof.
5.05 Notices. Any notice required or permitted to be given hereunder
shall be effective when received and shall be sufficient if in writing and if
personally delivered or sent by certified or registered mail, return receipt
requested, to the party to receive such notice at its address set forth below or
at such other address as a party may by notice specify to the other.
If to the Company: If to the Employee:
Xxxxxxx Shoe Company Inc. Xxxx X. Xxxxxxx
000 Xxxxxxx Xxxxxx 30 Andover Xxxxxxx Xxxx Xxxx
X.X. Xxx 00 Xxxxxxx, XX 00000
Xxxxxxxxx (Xxxxxx), XX 00000
Attn: Xxxxx X. Xxxxxxxx,
Executive Vice President
With a copy to: With a copy to:
Xxxxxxxx X. Xxxxx, Esq. Xxxxxx X. Xxxxxxx, Esq.
Xxxxxx, Xxxx & Xxxxxxxx LLP Xxxxxxx Xxxx
000 Xxxxx Xxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000 Xxxxxx, XX 00000
5.06 Confidential Information. The Employee will not disclose to any
other person or entity (except as required by applicable law or in connection
with the performance of his responsibilities hereunder), or use for his own
benefit, any confidential information of the Company obtained by him incident to
his employment with the Company. The term "confidential information" includes,
without limitation, financial information, business plans, prospects and
opportunities which have been discussed or considered by the Company's
management but does not include any information which has become public other
than on account of the Employee's failure to comply with the provisions of this
Section 5.06.
5.07 Non-Competition. The Employee agrees that, for a period of
eighteen (18) months following the date of termination of this Agreement (other
than a termination that results solely from the expiration of the initial or
extended normal term of this Agreement contemplated by Sections 1.02 and 1.06
hereof), he will not directly or indirectly own, manage, operate, control or
participate in the ownership, management, operation or control of, or be
connected as an officer, employee, partner, director or otherwise with, or have
any financial interest in, or aid or assist anyone else in the conduct of, or
solicit any employees of the Company on behalf of, any entity or business which
competes directly with the footwear or retail businesses conducted by the
Company or by any group, division or subsidiary of the Company, in any area
where such business is being conducted or is proposed to be conducted at such
date of termination; provided, however, that this provision shall not apply if
this Agreement is terminated as provided in the parenthetical phrase set forth
above in this sentence. It is understood and agreed that, for the purposes of
the foregoing provisions of this Section 5.07, (i) no business shall be deemed
to be a business conducted by the Company, or any group, division or subsidiary
of the Company, unless not less than five percent (5%) of the Company's
consolidated gross sales or operating revenues is derived from, or not less than
five percent (5%) of the Company's consolidated assets is devoted to, such
business; and (ii) no business conducted by any entity by which the Employee is
employed or in which he is interested or with which he is connected or
associated shall be deemed competitive with any business conducted by the
Company unless it is one from which five percent (5%) or more its consolidated
gross sales or operating revenues is derived, or to which five percent (5%) or
more of its consolidated assets is devoted; provided, however, that if the
actual gross sales or operating revenues or assets of such entity derived from
or devoted to such business is equal to or in excess of ten percent (10%) of the
most nearly comparable figure for the Company, such business of such entity
shall be deemed, to be competitive with a business of the Company. Furthermore,
ownership of five percent (5%) or less of the voting stock of any publicly held
corporation shall not constitute a violation of this Section 5.07.
5.08 Amendment and Waiver. This Agreement may not be amended,
supplemented or waived except by a writing signed by the party against which
such amendment, supplement or waiver is to be enforced. The waiver by any party
of a breach of any provision of this Agreement shall not operate to waive, or be
construed as a waiver of, any other breach of that provision nor as a waiver of
any breach of another provision.
5.09 Binding Effect. Subject to the provisions of Section 3 hereof,
this Agreement shall be binding on the successors and assigns of the parties
hereto.
5.10 Other Agreements. This Agreement supersedes and renders void the
terms of any previously executed employment agreements, including but not
limited to that certain Employment Agreement dated April 27, 1998 between the
Company and the Employee, as amended, and/or compensation agreements between the
parties, which shall no longer be considered to have any force or effect.
5.11 Counterparts. This Agreement may be executed in two counterparts,
each of which is an original but which shall together constitute one and the
same instrument.
Upon execution below by both parties, this Agreement will enter into
full force and effect as of August 30, 2000.
XXXXXXX SHOE COMPANY INC. THE EMPLOYEE
By: /s/ Xxxxx X. Xxxxxxxx /s/ Xxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxxx Xxxx X. Xxxxxxx
Executive Vice President
