EXHIBIT 10(ix)
EMPLOYMENT AGREEMENT
This AGREEMENT (the "Agreement") is made as of November 11, 1998 (the
"Effective Date"), by and between The Stride Rite Corporation, a Massachusetts
corporation with its headquarters located in Lexington, Massachusetts (the
"Employer"), and Xxxxx X. Xxxxxxxx (the "Executive"). In consideration of the
mutual covenants contained in this Agreement, the Employer and the Executive
agree as follows:
1. Employment. The Employer agrees to employ the Executive and the
Executive agrees to be employed by the Employer on the terms and conditions set
forth in this Agreement. The Executive's active employment shall commence on or
before December 7, 1998 (the "Start Date"); provided, that the Executive's
employment is conditioned upon the Executive being able to perform the essential
functions of his positions on or about December 7, 1998. The Employer's
obligations under Section 4 shall not commence until the Employer has made this
determination.
2. Capacity/Duties. The Executive shall initially serve the Employer as
Chairman and Chief Executive Officer, subject to election by the Board of
Directors of the Employer (the "Board"), and Executive's duties, position
(including titles), authority and responsibilities shall be similar to, but no
less than those held by the Executive on the date hereof with such additions and
modifications thereto to be consistent with existing duties, position, authority
and responsibilities hereunder, as the Board may, from time to time, in its
discretion and acting in good faith after consultation with the Executive,
adopt. The Executive shall also serve the Employer in such other or additional
offices as the Executive may reasonably be requested to serve by the Board.
The Executive shall be based at the Employer's headquarters in Lexington,
Massachusetts, or such other headquarters as may be established by the Employer.
The Executive shall have overall responsibility for the general management of
the Employer, subject to the direction and authority of the Board. The Executive
shall preside at all meetings of the Board and shall be responsible for
formulating and submitting to the Board matters of general policy for the
Employer. The Executive additionally shall be responsible for the general
supervision and control of the business and affairs of the Employer, subject in
each case to the direction and authority of the Board. The Executive shall be
responsible for developing, maintaining and enhancing the Employer's
relationships and reputation with investors, customers, suppliers, analysts and
the public at large. The Executive shall also perform such other duties as
normally are incident to the office of Chief Executive Officer. The Executive
acknowledges that his responsibilities in these capacities will require a
substantial time commitment, frequent travel, and availability at any time the
needs of the business so require. The Executive acknowledges the foregoing
requirements of the position and represents that he is fully capable of
performing the responsibilities from and after the Start Date. Executive agrees
that during his employment with Employer his primary residence and that of his
spouse will be in the greater Boston, Massachusetts area.
3. Term. Subject to the provisions of Section 6, the term of employment
pursuant to this Agreement (the "Term") shall be three (3) years from the Start
Date and shall be renewed automatically for periods of one (1) year, unless
either the Executive or the Employer gives written notice to the other not less
than sixty (60) days prior to the date of any such anniversary of such party's
election not to extend the Term.
4. Compensation and Benefits. The regular compensation and benefits
payable to the Executive under this Agreement shall be as follows:
(a) Salary. For all services rendered by the Executive under this
Agreement, the Employer shall pay the Executive a salary (the "Salary") at
the annual rate of Six Hundred Thousand Dollars ($600,000), subject to
increase from time to time in the discretion of the Board or the
Compensation Committee of the Board (the "Compensation Committee"). The
Salary shall be payable in periodic installments in accordance with the
Employer's usual practice for its senior executives. Any increase in the
Executive's Salary shall not serve to limit or reduce any other obligation
of the Employer hereunder and, after any such increase, the Executive's
Salary shall not be reduced.
(b) Bonus. Commencing during the Employer's 1999 fiscal year, Executive
shall be an "Eligible Employee" as that term is defined in the Employer's
Annual Incentive Compensation Plan (the "Annual Incentive Plan") and may
receive incentive compensation as provided by its terms. Pursuant to the
Annual Incentive Compensation Plan, Executive's "Bonus Percentage" (as
defined) will be fifty percent (50%). Executive's participation in the
Annual Incentive Plan is subject to the terms and conditions of such plan,
or any amended version of such plan or any successor or other annual
incentive compensation plan which may be adopted and become legally
effective during the Term.
(c) Stock Options. The Executive shall, subject to Board approval and such
terms and conditions as may be proscribed by the Board, be awarded a
non-qualified stock option to purchase up to Five Hundred Thousand
(500,000) shares of the Employer's common stock at fair market value,
which shall be the price at the close of trading on the New York Stock
Exchange - Composite Index on the trading day immediately prior to
Employer's public announcement of Executive's appointment to the position
of Chairman and Chief Executive Officer. The non-qualified stock option as
set forth herein, shall vest ratably in annual increments over a period of
three (3) years, with the first vesting date being the first anniversary
of the Start Date. All or a portion of Executive's non-qualified stock
option may, at the Employer's discretion, be outside Employer's existing
stock option plans. At the Board's discretion, additional grants of stock
options may be awarded to the Executive, from time to time, under the
prevailing terms and conditions of the Employer's current Stock Option
Plan(s) or any successor plan.
(d) Regular Benefits. The Executive shall be entitled to participate in
any employee benefit plans, medical insurance plans, life insurance plans,
disability income plans, retirement plans and other benefit plans which
the Employer may from time to time have in effect for all or most of its
senior executives. Such participation shall be subject to the terms of the
applicable plan documents, generally applicable policies of the Employer,
applicable law and the discretion of the Board, the Compensation Committee
or any administrative or other committee provided for in or contemplated
by any such plan. Nothing contained in this Agreement shall be construed
to create any obligation on the part of the Employer to establish any such
plan or to maintain the effectiveness of any such plan which may be in
effect from time to time.
(e) Car Allowance. Executive shall receive a car allowance of Ten Thousand
Dollars ($10,000) per year, prorated and payable in regular installments
coinciding with the Employer's normal pay periods for senior executives.
(f) Vacation. Executive shall be entitled to four (4) weeks paid vacation
per year. Any carryover of unused vacation from one annual period to the
next shall be subject to the policies and practices applicable to other
senior executives of the Employer.
(g) Relocation. In order to assist the Executive in alleviating the tax
burden caused by the reimbursement of certain expenses arising from the
relocation of the Executive by the Employer, the Employer shall pay to the
Executive an amount sufficient to reimburse the Executive for additional
Federal and State income taxes, including those applicable taxes on such
reimbursement, incurred on that portion of the Executive's relocation
expenses, including expenses paid pursuant to "Moving Expenses", "Travel
Expenses" and "Temporary Housing", which are not deductible under current
Internal Revenue Service rules, regulations and interpretations. A record
of all reimbursed relocation expenses shall be provided to the Executive
by the Employer's Payroll Department at the end of the tax year. The tax
allowance paid to the Executive shall be reported by the Employer as extra
income and appropriate tax withheld.
(h) Expenses. During the Employment Period, the Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses
incurred by the Executive in accordance with the policies and practices of
the Employer as in effect from time to time with respect to executives
employed by the Employer.
(i) Taxation of Payments and Benefits. The Employer shall undertake to
make deductions, withholdings and tax reports with respect to payments and
benefits under this Agreement to the extent that it reasonably and in good
faith believes that it is required to make such deductions, withholdings
and tax reports. Payments under this Agreement shall be in amounts net of
any such deductions or withholdings. Except as provided in Section 4(g)
and as provided in the CoC Agreement, nothing in this Agreement shall be
construed to require the Employer to
make any payments to compensate the Executive for any adverse tax effect
associated with any payments or benefits or for any deduction or
withholding from any payment or benefit.
(j) Exclusivity of Salary and Benefits. The Executive shall not be
entitled to any payments or benefits other than those provided under this
Agreement.
5. Extent of Service. During the Executive's employment under this
Agreement, the Executive shall, subject to the direction and supervision of the
Board, devote the Executive's full business time, best efforts and business
judgment, skill and knowledge to the advancement of the Employer's interests and
to the discharge of the Executive's duties and responsibilities under this
Agreement. The Executive shall not engage in any other business activity, except
as may be approved by the Board; provided that nothing in this Agreement shall
be construed as preventing the Executive from:
(a) investing the Executive's assets in any company or other entity in a
manner not prohibited by Section 7(d) and in such form or manner as shall
not require any material activities on the Executive's part in connection
with the operations or affairs of the companies or other entities in which
such investments are made;
(b) engaging in religious, charitable or other community or non-profit
activities that do not impair the Executive's ability to fulfill the
Executive's duties and responsibilities under this Agreement; or
(c) serving as a director on the board of directors of up to two other
companies, with the prior reasonable approval of the Board.
6. Termination and Termination Benefits. Notwithstanding the provisions of
Section 3, the Executive's employment under this Agreement shall terminate under
the following circumstances set forth in this Section 6.
(a) Termination by the Employer for Cause. The Employer may terminate the
Executive's employment for "Cause" if a majority, consisting of at least
two-thirds (2/3) of the non-management members of the Board, determines
that "Cause" exists, following a process, when and where practicable,
where the Executive has been provided prior written notice of an impending
action, to include the "grounds" therefor, and a prior opportunity to
demonstrate why his employment should not be terminated based on these
grounds. For purposes of this Agreement, the following shall constitute
"Cause" for such termination:
(i) conviction of or plea of no contest to a felony or conviction of
any crime of moral turpitude or admitting the commission of same;
(ii) fraudulent conduct in connection with the business or affairs
of the Employer or any affiliate of the Employer, regardless of
whether said conduct is designed to defraud the Employer or others;
(iii) failure to perform to the reasonable satisfaction of the Board
a substantial portion of the Executive's duties and responsibilities
assigned or delegated under this Agreement, which failure continues,
in the reasonable judgment of the Board, after written notice given
to the Executive by the Board;
(iv) willful engagement by Executive in misconduct which is
substantially injurious to the Employer, monetarily or otherwise; or
(v) material breach by the Executive of any of the Executive's
fiduciary duties to the Employer or its shareholders, or his
obligations under this Agreement, the Employer's Conflict of
Interest Policy, or other policies promulgated in writing from time
to time.
For purposes of this paragraph, no act, or failure to act, on the
Executive's part shall be considered "willful" unless done, or omitted to
be done, by the Executive in bad faith without reasonable belief that his
action or omission was in the best interests of the Employer.
(b) Termination by the Executive. The Executive's employment under this
Agreement may be terminated by the Executive by written notice to the
Board at least ninety (90) days prior to such termination.
(c) Termination by the Employer Without Cause. The Executive's employment
under this Agreement may be terminated by the Employer without cause upon
written notice to the Executive by a vote of the Board.
(d) Termination by Executive for Good Reason. The Executive may terminate
his employment at any time for Good Reason. For purposes of this
Agreement, "Good Reason" means the good faith determination by the
Executive that any one or more of the following have occurred:
(i) without the express written consent of the Executive, the
Employer effects any material change(s) in any of the duties,
authority, or responsibilities of the Executive which is (are)
inconsistent in any substantial respect with the Executive's
position, authority, duties, or responsibilities as contemplated by
Section 2 of this Agreement, which action is not remedied by
Employer promptly after receipt of notice thereof given by the
Executive; or
(ii) any failure by the Employer to comply with any of the
provisions of Section 4 of this Agreement, other than an
insubstantial and inadvertent failure remedied by the Employer
promptly after receipt of notice thereof given by the Executive.
(e) Certain Termination Benefits. Unless otherwise specifically provided
in this Agreement or otherwise required by law, all compensation and
benefits payable to the Executive under this Agreement
shall terminate on the date of termination of the Executive's employment
under this Agreement. Notwithstanding the foregoing, in the event of
termination of the Executive's employment with the Employer pursuant to
Section 6(c) or Section 6(d) above and subject to the Executive's
execution and delivery to the Employer of an irrevocable Separation
Agreement containing, among other things, a general release of claims, in
a form satisfactory to the Employer, the Employer shall provide to the
Executive the following termination benefits ("Termination Benefits"):
(i) continuation of the Executive's Salary at the rate then in
effect pursuant to Section 4(a);
(ii) the acceleration of the vesting, if applicable, of the stock
options as set forth in Section 4(c), provided that on the Date of
Termination, the closing price of the Employer's common stock on the
New York Stock Exchange - Composite Index, is no less than double
the exercise price of the option subject to accelerated vesting, and
Executive shall have a period of thirty (30) days following the Date
of Termination to exercise such options then exercisable or any
others which become exercisable during the 30-day post-termination
period pursuant to this Section 6(e)(ii) otherwise the unvested
options shall lapse;
(iii) an amount equal to the bonus (prorated as provided herein)
that would have been paid Executive pursuant to the Employer's
current Annual Incentive Plan or its successor, had the Executive's
employment not been terminated prior to the end of the then
applicable Annual Incentive Plan period, provided, however, that
such amount shall be prorated to reflect the period ending with the
fiscal quarter in which the Date of Termination occurred, and the
said resulting amount is to be paid to Executive no later than such
time as Employer pays its other executives under the Annual
Incentive Plan; and
(iv) continuation of group health plan benefits to the extent
authorized by and consistent with 29 U.S.C. ss. 1161 et seq.
(commonly known as "COBRA"), with the cost of the regular premium
for such benefits shared in the same relative proportion by the
Employer and the Executive as in effect on the Date of Termination.
The Termination Benefits set forth in (i) and (iv) above shall continue
for a period of twelve (12) months after the date of termination; provided
that in the event that the Executive commences any employment or
self-employment during the period during which the Executive is entitled
to receive Termination Benefits (the "Termination Benefits Period"), the
remaining amount of Salary due pursuant to Section 6(e)(i) for the period
from the commencement of such employment or self-employment to the end of
the Termination Benefits Period shall be reduced by the amount of gross
compensation which Executive is entitled to receive from the new employer
or self-employment and the payments
provided under Section 6(e)(iv) shall cease effective as of the date of
commencement of such employment or self-employment. Notwithstanding the
foregoing, nothing in this Section 6(e) shall be construed to affect the
Executive's right to receive COBRA continuation entirely at the
Executive's own cost to the extent that the Executive may continue to be
entitled to COBRA continuation after the Executive's right to cost sharing
under Section 6(e)(iv) ceases. The Executive shall be obligated to give
prompt notice of the date of commencement of any employment or
self-employment during the Termination Benefits Period and shall respond
promptly to any reasonable inquiries concerning any employment or
self-employment in which the Executive engages during the Termination
Benefits Period.
(f) Disability. The Employer may terminate this Agreement, after having
established the Executive's inability to perform the essential functions
of the Executive's then existing position or positions with or without
reasonable accommodation, and if any questions arise as to whether the
Executive is disabled so as to be unable to resume or continue performance
and execution of such essential duties within a period not to exceed four
weeks in duration, the Executive may, and at the request of the Employer
shall, submit to the Employer a certification in reasonable detail by a
physician selected by the Employer to whom the Executive or the
Executive's guardian has no reasonable objection as to whether the
Executive is so disabled or how long such disability is expected to
continue, and such certification shall, for the purposes of this
Agreement, be conclusive of the issue. The Executive hereby agrees and
acknowledges that even relatively short periods of disability may prevent
him from being able to perform the essential functions of his position,
particularly during the start-up phase of his employment and that it would
not be reasonable for the Employer to accommodate such a disability by
reducing the Executive's duties or by allowing a leave of absence that
would extend for more than four weeks. The Executive agrees to cooperate
with any reasonable request of the physician in connection with such
certification. If such question shall arise and the Executive shall fail
to submit to such certification, the Employer's determination of such
issue shall be final and binding on the Executive. The Board may exercise
the Employer's right to terminate the Agreement by giving to the Executive
written notice of termination (the "Disability Notice"), and his
employment with the Employer shall terminate effective on the 30th day
after receipt of such notice (the "Disability Effective Date").
Notwithstanding any such Termination, the Executive shall continue to
receive the Executive's full Salary (less any disability pay or sick pay
benefits to which the Executive may be entitled under the Employer's
policies) and benefits under Section 3 of this Agreement (except to the
extent that the Executive may be ineligible for one or more such benefits
under applicable plan terms) for a period of one year dating from the
Disability Effective Date.
(g) Termination Pursuant to a Change of Control. The Employer shall
provide Executive the standard Change of Control Employment Agreement
("CoC Agreement") as previously approved by the Board. Notwithstanding
anything to the contrary contained herein, in the event of a change of
control, as defined in the CoC Agreement, the terms of the CoC
Agreement shall govern.
(h) Non-exclusivity of Rights. Nothing in this Agreement shall prevent or
limit the Executive's continuing or future participation in any benefit,
bonus, incentive or other plan or program provided by the Employer and for
which the Executive qualify, nor shall anything herein limit or otherwise
affect such rights as the Executive may have under any stock option or
other agreement with the Employer or any of its affiliates. Except as
otherwise provided herein, amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plan or program of
the Employer at or subsequent to the Date of Termination shall be payable
in accordance with such plan or program.
(i) Date of Termination. "Date of Termination" means the date of actual
receipt of the Notice of Termination or any later date specified therein
(but not more than fifteen (15) days after the giving of the Notice of
Termination), as the case may be; provided that (i) if the Executive's
employment is terminated by the Employer for any reason other than Cause
or Disability, the Date of Termination is the date on which the Employer
notifies the Executive of such termination; (ii) if the Executive's
employment is terminated due to Disability, the Date of Termination is the
Disability Effective Date; and (iii) if the Executive's employment is
terminated due to the Executive's death, the Date of Termination shall be
the date of death.
7. Confidential Information, Noncompetition and Cooperation.
(a) Confidential Information. As used in this Agreement, "Confidential
Information" means information belonging to the Employer which is of value
to the Employer in the course of conducting its business and the
disclosure of which could result in a competitive or other disadvantage to
the Employer. Confidential Information includes, without limitation,
financial information, reports, and forecasts; inventions, improvements
and other intellectual property; trade secrets; know-how; designs,
processes or formulae; software; market or sales information or plans;
customer lists; and business plans, prospects and opportunities (such as
possible acquisitions or dispositions of businesses or facilities) which
have been discussed or considered by the management of the Employer.
Confidential Information includes information developed by the Executive
in the course of the Executive's employment by the Employer, as well as
other information to which the Executive may have access in connection
with the Executive's employment. Confidential Information also includes
the confidential information of others with which the Employer has a
business relationship. Notwithstanding the foregoing, Confidential
Information does not include information in the public domain, unless due
to breach of the Executive's duties under Section 7(b).
(b) Confidentiality. The Executive understands and agrees that the
Executive's employment creates a relationship of confidence and trust
between the Executive and the Employer with respect to all Confidential
Information. At all times, both during the Executive's employment with
the Employer and after its termination, the Executive will keep in
confidence and trust all such Confidential Information, and will not use
or disclose any such Confidential Information without the written consent
of the Employer, except as may be necessary in the ordinary course of
performing the Executive's duties to the Employer.
(c) Documents, Records, etc. All documents, records, data, apparatus,
equipment and other physical property, whether or not pertaining to
Confidential Information, which are furnished to the Executive by the
Employer or are produced by the Executive in connection with the
Executive's employment will be and remain the sole property of the
Employer. The Executive will return to the Employer all such materials and
property as and when requested by the Employer. In any event, the
Executive will return all such materials and property immediately upon
termination of the Executive's employment for any reason. The Executive
will not retain with the Executive any such material or property or any
copies thereof after such termination.
(d) Noncompetition and Nonsolicitation. During the Term and for twelve
(12) months thereafter, the Executive (i) will not, directly or
indirectly, whether as owner, partner, shareholder, consultant, agent,
employee, co-venturer or otherwise, engage, participate, assist or invest
in any Competing Business (as hereinafter defined); (ii) will refrain from
directly or indirectly employing, attempting to employ, recruiting or
otherwise soliciting, inducing or influencing any person to leave
employment with the Employer (other than terminations of employment of
subordinate employees undertaken in the course of the Executive's
employment with the Employer); and (iii) will refrain from soliciting or
encouraging any customer or supplier to terminate or otherwise modify
adversely its business relationship with the Employer. The Executive
understands that the restrictions set forth in this Section 7(d) are
intended to protect the Employer's interest in its Confidential
Information and established employee, customer and supplier relationships
and goodwill, and agrees that such restrictions are reasonable and
appropriate for this purpose. For purposes of this Agreement, the term
"Competing Business" shall mean a business conducted anywhere in the
United States which is competitive with any business which the Employer or
any of its affiliates conducts or proposes to conduct at any time during
the employment of the Executive, including, but not limited to, specialty
retailing of infant's, toddler's and children's footwear, the design or
manufacture of footwear of any type on the wholesale level, and any and
all components of the foregoing. Notwithstanding the foregoing, the
Executive may own up to one percent (1%) of the outstanding stock of a
publicly held corporation which constitutes or is affiliated with a
Competing Business.
(e) Third-Party Agreements and Rights. The Executive hereby confirms that
the Executive is not bound by the terms of any agreement with any previous
employer or other party which restricts in any way the Executive's use or
disclosure of information or the Executive's engagement in any business.
The Executive represents to the Employer that the Executive's execution of
this Agreement, the Executive's employment with the Employer and the
performance of the Executive's
proposed duties for the Employer will not violate any obligations the
Executive may have to any such previous employer or other party. In the
Executive's work for the Employer, the Executive will not disclose or make
use of any information in violation of any agreements with or rights of
any such previous employer or other party, and the Executive will not
bring to the premises of the Employer any copies or other tangible
embodiments of non-public information belonging to or obtained from any
such previous employment or other party.
(f) Litigation and Regulatory Cooperation. During and after the
Executive's employment, the Executive shall cooperate fully with the
Employer in the defense or prosecution of any claims or actions now in
existence or which may be brought in the future against or on behalf of
the Employer which relate to events or occurrences that transpired while
the Executive was employed by the Employer. The Executive's full
cooperation in connection with such claims or actions shall include, but
not be limited to, being available to meet with counsel to prepare for
discovery or trial and to act as a witness on behalf of the Employer at
mutually convenient times. During and after the Executive's employment,
the Executive also shall cooperate fully with the Employer in connection
with any investigation or review of any federal, state or local regulatory
authority as any such investigation or review relates to events or
occurrences that transpired while the Executive was employed by the
Employer. The Employer shall reimburse the Executive for any reasonable
out-of-pocket expenses incurred in connection with the Executive's
performance of obligations pursuant to this Section 7(f).
(g) Nondisparagement. Executive agrees not to take any action or make any
statement, written or oral, to any current or former employee of Employer
or to any other person which disparages or could reasonably be interpreted
to be in any way harmful to the interest of Employer, its officers,
directors, management, business practices, or which disrupts or impairs
its normal operations, including actions or statements that would (i) harm
the reputation of the Employer with its customers, suppliers, or the
public; or (ii) interfere with existing contractual or employment
relationships with customers, suppliers or Employer's employees.
(h) Standstill Agreement . For a period of twelve (12) months from the
date of termination of Executive's employment with Employer, Executive
agrees not to, directly or indirectly: (a) effect or seek, offer or
propose (whether publicly or otherwise) to effect, or cause to participate
in or in any way assist any other person to effect or seek, offer or
propose (whether publicly or otherwise) to effect, or cause or participate
in, (i) any acquisition of any securities (or beneficial ownership
thereof) or assets of the Employer; (ii) any tender or exchange offer,
merger or other business combination involving the Employer; (iii) any
recapitalization, restructuring, liquidation, dissolution or other
extraordinary transaction with respect to the Employer; or (iv) any
"solicitation" of "proxies" (as such terms are used in the proxy rules of
the Securities and Exchange Commission) to vote any voting securities of
the Employer; (b) form, join or in any way participate in a "group" (as
defined in the 0000 Xxx) or otherwise act,
alone or in concert with others, to seek to control or influence the management,
Board of Directors or policies of the Employer; (c) take any action which
might force the Employer to make a public announcement regarding any of
the types of matters set forth in subsection (a) above; or (d) enter into
any discussions or arrangements with any third party with respect to any
of the foregoing. The restrictions contained in this paragraph shall not
be applicable to purchases solely for investment purposes aggregating less
then 5% of the Employer's outstanding voting securities.
(i) Injunction. The parties agree that it would be difficult to measure
any damages caused which might result from any breach by the Executive or
Employer of the promises set forth in this Section 7, and that in any
event money damages would be an inadequate remedy for any such breach.
Accordingly, subject to Section 8 of this Agreement, the parties agree
that if one of the parties breaches, or proposes to breach, any portion of
this Agreement, the other party shall be entitled, in addition to all
other remedies that it may have, to an injunction or other appropriate
equitable relief to restrain any such breach without showing or proving
any actual damage to such party.
8. Arbitration of Disputes. Any controversy or claim arising out of or
relating to this Agreement or the breach thereof or otherwise arising out of the
Executive's hiring, employment or the termination of that employment (including,
without limitation, any claims of unlawful employment discrimination whether
based on age or otherwise) shall, to the fullest extent permitted by law, be
settled by arbitration in any forum and form agreed upon by the parties or, in
the absence of such an agreement, under the auspices of the American Arbitration
Association ("AAA") in Boston, Massachusetts in accordance with the Employment
Dispute Resolution Rules of the AAA, including, but not limited to, the rules
and procedures applicable to the selection of arbitrators. In the event that any
person or entity other than the Executive or the Employer may be a party with
regard to any such controversy or claim, such controversy or claim shall be
submitted to arbitration subject to such other person or entity's agreement.
Judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. This Section 8 shall be specifically enforceable.
Notwithstanding the foregoing, this Section 8 shall not preclude either party
from pursuing a court action for the sole purpose of obtaining a temporary
restraining order or a preliminary injunction in circumstances in which such
relief is appropriate; provided that any other relief shall be pursued through
an arbitration proceeding pursuant to this Section 8.
9. Consent to Jurisdiction. To the extent that any court action is
permitted consistent with or to enforce Section 8 of this Agreement, the parties
hereby consent to the jurisdiction of the Superior Court of the Commonwealth of
Massachusetts and the United States District Court for the District of
Massachusetts. Accordingly, with respect to any such court action, the Executive
(a) submits to the personal jurisdiction of such courts; (b) consents to service
of process; and (c) waives any other requirement (whether imposed by statute,
rule of court, or otherwise) with respect to personal jurisdiction or service of
process.
10. Integration. This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof and supersedes all prior
agreements between the parties with respect to any related subject matter.
11. Assignment; Successors and Assigns, etc. Neither the Employer nor the
Executive may make any assignment of this Agreement or any interest herein, by
operation of law or otherwise, without the prior written consent of the other
party; provided that the Employer may assign its rights under this Agreement
without the consent of the Executive in the event that the Employer shall effect
a reorganization, consolidate with or merge into any other corporation,
partnership, organization or other entity, or transfer all or substantially all
of its properties or assets to any other corporation, partnership, organization
or other entity. This Agreement shall inure to the benefit of and be binding
upon the Employer and the Executive, their respective successors, executors,
administrators, heirs and permitted assigns.
12. Enforceability. If any portion or provision of this Agreement
(including, without limitation, any portion or provision of any section of this
Agreement) shall to any extent be declared illegal or unenforceable by a court
of competent jurisdiction, such portion or provision may be reformed by a court
of competent jurisdiction to the extent necessary to render it legal or
enforceable, and in any event shall be enforced to the extent permissible under
the law, and the remainder of this Agreement, or the application of such portion
or provision in circumstances other than those as to which it is so declared
illegal or unenforceable, shall not be affected thereby, and each portion and
provision of this Agreement shall be valid and enforceable to the fullest extent
permitted by law.
13. Waiver. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of any party to
require the performance of any term or obligation of this Agreement, or the
waiver by any party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
14. Notices. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and delivered
in person or sent by a nationally recognized overnight courier service or by
registered or certified mail, postage prepaid, return receipt requested, to the
Executive at the last address the Executive has filed in writing with the
Employer or, in the case of the Employer, at its main offices, attention of the
General Counsel, and shall be effective on the date of delivery in person or by
courier or three (3) days after the date mailed.
15. Amendment. This Agreement may be amended or modified only by a
written instrument signed by the Executive and by a duly authorized
representative of the Employer.
16. Governing Law. This is a Massachusetts contract and shall be construed
under and be governed in all respects by the laws of the Commonwealth of
Massachusetts, without giving effect to the conflict of laws principles of such
Commonwealth. With respect to any disputes concerning
federal law, such disputes shall be determined in accordance with the law as it
would be interpreted and applied by the United States Court of Appeals for the
First Circuit.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be taken to be
an original; but such counterparts shall together constitute one and the same
document.
18. Public Announcements. Without the prior written consent of Employer,
Executive shall make no public announcement, including, without limitation,
press releases or media interviews, with respect to the terms of this Agreement
or, if applicable, the termination of Executive's employment with Employer.
IN WITNESS WHEREOF, this Agreement has been executed as a sealed
instrument by the Employer, by its duly authorized officer, and by the
Executive, as of the Effective Date.
EXECUTIVE THE STRIDE RITE CORPORATION
/s/ Xxxxx X. Xxxxxxxx /s/ Xxxxx X. Xxxx
____________________________ By:_____________________________
Xxxxx X. Xxxxxxxx Xxxxx X. Xxxx
an individual Chairman, Compensation Committee
of the Board of Directors
