1
Exhibit 10.2
CHANGE OF CONTROL SEVERANCE AGREEMENT
AGREEMENT by and between NS Group, Inc., a Kentucky
Corporation (the "Company), and Xxxxxxx X. Xxxxxx, Xx. (the
"Employee"), dated as of the 8th day of May, 2000.
The Company wishes to assure that it will have the
continued dedication of the Employee notwithstanding the
possibility, threat or occurrence of a Change of Control (as
defined below) of the Company. The Company believes it is
imperative to diminish the inevitable distraction of the
Employee by virtue of the personal uncertainties and risks
created by a pending or threatened Change of Control, to
encourage the Employee's full attention and dedication to
the Company upon a Change of Control, and to provide the
Employee with compensation arrangements upon a Change of
Control which provide the Employee with individual financial
security and which are competitive with those of other
corporations and, in order to accomplish these objectives,
the Company desires to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Certain Definitions
(a) "Affiliate" of any specified Person means (i)
any other Person which, directly or
indirectly, is in control of, is controlled
by or is under common control with such
specified Person or (ii) any other person who
is a director or officer (A) of such
specified Person, (B) of any subsidiary of
such specified Person or (C) of any Person
described in clause (i) above or (iii) any
person in which such Person has, directly or
indirectly, a 5 percent or greater voting or
economic interest or the power to control.
For the purposes of this definition,
"control" of a Person means the power, direct
or indirect, to direct or cause the direction
of the management or policies of such Person
whether through the ownership of voting
securities, or by contract or otherwise; and
the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
(b) "Agreement Period" shall mean the period as
defined in Section 2 of this Agreement.
(c) "Board of Directors"' shall mean the Board of
Directors of the Company as constituted from
time to time.
(d) "Change of Control" shall mean:
(i) the direct or indirect sale, lease,
exchange or other transfer of all or
substantially all of the assets of the
Company to any Person or entity or group
of Persons or entities acting in concert
as a partnership or other group (a
"Group of Persons") other than a Person
described in clause (i) of the
definition of Affiliate;
(ii) the consummation of any consolidation or
merger of the Company with or into
another corporation with the effect that
the stockholders of the Company
immediately prior to the date of the
consolidation or merger hold less than
51% of the combined Voting Power of the
outstanding voting securities of the
surviving entity of such merger or the
corporation resulting from such
consolidation ordinarily having the
right to vote in the election of
directors (apart from rights accruing
under special circumstances) immediately
after such merger or consolidation;
(iii) the stockholders of the Company
shall approve any plan or proposal for
the liquidation or dissolution of the
Company;
(iv) a Person or Group of Persons acting in
concert as a partnership, limited
partnership, syndicate or other group
shall, as a result of a tender or
exchange offer, open market purchases,
privately negotiated purchases or
otherwise, have become the direct or
indirect beneficial owner (within the
meaning of Rule 13d-3) under the
Securities Exchange Act of 1934, as
amended (the "Exchange Act")
("Beneficial Owner") of securities of
the Company representing 30% or more of
the combined Voting Power of the then
outstanding securities of the Company
ordinarily (and apart from rights
accruing under special circumstances)
having the right to vote in the election
of directors;
(v) a Person or Group of Persons, together
with any Affiliates thereof, shall
succeed in having a sufficient number of
its nominees elected to the Board of
Directors of the Company such that such
nominees, when added to any existing
director remaining on the Board of
Directors of the Company after such
election who is an Affiliate of such
Person or Group of Persons, will
constitute a majority of the Board of
Directors of the Company; provided that
the Person or Group of Persons referred
to in clauses (i), (iv) and (v) shall
not mean Xxxxxxxx Xxxxxxx or any Group
of Persons with respect to which
Xxxxxxxx Xxxxxxx is the Beneficial Owner
of the majority of the voting equity
interests.
(e) "Cause" for termination of the Employee's
employment shall be defined as (i) commission
by Employee of any felony criminal act, a
crime involving moral turpitude, or a crime
of fraud or dishonesty; (ii) acts by Employee
constituting gross negligence or willful
misconduct to the detriment of the Company;
(iii) conduct which is detrimental to the
reputation, goodwill or business operation of
the Company; (iv) Employee's misfeasance or
nonfeasance in the performance of his duties;
(v) Employee's failure or refusal to comply
with the lawful directions of the Company's
Board of Directors or with the policies,
standards and regulations of the Company; or
(vi) the Employee's breach of Sections 4, 5,
6, 7, or 9 of the Employment Agreement dated
May ___, 2000 between Employee and Company,
or any similar provisions contained in any
subsequent or successor agreement between
Employee and Company.
(f) "Company" as used herein includes NS Group,
Inc. and any of its subsidiaries and
divisions and, as provided by Section 12(b)
hereof, any successor.
(g) "Date of Termination" shall be the date on
which the Notice of Termination is actually
received by the addressee, or alternatively,
if the Notice of Termination specifies a date
other than the date of receipt of such notice
then that specified date shall be the Date of
Termination.
(h) "Effective Date" shall mean the first date on
which a Change of Control occurs; provided,
however, that if the Employee's employment is
terminated by the Company prior to the date
on which a Change of Control occurs, and the
Employee can reasonably demonstrate that such
termination by the Company was in
contemplation of a Change of Control, then
for all purposes of this Agreement the
"Effective Date" shall mean the date
immediately prior to the date of such
termination.
(i) "Good Reason" means: (i) any material adverse
change in compensation to the Employee; (ii)
substantial decrease in the nature or scope
of the Employee's duties, responsibilities,
powers, authority, title, position or status;
(iii) unreasonable travel requirements; (iv)
any relocation required on the part of
Employee, without his consent, outside of a
50-mile radius from his primary residence on
the Effective Date; or (v) material breach by
the Company of an employment, compensation or
similar agreement between the Employee and
the Company.
(j) "Person" means any individual, corporation,
partnership, joint venture, association,
joint-stock company, trust, unincorporated
organization, government or any agency or
political subdivision thereof or any other
entity within the meaning of Section 13(d)(3)
or 14(d) (2) of the Exchange Act.
(k) "Voting Power" shall mean the voting power of all
securities of a Person then outstanding generally entitled
to vote for the election of directors of the Person (or,
where appropriate, for the election of persons performing
similar functions).
2. Agreement Period
The Company hereby agrees to provide the Employee with
the protections and benefits enumerated in Section 3 of this
Agreement for the period commencing on the Effective Date
and ending on the third anniversary of the Effective Date.
3. Obligations of the Company Upon Termination
(a) Notice of Termination. Any termination after
the Effective Date by the Company or by the
Employee shall be communicated by Notice of
Termination, within ten (10) business days
after the later of the date of employment
termination or the date of Change of Control,
to the other party hereto given in accordance
with Section 13(c) of this Agreement. For
purposes of this Agreement, a "Notice of
Termination" means a written notice which (i)
sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for
termination of the Employee's employment, and
(ii) if the termination date is other than the
date of receipt of such notice, specifies the
termination date.
(b) Termination by the Company for Cause; Termination
by the Employee for Other Than Good Reason.
If during the Agreement Period, the Employee's
employment is terminated by the Company
for Cause, by the Employee other than for Good
Reason, or by reason of death or disability, this
Agreement shall terminate without further
obligations to the Employee.
(c) Termination by the Company other than for Cause:
Termination by the Employee for Good Reason.
If, during the Agreement Period, the Company
shall terminate the Employee's employment
other than for Cause, or the employment of the
Employee shall be terminated by the Employee for
Good Reason, the Employee shall be entitled to
the following payments and benefits:
(i) The Company shall pay to the Employee in a
lump sum in cash within thirty (30) days
after the Date of Termination the aggregate
of three (3) times the amount of the
Employee's base salary in effect on the Date
of Termination three (3) times the average
amount of the Employee's annual bonus
payments made in the five (5) years prior to
the Date of Termination, plus a payment equal
to a pro rata portion (based on the whole
number of months worked in the fiscal year by
the Employee prior to the Date of Termination
and, if applicable performance targets have
not been met on the Date of Termination,
based on a reasonable estimate of the amount
of bonus to be earned for the full year) of
the Employee's annual bonus for the year of
termination.
(ii) For three (3) years after the Date of
Termination, the Company shall continue
providing medical, dental, life and
disability insurance benefits to the Employee
in an amount equivalent to that which would
have been provided to the Employee had the
Employee's employment not been terminated.
The Employee shall not be obligated to pay
higher fees for such benefits than he or she
was paying, at the Date of Termination. In
the event it is not possible to provide this
continued coverage, the Company shall provide
the Employee with a cash payment in the
amount necessary for the Employee to purchase
equivalent insurance for two (2) years after
the Date of Termination.
(iii) Within ten (10) business days after the
later of the date of employment termination
or the date of Change of Control, the Company
shall provide, at no cost to the Employee,
individual outside assistance for the
Employee in finding other employment. Such
obligation may be fulfilled by the Company
through the retention of an outplacement
service for use by the Employee.
4. Non-Reduction of Termination Benefits
In the event the Company's independent auditors (the
"Accounting Firm") shall determine that any payment or
distribution by the Company to or for the benefit of the Employee
made pursuant to Section 3 of this Agreement would be
nondeductible by the Company for Federal income tax purposes
because of Section 280G of the Internal Revenue Code of 1986
("Code"), as amended, then the Company shall nonetheless pay to
Employee all payments and distributions under Section 3. If the
Accounting Firm makes such a determination, the Company shall
promptly provide the Employee with notice to that effect with a
copy of the detailed calculation thereof. The Employee shall pay
all taxes on all such payments and distributions under Section 3
that are imposed on Employee, including the excise tax under
Section 280G of the Code.
5. Funding of Grantor Trust
The Board of Directors of the Company shall have the option
to establish a so-called "Rabbi Trust" upon the occurrence, or in
anticipation, of a Change of Control to secure for the Employee
the benefits provided pursuant to Section 3 of this Agreement.
If the Board of Directors elects to do so, the Company shall,
immediately upon the occurrence of a Change of Control, make an
irrevocable contribution to the Rabbi Trust in an amount that is
sufficient to pay the Employee the benefits to which such
Employee would be entitled pursuant to the terms of this
Agreement as of the date on which the Change of Control occurred.
6. Non-Exclusivity of Rights
Nothing in this Agreement shall prevent or limit the
Employee's continuing or future participation in any benefit,
bonus, incentive or other plan or program provided by the Company
or any of its affiliated companies and for which the Employee may
qualify, nor shall anything herein limit or otherwise affect such
rights that the Employee may have under any stock option or other
agreements with the Company. Amounts which are vested benefits
or which the Employee is otherwise entitled to receive under any
plan or program of the Company at or subsequent to the Date of
Termination shall be payable in accordance with such plan or
program.
7. No Setoff; Cooperation
The Company's obligation to make the payments provided for
in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the
Company may have against the Employee or others.
8. Confidential Information
Employee specifically agrees that he will not at any time,
whether during his employment or for a period of two (2) years
after such employment ends for any reason, disclose or
communicate to any third party or use for any purpose (other than
during his employment by the Company for proper business
purposes) any secret, proprietary or confidential information, or
trade secret, relating to the business of Company, or any
subsidiary or affiliate of Company, including business methods
and techniques, research data, marketing and sales information,
customer lists, know-how, and any other information, process or
technique or information, customer lists, know-how, and any
other information, process or technique or information concerning
the business of Company, or any subsidiary or affiliate of
Company, their manner and method of operation, their plans or
other data not disclosed to the general public or known within
the industry, regardless of whether such information or trade
secret was acquired prior to or after execution of this
Agreement.
9. Non-Solicitation
Employee shall not, either directly or indirectly, by or for
himself, or as agent of another, or through others as his agent,
in any way seek to induce, bring about, promote, facilitate or
encourage the discontinuance of or in any way solicit for himself
or others, those persons or entities who are employees of the
Company, or any subsidiary or affiliate of the Company. Remedies
for any breach of this Section 9 will be those set forth in
Sections 7 and 8 of the Employment Agreement, dated May 8, 2000,
between Employee and the Company.
10. Exclusive Remedy
The Employee's rights to severance benefits pursuant to
Section 3 hereof shall apply only in the events specified in this
Agreement and shall be the Employee's sole and exclusive remedy
for any termination of the Employee's employment by the Company
other than for Cause or by the Employee for Good Reason. The
payments, severance benefits and severance protections provided
to the Employee pursuant to this Agreement are provided in lieu
of any severance payments, severance benefits and severance
protections provided in any employment agreement or any other
plan or policy of the Company, except (i) as may be expressly
provided in writing under the terms of any plan or policy of the
Company; or (ii) as provided in the Non-Qualified Stock Option
Agreement between the Company and the Employee dated May 8, 2000
and the Salary Continuation Agreement between the Company and the
Employee dated May 8, 2000); or (iii) as may be provided in a
written agreement between the Company and the Employee entered
into on or after May 8, 2000. In no event shall the Employee be
obligated to seek other employment or take any other action by
way of mitigation of the amounts payable to the Employee under
any of the provisions of this Agreement.
11. Statement of Intention
It is the intention of the parties hereto that, prior to the
Effective Date, this Agreement shall not create any rights or
obligations in the Employee or the company, or require any
payments by the Company to the Employee.
12. Successors
(a) The Employee. This Agreement is personal to the
Employee and without the prior written consent of
the Company shall not be assignable by the Employee
otherwise than by will or the laws of descent and
distribution. This Agreement shall inure to the
benefit of and be enforceable by the Employee's
legal representatives.
(b) The Company. This Agreement shall inure to the
benefit of and be binding upon the Company and its
successors. The Company will require any successor
(whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially
all of the business and/or assets of the Company to
expressly assume and agree to perform this Agreement
in the same manner and to the same extent that the
Company would be required to perform it if no such
succession had taken place.
As used in this Agreement, "Company" shall include any
successor to its business and/or assets as aforesaid which
assumes and agrees to perform this Agreement by operation of law,
or otherwise.
13. Miscellaneous
(a) Interpretation. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of
Kentucky, without reference to principles of conflict of laws.
The captions of this Agreement are not part of the provisions
hereof and shall have no force or effect.
(b) Legal Fees. In the event of any litigation involving this
Agreement, and if the Employee is successful in such litigation,
the Company will reimburse the Employee for all legal fees and
expenses paid by the Employee in prosecuting or defending such
litigation.
(c) Notices. All notices and other communications hereunder
shall be in writing and shall be given by hand delivery to the
other party or by registered or certified mail, return receipt
requested, postage prepaid, addressed to the Employee at the
Employee's address on the payroll records of the Company and to
the Company as follows:
NS Group, Inc.
X.X. Xxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: President
And to such other address as either party shall have furnished to
the other in writing in accordance herewith. Notice and
communications shall be effective when actually received by the
addressee.
(d) Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement.
(e) Withholding Taxes. The Company may withhold from any
amounts payable under this Agreement such Federal, state or local
taxes as shall be required to be withheld pursuant to any
applicable law or regulation.
(f) No Waiver. The failure of the Employee or the Company to
insist upon strict compliance with any provision hereof shall not
be deemed to be a waiver of such provision or any other provision
thereof.
(g) Entire Agreement. This Agreement contains the entire
understanding of the Company and the Employee with respect to the
subject matter hereof. This Agreement may not be amended or
modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal
representatives.
(h) Dispute /Resolution Procedures. If any question shall arise
in regard to the interpretation of any provision of this
Agreement or as to the rights and obligations of either of the
parties hereunder, the Employee and a designated representative
of the Company shall meet to negotiate and attempt to resolve
such question in good faith. The Employee and such
representative may, if they so desire, consult outside experts
for assistance in arriving at a resolution. In the event that a
resolution is not achieved within fifteen (15) days after their
first meeting, then either party may submit the question for
final resolution by binding arbitration in accordance with the
rules and procedures of the American Arbitration Association
applicable to commercial transactions, and any judgment thereon
may be entered in any court having jurisdiction thereof. The
arbitration shall be held in Covington, Kentucky. In the event
of any arbitration, the Employee shall select one arbitrator, the
Company shall select one arbitrator and the two arbitrators so
selected shall select a third arbitrator, any two of which
arbitrators together shall make the necessary determinations.
All out-of-pocket costs and expenses of the parties in connection
with such arbitration, including, without limitation, the fees of
the arbitrators and any administration fees and reasonable
attorney's fees and expenses, shall be borne by the parties in
such proportions as the arbitrators shall decide that such
expenses should, in equity, be apportioned.
IN WITNESS WHEREOF, the Employee and the Company have
executed this Agreement as of the day and year first above
written.
I HAVE READ THIS CHANGE OF CONTROL SEVERANCE AGREEMENT AND,
UNDERSTANDING ALL ITS TERMS, INCLUDING THAT THIS AGREEMENT
CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY
THE PARTIES, I SIGN IT AS MY FREE ACT AND DEED.
Employee:
/s/Xxxxxxx X. Xxxxxx, Xx.
Xxxxxxx X. Xxxxxx, Xx.
Company:
NS GROUP, INC.
By:/s/Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx
President and Chief Executive Officer
