AGREEMENT dated February 24 1998, between NINE WEST GROUP INC., a Delaware
corporation with principal offices at 9 West Plaza, 0000 Xxxxxxxxxxx Xxxxxx,
Xxxxx Xxxxxx, Xxx Xxxx 00000 (the "Company") and XXXX X. XXXX, an individual
residing at 000 Xxxxxx Xxxxx Xxxx, Xxx Xxxxxx, XX 00000 ("Xxxx").
W I T N E S S E T H:
WHEREAS, the Company and Xxxx entered into an agreement dated April 6,
1995, relating to the employment of Xxxx as President and Chief Operating
Officer of the Company (the "Employment Agreement"); and
WHEREAS, Xxxx has voluntarily terminated his employment and the
Employment Agreement; and
WHEREAS, the parties hereto have decided to resolve all issues under
the Employment Agreement (including, without limitation, compensation and
benefits) and all other rights and obligations relating to the employment of
Xxxx by the Company and the termination of such employment; and
WHEREAS, the parties hereto have entered into an agreement dated
January 27, 1998 (the "Letter of Intent") which sets forth in principle the
terms and conditions upon which Xxxx'x employment with the Company shall
terminate, with the intention that such terms and conditions shall be embodied
in this definitive agreement.
NOW THEREFORE, for good and valuable consideration the receipt of
which is hereby acknowledged, the parties hereto agree as follows:
1. Termination of Employment and the Employment Agreement.
The parties hereby agree and acknowledge that Xxxx resigned as
President, Chief Operating Officer and an employee of the Company, and from all
other capacities in which he served Nine West and its subsidiaries and
affiliates, effective January 27, 1998 (the "Resignation Date"). The Employment
Agreement is hereby terminated effective as of the Resignation Date and neither
the Company nor Xxxx shall have, as of the Resignation Date, any further rights
or obligations to each other (i) under the Employment Agreement, (ii) with
respect to the employment of Xxxx by the Company or (iii) with respect to the
termination of such employment, except as specifically set forth in this
Agreement.
2. Termination Payment; Benefits.
(A) Termination Payment. The Company shall pay Xxxx the sum of
Two Million Six Hundred Thousand dollars ($2,600,000), less any federal, state
and local income and payroll withholding taxes which the Company deems to be
required under applicable law (the "Termination Payment") in full settlement,
discharge and satisfaction of any and all amounts or benefits owed or which may
be owed by the Company or by any Company benefit program, plan or practice to
Xxxx, and any and all rights which Xxxx has or may have under the Employment
Agreement or otherwise as a result of his employment with the Company or the
termination of such employment including, without limitation, bonuses payable
under the Employment Agreement and/or under the Nine West Group Inc. First
Amended and Restated Incentive Bonus Plan (the "Incentive Bonus Plan"), use of
any automobile provided by the Company or any automobile allowance given by the
Company, accrued vacation pay and any and all other compensation or benefits
payable or provided to Xxxx by the Company or its subsidiaries or affiliates,
except as expressly provided in Sections 2(b), 2(c), 2(d), 2(e) or 2(g) hereof.
The Termination Payment shall be paid to Xxxx on March 2, 1998. The Termination
Payment shall not be taken into account in determining the benefits payable or
provided to Xxxx under any compensation or benefit program, plan or practice of
the Company. As of the Resignation Date and except as expressly provided in
Sections 2(b), 2(c), 2(d), 2(e) or 2(g) hereof, Xxxx shall cease to be eligible
for or accrue benefits under any and all programs, plans and practices of the
Company which pay or provide current or deferred compensation, bonuses,
incentives, commissions, medical or dental benefits, life or other insurance
benefits, retirement benefits, fringe benefits, severance pay or other
termination benefits, or perquisites of any kind or nature (collectively
"Compensation and Benefit Programs").
(b) COBRA. Xxxx shall be eligible as of the Resignation Date
for health and dental insurance benefits in accordance with the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA"); provided,
however, that the Company shall continue to pay the full cost of the applicable
premiums for such COBRA coverage until the earlier of (i) December 31, 1998, or
(ii) the date upon which the Company would be permitted under COBRA to terminate
Xxxx'x COBRA coverage including, without limitation, such earlier time as Xxxx
commences new employment or business activity and becomes eligible for health
and dental benefits with such new employer or business; and provided, further,
that Xxxx files a valid COBRA election with respect to such COBRA coverage.
Xxxx shall promptly notify the Company in writing when he becomes eligible to
participate in another health or dental plan, and shall provide the Company with
information which it reasonably requests to determine if and when the Company is
permitted to terminate Xxxx'x COBRA coverage. After December 31, 1998 (assuming
Xxxx'x COBRA coverage has not terminated), Xxxx may elect to continue health and
dental coverage at his own expense in accordance with the provisions of COBRA
and the applicable Company plan for the balance of the applicable COBRA
continuation period.
(c) Qualified and Nonqualified Retirement Plans. Xxxx shall be
entitled to benefits under the Nine West Group Inc. 401(k) Savings Plan, the
Pension Plan for Employees of Nine West Group Inc., the Nine West Group Inc.
Executive Deferred Compensation Plan, the Nine West Group Inc. Supplemental
Savings Plan and the United States Shoe Corporation Supplemental Executive
Salaried Employee's Benefit Plan, in accordance with the respective terms and
conditions of each such plan but subject to the cessation of his active
participation therein as of the Resignation Date.
(d) Stock Options and Restricted Stock. In accordance with the
determination of the Compensation Committee of the Board of Directors of the
Company (the "Committee"), (i) Xxxx'x rights with respect to options to purchase
40,000 shares of Company common stock under the Nine West Group Inc. First
Amended and Restated 1994 Long-Term Performance Plan (the "Stock Option Plan")
granted pursuant to a Nonqualified Stock Option Agreement between Xxxx and the
Company dated as of May 23, 1995 (the "Stock Option Agreement") shall be fully
vested, and (ii) the exercise period for such options to purchase 40,000 shares
shall expire on February 29, 2000. In addition, the parties acknowledge and
agree that the "Period of Restriction" (as defined in that certain Restricted
Stock Agreement between Xxxx and the Company dated May 23, 1995 (the "Restricted
Stock Agreement")) with respect to 10,000 shares subject to the Restricted Stock
Agreement terminated with the release of the Company's earnings for fiscal year
1996 on March 18, 1997. Except as provided above in this Section 2(d) with
respect to the options to purchase 40,000 shares and the 10,000 shares for which
the "Period of Restriction" terminated on March 18, 1997, Xxxx shall have no
further rights with respect to any options or restricted shares granted under
the Stock Option Plan, the Stock Option Agreement or the Restricted Stock
Agreement. In accordance with the determination of the Committee, the foregoing
provisions of this Section 2(d) shall constitute an amendment to the Stock
Option Agreement and the Restricted Stock Agreement, as applicable.
(e) Outplacement Services. The Company shall pay for
professional career outplacement services for Xxxx up to a maximum of Twenty
Thousand dollars ($20,000).
(f) Expenses. Xxxx acknowledges that he has not incurred since
the Resignation Date, and agrees that he shall not incur after the date hereof,
any expenses, obligations or liabilities on behalf of the Company. Reimbursement
for all expenses, obligations and liabilities incurred prior to the Resignation
Date (including, without limitation, expenses reflected on Xxxx'x expense
reports submitted for periods prior to the Resignation Date) shall be paid in
accordance with the Company's reimbursement policies as soon as practicable
following the Resignation Date and in no event later than March 2, 1998.
(g) Compensation Between Resignation Date and March 1, 1998.
The Company shall pay Xxxx the sum of Thirty-Three Thousand Three Hundred and
Thirty-Three Dollars ($33,333) on February 13, 1998 and on February 27, 1998, in
full satisfaction of any and all salary, vacation pay and other compensation
which Xxxx may have earned from the Resignation Date to March 1, 1998. The
payments under this Section 2(g) shall be subject to deductions for any federal,
state and local income and payroll taxes which the Company deems to be required
under applicable law. The payments made pursuant to this Section 2(g) shall not
be taken into account in determining the benefits payable or provided to Xxxx
under the Compensation and Benefit Programs.
3. Release of Claims.
(a) Xxxx Claims. In consideration for the Termination Payment,
the other compensation and benefits hereunder and the settlement of all
disputes, if any, between the Company and Xxxx regarding the terms and
conditions of Xxxx'x employment with the Company, the termination of such
employment and the amounts payable and benefits provided to Xxxx by the Company,
Xxxx on behalf of himself and his heirs, representatives and assigns, hereby
completely releases, waives and forever discharges the Company Released Parties
(as hereinafter defined), from any and all claims, complaints, causes of action,
rights, obligations, liabilities, grievances or demands for damages, expenses,
losses or compensation of any and every kind, nature and character, known or
unknown, howsoever arising which Xxxx has or may have against the Company
Released Parties from the beginning of the world to the date of this Agreement,
whether or not relating to Compensation and Benefit Programs and whether arising
under or in any way connected with the Employment Agreement or the termination
of such agreement, or arising under or in any way connected with Xxxx'x
employment or termination of employment with the Company or otherwise
(collectively the "Xxxx Claims"). Xxxx acknowledges and agrees that the Xxxx
Claims released hereunder shall include, without limitation, claims arising
under or relating to the laws of the United States or any state thereof, any and
all claims relating to or based upon breach of contract, breach of promise,
promissory or equitable estoppel, wrongful discharge, unjust dismissal, whistle-
blowing, breach of fiduciary duty, breach of the implied covenant of good faith
and fair dealing, defamation, wrongful denial of benefits, negligence,
intentional tort or discrimination under local, state or federal law, including,
without limitation, the Employee Retirement Income Security Act of 1974, Title
VII of the Civil Rights Act of 1964, as amended, and the Americans with
Disabilities Act, regardless of whether based on national origin, age, race,
membership in any protected group or classification, or otherwise. The Xxxx
Claims do not include, and Xxxx does not waive, any rights to enforce Xxxx'x
rights and the Company's obligations under this Agreement. The term "Company
Released Parties" means each and all of the Company, its subsidiaries and
affiliates, and their respective officers, directors, shareholders, employees,
successors and assigns.
(b) No Actions. Xxxx shall not bring any administrative or
legal action against any of the Company Released Parties for any rights waived
or Xxxx Claims released under this Agreement, and Xxxx represents and warrants
that no such action has been brought to date. Xxxx further agrees that should
he bring any type of administrative or legal action with respect to Xxxx Claims
released under this Agreement or if the Company is the prevailing party in an
action to enforce its rights under this Agreement, Xxxx shall bear all legal
fees and costs, including those of the Company Released Parties, and he waives
any right to a remedy, financial or otherwise, in connection with any such
action. Xxxx hereby warrants, represents and agrees that he has not and shall
not assign, transfer or convey in any manner any Xxxx Claims, and that he has
not attempted or purported to do so. Xxxx further agrees that he shall not
solicit any current, former or future employee or shareholder of the Company or
any other person or entity to bring any administrative or legal action against
any of the Company Released Parties, and he shall not voluntarily participate in
any such action or proceeding brought by any such current, former or future
employee or shareholder of the Company or any other person or entity.
(c) Company Claims. In consideration of this Agreement and the
settlement of all disputes, if any, between the Company and Xxxx regarding the
terms and conditions of Xxxx'x employment with the Company, the termination of
such employment and the amounts payable to Xxxx by the Company, the Company, on
behalf of itself, the Company Released Parties and their heirs, representatives,
successors and assigns, hereby completely releases, waives and forever
discharges Xxxx and his heirs and representatives from any and all claims,
complaints, causes of action, rights, obligations, liabilities, grievances or
demands for damages, expenses, losses or compensation of any and every kind,
nature and character, known or unknown, howsoever arising which the Company
Released Parties have or may have against Xxxx arising under or in any way
connected with the Employment Agreement or the termination of such agreement or
arising under or with respect to Xxxx'x employment with or termination of
employment from the Company or otherwise (collectively, the "Company Claims").
The Company Claims do not include, and the Company does not waive, any rights to
enforce the Company's rights and Xxxx'x obligations under this Agreement.
4. Restrictive Covenants.
(a) Confidential Information. Xxxx expressly covenants and
agrees that he shall not at any time hereafter directly or indirectly use,
convey or permit the use of any trade secrets or other proprietary and/or
confidential information of, or relating to, the Company or any of its
affiliates or subsidiaries, in connection with any activity or business. Xxxx
also agrees that he shall not at any time hereafter divulge such information to
any person, firm or corporation whatsoever. The obligations of Xxxx contained
in this Section 4(a) shall not apply to any information which was known to the
public at the time of its receipt by Xxxx or shall become known generally to the
public in any manner other than by an improper act of Xxxx.
(b) Non-Competition. Xxxx agrees that from the date hereof
until February 29, 2000, he shall not, without the prior written consent of the
Company, directly or indirectly, as sole proprietor, shareholder, partner,
employee, officer, director, trustee, advisor, consultant or independent
contractor, or in any other manner or capacity whatsoever, engage or participate
in manufacturing, importing, exporting, distributing or retailing of women's
footwear in any state of the United States or Canada. Xxxx understands that the
provisions of this Section 4(b) may limit his ability to earn a livelihood in a
business similar to the business of the Company in the specified geographic
locations but nevertheless agrees and hereby acknowledges that (i) such
provisions do not impose a greater restraint than is necessary to protect the
goodwill and other business interests of the Company; (ii) such provisions
contain reasonable limitations as to time, geographical area and the scope of
activity to be restrained; and (iii) the consideration provided under this
Agreement including, without limitation, the Termination Payment, is sufficient
to compensate Xxxx for the restrictions set forth in this Section 4(b). In
consideration of the foregoing and in light of his education, skills and
abilities, Xxxx agrees that he shall not assert that, and it should not be
considered that, any provisions of this Section 4(b) preventing him from earning
a living or otherwise are void, voidable or unenforceable or should be voided or
held unenforceable.
(c) Non-Solicitation of Employees. From the date hereof until
February 29, 2000, Xxxx shall not, without the express written consent of the
Company, recruit, solicit or induce any employees of the Company to terminate
their employment with the Company.
(d) Equitable Relief. Xxxx agrees that the remedy at law for
any breach by him of any of the agreements set forth in this Section 4 may be
inadequate and that in the event of any such breach, the Company may, in
addition to the other remedies which may be available to it at law, obtain
injunctive relief prohibiting Xxxx from the breach of such covenants and
agreements.
5. Notice of Proceedings. Xxxx shall, in the event he is requested
or required to testify or otherwise provide any information in, or with respect
to, any administrative, court or other legal proceeding involving the Company or
any of its subsidiaries or affiliates, within three (3) days after receiving or
being notified of such request or requirement, provide the Company with written
notice specifying the nature of such request or requirement and any other
information which Xxxx has been provided regarding such proceeding or which Xxxx
has provided to another party regarding such proceeding. Xxxx shall not testify
or otherwise provide any information in, or with respect to, any such proceeding
for a period of ten (10) days after receipt by the Company of notice thereof
from Xxxx, unless the failure to do so would, in the reasonable judgment of his
attorney, subject Xxxx to prosecution for a crime.
6. Assistance in Litigation. At all times hereafter, Xxxx shall,
upon reasonable notice, and at the Company's expense, furnish such information
and proper assistance to the Company as it may reasonably request in connection
with any administrative, court or other legal proceeding in which the Company or
any of its subsidiaries or affiliates is, or may become, a party (other than any
litigation between Employee and the Company or any of its subsidiaries or
affiliates).
7. No Disparagement or Harm. Neither the Company nor Xxxx shall make
any comments or statements relating to the other which are critical or
derogatory or which may tend to denigrate, disparage or otherwise injure the
business or reputation of the other.
8. Return of Property. Xxxx shall return to the Company no later
than March 2, 1998, all data and documentation relating to the Company
(including tangible evidence of trade secrets or confidential information)
including, without limitation, reports, files, memoranda, records, computers,
software, credit cards, keys, computer access codes, computer disks,
instructional manuals, financial records and all physical or personal property,
received or prepared, or which Xxxx helped to prepare, in connection with his
employment with the Company. Xxxx shall not retain any copies, reproductions,
or excerpts of such property. The obligations of Xxxx under this Section 8
shall not relate to any data or documentation which is publicly available.
9. No Admission of Liability. Although the Company has agreed to
make certain monetary payments hereunder in consideration for the release of the
Xxxx Claims, the parties hereto acknowledge that nothing herein may be viewed as
an admission of liability by the Company.
10. PNC Bank Agreement. Xxxx agrees that (i) he has relinquished to
the Company and has waived any rights he had, may have or may become entitled to
under Trust #1042607 (the "Trust") established pursuant to that certain Trust
Agreement between The United States Shoe Corporation and PNC Bank, Ohio,
National Association dated November 14, 1994, as the same may have been amended
from time to time (the "Trust Agreement") and the related Amended and Restated
Severance Compensation Agreement dated November 14, 1994 (the "Severance
Agreement"), which relate to the payment of severance benefits as described
therein, and (ii) he has executed a letter evidencing his consent to both the
termination of the Trust in accordance with Section 12(c) of the Trust Agreement
and the payment to the Company (as successor in interest to The United States
Shoe Corporation) of all assets held under the Trust as soon as practicable
after execution of such letter. The parties hereto further agree to execute or
forward such other instruments as may be requested by PNC Bank, Ohio, National
Association to confirm the foregoing agreement of the parties under this Section
10 hereof.
11. Public Announcement. Nine West has made a public announcement
and regulatory filings indicating the resignation of Xxxx as President, Chief
Operating Officer and an employee of the Company, and Xxxx acknowledges that the
Company may make additional regulatory filings as the Company may, in its sole
discretion, deem necessary or advisable.
12. Miscellaneous.
(a) Binding Agreement. This Agreement shall be binding on and
inure to the benefit of the successors and assigns of the Company and each of
the Company Released Parties and their successors and assigns. This Agreement
shall be binding on and inure to the benefit of Xxxx and his heirs and legal
representatives. This Agreement may not be assigned by Xxxx.
(b) Headings. The headings of the several sections of this
Agreement have been inserted for convenience of reference only and shall in no
way restrict or modify any of the terms of the provisions hereof.
(c) Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York,
excluding its conflicts of laws rules. The parties agree to the exclusive
jurisdiction and venue of the Supreme Court of the State of New York for
Westchester County and/or the United States District Court for the Southern
District of New York for the resolution of any and all disputes arising under
this Agreement. Jurisdiction over the parties shall be sufficiently obtained
either by personal delivery, by overnight delivery service (such as Federal
Express) or by mailing the applicable documents to the party sought to be
served.
(d) Severability. If any provision of this Agreement is deemed
invalid or unenforceable, the validity of the other provisions of this Agreement
shall not be impaired. If Section 4(b) of this Agreement shall be deemed
invalid as to its scope, then notwithstanding such invalidity, such Section 4(b)
shall be deemed valid to the fullest extent permitted by law, and the parties
agree that, if any court makes such a determination, it shall have the power to
reduce the duration, scope and/or area of such Section 4(b) and/or to delete
specific words and phrases by "blue penciling" and, in its reduced or blue
penciled form, such Section 4(b) shall then be enforceable as permitted by law.
(e) Knowing and Voluntary. By signing this Agreement, Xxxx
hereby acknowledges that (i) he has carefully read and fully understands all of
the provisions of this Agreement and the consequences of such provisions, (ii)
he knowingly and voluntarily agrees to all of the provisions of this Agreement,
(iii) he has been given ample opportunity and time within which to consider this
Agreement prior to his execution of the Agreement, and (iv) he has been provided
an opportunity to consult with an attorney of his own choice and has, in fact,
done so.
(f) Notices. All notices, requests, consents and other
communications required or permitted to be given hereunder shall be in writing
and shall be given by hand to the person so notified, or by prepaid overnight
delivery service (such as Federal Express) or by certified United States mail,
return receipt requested with all postage, fees and charges prepaid enclosed in
a sealed wrapper, marked personal and confidential, and addressed, as follows:
To the Company at: Nine West Group Inc.
0 Xxxx Xxxxx
0000 Xxxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Attn.: Xxxx X. Xxxxx, Esq.
Senior Vice President
and General Counsel
To Xxxx at: 000 Xxxxxx Xxxxx Xxxx
Xxx Xxxxxx, XX 00000
Copy to: Xxxxxxxxx Xxxxxxx, Esq.
00 Xxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
All such notices and other communications shall be effective, if given by hand
or overnight delivery service (such as Federal Express), when delivered or, if
mailed, three (3) days after mailing from a post office maintained by the United
States Postal Service. Any party hereto may, from time to time, and in like
manner, designate any other address to which any notice, request, consent or
other communication addressed to such party or any copies thereof shall be sent.
(g) Further Instruments. Xxxx and the Company shall execute all
instruments and take all actions as may be necessary or advisable to effectuate
the terms of this Agreement including executing or delivering any waivers,
elections, forms or notices with respect to the matters covered in this
Agreement.
(h) Entire Agreement. Except as otherwise expressly provided
herein, this Agreement constitutes the entire agreement between the parties
relating to the subject matter referred to herein, and supersedes (i) any and
all prior written or oral agreements between the Company and Xxxx relating to
such matters, including, without limitation, the Employment Agreement, the
Letter of Intent, the Stock Option Agreement and the Restricted Stock Agreement,
and (ii) except to the extent expressly provided herein, the Compensation and
Benefit Programs including, without limitation, the Stock Option Plan and the
Incentive Bonus Plan. No modification, waiver or termination of this Agreement,
or any part thereof, shall be effective unless in writing and signed by the
party or parties sought to be bound thereby.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Nine West Group Inc.
By: /s/ Xxxxxxx Xxxxxx
----------------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Executive Officer
/s/ Xxxx X. Xxxx
----------------------------
Xxxx X. Xxxx
