AGREEMENT AND GENERAL RELEASE
THIS AGREEMENT AND GENERAL RELEASE (`Agreement") is entered into by and
between R. Xxxxx Xxxxxxx and hi/here own behalf and on behalf of his/her
representatives, attorneys, heirs, executors, administrators, successors and
assigns (hereinafter collectively, "Executive"), and Feet HQ, Inc. on behalf of
itself, Footstar corporation, Footstar, Inc. and each of their respective
subsidiaries, affiliates, divisions, officers, directors, Executives, agents,
representatives, attorneys, successors and assigns (hereinafter "Footstar"
and/or "Company"). In consideration of the covenants, conditions and obligations
set forth herein the parties agree as follows:
1. Executive's last day of work with Footstar shall be March 26, 2004.
2. Subject to the terms of this Agreement, and to Executive's use of
reasonable efforts to secure employment (including employment on a
consulting basis ) and provided Executive certifies continued
unemployment on a monthly basis in writing to the Senior Vice
President of Human Resources, Footstar agrees to pay Executive an
amount equal to (26) weeks pay ("Severance Period"), calculated to be
$275,000.00 (Two Hundred Seventy Five Thousand Dollars and 00 cents).
Said payment to be paid to Executive in 14 biweekly installments of
$21,153.85 (Twenty One Thousand One Hundred Fifty Three Dollars and
85 Cents), less all required withholdings and/or deductions.
Notwithstanding anything to the contrary contained herein, if
Executive becomes employed or becomes a consultant during this period
Executive shall promptly notify the Company and then any payments
made pursuant to this Paragraph 2 shall cease, with a final pro-rata
payment based on Executive's date of re-employment. Notices and/or
certifications in accordance with this provision may be submitted to
Xxxx X. Xxxxxxxx, Senior Vice President Human Resources via facsimile
transmission (845) 727- 6606 or email Xxxx.Xxxxxxxx@xxxxxxxx.xxx.
Executive acknowledges that such consideration is separate from and
in addition to any Company compensation and/or benefits due
Executive.
3. In the event Employee is unemployed following the last payment
pursuant to Paragraph (2) above after using reasonable efforts to
secure such employment, and verifies such unemployment in writing,
Footstar agrees, based on all facts and circumstances, to consider
providing additional severance payments during Executive's transition
to new employment.
4. Footstar agrees not to contest any claim by Executive for
unemployment benefits.
5. EMPLOYEE BENEFIT PLANS: During the period in which payments are being
made pursuant to Paragraph (2) Executive shall be permitted to
continue to participate in the Medical and Dental Plans ("Plans" or
"Plan") that were in effect for the Executive on the day immediately
preceding Executive's separation. Not withstanding anything to the
contrary contained herein, it is agreed and understood that in the
event medical and/or dental insurance coverage become available as a
result of obtaining other employment then in that event, Executive
shall promptly notify the Company and the medical and dental
insurance coverage described herein shall cease. It is further
understood and agreed that Footstar, in its sole discretion, may from
time to time, during the period following Executive's separation,
increase or decrease the monthly contributions or change Plan
provisions. If such changes are implemented, Executive's
contributions and/or coverage will change in the same manner as for
other active employees participating in the Plan. The medical and
dental benefit continuation referred to in this paragraph will be
provided through COBRA. Executive contributions for this coverage
will remain at the same level an active employee pays under the group
plan. If medical and dental coverage is elected beyond this period,
the full COBRA rates will apply. Executive will not be entitled to
participate in any other benefit program offered by the Company
including but not limited to short term or long term disability plans
or its life insurance program after March 26, 2004.
6. STOCK OPTIONS: Executive shall continue to vest in any outstanding
stock options through the last day of active employment, and shall
have (90) days following the date of the last payment pursuant to
Paragraph (2), to exercise such stock options pursuant to the terms
of such options to the extent permitted and in compliance with
applicable securities laws. Executive shall not be eligible for any
additional stock option grants and shall forfeit any stock options
not then vested and/or exercised.
7. SWITCH TO EQUITY PLAN (STEP): Executive shall receive 100% of the
Executive's deferred vested shares as soon as practicable after March
26, 2004.
8. 401(k) PROFIT SHARING PLAN: Executive shall not be entitled to
continue to make contributions to his/her 401(k) account after March
26, 2004. Executive shall be responsible for repayment of any
outstanding loan balance to the Plan.
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9. LOANS: Executive acknowledges receipt of (2) loans in connection with
his relocation from Texas to New Jersey in the aggregate amount of
$161,878.00 with interest. Subject to the terms and conditions of
this Agreement, the Company shall forgive both loans, including any
interest.
10. It is agreed that the sums paid in accordance with Paragraph (2)
shall be deemed to include and shall constitute full payment for any
and all vacation, vacation pay, incentive compensation, severance
compensation, bonuses, commissions, draws and other forms of
compensation to which Executive may be entitled, and whether earned
or calculated on a pro rata basis; EXCEPT FOR (1) WEEK UNUSED,
ACCRUED 2004 VACATION TIME.
11. In consideration for the Company's agreement to the provisions and
payment of amounts set forth in this Agreement:
(A) Executive expressly releases and forever discharges the Company
and its representatives, agents, predecessors, successors, parent
companies, subsidiaries, affiliates, principals and insurers (and
their current and former officers, directors, employees, agents,
shareholders, successors and assigns), and nay and all employee
benefit plans (and any fiduciary of such plans) sponsored by any
of them, and all other persons, firms or corporations who might
be claimed to be liable by Executive, from any and all claims,
actions, causes of action. Losses, damages (including actual,
liquidated, compensatory, punitive or other damages), demands,
promises, agreements, obligations, costs, expenses and attorneys
fees, known or unknown, which Executive now has or may later
discover or which may hereafter exist against them, or any of
them, in connection with or arising directly or indirectly out of
or in any way related to any and all matters, transactions,
events or other things occurring prior to the effective date of
this Agreement, including those arising out of or in connection
with Executive's employment with Footstar or arising out of
events, facts or circumstances which either preceded, flowed from
or followed the cessation of Executive's employment with Footsar,
or which occurred during the course of Executive's employment
with Footstar or incidental thereto, and including but not
limited to any arising under Title VII or the Civil Rights Act of
1964, as amended; the Age Discrimination In Employment Act of
1967, as amended; the Civil Rights Act of 1991, as amended; the
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Executive Retirement Income Security Act of 1964, as amended, the
Family and medical Leave Act, as amended; 42 U.S.C. Section 1981
through 1988, CEPA (N.J.S.A. 34:19-1 et. seq.), the Occupational
Safety and Health Act, Worker Adjustment Retraining Notification
Act, the American's with Disabilities Act, the Fair Credit
Reporting Act, the Immigration Reform Control Act, the National
Labor Relations Act, or under any other federal, state or local
civil or human rights law, public policy, tort or contract law,
or under any other local, state or federal law, ordinance and
regulation, or under common law.
(B) Executive affirms that Executive has not filed, caused to be
filed, and presently is not a party to any claim, complaint or
action against the Company in any forum or form. Executive
further affirms that Executive has been paid and/or has received
all leave (paid or unpaid), compensation, wages, bonuses,
commissions, and/or benefits to which Executive may have been
entitled and that no other leave (paid or unpaid), compensation,
wages, bonuses, commissions and/or benefits are due to Executive.
Executive furthermore affirms that Executive has no known
workplace injuries or occupational diseases and had been provided
and/or has not been denied any leave requested under the Family
Medical Leave Act and/or any other federal, state or local leave
law. Executive further affirms Executive has not complained of
and is not aware of any fraudulent activity or any act(s) which
would form the basis of a claim of fraudulent or illegal activity
against the Company or any of its employees. In the event
Executive is subject to subpoena, court order or otherwise
compelled to testify, appear or provide information regarding the
Company, within (3) days of Executive's receipt of said subpoena,
court order or other notification, Executive will provide written
notice, via facsimile transmission and mail to Footstar, Xxx
Xxxxxxxxx Xxxxxx, Xxxx Xxxxx, XX 00000 Attention: Legal
Department; Facsimile Number (000) 000-0000 to the Company
without regard to who brought the action, suit, cause of action
or claim.
(C) Executive understands and agrees that the claims released and
discharged herein are forever waived and relinquished by this
Agreement, and that this Agreement expressly contemplates the
total extinguishment of any and all such claims. Executive
further agrees that because of circumstances unique to Executive,
including but not limited to, irreconcilable differences with the
Company, Executive shall not seek employment with Footstar at any
time after the effective date of this Agreement. Executive
specifically acknowledges that his provision applies equally to
all persons and entities described in Paragraph (11)A above as
well as to Footstar, itself.
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12. Executive agrees to cooperate with the Company by making
himself/herself reasonable available to testify on behalf of the
Company or any Subsidiary or affiliate of the Company, in any action,
suit or proceeding whether civil, criminal, administrative or
investigative, and to assist the Company, or any Subsidiary or
affiliate of the Company, in any action, suit or proceeding by
providing information and meeting and consulting with Company
representatives or counsel or any Subsidiary or affiliate of the
Company as requested. The Company agrees to reimburse Executive, for
all reasonable and necessary out of pocket expenses incurred in
connection with his provision of testimony or assistance (excluding
attorneys fees Executive may incur because of retention of counsel,
independent of Employer's counsel, to assist in any threatened or
pending litigation). A breach of this provision by Executive shall be
considered a material breach of this Agreement.
13. LIABILITY INSURANCE INDEMNIFICATION. The Company acknowledges that
Executive was covered by the Company's Director's & Officers
liability insurance policy during the course of his employment as an
Officer of the Company. The Company agrees that if the Executive is
made a party, or is threatened to be made a party, to any action,
suit or proceeding, whether civil or criminal (a "Proceeding"), by
reason of the fact that he was a director, officer or Executive of
the Company, the Executive shall be held harmless to the fullest
extent legally permitted or authorized by the Company's Director's &
Officer's liability insurance policy against all cost, expense,
liability and loss (including without limitation, attorneys fees,
judgments, fines, or penalties and amounts paid or to be paid in the
settlement) reasonably incurred or suffered by the Executive in
connections therewith.
14. Executive represents and agrees that Executive will keep confidential
the terms and execution of this Agreement. The sole exceptions to
this confidentiality provision are for communications to Executive's
immediate family, personal attorney (and attorney's Executives),
accountant or financial advisor, or as required by law and then, only
on the condition that Executive shall advise such person or entity
that the terms of the Agreement are confidential and further
disclosure is prohibited. A breach of this provision shall be
considered a material breach of this Agreement. Notwithstanding the
foregoing, it is agreed and understood by the parties that in the
event Executive is required to disclose the existence of this
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Agreement or its terms and conditions by process of law, the
restrictions and limitations of this Paragraph (14) shall be released
and the Executive shall be permitted, as he is required so by law, to
fully comply with the terms of the lawful process served upon him.
15. Executive agrees that Executive will make no statements or remarks to
anyone, including any of Executive's potential employers or to the
Company suppliers, vendors or customers, about Footstar or any of the
entities and person described in Paragraph 11(a) above, that are
disparaging, derogatory or defamatory to them. A breach of this
provision shall be considered a material breach of this Agreement.
16. Executive covenants and agrees that Executive ill direct all
prospective employer inquiries or any other inquiries regarding this
employment to Xxxx X. Xxxxxxxx, Senior Vice President of Human
Resources - Footstar, Xxx Xxxxxxxxx Xxxxxx, Xxxx Xxxxx, XX 00000. The
Company agrees to inform any prospective employer concerning
Executive's former employment only of the dates of Executive's
employment, Executive's position held and Executive's last salary.
17. Executive agrees that in Executive's position as CEO and
President-Athletic Division, Executive has been made privy to certain
confidential information, proprietary property and trade secrets of
the Company and that disclosure or use by Executive of such
information, property or trade secrets would damage the Company.
Executive agrees that he will hold in confidence and will not,
without the Company's prior written permission, use, disclose or
disseminate (or act so as to cause the use, disclosure or
dissemination of) any such confidential information, property or
trade secrets. The obligations set forth in this provision shall not
apply to any confidential information, property or trade secrets,
which have become generally known to the public through no act or
limitation upon the Executive.
18. Executive covenants and agrees that he shall return any and all
property, including all copies or duplicates thereof belonging to the
Company, including but not limited to, keys, security cards,
equipment, documents, supplies, customer lists and customer
information, confidential documents, etc. by no later than end of
business on April 16, 2004. A breach of this provision shall be
considered a material breach of this Agreement.
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19. Executive covenants and agrees that he has complied with the Footstar
Code of Conduct and has not violated and has not been asked to
violate any Company policy in performing his responsibilities for the
Company. Additionally, Executive acknowledges that as a Senior
Executive of the Company he has a responsibility to report any
violation of Company policy and/or suspected violation of law to the
General Counsel. Executive warrants and affirms he is not been
involved in or aware of any violation of Company Policy or question
regarding the legality of any action taken by or on behalf of the
Company. A breach of this provision shall be considered a material
breach of this Agreement.
20. Executive covenants and agrees that through March 26, 2005, Executive
will not directly or indirectly, hire or engage on behalf of
Executive or any other person or entity, any person known to
Executive to be a current employee or representative of the Company.
Executive further agrees that he will not, directly or indirectly,
during such period intentionally suggest, assist or influence the
engagement or hiring by any other person or entity of any person
known to Executive to be a current employee or representative of the
Company, nor will Executive directly or indirectly intentionally
encourage or induce any person or entity or any person known to
Executive to be a current employee, distributor, source, supplier,
customer or contractor of the Company to sever his, her or its
relationship with the Company or intentionally do anything else which
would be adverse in any material or substantial respect to the
interests of the Company.
21. Executive agrees that in the event Executive materially breaches or
violates any provision of this Agreement then the Company, in
addition to any other rights or remedies it may have, shall have no
obligation to make any further payments otherwise due Executive
pursuant to this Agreement and the Company shall be entitled to
recover from Executive any sums paid or expenses incurred by the
Company on behalf of the Executive pursuant to this Agreement without
reinstatement of any claim or demand Executive has settled through
this Agreement, provided, however this provision does not apply to
any claims brought pursuant to the Age Discrimination in Employment
Act or the Older Workers Benefit Protection Act.
22. Nothing contained in this Agreement, or the fact the parties have
signed the Agreement and exchanged the consideration provided
hereunder, should be construed to be an admission of liability of
wrongdoing on the part of either party. Moreover, neither this
Agreement or anything herein shall be admissible in any proceedings
as evidence of, or an admission by, the Company of any violation of
any federal, state or local laws, or of their own policies or
procedures. This Agreement shall not be admissible in any forum
except to secure enforcement of its terms and conditions, or as
required by law.
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23. No waiver of any breach of any term or conditions of this Agreement
shall be or shall be construed to be a waiver of any other breach of
this Agreement. No waiver shall be binding under this Agreement
unless in writing and signed by the party waiving such breach.
24. This Agreement shall be construed according to and governed by the
laws of the State of New York and all disputes governing this
Agreement shall be brought in a court of competent jurisdiction in
the State of New York.
25. If any of the provisions, terms, clauses or waivers or releases of
claims or rights contained in this Agreement are declared illegal,
unenforceable, or ineffective in a legal forum, all other provisions,
terms, clauses and waivers and releases of claims and rights
contained in the Agreement shall remain valid and binding upon both
parties, and the Court shall have the power to modify the invalid and
unenforceable provisions in a manner which most closely fulfills the
intent and terms of this Agreement as herein set forth.
26. This Agreement may not be changed, altered and/or modified except by
a writing signed by Executive and the Company.
27. The parties agree that this Agreement may be executed in
counterparts, each of which shall be deemed to constitute an executed
original.
28. In the event it shall be determined that there is ambiguity contained
in this Agreement, said ambiguities shall not be construed against
any party hereto as a result of such party's preparation of this
Agreement, but shall be construed in favor or against either of the
parties hereto in light of all the facts, circumstances and
intentions of the parties at the time this Agreement goes into
effect.
29. Executive acknowledges that Executive has been provided with, and has
read a copy of the Agreement. EXECUTIVE FURTHER ACKNOWLEDGES THAT
EXECUTIVE HAS HAD A PERIOD OF FORTY FIVE (45) DAYS TO EXAMINE THE
TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT AND HAS BEEN ADVISED
TO CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS AGREEMENT AND
EXECUTIVE HAS USED AS MUCH OF THE AFORESAID FORTY FIVE (45) DAY
PERIOD AS HE/SHE DESIRED BEFORE ENTERING INTO THIS AGREEMENT.
Executive further acknowledges that Executive has executed this
Agreement freely and voluntarily, without fraud, duress or undue
influence of any kind or nature whatsoever.
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30. Notwithstanding anything to the contrary contained in this Agreement
Executive shall have the right to revoke this agreement for a period
of seven (7) days following execution of the Agreement by both
parties. It is agreed and understood that this Agreement will not
become effective until the expiration of the seven (7) day period. In
the event Executive elects to revoke this Agreement, upon revocation,
this Agreement shall be deemed null and void and Executive shall not
receive payment hereunder. Revocation should be made by providing
notice to the Company in accordance with Paragraph 31 below, which
notice must be received by Footstar no later than the close of
business on the seventh (7th) day after the date upon which the
Agreement is executed by both parties.
31. All notices or other communications shall be deemed to be given if
delivered by hand, sent via overnight delivery (for which a receipt
is obtained), or mailed (certified or registered mail), with postage
prepaid as follows:
TO COMPANY: Xxx Xxxxxxxxx Xxxxxx, Xxxx Xxxxx, XX 00000, Attn: Senior
Vice President Human Resources, or such other persons and/places as
the Company may designate in writing to Executive.
32. This Agreement shall be binding and shall inure to the benefit of the
parties and their respective heirs, legal representatives, successors
and assigns.
33. This Agreement contains the entire understanding of the parties
relative to the employment relationship. All prior agreements between
the parties with respect to the employment relationship are
superceded and of no further force and effect.
EXECUTIVE ACKNOWLEDGES AND AGREES THAT EXECUTIVE HAS READ AND UNDERSTANDS
THIS AGREEMENT, ANDTHAT EXECUTIVE HAS SIGNED THIS AGREEMENT VOLUNTARILY FOR
THE PURPOSES OF RECEIVING ADDITIONAL BENEFITS FROM THE COMPANY BEYODN THOSE
PROVIDED BY COMPANY POLICY.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
consisting of [11] pages including this signature page.
FOOTSTAR: EXECUTIVE:
By: By: /s/ R. XXXXX XXXXXXX
--------------------------- ---------------------------
R. Xxxxx Xxxxxxx
Sworn and subscribed Sworn and subscribed
before me on this before me on this
___day of _______,2003 15th day of April 2004
/s/ XXXX X. XXXXXX
--------------------- -----------------------
Notary Public Notary Public
My Commission Expires: My Commission Expires:
/S/ XXXX X. XXXXXXXX XXXX XXX XXXXXX
--------------------- NOTARY PUBLIC
Senior Vice President MY COMMISSION EXPIRES: APR. 30, 2005
Human Resources
Sworn and subscribed
before me on this
19th day of April 2004
/s/ XXXXX XXXXXXXXX
-------------------
Notary Public
My Commission Expires:
XXXXX XXXXXXXXX
NOTARY PUBLIC, STATE OF NEW YORK
NO O1PE6067335
QUALIFIED IN ROCKLAND COUNTY
COMMISSION EXPIRES 12/10/2004
Xxxxx Xxxxxxx
/s/ SN
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INITIALS
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