EXHIBIT 10.5(g)
AGREEMENT AND GENERAL RELEASE
THIS AGREEMENT AND GENERAL RELEASE ("Agreement") is entered into by and
between Xxxxx XxXxxx on his/her own behalf and on behalf of his/her
representatives, attorneys, heirs, executors, administrators, successors and
assigns (hereinafter collectively, "Employee"), and Footstar Corporation, on
behalf of itself, Footstar, Inc., and each of their respective subsidiaries,
affiliates, divisions, officers, directors, employees, 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. Employee's last day of work with the Company shall be DECEMBER 31, 2004.
2. Subject to the terms of this Agreement Footstar agrees to pay Employee the
following sums in accordance with the KERP letter dated May 6, 2004 within
14 days of separation; PROVIDED, HOWEVER, Footstar is in receipt of a
fully executed copy of this Agreement and the requisite revocation period
set forth in Paragraph (26) has expired:
a) KERP payment of $116,000.00 (One Hundred Sixteen Thousand Dollars
and 00/Cents);
b) Sum of $290,000.00 (Two Hundred Ninety Thousand Dollars and
00/Cents) representing severance benefits of 52 weeks pay.
c) The amounts described in paragraph 2 (a)-(b) above shall be paid
in one lump sum payment less all required withholdings and/or
deductions.
3. 2003 Bonus Payment: Employee acknowledges receipt of the 2003 bonus
payment in the amount of $116,000.00 (One Hundred Sixteen Thousand Dollars
and 00/Cents), less required withholdings and/or deductions which was paid
via direct deposit on or about December 1, 2004.
4. Footstar agrees not to contest any claim by Employee for unemployment
benefits.
5. Employee Benefit Plans: Employee shall be permitted to continue to
participate in the Medical and Dental Plans ("Plans" or "Plan") that were
in effect for the Employee on the day
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immediately preceding Employee's separation for a period of 12 MONTHS from
the date of separation(1). Notwithstanding anything to the contrary
contained herein, it is agreed and understood that in the event medical
and/or dental insurance coverage becomes available as a result of
obtaining other employment, then in that event, Employee 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
Employee's separation, increase or decrease the monthly contributions or
change Plan provisions. If such changes are implemented, Employee's
contributions and/or coverage will change in the same manner as for other
active employees participating in the Plan. The medical benefit
continuation referred to in this paragraph will be provided through COBRA.
Employee contributions for this coverage will remain at the same level an
active employee pays under the group plan. If medical coverage is elected
beyond this period, the full COBRA rates will apply. Employee will not be
entitled to participate in the Company's short term or long term
disability plans or its life insurance program after DECEMBER 31, 2004.
6. Outplacement Services: The Company will provide Outplacement Services for
the Employee through Right Management Consultants following Employee's
last day of employment for a period of 15 MONTHS from the date of
separation.
7. 401 (k) Profit Sharing Plan: Employee shall not be permitted to make
contributions to his/her 401(k) account after DECEMBER 31, 2004.
8. Stock Options: Employee shall continue to vest in any outstanding stock
options through the last day of active employment, and shall have ninety
(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.
Employee shall not be eligible for any additional stock option grants and
shall forfeit any stock options not then vested and/or exercised.
9. Switch to Equity Plan (STEP): Employee shall receive as soon as
practicable after DECEMBER 31, 2004 100% of the Employee's deferred vested
shares.
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1 Medical and dental plan deductions at their current levels will be deducted
from Employee's lump sum payment for the first quarter of 2005. In the event
Employee obtains coverage during the first quarter of 2005 the company shall
issue a refund (for the amounts deducted) on a pro-rata basis. In the event
Employee elects to continue coverage beyond the first quarter of 2005 for the
remaining months of the 12 month period he will be responsible for all payments
at the active rate.
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10. It is agreed that the sums paid in accordance with Paragraph (2) and (3)
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 Employee may be entitled, and whether earned or calculated on a
pro rata basis inclusive of 2004 vacation time; EXCEPT FOR ANY CLAIM
EMPLOYEE MAY HAVE FILED WITH THE BANKRUPTCY COURT FOR THE 2004 CASH
PERFORMANCE INCENTIVE (CPI) PAYMENT PROVIDED EMPLOYEE HAS FILED A VALID
PROOF OF CLAIM WITH THE BANKRUPTCY COURT FOR SUCH CPI PAYMENT WITHIN THE
ESTABLISHED DEADLINE. EMPLOYEE ACKNOWLEDGES THAT THE VALIDITY OF ANY CPI
CLAIM WILL BE DETERMINED THROUGH THE BANKRUPTCY PROCESS.
11. In consideration for the Company's agreement to the provisions and payment
of amounts set forth in this Agreement:
(A) Employee 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 any 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 Employee, 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 Employee 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 Employee's employment with
Footstar or arising out of events, facts or circumstances which
either preceded, flowed from or followed the cessation of Employee's
employment with Footstar, or which occurred during the course of
Employee's employment with Footstar or incidental thereto, and
including but not limited to any arising under Title VII of 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 Employee Retirement Income Security Act of 1964, as
amended; the Family and Medical Leave Act, as amended; 42 U.S.C.
Sections 1981 through 1988; CEPA (N.J.S.A. 34:19-1 et .seq.); the
Occupational Safety and Health Act; the Worker Adjustment and
Retraining Notification (WARN) 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
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or any other local, state or federal law, ordinance and regulation,
or under any public policy, contract, tort or common law.
NOTWITHSTANDING THE FOREGOING, EMPLOYEE DOES NOT RELEASE ANY CLAIM
HE MAY HAVE FOR ANY 2004 CPI PAYMENT PROVIDED EMPLOYEE HAS FILED A
VALID PROOF OF CLAIM WITH THE BANKRUPTCY COURT WITHIN THE
ESTABLISHED DEADLINE.
(B) EXCEPT AS TO HIS PROOF OF CLAIM FOR ANY 2004 CPI PAYMENT, Employee
affirms that Employee 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, EXCEPT AS TO HIS PROOF OF CLAIM
FOR ANY 2004 CPI PAYMENT, Employee further affirms that Employee has
been paid and/or has received all leave (paid or unpaid),
compensation, wages, bonuses(2), commissions, and/or benefits to
which Employee may have been entitled and that no other leave (paid
or unpaid), compensation, wages, bonuses, commissions and/or
benefits are due to Employee. Employee furthermore affirms that
Employee 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. Employee further affirms Employee 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. In the event Employee is
subject to subpoena, court order or otherwise compelled to testify,
appear or provide information regarding the Company, within (3) days
of Employee's receipt of said subpoena, court order or other
notification, Employee will provide written notice, via facsimile
transmission and mail to Footstar, 000 XxxXxxxxx Xxxx., Xxxxxx, 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) Employee 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. Employee further
understands and agrees that Employee has no right or claim to
employment with Footstar at any time after the effective date of
this Agreement. Employee specifically acknowledges that this
provision applies equally to all persons and entities described in
Paragraph 11(A) above as well as to Footstar itself.
12. Employee covenants and agrees that on Employee's last day of work Employee
shall return
2 By accepting the Retention Payment benefits Employee has waived the right to
receive any additional bonuses.
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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. A breach of this provision shall be
considered a material breach of this Agreement.
13. Employee agrees to cooperate with the Company by making himself/herself
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. A breach of this provision will be considered a
material breach of this Agreement.
14. Employee represents and agrees that Employee will keep confidential the
terms and execution of this Agreement. The sole exceptions to this
confidentiality provision are for communications to Employee's immediate
family, personal attorney (and attorney's employees), accountant or
financial advisor, or as required by law and then, only on the condition
that Employee 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.
15. Employee agrees that Employee will make no statements or remarks to
anyone, including any of Employee's potential employers or to the Company
suppliers, vendors or customers, about Footstar or any of the entities and
persons 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. Employee agrees that in Employee's position as Senior Vice President,
Employee has been made privy to certain confidential information,
proprietary property and trade secrets of the Company and that disclosure
or use by Employee of such information, property or trade secrets would
damage the Company. Employee 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
Employee.
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17. Employee agrees that in the event Employee 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 Employee pursuant to this Agreement and the
Company shall be entitled to recover from Employee any sums paid or
expenses incurred by the Company on behalf of the Employee pursuant to
this Agreement without reinstatement of any claim or demand Employee 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 Worker's Benefits Protection Act.
18. 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.
19. 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.
20. This Agreement shall be construed according to and governed by the laws of
the State of New Jersey and all disputes governing this Agreement shall be
brought in a court of competent jurisdiction in the State of New Jersey.
21. 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.
22. This Agreement may not be changed, altered and/or modified except by a
writing signed by Employee and the Company.
23. The parties agree that this Agreement may be executed in counterparts,
each of which shall be deemed to constitute an executed original.
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24. 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.
25. Employee acknowledges that Employee has been provided with, and has read a
copy of the Agreement. EMPLOYEE FURTHER ACKNOWLEDGES THAT EMPLOYEE HAS HAD
A PERIOD OF TWENTY ONE (21) 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 EMPLOYEE HAS USED AS MUCH OF
THE AFORESAID TWENTY ONE (21) DAY PERIOD AS HE/SHE DESIRED BEFORE ENTERING
INTO THIS AGREEMENT. Employee further acknowledges that Employee has
executed this Agreement freely and voluntarily, without fraud, duress or
undue influence of any kind or nature whatsoever.
26. Notwithstanding anything to the contrary contained in this Agreement
Employee 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 Employee elects
to revoke this Agreement, upon revocation, this Agreement shall be deemed
null and void and Employee shall not receive payment hereunder. Revocation
should be made by providing notice to the Company in accordance with
Paragraph 27 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.
27. 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 EMPLOYEE: 00 Xxxxx Xxxxx, Xxxxxxxx, XX 00000 or to such other person
and/or place as Employee may designate in writing to the Company.
TO COMPANY: 000 XxxXxxxxx Xxxx., Xxxxxx, XX 00000 Attn: Senior Vice
President Human Resources, or such other persons and/places as the Company
may designate in writing to Employee.
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28. This Agreement shall be binding and shall inure to the benefit of the
parties and their respective heirs, legal representatives, successors and
assigns.
EMPLOYEE ACKNOWLEDGES AND AGREES THAT EMPLOYEE HAS READ AND UNDERSTANDS THIS
AGREEMENT, AND THAT EMPLOYEE HAS SIGNED THIS AGREEMENT VOLUNTARILY FOR THE
PURPOSES OF RECEIVING ADDITIONAL BENEFITS FROM THE COMPANY BEYOND THOSE PROVIDED
BY COMPANY POLICY.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
consisting of [8] pages including this signature page.
FOOTSTAR: EMPLOYEE:
By: /s/ XXXX XXXXXXXX By: /s/ XXXXX XXXXXX
-------------------------------------- -----------------------------
Xxxx Xxxxxxxx Xxxxx XxXxxx
Senior Vice President Human Resources
Footstar
Sworn and subscribed Sworn and subscribed
before me on this before me on this
___ day of ________________, 2004 ___ day of ________________, 2004
/s/ XXXXX XXXXXXXXX /s/ XXXXX XXXXXXXXX
------------------------------------------ ---------------------------------
Notary Public Notary Public
My Commission Expires: _____________ My Commission Expires: __________
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