Exhibit 10.10
FORM OF
SALARY CONTINUATION AGREEMENT
This Agreement is entered into between NS Group, Inc.,
a corporation having its corporate office in Newport,
Kentucky ("Company"), and _______("Participant"), effective
________.
WITNESSETH
WHEREAS, Participant is employed by the Company, and by
reason thereof, has acquired experience and knowledge of
considerable value to the Company; and
WHEREAS, the Company wishes to offer an inducement to
Participant to remain in its employ by compensating him
beyond his regular salary for services which he had rendered
or will hereafter render; and
WHEREAS, Participant is willing to continue in the
employ of the Company until his retirement, or until it is
mutually agreed by both the Company and Participant that his
services are no longer necessary.
NOW THEREFORE, it is mutually agreed as follows:
1. As of the date of this Agreement, Participant is
employed by the Company, and Participant hereby agrees to
continue such employment upon the terms and conditions set
forth in this Agreement. Participant is an "at will"
employee of the Company and this Agreement does not impose
any obligation for the employment relationship to continue
for a specified period of time.
2. As compensation for his services, the Company
hereby agrees to pay Participant and Participant hereby
agrees to accept from the Company, a yearly salary to be
determined by the Board of Directors of the Company.
3. Subject to the limitations set forth in paragraphs
9 and 11 below, in the event that Participant retires from
active employment with the Company after attaining age 62,
the Company shall pay Participant _______ per month (the
"Monthly Payments") for life commencing on the first day of
the month following the date of such retirement.
Notwithstanding the foregoing, if the Company requests that
Participant retire from active employment with the Company
before attaining age 62 (for any reason other than for
"cause" as defined in paragraph 9 of this Agreement) and
Participant agrees to do so, the Company may, in its sole
discretion, provide that Participant may begin receiving the
benefits provided for in this Agreement immediately, subject
to such actuarial reductions as the Company may deem
appropriate to reflect the early commencement of benefits.
4. In the event that Participant dies (a) while in
the active employ of the Company, or (b) after becoming
fully vested in the benefits provided pursuant to this
Agreement because of either a permanent disability or a
Change of Control (as provided for in paragraphs 6 and 7)
but prior to the commencement of payments hereunder,
Participant's spouse at the time of death shall be entitled
to receive Monthly Payments commencing on the first day of
the month following Participant's death and ending on the
earlier of (i) the first day of the month during which the
spouse dies and (ii) the date on which the 120th Monthly
Payment is made. In the event that Participant dies (and is
survived by a spouse) while receiving Monthly Payments
hereunder but prior to receipt of at least 120 such
payments, the spouse shall be entitled to continue receiving
such payments until the earlier of (i) the first day of the
month during which the spouse dies and (ii) the date on
which the 120th Monthly Payment is made.
5. Upon retirement from the Company at or following
attainment of age 62, continued health insurance coverage
shall be provided for Participant and the person (if any)
who is his spouse at the time of retirement. The coverage
will be the same as that which may be provided from time to
time to active employees, and will be paid for by the
Company. Such coverage will continue for Participant until
Participant reaches the age at which he is eligible for
Medicare and for Participant's spouse until she reaches the
age at which she is eligible for Medicare.
6. In the event that Participant becomes permanently
disabled (as defined in the Company's long-term disability
plan which covers the Participant) while in the active
employ of the Company, Participant shall become fully vested
in the benefits provided pursuant to paragraph 3 of this
Agreement, and shall begin receiving such benefits at the
later of age 62 or when long-term disability benefits are no
longer payable to Participant.
7. In the event of a "Change of Control" of the
Company while Participant is in the active employ of the
Company, Participant shall become fully vested in the
benefits provided pursuant to paragraph 3 of this Agreement.
Participant must wait until age 62 to begin receiving these
benefits. For purposes of this Agreement, "Change of
Control" shall mean the happening of any of the following:
(a) the direct or indirect sale, lease,
exchange or other transfer of all or substantially all of
the assets of the Company to any Person (i.e., 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 Securities Exchange Act of 1934) 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," as set forth below. For purposes of the
definition of Change of Control, an "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 % 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) 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;
(c) the stockholders of the Company shall
approve any plan or proposal for the liquidation or
dissolution of the Company;
(d) 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) ("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;
(e) 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 (a), (d) and (e) 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.
8. Notwithstanding any other provision of this
Agreement, the Company has an unconditional right to offset
any amounts which Participant owes the Company against
amounts due under this Agreement.
9. Participant agrees that if his employment with the
Company is terminated with "cause" (regardless of whether
Participant has attained the age of 62) Participant shall
not be entitled to any benefits whatsoever provided under
this Agreement and the Company shall have no liability or
obligation to provide any such benefits to Participant
pursuant to this Agreement. The termination of
Participant's employment with the Company shall be deemed
with "cause" if the Company should determine that
Participant has committed any of the following: (i) fraud;
(ii) misappropriation of Company property or funds; (iii)
embezzlement; or (iv) malfeasance, misfeasance or
nonfeasance in office which is willful or grossly negligent.
10. Participant agrees that, without the written
consent of the board of directors of the Company, he will
not, during the term of his employment with the Company or
any business entity controlling, controlled by or under
common control with the Company (an "Affiliate"), directly
or indirectly (a) engage in any activity, or in any manner
be connected with or employed by any person, firm,
corporation, or any other entity, in competition with the
Company or any Affiliate, or (b) call upon, solicit, divert,
or take away or attempt to solicit, divert, or take away any
of the customers or employees of the Company or any
Affiliate. The parties agree that these restrictions
against competition and solicitation will continue to apply
after Participant's employment with the Company ends if and
only if Participant's benefits are vested (i.e. Participant
is entitled to receive Monthly Payments hereunder either
immediately or upon the attainment of age 62), and in such
event will remain in effect for 5 years after Participant's
termination of employment. Participant further agrees that
he will not, during the term of his employment with the
Company or any Affiliate and for a period of 5 years
thereafter, use or disclose to anyone not legally entitled
thereto any confidential or proprietary information or trade
secrets relating to the business of the Company.
11. Participant agrees that, if he breaches any
covenant of paragraph 10 above, no further payments shall be
due or payable by the Company hereunder either to
Participant or to Participant's spouse and the Company shall
have no further liability or obligation hereunder.
12. The benefits provided hereunder shall not affect
the right of the Participant to participate in any current
or future Company retirement plan or in any supplemental
compensation arrangement which constitutes a part of the
Company's regular compensation structure. Upon
Participant's termination of employment, his annual base
salary and other benefits shall cease upon commencement of
the benefits provided hereunder, except as required by
applicable law or the applicable benefit plan.
13. It is agreed that neither Participant nor
Participant's spouse shall have any right to commute, sell,
assign, transfer or otherwise convey the right to receive
any payments hereunder, which payments and the right thereto
are expressly declared to be non-transferable. In the event
that Participant or Participant's spouse takes any action or
agrees to take any action in violation of this paragraph,
the Company shall have no further liability or obligation
hereunder.
14. If the Company acquires an insurance policy or any
other asset in connection with the liabilities assumed by it
hereunder, it is expressly understood by Participant and
agreed to by him that neither Participant nor Participant's
spouse shall have any right with respect to, or claim
against, such policy or asset. Such policy or asset: (a)
shall not be deemed to be held under any trust for the
benefit of Participant or Participant's spouse; (b) shall
not be held in any way as collateral security for the
fulfillment of the obligations of the Company under this
Agreement; and (c) shall be, and remain, a general
unpledged, unrestricted asset of the Company.
15. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and
their respective successors, permitted assigns and other
legal representatives. Nothing in this Agreement, whether
expressed or implied, is intended to confer any rights or
remedies under or by reason of this Agreement on any other
persons other than the Company, each of the Company's
Affiliates, Participant or Participant's spouse, and their
respective successors, permitted assigns and other legal
representatives.
16. This Agreement sets forth the entire agreement and
understanding of the parties in respect of the transactions
contemplated hereby and supersedes all prior agreements,
arrangements and understandings relating to the subject
matter hereof.
17. This Agreement may be executed simultaneously in
two counterparts, each of which shall be deemed an original
but both of which taken together shall constitute one and
the same instrument.
18. If any provision of this Agreement is determined
by a court of competent jurisdiction to be unenforceable
because it is overbroad, the other provisions hereof shall
not be effected, and this agreement shall be modified to the
extent necessary to make the invalid or unenforceable
provision valid and enforceable to the maximum extent
permissible under applicable law. This Agreement shall be
construed in accordance with the laws of the State of
Kentucky, and Participant and the Company hereby consent to
the filing and conduct of any litigation concerning this
Agreement exclusively in the State of Kentucky.
19. Whenever the singular number is used herein it
shall include the plural if the context so requires and
reference to the masculine gender herein shall be deemed to
refer to all genders.
20. The Company, or any successor thereto, may not
amend or terminate this Agreement, without the written
consent of Participant.
21. The Company shall use its best efforts to cause
this Agreement to be assumed by any successor to the Company
by virtue of a sale of substantially all of its assets or
otherwise.
22. This Agreement shall supersede any previous
agreement between Participant and the Company with regard to
salary continuation benefits, which is deemed to be
terminated.
IN WITNESS WHEREOF, Participant and the Company, by its
duly authorized officer, have executed this Agreement as of
___________________,
NS Group, Inc.
By:
Title:
Participant
Schedule of Documents Omitted
The following agreements are substantially identical to the
Form of Salary Continuation Agreement shown here, except for
the identity of the employees, dates of execution and the
amount of the monthly benefit. These documents are not
filed as separate documents in accordance with Exchange Act
rule 12b-31.
Employee Monthly Benefit
Xxxxxxxx X. Xxxxxxx $16,406
Xxxx X. Xxxxxxx, Xx. $ 9,000
Xxxxxx X. Xxxx $ 8,333
Xxxx X. Xxxxxx $ 7,438
Xxxx X. Xxxxxxxxx $12,500
