EMPLOYMENT AGREEMENT
THIS
AGREEMENT is made this 4th day of September, 2007 (the “Effective Date”), by and
between COLLECTIVE BRANDS, INC., a Delaware corporation, (“CBI”) and XXXXXXX X.
XXXXX (“Executive”).
WITNESSETH:
WHEREAS,
CBI and its related entities are one of the leading global footwear, accessories
and lifestyle brands companies in the United States, reaching customers through
multiple price points and selling channels, including retail, wholesale,
licensing and e-commerce, throughout the United States, Europe, Puerto Rico,
and
the U.S. Virgin Islands, Guam, Saipan, Canada, and Central and South
America.
WHEREAS,
CBI conducts its business in part through various direct and indirect
subsidiaries, including Payless ShoeSource, Inc., The Stride Rite Corporation,
and Collective Licensing International, LLC (CBI and its subsidiaries and
affiliates being collectively referred to as “Collective”).
WHEREAS,
Executive recognizes and acknowledges that Executive's position with Collective
provides him with access to Collective’s proprietary, trade secret and other
confidential information relating to its business.
WHEREAS,
Collective has expended a great deal of time, money and effort to develop and
maintain its proprietary, trade secret and confidential information; this
information, if misused or disclosed, could be very harmful to Collective's
business and its competitive position in the marketplace.
WHEREAS,
Executive recognizes and acknowledges that if Executive's employment with
Collective ceases, Collective needs certain protections to ensure that Executive
does not misuse or disclose any proprietary, trade secret or confidential
information entrusted to Executive during the course of employment or take
any
other action which could result in a loss of Collective's good will that was
generated on Collective's behalf and at its expense, and, more generally, to
prevent Executive from having an unfair competitive advantage over
Collective.
WHEREAS,
Executive desires to be employed by Collective, to be eligible for potential
compensation increases and to be given access to proprietary, trade secret
and
confidential information of Collective necessary for Executive to perform
Executive’s job, but which Collective would not make available but for
Executive’s signing and agreeing to abide by the terms of this Agreement.
In
consideration of the mutual promises and agreements herein contained, and other
good and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Term.
This
Agreement shall commence on the Effective Date and shall expire on September
4,
2009 (the “Contract Term”), unless sooner terminated in accordance with
Paragraph 8 hereof. Beginning on September 5, 2007, the Contract Term will
be
automatically extended each day by one day, until either party delivers to
the
other written notice of non-renewal.
2. Duties.
(a) Executive
shall perform all duties incident to the position of Executive Vice President,
Chief Administrative Officer, as well as any other duties as may be assigned
from time to time by Collective, and agrees to abide by all the by-laws,
policies, practices, procedures and rules of Collective. Executive agrees to
use
Executive’s best efforts, energies and skill to perform the duties and
responsibilities of the position, and to this end will devote Executive’s full
time and attention exclusively to the business of Collective. Executive may
be
assigned or transferred to another management position, as designated by
Collective, which may or may not provide the same level of responsibility as
the
initial assignment. This Agreement shall remain in effect and shall apply to
Executive, without any need for re-execution, regardless of the Collective
subsidiary or business division for which Executive works or provides services,
or the duties to which Executive may in the future be assigned.
(b) At
all
times during the Contract Term, Executive will maintain Executive’s residence
within reasonable access to the Corporate Headquarters of Collective or any
division to which Executive may be assigned.
3. Compensation;
Benefits.
(a) Base
Salary.
Collective agrees to pay Executive a base salary during the Contract Term at
the
annual rate of $525,000.00, less applicable taxes and withholding, payable
in
equal bi-weekly installments, which annual rate will be subject to an annual
review, which may result in an increase or decrease in salary, during
Collective’s regularly scheduled review time.
(b) Incentive
Plans.
Executive shall be eligible to participate in such annual and long-term plans,
programs or arrangements established from time to time for senior executives
of
Collective (the "Incentive Plans"), in accordance with and subject to all of
the
terms and provisions of such Incentive Plans.
(c) Expenses.
Collective shall reimburse Executive for all items of normal business expense
incurred by Executive as an employee of Collective in accordance with
Collective’s reimbursement policies in effect from time to time.
(d) Benefits.
Collective has adopted certain welfare benefit plans (including, but not limited
to, medical, prescription drug, dental, disability, and life insurance) and
has
established certain perquisites which may, from time to time, confer rights
and
benefits on Executive in accordance with their terms. Collective may also,
in
the future, adopt additional welfare benefit plans, establish additional
perquisites, or amend, modify or terminate any of the aforesaid welfare benefit
plans and arrangements, all in accordance with their terms and in accordance
with applicable law. Unless effectively waived, Executive shall be entitled
to
whatever rights and benefits which may be conferred on Executive, from time
to
time in accordance with the terms of such plans and arrangements.
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(e) Stock.
Executive will be eligible for future grants of restricted stock, stock-settled
stock appreciation rights, stock options, or performance units, if any, as
may
be granted under the terms of the Collective Brands, Inc. 2006 Stock Incentive
Plan, in accordance with the criteria established from time to time by the
Compensation Committee of the Collective Brands, Inc. Board of Directors.
(f)
Automobile
Allowance.
Executive shall be eligible for an automobile allowance as determined by
Collective from time to time, paid monthly upon written request. The portion
of
the allowance that is substantiated as business-related will not be considered
taxable.
4. Noncompete.
(a) At
all
times during the Contract Term, and for a period of two (2) years immediately
following Executive’s last day of employment with Collective, Executive will not
directly or indirectly:
(i) own,
manage, operate, finance, join, control, or participate in the ownership,
management, operation, financing, or control of, or be a partner in, be employed
by, or act as an advisor, consultant, agent, officer, director, or independent
contractor for, or otherwise have an interest in, a Competing Business;
or
(ii) solicit,
induce, hire, or attempt to aid or assist any person or entity other than
Collective in soliciting for employment, offering employment to, or hiring,
any
employee of Collective or any person who, at any time during the 12 months
prior
to the solicitation, was employed by Collective.
Nothing
in this Paragraph 4(a) shall prevent Executive, however, from performing
Executive’s duties and responsibilities for Collective. In addition, ownership
of an investment of less than the greater of $25,000 or 1% of any class of
equity or debt security of a Competing Business shall not constitute ownership
or participation in ownership in violation of Paragraph 4(a)(i).
(b) The
term
"Competing Business" shall include, but not be limited to:
(i) any
retail business or licensee with gross sales or revenue in the prior fiscal
year
of more than $25 million (or which is a subsidiary, affiliate or joint venture
partner of a business with gross sales or revenue in the prior fiscal year
of
more than $25 million) which sells footwear or accessories in whole or in part
competitive to that sold by Collective (“Competitive Footwear”) (including,
without limitation, Wal-Mart Stores, Inc.; Sears Holdings Corporation; Target
Corporation; Foot Star, Inc.; DSW, Inc.; Aldo Shoes, Inc.; Xxxx Stores, Inc.;
T.J. Maxx; Off-Broadway Shoes; Burlington Coat Factory Warehouse Corporation;
Gennesco Inc.; Xxxxx Shoe Company, Inc.; Shoe Carnival, Inc.; Xxxx’x
Corporation; Liz Claiborne, Inc.; Big 5 Sporting Goods Corporation; X.X. Xxxxxx
Company; Shoe Zone, Limited; Bata, Limited; Xxxxx.xxx; Xxxxxx.xxx), within
10
miles of any Collective store or the store of any wholesale customer or licensee
of Collective in the United States, or anywhere in any foreign country in which
Collective has retail stores, wholesale customers, or licensees;
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(ii) any
franchising or wholesaling business with gross sales or revenues in the prior
fiscal year of more than $25 million (or which is a subsidiary, affiliate or
joint venture partner of a business with gross sales or revenues in the prior
fiscal year of more than $25 million) which sells Competitive Footwear at
wholesale to franchisees, retailers or other footwear distributors located
within 10 miles of any Collective store or the store of any wholesale customer
or licensee of Collective in the United States, or anywhere in any foreign
country in which Collective has retail stores or wholesale customers;
(iii) any
footwear manufacturing business with gross sales or revenue in the prior fiscal
year of more than $25 million (or which is a subsidiary, affiliate or joint
venture partner of a business with gross sales or revenue in the prior fiscal
year of more than $25 million) which sells Competitive Footwear to retailers,
wholesale customers, licensees, or other footwear distributors located within
10
miles of any Collective store or the store of any wholesale customer or licensee
of Collective in the United States, or anywhere in any foreign country in which
Collective has retail stores, wholesale customers, or licensees (including,
without limitation, Nine West Shoes; Dexter Shoe Company; Liz Claiborne, Inc.;
Wolverine Worldwide, Inc.; Timberland Company; Nike, Inc.; Reebok International,
Ltd.; K-Swiss, Inc.; adidas-Salomon AG; Asics; FILA; New Balance; Puma)
or
(iv) any
business, located in the United States or any other country in which Collective
operates, with gross sales or revenue in the prior fiscal year of more than
$25
million engaged in the sale, licensing or sublicensing of footwear, apparel,
sporting goods and accessories to other companies for manufacture and sale
to
the skateboarding, snowboarding, mountain biking, BMX biking, casual streetwear
and youth lifestyle markets (including, without limitation, Adio; Anarchy;
Circa; DC Shoes; Dragon; DVS; Element; Etnies; Globe; Lakai; Oakley; Osiris;
Vans; Volcom; or World Industries); or
(v) any
business which provides buying office services to any store or group of stores
or businesses referred to in Paragraph 4(b).
(c) Background
of non-compete restrictions:
(i)
In
connection with its business, Collective has expended a great deal of time,
money and effort to develop and maintain its proprietary, trade secret and
confidential information; this information, if misused or disclosed, could
be
very harmful to Collective's business and its competitive position in the
marketplace;
(ii)
Executive recognizes and acknowledges that Executive’s position with Collective
provides Executive with access to Collective’s proprietary, trade secret, and
confidential information;
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(iii)
Collective compensates its employees to, among other things, develop and
preserve goodwill and relationships on Collective's behalf and to develop and
preserve business information for Collective’s exclusive ownership and use;
(iv) long-term
customer and supplier relationships often can be difficult to develop and
require a significant investment of time, effort and expense; and
(v) Executive
recognizes and acknowledges that if Executive’s employment with Collective were
to cease, Collective would need certain protections in order to ensure that
Executive does not appropriate or use any confidential and proprietary trade
secret information entrusted to Executive during the course of employment or
take any other action which could result in a loss of Collective’s goodwill that
was generated on Collective’s behalf and at its expense, and, more generally, to
prevent Executive from having an unfair competitive advantage over
Collective.
(d) Reasonableness
of non-compete restrictions. Executive acknowledges and agrees that the
restrictions in Paragraph 4 are reasonable and that such restrictions are
enforceable in view of the background for the non-compete restrictions set
forth
in the Paragraph 4(c), and in view of, among other things, the
following:
(i) the
markets in which Collective operates its businesses;
(ii) the
proprietary, trade secret, and other confidential business information to which
Executive has or will have access;
(iii) Executive's
training and background, which are such that neither Collective nor Executive
believes that the restraint will pose an undue hardship on the Executive or
prevent Executive from finding suitable non-competitive employment during the
specified period of non-competition;
(iv) a
Competing Business could benefit greatly if it were to obtain Collective's
proprietary, trade secret, and other confidential business
information;
(v) Collective
would not have adequate protection if Executive is permitted to work for any
Competing Business in violation of this Agreement since Collective would be
unable to verify whether its proprietary, trade secret, and other confidential
business information was being disclosed or misused;
(vi) the
limited duration and limited scope of, and the limited activities prohibited
by,
the restrictions in Paragraph 4; and
(vii) Collective's
legitimate interests in protecting its proprietary, trade secret, and other
confidential business information, goodwill and relationships.
(e) If
Executive violates Executive’s obligations under Paragraph 4, then Collective
shall be entitled to all legal and equitable rights and remedies under this
Agreement, including all of its rights and remedies referred to in Paragraph
10
of this Agreement. Further, any time in which Executive is in violation of
Executive’s obligations shall not count toward satisfying the time during which
any injunctive restriction shall apply. For example, if Executive were to join
a
competitor in violation of the restrictions in Paragraph 4(a) and work for
such
competitor for one month before a court enjoined such violation, then the two
year time period of the restriction would begin when such injunction were
issued; the one month in which Executive violated the restriction would not
count toward the time that the restriction applies.
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(f) Executive
agrees to provide a copy of this Agreement (with Paragraph 3(a) redacted, if
desired) to any prospective employer Executive contacts during or after
termination or resignation of employment. Executive authorizes Collective to
contact Executive’s future employers and other entities with which Executive has
any business relationship to determine Executive’s compliance with this
Agreement or to communicate the contents of this Agreement to such employer
and
entities. Executive releases Collective, its employees and agents, from all
liability for damages arising from such contact or communications.
5. Confidential
Information.
(a) Executive
will not, at any time during the Contract Term or after termination of
employment, directly or indirectly use, make known, disclose, furnish, or make
available Confidential Information (as defined herein), other than in the proper
performance of the duties contemplated herein.
(b) “Confidential
Information” means any non-public information pertaining to Collective’s
business disclosed by Collective to Executive, or developed or learned by
Executive during the course of Executive’s Collective employment, including,
without limitation, any confidential information and documents concerning
Collective’s customers; customer, supplier, and vendor lists; terms, conditions
and other business arrangements with vendors, suppliers, or factories; contract
factory lists; manufacturing plans; advertising, marketing plans and strategies;
pricing information; profit margins; seasonal plans, goals, objectives and
projections; compilations, analyses and projections regarding Collective's
businesses, product segments, product lines, suppliers, sales and expense
information; patent applications (prior to their being public); salary, staffing
and employment information (including information about performance of other
executives); operations manuals; computer software applications and other
programs; techniques, methods, styles, designs and design concepts, business
plans, knowledge and data related to processes, products, compounds,
compositions, formulae, lasts and molds, and "know-how," techniques or any
technical information not of a published nature relating, for example, to how
Collective conducts its businesses;
(c) Executive
acknowledges that Collective’s businesses are intensely competitive and that, by
virtue of Executive’s employment with Collective, Executive will have access to
and knowledge of Confidential Information. Executive also agrees that the misuse
or direct or indirect disclosure of Confidential Information to existing or
potential competitors of Collective would place it at a competitive disadvantage
and would harm and damage Collective’s businesses.
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(d) During
Executive's employment with Collective and thereafter, Executive will: (i)
notify and provide Collective immediately with the details of any unauthorized
possession, use or knowledge of any Confidential Information, (ii) assist in
preventing any reoccurrence of such possession, use or knowledge, and (iii)
cooperate with Collective in any litigation or other action to protect or
retrieve Confidential Information.
6. Collective
Intellectual Property.
(a)
Executive hereby assigns to Collective all of Executive’s rights, title, and
interest (including but not limited to all patent, trademark, copyright and
trade secret rights) in and to all Work Product (as defined herein). Executive
further acknowledges and agrees that all copyrightable Work Product prepared
by
Executive within the scope of Executive’s employment with Collective are “works
made for hire” and, consequently, that Collective owns all copyrights thereto.
For purposes of this Agreement, “Work Product” shall include but is not limited
to, all literary works, software, documentation, memoranda, photographs,
artwork, sound recordings, audiovisual works, ideas, designs, inventions,
discoveries, creations, conceptions, improvements, processes, algorithms, and
so
forth which (i) are prepared or developed by Executive, individually or jointly
with others, during Executive’s employment with Collective, or within six (6)
months thereafter, whether or not during working hours, and (ii) relate to
or
arise in any way out of (1) current and/or anticipated business and/or
activities of Collective, (2) Collective’s current and/or anticipated research
or development, (3) any work performed by Executive for Collective, and/or
(4)
any information or assistance provided by Collective, including but not limited
to Confidential Information.
(b)
Executive
shall promptly disclose to Collective all Work Product. All such Work Product
is
and shall forthwith become the property of Collective, or its designee, whether
or not patentable or copyrightable. Executive will execute promptly upon request
any documents or instruments at any time deemed necessary or proper by
Collective in order to formally convey and transfer to Collective or its
designee title to such Work Product, or to confirm Collective or its designee’s
title therein, and in order to enable Collective or its designee to obtain
and
enforce United States and foreign Letters Patent, Trademarks and Copyrights
thereon. Executive will perform Executive’s obligations under this Paragraph 6
without further compensation, except for reimbursement of reasonable
out-of-pocket expenses incurred at the request of Collective.
7. Disability.
If
Executive becomes Disabled and remains continuously so Disabled for a period
of
180 days, then Collective's obligations under this Agreement may be terminated
by notice in writing to that effect during the continuance of such Disability,
such termination to take effect the later of (a) the last day of the month
during which such notice is given or (b) the last day of such 180 day period.
If
Executive has made a previous election to participate in the Payless ShoeSource,
Inc. Long-Term Disability Plan (subject to the terms and provisions of that
plan), then the terms of that plan shall apply. "Disability" or "Disabled"
shall
mean disability as defined under the Payless ShoeSource, Inc. Long-Term
Disability Plan applicable to Executive.
8.
Termination.
(a) For
Cause; Voluntary Resignation; Death; Disability.
Collective may terminate Executive’s employment for Cause at any time upon
written notice to Executive, with immediate effect. Executive may voluntarily
resign from Collective at any time upon 30 days written notice to Collective;
provided, Collective may require Executive to cease working earlier and which
date shall be the termination date. If Executive’s employment terminates during
the Contract Term by reason of Executive’s death or Disability, by Executive’s
voluntary termination of employment, or by Collective for Cause:
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(i) Executive’s
basic compensation and employee benefits shall cease on the date of such
termination or resignation, except as otherwise provided in any applicable
employee benefit plan or program;
(ii) Executive
shall be entitled to receive Executive’s base salary through that date of
termination or resignation (including payment for any accrued but unused
vacation), payable within the first pay period following termination or
resignation;
(iii) Executive
will be reimbursed, in accordance with Collective policy, for any business
expenses properly incurred by Executive prior to the date of termination or
resignation;
(iv) Executive
shall be entitled to any equity-linked awards, consistent with the terms of
the
applicable award agreements;
(v)
Executive shall be entitled to such portion of any long-term cash incentive
compensation as shall be payable under the terms of the Incentive Plans;
and
(vi) Executive
will have the opportunity to continue coverage in Collective’s medical, dental,
and vision plans in which Executive is participating on the date of termination
or resignation, through COBRA.
(b) Without
Cause by Collective.
Collective may terminate Executive’s employment Without Cause at any time upon
written notice to Executive. If Executive’s employment is terminated Without
Cause:
(i) Executive’s
basic compensation and employee benefits shall cease on the date of such
termination, except as otherwise provided herein or in any applicable employee
benefit plan or program;
(ii) Executive
shall be entitled to receive Executive’s base salary through that date of
termination (including payment for any accrued but unused vacation);
(iii) Executive
will be reimbursed, in accordance with Collective policy, for any business
expenses properly incurred by Executive prior to the date of termination;
(iv) Provided
that Executive is not in violation of, and does not violate, any of Executive’s
obligations under Paragraphs 2, 4, 5, and 6 of this Agreement, Executive shall
be entitled to a severance payment in an amount equal to two (2)
times Executive’s
then current base salary at the time of termination of employment, payable
in a
lump sum, less applicable withholdings and deductions;
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(v)
Executive shall be entitled to the amount of any annual award payable to
Executive under the Incentive Plans for the fiscal year in which Executive’s
employment is terminated, prorated by the number of days Executive is actively
employed in that fiscal year divided by the number of days in the fiscal year,
and payable at the time and pursuant to the terms of such Incentive Plans,
less
applicable withholdings and deductions; provided, however, such Annual Award
must be paid no later than 2 ½ months from the end of Collective’s fiscal year
in which Executive’s employment terminates;
(vi)
Executive shall be entitled to any equity-linked awards, consistent with the
terms of the applicable award agreements;
(vii)
Executive shall be entitled to such portion of any long-term cash incentive
compensation as shall be payable under the terms of the Incentive Plans;
(viii)
Executive will receive a special payment which is the equivalent, before taxes,
to the portion paid by Collective towards 18 months of COBRA coverage under
Collective’s medical, dental and vision plans, to the extent Executive is
participating in such plan(s) on the date of termination; and.
(ix) Executive
shall receive executive-level outplacement services to be coordinated by the
Human Resources Department. Executive must commence utilizing the outplacement
services no later than 30 days following the date of termination or the right
to
such services will cease. Provided, however, the services in no event will
extend beyond 15 months following the date of termination.
(x) If
at the
time that Executive terminates employment Executive is a “key employee” within
the meaning of IRC Section 409A and regulation issued thereunder, then, if
necessary to comply with 409A, payment to Executive shall not be made until
six
(6) months after termination of employment and such payment shall be made in
a
lump sum, less applicable withholdings and deductions.
(c) "Cause"
means:
(i) an
act of
fraud, embezzlement, or theft against Collective, or any other violation of
the
law that is harmful to its operations (excluding minor traffic violations),
or
conviction of a felony;
(ii) grossly
negligent disclosure of Confidential Information contrary to the policy of
Collective;
(iii) material
breach of any of the terms of this Agreement, abuse of Executive’s position for
personal gain, or breach of Executive’s duties to Collective and its
shareholders;
(iv) engagement
in any competitive activity which would constitute a breach of Executive's
duty
of loyalty or of Executive's obligations under this Agreement;
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(v) grossly
negligent breach of any policy of Collective including those contained in
Collective’s Code of Ethics;
(vi) the
conviction of Executive, or a plea of guilty or nolo
contendre,
to any
crime involving moral turpitude;
(vii) the
willful and continued failure by Executive to substantially perform Executive's
duties with Collective (other than any such failure resulting from Executive's
incapacity due to physical or mental illness); or
(viii) the
willful engaging by Executive in conduct which is demonstrably or materially
injurious to Collective, monetarily or otherwise.
For
purposes of this Paragraph 8(c), an act, or a failure to act, shall not be
deemed "willful" or "intentional" unless it is done, or omitted to be done,
by
Executive in bad faith or without reasonable belief that Executive's action
or
omission was in the best interest of Collective, as determined by Collective’s
Senior Vice President-Human Resources. Failure to meet performance standards
or
objectives, by itself, will not constitute "Cause".
Collective
shall be entitled to suspend Executive with pay while investigating any conduct
that could constitute Cause.
(d) Executive
agrees that, in addition to any other remedies, and to the extent permitted
by
law and or plan, Collective shall be permitted, as part of the computation
of
any final amount due to Executive as compensation, wages, bonus, or otherwise,
and before any such amount shall be due and owing, to reduce any amount which
Collective may otherwise owe to Executive by any unpaid amount which Executive
owes to Collective.
(e) Executive’s
obligations under Paragraph 2 shall cease on the effective date of such
resignation or termination for whatever cause(s), Executive’s obligations under
the Agreement, including Paragraphs 4, 5, and 6, shall remain in full force
and
effect, and Collective shall be entitled to all legal and equitable rights
and
remedies under this Agreement, including all of its rights and remedies
referenced in Paragraph 10 of this Agreement.
(f) Upon
resignation or termination of employment due to whatever cause(s), Executive
shall return all property of Collective which is then or thereafter comes into
Executive’s possession, including but not limited to documents, contracts,
agreements, plans, photographs, books, notes, records, computer diskettes and
tapes, and any other electronically stored data and all copies of the foregoing,
as well as an other material or equipment supplied by Collective, keys, credit
cards, and equipment, and delete from Executive’s own computer or other
electronic storage medium any Confidential Information. Executive shall also
sign all documents necessary for Executive's immediate resignation as an officer
of Collective.
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(g) The
payments and other benefits provided in Paragraph 8 are not made pursuant to
any
welfare benefit or pension plan as defined by the Employee Retirement Income
Security Act of 1974.
9. Release
and Waiver of Claims.
The
parties agree that payment of severance and other benefits provided in Paragraph
8 shall constitute payment in full for all compensation due to Executive, are
in
lieu of any benefits which Executive may otherwise be entitled under any
Collective severance plans, and constitute full and complete discharge of any
and all claims which Executive might otherwise have or purport to have with
respect to any period subsequent to the effective date of such resignation
or
termination, for the payment of compensation, or any additional benefits
provided by Collective to Executive. Provided, however, the payments of the
amounts specified in Paragraph 8(b)(iv),(v),(viii) and (ix) are contingent
upon
Executive signing a Separation Agreement and General Release, prior to
payment.
10. Remedies.
Executive acknowledges and agrees that the restrictions in this Agreement are
reasonable in order to protect Collective’s expectations and rights under this
Agreement and to provide Collective with the protections it needs to, among
other things, safeguard its Confidential Information. Executive agrees that
any
breach or threatened breach of Paragraphs 4, 5, or 6 of this Agreement by
Executive will cause immediate irreparable injury to Collective, for which
an
award of damages alone may be inadequate. Therefore, Collective shall be
entitled, in addition to any other legal or equitable right or remedy it may
have, to temporary, preliminary, and permanent injunctive relief restraining
such breach or threatened breach of Paragraphs 4, 5, or 6 of this Agreement.
Moreover, any award of injunctive relief shall not preclude Collective from
seeking or recovering any lawful compensatory damages which may have resulted
from a breach of this Agreement, including forfeiture of any payments not yet
made and return of any payments already received by Executive. In the event
Collective is successful in any suit or proceeding relating to the enforcement
of this Agreement, Executive agrees to pay Collective’s fees, costs and
expenses, including attorneys’ fees.
11. Representations
of Executive.
Executive hereby represents and warrants that the execution and delivery of
this
Agreement and Executive’s employment with Collective do not violate any previous
employment agreement or other contractual obligation of Executive with any
other
party. Executive has not disclosed, and will not disclose, to Collective any
information, whether confidential, proprietary or otherwise, which Executive
is
not legally free to disclose. Executive shall abide by the terms of any
nondisclosure or confidentiality agreement between Collective and any other
parties.
12. Severability.
The
invalidity or unenforceability of any provision, or portion thereof, of this
Agreement shall not affect the remainder of that provision or any other
provision of the Agreement. If any clause is deemed overly broad, illegal,
invalid, or unenforceable with respect to the duration of time or the geographic
scope, then such clause shall automatically be amended to the extent (but only
to the extent) necessary to make it sufficiently narrow in scope, time and
geographic area so that it shall be enforceable, and that it is not illegal,
void or unenforceable. All other remaining terms and provisions shall remain
in
full force and effect.
13. Entire
Agreement.
With
the sole exception of the Change of Control Agreement dated September 4, 2007,
and the Indemnification Agreement dated September 4, 2007, each between
Collective and Executive, and each amended from time to time (collectively,
the
“Related Agreements”), the entire understanding and agreement between the
parties has been incorporated into this Agreement, and this Agreement supersedes
all other employment agreements or other arrangements (except the Related
Agreements), whether oral or written, with respect to the subject matter
contained herein. This Agreement may be executed in counterparts, in which
case
each of the two counterparts shall be deemed to be an original and the final
counterpart shall be deemed to have been executed in Topeka,
Kansas.
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14. Amendment,
Breach and Waiver.
This
Agreement may not be changed, amended, or modified in any manner except by
a
written instrument in writing signed by both the parties hereto, except that
if
IRC Section 409A
is
determined to have applicability to any portion of this Agreement, with the
effect that Executive shall have no right to any payment hereunder prior to
six
months from employment termination, this Agreement may be amended by Collective
to comply with IRC Section 409A. The failure of either party to enforce at
any
time any of the provisions of this Agreement shall in no way be construed to
be
a waiver of any of such provision, or of the right to such party thereto to
enforce each and every such provision in the event of a subsequent
breach.
15. Successors
and Assigns.
This
Agreement and/or the rights hereunder shall be freely assignable by Collective.
This Agreement shall inure to the benefit of, and be binding upon, any entity
which shall succeed to Collective’s business. Being a contract for personal
services, neither this Agreement nor any rights hereunder, shall be assigned
by
Executive, and any such attempts or purported assignment shall be null and
void.
16. Third
Party Beneficiary.
Each
CBI direct and indirect subsidiary is a third party beneficiary of this
Agreement with respect to, among other things, the protection of each such
subsidiary’s interest in such subsidiary’s Confidential Information, customer
goodwill, relationships and contacts, and each such subsidiary has the full
rights and power to enforce the rights, interests and obligations under this
Agreement of or relating to such subsidiary.
17. Governing
Law; Choice of Forum.
This
Agreement, and any questions relating or regarding the validity, interpretation,
or performance, shall be governed by and construed in accordance with the laws
of the State of Kansas, without reference to the conflicts or choice of law
principles thereof. Collective and Executive agree that any action to enforce
any provision of this Agreement shall be filed and litigated exclusively in
any
state court or federal court located in the City of Topeka, Kansas, or in
Shawnee County, Kansas. Collective and Executive hereby waive any defense of
lack of personal jurisdiction or venue in such courts and agree that process
may
be served, if made upon Collective, upon Collective’s registered agent (with a
copy to Collective’s General Counsel), or if made upon Executive, at Executive’s
last known address on the records of Collective.
BY
SIGNING THIS AGREEMENT, EXECUTIVE HEREBY CERTIFIES THAT EXECUTIVE (A) HAS
RECEIVED A COPY OF THIS AGREEMENT FOR REVIEW AND STUDY BEFORE SIGNING IT; (B)
HAS READ THIS AGREEMENT CAREFULLY BEFORE SIGNING IT; (C) HAS HAD SUFFICIENT
OPPORTUNITY TO REVIEW THE AGREEMENT WITH ANY ADVISOR WHICH EXECUTIVE MAY DESIRE
TO CONSULT, INCLUDING LEGAL COUNSEL; (D) HAS HAD SUFFICIENT OPPORTUNITY BEFORE
SIGNING IT TO ASK ANY QUESTIONS EXECUTIVE HAS ABOUT THIS AGREEMENT AND HAS
RECEIVED SATISFACTORY ANSWERS TO ALL SUCH QUESTIONS; AND (E) UNDERSTANDS
EXECUTIVE'S RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT.
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
EXECUTIVE
/s/
Xxxxxxx X. Treff______
Xxxxxxx
X. Xxxxx
By: /s/
Xxx X. Xxxxx
Its: Senior
Vice President - Human Resources
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