AGREEMENT AND GENERAL RELEASE
THIS AGREEMENT AND GENERAL RELEASE ("Agreement") is entered into by and
between XXXXXX XXXXXXX 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 FOOTSTAR shall be January 31, 2003.
2. FOOTSTAR agrees to pay Employee an amount equal to 78 weeks pay
calculated to be $408,000.00 (Four Hundred Eight Thousand Dollars and 00
cents). Said payment to be paid to Employee in (39) biweekly
installments of $10,461.54 (Ten Thousand Four Hundred Sixty One Dollars
and 54 cents), less all required withholdings and/or deductions,
provided FOOTSTAR is in receipt of a fully executed original of this
Agreement. Employee acknowledges that such consideration is separate
from and in addition to any Company compensation and/or benefits due
Employee.
3. FOOTSTAR agrees not to contest any claim by Employee for unemployment
benefits.
4. EMPLOYEE BENEFIT PLANS: During the period in which payments are being
made pursuant to Paragraphs (2) 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 immediately preceding
Employee's separation. 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 Employee is eligible to elect medical coverage 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 January 31, 2003.
5. CAREER EQUITY PLAN (CEP): Employee shall immediately vest in and have
delivered to him all outstanding shares in his Career Equity Plan
account relating to completed performance cycles as soon as practicable
after January 31, 2003.
6. DEFERRED RESTRICTED STOCK: Employee shall receive a pro-rata amount of
Employee's Deferred Restricted Stock as soon as practicable after
January 31, 2003 which amount shall be calculated by multiplying the
amount of such stock by a fraction the numerator of which shall be the
completed years of employment with the Company following the date such
stock was awarded and the denominator of which shall be five (5).
7. SWITCH TO EQUITY PLAN (STEP): Employee shall receive as soon as
practicable after January 31, 2003 (a) 100% of the Employee's deferred
vested shares and (b) Company "matching" shares equal to the number of
unvested matching shares multiplied by a fraction the numerator of which
shall be the number of completed months of employment with the Company
following the date on which such "match" was granted and the denominator
of which shall be sixty (60).
8. STOCK OPTIONS: Employee shall continue to vest in any outstanding stock
options through January 31, 2003 and shall have the right to exercise
such stock options pursuant to the terms of such options through the
last day a payment is made pursuant to Paragraph (2), or the remainder
of the exercise period, if less. Employee shall not be eligible for any
additional stock option grants and shall forfeit any stock options
vested as of January 31,2003 and shall forfeit any stock options vested
as of January 31, 2003 but not exercised as of the last day a payment is
made pursuant to Paragraph (2), or the end of the exercise period, if
less.
9. ASSOCIATE STOCK PURCHASE PLAN (ASPP): Employee shall not be entitled to
participate in the Associate Stock Purchase Plan after January 31, 2003.
10. 401 (K) PROFIT SHARING PLAN: Employee shall not be entitled to make
contributions to his 401(k) account after January 31, 2003.
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11. It is agreed that the sums paid in accordance with Paragraphs (2) (5)
(6) (7) and (8) 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; except for any unused, accrued 2003
vacation time.
12. 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 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. Section 1981 through
1988, CEPA (N.J.S.A. 34:19-1 et.seq.), the Occupational Safety
and Health 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 or any other local, state or
federal law, ordinance and regulation, or under common law.
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(B) Other than pursuant to a valid subpoena, court order commanding
attendance or testimony, or as may otherwise be provided by law:
(i) Employee will not instigate the commencement of, or
participate or assist in, any actions, suits or causes of action
or claims on behalf of Employee or other persons against the
Company, that in any way involves the subject matter of this
Agreement; and (ii) Employee will not instigate the commencement
of, or participate or assist in any actions, suits or causes of
action or claims brought by or on behalf of any present or
previous employees against the Company unless otherwise provided
by law. Nothing herein is intended to or shall preclude Employee
from cooperating with federal, state, local government or law
enforcement agencies in any investigation. Employee, however,
shall not be entitled to any relief, recovery or monies in
connection with any action, suit, cause of action, or claim
brought against 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 12(A) above as well as to FOOTSTAR, itself.
13. Employee agrees to cooperate with the Company by making himself
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 Employee,
for all reasonable and necessary out of pocket expenses incurred in
connection with his provision of testimony or assistance (excluding
attorneys fees which will only be covered to the extent covered by the
Directors and Officers liability policy in effect during Employee's
service as an officer of the Company). A breach of this provision by
Employee shall be considered a material breach of this Agreement.
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14. LIABILITY INSURANCE. INDEMNIFICATION. The Company acknowledges that
Employee 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 Employee 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 employee of the Company, the Employee
shall be indemnified and held harmless by the Company 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
settlement) reasonably incurred or suffered by the Employee in
connection therewith. The Company has provided Employee with a copy of
the Directors and Officers liability insurance policy in effect during
Employee's employment as an Officer of the Company.
15. Employee represents and agrees that Employee will keep confidential and
shall not disclose or discuss the contents 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, potential future employers
to the extent necessary, 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.
16. 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 12(A) above, that are
disparaging, derogatory or defamatory to them. Employee further agrees
that he shall not make or publish any written or oral statements or
opinions regarding Employer, including its present and former employees,
officers and directors. Employee agrees only to state that employee was
employed by Employer, the position held, the dates of Employee's
employment and Employee's compensation. Notwithstanding the foregoing
provisions, nothing herein shall preclude Employee from making
statements to any appropriate agency of the federal, state or local
government, or if compelled by legal process. A breach of this provision
shall be considered a material breach of this Agreement.
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17. Employee agrees that in Employee's position as Senior Vice President
Finance, 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. A breach of this provision shall be
considered a material breach of this Agreement.
18. Employee covenants and agrees that through July 31, 2004, Employee will
not directly or indirectly, solicit, hire or engage on behalf of
Employee or any other person or entity, any person known to Employee to
be a current (as of the date of the signing of this Agreement and/or as
of the time of such solicitation or hiring) employee or representative
of the Company. Employee 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 Employee to be a currrent (as of the date of the signing
of this Agreement and/or as of the time of such solicitation or hiring)
employee or representative of the Company, nor will Employee directly or
indirectly intentionally encourage or induce any person or entity or any
person that is known to Employee to be a current (as of the date of the
signing of this Agreement and/or as of the time of such solicitation or
hiring) 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. A breach of this
provision shall be considered a material breach of this Agreement.
19. Employee covenants and agrees that through July 31, 2004, Employee will
not engage in Competition with the Company or any Subsidiary.
"Competition" shall mean engaging in any activity for a Competitor of
the Company whether as an employee, consultant, principal, agent,
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officer, director, partner, shareholder (except as a less than one
percent shareholder of a publicly traded company) or otherwise.
"Competitor" shall mean (a) Payless Shoe Source, Wal-Mart, Kmart,
Kohl's, Footlocker (including but not limited to Kid's Footlocker, Lady
Footlocker and Xxxxxxxxxx.xxx) Finish Line, Genesco, Sports Authority,
Shoe Carnival, Shoe Department, Designer Shoe Warehouse, Xxxxx Shoe,
Famous Footwear, Target, Sears and X.X. Xxxxxx (and any successor or
successors thereto) and (b) any e-commerce or catalog business which
sells Discount, Value /Moderate Priced or Athletic footwear. If the
Employee commences employment or becomes a consultant, principal, agent,
officer, director, partner or shareholder of any entity that is not a
Competitor at the time the Employee initially becomes employed or
becomes a consultant, principal, agent, officer, director, partner or
shareholder of the entity, future activities of the entity shall not
result in a violation of this provision unless (x) such activities were
contemplated at the time the Employee initially became employed or
becomes a consultant, principal, agent, officer, director, partner or
shareholder of the entity (and the contemplation of such activities was
known to the Employee) or (y) the Employee commences directly or
indirectly overseeing or managing the activities which are competitive
with the activities of the Company or Subsidiary. The Employee shall not
be deemed directly or indirectly overseeing or managing the activities
which are competitive with the activities of the Company or Subsidiary
so long as he does not regularly participate in discussions with regard
to the competing business. A breach of this provision shall be
considered a material breach of this Agreement.
20. Employee covenants and agrees that Employee will direct all prospective
employer inquiries to Xxxx Xxxxxxxx, Senior Vice President Human
Resources of Footstar at Xxx Xxxxxxxxx Xxxxxx, Xxxx Xxxxx, XX 00000
21. 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 (including but not limited to reasonable
attorneys in enforcing the agreement) 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.
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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.
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 Employee 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.
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29. Employee acknowledges that Employee has been provided with, and has read
a copy of the Agreement. Employee further acknowledges that Employee has
had a reasonable period of time to examine the terms and conditions
contained in this Agreement and has been advised to consult with an
attorney before signing 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.
30. 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 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 EMPLOYEE: ___________________, or to such other person and/or place
as Employee may designate in writing to the Company. 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 Employee.
32. This Agreement shall be binding and shall inure to the benefit of the
parties and their respective heirs, legal representatives, successors
and assigns.
(INTENTIONALLY LEFT BLANK)
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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
consisting of [9] pages including this signature page.
FOOTSTAR: EMPLOYEE:
By: XXXXXXX X. XXXXXX By: XXXXXX XXXXXXX
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Xxxxxxx X. Xxxxxx Xxxxxx Xxxxxxx
Executive Vice President & CFO
Sworn and subscribed Sworn and subscribed
before me on this before me on this
11 day of FEBRUARY , 2003 31ST day of JANUARY__, 2003
XXXXX XXXXXXXXX XXXXX X. XXXXXX
----------------- ----------------
Notary Public Notary Public
My Commission Expires: 12/10/05 My Commission Expires:
JULY 3, 2007
By: XXXX X. XXXXXXXX
-----------------
Xxxx X. Xxxxxxxx
Senior Vice President Human Resources
Footstar
Sworn and subscribed
before me on this
11 day of __FEB.___, 2003
XXXXX XXXXXXXXX
-------------------
Notary Public
My Commission Expires: 12/10/05
XXXXX XXXXXXXXX
Notary Public, State of New York
No. 01PE6067335
Qualified in Rockland County
Commission Expires 12/10/2005
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