Exhibit 10(f)
SEVERANCE AGREEMENT
SEVERANCE AGREEMENT (the "Agreement") dated July 27, 1998
("Effective Date") between Brian C. Cook ("Employee") and Brown
Group, Inc., a New York corporation (as further defined in
Section 14, the "Company").
WHEREAS, in order to accomplish its objectives, the Company
believes it is essential that members of its Operating Committee,
such as Employee, be encouraged to remain with the Company during
management transition and thereafter and in the event there is
any change in corporate structure which results in a Change in
Control.
WHEREAS, Employee wishes to have the protection provided for
in this Agreement and, in exchange for such protection, is
willing to give to the Company, under certain circumstances, his
covenant not to compete.
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions.
a. "Cause" means (i) engaging by Employee in willful
misconduct which is materially injurious to the Company;
(ii) conviction of the Employee of a felony; (iii) engaging
by Employee in fraud, material dishonesty or gross
misconduct in connection with the business of the Company;
(iv) engaging by Employee in any act of moral turpitude
reasonably likely to materially and adversely affect the
Company or its business; or (v) habitual use by Employee of
narcotics or alcohol.
b. "Change of Control" means (i) any person other
than the Company acquiring more than 25 percent of the
Company's Common Stock through a tender offer, exchange
offer or otherwise; (ii) the liquidation or dissolution of
the Company following the sale of all or substantially all
of its assets; or (iii) the Company not being the surviving
parent corporation resulting from any merger or
consolidation to which it has been a party.
c. "Competitor" shall mean any person, firm,
corporation, partnership or other entity which in its prior
fiscal year had annual gross sales volume or revenues of
shoes of more than $20,000,000 or is reasonably expected to
have such sales or revenues in either the current fiscal
year or the next following fiscal year.
d. "Confidential Information" shall have the meaning
set forth in Section 11.
e. "Customer" shall mean any wholesale customer of
the Company which either purchased from the Company during
the one (1) year immediately preceding the Termination Date,
or is reasonably expected by the Company to purchase from
the Company in the one (1) period immediately following the
Termination Date, more than $1,000,000 in shoes.
f. "Good Reason," when used with reference to a
voluntary termination by Employee of his employment with the
Company, shall mean (i) a reduction in Employee's base
salary as in effect on the date hereof, or as the same may
be increased from time to time; or (ii) a reduction in
Employee's status, position, responsibilities or duties.
g. "Term" means the period commencing on the
Effective Date and terminating three years after the
Effective Date; provided, however, that the Term shall
automatically be extended for successive additional one year
periods unless either party to this Agreement provides the
other party with notice of termination of this Agreement at
least six months prior to the expiration of such one year
periods.
h. "Termination Date" shall mean the effective date
as provided hereunder of the termination of Employee's
employment.
2. Termination During Term -- Change in Control Severance
Inapplicable.
a. Employee's employment may be terminated by the
Company for Cause at any time, effective upon the giving to
Employee of a written notice of termination specifying in
detail the particulars of the conduct of Employee deemed by
the Company to justify such termination for Cause.
b. Employee's employment may be terminated by the
Company without Cause at any time, effective upon the giving
to Employee of a written notice of termination specifying
that such termination is without Cause.
c. Employee may terminate his employment with the
Company at any time.
d. Upon a termination by the Company of Employee's
employment for Cause during the Term, but prior to a Change
in Control or more than 24 months after a Change in Control,
Employee shall be entitled only to the payments specified in
Sections 3.a. and 6 below. Upon a termination by the
Company of Employee's employment without Cause during the
Term, but prior to a Change in Control or more than 24
months after a Change in Control, Employee shall be entitled
to all of the payments and benefits specified in Sections 3
and 6 below.
e. If Employee voluntarily terminates his employment
during the Term, but prior to a Change in Control or more
than 24 months after a Change in Control, he shall notify
Employer in writing if he believes the termination is for
Good Reason. Employee shall set forth in reasonable detail
why Employee believes there is Good Reason. If such
termination is for Good Reason, Employee shall be entitled
to all of the payments and benefits specified in Sections 3
and 6 below. If such voluntary termination is for other
than Good Reason, then Employee shall be entitled only to
the payments specified in Sections 3.a. and 6 below.
3. Payments and Benefits Upon Termination During Term --
Change in Control Severance Inapplicable. To the extent provided
in Section 2 above, upon termination of his employment during the
Term, but prior to a Change in Control or more than 24 months
after a Change in Control, Employee shall receive the following
payments and benefits:
a. The Company shall pay to Employee on the
Termination Date (i) the full base salary earned by employee
through the Termination Date and unpaid at the Termination
Date, plus (ii) credit for any vacation earned by Employee
but not taken at the Termination Date, plus (iii) all other
amounts earned by Employee and unpaid as of the Termination
Date.
b. The Company shall continue to pay to Employee his
base monthly salary at the highest rate in effect at any
time during the twelve months immediately preceding the
Termination Date (including his targeted bonus in the
current year) for the eighteen months succeeding his
Termination Date. Such amounts shall be paid in accordance
with the Company's regular pay period policy for its
employees.
c. The Company, at its expense, shall provide to
Employee for a period of eighteen months after the
Termination Date medical and/or dental coverage under the
medical and dental plans maintained by the Company. Upon
Employee's re-employment during such period, to the extent
covered by the new Employer's Plan, coverage under the
Company's plan shall lapse. Additionally, the Company shall
make a cash lump sum payment in an amount equal to the sum
of (i) and (ii) below:
(i) The fair market value (determined as of
the Termination Date) of that number of shares of
non-vested restricted stock of the Company held by the
Employee which would have vested within the eighteen
month period following the Employee's Termination Date
had the Employee remained employed with the Company;
plus
(ii) With respect to each non-vested option
to purchase Company stock held by the Employee which
would have vested within the eighteen month period
following the Employee's Termination Date had the
Employee remained employed with the Company, the
excess, if any, of the fair market value (determined as
of the Termination Date) of the Company stock subject
to such option over the exercise price of such option.
Employee's participation in and/or coverage under all other
employee benefit plans, programs or arrangements sponsored
or maintained by the Company shall cease effective as of the
Termination Date.
d. The Company shall pay the reasonable costs of
outplacement services selected by the Company.
e. For purposes of determining Employee's benefit
under the Brown Group, Inc. Supplemental Employment
Retirement Plan, an additional 1.5 years of Credited Service
shall be credited to the Employee's actual or deemed
Credited Service.
4. Termination Within 24 Months After a Change in Control
Which Occurs During the Term.
a. Employee's employment may be terminated by the
Company for Cause at any time, effective upon the giving to
Employee of written notice of termination specifying in
detail the particulars of the conduct of Employee deemed by
the Company to justify such termination for Cause.
b. Employee's employment may be terminated by the
Company without Cause at any time, effective upon the giving
to Employee of a written notice of termination specifying
that such termination is without Cause.
c. Employee may terminate his employment with the
Company at any time.
d. Upon a termination by the Company of Employee's
employment for Cause within 24 months after a Change in
Control which occurs during the Term, Employee shall be
entitled only to the payments specified in Sections 5.a. and
6 below. Upon a termination by the Company of Employee's
employment without Cause within 24 months after a Change in
Control which occurs during the Term, Employee shall be
entitled to all of the payments and benefits specified in
Sections 5 and 6 below.
e. If Employee voluntarily terminates his employment
within 24 months after a Change in Control which occurs
during the Term, he shall notify the Company in writing if
he believes the termination is for Good Reason. Employee
shall set forth in reasonable detail why Employee believes
there is Good Reason. If such termination is for Good
Reason, Employee shall be entitled to all of the payments
and benefits specified in Sections 5 and 6 below. If such
voluntary termination is for other than Good Reason, then
Employee shall be entitled only to the payments specified in
Sections 5.a. and 6 below.
5. Payments and Benefits Upon Termination Within 24 Months
after a Change in Control Which Occurs During Term. To the
extent provided in 4 above, upon termination of his employment
within 24 months after a Change in Control which occurs during
the Term, Employee shall receive the following payments and
benefits:
a. The Company shall pay to Employee on the
Termination Date (i) the full base salary earned by employee
through the Termination Date and unpaid at the Termination
Date, plus (ii) credit for any vacation earned by Employee
but not taken at the Termination Date, plus (iii) all other
amounts earned by Employee and unpaid as of the Termination
Date.
b. The Company shall pay to Employee in a lump sum
not later than 30 days after his Termination Date an amount
equal to 250 percent of the sum of (i) his base annual
salary at the highest rate in effect at any time during the
twelve months immediately preceding the Termination Date,
and (ii) his targeted bonus for the current year. In
addition, the Company shall pay to Employee his targeted
bonus payment for the year of termination prorated to the
Termination Date.
c. The Company, at its expense, shall provide to
Employee for a period of thirty months after the Termination
Date medical and/or dental coverage under the medical and
dental plans maintained by the Company. Upon Employee's re-
employment during such period, to the extent covered by the
new employer's plan, coverage under the Company's plan shall
lapse. Employee's participation in and/or coverage under
all other employee benefit plans, programs or arrangements
sponsored or maintained by the Company shall cease effective
as of the Termination Date.
d. The Company shall pay the reasonable costs of
outplacement services selected by the Company.
e. For purposes of determining Employee's benefit
under the Brown Group, Inc. Supplemental Employment
Retirement Plan, an additional 2.5 years of Credited Service
shall be credited to the Employee's actual or deemed
Credited Service.
6. Termination at Any Time. Notwithstanding anything in
this Agreement to the contrary and in addition to any benefit
provided under Section 3.e. or 5.e. above, for purposes of
determining Employee's benefit under the Brown Group, Inc.
Supplemental Employment Retirement Plan, an additional 10 (ten)
years of Credited Service shall be credited to the Employee's
actual or deemed Credited Service. This provision shall continue
in effect after the Term has expired.
7. Mitigation or Reduction of Benefits. Employee shall
not be required to mitigate the amount of any payment provided
for in Section 3 or Section 5 by seeking other employment or
otherwise. Except as otherwise specifically set forth herein,
the amount of any payment or benefits provided in Section 3 or
Section 5 shall not be reduced by any compensation or benefits or
other amounts paid to or earned by Employee as the result of
employment by another employer after the Termination Date or
otherwise.
8. Employee Expenses After Change in Control. If
Employee's employment is terminated by the Company within 24
months after a Change in Control which occurs during the Term and
there is a dispute with respect to this Agreement, then all
Employee's costs and expenses (including reasonable legal and
accounting fees) incurred by Employee (a) to defend the validity
of this Agreement, (b) if Employee's employment has been
terminated for Cause, to contest such termination, (c) to contest
any determinations by the Company concerning the amounts payable
by the Company under this Agreement, or (d) to otherwise obtain
or enforce any right or benefit provided to Employee by this
Agreement, shall be paid by the Company if Employee is the
prevailing party.
9. Release. Notwithstanding anything to the contrary
stated in this Agreement, no benefits will be paid pursuant to
Sections 3 and 5 except under Sections 3.a. and 5.a. prior to
execution by Employee of a release to the Company in the form
attached as Exhibit A.
10. Covenant Not to Compete. Benefits payable pursuant to
Sections 3.b, 3.c, and 3.e are subject to the following
restrictions.
a. Post-Termination Restrictions.
i. Employee acknowledges that (i) the Company
has spent substantial money, time and effort over the years
in developing and solidifying its relationships with its
customers throughout the world and in developing its
Confidential Information; (ii) under this Agreement, the
Company is agreeing to provide Employee with certain
benefits based upon Employee's assurances and promises
contained herein not to divert the Company's customers'
goodwill or to put himself in a position following his
employment with Company in which the confidentiality of
Company's Confidential Information might somehow be
compromised.
ii. Accordingly, Employee agrees that, for
eighteen (18) months after a Termination Date described in
the second sentence of Section 2.d, Employee will not,
directly or indirectly, on Employee's own behalf or on
behalf of any other person, firm, corporation or entity
(whether as owner, partner, consultant, employee or
otherwise):
A. provide any executive- or
managerial-level services in the shoe industry in the
United States in competition with the Company, for any
Competitor;
B. hold any executive- or managerial-level
position with any Competitor in the United States;
C. engage in any research and development
activities or efforts for a Competitor, whether as an
employee, consultant, independent contractor or
otherwise, to assist the Competitor in competing in the
shoe industry in the United States;
D. cause or attempt to cause any Customer
to divert, terminate, limit, modify or fail to enter
into any existing or potential relationship with the
Company;
E. cause or attempt to cause any shoe
supplier or manufacturer of the Company to divert,
terminate, limit, modify or fail to enter into any
existing or potential relationship with the Company;
and
F. solicit, entice, employ or seek to
employ, in the shoe industry, any executive- or
managerial-level employee of, or any consultant or
advisor to, the Company.
b. Acknowledgment Regarding Restrictions. Employee
recognizes and agrees that the restraints contained in
Section 10.a. (both separately and in total) are reasonable
and should be fully enforceable in view of the high-level
positions Employee has had with the Company, the national
and international nature of both the Company's business and
competition in the shoe industry, and the Company's
legitimate interests in protecting its Confidential
Information and its customer goodwill and relationships.
Employee specifically hereby acknowledges and confirms that
he is willing and intends to, and will, abide fully by the
terms of Section 10.a. of this Agreement. Employee further
agrees that the Company would not have adequate protection
if Employee were permitted to work for its competitors in
violation of the terms of this Agreement since the Company
would be unable to verify whether (i) its Confidential
Information was being disclosed and/or misused, and
(ii) Employee was involved in diverting or helping to divert
the Company's customers and/or its customer goodwill.
c. Company's Right to Injunctive Relief. In the
event of a breach or threatened breach of any of Employee's
duties and obligations under the terms and provisions of
Section 10.a. of this Agreement, the Company shall be
entitled, in addition to any other legal or equitable
remedies it may have in connection therewith (including any
right to damages that it may suffer), to temporary,
preliminary and permanent injunctive relief restraining such
breach or threatened breach. Employee hereby expressly
acknowledges that the harm which might result to Company's
business as a result of noncompliance by Employee with any
of the provisions of Section 10.a. would be largely
irreparable. Employee specifically agrees that if there is
a question as to the enforceability of any of the provisions
of Section 10.a. hereof, Employee will not engage in any
conduct inconsistent with or contrary to such Section until
after the question has been resolved by a final judgment of
a court of competent jurisdiction. Employee undertakes and
agrees that if Employee breaches or threatens to breach the
Agreement, Employee shall be liable for any attorneys' fees
and costs incurred by Company in enforcing its rights
hereunder.
d. Employee Agreement to Disclose this Agreement.
Employee agrees to disclose, during the eighteen month
period following a Termination Date described in the second
sentence of Section 2.d, the terms of this Section 10 to any
potential future employer.
11. Confidential Information. The Employee acknowledges
and confirms that certain data and other information (whether in
human or machine readable form) that comes into his possession or
knowledge (whether before or after the date of this Employment
Agreement) and which was obtained from the Company, or obtained
by the Employee for or on behalf of the Company, and which is
identified herein is the secret, confidential property of the
Company (the "Confidential Information"). This Confidential
Information includes, but is not limited to:
a. lists or other identification of customers or
prospective customers of the Company (and key individuals
employed or engaged by such parties);
b. lists or other identification of sources or
prospective sources of the Company's products or components
thereof (and key individuals employed or engaged by such
parties);
c. all compilations of information, correspondence,
designs, drawings, files, formulae, lists, machines, maps,
methods, models, notes or other writings, plans, records,
regulatory compliance procedures, reports, specialized or
technical data, schematics, source code, object code,
documentation, and software used in connection with the
development, manufacture, fabrication, assembly, marketing
and sale of the Company's products;
d. financial, sales and marketing data relating to
the Company or to the industry or other areas pertaining to
the Company's activities and contemplated activities
(including, without limitation, manufacturing,
transportation, distribution and sales costs and non-public
pricing information);
e. equipment, materials, procedures, processes, and
techniques used in, or related to, the development,
manufacture, assembly, fabrication or other production and
quality control of the Company's products and services;
f. the Company's relations with its customers,
prospective customers, suppliers and prospective suppliers
and the nature and type of products or services rendered to
such customers (or proposed to be rendered to prospective
customers);
g. the Company's relations with its employees
(including, without limitation, salaries, job
classifications and skill levels); and
h. any other information designated by the Company to
be confidential, secret and/or proprietary (including
without limitation, information provided by customers or
suppliers of the Company).
Notwithstanding the foregoing, the term "Confidential
Information" shall not consist of any data or other information
which has been made publicly available or otherwise placed in the
public domain other than by the Employee in violation of this
Employment Agreement.
12. Certain Additional Payments by the Company.
a. Anything in this Agreement to the contrary
notwithstanding and except as set forth below, in the event
it shall be determined that any payment or distribution by
the Company to or for the benefit of the Employee (whether
paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise, but determined
without regard to any additional payments required under
this Section) (a "Payment") would be subject to the excise
tax imposed by Section 4999 of the Internal Revenue Code of
1986, as amended (the "Code"), or any interest or penalties
are incurred by the Employee with respect to such excise tax
(such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the
"Excise Tax"), then the Employee shall be entitled to
receive an additional payment (a "Gross-Up Payment") in an
amount such that after payment by the Employee of all taxes
(including any interest or penalties imposed with respect to
such taxes), including, without limitation, any income taxes
(and any interest and penalties imposed with respect
thereto) and Excise Tax imposed upon the Gross-Up Payment,
the Employee retains an amount of the Gross-Up Payment equal
to the Excise Tax imposed upon the Payments.
Notwithstanding the foregoing provisions of this
Section 12.a., if it shall be determined that the Employee
is entitled to a Gross-Up Payment, but that the Payments do
not exceed 110 percent of the greatest amount (the "Reduced
Amount") that could be paid to the Employee such that the
receipt of Payments would not give rise to any Excise Tax,
then no Gross-Up Payment shall be made to the Employee, and
the Payments, in the aggregate, shall be reduced to the
Reduced Amount.
b. Subject to the provisions of Section 12.c., all
determinations required to be made under this Section 12,
including whether and when a Gross-Up Payment is required
and the amount of such Gross-Up Payment and the assumptions
to be utilized in arriving at such determination, shall be
made by Ernst & Young or such other certified public
accounting firm as may be designated by the Employee (the
"Accounting Firm") which shall provide detailed supporting
calculations both to the Company and the Employee within 15
business days of the receipt of notice from the Employee
that there has been a Payment, or such earlier time as is
requested by the Company. In the event that the Accounting
Firm is serving as accountant or auditor for the individual,
entity or group effecting the Change of Control, the
Employee shall appoint another nationally recognized
accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to
as the Accounting Firm hereunder). All fees and expenses of
the Accounting Firm shall be borne solely by the Company.
Any Gross-Up Payment, as determined pursuant to this
Section 12, shall be paid by the Company to the Employee
within five days of the receipt of the Accounting Firm's
determination. Any determination by the Accounting Firm
shall be binding upon the Company and the Employee. As a
result of the uncertainty in the application of Section 4999
of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up
Payments which will not have been made by the Company should
have been made ("Underpayment"), consistent with the
calculations required to be made hereunder. In the event
that the Company exhausts its remedies pursuant to Section
12.c. and the Employee thereafter is required to make a
payment of any Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment that has occurred
and any such Underpayment shall be promptly paid by the
Company to or for the benefit of the Employee.
c. The Employee shall notify the Company in writing
of any claim by the Internal Revenue Service that, if
successful, would require the payment by the Company of the
Gross-Up Payment. Such notification shall be given as soon
as practicable but no later than ten business days after the
Employee is informed in writing of such claim and shall
apprise the Company of the nature of such claim and the date
on which such claim is requested to be paid. The Employee
shall not pay such claim prior to the expiration of the 30-
day period following the date on which the Employee gives
such notice to the Company (or such shorter period ending on
the date that any payment of taxes with respect to such
claim is due). If the Company notifies the Employee in
writing prior to the expiration of such period that it
desires to contest such claim, the Employee shall:
i. give the Company any information reasonably
requested by the Company relating to such claim,
ii. take such action in connection with
contesting such claim as the Company shall reasonably
request in writing from time to time, including,
without limitation, accepting legal representation with
respect to such claim by an attorney reasonably
selected by the Company,
iii. cooperate with the Company in good faith in
order to effectively contest such claim, and
iv. permit the Company to participate in any
proceedings relating to such claim;
provided, however, that the Company shall bear and pay
directly all costs and expenses (including additional
interest and penalties) incurred in connection with such
contest and shall indemnify and hold the Employee harmless,
on an after-tax basis, for any Excise Tax or income tax
(including interest and penalties with respect thereto)
imposed as a result of such representation and payment of
costs and expenses. Without limitation on the foregoing
provisions of this Section 12.c., the Company shall control
all proceedings taken in connection with such contest and,
at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such
claim and may, at its sole option, either direct the
Employee to pay the tax claimed and sue for a refund or
contest the claim in any permissible manner, and the
Employee agrees to prosecute such contest to a determination
before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the
Company shall determine; provided, however, that if the
Company directs the Employee to pay such claim and sue for a
refund, the Company shall advance the amount of such payment
to the Employee, on an interest-free basis and shall
indemnify and hold Employee harmless, on an after-tax basis,
from any Excise Tax or income tax (including interest or
penalties with respect thereto) imposed with respect to such
advance or with respect to any imputed income with respect
to such advance; and further provided that any extension of
the statute of limitations relating to payment of taxes for
the taxable year of the Employee with respect to which such
contested amount is claimed to be due is limited solely to
such contested amount. Furthermore, the Company's control
of the contest shall be limited to issues with respect to
which a Gross-Up Payment would be payable hereunder and the
Employee shall be entitled to settle or contest, as the case
may be, any other issue raised by the Internal Revenue
Service or any other taxing authority.
d. If, after the receipt by the Employee of an amount
advanced by the Company pursuant to Section 12.c., the
Employee becomes entitled to receive any refund with respect
to such claim, the Employee shall (subject to the Company's
complying with the requirements of Section 12.c.) promptly
pay to the Company the amount of such refund (together with
any interest paid or credited thereon after taxes applicable
thereto). If, after the receipt by the Employee of an
amount advanced by the Company pursuant to Section 12.c., a
determination is made that the Employee shall not be
entitled to any refund with respect to such claim and the
Company does not notify the Employee in writing of its
intent to contest such denial of refund prior to the
expiration of 30 days after such determination, then such
advance shall be forgiven and shall not be required to be
repaid and the amount of such advance shall offset, to the
extent thereof, the amount of Gross-Up Payment required to
be paid.
13. Notice. All notices hereunder shall be in writing and
shall be deemed to have been duly given (a) when delivered
personally or by courier, or (b) on the third business day
following the mailing thereof by registered or certified mail,
postage prepaid, or (c) on the first business day following the
mailing thereof by overnight delivery service, in each case
addressed as set forth below:
a. If to the Company
Brown Group, Inc.
8300 Maryland Avenue
St. Louis, Missouri 63166-0029
Attention: Chief Executive Officer
b. If to Employee:
Brian C. Cook
4830 Morris Court
Waunakee, WI 53597
Any party may change the address to which notices are to be
addressed by giving the other party written notice in the manner
herein set forth.
14. Successors; Binding Agreement.
a. The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business
and/or assets of the Company, upon or prior to such
succession, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the
Company would have been required to perform it if no such
succession had taken place. A copy of such assumption and
agreement shall be delivered to Employee promptly after its
execution by the successor. Failure of the Company to
obtain such agreement upon or prior to the effectiveness of
any such succession shall be a breach of this Agreement and
shall entitle Employee to benefits from the Company in the
same amounts and on the same terms as Employee would be
entitled hereunder if Employee terminated his employment for
Good Reason. For purposes of the preceding sentence, the
date on which any such succession becomes effective shall be
deemed the Termination Date. As used in this Agreement,
"Company" shall mean the Company as hereinbefore defined and
any successor to its business and/or assets as aforesaid
which executes and delivers the agreement provided for in
this Section 14.a. or which otherwise becomes bound by the
terms and provisions of this Agreement by operation of law.
b. This Agreement is personal to Employee and
Employee may not assign or delegate any part of his rights
or duties hereunder to any other person, except that this
Agreement shall inure to the benefit of and be enforceable
by Employee's legal representatives, executors,
administrators, heirs and beneficiaries.
15. Severability. If any provision of this Agreement or
the application thereof to any person or circumstance shall to
any extent be held to be invalid or unenforceable, the remainder
of this Agreement and the application of such provision to
persons or circumstances other than those as to which it is held
invalid or unenforceable shall not be affected thereby, and each
provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
16. Headings. The headings in this Agreement are inserted
for convenience of reference only and shall not in any way affect
the meaning or interpretation of this Agreement.
17. Counterparts. This Agreement may be executed in one or
more identical counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the
same instrument.
18. Waiver. Neither any course of dealing nor any failure
or neglect of either party hereto in any instance to exercise any
right, power or privilege hereunder or under law shall constitute
a waiver of such right, power or privilege or of any other right,
power or privilege or of the same right, power or privilege in
any other instance. Without limiting the generality of the
foregoing, Employee's continued employment without objection
shall not constitute Employee's consent to, or a waiver of
Employee's rights with respect to, any circumstances constituting
Good Reason. All waivers by either party hereto must be
contained in a written instrument signed by the party to be
charged therewith, and, in the case of the Company, by its duly
authorized officer.
19. Entire Agreement. This instrument constitutes the
entire agreement of the parties in this matter and shall
supersede any other agreement between the parties, oral or
written, concerning the same subject matter.
20. Amendment. This Agreement may be amended only by a
writing which makes express reference to this Agreement as the
subject of such amendment and which is signed by Employee and by
a duly authorized officer of the Company.
21. Governing Law. In light of Company's and Employee's
substantial contacts with the State of Missouri, the facts that
the Company is headquartered in Missouri and Employee resides in
and/or reports to Company management in Missouri, the parties'
interests in ensuring that disputes regarding the interpretation,
validity and enforceability of this Agreement are resolved on a
uniform basis, and Company's execution of, and the making of,
this Agreement in Missouri, the parties agree that: (i) any
litigation involving any noncompliance with or breach of the
Agreement, or regarding the interpretation, validity and/or
enforceability of the Agreement, shall be filed and conducted
exclusively in the state or federal courts in St. Louis City or
County, Missouri; and (ii) the Agreement shall be interpreted in
accordance with and governed by the laws of the State of
Missouri, without regard for any conflict of law principles.
IN WITNESS WHEREOF, Employee and the Company have executed
this Agreement as of the day and year first above written.
BROWN GROUP, INC.
By: /s/ Robert D. Pickle.
______________________________
Vice President, General Counsel
And Corporate Secretary
EMPLOYEE
By: /s/ Brian C. Cook
______________________________
Exhibit A
RELEASE
RELEASE (the "Release") dated _____________, 199__ between
Brian C. Cook ("Employee") and Brown Group, Inc., a New York
corporation (as further defined in Section 14 of the Severance
Agreement, the "Company").
WHEREAS, the Company and Employee are parties to a Severance
Agreement dated ____________, 1998 (the "Severance Agreement"),
which provides certain protection to Employee during management
transition and thereafter and in the event there is any change in
corporate structure which results in a change in control of the
Company.
WHEREAS, the execution of this Release is a condition
precedent to, and material inducement to, the Company's provision
of certain benefits under the Severance Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. Mutual Promises. The Company undertakes the
obligations contained in the Severance Agreement, which are in
addition to any compensation to which Employee might otherwise be
entitled, in exchange for Employee's promises and obligations
contained herein. The Company's obligations are undertaken in
lieu of any other severance benefits.
2. Release of Claims; Agreement Not to File Suit.
a. Employee, for and on behalf of himself and his heirs,
beneficiaries, executors, administrators, successors,
assigns and anyone claiming through or under any of the
foregoing, agrees to, and does, remise, release and forever
discharge the Company and its subsidiaries and affiliates,
each of their shareholders, directors, officers, employees,
agents and representatives, and its successors and assigns
(collectively, the "Company Released Persons"), from any and
all matters, claims, demands, damages, causes of action,
debts, liabilities, controversies, judgments and suits of
every kind and nature whatsoever, foreseen or unforeseen,
known or unknown, which have arisen or could arise from
matters which occurred prior to the date of this Release,
which matters include without limitation: (i) the matters
covered by the Severance Agreement and this Release, (ii)
Employee's employment, and/or termination from employment
with the Company, and (iii) any claims which might otherwise
arise in the future as a result of arrangements or
agreements in effect as of the date of this Release or the
continuance of such arrangements and agreements.
b. Employee, for and on behalf of himself and his heirs,
beneficiaries, executors, administrators, successors,
assigns, and anyone claiming through or under any of the
foregoing, agrees that he will not file or otherwise submit
any charge, claim, complaint, or action to any agency,
court, organization, or judicial forum (nor will Employee
permit any person, group of persons, or organization to take
such action on his behalf) against any Company Released
Person arising out of any actions or non-actions on the part
of any Company Released Person arising before the date of
this Release or any action taken after the date of this
Release pursuant to the Severance Arrangement. Employee
further agrees that in the event that any person or entity
should bring such a charge, claim, complaint, or action on
his behalf, he hereby waives and forfeits any right to
recovery under said claim and will exercise every good faith
effort to have such claim dismissed.
c. The charges, claims, complaints, matters, demands,
damages, and causes of action referenced in Sections 2(a)
and 2(b) include, but are not limited to: (i) any breach of
an actual or implied contract of employment between Employee
and any Company Released Person, (ii) any claim of unjust,
wrongful, or tortuous discharge (including any claim of
fraud, negligence, retaliation for whistleblowing, or
intentional infliction of emotional distress), (iii) any
claim of defamation or other common law action, or (iv) any
claims of violations arising under the Civil Rights Act of
1964, as amended, 42 U.S.C. 2000e et seq., the Age
Discrimination in Employment Act, 29 U.S.C. 621 et seq.,
the Americans with Disabilities Act of 1990, 42 U.S.C.
12101 et seq., the Fair Labor Standards Act of 1938, as
amended, 29 U.S.C. 201 et seq., the Rehabilitation Act of
1973, as amended, 29 U.S.C. 701 et seq., or of the Missouri
Human Rights Act, 213.000 R.S. Mo. et seq., the Missouri
Service Letter Statute, 209.140 R.S. Mo. or any other
relevant federal, state, or local statutes or ordinances, or
any claims for pay, vacation pay, insurance, or welfare
benefits or any other benefits of employment with any
Company Released Person arising from events occurring prior
to the date of this Release other than those payments and
benefits specifically provided herein.
d. This Release shall not affect Employee's right to any
governmental benefits payable under any Social Security or
Worker's Compensation law now or in the future.
3. Release of Benefit Claims. Employee, for and on behalf
of himself and his heirs, beneficiaries, executors,
administrators, successors, assigns and anyone claiming through
or under any of the foregoing, further releases and waives any
claims for pay, vacation pay, insurance or welfare benefits or
any other benefits of employment with any Company Released Person
arising from events occurring prior to the date of this Release
other than claims to the payments and benefits specifically
provided for in the Severance Agreement.
4. Revocation Period; Knowing and Voluntary Agreement.
a. Employee acknowledges that he was given a copy of this
Agreement when the Severance Agreement was executed and he,
therefore, has been given a period of at least forty-five
(45) days to consider whether or not to accept this
Agreement. Furthermore, Employee may revoke this Agreement
for seven (7) days following its execution.
b. Employee represents, declares and agrees that he
voluntarily accepts the payments described above for the
purposes of making a full and final compromise, adjustment
and settlement of all potential claims hereinabove
described. Employee hereby acknowledges that he has been
advised of the opportunity to consult an attorney and that
he understands the Release and the effect of signing the
Release.
5. Severability. If any provision of this Release or the
application thereof to any person or circumstance shall to any
extent be held to be invalid or unenforceable, the remainder of
this Release and the application of such provision to persons or
circumstances other than those as to which it is held invalid or
unenforceable shall not be affected thereby, and each provision
of this Release shall be valid and enforceable to the fullest
extent permitted by law.
6. Headings. The headings in this Release are inserted
for convenience of reference only and shall not in any way affect
the meaning or interpretation of this Release.
7. Counterparts. This Release may be executed in one or
more identical counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the
same instrument.
8. Entire Agreement. This Release and Related Severance
Agreement constitutes the entire agreement of the parties in this
matter and shall supersede any other agreement between the
parties, oral or written, concerning the same subject matter.
9. Governing Law. This Release shall be governed by, and
construed and enforced in accordance with, the laws of the State
of Missouri, without reference to the conflict of laws rules of
such State.
IN WITNESS WHEREOF, Employee and the Company have executed
this Release as of the day and year first above written.
BROWN GROUP, INC.
By:_________________________
EMPLOYEE
By:_________________________
Brian C. Cook