EXHIBIT 10.4
- 1 -
SAUCONY, INC.
Executive Retention Agreement
THIS EXECUTIVE RETENTION AGREEMENT by and between Saucony, Inc., a
Massachusetts corporation (the "Company"), and Charles A. Gottesman (the
"Executive") is made as of August 17, 2000 (the "Effective Date").
WHEREAS, the Company recognizes that, as is the case with many
publicly-held corporations, the possibility of a change in control of the
Company exists and that such possibility, and the uncertainty and questions
which it may raise among key personnel, may result in the departure or
distraction of key personnel to the detriment of the Company and its
stockholders, and
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that appropriate steps should be taken to reinforce and encourage the
continued employment and dedication of the Company's key personnel without
distraction from the possibility of a change in control of the Company and
related events and circumstances.
NOW, THEREFORE, as an inducement for and in consideration of the
Executive remaining in its employ, the Company agrees that the Executive shall
receive the severance benefits set forth in this Agreement in the event the
Executive's employment with the Company is terminated under the circumstances
described below subsequent to a Change in Control (as defined in Section 1.1).
1. Key Definitions.
As used herein, the following terms shall have the following respective
meanings:
1.1 "Change in Control" means an event or occurrence set forth in any one or
more of subsections (a) through (d) below (including an event or occurrence that
constitutes a Change in Control under one of such subsections but is
specifically exempted from another such subsection).
(a) the acquisition by an individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) (a "Person") of beneficial ownership of any capital stock
of the Company if, after such acquisition, such Person beneficially owns (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) 20% or more of
either (i) the then-outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (ii) the combined voting power of the
then-outstanding securities of the Company entitled to vote generally in the
election of directors (the "Outstanding Company Voting Securities"); provided,
however, that for purposes of this subsection (a), the following acquisitions
shall not constitute a Change in Control: (i) any acquisition directly from the
Company (excluding an acquisition pursuant to the exercise, conversion or
exchange of any security exercisable for, convertible into or exchangeable for
common stock or voting securities of the Company, unless the Person exercising,
converting or exchanging such security acquired such security directly from the
Company or an underwriter or agent of the Company), (ii) any acquisition by the
Company, (iii) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation controlled by the
Company, (iv) any acquisition by any corporation pursuant to a transaction which
complies with clauses (i) and (ii) of subsection (c) of this Section 1.1, or (v)
any acquisition of common stock of the Company by the Executive or any ancestor,
descendent, spouse, sibling or spouse of a sibling of the Executive (each such
individual is referred to hereunder as an "Exempt Person"); or
(b) such time as the Continuing Directors (as defined below) do not constitute a
majority of the Board (or, if applicable, the Board of Directors of a successor
corporation to the Company), where the term "Continuing Director" means at any
date a member of the Board (i) who was a member of the Board on the date of the
execution of this Agreement or (ii) who was nominated or elected subsequent to
such date by at least a majority of the directors who were Continuing Directors
at the time of such nomination or election or whose election to the Board was
recommended or endorsed by at least a majority of the directors who were
Continuing Directors at the time of such nomination or election; provided,
however, that there shall be excluded from this clause (ii) any individual whose
initial assumption of office occurred as a result of an actual or threatened
election contest with respect to the election or removal of directors or other
actual or threatened solicitation of proxies or consents, by or on behalf of a
person other than the Board; or
(c) the consummation of a merger, consolidation, reorganization,
recapitalization or statutory share exchange involving the Company or a sale or
other disposition of all or substantially all of the assets of the Company in
one or a series of transactions (a "Business Combination"), unless, immediately
following such Business Combination, each of the following two conditions is
satisfied: (i) all or substantially all of the individuals and entities who were
the beneficial owners of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 50% of the then-outstanding
shares of common stock and the combined voting power of the then-outstanding
securities entitled to vote generally in the election of directors,
respectively, of the resulting or acquiring corporation in such Business
Combination (which shall include, without limitation, a corporation which as a
result of such transaction owns the Company or substantially all of the
Company's assets either directly or through one or more subsidiaries) (such
resulting or acquiring corporation is referred to herein as the "Acquiring
Corporation") in substantially the same proportions as their ownership,
immediately prior to such Business Combination, of the Outstanding Company
Common Stock and Outstanding Company Voting Securities, respectively; and (ii)
no Person (excluding the Acquiring Corporation, any Exempt Person, or any
employee benefit plan (or related trust) maintained or sponsored by the Company
or by the Acquiring Corporation) beneficially owns, directly or indirectly, 20%
or more of the then outstanding shares of common stock of the Acquiring
Corporation, or of the combined voting power of the then-outstanding securities
of such corporation entitled to vote generally in the election of directors
(except to the extent that such ownership existed prior to the Business
Combination); or
(d) approval by the stockholders of the Company of a complete liquidation or
dissolution of the Company.
1.2 "Change in Control Date" means the first date during the Term (as defined in
Section 2) on which a Change in Control occurs. Anything in this Agreement to
the contrary notwithstanding, if (a) a Change in Control occurs, (b) the
Executive's employment with the Company is terminated prior to the date on which
the Change in Control occurs, and (c) it is reasonably demonstrated by the
Executive that such termination of employment (i) was at the request of a third
party who has taken steps reasonably calculated to effect a Change in Control or
(ii) otherwise arose in connection with or in anticipation of a Change in
Control, then for all purposes of this Agreement the "Change in Control Date"
shall mean the date immediately prior to the date of such termination of
employment.
1.3 "Cause" means:
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(a) the Executive's willful and continued failure to substantially perform his
reasonable assigned duties as an officer of the Company (other than any such
failure resulting from incapacity due to physical or mental illness or any
failure after the Executive gives notice of termination for Good Reason), which
failure is not cured within 30 days after a written demand for substantial
performance is received by the Executive from the Board of Directors of the
Company which specifically identifies the manner in which the Board of Directors
believes the Executive has not substantially performed the Executive's duties;
or
(b) the Executive's willful engagement in illegal conduct or gross misconduct
which is materially and demonstrably injurious to the Company.
For purposes of this Section 1.3, no act or failure to act by the
Executive shall be considered "willful" unless it is done, or omitted to be
done, in bad faith and without reasonable belief that the Executive's action or
omission was in the best interests of the Company.
1.4 "Good Reason" means the occurrence, without the Executive's written consent,
of any of the events or circumstances set forth in clauses (a) through (g)
below. Notwithstanding the occurrence of any such event or circumstance, such
occurrence shall not be deemed to constitute Good Reason if, prior to the Date
of Termination specified in the Notice of Termination (each as defined in
Section 3.2(a)) given by the Executive in respect thereof, such event or
circumstance has been fully corrected and the Executive has been reasonably
compensated for any losses or damages resulting therefrom (provided that such
right of correction by the Company shall only apply to the first Notice of
Termination for Good Reason given by the Executive).
(a) the assignment to the Executive of duties inconsistent in any material
respect with the Executive's position (including status, offices, titles and
reporting requirements), authority or responsibilities in effect immediately
prior to the earliest to occur of (i) the Change in Control Date, (ii) the date
of the execution by the Company of the initial written agreement or instrument
providing for the Change in Control or (iii) the date of the adoption by the
Board of Directors of a resolution providing for the Change in Control (with the
earliest to occur of such dates referred to herein as the "Measurement Date"),
or any other action or omission by the Company which results in a material
diminution in such position, authority or responsibilities;
(b) a reduction in the Executive's annual base salary as in effect on the
Measurement Date or as the same was or may be increased thereafter from time to
time;
(c) the failure by the Company to (i) continue in effect any material
compensation or benefit plan or program (including without limitation any life
insurance, medical, health and accident or disability plan and any vacation or
automobile program or policy) (a "Benefit Plan") in which the Executive
participates or which is applicable to the Executive immediately prior to the
Measurement Date, unless an equitable arrangement (embodied in an ongoing
substitute or alternative plan) has been made with respect to such plan or
program, (ii) continue the Executive's participation therein (or in such
substitute or alternative plan) on a basis not materially less favorable, both
in terms of the amount of benefits provided and the level of the Executive's
participation relative to other participants, than the basis existing
immediately prior to the Measurement Date, (iii) award cash bonuses to the
Executive in amounts and in a manner substantially consistent with past practice
in light of the Company's financial performance, or (iv) continue to provide any
material fringe benefit enjoyed by Executive immediately prior to the
Measurement Date;
(d) a change by the Company in the location at which the Executive performs his
principal duties for the Company to a new location that is both (i) outside a
radius of 35 miles from the Executive's principal residence immediately prior to
the Measurement Date and (ii) more than 20 miles from the location at which the
Executive performed his principal duties for the Company immediately prior to
the Measurement Date; or a requirement by the Company that the Executive travel
on Company business to a substantially greater extent than required immediately
prior to the Measurement Date;
(e) the failure of the Company to obtain the agreement from any successor to the
Company to assume and agree to perform this Agreement, as required by Section
6.1;
(f) a purported termination of the Executive's employment which is not effected
pursuant to a Notice of Termination satisfying the requirements of Section
3.2(a); or
(g) any failure of the Company to pay or provide to the Executive any portion of
the Executive's compensation or benefits due under any Benefit Plan within seven
days of the date such compensation or benefits are due, or any material breach
by the Company of this Agreement or any employment agreement with the Executive.
In addition, the termination of employment by the Executive for any
reason or no reason during the 30-day period beginning on the first anniversary
of the Change in Control Date shall be deemed to be termination for Good Reason
for all purposes under this Agreement. The Executive's right to terminate his
employment for Good Reason shall not be affected by his incapacity due to
physical or mental illness.
1.5 "Disability" means the Executive's absence from the full-time performance of
the Executive's duties with the Company for 180 consecutive calendar days as a
result of incapacity due to mental or physical illness which is determined to be
total and permanent by a physician selected by the Company or its insurers and
acceptable to the Executive or the Executive's legal representative.
2. Term of Agreement. This Agreement, and all rights and obligations of the
parties hereunder, shall take effect upon the Effective Date and shall expire
upon the first to occur of (a) the expiration of the Term (as defined below) if
a Change in Control has not occurred during the Term, (b) the date 36 months
after the Change in Control Date, if the Executive is still employed by the
Company as of such later date, or (c) the fulfillment by the Company of all of
its obligations under Sections 4 and 5.2 if the Executive's employment with the
Company terminates within 36 months following the Change in Control Date. "Term"
shall mean the period commencing as of the Effective Date and continuing in
effect through December 31, 2003; provided, however, that commencing on January
1, 2004 and each January 1 thereafter, the Term shall be automatically extended
for one additional year unless, not later than 90 days prior to the scheduled
expiration of the Term (or any extension thereof), the Company shall have given
the Executive written notice that the Term will not be extended.
3. Employment Status; Termination Following Change in Control.
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3.1 Not an Employment Contract. The Executive acknowledges that this Agreement
does not constitute a contract of employment or impose on the Company any
obligation to retain the Executive as an employee and that this Agreement does
not prevent the Executive from terminating employment at any time. If the
Executive's employment with the Company terminates for any reason and
subsequently a Change in Control shall occur, the Executive shall not be
entitled to any benefits hereunder except as otherwise provided pursuant to
Section 1.2.
3.2 Termination of Employment.
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(a) If the Change in Control Date occurs during the Term, any termination of the
Executive's employment by the Company or by the Executive within 36 months
following the Change in Control Date (other than due to the death of the
Executive) shall be communicated by a written notice to the other party hereto
(the "Notice of Termination"), given in accordance with Section 7. Any Notice of
Termination shall: (i) indicate the specific termination provision (if any) of
this Agreement relied upon by the party giving such notice, (ii) to the extent
applicable, set forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Executive's employment under the
provision so indicated and (iii) specify the Date of Termination (as defined
below). The effective date of an employment termination (the "Date of
Termination") shall be the close of business on the date specified in the Notice
of Termination (which date may not be less than 15 days or more than 120 days
after the date of delivery of such Notice of Termination), in the case of a
termination other than one due to the Executive's death, or the date of the
Executive's death, as the case may be. In the event the Company fails to satisfy
the requirements of Section 3.2(a) regarding a Notice of Termination, the
purported termination of the Executive's employment pursuant to such Notice of
Termination shall not be effective for purposes of this Agreement.
(b) The failure by the Executive or the Company to set forth in the Notice of
Termination any fact or circumstance which contributes to a showing of Good
Reason or Cause shall not waive any right of the Executive or the Company,
respectively, hereunder or preclude the Executive or the Company, respectively,
from asserting any such fact or circumstance in enforcing the Executive's or the
Company's rights hereunder.
(c) Any Notice of Termination for Cause given by the Company must be given
within 90 days of the occurrence of the event(s) or circumstance(s) which
constitute(s) Cause. Prior to any Notice of Termination for Cause being given
(and prior to any termination for Cause being effective), the Executive shall be
entitled to a hearing before the Board of Directors of the Company at which he
may, at his election, be represented by counsel and at which he shall have a
reasonable opportunity to be heard. Such hearing shall be held on not less than
15 days prior written notice to the Executive stating the Board of Directors'
intention to terminate the Executive for Cause and stating in detail the
particular event(s) or circumstance(s) which the Board of Directors believes
constitutes Cause for termination.
4. Benefits to Executive.
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4.1 Stock Acceleration. If the Change in Control Date occurs during the Term,
then, effective upon the Change in Control Date (a) each outstanding option to
purchase shares of Common Stock of the Company held by the Executive shall
become immediately exercisable in full and will no longer be subject to a right
of repurchase by the Company, (b) each outstanding restricted stock award shall
be deemed to be fully vested and will no longer be subject to a right of
repurchase by the Company.
4.2 Compensation. If the Change in Control Date occurs during the Term and the
Executive's employment with the Company terminates within 36 months following
the Change in Control Date, the Executive shall be entitled to the following
benefits:
(a) Termination Without Cause or for Good Reason. If the Executive's employment
with the Company is terminated by the Company (other than for Cause, Disability
or Death), including without limitation a termination occurring by reason of the
prevention by the Company of the renewal of the Executive's employment contract,
or by the Executive for Good Reason within 36 months following the Change in
Control Date, then the Executive shall be entitled to the following benefits:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days
after the Date of Termination the aggregate of the following amounts:
(1) the sum of (A) the Executive's base salary through the Date of Termination,
(B) the product of (x) the annual bonus paid or payable (including any bonus or
portion thereof which has been earned but deferred) for the most recently
completed fiscal year and (y) a fraction, the numerator of which is the number
of days in the current fiscal year through the Date of Termination, and the
denominator of which is 365 and (C) the amount of any compensation previously
deferred by the Executive (together with any accrued interest or earnings
thereon) and any accrued vacation pay, in each case to the extent not previously
paid (the sum of the amounts described in clauses (A), (B), and (C) shall be
hereinafter referred to as the "Accrued Obligations"); and
(2) the amount equal to (A) three multiplied by (B) the sum of (x) the
Executive's highest annual base salary during the five-year period prior to the
Change in Control Date and (y) the Executive's highest annual bonus during the
five-year period prior to the Change in Control Date.
(ii) for 36 months after the Date of Termination, or such longer period as may
be provided by the terms of the appropriate plan, program, practice or policy,
the Company shall continue to provide benefits to the Executive and the
Executive's family at least equal to those which would have been provided to
them if the Executive's employment had not been terminated, in accordance with
the applicable Benefit Plans in effect on the Measurement Date or, if more
favorable to the Executive and his family, in effect generally at any time
thereafter with respect to other peer executives of the Company and its
affiliated companies; provided, however, that if the Executive becomes
reemployed with another employer and is eligible to receive a particular type of
benefits (e.g., health insurance benefits) from such employer on terms at least
as favorable to the Executive and his family as those being provided by the
Company, then the Company shall no longer be required to provide those
particular benefits to the Executive and his family;
(iii) to the extent not previously paid or provided, the Company shall timely
pay or provide to the Executive any other amounts or benefits required to be
paid or provided or which the Executive is eligible to receive following the
Executive's termination of employment under any plan, program, policy, practice,
contract or agreement of the Company and its affiliated companies (such other
amounts and benefits shall be hereinafter referred to as the "Other Benefits");
and
(iv) for purposes of determining eligibility (but not the time of commencement
of benefits) of the Executive for retiree benefits to which the Executive is
entitled, the Executive shall be considered to have remained employed by the
Company until 36 months after the Date of Termination.
(b) Resignation without Good Reason; Termination for Death or Disability. If the
Executive voluntarily terminates his employment with the Company within 36
months following the Change in Control Date, excluding a termination for Good
Reason, or if the Executive's employment with the Company is terminated by
reason of the Executive's death or Disability within 36 months following the
Change in Control Date, then the Company shall (i) pay the Executive (or his
estate, if applicable), in a lump sum in cash within 30 days after the Date of
Termination, the Accrued Obligations and (ii) timely pay or provide to the
Executive the Other Benefits.
(c) Termination for Cause. If the Company terminates the Executive's employment
with the Company for Cause within 36 months following the Change in Control
Date, then the Company shall (i) pay the Executive, in a lump sum in cash within
30 days after the Date of Termination, the sum of (A) the Executive's annual
base salary through the Date of Termination and (B) the amount of any
compensation previously deferred by the Executive, in each case to the extent
not previously paid, and (ii) timely pay or provide to the Executive the Other
Benefits.
4.3 Taxes.
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(a) In the event that the Company undergoes a "Change in Ownership or Control"
(as defined below) , the Company shall, within 30 days after each date on which
the Executive becomes entitled to receive (whether or not then due) a Contingent
Compensation Payment (as defined below) relating to such Change in Ownership or
Control, determine and notify the Executive (with reasonable detail regarding
the basis for its determinations) (i) which of the payments or benefits due to
the Executive (under this Agreement or otherwise) following such Change in
Ownership or Control constitute Contingent Compensation Payments, (ii) the
amount, if any, of the excise tax (the "Excise Tax") payable pursuant to Section
4999 of the Internal Revenue Code of 1986, as amended (the "Code"), by the
Executive with respect to such Contingent Compensation Payments and (iii) the
amount of the Gross-Up Payment (as defined below) due to the Executive with
respect to such Contingent Compensation Payments. Within 30 days after delivery
of such notice to the Executive, the Executive shall deliver a response to the
Company (the "Executive Response") stating either (A) that he agrees with the
Company's determination pursuant to the preceding sentence or (B) that he
disagrees with such determination, in which case he shall indicate which payment
and/or benefits should be characterized as a Contingent Compensation Payment,
the amount of the Excise Tax with respect to such Contingent Compensation
Payment and the amount of the Gross-Up Payment due to the Executive with respect
to such Contingent Compensation Payment. If the Executive states in the
Executive Response that he agrees with the Company's determination, the Company
shall make the Gross-Up Payment to the Executive within three business days
following delivery to the Company of the Executive Response. If the Executive
states in the Executive Response that he disagrees with the Company's
determination, then, for a period of 60 days following delivery of the Executive
Response, the Executive and the Company shall use good faith efforts to resolve
such dispute. If such dispute is not resolved within such 60-day period, such
dispute shall be settled exclusively by arbitration in Boston, Massachusetts ,
in accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court having
jurisdiction. The Company shall, within three business days following delivery
to the Company of the Executive Response, make to the Executive those Gross-Up
Payments as to which there is no dispute between the Company and the Executive
regarding whether they should be made. The balance of the Gross-Up Payments
shall be made within three business days following the resolution of such
dispute. The amount of any payments to be made to the Executive following the
resolution of such dispute shall be increased by amount of the accrued interest
thereon computed at the prime rate as published from time to time in the WALL
STREET JOURNAL, compounded monthly from the date that such payments originally
were due. In the event that the Executive fails to deliver an Executive Response
on or before the required date, the Company's initial determination shall be
final.
(b) For purposes of this Section 4.3, the following terms shall have the
following respective meanings:
(i) "Change in Ownership or Control" shall mean a change in the ownership or
effective control of the Company or in the ownership of a substantial portion of
the assets of the Company determined in accordance with Section 280G(b)(2) of
the Code.
(ii) "Contingent Compensation Payment" shall mean any payment (or benefit) in
the nature of compensation that is made or made available (under this Agreement
or otherwise) to a "disqualified individual" (as defined in Section 280G(c) of
the Code) and that is contingent (within the meaning of Section 280G(b)(2)(A)(i)
of the Code) on a Change of Ownership or Control of the Company.
(iii) "Gross-Up Payment" shall mean an amount equal to the sum of (i) the amount
of the Excise Tax payable with respect to a Contingent Compensation Payment and
(ii) the amount necessary to pay all additional taxes imposed on (or
economically borne by) the Executive (including the Excise Taxes, state and
federal income taxes and all applicable withholding taxes) attributable to the
receipt of such Gross-Up Payment. For purposes of the preceding sentence, all
taxes attributable to the receipt of the Gross-Up Payment shall be computed
assuming the application of the maximum tax rates provided by law.
4.4 Mitigation. The Executive shall not be required to mitigate the amount of
any payment or benefits provided for in this Section 4 by seeking other
employment or otherwise. Further, except as provided in Section 4.2(a)(ii), the
amount of any payment or benefits provided for in this Section 4 shall not be
reduced by any compensation earned by the Executive as a result of employment by
another employer, by retirement benefits, by offset against any amount claimed
to be owed by the Executive to the Company or otherwise.
4.5 Outplacement Services. In the event the Executive is terminated by the
Company (other than for Cause, Disability or Death), or the Executive terminates
employment for Good Reason, within 36 months following the Change in Control
Date, the Company shall provide outplacement services through one or more
outside firms of the Executive's choosing up to an aggregate of $40,000, with
such services to extend until the earlier of (I) 12 months following the
termination of Executive's employment or (ii) the date the Executive secures
full time employment.
5. Disputes.
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5.1 Settlement of Disputes; Arbitration. All claims by the Executive for
benefits under this Agreement shall be directed to and determined by the Board
of Directors of the Company and shall be in writing. Any denial by the Board of
Directors of a claim for benefits under this Agreement shall be delivered to the
Executive in writing and shall set forth the specific reasons for the denial and
the specific provisions of this Agreement relied upon. The Board of Directors
shall afford a reasonable opportunity to the Executive for a review of the
decision denying a claim. Any further dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
Boston, Massachusetts, in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the arbitrator's award in
any court having jurisdiction.
5.2 Expenses. The Company agrees to pay as incurred, to the full extent
permitted by law, all legal, accounting and other fees and expenses which the
Executive may reasonably incur as a result of any claim or contest (regardless
of the outcome thereof) by the Company, the Executive or others regarding the
validity or enforceability of, or liability under, any provision of this
Agreement or any guarantee of performance thereof (including as a result of any
contest by the Executive regarding the amount of any payment or benefits
pursuant to this Agreement), plus in each case interest on any delayed payment
at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the
Code.
6. Successors.
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6.1 Successor to Company. The Company shall require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company expressly to assume
and agree to perform this Agreement to the same extent that the Company would be
required to perform it if no such succession had taken place. Failure of the
Company to obtain an assumption of this Agreement at or prior to the
effectiveness of any succession shall be a breach of this Agreement and shall
constitute Good Reason if the Executive elects to terminate employment, except
that for purposes of implementing the foregoing, the date on which any such
succession becomes effective shall be deemed the Date of Termination. As used in
this Agreement, "Company" shall mean the Company as defined above and any
successor to its business or assets as aforesaid which assumes and agrees to
perform this Agreement, by operation of law or otherwise.
6.2 Successor to Executive. This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the
Executive should die while any amount would still be payable to the Executive or
his family hereunder if the Executive had continued to live, all such amounts,
unless otherwise provided herein, shall be paid in accordance with the terms of
this Agreement to the executors, personal representatives or administrators of
the Executive's estate.
7. Notice. All notices, instructions and other communications given hereunder or
in connection herewith shall be in writing. Any such notice, instruction or
communication shall be sent either (i) by registered or certified mail, return
receipt requested, postage prepaid, or (ii) prepaid via a reputable nationwide
overnight courier service, in each case addressed to the Company, at Centennial
Industrial Park, Centennial Drive, Peabody, MA 01961, and to the Executive at 30
Catlin Road, Brookline, MA 02146 (or to such other address as either the Company
or the Executive may have furnished to the other in writing in accordance
herewith). Any such notice, instruction or communication shall be deemed to have
been delivered five business days after it is sent by registered or certified
mail, return receipt requested, postage prepaid, or one business day after it is
sent via a reputable nationwide overnight courier service. Either party may give
any notice, instruction or other communication hereunder using any other means,
but no such notice, instruction or other communication shall be deemed to have
been duly delivered unless and until it actually is received by the party for
whom it is intended. 8. Miscellaneous.
8.1 Employment by Subsidiary. For purposes of this Agreement, the Executive's
employment with the Company shall not be deemed to have terminated solely as a
result of the Executive continuing to be employed by a wholly-owned subsidiary
of the Company.
8.2 Severability. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
8.3 Injunctive Relief. The Company and the Executive agree that any breach of
this Agreement by the Company is likely to cause the Executive substantial and
irrevocable damage and therefore, in the event of any such breach, in addition
to such other remedies which may be available, the Executive shall have the
right to specific performance and injunctive relief.
8.4 Governing Law. The validity, interpretation, construction and performance of
this Agreement shall be governed by the internal laws of the Commonwealth of
Massachusetts, without regard to conflicts of law principles.
8.5 Waivers. No waiver by the Executive at any time of any breach of, or
compliance with, any provision of this Agreement to be performed by the Company
shall be deemed a waiver of that or any other provision at any subsequent time.
8.6 Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed to be an original but both of which together shall constitute
one and the same instrument.
8.7 Tax Withholding. Any payments provided for hereunder shall be paid net of
any applicable tax withholding required under federal, state or local law.
8.8 Entire Agreement. This Agreement sets forth the entire agreement of the
parties hereto in respect of the subject matter contained herein and supersedes
all prior agreements, promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any officer, employee
or representative of any party hereto in respect of the subject matter contained
herein; and any prior agreement of the parties hereto in respect of the subject
matter contained herein is hereby terminated and cancelled. Notwithstanding the
foregoing, the provisions of the Employment Agreement between the Executive and
the Company dated August 17, 2000 shall not be superseded by this Agreement.
8.9 Amendments. This Agreement may be amended or modified only by a written
instrument executed by both the Company and the Executive.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first set forth above.
SAUCONY, INC.
/s/ Michael Umana
By:________________________________
Title: Chief Financial Officer
EXECUTIVE
/s/ Charles A. Gottesman
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Charles A. Gottesman