AMENDMENT NO. 1
TO
AGREEMENT
This Amendment No. 1 ("Amendment") to that certain Agreement by and between
Shoe Carnival, Inc. ("Shoe Carnival") and David H. Russell ("Russell") dated May
28, 1997 (the "Agreement") is entered into as of the 8th day of December, 1997
by and between Shoe Carnival and Russell.
Whereas, Shoe Carnival and Russell wish to make certain revisions to the
Agreement pursuant to this Amendment; and
Whereas, the parties wish the Agreement to continue in full force and
effect except as modified in this Amendment;
NOW THEREFORE, in consideration of the premises and the covenants
contained herein and in the Agreement, the parties hereto agree as follows:
1. Paragraph 4 of the Agreement is deleted in its entirety and in
lieu thereof the following Paragraph 4 is inserted:
4. Restrictive Covenants. Russell acknowledges that the
consulting services he is to render pursuant to this Agreement are
of a special and unusual character with a unique value to Shoe
Carnival, the loss of which cannot adequately be compensated by
damages in an action at law. In view of the unique value to Shoe
Carnival of the services that Russell is to provide pursuant to
this Agreement, because of the confidential information to be
obtained by or disclosed to Russell, and as a material inducement
to Shoe Carnival to enter into a consulting arrangement with
Russell and to pay Russell the compensation provided for in
Paragraph 3, Russell covenants and agrees as follows:
(a) Noncompetition. Russell agrees that during the
Consulting Term and for a period of 24 months after the end of the
Consulting Term, he will not, directly or indirectly, whether as an
owner, stockholder (except as the holder of 5% or less of the stock
of a publicly-held corporation), director, officer, partner,
employee, consultant, or otherwise, compete or assist a third party
in competing with Shoe Carnival in the retail footwear industry
within a radius of 75 miles from Evansville, Indiana, without the
prior written approval of Shoe Carnival. *
(b) Extension of Restrictions. If a court of competent
jurisdiction finds that Russell has violated any of the
noncompetition restrictions set forth in this Paragraph 4, then the
parties agree that all such restrictions set forth in this
Paragraph 4 automatically shall be extended by the number of days
that a court determines Russell to have been in violation of such
restrictions.
(c) Confidential Information. As used in this Agreement,
the term "Confidential Information" means any and all of Shoe
Carnival's trade secrets, confidential proprietary information, and
all information and data that is not generally known to third
persons not associated with Shoe Carnival and/or that provides Shoe
Carnival with competitive advantages. The parties agree that
Confidential Information shall not cease to be Confidential
Information for purposes of this Agreement simply because another
individual with a duty to maintain the confidentiality of the
Confidential Information discloses it in violation of that duty.
Russell hereby agrees that he will not at any time after
termination of his employment with Shoe Carnival use or disclose to
any others any of the Confidential Information, except as
authorized in writing by Shoe Carnival. Russell agrees that Shoe
Carnival owns all of the Confidential Information and Russell has
no rights, title, or interest in any of the Confidential
Information. Russell agrees that upon the termination of his
employment with Shoe Carnival on May 1, 1997, he shall surrender
promptly to Shoe Carnival any and all trade secrets, internal
memoranda, and other documents in his possession disclosing any
Confidential Information.
(d) Covenant Not To Raid Employees. During the Consulting
Term and for a period of 24 months after the end of the Consulting
Term, Russell agrees that he will not, directly or indirectly,
employ, solicit for employment or advise or recommend to any other
person that such person employ, or solicit for employment, any
individual now or hereafter employed by Shoe Carnival so long as
such individual is employed by Shoe Carnival or any of its
affiliates; nor induce or entice any such employee to leave his or
her employment with Shoe Carnival or any of its affiliates; nor
adversely interfere with any relationships between Shoe Carnival
and any of its past, present or prospective employees.
(e) Remedies and Enforcement. Russell acknowledges that any
violation of this Paragraph 4 by him will cause irreparable damage
to Shoe Carnival, that such damage will be incapable of precise
measurement, and that, as a result, Shoe Carnival will not have an
adequate remedy at law to redress the harm that such violation will
cause. Therefore, in addition to any other rights or remedies Shoe
Carnival may have as a result of the violation of this Paragraph 4
by Russell, Russell agrees that Shoe Carnival shall be entitled to
injunctive relief, including but not limited to temporary
restraining order and preliminary and permanent injunction, to
restrain any violation of this Paragraph 4 by Russell. Russell
hereby agrees and consents that such injunctive relief may be
entered in any state or federal court of record in Vanderburgh
County, Indiana, or in the state and county in which such violation
may occur, or in any other court having jurisdiction, at the
election of Shoe Carnival, without security. Russell agrees and
hereby does submit to personal jurisdiction before each and every
such court for that purpose. In addition to any other relief to
which it shall be entitled, Shoe Carnival shall be entitled to
recover from Russell the costs and reasonable attorneys' fees
incurred by Shoe Carnival in seeking enforcement of this Paragraph
4 or relief from any violation by Russell of this Paragraph 4.
2. Except for the above changes to Paragraph 4, the remaining
provisions of the Agreement are not modified, and the Agreement as amended
by this Amendment shall continue in full force and effect.
In witness whereof, the parties hereto have executed this Amendment, as of
the day and year set forth above.
Shoe Carnival, Inc.
By: /s/ Mark L. Lemond
Mark L. Lemond
President and CEO
/s/ David H. Russell
David H. Russell
* This paragraph is intended to apply to the operation of footwear stores
within 75 miles of Evansville, Indiana. It shall not prohibit the
maintenance by Russell of administrative offices and warehousing for
footwear business within the 75 mile radius.