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EXHIBIT 10(z)
SEVERANCE
AGREEMENT
This SEVERANCE AGREEMENT (the "Agreement"), made and entered into this
12th day of October, 1994, by and between THOMAS B. CLARK ("Clark") and
GENESCO INC., a Tennessee corporation ("Genesco").
WITNESSETH
WHEREAS, Genesco and Clark are parties to that certain Employment
Agreement dated December 8, 1993 (the "Employment Agreement");
WHEREAS, Genesco and Clark desire to terminate Clark's employment with
Genesco under the Employment Agreement upon the terms and conditions set forth
below;
NOW, THEREFORE, in consideration of the mutual premises herein
contained and other good and valuable consideration, the sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. RESIGNATION; TERMINATION OF EMPLOYMENT. Clark acknowledges
that as of October 12, 1994 he resigned as (i) an officer of Genesco, (ii) an
officer and director of all subsidiaries of Genesco, whether or not wholly
owned by Genesco and whether owned directly or indirectly by Genesco and (iii)
a member of any committees on which he may have served for Genesco or any of
its subsidiaries. Except as specifically requested by the Chairman or
President of Genesco, Clark agrees not to take or attempt to take any further
action on behalf of or purportedly on behalf of Genesco or any of its
subsidiaries and agrees to remove all personal effects from Genesco's premises
as soon as practicable. Clark shall continue as an employee-consultant to
Genesco with respect to its legal affairs until such time as he is no longer
entitled to Genesco paid medical insurance benefits pursuant to Section 2
below. Clark agrees to immediately deliver to Genesco all property of Genesco
or any of its subsidiaries in his possession, including, without limitation,
any credit cards furnished to him by Genesco or any of its subsidiaries.
2. BENEFITS. Genesco agrees to pay to Clark (i) monthly
severance payments, each in an amount of $22,000 and payable on the 20th day of
each month through and including July 20, 1996 (including October 20, 1994) and
(ii) $200,000 upon Clark's execution of this Agreement. Clark and his
dependents shall continue to receive medical insurance benefits pursuant to the
Genesco health insurance program (including the optional executive coverage)
until the earlier of Clark obtaining health insurance benefits from an entity
other than Genesco or July 31, 1996. Thereafter, Clark may purchase health
insurance benefits to the extent provided under COBRA. In addition, Clark
shall be entitled to all amounts currently vested under the Genesco Retirement
Plan, the Genesco Retirement Savings Plan and the Genesco Salary Deferral Plan
(the 401(k) plan) in accordance with the
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terms of such plan and shall be entitled to reimbursements for appropriate
expenses incurred in his capacity as an employee on or prior to the date
hereof. All other employment benefits (including but not limited to benefits
provided for in Sections 3, 4, 6 and 8 of the Employment Agreement) for Clark
shall cease on the date hereof; provided that stock options previously granted
to Clark by Genesco shall continue to be governed by the terms of such stock
options and all plans and agreements related thereto. Clark hereby agrees
that, except as provided in this Section 2, these payments shall be in lieu of
all compensation, payments and benefits to which he is otherwise entitled under
the terms of the Employment Agreement, any change in control agreement with
Genesco or its subsidiaries, Genesco's 1994 Management Incentive Compensation
Plan, Genesco's 1995 Management Incentive Plan, any long-term incentive plan,
any restricted stock plan, insurance program or plan or any other plans,
agreements or arrangements with Genesco or any of its subsidiaries. Clark
shall forfeit immediately any unpaid amounts and benefits due pursuant to this
Section 2 in the event of any material breach by him of any covenants contained
in this Agreement.
Clark shall continue to be indemnified to the fullest extent provided
by Genesco's bylaws and Genesco agrees to reimburse Clark for any travel or
other out-of-pocket expenses that he may incur as a result of his being
required to testify as a witness or to respond to any subpoena or other legal
process in connection with any legal proceeding or governmental investigation
which arises out of or relates to his serving as an officer or employee of, or
as counsel to, Genesco.
3. REPRESENTATIONS AND WARRANTIES OF CLARK. Clark has the full
right, power and authority to enter into this Agreement. This Agreement has
been duly and validly executed and delivered by Clark and constitutes a valid
and binding obligation on his part, enforceable against him in accordance with
its terms (subject to applicable bankruptcy, insolvency, moratorium or other
similar laws and subject to general principles of equity). The execution,
delivery and performance of this Agreement will not, with or without the giving
of notice or the passage of time or both, (a) violate any judgment, injunction
or order of any court, arbitrator or governmental agency applicable to Clark,
or (b) conflict with, result in the breach of any provision of or constitute a
default under any agreement or instrument to which Clark is a party or by which
he may be bound.
4. REPRESENTATIONS, WARRANTIES AND REQUIREMENTS OF GENESCO.
Genesco hereby represents and warrants that it is a corporation duly organized
and validly existing in good standing under the laws of the State of Tennessee
and has all requisite corporate power and authority to enter into and perform
all of its obligations under this Agreement. The execution, delivery and
performance of this Agreement by Genesco and all the transactions contemplated
hereby have been duly authorized by all necessary corporate action on its part.
This Agreement has been duly executed and delivered by Genesco and constitutes
a valid and binding obligation on its part, enforceable against it in
accordance with its terms (subject to applicable bankruptcy, insolvency,
moratorium or other similar laws and subject to general principles of equity).
The execution, delivery and performance of this Agreement will not, with or
without the giving of notice or the passage of time or both, (a) violate any
judgment,
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injunction or order of any court, arbitrator or governmental agency applicable
to Genesco, or (b) conflict with, result in the breach of any provision of or
constitute a default under any agreement or instrument to which Genesco is a
party or by which it may be bound. Genesco will take no action that is
intended to disparage or negatively affect the professional or personal
character or reputation of Clark.
5. COVENANTS BY CLARK. From and after the date hereof, (i) Clark
will take no action to dissipate or negatively affect the goodwill, business,
prospects or reputation of Genesco or its relationship with its employees,
customers, suppliers, competitors, shareholders, lenders, prospective
investors, prospective purchases of any of businesses or assets of Genesco or
others, (ii) Clark will not represent any party in any adversarial proceeding
against or involving Genesco, (iii) Clark will for 60 days after the date
hereof cooperate fully with Genesco, its employees, agents and representatives
to assist Genesco's business and operations and (iv) for a period of two years
after the date hereof, Clark will not, directly or indirectly, for whatever
reason, whether on his own behalf or on behalf of anyone else: (a) solicit,
employ, deal with or interfere with Genesco's or any of Genesco's subsidiaries'
contracts or relationships with any employee, officer, director or any
independent contractor whether such person is employed by or associated with
Genesco or any of Genesco's subsidiaries on the date hereof or during such two
year period or (b) solicit, accept, deal with or otherwise interfere with any
of Genesco's or any of Genesco's subsidiaries' contracts or relationships with
any independent contractor, customer, client or supplier of Genesco or any of
Genesco's subsidiaries; provided that Clark may assist employees of Genesco who
seek Clark's assistance without Clark's solicitation in obtaining employment
with another entity if Clark is not associated with such entity and Clark may
discuss employment opportunities with any officer or employee of Genesco with
the prior specific approval of the Chairman or President of Genesco.
Clark acknowledges that the provisions of this Section 5 are essential
to the operations and business of Genesco and further acknowledges that the
application or operation of the provisions of this Section 5 does not involve a
substantial hardship upon his future livelihood. If any court determines that
any of the provisions of this Section 5 are unenforceable in any respect, such
court shall be empowered to substitute, to the extent enforceable, provisions
similar to this Section 5 or other provisions so as to provide Genesco, to the
fullest extent possible, the benefits and protections intended by this Section
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6. RELEASE. Effective immediately, Clark releases and discharges
Genesco, and each parent, subsidiary, affiliate and shareholder of Genesco, and
each present, former and future director, officer and employee of Genesco or
any parent, subsidiary, affiliate or shareholder of Genesco (collectively
"Genesco Affiliates") from all manner of claims, actions, causes of action or
suits, in law or in equity, which Clark has or hereafter can, shall or may have
against Genesco or Genesco Affiliates or any of them arising from, relating to
or during his employment with Genesco, resulting from his termination of such
employment or related to his status as a shareholder, officer, employee or
participant in any Genesco
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employee benefit plan, except for (i) any claims for indemnity Clark may have
against Genesco in accordance with Genesco's bylaws and (ii) any claim or
action Clark may have that results from a breach of Genesco's obligations under
this Agreement or a failure by Genesco to perform its obligations under this
Agreement or under any plan or arrangement under which Clark is entitled to
benefits or payments as described in Section 2 of this Agreement. From and
after the date hereof, Clark agrees and covenants not to sue or initiate
arbitration, or threaten suit or arbitration against, or make any claim
against, Genesco or any Genesco Affiliate for or alleging any of the claims,
actions, causes of action or suits that are released and discharged pursuant to
the preceding sentence. Clark acknowledges that this release includes but is
not limited to all claims arising under federal, state or local laws
prohibiting employment discrimination. This release specifically encompasses
all claims of employment discrimination based on race, color, religion, sex,
handicap and national origin, as provided under Title VII of the Civil Rights
Act of 1964, as amended, the 1991 Civil Rights Act, all claims of
discrimination based on age, as provided under the Age Discrimination in
Employment Act of 1967, as amended, all claims of discrimination based on
handicap, as provided in the Americans with Disabilities Act, as amended, and
all claims of employment discrimination under state law as provided under
Tennessee Code Annotated Sections 8-50-103 and 4-21-401, et seq.
7. CONFIDENTIALITY. Other than as set forth in this Section 7,
both Clark and Genesco agree not to disclose the terms and provisions of this
Agreement or any circumstances surrounding its execution to anyone other than
Clark's immediate family (who shall be instructed by Clark to maintain such
information in confidence), Genesco's officers who need to know such
information in order to perform their duties as employees of Genesco and
directors of Genesco, Genesco's lenders and counsel or as may be required by
law, regulation or court order. In addition, for a period of two years from
and after the date hereof, Clark agrees that he will keep confidential and not
appropriate any (i) trade or business secrets of Genesco and subsidiaries of
Genesco, (ii) information relating to Genesco's and its subsidiaries' customers
and suppliers and their business habits, (iii) personnel policies, (iv)
business relations information or customer lists, (v) business or financial
strategies of Genesco, (vi) financial or other performance data, (vii) pricing
policies or strategies, or (viii) any other proprietary or confidential
information of Genesco and Genesco's subsidiaries, whether or not obtained with
the knowledge and permission of Genesco or any subsidiaries of Genesco and
whether or not developed, devised or otherwise created in whole or in part by
his efforts, except for those matters which have been publicly disclosed by
Genesco, a subsidiary of Genesco or any other person.
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8. MISCELLANEOUS.
a. Successors and Assigns. This Agreement
shall be binding upon and shall inure to the benefit of
Genesco, its successors and assigns, and Clark, his heirs,
personal representatives, successors and assigns.
b. Survival. All representations and warranties
contained in this Agreement shall survive the execution and
delivery hereof.
c. Specific Performance. The parties hereto
agree that irreparable damage would occur in the event that
any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be
entitled to injunctive relief to prevent breaches of this
Agreement and to enforce specifically the terms and provisions
hereof in any court of the United States or any state thereof
having jurisdiction, this being in addition to any other
remedy to which they are entitled under this Agreement or at
law or in equity. In addition, a party that is required to
enforce the terms and provisions of this Agreement and is
successful therein shall be reimbursed by the other party for
all costs and expenses, including reasonable legal fees, that
it may incur with respect to such enforcement.
d. Entire Agreement. This Agreement constitutes
the entire agreement between Genesco and Clark relating to the
subject matter hereof and there are no terms other than those
contained herein and in the plans, arrangements and agreements
referred to in Section 2 of this Agreement. To the extent
that there is any conflict between the terms and provisions of
the Employment Agreement or any other agreements related to
compensation or benefits and this Agreement, the terms and
provisions of this Agreement shall prevail. This Agreement
may not be modified or amended except in a writing signed by
the parties hereto.
e. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of Tennessee without giving effect to principles of
conflicts of law.
f. Counterparts. This Agreement may be executed
in counterparts, which together shall constitute one and the
same agreement.
g. Enforceability. If any provision of this
Agreement shall be held or deemed to be or shall, in fact, be
invalid, inoperative or unenforceable as applied in any
particular case in any jurisdiction or jurisdictions, or in
all jurisdictions, because it conflicts with any provisions of
any constitution, statute, rule or public policy, or for any
reason, such circumstances shall not
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have the effect of rendering the provision in question
invalid, inoperative or unenforceable in any other case or
circumstance, or of rendering any other provision or
provisions of this Agreement invalid, inoperative or
unenforceable to any extent whatever. If any provision of
this Agreement shall be held or deemed to impose restrictions
which are too broad, too lengthy or otherwise unreasonable,
the parties hereto agree to be bound by a court's decision as
to what restrictions would be reasonable and acknowledge that
such court has the authority and discretion to make such a
determination.
h. Acknowledgement by Clark. Clark hereby
acknowledges that he has carefully read and fully understands
all the provisions of this Agreement. He further acknowledges
that, in considering whether to sign this Agreement, he has
not relied upon any representation or statement, written or
oral, not set forth in this Agreement and that he has not been
threatened or coerced into signing this Agreement by any
official of Genesco and that he has read, understood, and
fully and voluntarily accepts the terms of this Agreement.
i. Captions. The captions herein are for
purposes of identification only and shall not be considered in
construing this Agreement.
GENESCO INC.
By: /s/ David M. Chamberlain
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Name: David M. Chamberlain
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Title: President and CEO
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/s/ Thomas B. Clark
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THOMAS B. CLARK
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