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EXHIBIT (10)p
EMPLOYMENT PROTECTION AGREEMENT
THIS AGREEMENT between Genesco Inc., a Tennessee corporation (the
"Corporation"), and ____________________ (the "Executive"), dated as of this
26th day of February, 1997.
W I T N E S S E T H:
WHEREAS, the Corporation and the Executive have agreed to enter into an
agreement providing the Corporation and the Executive with certain rights upon
the occurrence of a Change of Control (as defined below) to assure the
Corporation of continuity of management in the event of any Change of Control;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is hereby agreed by and between the Corporation and the
Executive as follows:
1. OPERATION OF AGREEMENT. The effective date of this Agreement shall be
the date on which a Change of Control occurs (the "Effective Date"), provided
that if the Executive is not employed by the Corporation on the Effective Date
this Agreement shall be void and without effect. This Agreement shall terminate
on January 31, 2001, provided that the term of this Agreement shall be extended
for one additional year on February 1, 1998 and each subsequent February 1,
unless the Executive shall have received written notice from the Corporation
prior to the November 1 immediately preceding such February 1 that the Board of
Directors of the Corporation (the "Board") has determined that the termination
date of this Agreement shall not be so extended. Notwithstanding the foregoing,
this Agreement shall not terminate on the date determined in accordance with the
preceding sentence if a Change of Control shall have occurred prior to such
date.
2. DEFINITIONS.
(a) CHANGE OF CONTROL. For purposes of this Agreement, a "Change of
Control" shall be deemed to have occurred if: (i) any person (as defined in
Section 3(a)(9) of the Securities Exchange Act of 1934, as amended from time to
time (the "Exchange Act"), and as used in Sections 13(d) and 14(d) thereof),
excluding the Corporation, any majority owned subsidiary of the Corporation (a
"Subsidiary") and any employee benefit plan sponsored or maintained by the
Corporation or any Subsidiary (including any trustee of such plan acting as
trustee), but including a "group" as defined in Section 13(d)(3) of the Exchange
Act (a "Person"), becomes the beneficial owner of shares of the Corporation
having at least 20% of the total number of votes that may be cast for the
election of directors of the Corporation (the "Voting Shares"); provided,
however, that such an event shall not constitute a Change of Control if the
acquiring Person has entered into an agreement with the Corporation approved by
the Board which materially restricts the right of such Person to direct or
influence the management or policies of the Corporation; (ii) the shareholders
of the Corporation shall approve any merger or other business combination of the
Corporation, sale of the Corporation's assets or combination of the foregoing
transactions (a "Transaction") other than a Transaction involving only the
Corporation and one or more of its Subsidiaries, or a Transaction immediately
following which the shareholders of the Corporation immediately prior to the
Transaction (excluding for this purpose any shareholder of the Corporation who
also owns directly or
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indirectly more than 10% of the shares of the other company involved in the
Transaction) continue to have a majority of the voting power in the resulting
entity; or (iii) within any 24-month period beginning on or after the date
hereof, the persons who were directors of the Corporation immediately before the
beginning of such period (the "Incumbent Directors") shall cease (for any reason
other than death) to constitute at least a majority of the Board or of the board
of directors of any successor to the Corporation, provided that any director who
was not a director as of the date hereof shall be deemed to be an Incumbent
Director if such director was elected to the Board by, or on the recommendation
of or with the approval of, at least two-thirds of the directors who then
qualified as Incumbent Directors either actually or by prior operation of this
Section 2(a)(iii).
(b) PARTICIPATION BY EXECUTIVE. Notwithstanding the foregoing, no Change of
Control shall be deemed to have occurred for purposes of this Agreement by
reason of any actions or events in which the Executive participates in a
capacity other than in his capacity as the Executive (or as a director of the
Corporation or a Subsidiary, where applicable).
3. EMPLOYMENT PERIOD. If the Executive is employed on the Effective Date,
the Corporation agrees to continue the Executive in its employ, and the
Executive agrees to remain in the employ of the Corporation, for the period (the
"Employment Period") commencing on the Effective Date and ending on the earliest
to occur of (i) the third anniversary of the Effective Date, (ii) the
Executive's normal retirement date under the Corporation's retirement plans as
in effect from time to time and (iii) the date of any termination of the
Executive's employment in accordance with Section 6 of this Agreement.
4. POSITION AND DUTIES.
(a) NO REDUCTION IN POSITION. During the Employment Period, the Executive's
position (including titles), authority and responsibilities shall be at least
commensurate with the highest of those held, exercised and assigned at any time
during the 90-day period immediately preceding the Effective Date.
(b) BUSINESS TIME. From and after the Effective Date, the Executive agrees
to devote his full business time during normal business hours to the business
and affairs of the Corporation and to use his best efforts to perform faithfully
and efficiently the responsibilities assigned to him hereunder, to the extent
necessary to discharge such responsibilities, except for
(i) reasonable time spent in serving on corporate, civic or charitable
boards or committees approved by the Board, in each case only if and
to the extent not substantially interfering with the performance of
such responsibilities, and
(ii) periods of vacation and sick leave to which he is entitled.
It is expressly understood and agreed that the Executive's continuing to serve
on any boards and committees on which he is serving or with which he is
otherwise associated with the consent or approval of the Corporation immediately
preceding the Effective Date shall not be deemed to interfere with the
performance of the Executive's services to the Corporation.
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5. COMPENSATION.
(a) BASE SALARY. During the Employment Period, the Executive shall receive
a base salary ("Base Salary") at a monthly rate at least equal to the monthly
salary paid to the Executive by the Corporation and any of its affiliated
companies immediately prior to the Effective Date. The Base Salary shall be
reviewed at least once each year after the Effective Date, and may be increased
(but not decreased) at any time and from time to time by action of the Board or
any committee thereof or any individual having authority to take such action in
accordance with the Corporation's regular practices. Neither payment of the Base
Salary nor payment of any increased Base Salary after the Effective Date shall
serve to limit or reduce any other obligation of the Corporation hereunder. For
purposes of the remaining provisions of this Agreement, the term "Base Salary"
shall mean Base Salary as defined in this Section 5(a) or, if increased after
the Effective Date, the Base Salary as so increased.
(b) ANNUAL BONUS. The Executive shall be eligible to participate during
each fiscal year of the Employment Period in a bonus or incentive compensation
plan with terms consistent with and at least as favorable to the Executive as
the plan in effect immediately prior to the Effective Date and with target and
maximum award potential at least equal to such plan.
(c) INCENTIVE AND SAVINGS PLANS AND RETIREMENT PROGRAMS. In addition to the
Base Salary and annual bonus payable as hereinabove provided, during the
Employment Period, the Executive shall be entitled to participate in all
incentive and savings plans and programs, including stock option plans and other
equity based compensation plans, and in all retirement plans, on a basis
providing him with the opportunity to receive compensation (without duplication
of the amount payable as an annual bonus) and benefits equal to those provided
by the Corporation to the Executive on an annualized basis under such plans and
programs as in effect at any time during the 90-day period immediately preceding
the Effective Date.
(d) BENEFIT PLANS. During the Employment Period, the Executive and his
family shall be entitled to participate in or be covered under all welfare
benefit plans and programs of the Corporation and its affiliated companies,
including all medical, dental, disability, group life, accidental death and
travel accident insurance plans and programs, as in effect at any time during
the 90-period immediately preceding the Effective Date.
(e) EXPENSES. During the Employment Period, the Executive shall be entitled
to receive prompt reimbursement for all reasonable expenses incurred by the
Executive in accordance with the policies and procedures of the Corporation as
in effect at any time during the 90-day period immediately preceding the
Effective Date.
(f) VACATION AND FRINGE BENEFITS. During the Employment Period, the
Executive shall be entitled to paid vacation and fringe benefits in accordance
with the policies of the Corporation as in effect at any time during the 90-day
period immediately preceding the Effective Date.
(g) OFFICE AND SUPPORT STAFF. During the Employment Period, the Executive
shall be entitled to an office or offices of a size and with furnishings and
other appointments, and to
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secretarial and other assistance, at least equal to the most favorable of the
foregoing provided to the Executive at any time during the 90-day period
immediately preceding the Effective Date.
6. TERMINATION.
(a) DEATH. Subject to the provisions of Section 1 hereof, this Agreement
shall terminate automatically upon the Executive's death.
(b) VOLUNTARY TERMINATION. Notwithstanding anything in this Agreement to
the contrary, the Executive may, upon not less than 30 days' written notice to
the Corporation, voluntarily terminate employment during the Employment Period
for any reason (including early retirement under the terms of the Corporation's
retirement plan as in effect from time to time), provided that any termination
by the Executive pursuant to Section 6(d) of this Agreement on account of Good
Reason (as defined therein) shall not be treated as a voluntary termination
under this Section 6(b).
(c) CAUSE. The Corporation may terminate the Executive's employment during
the Employment Period for Cause. For purposes of this Agreement, "Cause" means
(i) an act or acts of dishonesty or gross misconduct on the Executive's part
which result or are intended to result in material damage to the Corporation's
business or reputation or (ii) repeated material violations by the Executive of
his obligations under Section 4 of this Agreement which violations are
demonstrably willful and deliberate on the Executive's part.
(d) GOOD REASON. The Executive may terminate his employment during the
Employment Period for Good Reason. For purposes of this Agreement, "Good Reason"
means
(i) a good faith determination by the Executive that, without his prior
written consent, the Corporation or any of its officers has taken or
failed to take any action (including, without limitation, (A)
exclusion of the Executive from consideration of material matters
within his area of responsibility, (B) statements or actions which
undermine the Executive's authority with respect to persons under his
supervision or reduce his standing with his peers, (C) a pattern of
discrimination against or harassment of the Executive or persons under
his supervision or (D) the subjection of the Executive to procedures
not generally applicable to other similarly situated executives) which
changes the Executive's position (including titles), authority or
responsibilities under Section 4 of this Agreement or reduces the
Executive's ability to carry out his duties and responsibilities under
Section 4 of his Agreement;
(ii) any failure by the Corporation to comply with any of the provisions of
Section 5 of this Agreement, other than an insubstantial or
inadvertent failure remedied by the Corporation promptly after receipt
of notice thereof from the Executive;
(iii) the Corporation's requiring the Executive to be employed at any
location more than 50 miles further from his principal residence than
the location at
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which the Executive was employed immediately preceding the Effective
Date; or
(iv) any failure by the Corporation to obtain the assumption of and
agreement to perform this Agreement by a successor as contemplated by
Section 14(b) of this Agreement, provided that the successor has had
actual written notice of the existence of this Agreement and its terms
and an opportunity to assume the Corporation's responsibilities under
this Agreement during a period of 10 business days after receipt of
such notice.
(e) NOTICE OF TERMINATION. Any termination by the Corporation for Cause or
by the Executive for Good Reason during the Employment Period shall be
communicated by Notice of Termination to the other party hereto given in
accordance with Section 15(c) of this Agreement. For purposes of this Agreement,
a "Notice of Termination" means a written notice given, in the case of a
termination for Cause, within 10 business days of the Corporation's having
actual knowledge of all of the events giving rise to such termination, and in
the case of a termination for Good Reason, within 180 days of the Executive's
having actual knowledge of the events giving rise to such termination, and which
(i) indicates the specific termination provision in this Agreement relied upon,
(ii) sets 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) if the termination date is other than the date
of receipt of such notice, specifies the termination date of this Agreement
(which date shall be not more than 15 days after the giving of such notice). The
failure by the Executive to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Good Reason shall not waive any
right of the Executive hereunder or preclude the Executive from asserting such
fact or circumstance in enforcing his rights hereunder.
(f) DATE OF TERMINATION. For purposes of this Agreement, the term "Date of
Termination" means (i) in the case of a termination for which a Notice of
Termination is required, the date of receipt of such Notice of Termination or,
if later, the date specified therein and (ii) in all other cases, the actual
date on which the Executive's employment terminates during the Employment
Period.
7. OBLIGATIONS OF THE CORPORATION UPON TERMINATION.
(a) DEATH. If the Executive's employment is terminated during the
Employment Period by reason of the Executive's death, this Agreement shall
terminate without further obligations to the Executive's legal representatives
under this Agreement other than those obligations accrued hereunder at the date
of his death, including, for this purpose (i) the Executive's full Base Salary
through the Date of Termination, (ii) the product of (x) the average of the two
most recent annual bonuses paid to the Executive omitting from the average any
year in which no bonus was paid (the "Annual Bonus") and (y) a fraction, the
numerator of which is the number of days in the current fiscal year of the
Corporation through the Date of Termination, and the denominator of which is 365
(such product, the "Pro-rated Bonus Obligation"), (iii) any compensation
previously deferred by the Executive (together with any accrued earnings
thereon) and not yet paid by the Corporation and (iv) any other amounts or
benefits owing to the Executive under the then applicable employee benefit plans
or policies of the Corporation (such amounts specified in clauses (i), (ii),
(iii) and (iv) are hereinafter referred to as "Accrued Obligations"). Unless
otherwise directed by the Executive (or, in
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the case of any employee benefit plan qualified (a "Qualified Plan") under
Section 401(a) of the Internal Revenue Code of 1986, as amended (the "Code"), as
may be required by such plan), all such Accrued Obligations shall be paid to the
Executive's legal representatives in a lump sum in cash within 30 days of the
Date of Termination. Anything in this Agreement to the contrary notwithstanding,
the Executive's family shall be entitled to receive benefits at least equal to
the most favorable level of benefits available to surviving families of
executives of the Corporation and its affiliates under such plans, programs and
policies relating to family death benefits, if any, of the Corporation and its
affiliates in effect at any time during the 90-day period immediately preceding
the Effective Date.
(b) CAUSE AND VOLUNTARY TERMINATION. If, during the Employment Period, the
Executive's employment shall be terminated for Cause or voluntarily terminated
by the Executive (other than on account of Good Reason), the Corporation shall
pay the Executive the Accrued Obligations other than the Pro-rated Bonus
Obligation. Unless otherwise directed by the Executive (or, in the case of any
Qualified Plan, as may be required by such plan), the Executive shall be paid
all such Accrued Obligations in a lump sum in cash within 30 days of the Date of
Termination and the Corporation shall have no further obligations to the
Executive under this Agreement.
(c) TERMINATION BY CORPORATION OTHER THAN FOR CAUSE OR DISABILITY AND
TERMINATION BY EXECUTIVE FOR GOOD REASON.
(i) Lump Sum Payment. If, during the Employment Period, the
Corporation terminates the Executive's employment other than for Cause or
Disability, or the Executive terminates his employment for Good Reason, the
Corporation shall pay to the Executive in a lump sum in cash within 15 days
after the Date of Termination the aggregate of the following amounts:
(A) If not theretofore paid, the Executive's Base Salary through the
Date of Termination at the rate specified in Section 5(a) of this
Agreement;
(B) a cash amount equal to three times the sum of
(1) the Executive's annual Base Salary at the rate specified in
Section 5(a) of this Agreement;
(2) the Annual Bonus; and
(3) the present value, calculated using the annual federal
short-term rate as determined under Section 1274(d) of the
Code, of (without duplication) (x) the annual cost to the
Corporation (based on the premium rates or other costs to
it) of obtaining coverage equivalent to the coverage under
the plans and programs described in Section 5(d) of this
Agreement, and (y) the annualized value of the fringe
benefits described under Section 5(f) of this Agreement;
provided, however, that with respect to the life and medical
insurance coverage referred to in Section 5(d) of this Agreement,
at the Executive's
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election made within 15 days after the Date of Termination, in
lieu of paying the lump sum amount attributable to such life or
medical insurance coverage, the Corporation shall provide the
benefits described in clause (ii) below; and
(C) a cash amount equal to any amounts (other than amounts payable to
the Executive under any Qualified Plans) described in Sections
7(a)(iii) and (iv) of this Agreement.
(ii) Continuation of Certain Welfare Plan Benefits. At the election of
the Executive, in lieu of the lump sum amount attributable to life
insurance and medical coverage described in Section 7(d)(i)(B)(3) of this
Agreement, the Corporation shall maintain at its expense for the continued
benefit of the Executive and his dependents all life insurance and medical
plans described in paragraph 5(d) of this Agreement, or if continued
participation is not possible under the terms of such plans, the
Corporation shall provide the Executive and his dependents with benefits
equivalent to those they were receiving under such life insurance and
medical plans prior to the Effective Date, such benefits to be provided at
the Corporation's expense by means of individual insurance policies, or if
such policies cannot be obtained, from the Corporation's assets, all such
benefits to be provided, whether from the Corporation's welfare benefit
plans, individual insurance policies or the Corporation's general assets,
from the Date of Termination until the earlier of (i) the third anniversary
of the Date of Termination or (ii) the Executive's normal retirement date
under the Corporation's retirement plans as in effect from time to time.
The medical benefits required to be provided pursuant to this Section
7(d)(ii) are not intended to be a substitute for any extended coverage
benefits ("COBRA Rights") described in Section 4980B of the Code, and such
COBRA Rights shall not commence until the period of coverage specified in
the immediately preceding sentence comes to an end.
8. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent or
limit the Executive's continuing or future participation in any benefit, bonus,
incentive or other plan or program provided by the Corporation or any of its
affiliated companies and for which the Executive may qualify, nor shall anything
herein limit or otherwise prejudice such rights as the Executive may have under
any stock option or other plans or agreements with the Corporation or any of its
affiliated companies. Amounts which are vested benefits or which the Executive
is otherwise entitled to receive under any plan or program of the Corporation or
any of its affiliated companies at or subsequent to the Date of Termination
shall be payable in accordance with such plan or program.
9. CERTAIN ADDITIONAL PAYMENTS BY THE CORPORATION.
(a) Anything in this Agreement to the contrary notwithstanding, in the
event it shall be determined that any payment or distribution by the Corporation
to or for the benefit of the Executive (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
9) (a "Payment") would be subject to the excise tax imposed by Section 4999 of
the Code (or any successor provision) or any interest or penalties are incurred
by the Executive with respect to such excise tax (such excise tax, together with
any such interest and penalties, are
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hereinafter collectively referred to as the "Excise Tax"), then the Executive
shall be entitled not later than 30 days following such determination to receive
an additional payment (a "Gross-Up Payment") in an amount such that after
payment by the Executive of all taxes with respect to the Gross-Up Payment
(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 Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
(b) Subject to the provisions of Section 9(c), all determinations required
to be made under this Section 9, 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 Price Waterhouse
LLP or other firm then auditing the accounts of the Corporation (the "Accounting
Firm") which shall provide detailed supporting calculations both to the
Corporation and the Executive within 15 business days of the receipt of notice
from the Executive that there has been a Payment, or such earlier time as is
requested by the Corporation. In the event that the Accounting Firm is serving
as accountant or auditor for the individual, entity or group effecting the
Change of Control, or is unwilling or unable to perform its obligations pursuant
to this Section 9, the Executive 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 Corporation. In
computing the Executive's taxes for purposes of the Gross-Up Payment, the
Accounting Firm shall use the highest marginal federal, state and local income
tax rates applicable to the Executive for the year in which the Gross-Up Payment
is to be paid (or if those tax rates are unknown, for the year in which the
calculation is made) and shall assume the full deductibility of state and local
income taxes for purposes of computing federal income tax liability. The first
such determination shall be made by the Accounting Firm during the first taxable
year in which a Payment is made. Any Gross-Up Payment, determined pursuant to
this Section 9, shall be paid by the Corporation to the Executive within five
days of the receipt of the Accounting Firm's determination. Any determination by
the Accounting Firm shall be binding upon the Corporation and the Executive. As
a result of the potential uncertainty in the application of Section 4999 of the
Code (or any successor provision) 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 Corporation should have been made ("Underpayment"),
consistent with the calculations required to be made hereunder. In the event
that the Corporation exhausts its remedies pursuant to Section 9(c) and the
Executive 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 Corporation to or for
the benefit of the Executive.
(c) The Executive shall notify the Corporation in writing of any claim by
the Internal Revenue Service that, if successful, when combined with previous
payments of Excise Tax and income tax by the Executive, would require the
payment by the Corporation of a Gross-Up Payment in excess of Gross-Up Payments
previously paid by the Corporation. Such notification shall be given as soon as
practicable but no later than 10 business days after the Executive is informed
in writing of such claim and shall apprise the Corporation of the nature of such
claim and the date on which such claim is requested to be paid. The Executive
shall not pay such claim prior to the expiration of the 30-day period following
the date on which he gives such notice to the Corporation (or such shorter
period ending on the date that any payment of taxes with respect to such claim
is
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due). If the Corporation notifies the Executive in writing prior to the
expiration of such period that it desires to contest such claim, the Executive
shall:
(i) give the Corporation any information reasonably requested by the
Corporation relating to such claim,
(ii) take such action in connection with contesting such claim as the
Corporation 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 Corporation,
(iii) cooperate with the Corporation in good faith in order
effectively to contest such claim, and
(iv) permit the Corporation to participate in any proceedings relating
to such claim;
provided, however, that the Corporation 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 Executive
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, less the excess (if any) of
amounts previously paid by the Corporation as a Gross-Up Payment over the Excise
Tax and income tax paid by the Executive. Without limiting the foregoing
provisions of this Section 9(c), the Corporation 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 Executive to pay the tax claimed and sue for a refund or
contest the claim in any permissible manner, and the Executive 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
Corporation shall determine; provided, however, that if the Corporation directs
the Executive to pay such claim and sue for a refund, the Corporation shall
advance the amount of such payment to the Executive, on an interest-free basis,
and shall indemnify and hold the Executive 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 Executive with respect to which such contested amount is claimed to be due
is limited solely to such contested amount. Furthermore, the Corporation's
control of the contest shall be limited to issues with respect to which a
Gross-Up Payment would be payable hereunder and the Executive 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 Executive of an amount advanced by the
Corporation pursuant to Section 9(c), the Executive becomes entitled to receive
any refund with respect to such claim, the Executive shall (subject to the
Corporation's complying with the requirements of Section 9(c)) promptly pay to
the Corporation the amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). If, after the receipt by the
Executive of an amount advanced by the Corporation pursuant to Section 9(c), a
determination is
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made that the Executive shall not be entitled to any refund with respect to such
claim and the Corporation does not notify the Executive 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.
10. FULL SETTLEMENT. The Corporation's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, recoupment, defense or other right which
the Corporation may have against the Executive or others whether by reason of
the subsequent employment of the Executive or otherwise. In no event shall the
Executive be obligated to seek other employment by way of mitigation of the
amounts payable to the Executive under any of the provisions of this Agreement,
and no amount payable under this Agreement shall be reduced on account of any
compensation received by the Executive from other employment. In the event that
the Executive shall in good faith give a Notice of Termination for Good Reason
and it shall thereafter be determined by mutual consent of the Executive and the
Corporation or by a tribunal having jurisdiction over the matter that Good
Reason did not exist, the employment of the Executive shall, unless the
Corporation and the Executive shall otherwise mutually agree, be deemed to have
terminated, at the date of giving such purported Notice of Termination, by
mutual consent of the Corporation and the Executive and, except as provided in
the last preceding sentence, the Executive shall be entitled to receive only
those payments and benefits which he would have been entitled to receive at such
date otherwise than under this Agreement.
11. LEGAL FEES AND EXPENSES. In the event that a claim for payment of
benefits under this Agreement is disputed, the Corporation shall pay all
reasonable legal fees and expenses incurred by the Executive in pursuing such
claim, regardless of whether the Executive is successful, unless the proceeding
is brought by the Executive and is found by the court to be frivolous.
12. CONFIDENTIAL INFORMATION. The Executive shall hold in a fiduciary
capacity for the benefit of the Corporation all secret or confidential
information, knowledge or data relating to the Corporation or any of its
affiliated companies, and their respective businesses, (i) obtained by the
Executive during his employment by the Corporation or any of its affiliated
companies and (ii) not otherwise public knowledge (other than by reason of an
unauthorized act by this Executive). After termination of the Executive's
employment with the Corporation, the Executive shall not, without the prior
written consent of the Corporation, unless compelled pursuant to an order of a
court or other body having jurisdiction over such matter, communicate or divulge
any such information, knowledge or data to anyone other than the Corporation and
those designated by it. In no event shall an asserted violation of the
provisions of this Section 12 constitute a basis for deferring or withholding
any amounts otherwise payable to the Executive under this Agreement.
13. EMPLOYMENT CONTRACT OR SEVERANCE BENEFITS. Notwithstanding anything
else in this Agreement to the contrary, any amount payable to the Executive
hereunder on account of his termination of employment shall be reduced on a
dollar for dollar basis by each dollar actually paid to the Executive with
respect to such termination under the terms of any other employment contract
between the Executive and the Corporation or under any other severance program
or policy applicable to the Executive. Nothing in this Agreement shall be
construed to require duplication of
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any compensation, benefits or other entitlements provided to the Executive by
the Corporation under the terms of any employment contract which may address
similar matters.
14. SUCCESSORS.
(a) This Agreement is personal to the Executive and, without the prior
written consent of the Corporation, shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the Executive's legal
representatives.
(b) This Agreement shall inure to the benefit of and be binding upon the
Corporation and its successors. The Corporation shall require any successor to
all or substantially all of the business and/or assets of the Corporation,
whether direct or indirect, by purchase, merger, consolidation, acquisition of
stock, or otherwise, by an agreement in form and substance satisfactory to the
Executive, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent as the Corporation would be required to perform if
no such succession had taken place.
15. MISCELLANEOUS.
(a) APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Tennessee, applied without reference to
principles of conflict of laws.
(b) AMENDMENTS. This Agreement may not be amended or modified otherwise
than by a written agreement executed by the parties hereto or their respective
successors and legal representatives.
(c) NOTICES. All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive:
If to the Corporation: Genesco Inc.
1415 Murfreesboro Road
Nashville, Tennessee 37217
Attention: Secretary
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notices and communications shall be effective
when actually received by the addressee.
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(d) TAX WITHHOLDING. The Corporation may withhold from any amounts payable
under this Agreement such Federal, State or local taxes as shall be required to
be withheld pursuant to any applicable law or regulation.
(e) 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.
(f) CAPTIONS. The captions of this Agreement are not part of the provisions
hereof and shall have no force or effect.
IN WITNESS WHEREOF, the Executive has hereunto set his hand and the
Corporation has caused this Agreement to be executed in its name on its behalf,
and its corporate seal to be hereunto affixed and attested by its Secretary, all
as of the day and year first above written.
GENESCO INC.
ATTEST:
______________________________ By _________________________________
David M. Chamberlain, Chairman
(Seal)
EXECUTIVE:
____________________________________
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