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Exhibit 10.33
FORM OF
AMENDED AND RESTATED SEVERANCE AGREEMENT
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This AMENDED AND RESTATED SEVERANCE AGREEMENT, dated as of August 26, 1994
(this "Agreement"), is made and entered by and between FEDERATED DEPARTMENT
STORES, INC., a Delaware corporation (the "Company"), and
________________________ (the "Executive").
RECITALS
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A. The Executive is a senior executive or key employee of the Company or one
or more of its Subsidiaries and has made and is expected to continue to make
significant contributions to the profitability, growth, and financial strength
of the Company and its Subsidiaries, taken as a whole;
B. The Company recognizes that, as is the case for most publicly held
companies, the possibility of a Change in Control (as hereinafter defined)
exists;
C. The Company desires to assure itself of both present and future continuity
of management and desires to establish certain minimum severance benefits for
certain of its senior executive officers and other key employees, including the
Executive, applicable in the event of a Change in Control;
D. The Company desires to ensure that its senior executives and other key
employees are not practically disabled from discharging their duties in respect
of a proposed or actual transaction involving a Change in Control; and
E. The Company desires to provide additional inducement for the Executive to
continue to remain in the ongoing employ of the Company.
NOW, THEREFORE, the Company and the Executive agree as follows:
1. CERTAIN DEFINED TERMS: In addition to terms defined elsewhere herein, the
following terms have the following meanings when used herein with initial
capital letters:
(a) "CHANGE IN CONTROL" means the occurrence during the Term of any of the
following events (other than, for purposes of clauses (i), (ii), and (iv)
below, the Federated/Macy's Merger (as that term is defined in the Amended
Joint Plan of Reorganization of R.H. Macy & Co., Inc. and the Company (the
"Plan")) or any other event provided for in the Federated/Macy's Merger
Agreement (as that term is defined in the Plan) or the Plan):
(i) The Company is merged, consolidated, or reorganized into or with
another corporation or other legal entity, and as a result of or immediately
following such
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merger, consolidation, or reorganization less than a majority of the combined
voting power of the then-outstanding securities of such other corporation or
entity immediately after such transaction are held in the aggregate by the
holders of the then-outstanding securities entitled to vote generally in the
election of directors of the Company ("Voting Stock") immediately prior to
such transaction;
(ii) The Company sells or otherwise transfers all or substantially all
of its assets to another corporation or other legal entity and, as a result
of or immediately following such sale or transfer, less than a majority of
the combined voting power of the then-outstanding securities of such other
corporation or entity immediately after such sale or transfer is held in the
aggregate by the holders of Voting Stock of the Company immediately prior to
such sale or transfer;
(iii) There is a report filed on Schedule 13D or Schedule 14D-1 (or any
successor schedule, form, or report or item therein), each as promulgated
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), disclosing that any person (as the term "person" is used in Section
13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial
owner (as the term "beneficial owner" is defined under Rule 13d-3 or any
successor rule or regulation promulgated under the Exchange Act) of
securities representing 30% or more the of the combined voting power of the
Voting Stock of the Company;
(iv) The Company files a report or proxy statement with the Securities
and Exchange Commission pursuant to the Exchange Act disclosing in response
to Form 8-K or Schedule 14A (or any successor schedule, form, or report or
item therein) that a change in control of the Company has occurred or will
occur in the future pursuant to any then-existing contract or transaction; or
(v) If, during any period of two consecutive years, individuals who
at the beginning of any such period constitute the directors of the
Company cease for any reason to constitute at least a majority thereof;
PROVIDED, HOWEVER, that for purposes of this clause (v) the following persons
will in all events be deemed to be directors of the Company as of the
beginning of the relevant two-year period: each director who is (A) a
director of the Company immediately after the Federated/Macy's Merger (as
that term is defined in the Plan) or (B) first elected, or first nominated
for election by the Company's stockholders, by a vote of at least two-thirds
of the directors of the Company (or a committee thereof) then still in office
who were directors of the Company at the beginning of the relevant two-year
period (including any person deemed to be a director pursuant to the
immediately preceding clause (A)).
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Notwithstanding the foregoing provisions of Section 1(a)(iii) or 1(a)(iv),
unless otherwise determined in a specific case by majority vote of the Board of
Directors of the Company (the "Board"), a "Change in Control" will not be
deemed to have occurred for purposes of Section 1(a)(iii) or 1(a)(iv) solely
because (1) the Company, (2) an entity in which the Company, directly or
indirectly, beneficially owns 50% or more of the voting securities (a
"Subsidiary"), or (3) any employee stock ownership plan or any other employee
benefit plan of the Company or any Subsidiary either files or becomes obligated
to file a report or a proxy statement under or in response to Schedule 13D,
Schedule 14D-1, Form 8-K, or Schedule 14A (or any successor schedule, form, or
report or item therein) under the Exchange Act disclosing beneficial ownership
by it of shares of Voting Stock, whether in excess of 30% or otherwise, or
because the Company reports that a change in control of the Company has
occurred or will occur in the future by reason of such beneficial ownership;
(b) "CAUSE" means that, prior to any termination pursuant to Section 3(b),
the Executive shall have committed:
(i) an intentional act of fraud, embezzlement, or theft in connection
with the Executive's duties or in the course of the Executive's employment
with the Company (if applicable) or any Subsidiary;
(ii) intentional wrongful damage to property of the Company or any
Subsidiary;
(iii) intentional wrongful disclosure of secret processes or confidential
information of the Company or any Subsidiary; or
(iv) intentional engagement in any Competing Business;
and any such act shall have been materially harmful to the Company and its
Subsidiaries, taken as a whole. For purposes of this Agreement, no act or
failure to act on the part of the Executive will be deemed "intentional" if it
was due primarily to an error in judgment or negligence, but will be deemed
"intentional" only if done or omitted to be done by the Executive not in good
faith and without reasonable belief that the Executive's act or omission was in
the best interest of the Company and its Subsidiaries, taken as a whole.
Notwithstanding the foregoing, the Executive will not be deemed to have been
terminated for "Cause" hereunder unless and until there has been delivered to
the Executive a copy of a resolution duly adopted by the affirmative vote of
not less than three-quarters of the Board then in office at a meeting of the
Board called and held for such purpose, after reasonable notice to the
Executive and an opportunity for the Executive, together with the Executive's
counsel (if the Executive chooses to have counsel present at such meeting), to
be heard before the Board, finding that, in the good faith opinion of the
Board, the Executive had committed an act constituting "Cause" as herein
defined and specifying the particulars thereof in detail. Nothing herein will
limit the
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right of the Executive or the Executive's beneficiaries to contest the validity
or propriety of any such determination;
(c) "COMPETING BUSINESS" means any investment by the Executive of $100,000
or more in, or the rendering by the Executive of any personal services to, any
business enterprise engaged in the general merchandise department store
business which (i) at the time of determination is substantially similar to the
whole or a substantial part of the business conducted by the Company or any of
its divisions or Subsidiaries or other affiliates, (ii) at the time of
determination is operating a store or stores which, during its or their fiscal
year preceding the determination, had aggregate net sales, including sales in
leased and licensed departments, in excess of $10,000,000, if such store or any
of such stores is or are located in a city or within a radius of 25 miles from
outer limits of a city where the Company, or any of its divisions of
Subsidiaries or other affiliates, is operating a store or stores which, during
its or their fiscal year preceding the determination, had aggregate net sales,
including sales in leased and licensed departments, in excess of $10,000,000,
and (iii) had aggregate net sales at all its locations, including sales in
leased and licensed departments and sales by its divisions and Subsidiaries and
other affiliates, during its fiscal year preceding that in which the Executive
made such an investment therein, or first rendered personal services thereto,
in excess or $100,000,000;
(d) "EMPLOYEE BENEFITS" means the perquisites, benefits, and service credit
for benefits as provided under any and all employee retirement income and
welfare benefit policies, plans, programs, or arrangements in which the
Executive is entitled to participate, including without limitation any stock
option, stock purchase, stock appreciation, savings, pension, supplemental
executive retirement, or other retirement income or welfare benefit, deferred
compensation, incentive compensation, group or other life, health,
medical/hospital, or other insurance (whether funded by actual insurance or
self-insured by the Company), disability, salary continuation, expense
reimbursement, and other employee benefit policies, plans, programs, or
arrangements that may now exist or any equivalent successor policies, plans,
programs, or arrangements that may be adopted hereinafter by the Company or any
Subsidiary, providing perquisites, benefits, and service credit for benefits at
least as great in the aggregate as are payable thereunder prior to a Change in
Control;
(e) "SEVERANCE BENEFIT" means an amount equal to (i) the product of (A) two
and (B) the sum of (1) the Executive's annualized base salary rate as of the
date of the first event constituting a Change in Control or, if higher, the
Executive's highest base salary received for any year in the three full
calendar years immediately preceding the first event constituting a Change in
Control and (2) the Executive's targeted annual bonus as of the date of the
first event constituting a Change in Control or, if higher, the Executive's
highest annual bonus received for any year in the three full calendar years
immediately preceding the first event constituting a Change of Control, minus
(ii) the amount of all cash payments actually
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received or to be received by the Executive following the Termination Date
which became due by virtue of the Executive's termination of employment and are
therefore in the nature of severance payments under any other employment,
retention, severance, or similar agreement with the Company or any Subsidiary
to which the Executive is a party or any severance pay plan of the Company or
any Subsidiary in which the Executive is a participant;
(f) "SEVERANCE PERIOD" means the period of time commencing on the date of
the first occurrence of a Change in Control and continuing until the earliest
of (i) the expiration of three years after the first occurrence of a Change in
Control, (ii) the Executive's death, and (iii) the Executive's attainment of
age 65;
(g) "TERM" means the period commencing as of the date hereof and expiring as
of the later of (i) the close of business on the fourth anniversary of the date
hereof and (ii) the expiration of the Severance Period; PROVIDED, HOWEVER, that
if, prior to a Change in Control, the Executive ceases for any reason to be an
employee of the Company or any Subsidiary, thereupon without further action the
Term will be deemed to have expired and this Agreement will immediately
terminate and be of no further effect, whether or not cause exists. For
purposes of this Section 1(g), the Executive will not be deemed to have ceased
to be an employee of the Company or any Subsidiary by reason of the transfer of
the Executive's employment between the Company and any Subsidiary, or among any
Subsidiaries; and
(h) "TERMINATION DATE" means (i) the date on which the Executive's
employment is terminated by the Company or any Subsidiary or (ii) the date on
which the Executive terminates his or her employment pursuant to Section 3(b).
2. OPERATION OF AGREEMENT: This Agreement will be effective and binding
immediately upon its execution, but, notwithstanding anything in this Agreement
to the contrary, will not be operative unless and until a Change in Control
occurs, whereupon without further action this Agreement will become immediately
operative.
3. TERMINATION FOLLOWING A CHANGE IN CONTROL: (a) In the event of the
occurrence of a Change in Control, the Executive's employment may be terminated
by the Company during the Severance Period without the Executive becoming
entitled to the benefits provided by Section 4 only upon the occurrence of one
or more of the following events:
(i) The Executive's death;
(ii) The Executive becoming permanently disabled within the meaning of,
and beginning actually to receive disability benefits pursuant to, the
long-term disability plan of the Company or any Subsidiary in effect for, or
applicable to, the Executive immediately prior to the Change in Control; or
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(iii) Cause.
If the Executive's employment is terminated by the Company during the Severance
Period, other than pursuant to Section 3(a)(i), 3(a)(ii), or 3(a)(iii), the
Executive will be entitled to the benefits provided by Section 4.
(b) On or after the commencement of the Severance Period, if one or more of
the following events (regardless of whether any other reason, other than Cause
as hereinabove provided, for termination exists or has occurred, including
without limitation the Executive's acceptance and/or commencement of other
employment) occurs, the Executive may terminate the Executive's employment with
the Company and any Subsidiary and become entitled to the benefits provided by
Section 4:
(i) The failure to elect or reelect or otherwise to maintain the
Executive in the office or the position, or a substantially equivalent
office or position, of or with the Company and/or a Subsidiary, as the case
may be, which the Executive held immediately prior to a Change in Control, or
the removal of the Executive as a director of the Company (or any successor
thereto) if the Executive had been a director of the Company immediately
prior to the Change in Control;
(ii) A significant adverse change in the nature or scope of the
authorities, powers, functions, responsibilities, or duties attached to the
position with the Company and any Subsidiary which the Executive held
immediately prior to the Change in Control, a reduction in the aggregate
amount of the Executive's combined base pay and incentive pay receivable from
the Company and its Subsidiaries, taken as a whole, or the termination or
denial of the Executive's rights to Employee Benefits or a reduction in the
scope or value thereof, except for any such termination or denial, or
reduction in the scope or value, of any Employee Benefits applicable
generally to all recipients of or participants in such Employee Benefits;
(iii) A determination by the Executive (which determination will be
conclusive and binding upon the parties hereto provided it has been made in
good faith and in all events will be presumed to have been made in good faith
unless otherwise shown by the Company by clear and convincing evidence) that
a change in circumstances has occurred following a Change in Control,
including without limitation a change in the scope of the business or other
activities for which the Executive was responsible immediately prior to the
Change in Control, which has rendered the Executive substantially unable to
carry out, has substantially hindered the Executive's performance of, or has
caused the Executive to suffer a substantial reduction in, any of the
authorities, powers, functions, responsibilities, or duties attached to the
position held by the Executive immediately prior to the Change in Control,
which situation is not remedied within 10 calendar days
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after written notice to the Company from the Executive of such determination;
(iv) The liquidation, dissolution, merger, consolidation, or
reorganization of the Company or transfer of all or substantially all of its
business and/or assets, unless the successor or successors (by liquidation,
merger, consolidation, reorganization, transfer, or otherwise) to which all
or substantially all of the Company's business and/or assets have been
transferred (directly or by operation of law) shall have assumed all duties
and obligations of the Company under this Agreement pursuant to Section
10(a);
(v) The Company relocates its principal executive offices, or
requires the Executive to have the Executive's principal location of
work changed, to any location which is in excess of 25 miles from the
location thereof immediately prior to the Change in Control, or requires the
Executive to travel away from the Executive's office in the course of
discharging the Executive's responsibilities or duties hereunder at least 20%
more (in terms of aggregate days in any calendar year or in any calendar
quarter when annualized for purposes of comparison to any prior year) than
was required of the Executive in any of the three full calendar years
immediately prior to the Change in Control without, in either case, the
Executive's prior written consent; and/or
(vi) Without limiting the generality or effect of the foregoing, any
material breach of this Agreement by the Company or any successor thereto.
(c) A termination by the Company pursuant to Section 3(a) or by the
Executive pursuant to Section 3(b) will not affect any rights which the
Executive may have pursuant to any other agreement, policy, plan, program, or
arrangement of the Company or any Subsidiary providing Employee Benefits
(except as provided in Section 4(a)), which rights will be governed by the
terms thereof.
4. SEVERANCE COMPENSATION: (a) If, following the occurrence of a Change in
Control, the Company terminates the Executive's employment during the Severance
Period other than pursuant to Section 3(a), or if the Executive terminates the
Executive's employment pursuant to Section 3(b), the Company will pay to the
Executive the Severance Benefit in immediately available funds, in United
States dollars, within five business days after the Termination Date. In
addition, for a period of two years following the Termination Date, the Company
will arrange to provide the Executive Employee Benefits that are welfare
benefits (but not stock option, stock purchase, stock appreciation, or similar
compensatory benefits) substantially similar to those which the Executive was
receiving or entitled to receive immediately prior to the Termination Date (or,
if greater, immediately prior to the reduction, termination, or denial
described in Section 3(b)(ii)), except that the level of any such Employee
Benefits to be provided to the Executive may be
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reduced in the event of a corresponding reduction applicable to generally all
recipients of or participants in such Employee Benefits, and an additional
period of two years will be considered service with the Company and its
Subsidiaries for the purpose of determining service credits and benefits due
and payable to the Executive under the Company's retirement income,
supplemental executive retirement, and other benefit plans of the Company
applicable to the Executive, the Executive's dependents, or the Executive's
beneficiaries immediately prior to the Termination Date. If and to the extent
that any benefit described in the immediately preceding sentence is not or
cannot be paid or provided under any policy, plan, program, or arrangement of
the Company or any Subsidiary, as the case may be, then the Company will itself
pay or provide for the payment of such Employee Benefits to the Executive, and,
if applicable, the Executive's dependents and beneficiaries. Without otherwise
limiting the purposes or effect of Section 5, Employee Benefits otherwise
receivable by the Executive pursuant to this Section 4(a) will be reduced to
the extent comparable welfare benefits are actually received by the Executive
from another employer during the Severance Period following the Executive's
Termination Date.
(b) There will be no right of set-off or counterclaim in respect of any
claim, debt, or obligation against any payment to or benefit for the Executive
provided for in this Agreement, except as expressly provided in the last
sentence of Section 4(a).
(c) Without limiting the rights of the Executive at law or in equity, if the
Company fails to make any payment or provide any benefit required to be made or
provided hereunder on a timely basis, the Company will pay interest on the
amount or value thereof at an annualized rate of interest equal to 1.25 times
the so-called composite "prime rate" as quoted from time to time during the
relevant period in the Midwest Edition of THE WALL STREET JOURNAL. Such
interest will be payable as it accrues on demand. Any change in such prime
rate will be effective on and as of the date of such change.
(d) Notwithstanding anything to the contrary contained in this Agreement or
in the 1992 Incentive Bonus Plan of the Company (the "Bonus Plan"), if,
following the occurrence of a Change in Control, the Company terminates the
Executive's employment during the Severance Period other than pursuant to
Section 3(a), or if the Executive terminates the Executive's employment
pursuant to Section 3(b), the Executive will be entitled to an additional
payment in the amount of the Executive's Long-Term Incentive Awards (as defined
in the Bonus Plan), in lieu of any other Long-Term Incentive Award under the
Bonus Plan, (a) calculated as if the Executive's Operating Unit (as defined in
the Bonus Plan) and the Executive (if applicable) had achieved 100% of its or
his Performance Goals (as defined in the Bonus Plan) and (b) prorated on the
basis of the ratio of the number of months of the Executive's participation
during the Performance Period (as defined in the Bonus Plan) to which the
Long-Term Incentive Award
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related to the aggregate number of months in such Performance Period.
(e) Notwithstanding anything to the contrary contained in this Agreement,
the parties' respective rights and obligations under this Section 4 and under
Section 7 will survive any termination or expiration of this Agreement
following a Change in Control or the termination of the Executive's employment
following a Change in Control for any reason whatsoever.
(f) Notwithstanding anything to the contrary contained in this Agreement, in
the 1992 Executive Equity Incentive Plan of the Company or any similar or
successor plan (an "Equity Plan"), or in any agreement evidencing a grant made
pursuant to any Equity Plan, immediately upon the occurrence of a Change in
Control, (i) any rights theretofore granted to the Executive to purchase stock
in the Company upon the exercise of an option, and any corresponding
appreciation rights, will become exercisable in full and (ii) any risks of
forfeiture and prohibitions or restrictions on transfer pertaining to any
restricted shares theretofore granted to the Executive will lapse.
5. NO MITIGATION OBLIGATION: The Company hereby acknowledges that it will be
difficult and may be impossible (a) for the Executive to find reasonably
comparable employment following the Termination Date and (b) to measure the
amount of damages which the Executive may suffer as a result of termination of
employment hereunder. Accordingly, the payment of the severance compensation
to the Executive in accordance with the terms of this Agreement is hereby
acknowledged by the Company to be reasonable and will be liquidated damages,
and the Executive will not be required to mitigate the amount of any payment
provided for in this Agreement by seeking other employment or otherwise, nor
will any profits, income, earnings, or other benefits from any source
whatsoever create any mitigation, offset, reduction, or any other obligation on
the part of the Executive hereunder or otherwise, except as expressly provided
in the last sentence of Section 4(a).
6. LIMITATION ON PAYMENTS AND BENEFITS: Notwithstanding anything to the
contrary contained in this Agreement, if, after taking into account all amounts
or benefits otherwise to be paid or payable, any amount or benefit to be paid
or provided under this Agreement would be an "Excess Parachute Payment," within
the meaning of Section 280G of the Internal Revenue Code of 1986, as amended
(the "Code"), or any successor provision thereto, but for the application of
this sentence, then the payments and benefits to be so paid or provided under
this Agreement will be reduced to the minimum extent necessary (but in no event
to less than zero) so that no portion of any such payment or benefit, as so
reduced, constitutes an Excess Parachute Payment; provided, however, that the
foregoing reduction will be made only if and to the extent that such reduction
would result in an increase in the aggregate payments and benefits to be
provided, determined on an after-tax basis (taking into account the excise tax
imposed pursuant to Section 4999 of the Code, or any successor provision
thereto, any tax imposed by any comparable provision of state law, and any
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applicable federal, state, and local income taxes). The determination of
whether any reduction in such payments or benefits to be provided under this
Agreement is required pursuant to the preceding sentence will be made at the
expense of the Company, if requested by the Executive or the Company, by the
Company's independent accountants. The fact that the Executive's right to
payments or benefits may be reduced by reason of the limitations contained in
this Section 6 will not of itself limit or otherwise affect any other rights of
the Executive other than pursuant to this Agreement. In the event that any
payment or benefit intended to be provided under this Agreement or otherwise is
required to be reduced pursuant to this Section 6, the Executive will be
entitled to designate the payments and/or benefits to be so reduced in order to
give effect to this Section 6. The Company will provide the Executive all
information reasonably requested by the Executive to permit the Executive to
make such designation. In the event that the Executive fails to make such
designation within 10 business days of the Termination Date, the Company may
effect such reduction in any manner it deems appropriate.
7. LEGAL FEES AND EXPENSES; SECURITY: It is the intent of the Company that
the Executive not be required to incur legal fees and the related expenses
associated with the interpretation, enforcement, or defense of the Executive's
rights under this Agreement by litigation or otherwise because the cost and
expense thereof would substantially detract from the benefits intended to be
extended to the Executive hereunder. Accordingly, if it should appear to the
Executive that the Company has failed to comply with any of its obligations
under this Agreement or in the event that the Company or any other person takes
or threatens to take any action to declare this Agreement void or
unenforceable, or institutes any litigation or other action or proceeding
designed to deny, or to recover from, the Executive the benefits provided or
intended to be provided to the Executive hereunder, the Company irrevocably
authorizes the Executive from time to time to retain counsel of the Executive's
choice, at the expense of the Company as hereinafter provided, to advise and
represent the Executive in connection with any such interpretation,
enforcement, or defense, including without limitation the initiation or defense
of any litigation or other legal action, whether by or against the Company or
any Director, officer, stockholder, or other person affiliated with the
Company, in any jurisdiction. Notwithstanding any existing or prior
attorney-client relationship between the Company and such counsel, the Company
irrevocably consents to the Executive's entering into an attorney-client
relationship with such counsel, and in that connection the Company and the
Executive agree that a confidential relationship will exist between the
Executive and such counsel. Without regard to whether the Executive prevails,
in whole or in part, in connection with any of the foregoing, the Company will
pay and be solely financially responsible for any and all attorneys' and
related fees and expenses incurred by the Executive in connection with any of
the foregoing.
8. EMPLOYMENT RIGHTS; TERMINATION PRIOR TO CHANGE IN CONTROL: Nothing
expressed or implied in this Agreement will
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create any right or duty on the part of the Company or the Executive to have
the Executive remain in the employ of the Company or any Subsidiary prior to or
following any Change in Control. Any termination of the employment of the
Executive or the removal of the Executive from any office or position in the
Company and each Subsidiary following the commencement of any discussion with a
third person that results in a Change in Control within 60 calendar days after
such termination or removal will be deemed to be a termination or removal of
the Executive after a Change in Control for purposes of this Agreement.
9. WITHHOLDING OF TAXES: The Company may withhold from any amounts payable
under this Agreement all federal, state, city, or other taxes that the Company
is required to withhold pursuant to any law or government regulation or ruling.
10. SUCCESSORS AND BINDING AGREEMENT: (a) The Company will require any
successor (whether direct or indirect, by purchase, merger, consolidation,
reorganization, or otherwise) to all or substantially all of the business or
assets of the Company, by 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 the Company would be required to perform if no
such succession had taken place, provided, however, that upon the occurrence of
the Federated/Macy's Merger (as that term is defined in the Plan), Macy's will
assume all of the obligations of the Company hereunder by operation of law and
without any further action on the part of any party hereto and the surviving
corporation in such transaction will be the "Company" for all purposes hereof.
This Agreement will be binding upon and inure to the benefit of the Company and
any successor to the Company, including without limitation any person acquiring
directly or indirectly all or substantially all of the business or assets of
the Company whether by purchase, merger, consolidation, reorganization, or
otherwise (and such successor will thereafter be deemed the "Company" for the
purposes of this Agreement), but will not otherwise be assignable,
transferable, or delegatable by the Company.
(b) This Agreement will inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, and legatees.
(c) This Agreement is personal in nature and neither of the parties hereto
will, without the consent of the other, assign, transfer, or delegate this
Agreement or any rights or obligations hereunder except as expressly provided
in Sections 10(a), 10(b), and 10(d). Without limiting the generality or effect
of the foregoing, the Executive's right to receive payments hereunder will not
be assignable, transferable, or delegatable, whether by pledge, creation of a
security interest, or otherwise, other than by a transfer by the Executive's
will or by the laws of descent and distribution and, in the event of any
attempted assignment or transfer contrary to this Section 10(c), the Company
will have no liability to pay any amount so attempted to be assigned,
transferred, or delegated.
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(d) Executive acknowledges that the Company is exploring the possibility of
establishing a corporate services company (the "Corporate Services Company") as
a wholly owned Subsidiary of the Company, which Corporate Services Company may
become the principal employer of Executive. In the event that the Corporate
Services Company is established and becomes the principal employer of
Executive, (i) without the consent of the Executive, the Company may assign its
rights and delegate its duties hereunder to the Corporate Services Company,
provided, however, that no such assignment or delegation will constitute a
novation or otherwise relieve the Company of any of its obligations hereunder,
and (ii) all references to the "Company" in Sections 3 (other than Section 3.b
(iv)), 4, 5, 7, 9, 10 (other than Section 10 (d)), 11, and 16 hereof will be
deemed to be to the Company and/or the Corporate Services Company.
11. NOTICES: For all purposes of this Agreement, all communications,
including without limitation notices, consents, requests, or approvals,
required or permitted to be given hereunder will be in writing and will be
deemed to have been duly given when hand delivered or dispatched by electronic
facsimile transmission (with receipt thereof orally confirmed), or five
calendar days after having been mailed by United States registered or certified
mail, return receipt requested, postage prepaid, or one business day after
having been sent for next-day delivery by a nationally recognized overnight
courier service such as Federal Express, UPS, or Purolator, addressed to the
Company (to the attention of the Secretary of the Company) at its principal
executive office and to the Executive at the Executive's principal residence as
shown in the Company's most current records, or to such other address as any
party may have furnished to the other in writing and in accordance herewith,
except that notices of changes of address will be effective only upon receipt.
12. GOVERNING LAW: The validity, interpretation, construction, and
performance of this Agreement will be governed by and construed in accordance
with the substantive laws of the State of Delaware, without giving effect to
the principles of conflict of laws of such State.
13. VALIDITY: If any provision of this Agreement or the application of any
provision hereof to any person or circumstance is held invalid, unenforceable,
or otherwise illegal, the remainder of this Agreement and the application of
such provision to any other person or circumstance will not be affected, and
the provision so held to be invalid, unenforceable, or otherwise illegal will
be reformed to the extent (and only to the extent) necessary to make it
enforceable, valid, or legal.
14. MISCELLANEOUS: No provision of this Agreement may be waived, modified,
or discharged unless such waiver, modification, or discharge is agreed to in
writing signed by the Executive and the Company. No waiver by either party
hereto at any time of any breach by the other party hereto or compliance with
any condition or provision of this Agreement to be performed by such other
party will be deemed a waiver of similar or dissimilar provisions
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or conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, expressed or implied with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement. References to Sections are to references to
Sections of this Agreement.
15. COUNTERPARTS: This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original but all of which
together will constitute one and the same agreement.
16. OTHER BENEFITS: Except as provided in Section 4(d), neither the
provisions of this Agreement nor the severance compensation, benefits, and
other payments provided for hereunder will reduce or increase any amounts
otherwise payable, or in any other way affect the Executive's rights as an
employee of the Company, whether existing now or hereafter, under any other
agreement or any benefit, incentive, retirement, stock option, stock bonus,
stock purchase, or other plan, program, or arrangement.
17. PRIOR AGREEMENT: This Agreement amends and restates the Agreement,
dated as of __________ __, 199_ (the "Prior Agreement"), between the Company
and the Executive, which Prior Agreement will, without further action, be
superseded as of the date hereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first above written.
FEDERATED DEPARTMENT STORES, INC.
By:____________________________
Name:_______________________
Title:______________________
_______________________________
[Name of Executive]