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AMENDMENT NO. 1 TO
CHANGE OF CONTROL AGREEMENT
AMENDMENT NO. 1
TO CHANGE OF CONTROL AGREEMENT (“Amendment”), executed
and effective as of December 19, 2008 by and between COLLECTIVE
BRANDS, INC., formerly known as Payless ShoeSource, Inc., a
Delaware corporation (“CBI”), and
(“Executive”).
WHEREAS , CBI and Executive are parties to the amended
and restated change of control agreement entered into
(“Change of Control Agreement”).
WHEREAS , in order to avoid certain adverse federal
income tax consequences to Executive under the Change of Control
Agreement as a result of Sections 162(m) and 409A of the Internal
Revenue Code of 1986, as amended, relating to deferred
compensation, CBI desires to implement certain amendments to the
Change of Control Agreement; and
WHEREAS , CBI and Executive desire to amend the Change
of Control Agreement.
Section 1.
Amendment to Section 4(c) . Section 4(c) will be
replaced in its entirety with the following:
“(c)
Good Reason . The Executive’s employment may be
terminated by the Executive for Good Reason. ‘ Good
Reason ’ means in the absence of a written consent by the
Executive:
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1.
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the
assignment to the Executive of any duties inconsistent in any
material respect with the Executive’s position (including
status, offices, titles and reporting requirements), authority,
duties or responsibilities as contemplated by Section 3(a) of this
Agreement, or any other action by the Company that results in a
material diminution in such position, authority, duties or
responsibilities;
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2.
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any
other action or inaction that constitutes a material breach of the
terms of the Agreement;
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3.
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the
Company’s requiring the Executive to be based at any office
or location different than the office the Executive was employed
immediately preceding the Effective Date if such relocation
increases Executive’s one-way commute from the
Executive’s principal residence by more than 35
miles;
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4.
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any
purported termination by the Company of the Executive’s
employment otherwise than as expressly permitted by this Agreement;
or
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5.
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any
failure by the Company to comply with and satisfy
Section 10(c).
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Anything in
this Agreement to the contrary notwithstanding a termination by the
Executive for any reason during the 30-day period immediately
following the first anniversary of a Change of Control shall be
deemed to be a termination for Good Reason for all purposes of this
Agreement.”
Section 2.
Addition of Section 4(f) . Section 4(f) shall be
inserted as follows:
“(f)
Notice of Good Reason . Prior to complying with
Sections 4(d) and 11(b), (1) the Executive must provide
written notification of the Executive’s intention to resign
within 90 days after the Executive knows or has reason to know
of the occurrence of any such event in Sections 4(c)(1)-(5)
constituting Good Reason, (2) the Company shall have 30 days
from the receipt of such notice to effect a cure of the condition
constituting Good Reason under Section 4(c) and
(3)&n
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