<PAGE>
EXHIBIT 10.5(h)
FOOTSTAR CORPORATION
AND
FOOTSTAR, INC.
CONFIDENTIALITY AND
NON-COMPETITION AGREEMENT
This Agreement among Footstar Corporation, a Texas
corporation,
Footstar Inc., a Delaware
corporation, (together "Footstar"), and the employee
executing this Agreement
below ("Executive") is made and effective
this _______day of _______,
2004 (the "Effective Date").
WHEREAS, Executive is critical to the success and operation
of
Footstar's Meldisco business
segment, which primarily engages in the
procurement, sales and
marketing of footwear in leased premises located in
Kmart
and/or Sears
stores;
WHEREAS, Footstar desires to ensure the continued availability
of
the Executive's services and
to protect itself against solicitations of
employment of the Executive
from Kmart Corporation and/or Sears, Roebuck and
Co., their parents,
subsidiaries, affiliates and successors (collectively,
"Kmart").
WHEREAS, the loss of the Executive to Kmart thereof will
potentially
jeopardize Meldisco's
business model;
WHEREAS, Footstar has filed a motion with the Bankruptcy Court
for
the Southern District of New
York, where it has filed a Chapter 11 case, seeking
approval of the Meldisco
Compensation Program, including, without limitation,
the assumption and
continuation of an amended Footstar Senior Executive
Retirement Plan and all
accrued benefits thereunder, additional retention
bonuses, an increase in
severance benefits and authorization for an annual bonus
program in respect of fiscal
year 2005, as may be applicable to the Executive
and certain other executives
(collectively, the "Retention Incentives") (those
benefits applicable to
Executive are identified in Appendix A attached hereto);
and
WHEREAS, Executive's execution of this Agreement is a condition
to
Executive's participation in
the Retention Incentives applicable to Executive
(as identified in Appendix
A).
NOW, THEREFORE, in consideration of Executive's eligibility
for
participation in the
Retention Incentives, Executive's continued employment
with
Footstar and the mutual
covenants, understandings, representations, warranties,
undertakings and promises
hereinafter set forth, and intending to be legally
bound thereby, Footstar and
Executive agree as follows:
1. The Retention Incentives applicable to Executive (as
identified
in Appendix A to this
Agreement) shall not be effective unless this Agreement
is
executed and delivered by the
Executive and Footstar.
<PAGE>
2. Executive acknowledges that during the course of
his/her
employment with Footstar,
he/she necessarily has had and will have access to and
make use of proprietary
information and confidential records of Footstar, its
parents, subsidiaries and
affiliates (collectively, referred to herein as "the
Company"). Executive agrees
that he/she shall not during his/her employment or
at any time thereafter,
directly or indirectly, use for his/her own purpose or
for the benefit of any person
or entity other than the Company, nor otherwise
disclose, any proprietary
information to any individual or entity, unless such
disclosure has been
authorized by the Company or is otherwise required by
law.
Executive understands that
the term "proprietary information" is information
that was or will be developed
or created by or on behalf of the Company,
including without limitation,
by the Executive in the course of his/her work for
the Company, or which became
or will become known by or was or is conveyed to
the Company, which has
commercial value in the Company's business. By way of
illustration, but not
limitation, "proprietary information" includes, (a)
information concerning any
product, technology, technique or procedure employed
by the Company or under
development by or being tested by the Company; (b)
information concerning the
Company's policies, prices, systems, methods of
operations, files,
contractual arrangements or customers; (c) the Company's
trade secrets and other "know
how"; (d) information concerning the structure or
content of the Company's
databases; (e) information relating to the Company's
computer software, computer
systems, pricing or marketing methods, sales
margins, capital structure,
operating results, or business plans; (f)
information concerning the
Company's advertisers; (g) information concerning the
Company's suppliers; (h)
product and service information and future development
plans; (i) information
concerning the Company's finances, including without
limitation financial results,
financing, and ownership of the Company; (j)
information regarding the
compensation of other executives or of consultants to
the Company; (k) any
information which is generally regarded as confidential
or
proprietary in any line of
business engaged in by the Company; and (1) all
written, graphic and other
material relating to any of the foregoing.
Executive understands that information that is not novel
or
copyrighted or patented may
nonetheless be proprietary information. The term
"proprietary information"
shall not include information generally available to
and known by the public or
information that is or becomes available to Executive
on a non-confidential basis
from a source other than the Company or the
Company's directors,
officers, executives, partners, principals or agents
(other
than as a result of a breach
of any obligation of confidentiality).
3. Executive shall not during his/her employment or at any
time
thereafter, except as
required by law, directly or indirectly publish, make
known or in any fashion
disclose any confidential records to, or permit any
inspection or copying of
confidential records by, any individual or entity other
than in the course of such
individual's or entity's employment or retention by
the Company. For purposes
hereof, "confidential records" means all Company
records, correspondence,
memoranda, files, manuals, books, lists, financial,
operating or marketing
records, magnetic, optical, or electronic or other media
or equipment of any kind
which may be in Executive's possession or control or
accessible to Executive which
contain any proprietary information. Executive
agrees that all confidential
records shall be and remain the sole property of
the Company during
Executive's employment with the Company and thereafter.
4. Upon the termination of Executive's employment, or at any
earlier
time as may be requested by
the Company, Executive agrees to deliver to the
Company all
documents,
2
<PAGE>
computer disks, tapes and
electronic media, together with all copies thereof
(whether or not such material
constitute proprietary information or confidential
records) obtained in the
course of his/her employment.
5. Executive acknowledges and recognizes the highly
competitive
nature of the Company's
business and that access to the Company's confidential
records and proprietary
information renders Executive special and unique within
the Company's industry. In
consideration of Executive's continued employment by
the Company and participation
in the Retention Incentives applicable to
Executive (as identified in
Appendix A attached hereto), Executive agrees that
during his/her employment by
the Company and for a period expiring twelve (12)
months following the earlier
of (i) the termination of Executive's employment
with the Company for any
reason, or (ii) the termination or expiration of the
Master Agreement between
Footstar, Inc. and Kmart Corporation, entered into as
of June 9, 1995 and effective
as of July 1, 1995, as amended (the "Restriction
Period"), either for
himself/herself or as a principal, agent, stockholder,
director, officer, member,
partner, employee, independent contractor, or
consultant of any firm,
corporation or association, or for any other person or
entity:
(a) Executive will not
attempt to or own, manage, finance, operate,
control, advise, assist,
provide services to or otherwise engage or participate
in any manner in the
procurement, sale or marketing of footwear, or the
operation of a footwear
business, in each case by or for Kmart or within any
Kmart store.
(b) Executive shall not directly or indirectly interfere with
or
disrupt the relationship,
contractual or otherwise, between the Company and (i)
Kmart or (ii) any of the
Company's vendors, suppliers or distributors.
(c) Executive shall not (i) directly or indirectly solicit
or
encourage any of the
employees, agents, consultants or representatives of the
Company to terminate his,
her, or its relationship with the Company, or (ii)
directly or indirectly
solicit or encourage any of the employees, agents,
consultants or
representatives of the Company to become employees,
agents,
representatives or
consultants of any other person or entity.
6. During the Restriction Period, Executive agrees that upon
the
earlier of Executive's (a)
negotiating with any Competitor (as defined below)
concerning the possible
employment of Executive by the Competitor, (b) receiving
an offer of employment from a
Competitor, or (c) becoming employed by a
Competitor, Executive will
(x) immediately provide notice to the Company of such
circumstances and (y) provide
copies of this Agreement to the Competitor.
Executive acknowledges that
the Company may provide notice to a Competitor of
Executive's obligations under
this Agreement. For purposes of this Agreement,
"Competitor" shall mean any
entity (other than the Company) that engages,
directly or indirectly, in
the procurement, sale or marketing of footwear, or
the operation of a footwear
business, in each case by or for Kmart or within any
Kmart store.
7. Executive understands that the provisions of this Agreement
limit
his/her ability to earn a
livelihood in a business similar to the business of
the Company, but permit him
to engage in any footwear business that is not
within any Kmart store or
operated by or for Kmart or does not otherwise involve
Kmart. Accordingly, Executive
agrees and hereby
3
<PAGE>
acknowledges that the
consideration provided by Executive's continued
employment
by the Company and
participation in the applicable Retention Incentives is
sufficient to justify the
restrictions contained in such provisions. Executive
further agrees and
acknowledges that (i) such provisions are reasonable as
to
time and scope of activity to
be restrained so as to protect the business
interests of the Company,
(ii) such provisions are not unduly burdensome to
Executive and (iii) that
he/she will not assert in any forum that such
provisions prevent Executive
from earning a living or otherwise are void or
unenforceable or should be
held void or unenforceable.
8. Executive acknowledges and agrees that, by virtue of
his/her
position, services, and
access to and use of confidential records and
proprietary
