Exhibit
10.21
EXECUTIVE
EMPLOYMENT AGREEMENT
AGREEMENT made
as of the _______ day of ________ 2008 between Foot Locker, Inc.
(the "Company"), a New York corporation with its principal office
located at 112 West 34th Street, New York, New York 10120, and
_________________ (“Executive").
W
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S
S
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:
WHEREAS, the
Company believes that the establishment and maintenance of a sound
and vital management of the Company is essential to the protection
and enhancement of the interests of the Company and its
shareholders;
WHEREAS, the
Company wishes to provide for the continued employment of the
Executive with the Control Group, and the Executive is willing to
commit himself to continue to serve the Company;
WHEREAS, this
Agreement supersedes any employment agreement, severance plan,
policy and/or practice of the Company in effect on the date hereof
for the Executive.
NOW, THEREFORE,
in consideration of the premises and mutual covenants herein
contained, the parties hereto hereby agree as follows:
1.
Definitions
.
The following terms shall have the meanings set forth in this
section as follows:
(a)
"Affiliate" shall mean the Company and any entity affiliated with
the Company within the meaning of Code Section 414(b) with respect
to a controlled group of corporations, Code Section 414(c) with
respect to trades or businesses under common control with the
Company, Code Section 414(m) with respect to affiliated service
groups and any other entity required to be aggregated with the
Company under Section 414(o) of the Code. No entity shall be
treated as an Affiliate for any period during which it is not part
of the controlled group, under common control or otherwise required
to be aggregated under Code Section 414.
(b)
"Beneficiary" shall mean the individual designated by the
Executive, on a form acceptable by the Committee, to receive
benefits payable under this Agreement in the event of the
Executive's death. If no Beneficiary is designated, the Executive's
Beneficiary shall be his spouse, or if the Executive is not
survived by a spouse, the Executive's estate.
(c)
"Board" shall mean the Board of Directors of the
Company.
(d)
"Cause" shall mean (with regard to the Executive's termination of
employment with the Control Group): (i) the refusal or willful
failure by the Executive to substantially perform his duties, (ii)
with regard to the Control Group or any of their assets or
businesses, the Executive's dishonesty, willful misconduct,
misappropriation, breach of fiduciary duty or fraud, (iii) the
willful breach by the Executive of any material provision of this
Agreement, which breach is not cured within ten (10) business days
from the date of the Company's notice of the occurrence of such
breach to the Executive, or (iv) the Executive's conviction of a
felony (other than a traffic violation) or any other crime
involving, in the sole discretion of the Committee, moral
turpitude.
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(e)
"Change in Control" shall have the meaning set forth in Appendix A
attached hereto.
(f)
"Code" shall mean the Internal Revenue Code of 1986, as amended and
as hereafter amended from time to time.
(g)
"Committee" shall mean the Compensation and Management Resources
Committee of the Board or an administrative committee appointed by
the Compensation and Management Resources Committee.
(h)
"Competition" shall mean participating, directly or indirectly, as
an individual proprietor, stockholder, officer, employee, director,
joint venturer, investor, lender, or in any capacity whatsoever
(within the United States of America, or in any other country where
any of the Executive's former employing members of the Control
Group does business) in (A) a business in competition with the
retail, catalog, or on-line sale of athletic footwear, athletic
apparel and sporting goods conducted by the Control Group (the
"Athletic Business"), or (B) a business that in the prior fiscal
year supplied product to the Control Group for the Athletic
Business having a value of $20 million or more at cost to the
Company or any of its subsidiaries or affiliates; provided,
however, that such participation shall not include (X)
the
mere ownership of not more than 1 percent of the total outstanding
stock of a publicly held company; (Y) the performance of services
for any enterprise to the extent such services are not performed,
directly or indirectly, for a business in competition with the
Athletic Business or for a business which supplies product to the
Control Group for the Athletic Business; or (Z) any activity
engaged in with the prior written approval of the Chief Executive
Officer of the Company.
(i)
"Control Group" shall mean the Company and its
Affiliates.
(j)
"Good Reason" shall mean (with respect to an Executive's
termination of employment with the Control Group):
(i)
Prior to a Change in Control, (A) a reduction in the Executive's
rate of base salary as payable from time to time, other than a
reduction that occurs in connection with, and in the same
percentage as, an across-the-board reduction over any three-year
period in the base salaries of all executives of the Company of a
similar level and where the reduction is less than 20 percent of
the Executive's base salary measured from the beginning of such
three-year period; or (B) a material and adverse change in the
nature and status of the Executive's authority or responsibilities,
except temporarily as a result of the Executive's disability,
illness or other absence.
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(ii) On or
after a Change in Control, (A) any reduction in the
Executive’s rate of base salary as payable from time to time;
(B) a failure of the Company to continue in effect the benefits
applicable to, or the Company's reduction of the benefits
applicable to, the Executive under any benefit plan or arrangement
(including without limitation, any pension, life insurance, health
or disability plan) in which the Executive participates as of the
date of the Change in Control without implementation of a
substitute plan(s) providing materially similar benefits in the
aggregate to those discontinued or reduced, except for a
discontinuance of, or reduction under, any such plan or arrangement
that is legally required, and provided that in either such event
the Company provides similar benefits (or the economic effect
thereof) to the Executive in any manner determined by the Company;
or (C) any material demotion of the Executive or any material
reduction in the Executive's authority or responsibility, except
temporarily as a result of the Executive's disability, illness or
other absence.
(iii) At any
time, (A) a reduction in the Executive's annual bonus
classification level other than in connection with a redesign of
the applicable bonus plan that affects all employees at the
Executive's bonus level; (B) the failure of any successor to the
Company to assume in writing the obligations hereunder; or (C) the
Company’s failure to renew this Agreement.
(k)
"Non-Competition Period" shall mean (i) the period the Executive is
employed by the Control Group and (ii) at any time prior to a
Change in Control, the one (1) year period commencing on the
Termination Date.
(l)
"Salary" shall mean an Executive's base cash compensation
rate for
services paid to the Executive by the Company or an Affiliate at
the time of his termination of employment from the Control Group.
Salary shall not include commissions, bonuses, overtime pay,
incentive compensation, benefits paid under any qualified plan, any
group medical, dental or other welfare benefit plan, noncash
compensation or any other additional compensation but shall include
amounts reduced pursuant to an Executive's salary reduction
agreement under Sections 125, 132(f) or 401(k) of the Code (if any)
or a nonqualified elective deferred compensation arrangement to the
extent that in each such case the reduction is to base
salary.
(m) “Section
409A” shall mean
Section 409A of the Code including the regulations issued
thereunder by the Department of the Treasury.
(n)
"Severance Benefit" shall mean (i) in the case of the Executive's
termination of employment with the Control Group that does not
occur within the 24 month period following a Change in Control and
such termination is a termination of employment by the Company
without Cause or by the Executive for Good Reason, 2.9 times his
weekly Salary multiplied by the Executive's Years of Service;
provided, however, that the Severance Benefit shall be no less than
39 weeks' Salary;
or (ii) in the case of the Executive's termination of employment
with the Control Group that occurs within the 24 month period
following a Change in Control and such termination is a termination
of employment by the Company without Cause or by the Executive for
Good Reason, 2.9 times his weekly Salary multiplied by the
Executive's Years of Service; provided, however, that the Severance
Benefit shall be no less than 1.45 times the Executive’s
annual Salary.
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(o)
"Severance Period" shall mean (i) in the case of the Executive's
termination of employment that does not occur within the 24 month
period following a Change in Control and such termination is a
termination of employment by the Company without Cause or by the
Executive for Good Reason, two weeks multiplied by the Executive's
Years of Service, with a minimum of 26 weeks; or (ii) in the case
of the Executive's termination of employment within the 24 month
period following a Change in Control and such termination is a
termination of employment by the Company without Cause or by the
Executive for Good Reason, two weeks multiplied by the Executive's
Years of Service, with a minimum of 52 weeks.
(p)
“Substantially All of the Assets of the Company” shall
mean at least 66 percent of the total gross fair market value of
the assets of the Company immediately prior to the acquisition by a
non-related third party, determined without regard to any
liabilities associated with such assets.
(q)
"Termination Date" shall mean in the case of the Executive's death,
the date of death, or in all other cases, the date specified in the
Notice of Termination; provided, however, that if the Executive's
employment is terminated by the Company due to disability as
provided in Section 7(b), the date specified in the Notice of
Termination shall be at least thirty (30) days from the date the
Notice of Termination is given to the Executive.
(r)
"Termination of Employment" shall mean separation from service with
the Control Group in accordance with Section 409A for any reason,
including, but not limited to retirement, death, disability,
resignation or dismissal with or without Cause; provided, however,
that if an Employer is no longer a member of the Control Group and
the Participant is transferred in connection with the sale of the
assets of an Employer and the successor assumes the obligations
hereunder in accordance with Section 13 hereof, a Termination of
Employment shall not occur until termination of employment with the
new control group.
(s)
"Year of Service" shall mean each 12 consecutive month period
commencing on the Executive's date of hire by the Company or an
Affiliate and each anniversary thereof in which the Executive is
paid by the Company or an Affiliate for the performance of
full-time services as an Executive. For purposes of this section,
full-time services shall mean that the Executive is employed for at
least 30 hours per week. A Year of Service shall include any period
during which the Executive is not working due to disability, leave
of absence or layoff so long as he is being paid by the Company or
an Affiliate (other than through any employee benefit plan). A Year
of Service also shall include service in any branch of the armed
forces of the United States by any person who is an Executive on
the date such service commenced, but only to the extent required by
applicable law.
2.
Term . The initial term of this Agreement shall commence on
______________ and shall end on _______________, unless
further extended or sooner terminated as hereinafter provided. The
term shall be automatically renewed for additional one-year periods
unless the Company notifies the Executive three months prior to the
end of the term that the term shall not be renewed. In no
event, however, shall the term of the Executive's employment extend
beyond the date of the Executive's actual retirement under a
retirement plan of the Company.
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3.
Position and
Duties . The Executive
shall serve as ___________________________ of the Company, and
shall have such responsibilities, duties and authority as he may
have as of the effective date of this Agreement (or any comparable
position to which he may be assigned after the effective date of
this Agreement) and as may from time to time be assigned to the
Executive by the ______________________ of the Company that are
consistent with such responsibilities, duties and authority. The
Executive shall devote substantially all of his working time and
efforts to the business and affairs of the Company and its
Affiliates.
4.
Place of
Performance . In connection
with the Executive's employment by the Company, the Executive shall
be based in the New York metropolitan area, except for required
travel on Company business.
5.
Compensation
and Related Matters
(a)
Salary
.
During the period of the Executive's employment hereunder, the
Company or an Affiliate shall pay to the Executive a salary at a
rate not less than the rate in effect as of the effective date of
this Agreement or such higher rate as may from time to time be
determined by the Company, such salary to be paid in accordance
with the Company's normal payroll practices.
(b)
Expenses
.
During the term of the Executive's employment hereunder, subject to
Section 20 hereof, the Executive shall be entitled to receive
prompt reimbursement for all reasonable and customary expenses
incurred by the Executive in performing services hereunder,
including all expenses of travel and living expenses while away
from home on business or at the request of and in the service of
the Company or an Affiliate, provided that such expenses are
incurred and accounted for in accordance with the policies and
procedures established by the Company.
(c)
Other
Benefits . The Company
shall maintain in full force and effect, and the Executive shall be
entitled to continue to participate in, all of the employee benefit
plans and arrangements in effect on the date hereof in which the
Executive participates or plans or arrangements providing the
Executive with at least equivalent benefits thereunder (including
without limitation each retirement plan, excess retirement plans,
annual incentive compensation plans, stock option and purchase
plans, group life insurance and accident plans, medical and dental
insurance plans, and disability plan), and the Company
shall not make any changes in such plans or arrangements that would
adversely affect the Executive's rights or benefits thereunder;
provided, however, that such a change may be made, including
termination of such plans or arrangements, to the extent permitted
by the respective plan or arrangement, if it occurs pursuant to a
program applicable to all comparably situated executives of the
Company and does not result in a proportionately greater reduction
in the rights of or benefits to the Executive as compared with any
other comparably situated executive of
the Company. The Executive shall be entitled to participate in or
receive benefits under any employee benefit plan or arrangement
made available by the Company in the future to its comparably
situated executives and
key management employees, subject to and on a basis consistent with
the terms, conditions and overall administration of such plans and
arrangements. Nothing paid to the Executive under any plan or
arrangement presently in effect or made available in the future
shall be deemed to be in lieu of the salary payable to the
Executive pursuant to Section 5(a). Any payments or benefits
payable to the Executive hereunder in respect of any calendar year
during which the Executive is employed by the Company for less than
the entire year shall, unless otherwise provided in the applicable
plan or arrangement, be prorated in accordance with the number of
days in such calendar year during which he is so
employed.
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(d)
Vacations
.
The Executive shall be entitled to no less than the number of
vacation days in each calendar year that is determined in
accordance with the Company's vacation policy as in effect on the
date hereof. The Executive shall also be entitled to all paid
holidays and personal days given by the Company to its
executives.
6.
Offices
.
Subject to Sections 3 and 4, the Executive agrees to serve without
additional compensation, if elected or appointed thereto, as a
director of the Company and any of its Affiliates and in one or
more executive offices of any of the Company's
Affiliates.
7.
Termination
.
The Executive's employment hereunder may be terminated without any
breach of this Agreement only upon the following
circumstances:
(a)
Death
.
The Executive's employment hereunder shall automatically terminate
upon his death.
(b)
Disability
.
If, as a result of the Executive's incapacity due to physical or
mental illness as determined by the Company in its sole discretion,
the Executive shall have been absent from his duties hereunder on a
full-time basis for a period of six consecutive months, and within
30 days after written Notice of Termination is given (which may
occur before or after the end of such six-month period) shall not
have returned to the performance of his duties hereunder on a
full-time basis, the Company may immediately terminate the
Executive's employment hereunder.
(c)
Cause
.
The Company may terminate the Executive's employment hereunder for
Cause by, at any time
at its election within six months after the Company shall obtain
knowledge of the grounds for termination, giving the Executive
notice of its intention to terminate the Executive for Cause and
stating the termination date and the grounds for
termination.
(d)
Good
Reason . The Executive
may terminate his employment hereunder for Good Reason upon 30
days' prior written notice to the Company; provided, however, that
prior to a Change in Control, if the Company corrects t
