EMPLOYMENT AGREEMENT

THIS AGREEMENT is made this 4th day of September, 2007 (the “Effective Date”), by and between COLLECTIVE BRANDS, INC., a Delaware corporation, (“CBI”) and DOUGLAS J. TREFF (“Executive”).

 

WITNESSETH:

 

WHEREAS, CBI and its related entities are one of the leading global footwear, accessories and lifestyle brands companies in the United States, reaching customers through multiple price points and selling channels, including retail, wholesale, licensing and e-commerce, throughout the United States, Europe, Puerto Rico, and the U.S. Virgin Islands, Guam, Saipan, Canada, and Central and South America.

 

WHEREAS, CBI conducts its business in part through various direct and indirect subsidiaries, including Payless ShoeSource, Inc., The Stride Rite Corporation, and Collective Licensing International, LLC (CBI and its subsidiaries and affiliates being collectively referred to as “Collective”).

 

WHEREAS, Executive recognizes and acknowledges that Executive's position with Collective provides him with access to Collective’s proprietary, trade secret and other confidential information relating to its business.

 

WHEREAS, Collective has expended a great deal of time, money and effort to develop and maintain its proprietary, trade secret and confidential information; this information, if misused or disclosed, could be very harmful to Collective's business and its competitive position in the marketplace.

 

WHEREAS, Executive recognizes and acknowledges that if Executive's employment with Collective ceases, Collective needs certain protections to ensure that Executive does not misuse or disclose any proprietary, trade secret or confidential information entrusted to Executive during the course of employment or take any other action which could result in a loss of Collective's good will that was generated on Collective's behalf and at its expense, and, more generally, to prevent Executive from having an unfair competitive advantage over Collective.

 

WHEREAS, Executive desires to be employed by Collective, to be eligible for potential compensation increases and to be given access to proprietary, trade secret and confidential information of Collective necessary for Executive to perform Executive’s job, but which Collective would not make available but for Executive’s signing and agreeing to abide by the terms of this Agreement.

 

In consideration of the mutual promises and agreements herein contained, and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

 

1. Term. This Agreement shall commence on the Effective Date and shall expire on September 4, 2009 (the “Contract Term”), unless sooner terminated in accordance with Paragraph 8 hereof. Beginning on September 5, 2007, the Contract Term will be automatically extended each day by one day, until either party delivers to the other written notice of non-renewal.

 

2. Duties.

 

(a) Executive shall perform all duties incident to the position of Executive Vice President, Chief Administrative Officer, as well as any other duties as may be assigned from time to time by Collective, and agrees to abide by all the by-laws, policies, practices, procedures and rules of Collective. Executive agrees to use Executive’s best efforts, energies and skill to perform the duties and responsibilities of the position, and to this end will devote Executive’s full time and attention exclusively to the business of Collective. Executive may be assigned or transferred to another management position, as designated by Collective, which may or may not provide the same level of responsibility as the initial assignment. This Agreement shall remain in effect and shall apply to Executive, without any need for re-execution, regardless of the Collective subsidiary or business division for which Executive works or provides services, or the duties to which Executive may in the future be assigned.

 

(b) At all times during the Contract Term, Executive will maintain Executive’s residence within reasonable access to the Corporate Headquarters of Collective or any division to which Executive may be assigned.

 

3. Compensation; Benefits.

 

(a) Base Salary. Collective agrees to pay Executive a base salary during the Contract Term at the annual rate of $525,000.00, less applicable taxes and withholding, payable in equal bi-weekly installments, which annual rate will be subject to an annual review, which may result in an increase or decrease in salary, during Collective’s regularly scheduled review time.

 

(b) Incentive Plans. Executive shall be eligible to participate in such annual and long-term plans, programs or arrangements established from time to time for senior executives of Collective (the "Incentive Plans"), in accordance with and subject to all of the terms and provisions of such Incentive Plans.

 

(c) Expenses. Collective shall reimburse Executive for all items of normal business expense incurred by Executive as an employee of Collective in accordance with Collective’s reimbursement policies in effect from time to time.

 

(d) Benefits. Collective has adopted certain welfare benefit plans (including, but not limited to, medical, prescription drug, dental, disability, and life insurance) and has established certain perquisites which may, from time to time, confer rights and benefits on Executive in accordance with their terms. Collective may also, in the future, adopt additional welfare benefit plans, establish additional perquisites, or amend, modify or terminate any of the aforesaid welfare benefit plans and arrangements, all in accordance with their terms and in accordance with applicable law. Unless effectively waived, Executive shall be entitled to whatever rights and benefits which may be conferred on Executive, from time to time in accordance with the terms of such plans and arrangements.

 

 

(e) Stock. Executive will be eligible for future grants of restricted stock, stock-settled stock appreciation rights, stock options, or performance units, if any, as may be granted under the terms of the Collective Brands, Inc. 2006 Stock Incentive Plan, in accordance with the criteria established from time to time by the Compensation Committee of the Collective Brands, Inc. Board of Directors.

 

(f)  Automobile Allowance. Executive shall be eligible for an automobile allowance as determined by Collective from time to time, paid monthly upon written request. The portion of the allowance that is substantiated as business-related will not be considered taxable. 

 

4. Noncompete.

 

(a) At all times during the Contract Term, and for a period of two (2) years immediately following Executive’s last day of employment with Collective, Executive will not directly or indirectly:

(i) own, manage, operate, finance, join, control, or participate in the ownership, management, operation, financing, or control of, or be a partner in, be employed by, or act as an advisor, consultant, agent, officer, director, or independent contractor for, or otherwise have an interest in, a Competing Business; or

(ii) solicit, induce, hire, or attempt to aid or assist any person or entity other than Collective in soliciting for employment, offering employment to, or hiring, any employee of Collective or any person who, at any time during the 12 months prior to the solicitation, was employed by Collective.

Nothing in this Paragraph 4(a) shall prevent Executive, however, from performing Executive’s duties and responsibilities for Collective. In addition, ownership of an investment of less than the greater of $25,000 or 1% of any class of equity or debt security of a Competing Business shall not constitute ownership or participation in ownership in violation of Paragraph 4(a)(i).

(b) The term "Competing Business" shall include, but not be limited to:

(i) any retail business or licensee with gross sales or revenue in the prior fiscal year of more than $25 million (or which is a subsidiary, affiliate or joint venture partner of a business with gross sales or revenue in the prior fiscal year of more than $25 million) which sells footwear or accessories in whole or in part competitive to that sold by Collective (“Competitive Footwear”) (including, without limitation, Wal-Mart Stores, Inc.; Sears Holdings Corporation; Target Corporation; Foot Star, Inc.; DSW, Inc.; Aldo Shoes, Inc.; Ross Stores, Inc.; T.J. Maxx; Off-Broadway Shoes; Burlington Coat Factory Warehouse Corporation; Gennesco Inc.; Brown Shoe Company, Inc.; Shoe Carnival, Inc.; Kohl’s Corporation; Liz Claiborne, Inc.; Big 5 Sporting Goods Corporation; J.C. Penney Company; Shoe Zone, Limited; Bata, Limited; Shoes.com; Zappos.com), within 10 miles of any Collective store or the store of any wholesale customer or licensee of Collective in the United States, or anywhere in any foreign country in which Collective has retail stores, wholesale customers, or licensees;

 

 

(ii) any franchising or wholesaling business with gross sales or revenues in the prior fiscal year of more than $25 million (or which is a subsidiary, affiliate or joint venture partner of a business with gross sales or revenues in the prior fiscal year of more than $25 million) which sells Competitive Footwear at wholesale to franchisees, retailers or other footwear distributors located within 10 miles of any Collective store or the store of any wholesale customer or licensee of Collective in the United States, or anywhere in any foreign country in which Collective has retail stores or wholesale customers;

(iii) any footwear manufacturing business with gross sales or revenue in the prior fiscal year of more than $25 million (or which is a subsidiary, affiliate or joint venture partner of a business with gross sales or revenue in the prior fiscal year of more than $25 million) which sells Competitive Footwear to retailers, wholesale customers, licensees, or other footwear distributors located within 10 miles of any Collective store or the store of any wholesale customer or licensee of Collective in the United States, or anywhere in any foreign country in which Collective has retail stores, wholesale customers, or licensees (including, without limitation, Nine West Shoes; Dexter Shoe Company; Liz Claiborne, Inc.; Wolverine Worldwide, Inc.; Timberland Company; Nike, Inc.; Reebok International, Ltd.; K-Swiss, Inc.; adidas-Salomon AG; Asics; FILA; New Balance; Puma) or

(iv) any business, located in the United States or any other country in which Collective operates, with gross sales or revenue in the prior fiscal year of more than $25 million engaged in the sale, licensing or sublicensing of footwear, apparel, sporting goods and accessories to other companies for manufacture and sale to the skateboarding, snowboarding, mountain biking, BMX biking, casual streetwear and youth lifestyle markets (including, without limitation, Adio; Anarchy; Circa; DC Shoes; Dragon; DVS; Element; Etnies; Globe; Lakai; Oakley; Osiris; Vans; Volcom; or World Industries); or

(v) any business which provides buying office services to any store or group of stores or businesses referred to in Paragraph 4(b).

(c) Background of non-compete restrictions:

(i) In connection with its business, Collective has expended a great deal of time, money and effort to develop and maintain its proprietary, trade secret and confidential information; this information, if misused or disclosed, could be very harmful to Collective's business and its competitive position in the marketplace;

(ii) Executive recognizes and acknowledges that Executive’s position with Collective provides Executive with access to Collective’s proprietary, trade secret, and confidential information;

 

 

(iii) Collective compensates its employees to, among other things, develop and preserve goodwill and relationships on Collective's behalf and to develop and preserve business information for Collective’s exclusive ownership and use;

(iv) long-term customer and supplier relationships often can be difficult to develop and require a significant investment of time, effort and expense; and

(v) Executive recognizes and acknowledges that if Executive’s employment with Collective were to cease, Collective would need certain protections in order to ensure that Executive does not appropriate or use any confidential and proprietary trade secret information entrusted to Executive during the course of employment or take any other action which could result in a loss of Collective’s goodwill that was generated on Collective’s behalf and at its expense, and, more generally, to prevent Executive from having an unfair competitive advantage over Collective.

(d) Reasonableness of non-compete restrictions. Executive acknowledges and agrees that the restrictions in Paragraph 4 are reasonable and that such restrictions are enforceable in view of the background for the non-compete restrictions set forth in the Paragraph 4(c), and in view of, among other things, the following:

(i) the markets in which Collective operates its businesses;

(ii) the proprietary, trade secret, and other confidential business information to which Executive has or will have access;

(iii) Executive's training and background, which are such that neither Collective nor Executive believes that the restraint will pose an undue hardship on the Executive or prevent Executive from finding suitable non-competitive employment during the specified period of non-competition;

(iv) a Competing Business could benefit greatly if it were to obtain Collective's proprietary, trade secret, and other confidential business information;

(v) Collective would not have adequate protection if Executive is permitted to work for any Competing Business in violation of this Agreement since Collective would be unable to verify whether its proprietary, trade secret, and other confidential business information was being disclosed or misused;

(vi) the limited duration and limited scope of, and the limited activities prohibited by, the restrictions in Paragraph 4; and

(vii) Collective's legitimate interests in protecting its proprietary, trade secret, and other confidential business information, goodwill and relationships.

(e) If Executive violates Executive’s obligations under Paragraph 4, then Collective shall be entitled to all legal and equitable rights and remedies under this Agreement, including all of its rights and remedies referred to in Paragraph 10 of this Agreement. Further, any time in which Executive is in violation of Executive’s obligations shall not count toward satisfying the time during which any injunctive restriction shall apply. For example, if Executive were to join a competitor in violation of the restrictions in Paragraph 4(a) and work for such competitor for one month before a court enjoined such violation, then the two year time period of the restriction would begin when such injunction were issued; the one month in which Executive violated the restriction would not count toward the time that the restriction applies.

(f) Executive agrees to provide a copy of this Agreement (with Paragraph 3(a) redacted, if desired) to any prospective employer Executive contacts during or after termination or resignation of employment. Executive authorizes Collective to contact Executive’s future employers and other entities with which Executive has any business relationship to determine Executive’s compliance with this Agreement or to communicate the contents of this Agreement to such employer and entities. Executive releases Collective, its employees and agents, from all liability for damages arising from such contact or communications.

 

5. Confidential Information.

 

(a) Executive will not, at any time during the Contract Term or after termination of employment, directly or indirectly use, make known, disclose, furnish, or make available Confidential Information (as defined herein), other than in the proper performance of the duties contemplated herein.

 

(b) “Confidential Information” means any non-public information pertaining to Collective’s business disclosed by Collective to Executive, or developed or learned by Executive during the course of Executive’s Collective employment, including, without limitation, any confidential information and documents concerning Collective’s customers; customer, supplier, and vendor lists; terms, conditions and other business arrangements with vendors, suppliers, or factories; contract factory lists; manufacturing plans; advertising, marketing plans and strategies; pricing information; profit margins; seasonal plans, goals, objectives and projections; compilations, analyses and projections regarding Collective's businesses, product segments, product lines, suppliers, sales and expense information; patent applications (prior to their being public); salary, staffing and employment information (including information about performance of other executives); operations manuals; computer software applications and other programs; techniques, methods, styles, designs and design concepts, business plans, knowledge and data related to processes, products, compounds, compositions, formulae, lasts and molds, and "know-how," techniques or any technical information not of a published nature relating, for example, to how Collective conducts its businesses;

 

(c) Executive acknowledges that Collective’s businesses are intensely competitive and that, by virtue of Executive’s employment with Collective, Executive will have access to and knowledge of Confidential Information. Executive also agrees that the misuse or direct or indirect disclosure of Confidential Information to existing or potential competitors of Collective would place it at a competitive disadvantage and would harm and damage Collective’s businesses.

 

(d) During Executive's employment with Collective and thereafter, Executive will: (i) notify and provide Collective immediately with the details of any unauthorized possession, use or knowledge of any Confidential Information, (ii) assist in preventing any reoccurrence of such possession, use or knowledge, and (iii) cooperate with Collective in any litigation or other action to protect or retrieve Confidential Information.   

 

6. Collective Intellectual Property. (a) Executive hereby assigns to Collective all of Executive’s rights, title, and interest (including but not limited to all patent, trademark, copyright and trade secret rights) in and to all Work Product (as defined herein). Executive further acknowledges and agrees that all copyrightable Work Product prepared by Executive within the scope of Executive’s employment with Collective are “works made for hire” and, consequently, that Collective owns all copyrights thereto. For purposes of this Agreement, “Work Product” shall include but is not limited to, all literary works, software, documentation, memoranda, photographs, artwork, sound recordings, audiovisual works, ideas, designs, inventions, discoveries, creations, conceptions, improvements, processes, algorithms, and so forth which (i) are prepared or developed by Executive, individually or jointly with others, during Executive’s employment with Collective, or within six (6) months thereafter, whether or not during working hours, and (ii) relate to or arise in any way out of (1) current and/or anticipated business and/or activities of Collective, (2) Collective’s current and/or anticipated research or development, (3) any work performed by Executive for Collective, and/or (4) any information or assistance provided by Collective, including but not limited to Confidential Information.

 

(b)  Executive shall promptly disclose to Collective all Work Product. All such Work Product is and shall forthwith become the property of Collective, or its designee, whether or not patentable or copyrightable. Executive will execute promptly upon request any documents or instruments at any time deemed necessary or proper by Collective in order to formally convey and transfer to Collective or its designee title to such Work Product, or to confirm Collective or its designee’s title therein, and in order to enable Collective or its designee to obtain and enforce United States and foreign Letters Patent, Trademarks and Copyrights thereon. Executive will perform Executive’s obligations under this Paragraph 6 without further compensation, except for reimbursement of reasonable out-of-pocket expenses incurred at the request of Collective.

 

7. Disability. If Executive becomes Disabled and remains continuously so Disabled for a period of 180 days, then Collective's obligations under this Agreement may be terminated by notice in writing to that effect during the continuance of such Disability, such termination to take effect the later of (a) the last day of the month during which such notice is given or (b) the last day of such 180 day period. If Executive has made a previous election to participate in the Payless ShoeSource, Inc. Long-Term Disability Plan (subject to the terms and provisions of that plan), then the terms of that plan shall apply. "Disability" or "Disabled" shall mean disability as defined under the Payless ShoeSource, Inc. Long-Term Disability Plan applicable to Executive.

 

 

(a) For Cause; Voluntary Resignation; Death; Disability. Collective may terminate Executive’s employment for Cause at any time upon written notice to Executive, with immediate effect. Executive may voluntarily resign from Collective at any time upon 30 days written notice to Collective; provided, Collective may require Executive to cease working earlier and which date shall be the termination date. If Executive’s employment terminates during the Contract Term by reason of Executive’s death or Disability, by Executive’s voluntary termination of employment, or by Collective for Cause:

(i) Executive’s basic compensation and employee benefits shall cease on the date of such termination or resignation, except as otherwise provided in any applicable employee benefit plan or program;

(ii) Executive shall be entitled to receive Executive’s base salary through that date of termination or resignation (including payment for any accrued but unused vacation), payable within the first pay period following termination or resignation;

(iii) Executive will be reimbursed, in accordance with Collective policy, for any business expenses properly incurred by Executive prior to the date of termination or resignation;

(iv) Executive shall be entitled to any equity-linked awards, consistent with the terms of the applicable award agreements;

(v) Executive shall be entitled to such portion of any long-term cash incentive compensation as shall be payable under the terms of the Incentive Plans; and

(vi) Executive will have the opportunity to continue coverage in Collective’s medical, dental, and vision plans in which Executive is participating on the date of termination or resignation, through COBRA.

(b) Without Cause by Collective. Collective may terminate Executive’s employment Without Cause at any time upon written notice to Executive. If Executive’s employment is terminated Without Cause:

(i) Executive’s basic compensation and employee benefits shall cease on the date of such termination, except as otherwise provided herein or in any applicable employee benefit plan or program;

(ii) Executive shall be entitled to receive Executive’s base salary through that date of termination (including payment for any accrued but unused vacation);

(iii) Executive will be reimbursed, in accordance with Collective policy, for any business expenses properly incurred by Executive prior to the date of termination;

(iv) Provided that Executive is not in violation of, and does not violate, any of Executive’s obligations under Paragraphs 2, 4, 5, and 6 of this Agreement, Executive shall be entitled to a severance payment in an amount equal to two (2) times Executive’s then current base salary at the time of termination of employment, payable in a lump sum, less applicable withholdings and deductions;

(v) Executive shall be entitled to the amount of any annual award payable to Executive under the Incentive Plans for the fiscal year in which Executive’s employment is terminated, prorated by the number of days Executive is actively employed in that fiscal year divided by the number of days in the fiscal year, and payable at the time and pursuant to the terms of such Incentive Plans, less applicable withholdings and deductions; provided, however, such Annual Award must be paid no later than 2 ½ months from the end of Collective’s fiscal year in which Executive’s employment terminates;

(vi) Executive shall be entitled to any equity-linked awards, consistent with the terms of the applicable award agreements;

(vii) Executive shall be entitled to such portion of any long-term cash incentive compensation as shall be payable under the terms of the Incentive Plans;

(viii) Executive will receive a special payment which is the equivalent, before taxes, to the portion paid by Collective towards 18 months of COBRA coverage under Collective’s medical, dental and vision plans, to the extent Executive is participating in such plan(s) on the date of termination; and.

   (ix) Executive shall receive executive-level outplacement services to be coordinated by the Human Resources Department. Executive must commence utilizing the outplacement services no later than 30 days following the date of termination or the right to such services will cease. Provided, however, the services in no event will extend beyond 15 months following the date of termination.

(x) If at the time that Executive terminates employment Executive is a “key employee” within the meaning of IRC Section 409A and regulation issued thereunder, then, if necessary to comply with 409A, payment to Executive shall not be made until six (6) months after termination of employment and such payment shall be made in a lump sum, less applicable withholdings and deductions.

(c) "Cause" means:

 

(i) an act of fraud, embezzlement, or theft against Collective, or any other violation of the law that is harmful to its operations (excluding minor traffic violations), or conviction of a felony;

 

(ii) grossly negligent disclosure of Confidential Information contrary to the policy of Collective;

(iii) material breach of any of the terms of this Agreement, abuse of Executive’s position for personal gain, or breach of Executive’s duties to Collective and its shareholders;

(iv) engagement in any competitive activity which would constitute a breach of Executive's duty of loyalty or of Executive's obligations under this Agreement;

(v) grossly negligent breach of any policy of Collective including those contained in Collective’s Code of Ethics;

(vi) the conviction of Executive, or a plea of guilty or nolo contendre, to any crime involving moral turpitude;

(vii) the willful and continued failure by Executive to substantially perform Executive's duties with Collective (other than any such failure resulting from Executive's incapacity due to physical or mental illness); or

(viii) the willful engaging by Executive in conduct which is demonstrably or materially injurious to Collective, monetarily or otherwise.

For purposes of this Paragraph 8(c), an act, or a failure to act, shall not be deemed "willful" or "intentional" unless it is done, or omitted to be done, by Executive in bad faith or without reasonable belief that Executive's action or omission was in the best interest of Collective, as determined by Collective’s Senior Vice President-Human Resources. Failure to meet performance standards or objectives, by itself, will not constitute "Cause".

 

Collective shall be entitled to suspend Executive with pay while investigating any conduct that could constitute Cause.

 

(d) Executive agrees that, in addition to any other remedies, and to the extent permitted by law and or plan, Collective shall be permitted, as part of the computation of any final amount due to Executive as compensation, wages, bonus, or otherwise, and before any such amount shall be due and owing, to reduce any amount which Collective may otherwise owe to Executive by any unpaid amount which Executive owes to Collective.

 

(e) Executive’s obligations under Paragraph 2 shall cease on the effective date of such resignation or termination for whatever cause(s), Executive’s obligations under the Agreement, including Paragraphs 4, 5, and 6, shall remain in full force and effect, and Collective shall be entitled to all legal and equitable rights and remedies under this Agreement, including all of its rights and remedies referenced in Paragraph 10 of this Agreement.

(f) Upon resignation or termination of employment due to whatever cause(s), Executive shall return all property of Collective which is then or thereafter comes into Executive’s possession, including but not limited to documents, contracts, agreements, plans, photographs, books, notes, records, computer diskettes and tapes, and any other electronically stored data and all copies of the foregoing, as well as an other material or equipment supplied by Collective, keys, credit cards, and equipment, and delete from Executive’s own computer or other electronic storage medium any Confidential Information. Executive shall also sign all documents necessary for Executive's immediate resignation as an officer of Collective.

(g) The payments and other benefits provided in Paragraph 8 are not made pursuant to any welfare benefit or pension plan as defined by the Employee Retirement Income Security Act of 1974.

9. Release and Waiver of Claims. The parties agree that payment of severance and other benefits provided in Paragraph 8 shall constitute payment in full for all compensation due to Executive, are in lieu of any benefits which Executive may otherwise be entitled under any Collective severance plans, and constitute full and complete discharge of any and all claims which Executive might otherwise have or purport to have with respect to any period subsequent to the effective date of such resignation or termination, for the payment of compensation, or any additional benefits provided by Collective to Executive. Provided, however, the payments of the amounts specified in Paragraph 8(b)(iv),(v),(viii) and (ix) are contingent upon Executive signing a Separation Agreement and General Release, prior to payment.

10. Remedies. Executive acknowledges and agrees that the restrictions in this Agreement are reasonable in order to protect Collective’s expectations and rights under this Agreement and to provide Collective with the protections it needs to, among other things, safeguard its Confidential Information. Executive agrees that any breach or threatened breach of Paragraphs 4, 5, or 6 of this Agreement by Executive will cause immediate irreparable injury to Collective, for which an award of damages alone may be inadequate. Therefore, Collective shall be entitled, in addition to any other legal or equitable right or remedy it may have, to temporary, preliminary, and permanent injunctive relief restraining such breach or threatened breach of Paragraphs 4, 5, or 6 of this Agreement. Moreover, any award of injunctive relief shall not preclude Collective from seeking or recovering any lawful compensatory damages which may have resulted from a breach of this Agreement, including forfeiture of any payments not yet made and return of any payments already received by Executive. In the event Collective is successful in any suit or proceeding relating to the enforcement of this Agreement, Executive agrees to pay Collective’s fees, costs and expenses, including attorneys’ fees.

11. Representations of Executive. Executive hereby represents and warrants that the execution and delivery of this Agreement and Executive’s employment with Collective do not violate any previous employment agreement or other contractual obligation of Executive with any other party. Executive has not disclosed, and will not disclose, to Collective any information, whether confidential, proprietary or otherwise, which Executive is not legally free to disclose. Executive shall abide by the terms of any nondisclosure or confidentiality agreement between Collective and any other parties.

12. Severability. The invalidity or unenforceability of any provision, or portion thereof, of this Agreement shall not affect the remainder of that provision or any other provision of the Agreement. If any clause is deemed overly broad, illegal, invalid, or unenforceable with respect to the duration of time or the geographic scope, then such clause shall automatically be amended to the extent (but only to the extent) necessary to make it sufficiently narrow in scope, time and geographic area so that it shall be enforceable, and that it is not illegal, void or unenforceable. All other remaining terms and provisions shall remain in full force and effect.

 

13. Entire Agreement. With the sole exception of the Change of Control Agreement dated September 4, 2007, and the Indemnification Agreement dated September 4, 2007, each between Collective and Executive, and each amended from time to time (collectively, the “Related Agreements”), the entire understanding and agreement between the parties has been incorporated into this Agreement, and this Agreement supersedes all other employment agreements or other arrangements (except the Related Agreements), whether oral or written, with respect to the subject matter contained herein. This Agreement may be executed in counterparts, in which case each of the two counterparts shall be deemed to be an original and the final counterpart shall be deemed to have been executed in Topeka, Kansas.

 

14. Amendment, Breach and Waiver. This Agreement may not be changed, amended, or modified in any manner except by a written instrument in writing signed by both the parties hereto, except that if IRC Section 409A is determined to have applicability to any portion of this Agreement, with the effect that Executive shall have no right to any payment hereunder prior to six months from employment termination, this Agreement may be amended by Collective to comply with IRC Section 409A. The failure of either party to enforce at any time any of the provisions of this Agreement shall in no way be construed to be a waiver of any of such provision, or of the right to such party thereto to enforce each and every such provision in the event of a subsequent breach.

 

15. Successors and Assigns. This Agreement and/or the rights hereunder shall be freely assignable by Collective. This Agreement shall inure to the benefit of, and be binding upon, any entity which shall succeed to Collective’s business. Being a contract for personal services, neither this Agreement nor any rights hereunder, shall be assigned by Executive, and any such attempts or purported assignment shall be null and void.

 

16. Third Party Beneficiary. Each CBI direct and indirect subsidiary is a third party beneficiary of this Agreement with respect to, among other things, the protection of each such subsidiary’s interest in such subsidiary’s Confidential Information, customer goodwill, relationships and contacts, and each such subsidiary has the full rights and power to enforce the rights, interests and obligations under this Agreement of or relating to such subsidiary.

 

17. Governing Law; Choice of Forum. This Agreement, and any questions relating or regarding the validity, interpretation, or performance, shall be governed by and construed in accordance with the laws of the State of Kansas, without reference to the conflicts or choice of law principles thereof. Collective and Executive agree that any action to enforce any provision of this Agreement shall be filed and litigated exclusively in any state court or federal court located in the City of Topeka, Kansas, or in Shawnee County, Kansas. Collective and Executive hereby waive any defense of lack of personal jurisdiction or venue in such courts and agree that process may be served, if made upon Collective, upon Collective’s registered agent (with a copy to Collective’s General Counsel), or if made upon Executive, at Executive’s last known address on the records of Collective.

 

 

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

 

 

EXECUTIVE

/s/ Douglas J. Treff______

Douglas J. Treff

COLLECTIVE BRANDS, INC.

By: /s/ Jay A. Lentz

 

Its: Senior Vice President - Human Resources