exv10ws






Exhibit (10)s.




FIRST AMENDMENT

TO EMPLOYMENT PROTECTION AGREEMENT




     THIS FIRST AMENDMENT TO EMPLOYMENT PROTECTION AGREEMENT (the “Amendment”) is made and entered
into as of the ___ day of                     , 2010, by and among Genesco Inc., a Tennessee corporation (the
“Corporation”), and                           (“Executive”).



WITNESSETH:




     WHEREAS, the Corporation and Executive are parties to an Employment Protection Agreement made
and entered into as of the ___ day of                          , ____ (the “Employment Protection Agreement”);
and



     WHEREAS, the Corporation and Executive desire to amend the Employment Protection Agreement as
set forth herein.



     NOW, THEREFORE, in consideration of the covenants and agreements contained herein, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:



AGREEMENT





	 	1.	 	Capitalized Terms. Capitalized terms used and not otherwise defined herein
shall have the meanings ascribed thereto in the Employment Protection Agreement.
	 
	 	2.	 	Amendment of Employment Protection Agreement. The Employment Protection
Agreement is hereby amended as follows:






	 	(a)	 	Section 3 of the Employment Protection Agreement is hereby
deleted in its entirety and replaced with the following:
	 
	 	 	 	     “3. EMPLOYMENT PERIOD. If the Executive is employed on the
Effective Date, the Corporation agrees to continue the Executive in its
employ, and the Executive agrees to remain in the employ of the
Corporation, for the period (the “Employment Period”) commencing on the
Effective Date and ending on the earliest to occur of (i) the third
anniversary of the Effective Date and (ii) the date of any termination of
the Executive’s employment in accordance with Section 6 of this
Agreement.”
	 
	 	(b)	 	Section 6(d)(i) to (iv) inclusive of the Employment Protection
Agreement shall be deleted and the following shall be inserted in their stead:






	 	“(i)	 	a good faith determination by the Executive that,
without his prior written consent, the Corporation or any of its
officers has taken or failed to take any action (including, without
limitation, (A) exclusion of the Executive from consideration of
material matters within his





 









 











	 	 	 	area of responsibility, (B) statements or action which undermine the
Executive’s authority with respect to persons under his supervision
or reduce his standing with his peers, (C) a pattern of
discrimination against or harassment of the Executive or persons
under his supervision, or (D) the subjection of the Executive to
procedures not generally applicable to other similarly situated
executives) which materially changes the Executive’s position
(including titles), authority or responsibilities under Section 4 of
this Agreement or materially reduces the Executive’s ability to carry
out his duties and responsibilities under Section 4 of this
Agreement;






	 	(ii)	 	any failure by the Corporation to comply with any
of the provisions of Section 5 of this Agreement, other than an
immaterial or inadvertent failure remedied by the Corporation promptly
after receipt of notice thereof from Executive;
	 
	 	(iii)	 	the Corporation’s requiring the Executive to be
employed at any location more than 50 miles further from his principal
residence than the location at which the Executive was employed
immediately preceding the Effective Date; or
	 
	 	(iv)	 	any failure by the Corporation to obtain the
assumption of and agreement to perform this Agreement by a successor as
contemplated by Section 14(b) of this Agreement, provided that the
successor has had actual written notice of the existence of this
Agreement and its terms and an opportunity to assume the Corporation’s
responsibilities under this Agreement during a period of 30 days after
receipt of such notice.






	 	(c)	 	Section 6(e) of the Employment Protection Agreement shall
amended by replacing “180 days of the Executive’s having actual knowledge of
all the events” with “90 days of the initial existence of all the events” in
the second sentence thereof, and by replacing “not more than 15 days” with “not
less than 30 days and not more than 45 days” in the parenthetical following
(iii). The following sentence shall be inserted immediately before the last
sentence of Section 6(e):
	 
	 	 	 	“Executive’s termination on or after the date set forth in the Notice of
Termination shall be considered for “Good Reason” unless the Corporation
shall have remedied the condition within thirty (30) days following its
receipt of the Executive’s Notice of Termination.”
	 
	 	(d)	 	Section 7(a) of the Employment Protection Agreement is hereby
deleted in its entirely and replaced with the following:
	 
	 	 	 	“(a) DEATH OR DISABILITY. If the Executive’s employment is terminated during
the Employment Period by reason of the Executive’s death or Disability, this
Agreement shall terminate without further





 









 











	 	 	 	obligations to the Executive or Executive’s legal representatives, as
applicable, under this Agreement other than those obligations accrued
hereunder at the date of his death or Disability, including, for this purpose
(i) the Executive’s accrued but unpaid full Base Salary through the Date of
Termination, (ii) the product of (x) the average of the two most recent
annual bonuses paid to the Executive omitting from the average any year in
which no bonus was paid (the “Annual Bonus”) and (y) a fraction, the
numerator of which is the number of days in the current fiscal year of the
Corporation through the Date of Termination, and the denominator of which is
365 (such product, the “Pro-rated Bonus Obligation”), and (iii) any other
amounts or benefits owing to the Executive under the then applicable employee
benefit plans or policies of the Corporation, including an employee benefit
plan qualified under Section 401(a) of the Internal Revenue Code of 1986, as
amended (the “Code”) (collectively, an Employee Benefit Plan”), with such
amounts to be paid in accordance with the terms of such Employee Benefit
Plans (such amounts specified in clauses (i), (ii) and (iii) are hereinafter
referred to as “Accrued Obligations”). Except in the case of payments due to
the Executive under any Employee Benefit Plan, all such Accrued Obligations
shall be paid to the Executive or Executive’s legal representatives, as
applicable, in a lump sum in cash within 30 days of the Date of Termination.
Anything in this Agreement to the contrary notwithstanding, the Executive’s
family shall be entitled to receive benefits at least equal to the most
favorable level of benefits available to surviving families of executives of
the Corporation and its affiliates under such plans, programs and policies
relating to family death benefits, if any, of the Corporation and its
affiliates in effect at any time during the 90-day period immediately
preceding the Effective Date. For purposes of this Section 7(a), Disability
shall mean the Executive (i) is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be expected to
last for a continuous period of not less than 12 months, (ii) is, by reason
of any medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a continuous
period of not less than 12 months, receiving income replacement benefits for
a period of not less than 3 months under an accident and health plan
sponsored by the Corporation and which covers employees of the Corporation or
(iii) is determined to be totally disabled by the Social Security
Administration”
	 
	 	(e)	 	Section 7(b) of the Employment Protection Agreement is hereby
deleted in its entirely and replaced with the following:
	 
	 	 	 	     “(b) CAUSE AND VOLUNTARY TERMINATION. If, during the Employment
Period, the Executive’s employment shall be terminated for Cause or
voluntarily terminated by the Executive (other than on account of Good
Reason), the Corporation shall pay the Executive the Accrued Obligations
other than the Pro-rated Bonus Obligation. Except in the case of payments
due to the Executive under any Employee Benefit Plan, which




 









 






	 	 	 	payments shall be governed by the terms thereunder, the Executive shall be
paid all such Accrued Obligations in a lump sum in cash within 30 days of the
Date of Termination and the Corporation shall have no further obligations to
the Executive under the Agreement.”






	 	(f)	 	The last paragraph of Section 7(c)(i)(B) shall be restated as
follows:
	 
	 	 	 	“provided, however, that with respect to the medical insurance coverage
referred to in Section 5(d) of this Agreement, at the Executive’s election
made within 15 days after the Date of Termination, in lieu of paying the lump
sum amount attributable to such medical insurance coverage, the Corporation
shall provide the benefits described in clause (ii) below; and”
	 
	 	(g)	 	Section 7(c)(i)(C) of the Agreement shall be deleted in its
entirety.
	 
	 	(h)	 	Section 7(c)(ii) of the Agreement shall be restated as follows:
	 
	 	 	 	“ (ii) Continuation of Certain Welfare Plan Benefits. At the election of
the Executive, in lieu of the lump sum amount attributable to medical
coverage described in Section 7(d)(i)(B)(3) of this Agreement, the
Corporation shall (i) pay to Executive a lump sum equal to one half the
annual cost (as determined in such Section 7(d)(i)(B)(3)) of such medical
coverage and (ii) maintain at its expense for the continued benefit of the
Executive and his dependents all medical plans described in paragraph 5(d) of
this Agreement, or if continued participation is not possible under the terms
of such plans, the Corporation shall provide the Executive and his dependents
with benefits equivalent to those they were receiving under such medical
plans prior to the Effective Time, such benefits to be provided at the
Corporation’s expense by means of individual insurance policies, or if such
policies cannot be obtained, from the Corporation’s assets, all such benefits
to be provided, whether from the Corporation’s welfare benefit plans,
individual insurance policies or the Corporation’s general assets, from the
Date of Termination until the earlier of (i) the end of the eighteen month
period immediately following the Date of Termination or (ii) the Executive’s
normal retirement date under the Corporation’s retirement plans as in effect
from time to time.
	 
	 	 	 	The medical benefits required to be provided pursuant to this Section
7(d)(ii) are not intended to be a substitute for any extended coverage
benefits (“COBRA Rights”) described in Section 4980B of the Code, and such
COBRA Rights shall not commence until the period of coverage specified in the
immediately preceding sentence comes to an end.”
	 
	 	(i)	 	A new Section 9(e) is added to the Employment Protection
Agreement, which shall provide as follows:
	 
	 	 	 	“(e) Any “Gross-Up Payment” due to the Executive under this Section 9 shall
be paid at such time as provided in this Section 9, but in no event later




 









 






	 	 	 	than December 31 of the year following the year (A) any tax is paid to the
Internal Revenue Service regarding this Section 9 or (B) any tax audit or
litigation brought by the Internal Revenue Service or other relevant taxing
authority related to this Section 9 is completed or resolved in accordance
with Section 1.409A-3(i)(1)(v) of the Treasury Regulations.”






	 	(j)	 	The following paragraph shall be inserted as a new Section 16
of the Agreement:





     “16. EFFECT
OF SECTION 409A.





          (a) It is intended that (1) each installment of the payments provided
under this Agreement is a separate “payment” for purposes of Section 409A of
the Code, and (2) that the payments satisfy, to the greatest extent possible,
the exemptions from the application of Section 409A of the Code provided
under of Sections 1.409A-1(b)(4), 1.409A-1(b)(9)(iii), and 1.409A-1(b)(9)(v)
of the Treasury Regulations. Notwithstanding anything to the contrary in
this Agreement, if the Corporation determines (i) that on the date
Executive’s employment with the Corporation terminates or at such other time
that the Corporation determines to be relevant, Executive is a “specified
employee” (as such term is defined under Section 409A of the Code and the
Treasury Regulations promulgated thereunder) of the Corporation and (ii) that
any payments to be provided to Executive pursuant to this Agreement are or
may become subject to the additional tax under Section 409A(a)(1)(B) of the
Code or any other taxes or penalties imposed under Section 409A of the Code
if provided at the time otherwise required under this Agreement then such
payments shall be delayed until the date that is six months (or such longer
period required under Section 409A of the Code, including such period, if
applicable, as may be required under Internal Revenue Notice 2010-6) after
date of Executive’s “separation from service” (as such term is defined under
Section 409A of the Code) with the Corporation, or, if earlier the date of
the Executive’s death. Any amounts delayed under this Section 16(a) shall be
paid on the first day of the seventh month following the Executive’s
termination of employment, or if earlier, the Executive’s death.




(b) Notwithstanding any other provision to the contrary, a termination of
employment shall not be deemed to have occurred for purposes of any provision
of this Agreement providing for the payment of “deferred compensation” (as
such term is defined in Section 409A of the Code and the Treasury Regulations
promulgated thereunder) upon or following a termination of employment unless
such termination is also a “separation from service” from the Corporation
within the meaning of Section 409A of the Code and Section 1.409A-1(h) of the
Treasury Regulations and, for purposes of any such provision of this
Agreement, references to a “separation,” “termination,” “termination of
employment” or like terms shall mean “separation from service.”



 









 






(c) Notwithstanding any other provision to the contrary, in no event shall
any payment under this Agreement that constitutes “deferred compensation” for
purposes of Section 409A of the Code and the Treasury Regulations promulgated
thereunder be subject to offset by any other amount unless otherwise
permitted by Section 409A of the Code.




(d) Notwithstanding any other provision to the contrary, to the extent that
any reimbursement (including expense reimbursements), fringe benefit or
other, similar plan or arrangement in which the Executive participates during
the term of his employment under this Agreement (including, to the extent
applicable Section 5(e) above) or thereafter provides for a “deferral of
compensation” within the meaning of Section 409A of the Code and the Treasury
Regulations promulgated thereunder, (i) the amount eligible for reimbursement
or payment under such plan or arrangement in one calendar year may not affect
the amount eligible for reimbursement or payment in any other calendar year
(except that a plan providing medical or health benefits may impose a
generally applicable limit on the amount that may be reimbursed or paid),
(ii) subject to any shorter time periods provided herein or the applicable
plans or arrangements, any reimbursement or payment of an expense under such
plan or arrangement must be made on or before the last day of the calendar
year following the calendar year in which the expense was incurred, and (iii)
the right to any reimbursement or in-kind benefit may not be subject to
liquidation or exchange for another benefit.”




(e) For the avoidance of doubt, any payment due under this Agreement within
a period following the Executive’s termination of employment, death,
Disability or other event, shall be made on a date during such period as
determined by the Corporation in its sole discretion.




(f) This Agreement shall be interpreted in accordance with, and the
Corporation and the Executive will use their best efforts to achieve timely
compliance with, Section 409A of the Code and the Treasury Regulations and
other interpretive guidance promulgated thereunder, including without
limitation any such regulations or other guidance that may be issued after
the effective date of this Agreement. Notwithstanding any provision of this
Agreement to the contrary, in the event that the Corporation determines that
any compensation or benefits payable or provided under this Agreement may be
subject to Section 409A of the Code, the Corporation may adopt such limited
amendments to this Agreement and appropriate policies and procedures,
including amendments and policies with retroactive effect, that Corporation
reasonably determines are necessary or appropriate to (i) exempt the
compensation and benefits payable under this Agreement from Section 409A of
the Code and/or preserve the intended tax treatment of the compensation and
benefits provided with respect to this Agreement or (ii) comply with the
requirements of Section 409A of the Code.




	 	3.	 	Full Force and Effect. Except as amended by this Amendment, the Employment
Protection Agreement, as originally executed by the parties, shall remain in full




 









 






	 	 	 	force and effect.






	 	4.	 	Counterparts. This Amendment may be executed in counterparts, each of which
shall be deemed and original, and all of which, taken together, shall constitute a
complete document.





     IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the date first above
written.



	 	 	 	 	 
	 	 	 
	 	 	 
	 	[Executive] 	 
	 
	 	GENESCO INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: