RESIGNATION AND GENERAL RELEASE AGREEMENT
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This Resignation and General Release Agreement (this
"Agreement") is entered into by and between Xxxxxx'x Trading Company, Inc., an
Indiana corporation (the "Company"), and Xxxxxx X. Xxxx, an individual
("Executive").
WHEREAS, the Company and Executive are parties to an
employment agreement entered into as of July 1, 2003 (the "Employment
Agreement");
WHEREAS, pursuant to the Employment Agreement, Executive is
serving as Chief Executive Officer and Chairman of the Company and is a member
of the Company's Board of Directors;
WHEREAS, Executive wishes to resign from all positions with
the Company and from the Company's Board of Directors, as described herein;
WHEREAS, Executive has agreed to remain with the Company for a
three-month period to assist with the Company's transition efforts, as described
herein; and
WHEREAS, Executive and the Company each desire to set forth in
this Agreement the terms and conditions of Executive's resignation and resolve
any and all claims or potential claims between them arising out of or in any way
related to Executive's employment with the Company, his resignation from the
Company, or his Employment Agreement.
NOW, THEREFORE, in consideration of the mutual promises
contained herein and for other good and valuable consideration, receipt of which
is hereby acknowledged, the parties agree as follows:
1. Executive's Resignation. The Company and Executive acknowledge
and agree as follows:
(a) Executive shall resign as Chairman and Chief Executive
Officer of the Company effective as of the close of business on March 1, 2004.
(b) For the period beginning on March 2, 2004 and ending upon
Executive's Resignation Date (as defined in paragraph l(d) of this Agreement),
Executive shall remain employed by the Company and will assist the Company and
its appointed Chief Executive Officer with merchandising, marketing and other
transition issues.
(c) Effective as of the close of business on May 14, 2004, the
Executive shall resign from the Board of Directors of the Company; provided,
however, that in the event the appointed Chief Executive Officer or the Board of
Directors of the Company determine that it is in the Company's best interest,
Executive agrees that he shall resign from the Board of Directors on a date
earlier than May 14, 2004, at the Company's request.
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(d) Effective as of the close of business on May 31, 2004 (the
"Resignation Date"), Executive shall resign from all positions of employment
with the Company; provided, however, that in the event the appointed Chief
Executive Officer of the Company determines that it is in the Company's best
interest, Executive agrees that he shall resign from all positions of employment
with the Company on a date earlier than May 31, 2004, at the Company's request.
Executive further agrees that he may be terminated by the Company for any reason
(including Executive's death or disability) on a date earlier than May 31, 2004.
In the event the Company requests Executive to resign from all positions of
employment with the Company or terminates Executive on a date earlier than May
31, 2004, such earlier date shall be deemed the "Resignation Date" for purposes
of this Agreement.
2. Payments and Benefits to Executive. The Company agrees to
provide the following payments and benefits to Executive:
(a) The Company shall pay Executive his accrued salary and
unreimbursed business expenses through March 1, 2004. The Company shall
continue to pay Executive a base salary at his current rate and
Executive shall continue to be eligible to participate in Company
health insurance and retirement benefit plans, subject to the
requirements of the applicable benefit plans, through the Resignation
Date.
(b) The Company shall provide Executive with a bonus payment
in the gross amount of Five Hundred and Eighty Five Thousand Dollars
and No Cents ($585,000.00), representing his Target Bonus for fiscal
year 2004. Such payment shall be reduced by standard income and payroll
tax withholding and shall be paid within ten (10) business days
following the Resignation Date, but in no event later than May 31,
2004.
(c) The Company shall provide Executive with a severance
payment in the gross amount of Eight Hundred Sixty Six Thousand Six
Hundred Sixty Seven Dollars and No Cents ($866,667.00). Such payment
shall be reduced by standard income and payroll tax withholding and
shall be paid within ten (10) business days following the Resignation
Date, but in no event later than May 31, 2004.
(d) The Company shall pay Executive, in a lump sum, an amount
equal to the benefits that, absent Executive's resignation, would have
accrued under the Company's tax-qualified and non-qualified retirement
plans (which benefits shall be deemed fully vested) through July
1, 2005. This lump sum payment shall be paid within ten (10) business
days following the Resignation Date, but in no event later than May 31,
2004.
(e) Subject to the terms of the Company's health insurance
plan and subject to Executive's timely payment of Executive's portion
of the health care premiums, the Company shall allow Executive to
continue his group health insurance coverage through September 30,
2005. In lieu of receiving coverage under the Company's health
insurance plan, Executive may, at his option, elect to have the Company
reimburse Executive for the cost of continued coverage (up to a maximum
of $20,000.00 per year) under the health insurance plan of Executive's
prior employer, through September 30, 2005. If applicable, after
September 30, 2005, Executive shall have the option to continue his
health insurance coverage pursuant to the provisions of the
Consolidated Omnibus
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Reconciliation Act of 1985 ("COBRA"), in which event he will be
responsible for the full cost of premiums as permitted by COBRA.
(f) All unvested options previously granted to the Executive
under the Company's 1999 Stock Option Plan, or any other option plan of
the Company, shall vest upon the Resignation Date. Executive
acknowledges and agrees that he shall not be eligible to receive an
Annual Stock Option Grant for fiscal year 2004 and further acknowledges
that he shall not be granted any additional stock options.
(g) All vested options granted to the Executive under the
Company's 1999 Stock Option Plan, or any other option plan of the
Company, including those that vest on the Resignation Date, shall be
exercisable through March 31, 2006.
(h) The Company shall continue to pay for financial planning
services for Executive, from the firm of Browson, Rehmus, Foxworth, and
Company, at the level currently being provided, through July 1, 2005.
(i) In the event Executive is asked to resign from all
positions of employment with the Company before May 31, 2004, or in the
event the Company terminates Executive's employment with the Company
for any reason (including Executive's death or disability) before May
31, 2004, the Company acknowledges and agrees that it shall provide the
payments and benefits described in this paragraph 2 regardless of the
reason for Executive's resignation or termination.
(j) Executive acknowledges and agrees that he is entitled to
no other payments, benefits, or compensation of any kind other than as
set forth in this paragraph 2.
3. Release.
(a) In consideration for the obligations contained in this
Agreement, Executive acknowledges and agrees that he shall be entitled to no
further payments, rights, or benefits pursuant to the Employment Agreement or
any other agreement with the Company or any affiliate of the Company existing as
of the date hereof, other than the payments, rights, or benefits set forth in
paragraph 2. In this regard, Executive hereby (i) waives his right to receive
any further compensation and benefits from the Company or any affiliate of the
Company pursuant to the Employment Agreement or any other agreement with the
Company or any affiliate of the Company existing as of the date hereof (other
than pursuant to this Agreement), and (ii) agrees that all other obligations of
the Company pursuant to the Employment Agreement (including, without limitation,
all payment and benefit obligations pursuant to the Employment Agreement, and
all obligations arising out of the termination of the Employment Agreement) are
hereby discharged; provided, however, that nothing in this Agreement shall
affect any vested interest Executive may have in any Company retirement or
benefit plan.
(b) Except for those obligations created by or arising out of
this Agreement, Executive, on behalf of himself, his descendants, dependents,
heirs, executors, administrators, assigns, and successors, and each of them,
acknowledges full and complete satisfaction of and releases and discharges and
covenants not to xxx the Company, its subsidiaries, parent, and affiliated
companies, past and present, and each of them, as well as its and their
trustees,
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directors, officers, agents, attorneys, insurers, and employees, past and
present, and each of them, (together and each of them collectively referred to
as "Releasees") from and with respect to any and all claims, wages, agreements,
obligations, demands, and causes of action, known or unknown, suspected or
unsuspected, arising out of or in any way connected with Executive's employment
relationship with the Company, the Employment Agreement, Executive's resignation
from employment, or any other transactions, occurrences, acts, or omissions or
any loss, damage, or injury whatever, known or unknown, suspected or
unsuspected, resulting from any act or omission by or on the part of said
Releasees, or any of them, committed or omitted prior to the date of this
Agreement (collectively "Claims"). Without limiting the generality of the
foregoing, Executive acknowledges and agrees that the claims being released
include, but are not limited to, any claim under Title VII of the Civil Rights
Act of 1964, the Age Discrimination in Employment Act, the Americans with
Disabilities Act, the Family and Medical Leave Act of 1993, the Indiana Civil
Rights Law, claims based on the Employment Agreement, common law theories, or
any claim for severance pay, bonus, stock options, sick leave, holiday pay,
vacation pay, life insurance, health or medical insurance, or any other fringe
benefit. Notwithstanding the foregoing, nothing in this Agreement shall
constitute a waiver of Executive's rights to indemnity under the bylaws of the
Company and/or any rights under any Director and Officer insurance policy of the
Company.
4. ADEA Waiver. Executive expressly acknowledges and agrees that
among the matters being waived are any and all rights or claims arising under
the Age Discrimination in Employment Act of 1967, as amended (the "ADEA"), which
have arisen on or before the date of execution of this Agreement. Because the
ADEA contains special provisions affecting the release of ADEA claims, Executive
also expressly acknowledges and agrees that:
(a) in return for this Agreement, he will receive
consideration, i.e., something of value, beyond that which he was
already entitled to receive before entering into this Agreement;
(b) he has been orally advised by the Company and is hereby
advised in writing to consult with an attorney before signing this
Agreement;
(c) he was given a copy of this Agreement on March 1, 2004,
and has been informed that he is entitled to twenty-one (21) days
within which to consider the Agreement; and
(d) he has been informed that he has seven (7) days following
the date he executes this Agreement in which to revoke it,
understanding that the Agreement will not be effective or enforceable
until this seven-day revocation period has expired without revocation.
Any revocation of the Agreement must be in writing and delivered to the
Company before expiration of the revocation period. In the event
Executive does not revoke this Agreement within the revocation period,
the eighth (8th) day following his execution of this Agreement shall be
deemed its effective date.
5. Non-Competition. Executive acknowledges that by virtue of his
position with the Company he has been given access to confidential and highly
sensitive non-public information of substantial importance to the Company,
including but not limited to financial
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information, identities of distributors, contractors, and vendors utilized in
the Company's business, non-public forms, contracts, and other documents used in
the Company's business, trade secrets used, developed, or acquired by the
Company, information concerning the manner and details of the Company's
operation, organization and management, the Company's business plans and
strategies, price information, customer lists, and research and development
data, and that the services he has provided to the Company are unique. For a
period of one (1) year commencing on the Resignation Date (the "Non-Competition
Term"), Executive agrees that he will not directly or indirectly engage in, as
an employee, consultant, or otherwise, any business in the United States
primarily engaged in the retail sporting goods or retail sports apparel
business, nor will he accept employment, consult for, or participate, directly
or indirectly, in the ownership or management of any enterprise in the United
States engaged in such a business (such competing businesses currently include,
without limitation, Academy Sports, Bass Pro, REI, Gander Mountain, Cabella's,
Sports Authority, Dick's Sporting Goods, Garts Sports, Modell's, Copeland,
Sports Chalet, Hibbett's and Christie Sports, and any subsidiaries of any of
them). Notwithstanding the foregoing, Executive may invest as the holder of not
more than four percent (4%) of the outstanding shares of any corporation whose
stock is listed on any national or regional securities exchange or reported by
the National Association of Securities Dealers Automated Quotation System or any
successor thereto.
6. Non-Solicitation. Executive agrees that for a period of one
(1) year commencing on the Resignation Date (the "Non-Solicitation Term"),
Executive and/or any entity with which he is at the time affiliated (and which
is not affiliated with the Company), shall not, directly or indirectly, hire or
offer to hire or entice away or in any other manner persuade or attempt to
persuade any officer, employee, agent, or customer of the Company or any of its
affiliates, or any person who supplies goods or services or licenses intangible
or tangible property to the Company or any of its affiliates to discontinue his,
her, or its relationship with such entity. Executive represents and warrants
that he has not, prior to the date hereof, acted or failed to act in a way that
would constitute a breach of the terms of this covenant not to solicit.
7. Confidential or Proprietary Information or Material. Executive
recognizes and acknowledges that, through his association with the Company, he
has had access to confidential or proprietary information or material relating
in the reasonable opinion of the Company to the Company's operations or
businesses, including the Company's subsidiaries, which he may have obtained
from the Company, its subsidiaries, or their officers, directors, or employees,
or otherwise by virtue of his employment by the Company. Confidential or
proprietary information or material includes, without limitation, the following
types of information or material, both existing and contemplated, regarding the
Company, its direct or indirect parents, subsidiaries, affiliates, or related
companies: proprietary data processing systems and software; corporate
information, including contractual arrangements, plans, strategies, tactics,
policies, resolutions, patent, copyright, trademark, and tradename applications,
and any litigation or negotiations; real estate strategies, including store
opening plans, landlord-developer relationships and new store return on capital
targets; marketing information, including sales or product plans, strategies,
methods, customers, prospects, or market research data; financial information,
including cost and performance data, debt arrangements, equity structure,
investors, and holdings; operations and scientific information, including trade
secrets and technical information; and personnel information, including
personnel lists, resumes, personnel data, organizational structure, and
performance evaluations; provided, however, that confidential
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or proprietary information or material does not include any information or
material that is generally available to the public. Executive recognizes that
this confidential or proprietary information or material constitutes a valuable
and unique asset of the Company, developed and perfected over considerable time
and at substantial expense to the Company. Executive agrees that he will not
disclose, without the written consent of the Company or as required by law, to
any person, firm, partnership, association, or corporation, such confidential or
proprietary information or material, and Executive agrees to hold such
confidential or proprietary information or material in trust for the sole
benefit of the Company. Executive shall not, for the direct or indirect benefit
of himself or another: (1) take with him any lists of Company customers or
potential customers, pricing lists, or other documents, computer software,
electronically-stored data, recordings, master videotapes of any of the
foregoing, or any other confidential or proprietary information or material; or
(2) reconstruct the same or similar information from memory or from some other
source associated with the Company.
8. Intangible Property. Executive agrees that all right, title
and interest of every kind and nature whatsoever, whether now known or unknown,
in and to any intangible property, including all trade names, unregistered
trademarks and service marks and all trade secrets and confidential know-how
(collectively, the "Intangible Property"), invented, created, written,
developed, furnished, produced or disclosed by Executive in the course of having
rendered services to the Company shall, as between the parties to this
Agreement, be and remain the sole and exclusive property of the Company for any
and all purposes and uses whatsoever, and Executive has no right, title or
interest of any kind or nature in such Intangible Property, or in or to any
results or proceeds therefrom. Executive agrees that he will, at the request of
Company, execute such assignments, certificates and other instruments as the
Company may hereafter deem necessary or desirable to evidence, establish,
maintain, perfect, protect, enforce or defend its right, title and interest in
an to, any of the foregoing.
9. Return of Documents. Executive hereby acknowledges and
represents that all documents of any nature pertaining to activities of the
Company, its direct or indirect parents, subsidiaries, affiliates and related
companies, used, prepared, or made available to Executive in the course of his
having rendered services to the Company are and shall remain the property of the
Company or, as the case may be, its direct or indirect parents, subsidiaries,
affiliates and related companies, and that all copies of such documents shall be
surrendered to the Company upon his resignation from the Company.
10. Cooperation. Consistent with applicable law, Executive agrees
that he will cooperate with the Company in connection with any internal
investigation, the defense or prosecution of any claim that may be made by or
against the Company, or in connection with any ongoing or future investigation
or dispute or claim of any kind involving the Company, including any proceeding
before any arbitral, administrative, judicial, legislative, or other body or
agency, including appearing before a government agency or testifying in any
civil or criminal proceeding, to the extent such claims, investigations of
proceedings relate to services performed or required to be performed by
Executive, pertinent knowledge possessed by Executive, or any act or omission by
Executive. The Company agrees that it will endeavor to keep any request for
cooperation to as limited time as necessary, given the circumstances of the
matter involved and the need for Executive's cooperation as determined at the
Company's discretion. The Company
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further agrees that it shall reimburse Executive for reasonable out-of-pocket
expenses incurred by Executive in furtherance of Executive's obligations under
this paragraph 10.
11. Non-Disparagement/No Publicity. Executive agrees not to make
any disparaging remarks, or any remarks that could reasonably be construed as
disparaging, regarding the Company or its officers, directors, employees,
partners, owners, affiliates, or agents. Executive further agrees that he will
not take any action or provide information or issue statements, to the media or
otherwise, or cause anyone else to take any action or provide information or
issue statements, to the media or otherwise, regarding the Company or its
officers, directors, employees, partners, owners, affiliates, or agents. The
Board of Directors of the Company agrees not to make any disparaging remarks, or
any remarks that could reasonably be construed as disparaging, regarding
Executive.
12. Representations and Warranties. Executive hereby represents
and warrants that (i) he is free to enter into this Agreement and that he is not
subject to any obligations or disabilities which will or might prevent him or
interfere with his keeping and performing all of the agreements, covenants, and
conditions to be kept or performed hereunder, and (ii) he has not heretofore
assigned or transferred to any person not a party to this Agreement any released
matter or any part or portion thereof and he shall defend, indemnify, and hold
harmless the Company from and against any claim (including the payment
of attorneys' fees and costs actually incurred whether or not litigation is
commenced) based on or in connection with or arising out of any such assignment
or transfer made, purported, or claimed.
13. Amendments; Waivers. This Agreement may be amended only by
agreement in writing of each of the parties hereto. No waiver of any provision
or consent to any exception to the terms of this Agreement shall be effective
unless in writing and signed by the party to be bound and then only to the
specific purpose, extent, and instance so provided.
14. Severability. If any provision of this Agreement or the
application thereof is held invalid, the invalidity shall not affect other
provisions or applications of the Agreement which can be given effect without
the invalid provisions or application and, to this end, the provisions of this
Agreement are declared to be severable.
15. Entire Agreement. This instrument constitutes and contains the
entire agreement and final understanding concerning Executive's employment,
resignation from the same, and the other subject matters addressed herein
between the parties. It is intended by the parties as a complete and exclusive
statement of the terms of their agreement. It supersedes and replaces all prior
negotiations and all agreements, proposed or otherwise, whether written or oral,
concerning the subject matters hereof, including, without limitation, the
Employment Agreement. Any representation, promise, or agreement not specifically
included in this Agreement shall not be binding upon or enforceable against
either party. This is a fully integrated agreement.
16. Further Action. The parties shall execute and deliver all
documents, provide all information and take or forbear from taking all action as
may be necessary or appropriate to achieve the purposes of this Agreement.
Nothing herein shall prohibit Executive from seeking a judicial determination of
the validity of the waivers set forth herein.
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17. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Indiana applicable to
contracts made and performed in the State of Indiana and without regard to
conflicts of laws doctrines.
18. Succession. This Agreement shall be binding upon and
enforceable by, and shall inure to the benefit of, the Company and its
respective successors and assigns. The obligations and duties of Executive
hereunder are personal and not assignable, and any attempt of assignment or
transfer of Executive's duties or obligations shall be void.
19. Headings. The headings of the several paragraphs herein are
inserted for convenience of reference only and are not intended to be a part of
or to affect the meaning of this Agreement.
20. Arbitration.
(a) Any controversy or claim arising out of or relating to
this Agreement, its enforcement, arbitrability, or interpretation, or because of
an alleged breach, default, or misrepresentation in connection with any of its
provisions, or arising out of or relating in any way to Executive's employment
or termination of the same, including, without limiting the generality of the
foregoing, any alleged violation of statute, common law, or public policy, shall
be submitted to final and binding arbitration, to be held in Xxxxxxxxx, Indiana
before a single arbitrator. The arbitrator shall be selected by mutual agreement
of the parties or, if the parties cannot agree, then by striking from a list of
arbitrators supplied by the American Arbitration Association or JAMS. The
arbitrator shall issue a written opinion revealing, however briefly, the
essential findings and conclusions upon which the arbitrator's award is based.
The Company will pay the arbitrator's fees and arbitration expenses and any
other costs associated with the arbitration hearing.
(b) Except as may be necessary to enter judgment upon the
award or to the extent required by applicable law, all claims, defenses, and
proceedings (including, without limiting the generality of the foregoing, the
existence of a controversy and the fact that there is an arbitration proceeding)
shall be treated in a confidential manner by the arbitrator, the parties and
their counsel, each of their agents, and employees and all others acting on
behalf of or in concert with them. Without limiting the generality of the
foregoing, no one shall divulge to any third party or person not directly
involved in the arbitration the content of the pleadings, papers, orders,
hearings, trials, or awards in the arbitration, except as may be necessary to
enter judgment upon an award or as required by applicable law.
(c) Notwithstanding the foregoing, if the Company fails to
make the lump sum payments provided for in paragraph 2 of this Agreement,
Executive may elect to seek recovery of such payments either through arbitration
pursuant to this paragraph 20 or by instituting a court proceeding. In the event
it is determined that the Company failed to pay Executive any such amount to
which Executive was entitled, Executive shall be entitled to recover interest on
such amount at a rate equal to the rate of interest on the Company's revolving
credit charged by Company's principal lender, or in the absence of any revolving
credit, prime rate, and shall be entitled to recover reasonable legal,
accounting, expert witness and other fees and expenses incurred by Executive.
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21. No Duty to Mitigate. Payments due to Executive pursuant to
this Agreement are not conditioned on Executive's attempting to mitigate any
losses by seeking other employment or taking other action, and Executive shall
be under no obligation to do so.
22. Counterparts. This Agreement may be executed in one or more
counterparts, and by different parties in separate counterparts. All of such
counterparts shall constitute one and the same instrument. A signature by
facsimile shall have the same force and effect as an original.
The undersigned have read and understand the consequences of
this Agreement and knowingly and voluntarily sign it.
EXECUTED this 1 day of March 2004, at Plainfield (city),
Indiana (state).
/s/ XXXXXX X. XXXX
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Xxxxxx X. Xxxx
EXECUTED this 1st day of March 2004, at New York (city),
New York (state).
Xxxxxx'x Trading Company, Inc.
By: /s/ XXXXXX X. XXXXXXXX
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Xxxxxx X. Xxxxxxxx
Chairman of the Board
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ACKNOWLEDGMENT AND WAIVER
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I, Executive, hereby acknowledge that I was given twenty-one (21) days
to consider the foregoing Agreement and voluntarily chose to sign the Agreement
prior to the expiration of the 21-day period.
I declare under penalty of perjury under the laws of the State of
Indiana that the foregoing is true and correct.
EXECUTED this 1 day of March 2004, at Plainfield, Indiana.
/s/ XXXXXX X. XXXX
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Xxxxxx X. Xxxx
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