EXHIBIT 10.6
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the "Amended Agreement")
is made and entered into as of the __ day of June, 2002, by and between Big 5
Sporting Goods Corporation, a Delaware corporation (the "Company"), Big 5 Corp.,
a Delaware corporation and wholly owned subsidiary of the Company ("Big 5
Corp."), and Xxxxxx X. Xxxxxx, an individual (the "Executive").
R E C I T A L S
A. Executive is currently employed as President and Chief Executive
Officer of the Company and as President and Chief Executive Officer of Big 5
Corp. pursuant to an Employment Agreement (the "Employment Agreement") between
Big 5 Corp's predecessor and Executive dated as of January 1, 1993.
B. The Company, Big 5 Corp. and Executive desire to amend and restate
the Employment Agreement regarding the terms and conditions of Executive's
employment by the Company and Big 5 Corp.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing recitals and the
terms, covenants and conditions contained herein, the Company and Big 5 Corp.
hereby agree to employ Executive, and Executive hereby accepts and agrees to
such employment, on the terms and subject to the conditions set forth herein.
1. TERM OF EMPLOYMENT. This Amended Agreement shall be effective as of
the Effective Date (as defined in Section 9.1) and shall govern Executive's
employment from and after such date. As of any given date after the Effective
Date (each such date, the "Date of Determination"), Executive's employment shall
terminate on the fourth anniversary of the Date of Determination, unless sooner
terminated in accordance with the provisions of this Amended Agreement or
extended by an amendment executed by the Company, Big 5 Corp. and Executive (the
"Term"). Accordingly, there shall always for all purposes be a minimum of at
least four years remaining on the Term under this Amended Agreement.
2. CAPACITY AND DUTIES. Executive shall be employed as President, Chief
Executive Officer and Chairman of the Board of Directors of the Company (the
"Board") and President, Chief Executive Officer and Chairman of the Board of
Directors of Big 5 Corp., with such duties and responsibilities commensurate
with such positions as may be assigned by the Company or Big 5 Corp., as
applicable. Executive shall devote his full business time, attention and energy
to the performance of his duties for the Company and Big 5 Corp.; provided,
however, that, subject to Section 7.2(b), Executive may engage in non-profit and
personal investment activities that neither interfere with his duties and
responsibilities under this Amended Agreement nor conflict or compete with the
interests of the Company. As long as Executive serves as an officer of the
Company, the Company
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shall use its best efforts to ensure that Executive shall continue to be elected
to serve on the Board and on the Board of Directors of Big 5 Corp.
3. COMPENSATION.
3.1 BASE SALARY. During the Term, Executive's annual base salary
shall be Three Hundred Seventy Five Thousand Dollars ($375,000) and shall be
adjusted as provided in this Section 3.1 (the "Base Salary"). During the first
quarter of each calendar year of the Term (each year during the Term is
sometimes referred to as a "Term Year"), on a timetable consistent with its
general evaluation of the annual performance of the Company's senior executive
officers, or from time to time at the sole discretion of the compensation
committee of the Board (the "Compensation Committee"), Executive's Base Salary
shall be reviewed by the Compensation Committee and may be increased, but may
never be decreased, in the sole discretion of the Compensation Committee. In
determining whether to increase Executive's Base Salary, the Compensation
Committee may engage a reputable compensation consulting firm to determine
comparable compensation packages provided to chief executive officers in
similarly situated companies.
3.2 ANNUAL BONUS. The Compensation Committee shall adopt a cash
bonus plan designed to provide Executive an opportunity to earn annual cash
bonuses during each Term Year during his employment that, when added to
Executive's Base Salary, shall provide Executive a level of compensation
consistent with the Company's past practice and the Company's and Executive's
performance, and in any event comparable to compensation generally provided to
other chief executive officers of publicly traded companies that are comparable
to the Company. If desired by the Compensation Committee, the Company may retain
a reputable compensation consultant to assist the Compensation Committee in
identifying similarly situated companies and to make recommendations regarding
the structure and amount of the cash bonus plan. If this Amended Agreement is
terminated in the middle of a Term Year, Executive shall receive a cash bonus
for services rendered through the Termination Date (as defined in Section 5.8)
equal to the greater of (a) the last annual cash bonus paid to Executive
(whether before or during the Term) and (b) the average of the annual cash
bonuses paid by the Company or Big 5 Corp. to Executive during the immediately
preceding three full fiscal years (whether before or during the Term), pro rated
through the Termination Date.
3.3 PAYMENT OF TAXES. Except as explicitly provided herein, to
the extent that any taxes become payable by Executive by virtue of any payments
made or benefits conferred by the Company, the Company shall not be liable to
pay or obligated to reimburse Executive for any such taxes or to make any
adjustment under this Amended Agreement. Any payments otherwise due hereunder to
Executive, including but not limited to the Base Salary and any bonus, shall be
reduced by any required withholding for federal, state and/or local taxes and
other appropriate payroll deductions.
3.4 STOCK OPTIONS. All options (the "Options") to purchase the
common stock of the Company (the "Common Stock") granted to Executive after the
Effective Date, whether pursuant to the Company's 2002 stock incentive plan (the
"Stock Incentive Plan") or otherwise, shall, unless otherwise agreed by the
Company and Executive, vest in 48 equal monthly installments commencing on the
first day of each month following the month in
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which such Options are granted. All such Options shall provide that they may be
exercised by Executive (or by Executive's permitted transferees) by, as one
option, delivery of a promissory note in the amount of the total exercise price
of the Option. The promissory note shall bear interest at the then applicable
federal rate for a four year loan, shall be nonrecourse except to the security
referred to in the following clause, shall be secured by the Common Stock so
purchased, and shall be payable in full (principal and interest) on the fourth
anniversary of the date of the purchase of the shares. Notwithstanding the
foregoing, Executive shall apply all proceeds from the sale of any shares of
Common Stock so purchased by delivery of a promissory note to the repayment of
principal and interest outstanding under the note until all principal and
interest is paid in full. The Company shall maintain an effective registration
statement covering the shares of Common Stock underlying any Options granted to
Executive.
4. BENEFITS.
4.1 EXPENSES. The Company agrees to repay or reimburse Executive
for ordinary and necessary business expenses to the extent compatible with, and
subject to the verification and substantiation documentation and procedures
applicable under, the Company's general policies for its senior executive
officers.
4.2 MEDICAL AND INSURANCE BENEFITS. During the Term, the Company
shall provide Executive with those group medical, health insurance, disability
insurance and life insurance benefits generally available to its senior
executive officers, as such benefits may be modified from time to time in the
Company's sole and absolute discretion.
4.3 VACATION AND SICK LEAVE. During the Term, Executive shall be
entitled to vacations, holidays and sick leave without reduction in Executive's
Base Salary in accordance with the policies established from time to time by the
Company for its senior executive officers in its sole and absolute discretion;
provided, however, that nothing contained in this Section 4.3 shall affect the
Company's rights under Section 5.4.
4.4 AUTOMOBILE. During the Term, the Company shall provide
Executive with an automobile in accordance with the policies established from
time to time by the Company for its senior executive officers in its sole and
absolute discretion.
4.5 401(k) AND PROFIT-SHARING PLAN. During the Term, the Company
shall provide Executive with the opportunity to participate in the Company's
401(k) plan and profit-sharing plan in accordance with the policies established
from time to time by the Company for its senior executive officers in its sole
and absolute discretion.
4.6 OTHER BENEFITS. Executive shall also be eligible, on the same
basis as other senior executive officers, for any other benefits provided
generally by the Company for or to its senior executive officers.
5. TERMINATION. Subject to the provisions of this Section 5, each of the
Company and Executive shall have the right to terminate Executive's employment
under this Amended Agreement at any time for any reason or for no reason by
written notice to the other party.
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5.1 TERMINATION BY THE COMPANY FOR JUST CAUSE. Without prejudice
to the foregoing, the Company may terminate Executive's employment hereunder at
any time for Just Cause (as defined below). A termination shall be for "Just
Cause" if such termination results from the occurrence of any of the following:
(i) intentional material misconduct by Executive in the responsibilities
reasonably assigned to him or (ii) conviction by a court of competent
jurisdiction of any felony involving the embezzlement, theft or misappropriation
of monies or other property of the Company or for any crime involving moral
turpitude. In the event of termination for Just Cause, this Amended Agreement
shall terminate immediately and both parties shall thereupon be released and
discharged of and from all further obligations hereunder except that any
provisions that by their nature survive termination shall so survive (including
Executive's ongoing obligations pursuant to Sections 7.1 and 7.2) and the
Company shall pay to Executive, on the Termination Date, all amounts accrued and
unpaid as of the Termination Date in respect of (i) Executive's salary and
annual cash bonus, computed in accordance with Section 3.2, for services
rendered through such date, (ii) vacation pay to the extent consistent with the
Company's policies in effect as of the Termination Date regarding entitlement to
payment in respect of accrued but unused vacation time and (iii) expenses owing
to Executive pursuant to Section 4.1.
5.2 TERMINATION BY EXECUTIVE WITHOUT GOOD REASON. Without
prejudice to the foregoing, Executive may terminate his employment without
regard to Good Reason (defined in Section 5.3). In the event Executive
terminates his employment without regard to Good Reason, this Amended Agreement
shall terminate immediately and both parties shall thereupon be released and
discharged of and from all further obligations hereunder except that any
provisions that by their nature survive termination shall so survive (including
Executive's ongoing obligations pursuant to Sections 7.1 and 7.2) and the
Company shall pay to Executive, on the Termination Date, all amounts accrued and
unpaid as of the Termination Date in respect of (i) Executive's salary and
annual cash bonus, computed in accordance with Section 3.2, for services
rendered through such date, (ii) vacation pay to the extent consistent with the
Company's policies in effect as of the Termination Date regarding entitlement to
payment in respect of accrued but unused vacation time and (iii) expenses owing
to Executive pursuant to Section 4.1.
5.3 TERMINATION BY THE COMPANY WITHOUT JUST CAUSE OR BY EXECUTIVE
FOR GOOD REASON. In the event the Company terminates Executive without Just
Cause, or if Executive terminates his employment with the Company for Good
Reason, this Amended Agreement shall terminate immediately and both parties
shall thereupon be released and discharged of and from all further obligations
hereunder except that any provisions that by their nature survive termination
shall so survive (including Executive's ongoing obligations pursuant to Sections
7.1 and 7.2(a)) and the Company shall pay to Executive, on the Termination Date,
all amounts accrued and unpaid as of the Termination Date in respect of (i)
Executive's salary and annual cash bonus, computed in accordance with Section
3.2, for services rendered through such date, (ii) vacation pay to the extent
consistent with the Company's policies in effect as of the Termination Date
regarding entitlement to payment in respect of accrued but unused vacation time
and (iii) expenses owing to Executive pursuant to Section 4.1. The Company shall
also pay to Executive, on the fifth business day following the Termination Date,
as a lump sum severance payment and subject to Section 3.3, Executive's Base
Salary through the remaining scheduled Term of the Amended Agreement, computed
without regard to the termination of such Amended Agreement (the
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"Severance Period") plus an amount equal to four times the greater of (a) the
last annual cash bonus paid to Executive (whether before or during the Term) and
(b) the average annual cash bonus paid by the Company or Big 5 Corp. to
Executive during the prior three fiscal years (whether before or during the
Term). In addition, Executive will also be entitled, during the Severance
Period, to receive all benefits that would have been payable to him pursuant to
Sections 4.2 and 4.4 if Executive had been employed by the Company during such
period. Notwithstanding the foregoing, the Company shall not be required to
provide any medical benefits to Executive as of the date Executive and his
family become covered under any other group health plan not maintained by the
Company; provided, however, that if such other group health plan excludes any
pre-existing condition that Executive or his dependents may have when coverage
under such group health plan would otherwise begin, coverage under this Section
5.3 shall continue (but not beyond the Severance Period) with respect to such
pre-existing condition until such exclusion under such other group health plan
lapses or expires. In the event Executive is required to make an election under
Sections 601 through 607 of ERISA (commonly known as COBRA) to qualify for any
of the benefits described in this Section 5.3, the obligations of the Company to
provide such benefits under this Section 5.3 shall be conditioned upon Executive
timely making such an election (the preceding two sentences are referred to as
the "Benefits Exceptions"). In addition to the foregoing, and notwithstanding
the provisions of any other agreement to the contrary, all Options that have
been granted to Executive shall become immediately exercisable on the
Termination Date and shall remain exercisable for the full term of each such
Option. Executive's termination of this Amended Agreement shall be for "Good
Reason" if Executive terminates this Amended Agreement for any of the following
reasons: (i) the willful breach of any of the material obligations of the
Company or Big 5 Corp. to Executive under this Amended Agreement following
written notice delivered to the Company or Big 5 Corp., as applicable, and a
reasonable cure period not to exceed thirty (30) business days; (ii) the
Company's chief executive offices are moved to a location outside of Los Angeles
County, California; (iii) Executive's position (including status, titles and
reporting requirements), authority, duties and responsibilities shall cease to
be at least commensurate in all respects with the most significant of those
held, exercised and assigned at any time during the 120-day period immediately
preceding the Effective Date; (iv) Executive fails to be reelected to, or is
removed from, the Board or the Board of Directors of Big 5 Corp.; or (v) any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company fails to assume expressly and agree to perform this Amended Agreement in
the same manner and to the same extent that the Company would be required to
perform it if no such succession had taken place.
5.4 UNAVAILABILITY. If Executive becomes Unavailable for a period
of thirty (30) consecutive business days, the Company shall have the right to
designate a person to succeed Executive on a temporary basis in the capacity
described in Section 2; provided, however, that if at any time during the first
six months after Executive becomes Unavailable, Executive ceases to be
Unavailable for a period of thirty (30) consecutive business days, he shall be
entitled to be reinstated in the capacity described in Section 2. If Executive
becomes and remains Unavailable for any consecutive period during the Term
exceeding six months, or for shorter periods aggregating more than eight months
during any twelve-month period during the Term, either party shall have the
right to terminate this Amended Agreement, and both parties shall thereupon be
released and discharged of and from all
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further obligations hereunder except that any provisions that by their nature
survive termination shall so survive (including Executive's ongoing obligations
pursuant to Sections 7.1 and 7.2(a)) and the Company shall pay to Executive, on
the Termination Date, all amounts accrued and unpaid as of the Termination Date
in respect of (i) Executive's salary and annual cash bonus, computed in
accordance with Section 3.2, for services rendered through such date, (ii)
vacation pay to the extent consistent with the Company's policies in effect as
of the Termination Date regarding entitlement to payment in respect of accrued
but unused vacation time and (iii) expenses owing to Executive pursuant to
Section 4.1. The Company shall also pay to Executive, on the fifth business day
following the Termination Date, as a lump sum severance payment and subject to
Section 3.3, Executive's Base Salary for two years plus an amount equal to two
times the greater of (a) the last annual cash bonus paid to Executive (whether
before or during the Term) and (b) the average annual cash bonus paid by the
Company or Big 5 Corp. to Executive during the prior three fiscal years (whether
before or during the Term). In addition to the foregoing, and notwithstanding
the provisions of any other agreement to the contrary, (x) all Options that
would have vested during the 24 months following the Termination Date shall
become immediately exercisable on the Termination Date and shall remain
exercisable for the full term of each such Option and (y) the Company shall
continue to provide Executive all other benefits that would otherwise be payable
to Executive pursuant to Sections 4.2 and 4.4 during the Severance Period,
subject to the Benefits Exceptions. "Unavailable" shall mean any instance
(except for an instance which would constitute Just Cause under Section 5.1)
where Executive is not reasonably able to render full services as contemplated
hereby, which determination shall be made in good faith by a qualified physician
selected by the Compensation Committee or the Company's insurers and acceptable
to Executive or Executive's legal representative.
5.5 DEATH. In the event of Executive's death at any time during
the Term, this Amended Agreement shall terminate automatically and both parties
shall thereupon be released and discharged of and from all further obligations
hereunder except that any provisions that by their nature survive termination
shall so survive and the Company shall pay to Executive's estate, within five
(5) business days of the Termination Date, all amounts accrued and unpaid as of
the Termination Date in respect of (i) Executive's salary and annual cash bonus,
computed in accordance with Section 3.2, for services rendered through such
date, (ii) vacation pay to the extent consistent with the Company's policies in
effect as of the Termination Date regarding entitlement to payment in respect of
accrued but unused vacation time and (iii) expenses owing to Executive pursuant
to Section 4.1. In addition to the foregoing, and notwithstanding the provisions
of any other agreement to the contrary, (x) all Options that would have vested
during the 24 months following the Termination Date shall become immediately
exercisable on the Termination Date and shall remain exercisable for the full
term of each such Option and (y) the Company shall continue to provide for the
benefit of Executive's family the medical benefits referred to in Section 4.2
during the Severance Period, subject to the Benefits Exceptions.
5.6 EXCLUSIVITY OF REMEDIES. Executive agrees that the rights and
entitlements set forth in Section 5 apply to the exclusion of any other
contractual rights and entitlements that Executive may have from the Company or
Big 5 Corp. by reason of the termination of Executive's employment.
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5.7 NO MITIGATION. The payments required to be paid to Executive
by the Company pursuant to Section 5 shall not be reduced or mitigated by
amounts which Executive is capable of earning or does earn during any period
following his Termination Date.
5.8 TERMINATION DATE. For purposes of Sections 5 and 6, the term
"Termination Date" shall mean that date on which Executive's employment is
terminated pursuant to Section 5.
6. SEVERANCE PAYMENTS FOLLOWING A CHANGE IN CONTROL.
6.1 SEVERANCE PAYMENT; CONTINUATION OF BENEFITS; VESTING OF
OPTIONS. If there is a Change in Control (as defined in Section 6.2) of the
Company while Executive is employed by the Company and if, within 6 months
following the date of such Change in Control, Executive terminates his
employment for any reason whatsoever, then Executive shall receive all of the
payments and benefits set forth in Section 5.3 as if Executive had terminated
his employment for Good Reason.
6.2 CHANGE IN CONTROL. For purposes of Section 6, "Change in
Control" of the Company shall mean the occurrence, after the consummation of the
IPO (as defined in Section 9.1), of any of the following:
(a) Any Person or Group, as such terms are defined in
Section 13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), becomes the Beneficial Owner (within the meaning of Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company, or of any
entity resulting from a merger or consolidation involving the Company,
representing more than 50% of the combined voting power in the election of
directors of the then outstanding securities of the Company or such entity;
(b) The individuals who, as of the time immediately
following the consummation of the IPO, are members of the Board (the "Existing
Directors"), cease, for any reason, to constitute more than 50% of the number of
authorized directors of the Company as determined in the manner prescribed in
the Company's charter documents; provided, however, that if the election, or
nomination for election, by the Company's stockholders of any new director was
approved by a vote of at least 50% of the Existing Directors, such new director
shall be considered an Existing Director; provided, further, that no individual
shall be considered an Existing Director if such individual initially assumed
office as a result of either an actual or threatened "Election Contest" (as
described in Rule 14a-11 promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies by or on behalf of anyone other than the
Board (a "Proxy Contest"), including by reason of any agreement intended to
avoid or settle any Election Contest or Proxy Contest; or
(c) The consummation of (x) a merger, consolidation or
reorganization to which the Company is a party, whether or not the Company is
the Person surviving or resulting therefrom, or (y) a sale, assignment, lease,
conveyance or other disposition of all or substantially all of the assets of the
Company, in one transaction or a
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series of related transactions, to any Person other than the Company, where any
such transaction or series of related transactions as is referred to in clause
(x) or clause (y) above in this subparagraph (c) (singly or collectively, a
"Transaction") does not otherwise result in a "Change in Control" pursuant to
subparagraph (a) of this definition of "Change in Control"; provided, however,
that no such Transaction shall constitute a "Change in Control" under this
subparagraph (c) if the Persons who were the stockholders of the Company
immediately before the consummation of such Transaction are the Beneficial
Owners, immediately following the consummation of such Transaction, of 50% or
more of the combined voting power of the then outstanding voting securities of
the Person surviving or resulting from any merger, consolidation or
reorganization referred to in clause (x) above in this subparagraph (c) or the
Person to whom the assets of the Company are sold, assigned, leased, conveyed or
disposed of in any transaction or series of related transactions referred in
clause (y) above in this subparagraph (c), in substantially the same proportions
in which such Beneficial Owners held voting stock in the Company immediately
before such Transaction.
6.3 EXCISE TAX LIMITATION.
(a) Notwithstanding anything contained in this Amended
Agreement to the contrary, in the event that any payment or benefit (within the
meaning of Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended
(the "Code")) to Executive or for Executive's benefit paid or payable pursuant
to the terms of this Amended Agreement or otherwise in connection with, or
arising out of, Executive's employment with the Company on a change of control
within the meaning of Section 280G of the Code (a "Payment" or "Payments"),
would be subject to the excise tax imposed by Section 4999 of the Code (the
"Excise Tax"), then the Payments shall be reduced (but not below zero) but only
to the extent necessary that no portion thereof shall be subject to the excise
tax imposed by Section 4999 of the Code (the "Section 4999 Limit"). Unless
Executive shall have given prior written notice specifying a different order to
the Company to effectuate the limitations described in the preceding sentence,
the Company shall reduce or eliminate the Payments by first reducing or
eliminating those Payments that are not payable in cash and then by reducing or
eliminating cash Payments, in each case in reverse order beginning with Payments
that are to be paid the farthest in time from the Determination (as defined in
Section 6.3(b)). Any notice given by Executive pursuant to the preceding
sentence shall take precedence over the provisions of any other plan,
arrangement or agreement governing Executive's rights and entitlements to any
benefits or compensation.
(b) All determinations required to be made under this
Section 6.5 (each, a "Determination") shall be made, at the Company's expense,
by the accounting firm that is the Company's accounting firm prior to a "change
of control" (within the meaning of Section 280G of the Code) or another
nationally recognized accounting firm designated by the Board (or a committee
thereof) prior to the change of control (the "Accounting Firm"). The Accounting
Firm shall provide its calculations, together with detailed supporting
documentation, both to the Company and to Executive before payment of
Executive's severance payment under Section 6 (if requested at that time by the
Company or Executive) or such other time as requested by the Company or
Executive (in either case provided that the Company or Executive believes in
good faith that any of the Payments may be subject to the Excise Tax). Within
ten (10) calendar days of the delivery of the Determination to
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Executive, Executive shall have the right to dispute the Determination. The
existence of any dispute shall not in any way affect Executive's right to
receive the Payments in accordance with the Determination. If there is no
Dispute, the Determination by the Accounting Firm shall be final, binding and
conclusive upon the Company and Executive, subject to the application of Section
6.3(c).
(c) As a result of the uncertainty in the application of
Sections 4999 and 280G of the Code, it is possible that the Payments either will
have been made or will not have been made by the Company, in either case in a
manner inconsistent with the limitations provided in Section 6.3(a) (an "Excess
Payment" or "Underpayment", respectively). If it is established pursuant to (i)
a final determination of a court for which all appeals have been taken and
finally resolved or the time for all appeals has expired or (ii) an Internal
Revenue Service (the "IRS") proceeding which has been finally and conclusively
resolved, that an Excess Payment has been made, such Excess Payment shall be
deemed for all purposes to be a loan to Executive made on the date Executive
received the Excess Payment and Executive shall repay the Excess Payment to the
Company on demand, together with interest on the Excess Payment at one hundred
twenty percent (120%) of the applicable federal rate compounded semi-annually
from the date of Executive's receipt of such Excess Payment until the date of
such repayment. If it is determined (i) by the Accounting Firm, the Company or
the IRS, (ii) pursuant to a determination by a court, or (iii) upon the
resolution to Executive's satisfaction of the dispute, that an Underpayment has
occurred, the Company shall pay an amount equal to the Underpayment to Executive
within ten (10) calendar days of such determination or resolution, together with
interest on such amount at one hundred twenty percent (120%) of the applicable
federal rate compounded semi-annually from the date such amount should have been
paid to Executive pursuant to the terms of this Amended Agreement or otherwise,
but for the operation of this Section 6.3(c), until the date of payment.
6.4 NO MITIGATION. The payments required to be paid to Executive
by the Company pursuant to Section 6 shall not be reduced by amounts which
Executive is capable of earning or does earn during any period following his
Termination Date.
7. COVENANTS.
7.1 NON-INTERFERENCE COVENANT. Upon the termination of the
employment relationship between the Company and Executive for any reason,
whether upon the expiration of the Term or earlier, and for a period of two
years thereafter (the "Non-Solicitation Period"), Executive agrees to refrain
from, directly, indirectly or as an agent on behalf of or in conjunction with
any person, firm, partnership, corporation or other entity, soliciting or
encouraging any employee of the Company or its direct or indirect subsidiaries
who is employed in an executive, managerial, administrative or professional
capacity or who possesses Confidential Material (as defined in Section 7.2), to
leave the employment of the Company or its affiliated entities.
7.2 NONDISCLOSURE OF CONFIDENTIAL MATERIAL.
(a) In the performance of his duties, Executive has
previously had, and may be expected in the future to have, access to
confidential records and
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information, including, but not limited to, development, marketing, purchasing,
organizational, strategic, financial, managerial, administrative, manufacturing,
production, distribution and sales information, data, specifications and
processes presently owned or at any time hereafter developed by the Company or
its agents or consultants or used presently or at any time hereafter in the
course of its business, that are not otherwise part of the public domain
(collectively, the "Confidential Material"). All such Confidential Material is
considered secret and has been and/or will be disclosed to Executive in
confidence. Except in the performance of his duties to the Company, Executive
shall not, directly or indirectly for any reason whatsoever, disclose or use any
such Confidential Material, except that the foregoing disclosure prohibition
shall not apply as to Confidential Material that has been publicly disclosed
(not due to a breach by Executive of his obligations hereunder or by breach of
any other person of a confidential, fiduciary or confidential obligation, the
breach of which Executive knows or reasonably should know). All records, files,
drawings, documents, equipment and other tangible items, wherever located,
relating in any way to the Confidential Material or otherwise to the Company's
business, which Executive has prepared, used or encountered or shall in the
future prepare, use or encounter, shall be and remain the Company's sole and
exclusive property and shall be included in the Confidential Material. Upon
termination of this Amended Agreement, or whenever requested by the Company,
Executive shall promptly deliver to the Company any and all of the Confidential
Material and copies thereof, not previously delivered to the Company, that may
be, or at any previous time has been, in the possession or under the control of
Executive.
(b) In light of the fact that the Confidential Material
that Executive has acquired, and will acquire, is inextricably bound with
Executive's knowledge regarding the conduct of the Company's business activities
and that therefore Executive would necessarily use Confidential Material if he
were to compete with the Company, Executive further agrees that during the term
of Executive's employment relationship with the Company, he will not provide any
services, whether as an officer, director, proprietor, employee, partner,
consultant, advisor, agent, sales representative or otherwise, nor will he own
beneficially securities of any entity (except that, in the case of any entity
whose equity securities are publicly-held, he may beneficially own up to 2% of
the outstanding equity securities of such entity) that, directly or indirectly,
competes with any of the Company's present or future (up to the date of
termination) business activities. Executive further agrees that, upon the
termination of the employment relationship between the Company and Executive for
any reason, whether upon the expiration of the Term or earlier (including a
voluntary termination by Executive), the restrictions set forth in the previous
sentence shall extend for the greater of (x) a six-month period after
termination and (y) the remainder of the Term as then in effect (without any
further extensions thereof) but for such termination; provided, however, that
the agreement between Executive and the Company contained in the first part of
this sentence shall not apply in the event that Executive's employment is
terminated by the Company without Just Cause pursuant to Section 5.3, by
Executive for Good Reason pursuant to Section 5.3 or by the Company or Executive
due to Executive's Unavailability pursuant to Section 5.4.
7.3 EQUITABLE RELIEF. Executive acknowledges that violation of
either Section 7.1 or 7.2 would cause the Company irreparable damage for which
the Company cannot be reasonably compensated in damages in an action at law, and
therefore in the event of any breach by Executive of Section 7.1 or 7.2, the
Company shall be entitled to make
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application to a court of competent jurisdiction for equitable relief by way of
injunction or otherwise (without being required to post a bond). This provision
shall not, however, be construed as a waiver of any of the rights which the
Company may have for damages under this Amended Agreement or otherwise, and all
of the Company's rights and remedies shall be unrestricted.
8. ARBITRATION AS THE EXCLUSIVE REMEDY.
8.1 ARBITRATION OF ALL DISPUTES. If Executive and the Company
cannot resolve a dispute (whether arising in contract or tort or any other legal
theory and whether based on federal, state or local statute or common law and
regardless of the identities of any other defendants) that in any way relates to
or arises out of the employment relationship established herein or the
termination thereof (a "Dispute"), then arbitration will be used to settle such
Dispute. Because arbitration is generally faster and less expensive than other
procedures for resolving disputes, both Executive and the Company agree that the
arbitration procedure set forth below will be their exclusive remedy and waive
any right to seek legal relief in any other form. In the event that a Dispute
involves a claim which either Executive or the Company seeks to assert against a
third party, the assertion of such claim against such third party in a court or
other tribunal shall not relieve Executive and the Company from their respective
obligations to resolve the Dispute between them by arbitration under Section 8.
The parties further agree that arbitration shall be their exclusive remedy in
the event of any Dispute which involves any third party (including any officer,
director or agent of the Company or an affiliate of the Company) provided that
such third party consents to participate in and be bound by such arbitration.
The only exception to the preceding provisions of Section 8.1 is that the
Company may seek provisional relief from any court having jurisdiction in the
event of an alleged breach by Executive of Sections 7.1 or 7.2 or any other
provision of this Amended Agreement pending a final determination by
arbitration, in the event of any claim that would be rendered ineffectual
without provisional relief and Executive may seek such provisional relief,
pending a final determination by arbitration, in the event of any claim that
would be rendered ineffectual without provisional relief. The arbitration will
be conducted in accordance with the employment arbitration procedures of the
American Arbitration Association ("AAA"), except as modified in this Amended
Agreement.
8.2 SELECTION OF ARBITRATORS. Each party shall have the right to
designate one arbitrator within ten (10) business days from the date when the
party initiating the arbitration files and delivers a notice of intent to
arbitrate. If, within that time period, either party has failed to appoint an
arbitrator, AAA shall make the appointment. The two arbitrators shall agree upon
and designate a third arbitrator within ten (10) business days from the date of
the appointment of the last-appointed arbitrator. In the event that the two
arbitrators have not designated a third arbitrator within ten (10) business days
from the date of the appointment of the last-appointed arbitrator, AAA shall
appoint the third arbitrator. After the selection of arbitrators, the parties
may mutually agree to used the third arbitrator as the sole arbitrator to
resolve their dispute.
8.3 PROCEDURES. The party filing a claim must present it in
writing to both the other party and the AAA office in Los Angeles within six
months of the date the party filing the claim knew or should have known of it or
the Termination Date, whichever
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is earlier. Any claim not brought within the required time period will be waived
forever. In the arbitration proceedings (i) all testimony of witnesses shall be
taken under oath, (ii) it is specifically contemplated and agreed by the parties
hereto that the provisions of Section 1283.05 of the Code of Civil Procedure, as
presently in force, be incorporated into and made a part of, and be applicable
to, the arbitration agreement set forth in this Section 8.3, and (iii) upon
conclusion of any arbitration proceedings hereunder, the arbitrators shall
render findings of fact and conclusions of law in a written opinion setting
forth the basis and reasons for any decision reached and deliver such documents
to each party to this Amended Agreement along with a signed copy of the award in
accordance with Section 1283.6 of the California Code of Civil Procedure.
Each party hereby agrees that the prevailing party shall
be entitled to recover all costs incurred in preparation for and as a result of
any such arbitration, including without limitation, filing fees, attorneys'
fees, the compensation to be paid to the arbitrators in any such arbitration and
costs of transcripts. The arbitrators shall not have power or competence to
allocate between the parties in their award any such costs, expenses, fees or
share of the arbitrators' compensation, except as provided in the preceding
sentence.
9. MISCELLANEOUS.
9.1 EFFECTIVE DATE. The "Effective Date" of this Amended
Agreement shall be the consummation of the initial public offering of Common
Stock contemplated by the registration statement on Form S-1 filed with the
Securities and Exchange Commission on August 21, 2001 (File No. 333-68094) (the
"IPO"). If the IPO has not been consummated by August 31, 2002, this Amended
Agreement shall terminate and be of no further force and effect. The Employment
Agreement shall remain in full force and effect until this Amended Agreement
becomes effective.
9.2 JOINT AND SEVERAL OBLIGATIONS. The obligations and promises
set forth herein by the Company and Big 5 Corp., including payment obligations,
shall be joint and several undertakings of each such party, and, in the event of
a breach of any of such obligations or promises, Executive may proceed hereunder
against any one or more of such parties without waiving the right to proceed
against the other.
9.3 AGREEMENT AUTHORIZED. Executive hereby warrants that
Executive is free to enter into this Amended Agreement and to render Executive's
services pursuant hereto. The Company and Big 5 Corp. hereby warrant that any
required authorization of this Amended Agreement by their respective boards of
directors have been obtained.
9.4 COUNSEL. Executive has read and understands this Amended
Agreement and has sought the advice of counsel to the extent he has determined
appropriate.
9.5 PARTIAL INVALIDITY. If any term or provision of this Amended
Agreement or the application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable (other than provisions going to the essence
of this Amended Agreement), the remainder of this Amended Agreement, or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or
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unenforceable, shall not be affected thereby, and each such term and provision
of this Amended Agreement shall be valid and be enforced to the fullest extent
permitted by law.
9.6 NOTICES. Except as otherwise provided herein, all notices,
requests and other communications hereunder must be in writing and will be
deemed to have been duly given only if delivered personally against written
receipt or by facsimile transmission or mailed by prepaid first class certified
mail, return receipt requested, or mailed by overnight courier prepaid, to the
parties at the following addresses or facsimile numbers:
If to the Company, to:
Big 5 Sporting Goods Corporation
Attention: Xxxx X. Xxxxx
0000 Xxxx Xx Xxxxxxx Xxxxxxxxx
Xx Xxxxxxx, Xxxxxxxxxx 00000
Fax #: (000) 000-0000
If to Big 5 Corp., to:
Big 5 Corp.
Attention: Xxxx X. Xxxxx
0000 Xxxx Xx Xxxxxxx Xxxxxxxxx
Xx Xxxxxxx, Xxxxxxxxxx 00000
Fax #: (000) 000-0000
If to Executive, to:
Xxxxxx X. Xxxxxx
0000 Xxxx Xx Xxxxxxx Xxxxxxxxx
Xx Xxxxxxx, Xxxxxxxxxx 00000
Fax #: (000) 000-0000
All such notices, requests and other communications will (a) if delivered
personally to the address as provided in this Section 9.6, be deemed given upon
delivery, (b) if delivered by facsimile transmission to the facsimile number as
provided in this Section 9.6, be deemed given upon receipt, (c) if delivered by
mail in the manner described above to the address as provided in this Section
9.6, be deemed given on the earlier of the third business day following mailing
or upon receipt and (d) if delivered by overnight courier to the address as
provided in this Section 9.6, be deemed given on the earlier of the first
business day following the date sent by such overnight courier or upon receipt.
Any party from time to time may change its address, facsimile number or other
information for the purpose of notices to that party by giving notice specifying
such change to the other parties hereto.
9.7 ENTIRE AGREEMENT. This Amended Agreement sets forth the
entire understanding of the parties relating to the subject matter hereof and
supersedes any and all prior agreements or understandings between the parties
relating to such subject matter. Notwithstanding the foregoing, this Amended
Agreement does not supersede the Management Subscription and Stockholders
Agreement between Executive and the
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Company dated as of November 11, 1997 and it is acknowledged that the parties
may enter into other agreements in connection with Executive's employment,
including Option agreements.
9.8 SUCCESSORS AND ASSIGNS; NO THIRD PARTY BENEFICIARIES. The
Company shall require any successor or assignee, whether direct or indirect, by
purchase, merger, consolidation or otherwise, to all or substantially all the
business or assets of the Company, expressly and unconditionally to assume and
agree to perform the Company's obligations under this Amended Agreement, in the
same manner and to the same extent that the Company would be required to perform
if no such succession or assignment had taken place. This Amended Agreement is
solely for the benefit of the parties hereto and their respective permitted
successors and assigns and no other person or entity shall have any rights under
this Agreement; provided, however, it is expressly intended that Executive's
estate is a third party beneficiary of this Amended Agreement.
9.9 MODIFICATION AND WAIVER. None of the terms or provisions
hereof shall be modified or waived, and this Amended Agreement may not be
amended or terminated, except by a written instrument signed by the party
against which any modification, waiver, amendment or termination is to be
enforced. No waiver of any one provision shall be considered a waiver of any
other provision, and the fact that an obligation is waived for a period of time
or in one instance shall not be considered to be a continuing waiver.
9.10 CONSTRUCTION AND ASSIGNMENT. This Amended Agreement shall be
construed under and governed by the laws of the State of California. This
Amended Agreement shall not be assignable by Executive. The terms and conditions
of this Amended Agreement shall inure to the benefit of and be binding upon any
successor to the business of the Company or Big 5 Corp.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Amended
Agreement as of the day and year first written above.
THE COMPANY
Big 5 Sporting Goods Corporation,
a Delaware corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
BIG 5 CORP.
Big 5 Corp.,
a Delaware corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
EXECUTIVE
------------------------------------
Xxxxxx X. Xxxxxx
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