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EXHIBIT 10.4
CONSULTING AND SEPARATION AGREEMENT
This CONSULTING AND SEPARATION AGREEMENT (this "Agreement") is made
and entered into effective as of the 16th day of September 1994 (the "Effective
Date"), by and between Sport Supply Group, Inc., a Delaware corporation (the
"Company") and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇").
WHEREAS, the Company and ▇▇▇▇▇▇▇▇▇ entered into that certain
Employment Agreement dated as of January 1, 1994, a copy of which is attached
hereto as Exhibit A, whereby ▇▇▇▇▇▇▇▇▇ was employed as a Vice President of the
Company's Gold Eagle Professional Golf Products Division (the "Employment
Agreement").
WHEREAS, the Company and ▇▇▇▇▇▇▇▇▇ entered into that certain
Commission Agreement dated as of January 1, 1994, a copy of which is attached
hereto as Exhibit B (the "Commission Agreement").
WHEREAS, the Company and ▇▇▇▇▇▇▇▇▇ desire to terminate the Employment
Agreement and Commission Agreement and enter into this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Resignation. ▇▇▇▇▇▇▇▇▇ hereby resigns, effective immediately, as an
officer and employee of the Company, including without limitation his
position as Vice President of the Company's Gold Eagle Professional
Golf Products Division.
2. Consulting Agreement. ▇▇▇▇▇▇▇▇▇ hereby agrees to provide consulting
services to the Company pursuant to the following terms:
a. Extent of Services. ▇▇▇▇▇▇▇▇▇ agrees to provide consulting
services to the Company from the date hereof through
December 31, 2004 (the "Consulting Period") and shall
report to the Company's senior executive officers. During
such time, ▇▇▇▇▇▇▇▇▇ agrees to promptly respond to all
reasonable business-related requests from the Company's
senior executive officers, and perform such duties or
responsibilities as are reasonably requested by any of the
Company's senior executive officers, including without
limitation, assisting the Company in procuring
experienced/used golf balls and entering into concession
agreements with country clubs and golf courses. ▇▇▇▇▇▇▇▇▇
further acknowledges and agrees that he is not and will not
represent himself as an agent of the Company or its
Affiliates and shall have no authority to bind the Company
or its Affiliates in any manner without the prior written
authorization of a senior executive officer of the Company.
▇▇▇▇▇▇▇▇▇ further agrees to uphold his duty of loyalty to
the Company, its management, and its business and
proprietary interests during the Consulting Period. The
inability of ▇▇▇▇▇▇▇▇▇ to render services to the Company
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by reason of other employment, vacation, partial or
permanent disability or incapacity shall not constitute a
failure by ▇▇▇▇▇▇▇▇▇ to perform his obligations hereunder
and shall not be deemed a breach or default by him
hereunder, so long as ▇▇▇▇▇▇▇▇▇ responds to the Company's
request and provides such consulting services within a
reasonable period of time thereafter.
b. Compensation. As compensation for the performance of
▇▇▇▇▇▇▇▇▇'▇ services as a consultant hereunder, the Company
shall pay ▇▇▇▇▇▇▇▇▇ an amount equal to $40.00 per hour for
each hour ▇▇▇▇▇▇▇▇▇ actually provides consulting services
to the Company in accordance with the terms of this
Agreement (the "Consulting Compensation"). The Consulting
Compensation will accrue and be payable to ▇▇▇▇▇▇▇▇▇ in
arrears in accordance with the payroll practices of the
Company in effect from time to time during the Consulting
Period, less such amounts required to be withheld or
deducted therefrom. In addition, the Company will
reimburse ▇▇▇▇▇▇▇▇▇ for his reasonable travel and business
expenses incurred in connection with providing consulting
services hereunder. All requests for reimbursement shall
be in writing and supported by invoices, receipts or
similar documentation, and shall otherwise be in compliance
with the Company's policy regarding reimbursement.
3. Separation Benefits. Subject to the terms and conditions of this
Agreement, the Company will provide ▇▇▇▇▇▇▇▇▇ with the following:
a. Cash Payments.
(i) The Company will deliver to
▇▇▇▇▇▇▇▇▇ a check in an amount not to exceed $4,000 within
10 days of the Company's receipt of all of ▇▇▇▇▇▇▇▇▇'▇
invoices or similar documentation relating to reimbursable
business expenses incurred on or before September 19, 1994
by ▇▇▇▇▇▇▇▇▇ for the Company's benefit;
(ii) No later than the 1st day of each
calendar month (beginning on October 1, 1994 and ending on
December 1, 1994), the Company will pay ▇▇▇▇▇▇▇▇▇ $6,000
(such payments are collectively referred to herein as the
"Advances");
(iii) No later than March 1, 1995, the
Company will pay ▇▇▇▇▇▇▇▇▇ an amount equal to the
difference between (1) $.005 multiplied by the number of
experienced/used golf balls in excess of 3 million sold by
the Company's Gold Eagle Professional Golf Products
Division and Second Chance Division to one or more
unaffiliated third parties between January 1, 1994 and
December 31, 1994 less (2) $39,750;
(iv) No later than March 1, 1995, the
Company will pay ▇▇▇▇▇▇▇▇▇ an amount equal to the
difference between (1) $.005 multiplied by the number of
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experienced/used golf balls sold by the Company's Gold
Eagle Golf Products Division and Second Chance Division to
one or more unaffiliated third parties between January 1,
1994 and December 31, 1994 less (2) $50,000 less (3) the
aggregate amount of all Advances paid to ▇▇▇▇▇▇▇▇▇; and
(v) The Company will pay ▇▇▇▇▇▇▇▇▇ 120
equal monthly installments of $7,287.88 no later than the
last day of each calendar month, with the first payment
being made on January 31, 1995 and the last payment being
made on December 31, 2004.
For purposes of this Agreement, an experienced/used golf ball shall
be deemed "sold" when it has been properly invoiced and shipped by the Company.
All payments to ▇▇▇▇▇▇▇▇▇ pursuant to this Agreement will be (i) deemed to have
been made if a check made payable to ▇▇▇▇▇▇▇▇▇ for the appropriate amount has
been deposited in the U.S. mail and addressed to ▇▇▇▇▇▇▇▇▇ at his address set
forth in Section 15 hereof, provided sufficient funds are available to clear
such check in the ordinary course of business after being deposited in a
financial institution and (ii) subject to deduction and withholding required by
applicable law.
b. Health Benefits. So long as the Company provides health
insurance benefits for its employees, the Company will
permit ▇▇▇▇▇▇▇▇▇ and his spouse on the Effective Date to
participate in the health insurance plans which are
regularly maintained by the Company for its employees, and
will pay the insurance premiums relating thereto (except as
provided below), until the earlier of (i) December 31,
2004, (ii) the date ▇▇▇▇▇▇▇▇▇ becomes eligible to
participate in the health insurance plan of another
employer or (iii) the date of ▇▇▇▇▇▇▇▇▇'▇ death. ▇▇▇▇▇▇▇▇▇
agrees to notify the Company within 15 days of becoming
eligible to participate in the health insurance plan of
another employer if such coverage occurs prior to December
31, 2004. To the extent ▇▇▇▇▇▇▇▇▇ was obligated to pay
premiums relating to health insurance coverage as an
employee or such premiums were deducted from ▇▇▇▇▇▇▇▇▇'▇
salary, ▇▇▇▇▇▇▇▇▇ will continue to be so obligated to pay
such premiums or promptly reimburse the Company therefor.
Notwithstanding the foregoing, if the Company's health
insurance plan or health insurance provider will not permit
▇▇▇▇▇▇▇▇▇ and/or ▇▇▇▇▇▇▇▇▇'▇ spouse to remain on the
Company's health insurance plan, the Company shall pay
▇▇▇▇▇▇▇▇▇ (prior to the last day of each month that he and
his spouse are not permitted to remain on such plan) an
amount equal to the amount the Company would contribute to
▇▇▇▇▇▇▇▇▇'▇ (or ▇▇▇▇▇▇▇▇▇'▇ spouse) health insurance
premiums as if ▇▇▇▇▇▇▇▇▇ was an employee of the Company at
such time until the earlier of (i) December 31, 2004, (ii)
the date ▇▇▇▇▇▇▇▇▇ becomes eligible to participate in the
health insurance plan of another employer or (iii) the date
of ▇▇▇▇▇▇▇▇▇'▇ death. ▇▇▇▇▇▇▇▇▇ shall be responsible for
filing all necessary notices under the terms of any
applicable policy or plan and for the timely payment of any
premiums due and timely and proper filing of any claims.
▇▇▇▇▇▇▇▇▇ will be responsible for the payment of any and
all tax liabilities relating to the provision
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of health benefits hereunder and such payments will be
subject to any deduction and withholding required by
applicable law.
4. Covenants and Agreements of ▇▇▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇▇▇ acknowledges and
agrees that the Separation Benefits set forth in Section 3 hereof and
the other consideration he has accepted and received pursuant to this
Agreement are not otherwise due to him. In consideration for the
payments and other consideration reflected in Section 3 of this
Agreement, the receipt and sufficiency of which are hereby
acknowledged, ▇▇▇▇▇▇▇▇▇ voluntarily and knowingly:
a. Nondisparagement of Company. Agrees that after the date
hereof, he will not say, publish or do anything that casts
the Company or any of its Affiliates (as defined in Section
23 hereof), any of its products or the industry or
management of the Company or any of its Affiliates in an
unfavorable light, or disparage or injure the Company's or
any of its Affiliate's goodwill, business reputation or
relationship with existing or potential suppliers, vendors,
customers, employees, contractors, investors or the
financial community in general, or the goodwill or business
reputation of the Company's or any of its Affiliate's
employees, officers, directors, consultants or contractors.
Notwithstanding the foregoing, nothing herein shall
prohibit ▇▇▇▇▇▇▇▇▇ from truthfully testifying in a hearing,
deposition or other legal proceeding in which ▇▇▇▇▇▇▇▇▇
could be criminally or civilly sanctioned for the failure
to respond truthfully.
b. Release. Subject to Section 4.c. hereof, hereby waives,
releases and forever discharges the Company and/or its
predecessors; successors; partners; Affiliates, parents, or
subsidiaries; assigns; employee retirement, health (except
the continuous health coverage contemplated by this
Agreement) and welfare benefit plans and the fiduciaries
thereof; officers; administrators; employees; former
employees; directors; trustees; shareholders;
representatives; attorneys; and agents, from all claims,
liabilities, demands, actions, or causes of action, in
contract, tort or otherwise, including but not limited to
all wrongful discharge claims, all tort, intentional tort,
negligence, defamation, and contract claims, any claim for
attorneys' fees, or any claim arising from any federal,
state or local civil rights and/or employment legislation
(including but not limited to Title VII of the Civil Rights
Act of 1964, the Age Discrimination in Employment Act of
1967, the Texas Commission on Human Rights Act, and the
Florida Civil Human Rights Act of 1992 and any claim for
benefits, including but not limited to those arising under
the Employee Retirement Income Security Act of 1974
("ERISA"), known or hereafter discovered by ▇▇▇▇▇▇▇▇▇, on
account of or connected with or growing out of, directly or
indirectly, his employment and resignation thereof, the
Company's employment policies and practices, or on any
other basis whatsoever. Notwithstanding the foregoing,
▇▇▇▇▇▇▇▇▇ is not releasing the Company from any claims that
arise after the date hereof, including those that may arise
as a result of the Company's breach of this Agreement. By
execution hereof, ▇▇▇▇▇▇▇▇▇ represents, covenants, and
warrants that no claims released or waived herein have
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been previously conveyed, assigned, or transferred in any
manner, whether in whole or in part, to any person, entity,
or other third party. ▇▇▇▇▇▇▇▇▇ expressly represents that
he is competent and authorized to release and/or waive any
claim he may have against the Company on any basis
whatsoever.
c. Waiver. Waives all rights and benefits afforded by any
state laws which provide in substance that a general
release does not extend to the claims of which a person
does not know of or support to exist in his favor at the
time of executing a release; however, ▇▇▇▇▇▇▇▇▇ is not
waiving rights or claims, if any, that may arise after the
date he signs this Agreement (including any claims under
ERISA for the payment of a benefit payable under an ERISA
plan).
d. Acknowledgement. Acknowledges that as of September 16,
1994: (i) his employment by the Company is lawfully and
voluntarily terminated; (ii) he has received all due and
owing pay for all labor and services performed by him for
the Company; and (iii) he has received or been compensated
for all salary, vacation time, sick leave, compensatory
time, reimbursable expenses (except as contemplated by
Section 3.a.(i) of this Agreement), personal injuries,
bonuses, profit-sharing, retirement, health, welfare,
pension, and all other employee benefits to which he may
have been entitled as of September 16, 1994.
e. Non-Compete Covenant. In addition to any other covenants,
contracts or agreements to which ▇▇▇▇▇▇▇▇▇ may be subject,
from the date hereof until December 31, 2004, ▇▇▇▇▇▇▇▇▇
will not, directly or indirectly, either as an individual
or as an employer, employee, partner, officer, director,
shareholder, substantial investor, trustee, agent, advisor,
or consultant or in any other capacity whatsoever, of any
person or entity (other than the Company):
(a) conduct or assist others in conducting
any business related to the reconditioning, marketing
and/or selling of experienced/used golf balls (the
"Company's Business") in any market area in the United
States;
(b) recruit, hire, assist others in recruiting
or hiring, discuss employment with or refer to others for
employment (collectively referred to as "Recruiting
Activity") any person who is, or within the 24 month period
immediately preceding the date of any such Recruiting
Activity was, at any time, an employee of the Employer or
its Affiliates; or
(c) solicit or otherwise accept or take away
the customers, suppliers (including, without limitation,
country clubs and golf courses), clients, distributors,
dealers or independent salespersons of the Company, or any
of its Affiliates, which are engaged in the Company's
Business in the United States; or induce, attempt to induce
or assist any other person or entity in inducing or
attempting to induce, directly or indirectly, any such
customer, supplier, client, dealer, distributor or
independent salesperson to discontinue their relationship
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with the Company or its Affiliates; or in any way interfere
or attempt to interfere with a past or present relationship
maintained by the Company with a customer, supplier,
client, distributor, dealer or independent salesperson or
one that the Company is attempting to establish during the
Consulting Period.
Notwithstanding the foregoing, the purchase by
▇▇▇▇▇▇▇▇▇ of experienced/used golf balls from the Company
and the resale of such golf balls purchased from the
Company to the retail market will not be deemed to be a
violation of this covenant or the covenant not to compete
set forth in Section 4.2 of that Asset Purchase Agreement
dated March 10, 1994, by and among the Company,
International Golf, Inc., Merimac Investments, Inc., ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and
Levco Group, Ltd. (the "International Golf Purchase
Agreement").
It is the desire and intent of the parties to
this Agreement that the provisions of this Section 4.e.
shall be enforced to the fullest extent permissible under
the laws and public policies applied in each jurisdiction
in which enforcement is sought. It is understood and
agreed that the scope of this covenant contained in this
Section 4.e. is reasonable as to time, area, and persons
and is necessary to protect the proprietary and legitimate
business interest of the Company, and but for such covenant
the Company would be unwilling to enter into the
transactions contemplated by this Agreement. ▇▇▇▇▇▇▇▇▇
agrees that this covenant is reasonable in light of the
compensation and other benefits ▇▇▇▇▇▇▇▇▇ has accepted
pursuant to this Agreement.
Should a court of competent jurisdiction
determine this covenant unenforceable as written, the court
shall modify this covenant to the extent necessary to make
it enforceable. The alleged breach of any other provision
of this Agreement asserted by ▇▇▇▇▇▇▇▇▇ shall not be a
defense to claims arising from the Company's enforcement of
this covenant; provided, however, if ▇▇▇▇▇▇▇▇▇ notifies the
Company that the Company breached its obligations in
Sections 3.a. or 3.b. of this Agreement and the Company (i)
does not dispute such breach and (ii) does not cure such
breach within 20 days of receiving written notice by
▇▇▇▇▇▇▇▇▇ of such breach, the breach of such provision(s)
may be asserted as a defense to claims arising from the
Company's enforcement of this covenant.
5. Conditions. It is expressly understood that the obligations and
agreements of the Company pursuant to this Agreement are expressly
subject to the continuing performance by ▇▇▇▇▇▇▇▇▇ of the
obligations, covenants and agreements assumed by him pursuant hereto.
In this regard and not by way of limitation, the obligations,
covenants and agreements of the Company pursuant to Sections 2 and 3
are expressly conditioned on ▇▇▇▇▇▇▇▇▇ continuing performance of the
obligations and agreements described in Sections 4, 7, 8, 9 and 10
hereof. In the event the Company's Board of Directors in good
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faith determines, in its sole discretion, that ▇▇▇▇▇▇▇▇▇ has breached
any representation, agreement, covenant or obligation contained
herein (and such breach is not cured within 20 days of ▇▇▇▇▇▇▇▇▇'▇
receipt of a written notice by the Company alleging such breach), the
agreements, covenants and obligations of the Company pursuant hereto
shall terminate and be of no further force or effect, without
prejudice to any other right the Company may have hereunder to
performance of the agreements and obligations assumed by ▇▇▇▇▇▇▇▇▇
hereunder. Notwithstanding the foregoing, the 20 day cure period
described in the immediately preceding sentence will not apply if the
Company's Board of Directors determines ▇▇▇▇▇▇▇▇▇ breached Sections 4
and/or 9 of this Agreement.
6. Revocation of this Agreement. ▇▇▇▇▇▇▇▇▇ further acknowledges and
agrees that he has the right to discuss all aspects of this Agreement
with a private attorney, and that he has done so to the extent he
desires. ▇▇▇▇▇▇▇▇▇ acknowledges and understands that he has
twenty-one (21) days to sign this Agreement after receipt of it in
order to fully consider all of its terms. ▇▇▇▇▇▇▇▇▇ further
acknowledges and understands that this Agreement may be revoked by
him in writing within seven (7) days from the date he signs it, and
that this Agreement shall not become effective or enforceable until
the seven-day revocation period has expired.
7. Taxes. ▇▇▇▇▇▇▇▇▇ further acknowledges and agrees that he shall be
solely responsible for the payment of all his federal, state and
local taxes, interest and penalties, if any, which are or may become
due on the amount paid to him under this Agreement, and agrees to
defend, indemnify and hold the Company harmless from any tax claims
on that amount.
8. Return of Property. ▇▇▇▇▇▇▇▇▇ further agrees to return to ▇▇▇▇▇
▇▇▇▇, simultaneously with the execution of this Agreement, all
documents, records, notebooks, mailing lists, business proposals,
contracts, agreements and other repositories containing information
concerning the Company or its business, and any keys or security
codes ▇▇▇▇▇▇▇▇▇ possesses, whether copies or originals (including but
not limited to all correspondence, client and/or customer lists,
minutes or agenda(s) for any meeting, hand-written notes, journals,
computer printouts or programs, office memoranda, or other tangible
items or materials).
9. Confidentiality. ▇▇▇▇▇▇▇▇▇ further agrees to keep the terms of this
Agreement wholly and completely confidential. Further, ▇▇▇▇▇▇▇▇▇
agrees not to disclose the amount, terms, substance, or contents of
this Agreement to any person or persons, excluding only his spouse,
his attorneys, his tax advisors and any government agency to which he
is required by law to reveal the terms of this Agreement.
Notwithstanding the foregoing, nothing herein shall prohibit
▇▇▇▇▇▇▇▇▇ from truthfully testifying in a hearing, deposition or
other legal proceeding in which ▇▇▇▇▇▇▇▇▇ could be criminally or
civilly sanctioned for the failure to respond truthfully.
10. Full and Final Settlement. This Agreement is contractual, not a mere
recital, and is a full and final settlement of any and all claims
▇▇▇▇▇▇▇▇▇ may have against the Company and its Affiliates on any
basis whatsoever relating to his employment by the Company and/or
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resignation from the Company, and shall be binding on ▇▇▇▇▇▇▇▇▇ and
his heirs, personal representative(s), estate and assigns.
11. Entire Agreement. This Agreement constitutes the entire
understanding ▇▇▇▇▇▇▇▇▇ has with the Company with regard to the
matters addressed herein and supersedes any previous agreements,
whether oral or written, between the Company and ▇▇▇▇▇▇▇▇▇ relating
to the subject matter hereof (other than the International Golf
Purchase Agreement). No other promises or agreements regarding the
matters addressed herein shall be binding unless they are in writing
and signed by ▇▇▇▇▇▇▇▇▇ and the Company. Any such written
modification, or any written consent given by the Company for any act
of ▇▇▇▇▇▇▇▇▇, must be signed by the President or Chief Executive
Officer of the Company.
12. No Admission of Liability. This Agreement does not constitute an
admission of liability of any kind by the Company.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE INTERPRETED BY, GOVERNED BY,
AND ENFORCED UNDER THE SUBSTANTIVE LAWS (AND NOT THE CHOICE OF LAW
PROVISIONS) OF THE STATE OF TEXAS, EXCEPT WHERE PREEMPTED BY FEDERAL
LAW.
14. Equitable Relief. ▇▇▇▇▇▇▇▇▇ acknowledges that his expertise in the
Company's Business is of a special, unique, unusual, extraordinary
and intellectual character, which gives said expertise a peculiar
value, and that a breach by him of any of the provisions of Sections
4, 7, 8, 9 or 10 of this Agreement cannot reasonably or adequately be
compensated in damages in an action at law, and a breach by him of
any of such provisions will cause the Company irreparable injury and
damage. ▇▇▇▇▇▇▇▇▇ further acknowledges that he possesses unique
skills, knowledge and ability and that disclosure, competition,
solicitation or disparagement by him in violation of this Agreement
or any other breach of the provisions of this Agreement would be
extremely detrimental to the Company. By reason thereof, ▇▇▇▇▇▇▇▇▇
agrees that the Company shall be entitled, in addition to any other
remedies it may have under this Agreement or otherwise, to
preliminary and permanent injunctive and other equitable relief to
prevent or curtail any breach of this Agreement by him; provided,
however, that no specification in this Agreement of a specific legal
or equitable remedy shall be construed as a waiver or prohibition
against the Company pursuing any other legal or equitable remedies in
the event of such a breach.
15. Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have
been duly given on the date of service if served personally on the
party to whom notice is to be given, or on the third day after
mailing if mailed to the party to whom notice is to be given properly
addressed, certified mail, return receipt requested, postage prepaid,
as follows:
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If to the Company:
Sport Supply Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
If to ▇▇▇▇▇▇▇▇▇:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Gunster, Yoakley & ▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇. ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
16. Counterparts. This Agreement may be executed in multiple original
counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute but one and the same Agreement.
17. No Continuing Waiver. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other
provision, whether or not similar, nor shall any waiver constitute a
continuing waiver. Any waiver must be in writing and signed by the
party entitled to performance.
18. Attorneys' Fees. If any civil action, whether at law or in equity,
is necessary to enforce or interpret any of the terms of this
Agreement, the prevailing party shall be entitled to reasonable
attorneys' fees, court costs and other reasonable expenses of
litigation, in addition to any other relief to which such party may
be entitled.
19. Jurisdiction. The parties hereto hereby irrevocably submit to the
nonexclusive jurisdiction of the state and federal courts of the
State of Texas and agree and consent that service of process may be
made upon each party in any proceeding arising out of this
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Agreement by service of process as provided by Texas law. All
parties hereto hereby irrevocably waive, to the fullest extent
permitted by law, any objection which it may now or hereafter have to
the laying of venue of any suit, action or proceeding arising out of
or relating to this Agreement brought in the District Court of Dallas
County, State of Texas, or in the United States District Court for
the Northern District of Texas, and hereby further irrevocably waive
any claims that any such suit, action or proceeding brought in any
such court has been brought in an inconvenient forum. The
parties hereto further agree to designate an agent for service of
process in the City of Dallas in connection with any such suit,
action or proceeding if requested by the other party in contemplation
of such a suit, action or proceeding and deliver to the other party
evidence thereof. The parties hereto hereby irrevocably agree that
any proceeding against any party arising out of or in connection with
this Agreement shall be brought in the district courts of Dallas
County, Texas, or in the United States District Court for the
Northern District of Texas.
20. Severability. The parties hereto expressly agree that it is not the
intention of any of them to violate any public policy, statutory or
common law rules, regulations, or decisions of any governmental or
regulatory body. If any provision of this Agreement is judicially or
administratively interpreted or construed as being in violation of
any public policy, statutory or common law rules, regulations, or
decisions of any governmental or regulatory body, such sections,
sentences, words, clauses, or combinations thereof shall be modified
to the extent necessary to make it enforceable and this Agreement
shall remain binding upon the parties hereto.
21. Descriptive Headings. The subject headings of the sections of this
Agreement are included for purposes of convenience only, and shall
not affect the construction or interpretation of any of its
provisions.
22. Survival of Rights. Subject to the terms of this Agreement, the
rights of ▇▇▇▇▇▇▇▇▇ to receive the cash payments contemplated by
Section 3.a. of this Agreement and amounts earned under Section 2.b.
of the Agreement, if any, shall inure to the benefit of and be
enforceable by ▇▇▇▇▇▇▇▇▇'▇ heirs and estate upon ▇▇▇▇▇▇▇▇▇'▇ death.
The obligations of the Company in Section 3.b. shall expire
immediately upon ▇▇▇▇▇▇▇▇▇'▇ death.
23. Affiliate. When used in this Agreement, the term "Affiliate" shall
mean (1) any corporation or organization of which such person is an
officer, director or partner or is directly or indirectly the
beneficial owner of 10% or more of any class of equity securities or
financial interest therein; or (2) any person that directly or
indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, the person specified.
For purposes of this Agreement, ▇▇▇▇▇▇▇▇▇'▇ spouse shall be deemed to
be an Affiliate of ▇▇▇▇▇▇▇▇▇. Any person who is an Affiliate of any
party hereto on the date hereof shall be deemed to be the Affiliate
of such party for purposes of this Agreement, regardless of whether
such person ceases to be an Affiliate of such party after the date
hereof. Any person who at any time after the date hereof becomes an
Affiliate of any party hereto shall be deemed to be the Affiliate of
such party for purposes of this Agreement, regardless of whether such
person was an Affiliate on the date hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
September 16, 1994.
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
SPORT SUPPLY GROUP, INC.
By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, President
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