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EXHIBIT 10.24
SEVERANCE PROTECTION AGREEMENT
THIS AGREEMENT made as of the first day of September, 1998, by
and between Gadzooks, Inc. (the "Company") and Xxxxxx X. Xxxxxxxxxxx (the
"Executive").
WHEREAS, the Board of Directors and the Executive desire to
enter into this Agreement to provide certain benefits to the Executive upon the
termination of employment of the Executive under certain conditions;
WHEREAS, the Board of Directors of the Company (the "Board")
recognizes that the possibility of a Change in Control (as hereinafter defined)
exists and that the threat or the occurrence of a Change in Control can result
in significant distraction of the Company's key management personnel because of
the uncertainties inherent in such a situation;
WHEREAS, the Board has determined that it is essential and in
the best interest of the Company and its stockholders for the Company to retain
the services of the Executive in the event of a threat or occurrence of a Change
in Control and to ensure the Executive's continued dedication and efforts in
such event without undue concern for the Executive's personal financial and
employment security;
WHEREAS, in order to induce the Executive to remain in the
employ of the Company, particularly in the event of a threat or the occurrence
of a Change in Control, the Company desires to enter into this Agreement with
the Executive to provide the Executive with certain benefits in the event the
Executive's employment is terminated under certain conditions, including as a
result of, or in connection with, a Change in Control, and to provide the
Executive with the Gross-Up Payment (as hereinafter defined); and
WHEREAS, by entering into this Agreement, the Executive will
agree to certain restrictions on his ability to compete with the Company or
solicit employees of the Company following his termination of employment, and
the Company will benefit from said restrictions.
NOW, THEREFORE, in consideration of the respective agreements
of the parties contained herein, it is agreed as follows:
1. Term of Agreement. This Agreement shall commence as of
September 1, 1998 and shall continue in effect through August 31, 2000 (the
"Term"); provided, however, that on September 1, 2000, and on each September 1
thereafter, the Term shall automatically be extended for one (1) year unless
either the Executive or the Company shall have given written notice to the other
at least ninety (90) days prior thereto that the Term shall not be so extended;
provided, further, however, that following the occurrence
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of a Change in Control, the Term shall not expire prior to the expiration of
twenty-four (24) months after such occurrence.
2. Termination of Employment in Connection with a Change in
Control. If, during the Term, the Executive's employment with the Company shall
be terminated within twenty-four (24) months following a Change in Control, the
Executive shall be entitled to the following compensation and benefits:
(a) If the Executive's employment with the Company shall
be terminated (1) by the Company for Cause or Disability, (2) by reason of the
Executive's death, or (3) by the Executive other than for Good Reason, the
Company shall pay to the Executive his or her Accrued Compensation. In addition
to the foregoing, if the Executive's employment is terminated by the Company for
Disability or by reason of the Executive's death, the Company shall pay to the
Executive or his or her beneficiaries a Pro Rata Bonus. The Executive's
entitlement to any other compensation or benefits shall be determined in
accordance with the Company's employee benefits plans and other applicable
programs and practices then in effect.
(b) If the Executive's employment with the Company shall
be terminated for any reason other than as specified in Section 2(a), the
Executive shall be entitled to the following:
(1) the Company shall pay the Executive all
Accrued Compensation and a Pro Rata Bonus;
(2) the Company shall pay the Executive as
severance pay and in lieu of any further compensation for periods subsequent to
the Termination Date, an amount determined by multiplying two times the sum of
(i) the Executive's Base Amount and (ii) the Executive's Bonus Amount; and
(3) after the Termination Date and until the
earlier of: the death of the Executive or the date upon which the Executive
becomes eligible for Medicare coverage (irrespective of whether the Executive
actually obtains such coverage), the Company shall continue to provide to the
Executive medical and dental coverage as provided to the Executive on the
Termination Date. The medical and dental coverage may be modified by the Company
at any time subsequent to the Termination Date as long as such modifications are
pursuant to, and to the same extent as, any modifications to the Company's
medical and dental insurance coverage provided to the Executive Officers in
office on the date of such modifications and such modifications do not result in
a substantial reduction of medical and dental benefits.
(c) If (x) the Executive's employment is terminated
by the Company without Cause, or (y) the Executive terminates employment for
Good Reason (1) within six (6) months prior to a Change in Control, or (2) prior
to the date of a Change in Control but the Executive reasonably demonstrates
that such (x) termination or (y)
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event or condition (A) was at the request of a third party who has indicated an
intention or taken steps reasonably calculated to effect a Change in Control (a
"Third Party") and who effectuates a Change in Control or (B) otherwise arose in
connection with, or in anticipation of a Change in Control which has been
threatened or proposed and which actually occurs, such termination shall be
deemed to have occurred after a Change in Control, provided a Change in Control
shall actually have occurred.
(d) (1) Gross-Up Payment. In the event it shall be
determined that any payment or distribution of any type to or for the benefit of
the Executive, by the Company, any Affiliate, any Person who acquires ownership
or effective control of the Company or ownership of a substantial portion of the
Company's assets (within the meaning of Section 280G of the Internal Revenue
Code of 1986, as amended (the "Code"), and the regulations thereunder) or any
affiliate of such Person, whether paid or payable or distributed or
distributable pursuant to any of the terms of this Agreement or otherwise (the
"Total Payments"), is or will be subject to the excise tax imposed by Section
4999 of the Code or any interest or penalties with respect to such excise tax
(such excise tax, together with any such interest and penalties, are
collectively referred to as the "Excise Tax"), then the Executive shall be
entitled to receive an additional payment (a "Gross-Up Payment") in an amount
such that after payment by the Executive of all taxes (including any interest or
penalties imposed with respect to such taxes), including any income tax,
employment tax or Excise Tax, imposed upon the Gross Up Payment, the Executive
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Total Payments.
(2) Determination By Accountant. All
mathematical determinations, and all determinations as to whether any of the
Total Payments are "parachute payments" (within the meaning of Section 280G of
the Code), that are required to be made under this Section 2(d), including
determinations as to whether a Gross-Up Payment is required, the amount of such
Gross-Up Payment and amounts relevant to the last sentence of this Section
2(d)(2), shall be made by an independent accounting firm selected by the
Executive from among the six (6) largest accounting firms in the United States
(the "Accounting Firm"), which shall provide its determination (the
"Determination"), together with detailed supporting calculations regarding the
amount of any Gross-Up Payment and any other relevant matter, both to the
Company and the Executive by no later than ten (10) days following the
Termination Date, if applicable, or such earlier time as is requested by the
Company or the Executive (if the Executive reasonably believes that any of the
Total Payments may be subject to the Excise Tax). If the Accounting Firm
determines that no Excise Tax is payable by the Executive, it shall furnish the
Executive and the Company with a written statement that such Accounting Firm has
concluded that no Excise Tax is payable (including the reasons therefor) and
that the Executive has substantial authority not to report any Excise Tax on his
or her federal income tax return. If a Gross-Up Payment is determined to be
payable, it shall be paid to the Executive within twenty (20) days after the
Determination (and all accompanying calculations and other material supporting
the Determination) is delivered to the Company by the Accounting Firm. Any
determination by the Accounting Firm shall be binding upon
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the Company and the Executive, absent manifest error. As a result of uncertainty
in the application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that Gross-Up
Payments not made by the Company should have been made ("Underpayment"), or that
Gross-Up Payments will have been made by the Company which should not have been
made ("Overpayments"). In either such event, the Accounting Firm shall determine
the amount of the Underpayment or Overpayment that has occurred. In the case of
an Underpayment, the amount of such Underpayment shall be promptly paid by the
Company to or for the benefit of the Executive. In the case of an Overpayment,
the Executive shall, at the direction and expense of the Company, take such
steps as are reasonably necessary (including the filing of returns and claims
for refund), follow reasonable instructions from, and procedures established by,
the Company, and otherwise reasonably cooperate with the Company to correct such
Overpayment, provided, however, that (i) the Executive shall not in any event be
obligated to return to the Company an amount greater than the net after-tax
portion of the Overpayment that he or she has retained or has recovered as a
refund from the applicable taxing authorities and (ii) this provision shall be
interpreted in a manner consistent with the intent of Section 2(d)(1), which is
to make the Executive whole, on an after-tax basis, from the application of the
Excise Tax, it being understood that the correction of an Overpayment may result
in the Executive repaying to the Company an amount which is less than the
Overpayment.
(e) The amounts provided for in Sections 2(a) and
2(b)(1) and (2), shall be paid in a single lump sum cash payment within thirty
(30) days after the Executive's Termination Date (or earlier, if required by
applicable law).
(f) The Executive shall not be required to mitigate
the amount of any payment provided for in this Agreement by seeking other
employment or otherwise and no such payment shall be offset or reduced by the
amount of any compensation or benefits provided to the Executive in any
subsequent employment except as provided in Section 3(a) below.
(g) The payments and benefits provided for in this
Section 2 shall be in lieu of any other severance pay to which the Executive may
be entitled under any Company severance plan or any other plan, agreement or
arrangement of the Company.
3. Termination of Employment Not in Connection with a Change
in Control. If the Executive's employment with the Company is terminated at any
time other than within twenty-four (24) months following a Change in Control or
the time specified under Section 2(c), the Executive shall be entitled to the
compensation, payments and benefits set forth in Sections 2(a) through 2(g)
under the conditions set forth in Sections 2(a) through 2(g) except as follows:
(a) The severance benefits described in Section
2(b)(2) shall be paid to the Executive in the form of biweekly periodic salary
continuation payment for two years from the Termination Date. During the first
one-year period ending on the first
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anniversary of the Termination Date (the "First Year"), the Executive shall have
no obligation to seek other employment or take other action by way of mitigation
of the amounts payable to the Executive under Section 2(b)(2) and such amounts
shall not be reduced whether or not the Executive obtains other employment.
During the period immediately after the First Year and ending on the second
anniversary of the Termination Date (the "Second Year"), the Executive shall not
be obligated to seek other employment and take action by way of mitigation of
the amounts payable to the Executive under Section 2(b)(2); however,
notwithstanding anything else in this Agreement, amounts received during the
Second Year under Section 2(b)(2) shall be reduced by the amount that the
Executive receives from such other employment should the Executive obtain other
employment during the Second Year; and
(b) The medical and dental benefits described in
Section 2(b)(3) in the event of a termination by the Company without Cause or by
the Executive for Good Reason shall only continue until the earlier of: the
second anniversary of the Termination Date or the date upon which the Executive
becomes eligible for Medicare coverage (irrespective of whether the Executive
actually obtains such coverage).
4. Notice of Termination. Any intended termination of the
Executive's employment by the Company shall be communicated by a Notice of
Termination from the Company to the Executive, and any intended termination of
the Executive's employment by the Executive for Good Reason shall be
communicated by a Notice of Termination from the Executive to the Company.
5. Non-Competition, Non-Solicitation, Non-Interference and
Confidentiality.
(a) The Executive agrees that upon termination of his
employment with the Company, he will not, without the prior written consent of
the Company, for a period of twenty-four (24) months thereafter (the "Restricted
Period"), alone or with or for others, in whatever, capacity, directly or
indirectly, solicit or attempt to solicit clients or customers of the Company,
or solicit or attempt to solicit employees of the Company to leave the Company's
employ.
(b) The Executive agrees that during the Restricted
Period he will not interfere with the relationship between the Company and any
of its vendors.
(c) The Executive agrees that, during the Restricted
Period, he shall not, for himself or any third party, directly or indirectly,
engage in any business activity or accept employment with any entity that is or
may be competitive with the Company in the field of retail sales (including, but
not limited to, internet retail sales and mail-order retail sales), of
moderately priced men's and women's casual apparel and accessories
("Competitor"), without prior written consent of the Company. The Executive
agrees that, prior to engaging in any such activity or accepting employment with
a Competitor or any entity that could reasonably be deemed a Competitor during
the
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Restricted Period, the Executive shall advise the Company in writing of the
Executive's intentions and seek the Company's approval. Company approval shall
apply only with respect to the activity or position approved and the Executive
shall be obligated to obtain Company approval with respect to any subsequent
change of activity or position or employment during the Restricted Period. The
Executive also agrees that, during the Restricted Period, the Executive shall
not hold any stock in a Competitor other than passive minority interests
comprising less than 2% of the outstanding stock of a publicly traded
Competitor.
(d) Without the prior written consent of the Company,
except to the extent required by an order of a court having competent
jurisdiction or under subpoena from an appropriate government agency, Executive
shall not disclose any trade secrets, customer lists, supplier lists, drawings,
designs, information regarding product development, marketing plans, sales
plans, management plans, management organization information (including data and
other information relating to members of the Board and management), operating
policies or manuals, business plans, financial records or any other financial
commercial, business or technical information relating to the Company or
information designated as confidential or proprietary that the Company may
receive belonging to suppliers, customers or others who do business with the
Company (collectively, "Confidential Information") to any third person unless
such Confidential Information has been previously disclosed to the public by the
Company or is in the public domain (other than by reason of Executive's breach
of this section 5(c)).
6. Fees and Expenses.
(a) If the employment of the Executive is terminated
under section 2(a) or 2(c) of this Agreement, the Company shall pay all legal
fees and related expenses (including the costs of experts, evidence and counsel)
incurred by the Executive as they become due as a result of (x) the termination
of the Executive's employment by the Company or by the Executive for Good Reason
(including all such fees and expenses, if any, incurred in contesting, defending
or disputing the basis for any such termination of employment), (y) the
Executive's hearing before the Board as contemplated in Section 17.5 of this
Agreement or (z) the Executive seeking to obtain or enforce any right or benefit
provided by this Agreement or by any other plan or arrangement maintained by the
Company under which the Executive is or may be entitled to receive benefits.
(b) If the employment of the Executive is terminated
for reasons or in circumstances not related to those described in section 2(a)
or 2(c) of this Agreement, the Company shall only pay the legal fees and related
expenses described in section 6(a) to the extent that the Company is
unsuccessful in the result of any litigation or other legal proceeding arising
out of the termination of the employment of the Executive.
7. Notice. For the purposes of this Agreement, notices and all
other communications provided for in the Agreement (including any Notice of
Termination) shall be in writing, shall be signed by the Executive if to the
Company or by a duly
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authorized officer of the Company if to the Executive, and shall be deemed to
have been duly given when personally delivered or sent by certified mail, return
receipt requested, postage prepaid, addressed to the respective addresses last
given by each party to the other, provided that all notices to the Company shall
be directed to the attention of the Board with a copy to the Secretary of the
Company. All notices and communications shall be deemed to have been received on
the date of delivery thereof or on the third business day after the mailing
thereof, except that notice of change of address shall be effective only upon
receipt.
8. Nature of Rights. The Executive shall have the status of a
mere unsecured creditor of the Company with respect to his or her right to
receive any payment under this Agreement. This Agreement shall constitute a mere
promise by the Company to make payments in the future of the benefits provided
for herein. It is the intention of the parties hereto that the arrangements
reflected in this Agreement shall be treated as unfunded for tax purposes and,
if it should be determined that Title I of ERISA is applicable to this
Agreement, for purposes of Title I of ERISA. Except as provided in Section 2(g),
nothing in this Agreement shall prevent or limit the Executive's continuing or
future participation in any benefit, bonus, incentive or other plan or program
provided by the Company and for which the Executive may qualify, nor shall
anything herein limit or reduce such rights as the Executive may have under any
other agreements with the Company. Amounts which are vested benefits or which
the Executive is otherwise entitled to receive under any plan or program of the
Company shall be payable in accordance with such plan or program, except as
explicitly modified by this Agreement.
9. Settlement of Claims. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, defense, recoupment, or other right which
the Company may have against the Executive or others.
10. Miscellaneous. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by the Executive and the Company. No waiver by
any party hereto at any time of any breach by any other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreement or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by any party which are not expressly set
forth in this Agreement.
11. Survival. The provisions in Section 5 of this Agreement
shall survive the expiration of this Agreement.
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12. Successors; Binding Agreement.
(a) This Agreement shall be binding upon and shall
inure to the benefit of the Company and its Successors and Assigns. The Company
shall require its Successors and Assigns to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession or assignment had
taken place.
(b) Neither this Agreement nor any right or interest
hereunder shall be assignable or transferable by the Executive, his or her
beneficiaries or legal representatives, except by will or by the laws of descent
and distribution. This Agreement shall inure to the benefit of and be
enforceable by the Executive's legal personal representative.
13. Mediation; Governing Law.
(a) Any dispute or controversy arising under or in
connection with this Agreement shall be first submitted to mediation. The
mediation shall be held in Dallas County in the State of Texas and except to the
extent inconsistent with this Agreement, shall be conducted in accordance with
the National Rules for the Resolution of Employment Disputes (Employment
Mediation Rules) of the American Arbitration Association then in effect at the
time of the mediation, and otherwise in accordance with principles which would
be applied by a court of law or equity. Mediation shall only be binding if it is
acceptable to both the Company and the Executive.
(b) This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Texas without giving
effect to the conflict of laws principles thereof. If mediation does not result
in resolution of any dispute or controversy arising under or in connection with
this Agreement, a party may bring an action. Any action brought by any party to
this Agreement shall be brought and maintained in a court of competent
jurisdiction in Dallas County in the State of Texas.
14. Severability. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity or enforceability of the other provisions hereof.
15. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto, and supersedes all prior agreements,
including the Severance Agreement dated September 5, 1996, understandings and
arrangements, oral or written, between the parties hereto, with respect to the
subject matter hereof.
16. Release. The Executive agrees that payment hereunder is
conditioned upon the execution of a release ("General Release") in the form
attached hereto.
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17. Definitions.
17.1. Accrued Compensation. For purposes of this
Agreement, "Accrued Compensation" shall mean all amounts of compensation for
services rendered to the Company that have been earned or accrued through the
Termination Date but that have not been paid as of the Termination Date
including (a) base salary, (b) reimbursement for reasonable and necessary
business expenses incurred by the Executive on behalf of the Company during the
period ending on the Termination Date, (c) vacation pay and (d) bonuses and
incentive compensation; provided, however, that Accrued Compensation shall not
include any amounts described in clause (a) or clause (d) that have been
deferred pursuant to any salary reduction or deferred compensation elections
made by the Executive.
17.2. Affiliate. For purposes of this Agreement,
"Affiliate" means any entity, directly or indirectly, controlled by, controlling
or under common control with the Company or any corporation or other entity
acquiring, directly or indirectly, all or substantially all the assets and
business of the Company, whether by operation of law or otherwise.
17.3. Base Amount. For purposes of this Agreement,
"Base Amount" shall mean the Executive's base salary in effect on September 1,
1998, or, if greater, (b) in effect at any time thereafter.
17.4. Bonus Amount. For purposes of this Agreement,
"Bonus Amount" shall mean the target annual bonus payable to the Executive in
respect of the fiscal year during which the Termination Date occurs.
17.5. Cause. For purposes of this Agreement, a
termination of employment is for "Cause" if the Executive has been convicted of
a felony or the termination is evidenced by a resolution adopted in good faith
by two-thirds of the Board that the Executive:
(a) intentionally and continually failed
substantially to perform his or her reasonably assigned duties with the Company
(other than a failure resulting from the Executive's incapacity due to physical
or mental illness or from the assignment to the Executive of duties that would
constitute Good Reason) which failure continued for a period of at least thirty
(30) days after a written notice of demand for substantial performance, signed
by a duly authorized officer of the Company, has been delivered to the Executive
specifying the manner in which the Executive has failed substantially to
perform, or
(b) intentionally engaged in conduct which is
demonstrably and materially injurious to the Company; provided, however, that no
termination of the Executive's employment shall be for Cause as set forth in
this Section 17.5(b) until (1) there shall have been delivered to the Executive
a copy of a written notice, signed by a
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duly authorized officer of the Company, setting forth that the Executive was
guilty of the conduct set forth in this Section 17.5(b) and specifying the
particulars thereof in detail, and (2) the Executive shall have been provided an
opportunity to be heard in person by the Board (with the assistance of the
Executive's counsel if the Executive so desires).
No act, nor failure to act, on the Executive's part,
shall be considered "intentional" unless the Executive has acted, or failed to
act, with a lack of good faith and with a lack of reasonable belief that the
Executive's action or failure to act was in the best interest of the Company.
Notwithstanding anything contained in this Agreement to the contrary, no failure
to perform by the Executive after a Notice of Termination is given to the
Company by the Executive shall constitute Cause for purposes of this Agreement.
17.6. Change in Control. A "Change in Control" shall
mean the occurrence during the term of the Agreement of:
(a) An acquisition (other than directly from the
Company) of any common stock of the Company ("Common Stock") or other voting
securities of the Company entitled to vote generally for the election of
directors (the "Voting Securities") by any "Person" (as the term person is used
for purposes of Section 13(d) or 14(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")), immediately after which such Person has
"Beneficial Ownership" (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of twenty percent (20%) or more of the then outstanding shares of
Common Stock or the combined voting power of the Company's then outstanding
Voting Securities; provided, however, in determining whether a Change in Control
has occurred, Voting Securities which are acquired in a Non-Control Acquisition
(as hereinafter defined) shall not constitute an acquisition which would cause a
Change in Control. A "Non-Control Acquisition" shall mean an acquisition by (i)
a Company employee benefit plan (or a trust forming a part thereof) maintained
by (A) the Company or (B) any corporation or other Person of which a majority of
its voting power or its voting equity securities or equity interest is owned,
directly or indirectly, by the Company (a "Subsidiary"), (ii) the Company or its
Subsidiaries, or (iii) any Person in connection with a Non-Control Transaction
(as hereinafter defined);
(b) The individuals who, as of the date hereof, are
members of the Board (the "Incumbent Board"), cease for any reason to constitute
at least seventy percent (70%) of the members of the Board, provided, however,
that if the election, or nomination for election by the Company's shareholders,
of any new director was approved by a vote of at least two-thirds of the
Incumbent Board, such new director shall, for purposes of this Agreement, be
considered as a member of the Incumbent Board; provided further, however, that
no individual shall be considered a member of the Incumbent Board 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 or consents
by or on behalf of a Person other
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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:
(1) A merger, consolidation or reorganization
with or into the Company or in which securities of the Company are issued,
unless such merger, consolidation or reorganization is a "Non-Control
Transaction." A "Non-Control Transaction" shall mean a merger, consolidation or
reorganization with or into the Company or in which securities of the Company
are issued where:
(A) the shareholders of the Company,
immediately before such merger, consolidation or reorganization, own directly or
indirectly immediately following such merger, consolidation or reorganization,
at least sixty percent (60%) of the combined voting power of the outstanding
voting securities of the corporation resulting from such merger or consolidation
or reorganization (the "Surviving Corporation") in substantially the same
proportion as their ownership of the Voting Securities immediately before such
merger, consolidation or reorganization,
(B) the individuals who were members of the
Incumbent Board immediately prior to the execution of the agreement providing
for such merger, consolidation or reorganization constitute at least seventy
percent (70%) of the members of the board of directors of the Surviving Company;
or Corporation, or a corporation beneficially directly or indirectly owning a
majority of the Voting Securities of the Surviving Corporation, and
(C) no Person other than (i) the Company,
(ii) any Subsidiary, (iii) any employee benefit plan (or any trust forming a
part thereof) that, immediately prior to such merger, consolidation or
reorganization, was maintained by the Company, the Surviving Corporation, or any
Subsidiary, or (iv) any Person who, immediately prior to such merger,
consolidation or reorganization had Beneficial Ownership of twenty percent (20%)
or more of the then outstanding Voting Securities or common stock of the
Company, has Beneficial Ownership of twenty percent (20%) or more of the
combined voting power of the Surviving Corporation's then outstanding voting
securities or its common stock.
(2) A complete liquidation or dissolution of the
Company; or
(3) The sale or other disposition of all or
substantially all of the assets of the Company to any Person (other than a
transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in
Control shall not be deemed to occur solely because any Person (the "Subject
Person") acquired Beneficial Ownership of more than the permitted amount of the
then outstanding common
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stock or Voting Securities as a result of the acquisition of Common Stock or
Voting Securities by the Company which, by reducing the number of shares of
Common Stock or Voting Securities then outstanding, increases the proportional
number of shares Beneficially Owned by the Subject Person, provided that if a
Change in Control would occur (but for the operation of this sentence) as a
result of the acquisition of shares of Common Stock or Voting Securities by the
Company, and after such share acquisition by the Company, the Subject Person
becomes the Beneficial Owner of any additional shares of Common Stock or Voting
Securities which increases the percentage of the then outstanding shares of
Common Stock or Voting Securities Beneficially Owned by the Subject Person, then
a Change in Control shall occur.
17.7. Company. For purposes of this Agreement, all
references to the Company shall include its Successors and Assigns.
17.8. Disability. For purposes of this Agreement,
"Disability" shall mean a physical or mental infirmity which impairs the
Executive's ability to substantially perform his or her duties with the Company
for six (6) consecutive months, and within the time period set forth in a Notice
of Termination given to the Executive (which time period shall not be less than
thirty (30) days), the Executive shall not have returned to full-time
performance of his or her duties.
17.9. Good Reason. For purposes of this Agreement,
"Good Reason" shall mean the occurrence of any of the following events or
conditions, provided, however, that a termination for Good Reason shall only be
effective if the Executive provides the Company with at least thirty (30) days'
written Notice of Termination describing the circumstances giving rise to his
possible termination for Good Reason and the Company fails to cure such
circumstances within those thirty (30) days:
(1) a change in the Executive's status, title,
position or responsibilities (including reporting responsibilities) which
represents an adverse change from his or her status, title, position or
responsibilities as in effect immediately prior thereto; the assignment to the
Executive of any duties or responsibilities which are inconsistent with his
status, title, position or responsibilities; or any removal of the Executive
from or failure to reappoint or reelect him or her to any of such offices or
positions, except in connection with the termination of his employment for
Disability, Cause, as a result of his or her death or by the Executive other
than for Good Reason;
(2) a reduction in the Executive's annual base
salary below the Base Amount;
(3) the failure by the Company to pay to the
Executive any portion of the Executive's current compensation or to pay to the
Executive any portion of an installment of deferred compensation under any
deferred compensation program of the Company in which the Executive
participated, within twenty-one (21) days of the date such compensation is due;
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(4) the failure by the Company (A) to continue
in effect (without reduction in benefit level, and/or reward opportunities) any
material compensation or employee benefit plan in which the Executive was
participating on September 1, 1998, including, but not limited to, any of the
plans listed in Appendix A hereto, unless a substitute or replacement plan has
been implemented which provides substantially identical compensation or benefits
to the Executive; provided, however, that if such material compensation or
employee benefit plans are increased at any time after September 1, 1998, then
the failure to continue those greater material compensation or employee benefit
plans will constitute Good Reason; or (B) to provide the Executive with
compensation and benefits, which in the aggregate, are at least equal (in terms
of benefit levels and/or reward opportunities) to those provided for under each
other compensation or employee benefit plan, program and practice in which the
Executive was participating on September 1, 1998; provided, however, that if the
aggregate compensation and benefits provided for under each other compensation
or employee benefit plan, program and practice in which the Executive
participates at any time after September 1, 1998 are increased after September
1, 1998, then the failure to provide the Executive with such aggregate greater
compensation and benefits shall constitute Good Reason;
(5) the failure of the Company to obtain from
its Successors or Assigns the express assumption and agreement required under
Section 12 hereof; or
(6) any purported termination of the Executive's
employment by the Company which is not effected pursuant to a Notice of
Termination satisfying the terms set forth in the definition of Notice of
Termination (and, if applicable, the terms set forth in the definition of
Cause).
17.10. Notice of Termination. For purposes of this
Agreement, "Notice of Termination" shall mean a written notice of termination of
the Executive's employment, signed by the Executive if to the Company or by a
duly authorized officer of the Company if to the Executive, which indicates the
specific termination provision in this Agreement, if any, relied upon and which
sets forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated.
17.11. Pro Rata Bonus. For purposes of this
Agreement, "Pro Rata Bonus" shall mean an amount equal to the Bonus Amount
multiplied by a fraction the numerator of which is the number of days in such
fiscal year through the Termination Date and the denominator of which is 365.
17.12. Successors and Assigns. For purposes of this
Agreement, "Successors and Assigns" shall mean, with respect to the Company, a
corporation or other entity acquiring all or substantially all the assets and
business of the Company, as the case may be (including this Agreement), whether
by operation of law or otherwise.
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17.13. Termination Date. For purposes of this
Agreement, "Termination Date" shall mean (a) in the case of the Executive's
death, his or her date of death, (b) if the Executive's employment is terminated
for Disability, thirty (30) days after Notice of Termination is given (provided
that the Executive shall not have returned to the performance of his or her
duties on a full-time basis during such thirty (30) day period) and (c) if the
Executive's employment is terminated for any other reason, the date specified in
the Notice of Termination (which, in the case of a termination for Cause shall
not be less than thirty (30) days, and in the case of a termination for Good
Reason shall not be more than sixty (60) days, from the date such Notice of
Termination is given); provided, however, that if within thirty (30) days after
any Notice of Termination is given the party receiving such Notice of
Termination in good faith notifies the other party that a dispute exists
concerning the basis for the termination, the Termination Date shall be the date
on which the dispute is finally determined, either by mutual written agreement
of the parties, or by the final judgment, order or decree of a court of
competent jurisdiction (the time for appeal therefrom having expired and no
appeal having been taken). Notwithstanding the pendency of any such dispute, the
Company shall continue to pay the Executive his or her Base Amount and continue
the Executive as a participant in all compensation, incentive, bonus, pension,
profit sharing, medical, hospitalization, dental, life insurance and disability
benefit plans in which he or she was participating when the notice giving rise
to the dispute was given, until the dispute is finally resolved in accordance
with this Section whether or not the dispute is resolved in favor of the
Company, and the Executive shall not be obligated to repay to the Company any
amounts paid or benefits provided pursuant to this sentence.
-----SIGNATURE PAGE FOLLOWS-----
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IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed by its duly authorized officers and the Executive has executed this
Agreement as of the day and year first above written.
Gadzooks, Inc.
By: /s/ XXXXX X. XXXXXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
By: /s/ XXXXXX X. XXXXXXXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
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