EXHIBIT 10.7
This Form of Severance Agreement represents the form of severance agreement
entered into between the Registrant, Gart Sports Company, and its executive
officers. This Form of Severance Agreement indicates in bracketed language the
differences in the various agreements among the officers.
FORM OF SEVERANCE AGREEMENT
October 21, 1998
[Name of Employee]
Gart Sports Company
0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Dear [Name of Employee]:
On behalf of Gart Sports Company, a Delaware corporation ("Gart"), the
following shall serve as a Severance Agreement (the "Agreement") between you and
Gart, its subsidiaries, its successor, or a new parent company of Gart
(collectively, the "Company").
1. Termination of Employment: Your employment with the Company is on an
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at-will employment basis. As such, either you or the Company may terminate your
employment at any time and for any reason. Subject to the terms and conditions
of this Agreement, following either a Change in Control (as defined below) or
your acceptance of the offer to you pursuant to clause (A)(1) or (B)(1) of the
definition of Change in Control, if your employment is terminated by the Company
for any reason (other than a reason set forth in Section 2(c) below) or by you
for Good Reason (as defined herein), you may be entitled to receive a Severance
Payment (as defined below) as outlined below. The Company also reserves the
right, subject to the terms hereof, to modify or change any term or condition of
your employment including compensation, benefits or Duties (as defined below).
2. Severance Payment:
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(a) If the Company elects to terminate your employment for any reason,
other than a reason stated in Section 2(c) below, within one year following
either (w) a Change in Control or (x) your acceptance of the offer to you
pursuant to clause (A)(1) or (B)(1) of the definition of Change in Control, or
if you elect to terminate your employment with the Company for Good Reason (as
defined below) within one year following either (y) a Change in Control or (z)
your acceptance of the offer to
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you pursuant to clause (A)(1) or (B)(1) of the definition of Change in Control,
the Company shall pay to you as a severance payment the following:
(i) Your then current base salary (less deductions required by
law) from the date of your termination until the date which is
[three years for the President; two years for Executive Vice
Presidents; one and one-half years for Senior Vice Presidents and
one year for Vice Presidents] following the date of termination (the
"Severance Period"); plus
(ii) During the Severance Period, until such time as you are
eligible for substantially similar coverage under another employer's
insurance policies, continued participation in the Company's Health,
Dental and Vision Program as well as Life, Disability and Accidental
Death and Dismemberment (collectively, "Insurance Benefits")
provided to you by the Company at the date of your termination; plus
(iii) A dollar amount equal to any bonus earned and owing, or that
would have been earned and owing had you remained in the employ of
the Company as its Vice President, assuming 100% of the performance
target is achieved, pursuant to the terms of the Company's Bonus
Plan (the "Bonus Amount"), for the fiscal year in which your
employment was terminated commencing with the first day of such
fiscal year through the last day of such fiscal year (the
"Termination Year") times [three for the President; two for
Executive Vice Presidents; one and one-half for Senior Vice
Presidents and one for Vice Presidents]; plus
(iv) Clear title, free of any liens, to the car provided to you by
the Company at the date of termination of your employment;
(the cash amounts and property referred to in clauses (i) through (iv)
above are herein collectively referred to as the "Severance Payment").
With respect to the portion of the Severance Payment made pursuant to
clause 2(a)(i) above, such payment shall be paid in one lump sum (by wire
transfer or cashier's check) on the date that the Release Agreement referred to
in Section 2(b) below becomes effective.
With respect to the continuation of Insurance Benefits as provided in
clause 2(a)(ii) above, such Insurance Benefits shall be provided to you as part
of the Company's benefits plans if the plans so permit, and if such plans do not
permit, the Health, Dental and Vision coverage shall be provided as required by
the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") and you
agree to make the elections necessary to continue such Insurance Benefits. You
agree to pay a portion of the premium for such Health, Dental and Vision
Insurance Benefits to the same extent (assuming the same coverage) required of
the then current senior executive of the Company having the same status as you
had on the date of your termination.
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With respect to the portion of the Severance Payment due to you under a
Bonus Plan pursuant to clause 2(a)(iii) above, the Bonus Amount shall be
calculated within 60 days after the end of the Termination Year and the full
amount owed to you shall be paid to you by wire transfer or cashier's check,
less required deductions, in one lump sum within ten days after the date of
calculation or, if later, the date on which the Release Agreement referred to
below becomes effective. The Bonus Amount payable to you shall be made without
regard to the actual financial results of the Company.
(b) Notwithstanding anything to the contrary herein, the Company shall not
be obligated to make any Severance Payment (or portion thereof) hereunder unless
you execute and deliver to the Company a Release Agreement, substantially in the
form attached hereto as Exhibit A, in which you agree to release the Company
from any and all claims relating to or arising from your employment or
termination, and such Release Agreement has become effective. It is expressly
understood that such release will not extend to matters arising after the date
of your termination.
(c) Notwithstanding anything to the contrary herein, in no event will you
be entitled to any Severance Payment if your employment is terminated because:
(i) You commit any act of fraud, intentional misrepresentation or
serious misconduct in connection with the business of the Company,
including but not limited to, falsifying any documents or agreements
(regardless of form); or
(ii) You willfully and materially violate any written rule or
policy of any of the Company (A) for which violation an employee may
be terminated pursuant to the written policies of the Company
reasonably applicable to an executive employee, (B) which violation
results in material damage to the Company, and (C) which you fail to
correct within 60 days after written notice to you by the President
or the Board of Directors; or
(iii) You willfully breach or habitually neglect any material aspect
of your duties (A) in the ordinary course of your employment, or (B)
assigned to you by the Company, which assignment is reasonable in
the light of your position with the Company, and you fail to correct
the same within 60 days after written notice to you by the President
or the Board of Directors of the Company (all of the foregoing
duties, "Duties"); or
(iv) You willfully and materially fail to comply with a direction
from the President or the Board of Directors of the Company with
respect to a material matter, which direction is reasonable in the
light of your position with the Company and you fail to correct the
same within 60 days after written notice to you by the President or
the Board of Directors; or
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(vi) You are convicted by a court of competent jurisdiction of a
felony involving moral turpitude or which materially damages the
Company.
(d) For purposes of this Agreement certain capitalized terms have the
meaning as set forth below:
(i) The term "Bonus Plan" means the bonus plan in effect at the
Company prior to the date of your termination; provided, however, that any
amendment or modification or termination of such Bonus Plan within 12 months
prior to your date of termination shall be disregarded for purposes of
calculating the Bonus Amount if such amendment or modification of the bonus plan
or a replacement plan, in the event of a termination of the bonus plan, would
have an adverse effect on the calculation of the Bonus Amount; and, provided
further, however, that any amendment, modification or termination of the Bonus
Plan subsequent to the date of your termination shall have no effect on the
calculation of the Bonus Amount or the Company's obligation to pay the Bonus
Amount hereunder.
(ii) A "Change in Control" means the occurrence of any of the
following:
(A) The consummation of any reorganization, consolidation or merger
to which Gart is a party (a "Transaction"), whether or not Gart
is the person surviving or resulting therefrom (the "Surviving
Person"), unless, immediately following such Transaction (after
giving effect to all transactions contemplated by such
Transaction as reflected in transaction related documents,
including any pro forma financial statements, financial
projections or budgets), all of the following conditions are
satisfied: (1) an offer of employment is made to you to be [an
officer equivalent to your current position] of the Surviving
Person or, if the Surviving Person is a subsidiary of one or
more other persons, the ultimate parent of the Surviving
Person, provided that at the time such offer is made to you,
and during the period that such offer remains open, no Good
Reason event has occurred or is contemplated to occur, and (2)
Green Equity Investors, L.P. together with any affiliate
investment fund managed solely by Xxxxxxx Xxxxx & Partners L.P.
("LGP") or one or more affiliates of LGP (such investment funds
are herein referred to collectively as "GEI") continues to be
the Beneficial Owner at least 20% of the Voting Power of the
Surviving Person or, if the Surviving Person is a direct or
indirect subsidiary of one or more other persons, the ultimate
parent of the Surviving Person, on a fully diluted basis and
(3) no other person is the Beneficial Owner of a percentage of
the Voting Power of the Surviving Person or its ultimate parent
that is greater than the percentage of such Voting Power
Beneficially Owned by GEI; or
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(B) The consummation of any sale or other transfer of all or
substantially all of the assets of Gart and its subsidiaries,
on a consolidated basis, in one transaction or series of
related transactions; to a third party (the "Buyer"), unless,
immediately following such sale or transfer (after giving
effect to all transactions contemplated by such sale or
transfer as reflected in transaction related documents,
including any pro forma financial statements, financial
projections or budgets), all of the following conditions are
satisfied: (1) an offer of employment is made to you to be a
Vice President of the Asset Protection Department of the Buyer
or, if the Buyer is a subsidiary of one or more other persons,
the ultimate parent of the Buyer, provided that at the time
such offer is made to you, and during the period that such
offer remains open, no Good Reason event has occurred or is
contemplated to occur, and (2) GEI is the Beneficial Owner of
at least 20% of the Voting Power of the Buyer or, if the Buyer
is a direct or indirect subsidiary of one or more other
persons, the ultimate parent of the Buyer, on a fully diluted
basis and (3) no other person is the Beneficial Owner of a
percentage of the Voting Power of the Buyer or its ultimate
parent that is greater than the percentage Beneficially Owned
by GEI; or
(C) The stockholders of Gart have approved a plan or proposal for
the liquidation or dissolution of Gart, other than a
liquidation or dissolution into its parent corporation, if any,
or under the Bankruptcy Code of the United States; or
(D) The consummation of a sale or a series of related sales,
directly or indirectly, to any person of 50% or more of the
Voting Power of Gart or, if any, the ultimate parent of Gart;
or
(E) Any other event deemed to be a Change in Control by the Board
of Directors of Gart or the ultimate parent of Gart.
Without limiting the generality of the foregoing, and by way of
clarification only, the following transactions shall not be deemed to constitute
a Change in Control until the happening of an event described in clauses (A)
through (E) above: (x) the distribution by GEI to its partners or equity
participants, in accordance with the terms of its limited partnership agreement,
as amended from time to time, of all or any part of the shares of capital stock
of Gart owned by GEI, or (y) one or more sales by GEI of all or any part of the
capital stock of Gart, provided that such sale or sales does not constitute an
event under clause (D) above. For purposes of determining whether an event
constituting a Change in Control has occurred, any computation of the percentage
ownership by GEI of the Voting Power of Gart, the Surviving Person, the Buyer or
the ultimate parent of any such person, shall include and give effect to all
sales, purchases and distributions (other than distributions to investors in
GEI) of the capital stock of such persons in connection
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with any event described above in clauses (A) through (E) of the definition of
"Change in Control."
(iv) For purposes of determining whether a Change in Control has
occurred, the following terms are defined as set forth below:
(A) "Beneficial Owner" shall have the meaning set forth in Section
13(b) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act");
(B) "Voting Power" means the capital stock representing the power to
vote generally in the election of directors (or managers or other
persons analogous to directors) of a corporation or other entity,
either directly through the ownership of the then outstanding
voting securities of such corporation or other entity, or, if
such corporation or other entity is a subsidiary, indirectly
through ownership of the then outstanding voting securities of
the ultimate parent of such corporation or other entity.
(v) The term "person" means any individual, entity, or group within
the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act.
(e) Upon termination of your employment by the Company for any of the
reasons described in clause 2(c) above, or termination of your employment by
you, except for Good Reason (as defined in clause 2(f) below) following either
(x) a Change in Control or (y) your acceptance of the offer to you pursuant to
clause (A)(1) or (B)(1) of the definition of Change in Control, no Severance
Payment will be required to be made to you, nor will you be entitled to any
other benefits, under this Agreement. This provision shall not be construed as
limiting any other rights that the Company may have against you.
(f) For purposes of this Agreement, "Good Reason" shall mean any of the
following events:
(i) A reduction by the Company in your annual base salary as in
effect on the date hereof or as the same may be increased from
time to time, except for across-the-board salary reductions
affecting all executives of the Company; or
(ii) In connection with, or following, a Change in Control or after
your acceptance of the offer to you pursuant to clause (A)(1) or
(B)(1) of the definition of Change in Control, an amendment,
modification, termination or replacement of the Bonus Plan of the
Company that would have an adverse effect, directly or
indirectly, on the calculation of your potential annual bonus,
including, but not limited to, any change in the method or basis
for determining
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the appropriate performance targets that is inconsistent with
historical practices; or
(iii) The relocation of the Company's principal executive offices to a
location outside a 30 mile radius of the location of the
Company's current executive offices as of the date of this
Agreement in Denver, Colorado and such relocation would require
that you work at the new location of the Company's principal
executive offices; or
(iv) A material reduction of your fundamental Duties, powers, rights,
and responsibilities as in effect on the date hereof or as the
same may be increased from time to time.
If there is a dispute between you and the Company as to whether
the termination was for Good Reason or was for any of the reasons enumerated
above in clause 2(c): (x) such termination shall nonetheless be effective, (y)
such dispute, if unresolved, shall be subject to the arbitration procedure set
forth herein, and (z) the Severance Payment, if any, to be made to you by the
Company in connection with such termination may, at the option of the Company,
be delayed, in whole or in part, until, if applicable, the final resolution of
such dispute in such arbitration proceeding; provided, however, that if any
arbitration proceeding results solely in your favor, the Company will pay you
the Severance Payment owing to you hereunder, to the extent then unpaid,
together with simple interest on such unpaid amount at the prime rate then in
effect at the commencement of the arbitration proceeding to be calculated from
the time that such Severance Payment should have been paid by the Company up to
and including the date payment is made to you.
(g) (i) Notwithstanding anything contained in this 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 you or for your benefit paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise in connection
with, or arising out of, your employment with the Company or any of its
subsidiaries or a Change in 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 so that no portion thereof
shall be subject to the excise tax imposed by Section 4999 of the Code (the
"Section 4999 Limit"). Unless you 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 or benefits which are
not payable in cash and then by reducing or eliminating cash Payments, in each
case in reverse order beginning with payments or benefits which are to be paid
the farthest in time from the Determination (as hereinafter defined). Any
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notice given by you pursuant to the preceding sentence shall take precedence
over the provisions of any other plan, arrangement or agreement governing your
rights and entitlements to any benefits or compensation.
(ii) All determinations required to be made under this clause 2(g)
(each, a "Determination") shall be made, at the Company's expense, by a
nationally recognized accounting firm designated by the Company and reasonably
acceptable to you (the "Accounting Firm"). The Accounting Firm shall provide its
calculations, together with detailed supporting documentation, both to the
Company and to you before payment of your Severance Payment hereunder (if
requested at that time by the Company or you) or such other time as requested by
the Company or you (in either case provided that the Company or you believe in
good faith that any of the Payments may be subject to the Excise Tax); provided,
however, that if the Accounting Firm determines that no Excise Tax is payable by
you with respect to a Payment or Payments, it shall furnish you with an opinion
reasonably acceptable to you that no Excise Tax will be imposed with respect to
any such Payment or Payments. Within ten calendar days of the delivery of the
Determination to you, you shall have the right to dispute the Determination (the
"Dispute"). The existence of any Dispute shall not in any way affect your 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 you, subject to the application of clause
2(g)(iii) below.
(iii) 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 clause 2(g)(i) (an "Excess
Payment" or "Underpayment", respectively). If it is established pursuant to (A)
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 (B) 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 you made on the date you received the
Excess Payment and you shall repay the Excess Payment to the Company on demand,
together with interest on the Excess Payment at 120% of the applicable federal
rate (as defined in Section 1274(d) of the Code) compounded semi-annually from
the date of your receipt of such Excess Payment until the date of such
repayment. If it is determined (x) by the Accounting Firm, the Company (which
shall include the position taken by the Company, together with its consolidated
group, on its federal income tax return) or the IRS, (y) pursuant to a
determination by a court, or (z) upon the resolution to your satisfaction of the
Dispute, that an Underpayment has occurred, the Company shall pay an amount
equal to the Underpayment to you within ten calendar days of such determination
or resolution, together with interest on such amount at 120% of the applicable
federal rate compounded semi-annually from the date such amount should have been
paid to you pursuant to the terms of this Agreement or otherwise, but for the
operation of this clause 2(g)(iii), until the date of payment.
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3. Nondisclosure of Confidential Material
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(a) In the performance of your Duties, you have previously had, and may
in the future have, access to confidential records and 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 you in confidence. By your acceptance
of this Agreement, you shall be deemed to have acknowledged that the
Confidential Material constitutes proprietary information of the Company which
draws independent economic value, actual or potential, from not being generally
known to the public or to other persons who could obtain economic value from its
disclosure or use, and that the Company has taken efforts reasonable under the
circumstances, of which this Section 3 is an example, to maintain its secrecy.
Except in the performance of your Duties to the Company, you 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 by the Company. 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 you have 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
your termination of employment with the Company, or whenever requested by the
Company, you 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 your possession or
under your control.
(b) By your acceptance of your Severance Payment under this Agreement,
you agree that, for a period of one year following your termination of
employment with the Company, neither you nor any person or entity in which you
have an interest shall solicit any person who was employed on the date of your
termination of employment by the Company to leave the employ of the Company.
Nothing in this Section 3, however, shall prohibit you or any person or entity
in which you have an interest from placing advertisements in periodicals of
general circulation soliciting applications for employment, or from employing
any person who answers any such advertisement or who contacts you or any person
or entity in which you have an interest on his or her own initiative without any
direct or indirect solicitation by or encouragement from you or such person or
entity. For purposes of this Section 3, you shall not be deemed to have an
interest in any corporation whose stock is publicly traded merely because you
are the owner of not more 5% of
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the outstanding shares of any class of voting stock in the general election of
directors of such corporation, provided you have no active participation in the
business of such corporation (other than voting your stock) and you do not
provide substantial services to such corporation in any capacity (whether as an
employee, an independent contractor or consultant, a board member, or
otherwise).
(c) By your acceptance of your Severance Payment under this Agreement,
you shall be deemed to have acknowledged that violation of clauses 3(a) or 3(b)
would cause the Company irreparable damage for which the Company cannot be
reasonably compensated in damages in an action at law, and that therefore in the
event of any breach by you of clauses 3(a) or 3(b) the Company shall be entitled
to make 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 Agreement or otherwise, and,
except as limited in Section 7, all of the Company's rights and remedies shall
be unrestricted.
4. Further Documentation: In furtherance of your duty of loyalty and
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cooperation, you agree to execute any and all other further documents and to
perform such other reasonable actions which may become necessary or advisable in
order to effectuate or carry out the provisions of this Agreement.
5. Survival and Termination: If no event constituting a Change in Control
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has occurred prior to the fifth anniversary of the date of this Agreement, this
Agreement shall terminate unless extended by the parties.
6. GOVERNING LAW: THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED UNDER
THE LAWS OF THE STATE OF COLORADO, WITHOUT REGARD TO THE CHOICE OF LAWS
PROVISIONS OF THAT STATE OR ANY OTHER JURISDICTION, AND, TO THE EXTENT
APPLICABLE, FEDERAL LAW. NOTWITHSTANDING THE FOREGOING, THE ARBITRATION
PROVISIONS SET FORTH HEREIN SHALL BE GOVERNED BY AND CONSTRUED PURSUANT TO THE
FEDERAL ARBITRATION ACT, 9 U.S.C. (S) 1, ET SEQ. TO THE EXTENT APPLICABLE AND
OTHERWISE BY COLORADO LAW.
7. Arbitration
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If you and the Company do not resolve any dispute or disagreement that
may arise under this Agreement within 30 days (commencing with the date written
notice is first given to either party that such a dispute or disagreement
exists), then the dispute or disagreement arising out of this Agreement, except
injunctive relief, shall be resolved by arbitration under the then most
applicable rules of the American Arbitration Association (the "AAA") and an
arbitrator agreed to by both parties. In the event the parties are unable to
agree mutually upon an arbitrator,
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the arbitration shall take place before a single arbitrator selected from a list
provided by the Judicial Arbiter Group, Denver, Colorado (JAG) or if JAG is not
in existence, from a list provided by AAA. From the list of such potential
arbitrators, each party shall strike in turn until only one arbitrator remains
who shall be the arbitrator selected by the parties. The arbitrator may not
order any action or inaction on the part of any party that a court would not
have the authority to order. The first party to strike shall be determined by
lot. The arbitrator's decisions shall be final and binding upon the parties and
judgment may be entered in any court.
Each party shall bear its own costs and expenses in connection with any
claim or arbitration proceeding under this Agreement; provided, however, that
the costs and fees of the arbitrator shall be shared by the parties equally.
Notwithstanding the foregoing sentence to the contrary, the non-prevailing party
in such arbitration shall be required to reimburse the prevailing party for all
attorney's fees, costs and expenses (including the costs and fees of the
arbitrator) incurred in connection with such disputed claim and such arbitration
proceeding.
8. Cooperation in Pending Work: In exchange for the mutual covenants in
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this Agreement you agree to fully cooperate in all matters relating to the
winding up or pending work on behalf of the Company and the orderly transfer of
work to other employees of the Company following any termination of your
employment, regardless of whether you are entitled to a Severance Payment under
the terms of this Agreement. You will also cooperate in the resolution of any
dispute, including litigation of any action, involving the Company that relates
in any way to your Duties while employed by the Company. The Company will
reimburse you for reasonable out-of-pocket expenses incurred by you in
connection with any such cooperation requested by the Company, provided that
such out-of-pocket expenses are approved in advance by the Company.
9. Severability: The invalidity or enforceability of any part of this
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Agreement, in general or as applied to a particular occurrence or circumstance,
shall not affect the validity and enforceability of any other part of this
Agreement.
10. Notices: Any notice to either party pursuant to this Agreement shall
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be made in writing and shall be sent by first-class mail, overnight delivery or
facsimile transmission (after receipt of confirmation of transmission) to (a)
the Company, at its principal executive offices located at 0000 Xxxxxxx Xxxxxx,
Xxxxxx XX 00000, to the attention of the Secretary of the Company, or (b) to you
at the address set forth on the signature page of the Agreement. Notices
hereunder shall be deemed validly delivered if sent to these addresses until
such time as the other party shall be notified in writing of such change.
Notices sent by first-class mail shall be deemed delivered three business days
after the post-xxxx date, notices sent by overnight delivery shall be deemed
delivered on the next business day and notices sent by facsimile transmission
shall be deemed delivered on the date on which confirmation of transmission is
received by the sender.
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11. Miscellaneous: This Agreement, together with the documents referenced
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herein, contain all of the agreements and understandings regarding your
termination of employment and the obligations of the Company in connection with
your termination of employment. Neither the Company nor any of its agents has
made, nor are you relying upon, any oral or written promises or statements
except as expressly set forth in this Agreement. This Agreement supersedes any
and all prior agreements, understandings and representations between you and the
Company, whether written or oral, and alone expresses the agreements,
understandings and representations of the parties with respect to your
termination of employment. This Agreement containing all of the agreements and
understandings regarding your termination of employment can only be amended in
writing by you and an officer of the Company authorized by the Compensation
Committee or the Company's Board of Directors. In the event of a conflict
between this Agreement and any Company policy or procedure, the provisions of
this Agreement will prevail. No failure or delay by either party to this
Agreement in exercising any right, power or privilege or in asserting any claim
or defense hereunder will operate as a waiver thereof, nor will any single or
partial exercise preclude any other or further exercise thereof or the exercise
of any right, power or privilege or assertion of any claim or defense hereunder.
12. Section Headings: The headings to the sections of this Agreement do
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not constitute part of this Agreement and function solely for the convenience of
the parties. Section headings appearing in this Agreement shall not be used to
explain, modify, simplify or aid in the interpretation of the provisions of this
Agreement.
13. Executive Acknowledgement: The parties acknowledge that (a) they have
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had the opportunity to consult with independent counsel of their own choice
concerning this Agreement, and (b) they have read and understand the Agreement,
are fully aware of its legal effect, and have entered into it freely based on
their own judgment and not on any representations or promises other than those
contained in this Agreement.
14. Counterparts: This Agreement may be signed in multiple counterparts,
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each of which shall be deemed to be an original but all of which together shall
be deemed to be one and the same instrument.
15. Persons Bound: This Agreement shall be binding on you, your
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beneficiaries, personal representatives and heirs and the Company and its
successors and assigns.
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To indicate your acceptance, please execute the duplicate copy of this
Agreement in the place indicated and return it to the undersigned. The parties
shall have duly executed this Agreement as of the date first written above. We
look forward to your acceptance.
ACCEPTED AND AGREED: GART SPORTS COMPANY
Executive:
By: ____________________________ By: _____________________________
Name: Name: J. Xxxxxxx Xxxxxx
Title: Title: Chairman, President
and Chief Executive
Officer
Address:
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