EXHIBIT 10.23
RETIREMENT AND CONSULTING AGREEMENT
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This Retirement and Consulting Agreement dated as of January 31, 2004
(this "Agreement") is entered into by and between Xxxxxx'x Trading Company,
Inc., an Indiana corporation (the "Company"), and Xxxxxxx X. Xxxxxx, an
individual residing at ____________________________ ("Executive").
WHEREAS, Executive has served as Senior Vice President - Culture of the
Company;
WHEREAS, effective January 31, 2004, Executive is resigning from all
positions with the Company by mutual agreement;
WHEREAS, Executive and the Company each desire to set forth in this
Agreement the terms and conditions of Executive's resignation and resolve any
and all claims or potential claims between them arising out of or in any way
related to Executive's employment with the Company;
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and valuable consideration, receipt of which is hereby
acknowledged, the parties agree as follows:
1. Retirement. The Company and Executive agree and acknowledge that
Executive shall retire, and his employment with the Company will end in all
respects, at the close of business on January 31, 2004 (the "Retirement Date").
2. Consulting. The Company and Executive agree to a consulting arrangement
pursuant to the following terms:
(a) Services. Executive will perform employee and executive search
services ("Services") for the Company. The Company will provide information
and criteria to Executive regarding desired searches, and Executive will
use his best efforts to identify, interview (telephonically unless
otherwise approved by the Company), screen and present to the Company
interested, qualified candidates ("Candidates"). The parties expect that
Executive will conduct approximately 5 to 7 searches over the next 12
months. The Company will promptly review and consider submitted information
regarding Candidates, provided that the Company shall have no obligation to
hire any such Candidate, and shall make such determination in the Company's
sole and absolute discretion.
Services shall be provided by Executive for the Company only and for no
other person, company or business without the Company's express written
approval. In addition, Executive shall provide no other services of any
kind to any company in the retail or wholesale sporting goods business,
including without limitation, sporting goods apparel or equipment.
(b) Term. One year, which shall extend for another one-year term if
both parties request such extension in writing at least 90 days in advance
of the expiration of the term.
(c) Fees. The Company will pay Executive a monthly retainer of
$10,000 for each month that Executive performs Services during the term of
this Agreement. Executive shall be entitled to earn a success fee ("Success
Fee") for each Candidate procured through Executive and who is hired by the
Company ("Hired Candidate") equal to 25% of such Hired Candidate's annual
compensation (including salary and actually paid bonus) payable during such
Hired Candidate's first full year of employment. Any Success Fee earned
during the annual term of this Agreement shall be credited against the
monthly retainer, and any excess Success Fees earned over the $120,000
retainer paid during each annual term (assuming $10,000 per month times 12
months of providing Services) shall be paid by the Company to Executive
within 60 days following the expiration date of such annual term.
The Company also agrees to pay reasonable, direct expenses of Executive
incurred in conducting searches, such as long distance telephone charges,
postage, and copying; provided that the Company shall not pay Executive for
any of Executive's overhead expenses and the Company shall not pay travel
expenses unless specifically approved by the Company in advance. Such
expenses shall be itemized and billed to the Company with back up, and
shall be payable within 30 days of receipt.
Any other, non-search related work requested by the Company and
performed by Executive, if any, will be billed separately by Executive to
the Company on an hourly basis, at an hourly rate to be agreed upon at the
time the parties agree to such an engagement.
(d) Miscellaneous. Executive shall be treated as a third party
consultant and not as an employee; provided, however, that all vested
options granted to Executive under the Company's 1999 Stock Option Plan, as
amended, shall be exercisable through the second anniversary of this
Agreement.
Executive shall be entitled to receive a regular employee discount
pursuant to whatever employee discount program the Company is then
providing to its employees, for the initial one-year term of this
Agreement, and, if approved by the Company's Chief Executive Officer
("CEO)", for an extended period approved by the CEO not to exceed the term
of this Agreement.
3. Release.
(a) In consideration of the obligations contained in this Agreement,
Executive acknowledges and agrees that upon and following the Retirement
Date, he shall be entitled to no further payments, rights, or benefits
pursuant to any other agreement with the Company or any affiliate of the
Company existing as of the date hereof, other than the payments, rights, or
benefits set forth herein. In this regard, Executive hereby (i) waives his
right to receive any further compensation and benefits from the Company or
any affiliate of the Company pursuant to any other agreement with the
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Company or any affiliate of the Company existing as of the date hereof
(other than pursuant to this Agreement), and (ii) agrees that all other
obligations of the Company are hereby discharged; provided, however, that
nothing in this Agreement shall affect (x) any vested interest Executive
may have in Xxxxxx'x Trading Company, Inc.'s 401(k) Plan, or (y) any COBRA
rights Executive may have.
(b) Except for those obligations created by or arising out of this
Agreement, Executive, on behalf of himself, his descendants, dependents,
heirs, executors, administrators, assigns, and successors, and each of
them, acknowledges full and complete satisfaction of and releases and
discharges and covenants not to xxx the Company, its subsidiaries, parent,
and affiliated companies, past and present, and each of them, as well as
its and their trustees, directors, officers, agents, attorneys, insurers,
and employees, past and present, and each of them, (together and each of
them collectively referred to as "Releasees") from and with respect to any
and all claims, wages, agreements, obligations, demands, and causes of
action, known or unknown, suspected or unsuspected, arising out of or in
any way connected with Executive's employment relationship with the Company
or any other transactions, occurrences, acts, or omissions or any loss,
damage, or injury whatever, known or unknown, suspected or unsuspected,
resulting from any act or omission by or on the part of said Releasees, or
any of them, committed or omitted prior to the date of this Agreement
(collectively "Claims"). Without limiting the generality of the foregoing,
Executive acknowledges and agrees that the claims being released include,
but are not limited to, any claim under Title VII of the Civil Rights Act
of 1964, the Age Discrimination in Employment Act, the Americans with
Disabilities Act, the Family and Medical Leave Act of 1993, the Indiana
Civil Rights Law, or common law theory, or any Claim for severance pay,
bonus, stock options, sick leave, holiday pay, vacation pay, life
insurance, health or medical insurance, or any other fringe benefit.
4. Non-Competition. Executive acknowledges that by virtue of his position
with the Company he has been given access to confidential and highly sensitive
non-public information of substantial importance to the Company, including but
not limited to financial information, identities of distributors, contractors,
and vendors utilized in the Company's business, non-public forms, contracts, and
other documents used in the Company's business, trade secrets used, developed,
or acquired by the Company, information concerning the manner and details of the
Company's operation, organization and management, the Company's business plans
and strategies, price information, customer lists, and research and development
data, and that the services he has provided to the Company are unique. For a
period of two (2) years commencing on the Retirement Date (the "Non-Competition
Term"), Executive agrees that he will not directly or indirectly engage in, as
an employee, consultant, or otherwise, any business in the United States
primarily engaged in the retail sporting goods or retail sports apparel
business, nor will he accept employment, consult for, or participate, directly
or indirectly, in the ownership or management of any enterprise in the United
States engaged in such a business. Notwithstanding the foregoing, Executive may
invest as the holder of not more than four percent (4%) of the outstanding
shares of any corporation whose stock is listed on any national or regional
securities exchange or reported by the National Association of Securities
Dealers Automated Quotation System or any successor thereto.
5. Non-Solicitation. For a period of two (2) years, commencing on the
Retirement Date (the "Non-Solicitation Term"), Executive and/or any entity with
which he is at the time affiliated (and which is not affiliated with the
Company), shall not, directly or indirectly, hire or offer to hire or entice
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away or in any other manner persuade or attempt to persuade any officer,
employee, agent, or customer of the Company or any of its affiliates, or any
person who supplies goods or services or licenses intangible or tangible
property to the Company or any of its affiliates to discontinue his, her, or its
relationship with such entity. Executive represents and warrants that he has
not, prior to the date hereof, acted or failed to act in a way that would
constitute a breach of the terms of this covenant not to solicit.
6. Confidential or Proprietary Information or Material. Executive
recognizes and acknowledges that, through his association with the Company, he
has had access to confidential or proprietary information or material relating
in the reasonable opinion of the Company to the Company's operations or
businesses, including the Company's subsidiaries, which he may have obtained
from the Company, its subsidiaries, or their officers, directors, or employees,
or otherwise by virtue of his employment by the Company. Confidential or
proprietary information or material includes, without limitation, the following
types of information or material, both existing and contemplated, regarding the
Company, its direct or indirect parents, subsidiaries, affiliates, or related
companies: proprietary data processing systems and software; corporate
information, including contractual arrangements, plans, strategies, tactics,
policies, resolutions, patent, copyright, trademark, and tradename applications,
and any litigation or negotiations; marketing information, including sales or
product plans, strategies, methods, customers, prospects, or market research
data; financial information, including cost and performance data, debt
arrangements, equity structure, investors, and holdings; operations and
scientific information, including trade secrets and technical information; and
personnel information, including personnel lists, resumes, personnel data,
organizational structure, and performance evaluations; provided, however, that
confidential or proprietary information or material does not include any
information or material that is generally available to the public. Executive
recognizes that this confidential or proprietary information or material
constitutes a valuable and unique asset of the Company, developed and perfected
over considerable time and at substantial expense to the Company. Executive
shall not disclose, without the written consent of the Company or as required by
law, to any person, firm, partnership, association, or corporation such
confidential or proprietary information or material, and Executive agrees to
hold such confidential or proprietary information or material in trust for the
sole benefit of the Company. Executive shall not, for the direct or indirect
benefit of himself or another: (1) take with him, without the written consent of
the Company, any lists of Company customers or potential customers, pricing
lists, employee lists, or other documents, computer software,
electronically-stored data, recordings, master videotapes of any of the
foregoing, or any other confidential or proprietary information or material; or
(2) reconstruct the same or similar information from memory or from some other
source associated with the Company.
7. Non-Disparagement/No Publicity. Executive agrees not to make any
disparaging remarks, or any remarks that could reasonably be construed as
disparaging, regarding the Company or its officers, directors, employees,
partners, owners, affiliates, or agents. Executive further agrees that he will
not take any action or provide information or issue statements, to the media or
otherwise, or cause anyone else to take any action or provide information or
issue statements, to the media or otherwise, regarding the Company or its
officers, directors, employees, partners, owners, affiliates, or agents.
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8. Confidentiality. Executive agrees to keep the terms of this Agreement
confidential and agrees that he will not disclose any information concerning it
to anyone, except that he may disclose the terms of this Agreement to his
attorneys, accountants, advisors, and immediate family members, provided that he
advises such persons of the confidential nature of this Agreement and they agree
not to disclose such information further, and except as may otherwise be
necessary to enforce its terms or as required by law.
9. Representation and Warranties. Executive hereby represents and
warrants that (i) he is free to enter into this Agreement and that he is not
subject to any obligations or disabilities which will or might prevent him or
interfere with his keeping and performing all of the agreements, covenants, and
conditions to be kept or performed hereunder, and (ii) he has not heretofore
assigned or transferred to any person not a party to this Agreement any released
matter or any part or portion thereof and he shall defend, indemnify, and hold
harmless the Company from and against any claim (including the payment of
attorneys' fees and costs actually incurred whether or not litigation is
commenced) based on or in connection with or arising out of any such assignment
or transfer made, purported, or claimed.
10. Amendments; Waivers. This Agreement may be amended only by
agreement in writing of each of the parties hereto. No waiver of any provision
or consent to any exception to the terms of this Agreement shall be effective
unless in writing and signed by the party to be bound and then only to the
specific purpose, extent, and instance so provided.
11. Severability. If any provision of this Agreement or the application
thereof is held invalid, the invalidity shall not affect other provisions or
applications of the Agreement which can be given effect without the invalid
provisions or application and, to this end, the provisions of this Agreement are
declared to be severable.
12. Entire Agreement. This instrument constitutes and contains the
entire agreement and final understanding concerning Executive's employment,
separation from the same, and the other subject matters addressed herein between
the parties. It is intended by the parties as a complete and exclusive statement
of the terms of their agreement. It supersedes and replaces all prior
negotiations and all agreements, proposed or otherwise, whether written or oral,
concerning the subject matters hereof. Any representation, promise, or agreement
not specifically included in this Agreement shall not be binding upon or
enforceable against either party. This is a fully integrated agreement.
13. Further Action. The parties shall execute and deliver all
documents, provide all information and take or forbear from taking all action as
may be necessary or appropriate to achieve the purposes of this Agreement.
Nothing herein shall prohibit Executive from seeking a judicial determination of
the validity of the waivers set forth herein.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Indiana applicable to contracts made
and performed in the State of Indiana and without regard to conflicts of laws
doctrines.
15. Succession. This Agreement shall be binding upon and enforceable
by, and shall inure to the benefit of, the Company and its respective successors
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and assigns. The obligations and duties of Executive hereunder are personal and
not assignable, and any attempt of assignment or transfer of Executive's duties
or obligations shall be void.
16. Headings. The headings of the several paragraphs herein are inserted
for convenience of reference only and are not intended to be a part of or to
affect the meaning of this Agreement.
17. Counterparts. This Agreement may be executed in one or more
counterparts, and by different parties in separate counterparts. All of such
counterparts shall constitute one and the same instrument. A signature by
facsimile shall have the same force and effect as an original.
IN WITNESS WHEREOF, the undersigned have read and understand the
consequences of this Agreement and voluntarily signed it.
EXECUTED as of this 31st day of January, 2004, at Plainfield, Indiana.
/s/ XXXXXXX X. XXXXXX
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XXXXXXX X. XXXXXX
XXXXXX'X TRADING COMPANY, INC.
By: /s/ XXXXXX X. XXXX
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Xxxxxx X. Xxxx, Chief Executive Officer
