EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into as of this 1st day of
September, 2001, between RAWLINGS SPORTING GOODS COMPANY, INC., a Delaware
corporation (the "Company"), and XXX XXXXXXXX (the "Executive"). This Agreement
cancels and supersedes all previous agreements relating to the subject matter of
this Agreement or otherwise, whether written or oral, between the parties
hereto, including but not limited to that certain October 13, 1994 Indemnity
Agreement, and the October 26, 1995 Severance Agreement, and this Agreement
contains the entire understanding of the parties hereto and shall not be
amended, modified or supplemented in any manner whatsoever except as otherwise
provided herein or in writing signed by each of the parties hereto.
1. EMPLOYMENT. The Company agrees to employ the Executive and
the Executive agrees to be employed by the Company as its Senior Vice
President, Baseball Affairs, upon the terms and conditions of this
Agreement.
2. TERM. The term of Executive's employment hereunder shall be
ten (10) years, commencing on the date first written above, and ending
on the tenth anniversary of such date (the "Contract Term"), unless
this Agreement is earlier terminated in accordance with the terms of
Section 12 hereof.
3. EXECUTIVE'S COMPENSATION.
(a) Base Salary. For all services rendered by the Executive to
the Company, the Company shall pay the Executive an initial Base Salary
of $100,000 per year. Commencing on the fifth anniversary of this
Agreement, through the end of the Contract Term, the Executive's Base
Salary shall be reduced to $75,000 per year. Salary payments shall be
subject to withholding and other applicable taxes and shall be payable
in accordance with the Company's normal payroll practices.
(b) Bonus. Beginning with the fiscal year ending August 31,
2002, the Executive shall be eligible to receive an annual bonus of up
to 100% of the Executive's Base Salary (the "Bonus"), with a target of
60% of Base Salary, to be determined consistent with the criteria used
to determine the payment of bonuses to other executives having duties
and responsibilities generally comparable to Executive's, unless such
criteria are modified by mutual agreement of the Executive and the
Company's Chief Executive Officer. On or before December 31 of each
year, the Company shall pay to Executive the amount of any Bonus due
hereunder with respect to the previous fiscal year. All bonus payments
shall be subject to withholding and all other applicable taxes.
Except as otherwise expressly provided herein, if Executive
voluntarily terminates employment with the Company, or is terminated by
the Company for Cause (under Section 12), the Executive shall receive
no Bonus for the year in which he leaves the Company.
(c) Reimbursement of Expenses. The Company shall reimburse the
Executive for all ordinary and necessary expenses incurred and paid by
the Executive in the course of the performance of the Executive's
duties pursuant to this Agreement and consistent with the Company's
policies in effect from time to time with respect to travel,
entertainment and other business expenses, and subject to the Company's
requirements with respect to the manner of reporting such expenses.
4. BENEFITS.
(a) Life Insurance. Following a medical examination by an
independent physician and upon determination that no medical condition
exists which would make the cost of such policy commercially
unreasonable or that causes Executive not to qualify under the
Company's Supplemental group plan, the Company shall obtain on behalf
of Executive a term policy insuring the life of the Executive, which
shall have death benefits in the amount of $300,000 (the "Policy"). The
Company will pay all premium payments due under the Policy until the
earlier to occur of (i) the death of the Executive, (ii) the Disability
of the Executive (as hereinafter defined), and (iii) the date on which
the Executive's service with the Company is terminated whether under
Section 12 or following a Change in Control. The premiums for the
Policy will be treated as ordinary compensation to the Executive. In
the event of the death of the Executive during the term of this
Agreement, the face amount of the Policy shall be paid to the spouse of
the Executive or other beneficiary designated by the Executive.
(b) Additional Benefits. The Executive shall receive
additional benefits consistent with those provided to other executives
having responsibility commensurate to that of the Executive, and such
additional benefits as may be from time to time agreed upon in writing
between the Executive and the Company,
(c) Vacation. The Executive shall receive twelve (12) weeks of
vacation annually through the fifth anniversary of this Agreement.
Thereafter, until the end of the Contract Term, Executive shall receive
sixteen (16) weeks of vacation annually.
5. STOCK OPTIONS.
(a) The Company hereby grants to Executive as of the date of
this Agreement a nonqualified stock option (the "Option") to purchase
20,000 shares of the Company's common stock (the "Shares") at the
market price per share as of the close of business on the date on which
this Agreement is executed, which Option shall become exercisable so
long as Executive is an employee of the Company. The number of Shares
with respect to which the Option may be exercised shall be cumulative
so that if the full number of Shares shall not have been purchased, any
such unpurchased Shares shall continue to be included in the
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number of Shares with respect to which the Option shall then be
exercisable along with any other Shares as to which the Option may
become exercisable.
The Option shall be exercisable following the termination of
the Executive's employment with the Company for other than Cause as
defined in Section 12 hereof, for a period of ninety (90) days from the
date of such termination, to the extent the Option was exercisable as
of the date of such termination. The Option shall be exercisable
following the termination of the Executive's employment with the
Company for Cause as defined in Section 12 hereof, for a period of
forty-eight (48) hours from the date of such termination, to the extent
the Option was exercisable as of the date of such termination.
(b) The Company shall further grant to Executive on each
anniversary date of this Agreement a nonqualified stock option (the
"Option") to purchase an additional 5,000 shares of the Company's
common stock (the "Shares") at the market price per share as of the
close of business on the immediately preceding August 31 or as of the
end of the fiscal year if not August 31, which Option shall become
exercisable so long as Executive is an employee of the Company, and
Company remains a public company, in the manner described in Section
5(a) above.
(c) The options described in (a) and (b) above are not
transferable to any third party by the Executive except to a revocable
living trust established by the Executive of which the Executive is a
trustee and the primary beneficiary. The options may be exercised only
to purchase whole shares. No fractional shares will be issued upon
exercise of the options. The options shall be exercised and payment
made to the Company in accordance with procedures provided by the
Compensation Committee of the Company.
(d) All stock options granted to Executive prior to this
Agreement remain in effect consistent with their granted terms.
6. DUTIES. The Executive is employed primarily to represent
the Company in baseball matters concerning Major League Baseball ("MLB"), minor
league baseball, and the National Collegiate Athletic Association ("NCAA"), in
addition to other key leagues or associations, including in the negotiation of
agreements, MLB winter meeting and spring training, major events (ie. super
show, College World Series, MLB Allstar Game, World Series), and publicity and
corporate spokesperson roles (ie. presentation of one-half of Gold Glove awards,
attending a minimum of 25 St. Louis Cardinals home games, and representation of
the Company in radio and television broadcasts.)
Upon commencement of this Agreement, Executive is employed to
work an average of four (4) days per week for each week during the Contract
Term. Commencing on the fifth anniversary of this Agreement, however, Executive
is employed to work an average of three (3) days per week for each week through
the end of the Contract Term. The Executive agrees that so long as he is
employed under this Agreement he will (i) devote his best efforts to further
properly the interests of the Company, (ii) at all times be subject to the
Company's direction and
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control with respect to his activities on behalf of the Company, (iii) comply
with all rules, orders and regulations of the Company, (iv) truthfully and
accurately maintain and preserve such records and make all reports as the
Company may require, and (v) fully account for all monies and other property of
the Company of which he may from time to time have custody and deliver the same
to the Company whenever and however directed to do so.
7. COVENANT NOT TO DISCLOSE CONFIDENTIAL INFORMATION. The
Executive acknowledges that during the course of his employment with the Company
he has or will have access to and knowledge of certain information and data
which the Company considers confidential and that the release of such
information or data to unauthorized persons would be extremely detrimental to
the Company. As a consequence, the Executive hereby agrees and acknowledges that
he owes a duty to the Company not to disclose, and agrees that, during or after
the term of his employment, without the prior written consent of the Company he
will not communicate, publish or disclose, to any person anywhere or use any
Confidential Information (as hereinafter defined) for any purpose other than
carrying out his duties as Senior Vice President, Baseball Affairs. The
Executive will return to the Company all Confidential Information in the
Executive's possession or under the Executive's control whenever the Company
shall so request, and in any event will promptly return all such Confidential
Information if the Executive's relationship with the Company is terminated for
any or no reason and will not retain any copies thereof. For purposes hereof the
term "Confidential Information" shall mean any information or data used by or
belonging or relating to the Company that is not known generally to the industry
in which the Company is or may be engaged, including without limitation, any and
all trade secrets, proprietary data and information relating to the Company's
past, present or future business and products, price lists, customer lists,
processes, procedures or standards, know-how, manuals, business strategies,
records, drawings, specifications, designs, financial information, whether or
not reduced to writing, or information or data which the Company advises the
Executive should be treated as Confidential Information.
8. COVENANT NOT TO COMPETE. The Executive acknowledges that
during his employment with the Company he, at the expense of the Company, will
be specially trained in the business of the Company, will establish favorable
relations with the customers, clients and accounts of the Company and will have
access to Inventions, trade secrets and Confidential Information of the Company.
Therefore, in consideration of such training and relations and to further
protect the Inventions, trade secrets and Confidential Information of the
Company, the Executive agrees that during the term of his employment by the
Company and for a period of two (2) years from and after the voluntary or
involuntary termination of such employment for any or no reason, he will not,
directly or indirectly, without the express written consent of the Company,
except when and as requested to do in and about the performance of his duties
under this Agreement:
(a) own or have any interest in or act as an officer,
director, partner, principal, employee, agent, representative,
consultant or independent contractor of, or in any way assist in, any
business located in or doing business in the United States or in any
other county, territory or possession in which the Company has engaged
in business during the Executive's employ, that is engaged in
competition in any manner with any business of the Company at any time
during the time of the Executive's employment hereunder;
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(b) solicit, divert or attempt to divert clients, customers
(whether or not such persons have done business with the Company once
or more than once), accounts of the Company, or prospective clients,
customers or accounts which the Company has contacted within the two
(2) years immediately preceding Executive's termination; or
(c) solicit, entice or induce or in any manner influence any
person who is or shall be in the employ or service of the Company to
leave such employ or service for the purpose of engaging in a business
that may be in competition with the Company.
Notwithstanding anything herein to the contrary, Executive may own up to 1% of
the outstanding equity securities of stock in any corporation which is listed
upon a national stock exchange or actively traded in the over-the-counter
market.
9. SUCCESSORSHIP. The Company shall exercise its best efforts
to require any successor (whether direct or indirect, by purchase, merger,
consolidation, or otherwise) of all or substantially all of the business and/or
assets of the Company or of any division or subsidiary thereof 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
had taken place. Failure of the Company to obtain such assumption and agreement
prior to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Executive to compensation from the Company in
the same amount and on the same terms as he would be entitled hereunder if
terminated voluntarily by Executive for Good Reason or without Cause by the
Company as defined in and pursuant to Section 12 hereof, except that for the
purposes of implementing the foregoing the date on which any such succession
becomes effective shall be deemed the Effective Date of Termination.
10. SPECIFIC PERFORMANCE. Recognizing that irreparable damage
will result to the Company in the event of the breach or threatened breach of
any of the foregoing covenants and assurances by the Executive contained in
Sections 7 or 8 hereof, and that the Company's remedies at law for any such
breach or threatened breach will be inadequate, the Company and its successors
and assigns, in addition to such other remedies which may be available to them,
shall be entitled to an injunction, including a mandatory injunction, to be
issued by any court of competent jurisdiction ordering compliance with this
Agreement or enjoining and restraining the Executive, and each and every person,
firm or company acting in concert or participation with him, from the
continuation of such breach and, in addition thereto, he shall pay to the
Company all ascertainable damages, including costs and reasonable attorneys'
fees sustained by the Company by reason of the breach or threatened breach of
said covenants and assurances. The obligations of the Executive and the rights
of the Company, its successors and assigns under Sections 7, 8, 10, 11, 13, 17,
19 and 20 of this Agreement shall survive the termination of this Agreement. The
covenants and obligations of the Executive set forth in Sections 7 and 8 hereof
are in addition to and not in lieu of or exclusive of any other obligations and
duties of the Executive to the Company, whether express or implied in fact or in
law.
11. POTENTIAL UNENFORCEABILITY OF ANY PROVISION. If a final
judicial determination is made that any provision of this Agreement is an
unenforceable restriction
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against the Executive, the provisions hereof shall be rendered void only to the
extent that such judicial determination finds such provisions unenforceable, and
such unenforceable provisions shall automatically be reconstituted and become a
part of this Agreement, effective as of the date first written above, to the
maximum extent that is lawfully enforceable. A judicial determination that any
provision of this Agreement is unenforceable shall in no instance render the
entire Agreement unenforceable, but rather the Agreement will continue in full
force and effect absent any unenforceable provision to the maximum extent
permitted by law.
12. TERMINATION.
(a) This Agreement shall terminate immediately upon the death,
Disability or adjudication of legal incompetence of the Executive, or
upon the Company's ceasing to carry on its business or becoming
bankrupt.
(b) In the event this Agreement is terminated, the parties'
obligations under this Agreement shall terminate immediately (except as
otherwise provided herein), and neither the Executive nor his estate,
heirs, successors or assigns shall be entitled to any further
compensation hereunder.
(c) If the Company terminates the Executive's employment,
other than for Cause (as defined below), prior to the end of the
Contract Term or if the Executive voluntarily terminates his employment
with the Company for "Good Reason," which shall mean the occurrence of
any one of the following events unless Executive specifically agrees in
writing that such event shall not be a Good Reason: (i) assignment of
Executive to duties materially inconsistent with the Executive's
authorities, duties, responsibilities, and status (including offices,
titles, and reporting requirements), (ii) a reduction or alteration in
the nature or status of Executive's authorities, duties, or
responsibilities, other than an insubstantial and inadvertent act that
is remedied by the Company, or (iii) a reduction of Executive's Base
Salary other than pursuant to Section 3(a) above, and in no other
circumstances during the term hereof (e.g., the Executive's death or
disability or voluntary termination for any reason other than
hereinbefore set forth), the Company shall be required to pay
Executive:
(i) The Executive's accrued Base Salary;
(ii) A lump-sum cash payment equal to the
product of (A) the sum of the
Executive's remaining Base Salary
and the target annual Bonus payable
on such amounts to the Executive,
and (B) the number of years (whole
and fractional) remaining of the
Contract Term, but not less than 1;
(iii) Any additional payments or benefits
explicitly provided under the terms
of any plan, policy or program of
the Company in effect at the time of
the
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Executive's termination or as
otherwise required by applicable
law.
(d) For purposes of this Section 12, "Cause" shall mean the
occurrence of any of the following events:
(1) Performance by the Executive of illegal or fraudulent
acts, criminal conduct or willful misconduct, or gross negligence
relating to the activities of the Company;
(2) Willful or grossly negligent failure by the Executive to
perform his duties in a manner which he knows, or has reason to know,
to be in the Company's best interests;
(3) Willful and bad faith refusal by the Executive to carry
out reasonable instructions of the Company not inconsistent with the
provisions of this Agreement;
(4) Violation by the Executive of the covenants and agreements
contained in Sections 7 and 8 hereof;
(5) Any other material breach of the Executive's obligations
hereunder which are incurable or which he fails to cure promptly after
receiving written notice thereof; or
(6) The Company ceases operations due to a voluntary or
involuntary discontinuance of its business operations;
provided that Cause as defined in clauses (d)(2), (3) and (5) above
shall not constitute Cause unless Executive is provided with written notice
("Notice to Cure") of such Cause including the specific reasons which form the
basis for such consideration and the Executive fails to cure it within a
reasonable time (not more than thirty (30) days) after receipt of the Notice to
Cure; and provided further that Cause as defined in clauses (d)(2), (3) and (5)
above shall not mean: (A) any act or omission that is consistent with or would
be protected by the "Business Judgment Rule" as established by judicial decision
or otherwise applicable law; (B) any act or omission believed by the Executive
in good faith to have been in or not opposed to the interest of the Company
(without intent of the Executive to gain therefrom, directly or indirectly, a
profit to which the Executive was not legally entitled); or (C) any act or
omission with respect to which notice of termination of employment of the
Executive is given more than twelve (12) months after the earliest date on which
the Company knew or should have known of such act or omission. Any and all
disputes shall be resolved by arbitration in accordance with Section 20 hereof.
13. WAIVER OF BREACH. Failure of the Company to demand strict
compliance with any of the terms, covenants or conditions hereof shall not be
deemed a waiver of the term, covenant or condition, nor shall any waiver or
relinquishment by the Company of any right or
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power hereunder at any one time or more times be deemed a waiver or
relinquishment of the right or power at any other time or times.
14. NO CONFLICTS. The Executive represents and warrants to the
Company that neither the execution nor delivery of this Agreement, nor the
performance of the Executive's obligations hereunder will conflict with, or
result in a breach of, any term, condition, or provision of, or constitute a
default under, any obligation, contract, agreement, covenant or instrument to
which the Executive is a party or under which the Executive is bound, including
without limitation, the breach by the Executive of a fiduciary duty to any
former employers.
15. INDEMNIFICATION.
(a) The Company shall indemnify Executive if he is or was a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether criminal, civil, administrative or
investigative, including without limitation any action by or in the right of the
Company, by reason of the fact that he is a director or officer of the Company
or is or was a director or officer of the Company who is or was serving at the
request of the Company as a director, officer, agent, employee, partner or
trustee of another corporation, partnership, joint venture, trust or other
enterprise; against expenses, including for attorneys' fees, judgments, fines,
taxes and amounts paid in settlement, actually and reasonably incurred by him in
connection with such action, suit or proceeding if Executive's conduct is not
finally adjudged to be knowingly fraudulent, deliberately dishonest or willful
misconduct. The right to indemnification conferred in this Section shall include
the right to be paid by the Company expenses incurred in defending any actual or
threatened civil or criminal action, suit or proceeding in advance of the final
disposition of such action, suit or proceeding. Such right will be conditioned
upon receipt of an undertaking by or on behalf of Executive to repay such amount
if it shall ultimately be determined that he is not entitled to be indemnified
by the Company as authorized in this Section. Such right shall survive any
amendment or modification of this Agreement with respect to expenses incurred in
connection with claims, regardless of when such claims are brought, arising out
of acts or omissions occurring prior to such amendment or modification.
(b) The indemnification provided by this Section shall not be
deemed exclusive of any other rights to which Executive may be entitled under
any by-law, agreement, vote of disinterested directors or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to Executive whether he has ceased to
be a director, officer, employee, partner, trustee or agent and shall inure to
the benefit of the heirs, executors and administrators of Executive.
(c) The Company may, but is not obligated to, obtain
directors' and officers' liability insurance ("D&O Insurance") as may be or
become available in reasonable amounts from established and reputable insurers
with respect to which the Executive is named as an insured. Notwithstanding any
other provision of this Agreement, the Company shall not be obligated to
indemnify Executive for such expenses that have been paid directly to the
Executive by D&O Insurance. If the Company has D&O Insurance in effect at the
commencement of a proceeding, the Company shall give prompt notice of the
commencement of such proceeding to the insurers in accordance with the
procedures set forth in the policy. The Company shall
8
thereafter take all necessary or desirable action to cause such insurers to pay,
on behalf of Executive, all amounts payable as a result of such proceeding in
accordance with the terms of such policy.
(d) For purposes of this Section, the term "other enterprise"
shall include employee benefit plans; the term "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and the
term "serving at the request of the Company" shall include any service as a
director, officer, employee, partner, trustee or agent of, or at the request of,
the Company which imposes duties on, or involves services by, such director,
officer, employee, partner, trustee or agent with respect to an employee benefit
plan, its participants, or beneficiaries.
16. CAPTIONS. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall in no way
restrict or otherwise modify any of the terms or provisions hereof.
17. GOVERNING Law. This Agreement and all rights and
obligations of the parties hereunder shall be governed by, and construed and
interpreted in accordance with, the laws of the State of Missouri applicable to
agreements made and to be performed entirely within the State, including all
matters of enforcement, validity and performance.
18. NOTICE. All notices, requests, demands and other
communications hereunder shall be deemed duly given if delivered by hand or if
mailed by certified or registered mail with postage prepaid as follows:
If to the Company:
Rawlings Sporting Goods Company, Inc.
X.X. Xxx 00000
Xx. Xxxxx, Xxxxxxxx 00000
Attn:Corporate Secretary
If to the Executive:
Xxx Xxxxxxxx
________________________
___________, Missouri ________
With a copy to:
________________________
or to any other address as either party may provide to the other in writing.
19. ASSIGNMENT. This Agreement is personal and not assignable
by the Executive but it may be assigned by the Company in accordance with
Section 9 hereof without notice to or consent of the Executive to, and shall
thereafter be binding upon and enforceable by any person which shall acquire or
succeed to substantially all of the business or assets of the
9
Company (and such person shall be deemed included in the definition of the
"Company" for all purposes of this Agreement) but is not otherwise assignable by
the Company.
20. ARBITRATION. Except with respect to disputes or
controversies arising out of Sections 7 and 8 hereof, any dispute between any of
the parties hereto or claim by a party against another party arising out of or
in relation to this Agreement or in relation to any alleged breach thereof shall
be finally determined by arbitration in accordance with the rules then in force
of the American Arbitration Association. The arbitration proceedings shall take
place in St. Louis, Missouri, or such other location as the parties in dispute
hereafter may agree upon; and such proceedings shall be governed by the laws of
the State of Missouri as such laws are applied to agreements between residents
of such State entered into and to be performed entirely within that State.
The parties shall agree upon one arbitrator, who shall be an
individual skilled in the legal and business aspects of the subject matter of
this Agreement and of the dispute. If the parties cannot agree upon one
arbitrator, each party in dispute shall select one arbitrator and the
arbitrators so selected shall select a third arbitrator. In the event the
arbitrators cannot agree upon the selection of a third arbitrator, the third
arbitrator shall be appointed by the American Arbitration Association at the
request of any of the parties in dispute. The arbitrators shall, if possible, be
individuals skilled in the legal and business aspects of the subject matter of
this Agreement and of the dispute.
The decision rendered by the arbitrator or arbitrators shall
be accompanied by a written opinion in support thereof. The decision shall be
final and binding upon the parties in dispute without right of appeal. Judgment
upon the decision may be entered into in any court having jurisdiction thereof,
or application may be made to that court for a judicial acceptance of the
decision and an order of enforcement. Costs of the arbitration shall be assessed
by the arbitrator or arbitrators against any or all of the parties in dispute,
and shall be paid promptly by the party or parties so assessed.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be duly executed in duplicate, and the Executive has hereunto set his hand, on
the day and year first above written.
RAWLINGS SPORTING GOODS
COMPANY, INC.
By: /s/ Xxxxxxx X. X'Xxxx
-----------------------------
Name: Xxxxxxx X. X'Xxxx
---------------------------
Title: Chief Executive Officer
--------------------------
/s/ Xxx Xxxxxxxx
--------------------------------
Xxx Xxxxxxxx
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