EXHIBIT 10.4
TERMINATION AGREEMENT
November 1, 1998
Xx. Xxxxxx X. Xxxxxxxx
Dear Xxx:
This letter will confirm our understanding concerning the termination
of your employment with The Sports Authority, Inc. (the "Company").
1. Your employment will terminate effective immediately, by mutual
consent.
2. The Company will pay to you your base salary for employment for work
through October 31, 1998 (your last pay check being the one dated November 6,
1998). Thereafter, the Company will pay to you twenty-six (26) bi-weekly
severance payments (the first of which shall be dated November 20, 1998 and the
last of which shall be dated November 5, 1999) equal to the sum of (i) your
current bi-weekly base salary, and (ii) 1/26th of the "on plan" bonus amount
targeted for you for the Company's 1998 fiscal year. In addition, the Company
will reimburse you for the cost of COBRA medical and dental coverage for you and
your family until the date of your last severance payment. All other insurance
coverage will cease on the date hereof. All payments hereunder shall be subject
to applicable withholding and deductions.
3. The Company agrees that the 13,200 stock options granted to you on
March 26, 1996 shall be fully vested and exercisable as of the date hereof, that
all restrictions on the 4,021 restricted shares purchased by you under the
Management Stock Purchase Plan in March 1996 shall lapse as of the date hereof,
and that an unrestricted certificate representing such 4,021 shares (net of
shares withheld for income tax withholding) will be delivered to you promptly.
The Company agrees that the 10,000 stock options granted to you on March 11,
1997 and the 15,000 stock options granted to you on January 28, 1998 shall be
fully vested and exercisable one year from the date hereof, provided that you
shall not have breached any obligation to the Company under this agreement prior
to that date. The 25,000 options described in the preceding sentence shall be
exercisable by you until three months after the date such options vest, and all
other options held by you shall be exercisable by you until June 30, 1999.
4. The payments provided hereunder shall constitute the exclusive
payments due you from, and the exclusive obligation of, the Company upon the
termination of your employment, except for any benefits which may be due you in
normal course under any employee or executive benefit plan of the Company which
provides benefits after termination of employment. You shall not be required to
mitigate the amount of any
payment or benefit provided for in this agreement by seeking other employment or
otherwise, nor shall the amount of any payment or benefit provided for herein be
reduced by any compensation earned by other employment or otherwise. The
payments hereunder may not be transferred, assigned or encumbered in any manner,
either voluntarily or involuntarily. In the event of your death, any payments
then or thereafter due hereunder will be made to your estate.
5. In consideration of the obligations of the Company
hereunder, you agree that you shall not, for a period of one year from the date
hereof, (a) directly or indirectly become an employee, director, consultant or
advisor of, or otherwise affiliated with, any retailer of sporting goods,
footwear or apparel with retail outlets in the United States (unless the classes
of products sold by such retailer constitute less than 10% of the total sales by
the Company and its licensees in the United States during the Company's 1998
fiscal year), (b) directly or indirectly solicit or hire, or encourage the
solicitation or hiring of, any person who was an employee of the Company at any
time on or after the date of this agreement (unless more than six months shall
have elapsed between the last day of such person's employment by the Company and
the first date of such solicitation or hiring), (c) disparage the name, business
reputation or business practices of the Company or any of its officers or
directors, or interfere with the Company's existing or prospective business
relationships, or (d) without the written consent of the Chief Executive Officer
of the Company, disclose to any person other than as required by law or court
order, any confidential information obtained by you while in the employ of the
Company, provided, however, that confidential information shall not include any
information known generally to the public (other than as a result of
unauthorized disclosure by you) or any specific information or type of
information generally not considered confidential by persons engaged in the same
business as the Company, or information disclosed by the Company by any member
of its Board of Directors or any other officer thereof to a third party without
restrictions on the disclosure of such information.
You acknowledge that these restrictions are reasonable and necessary to
protect the Company's legitimate interests, that the Company would not have
entered into this agreement in the absence of such restrictions, and that any
violation of these restrictions will result in irreparable harm to the Company.
You agree that the Company shall be entitled to preliminary and permanent
injunctive relief, without the necessity of proving actual damages, as well as
an equitable accounting of all earnings, profits and other benefits arising from
any violation hereof, which rights shall be cumulative and in addition to any
other rights or remedies to which the Company may be entitled. You irrevocably
and unconditionally (i) agree that any legal proceeding arising out of this
paragraph may be brought in the United States District Court for the Southern
District of Florida, or if such court does not have jurisdiction or will not
accept jurisdiction, in any court of general jurisdiction in Broward County,
Florida, (ii) consent to the non-exclusive jurisdiction of such court in any
such proceeding, and (iii) waive any objection to the laying of venue of any
such proceeding in any such court. You also irrevocably and unconditionally
consent to the service of any process, pleadings, notices or other papers.
6. You irrevocably and unconditionally release the Company, its
predecessors, successors, and assigns, as well as past and present officers,
directors, and employees, from any and all claims, liabilities, or promises
outside of this agreement, known or unknown, arising out of or relating to your
employment with the Company. You waive these claims on behalf of yourself and on
behalf of your heirs, assigns, and anyone making a claim through you. The claims
waived and discharged include, but are not limited to: (a) employment
discrimination claims (including claims of sex discrimination and/or sexual
harassment) and retaliation under Title VII of the Civil Rights Act of 1964; (b)
age discrimination claims under the Age Discrimination in Employment Act; (c)
State of Florida and County of Broward equal employment opportunity act claims;
(d) disputed wages, including claims for any back wages; (e) wrongful discharge
and/or breach of contract claims; and (f) tort claims, including invasion of
privacy, defamation, fraud, and infliction of emotional distress. You will not
bring any legal action against the Company, its predecessors, successors and
assigns, as well as past and present officers, directors, and employees for any
claim waived and you represent and warrant that you have not filed any such
claim to date.
7. You represent that you understand completely your right to review
all aspects of this agreement with an attorney of your choice, have had the
opportunity to consult with an attorney of your choice, have carefully read and
fully understand all the provisions of this agreement and that you are freely,
knowingly, and voluntarily entering into this agreement and the release
contained herein.
8. You acknowledge that you have been informed of the following rights
available to you under Age Discrimination in Employment Act (ADEA):
(a) You have the right to consult with an attorney before signing this
Agreement;
(b) You do not waive rights or claims under ADEA that might arise after
the date this waiver is executed;
(c) You have twenty-one (21) days from the date you receive this
agreement to consider this agreement; (d) You have seven days after
signing this agreement to revoke it.
9. This agreement shall be governed by and interpreted under the laws
of the State of Florida without giving effect to any conflict of laws
provisions.
10. This agreement sets forth the entire understanding with respect to
the subject matter hereof and supersedes all prior agreements, written or oral
or express or implied, between you and the Company as to such subject matter.
This agreement may not be amended, nor may any provision hereof be modified or
waived, except by an instrument in writing duly signed by you and the Company.
11. If any provision of this agreement, or any application thereof to
any circumstances, is invalid, in whole or in part, such provision or
application shall to that extent be severable and shall not affect other
provisions or applications of this agreement.
Please indicate your agreement by signing below and retain one copy for
you records.
Sincerely,
THE SPORTS AUTHORITY, INC.
By: /S/ XXXXXX X. XXXXXX
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Witness: Agreed:
/S/ XXXX X. XXXXXXXX /S/ XXXXXX X. XXXXXXXX
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Date: October 21, 1998 Date: October 21, 1998
