Exhibit 10.10
AGREEMENT
THIS AGREEMENT entered into this 11 day of January, 2002 (the
"Effective Date"), between DICK'S SPORTING GOODS, INC., a Delaware corporation
(the "Company"), and ________________, ("the Employee") a resident of the state
of __________.
RECITALS:
A. The Employee is a key employee of the Company and, as such, has
received substantial training and acquired new skills as a result of his
employment.
B. The Employee also has had access to confidential documents and other
information deemed by the Company to be proprietary and confidential and
essential to the Company's business.
C. The Company has offered the Employee the right to participate in a
new multi-year bonus program and certain new severance benefits, in exchange for
certain agreements from the Employee.
D. In order to participate in this program, the Employee has agreed to
maintain the confidentiality of the information deemed by the Company to be
proprietary and confidential, and to refrain from competing with the Company and
soliciting the Company's employees upon the termination of the Employee's
employment, on the terms and conditions set forth herein.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth herein, receipt and sufficiency of which are hereby
acknowledged by both parties, it is agreed as follows:
1. MULTI-YEAR BONUS PROGRAM. As of the Effective Date, the Employee
shall be included as a participant in a new enhanced bonus program known as the
Dick's Sporting Goods, Inc. Long-Term Incentive Plan (the "Program"), a copy of
which has been provided to the Employee along with this Agreement. The
Employee's participation in the Program shall be subject to all the terms and
conditions of such Program, as they may be amended from time to time by the
Company's Board of Directors or management. The Employee shall continue to be
included as a participant in the Program until the earlier of (a) the date on
which the Employee ceases to be an Employee of the Company for any reason (the
"Termination Date"), (b) the date on which the Employee ceases to work in a
Program-eligible position, or (c) the completion or cessation of the Program in
accordance with its terms. The cessation of the Employee's participation in the
Program shall not affect the other provisions of this Agreement, which shall
remain in full force and effect with respect to the Company and the Employee,
without modification, in the event the Employee ceases to participate in the
Program.
2. Covenants Regarding Competition and Employees.
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(a) Beginning on the date hereof and continuing for the Restricted
Period (as defined in Section 2(c)), the Employee shall not:
(i) Own, manage, control, be employed by, be a consultant to,
participate in, or be connected in any manner with the ownership, management,
operation, or control of any entity that owns and/or operates Big Box (as
defined in Section 2(c)) sporting goods retail stores in a metropolitan area
where the Company operates such a store or stores, or has specific plans to open
such a store within one year after the Termination Date, if the Employee had
been informed of such store opening plans prior to the Termination Date,
specifically including but not limited to The Sports Authority, Inc., Gart
Sports Company, Xxxxxx'x Trading Company, Gander Mountain/Holiday Companies,
Bass Pro Shops and Cabela's, Inc. and their respective successors and
affiliates; or
(ii) Induce or solicit, directly or indirectly, any person who is
an employee, officer or agent of the Company to terminate said relationship, or
otherwise assist in the recruitment of any Company employee to accept employment
with another employer.
(b) For purposes of this Section 2 and Section 3 below, the term
"Company" shall mean and include, in addition to the Company itself, DSG
Holdings LLC, and xxxxxxx.xxx LLC, together with their respective subsidiaries
successors and assigns.
(c) For purposes of this Section 2, (i) the "Restrictive Period"
means a period of twelve (12) consecutive months from the Termination Date, or,
if the Employee has not been employed by the Company for twelve (12) months
prior to the Termination Date, for a time period after the Termination Date that
is equal to the period of the Employee's employment; and (ii) "Big Box" means a
store specializing in the sale of goods having at least twenty-five thousand
(25,000) square feet of selling space dedicated substantially to the retail sale
of hard and soft line sporting goods and apparel, including single stores,
stores that are part of regional or nationwide chains, specialty stores, and any
other sales establishments otherwise meeting the foregoing definition.
3. Confidentiality; Nondisclosure of Information.
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(a) Except as expressly permitted by the Company in writing, the
Employee shall not at any time, either before or after the Termination Date,
knowingly disclose to any person not connected with the Company or use for his
own benefit or for the benefit of any person other than the Company, any
proprietary or confidential information either disclosed to or developed by the
Employee during his employment by the Company. For purposes of this Agreement,
the term "proprietary or confidential information" shall include, but not be
limited to, any trade secret or confidential information, knowledge or data,
whether of a technical or commercial nature, sales or production records or
data, product pricing, formulas, Inventions (as defined in Section 3(b)),
financial statements or other financial information, engineering and
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tooling records and data, managerial and operational policies, ideas, plans,
methods, practices and procedures, vendor arrangements and vendor lists,
marketing strategies, and other confidential business information related to the
conduct of the business of the Company.
(b) Any and all inventions, products, improvements, processes,
formulae, manufacturing methods or techniques, designs, or styles (collectively
referred to as "Inventions") made, developed, or created by the Employee, alone
or in conjunction with others, during regular hours of work or otherwise, during
his term of employment by the Company, that may be directly or indirectly useful
in or related to the business of, or tests being carried out by, the Company,
shall be the Company's exclusive property. The Employee will, upon the Company's
request, execute all documents necessary or advisable in the opinion of the
Company's counsel to direct issuance of any type of intellectual property right
to the Company with respect to Inventions that are to be the Company's exclusive
property under this Section 3(b) or to vest in the Company title to such
Inventions. The expense of securing any such intellectual property right shall
be borne by the Company. The Employee will keep confidential and will hold for
the Company's sole benefit any Invention that is to be the Company's exclusive
property under this Section 3(b) for which no intellectual property right is
issued.
(c) The Employee shall not, either before or after the Termination
Date, make any disparaging or negative comments about the Company or any of its
officers, directors or employees, whether oral or written, and shall take
reasonable steps necessary or appropriate to cause the members of his family and
advisors to abide by such disclosure restriction.
4. At-Will Employment; Severance Payment.
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(a) The Employee acknowledges that his employment by the Company is
employment-at-will, and that this Agreement does not create any obligation on
his part to work for the Company or for the Company to employ him for any fixed
period of time, and that his employment may be terminated by the Company at any
time with or without cause.
(b) Subject to the other terms and conditions of this Agreement,
including but not limited to Section 4(d), in the event the Employee's
employment is terminated by the Company for any reason other than those set
forth in Section 4(c) of this Agreement, the Employee shall be entitled to
receive as a severance payment (the "Severance Payment") an amount equal to the
greater of (i) four (4) weeks of pay at the Employee's regular salary rate, or
(ii) one (1) week of pay at the Employee's regular salary rate for each year of
employment by the Company or one of its subsidiaries, prorated for partial
years. So long as the Employee is in compliance with all applicable provisions
of this Agreement, including but not limited to Section 2, the Severance Amount
shall be payable biweekly over the Restrictive Period.
(c) The Employee shall not be entitled to receive the Severance Payment
if the Company, in its reasonable business judgment, terminates the Employee for
any of the following reasons: (i) fraud or felonious conduct by the Employee;
(ii) embezzlement or misappropriation of funds or property of the Company by the
Employee; (iii) material breach of this Agreement by the Employee or any
material violation of the Company's rules, policies or
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procedures set forth in the Company Employee Handbook; (iv) gross negligence by
the Employee; or (v) the Employee's consistent inability or refusal to perform,
or willful misconduct in or disregard of the performance of his duties and
obligations property assigned to him.
(d) Notwithstanding any other provision of this Agreement, the
Employee shall not be entitled to receive the Severance Payment if an Employee's
employment is terminated (i) voluntarily by the Employee, (ii) as a result of
the death of the Employee, (iii) as the result of the Employee's retirement, or
(iv) as a result of the permanent disability of the Employee, which shall be
deemed to have occurred if the Employee is deemed to be "totally disabled" under
the Company's long-term disability policy then in effect.
5. BREACH BY THE EMPLOYEE.
(a) Both parties hereto recognize that the obligations of the
Employee hereunder are special, unique and of extraordinary character and if the
Employee hereafter fails to comply with the restrictions imposed upon him under
this Agreement, the Company will not have an adequate remedy at law. It is
agreed that under such circumstances, the Company, in addition to the right to
terminate the payment of any amounts due to the Employee hereunder and any other
rights which it may have, shall be entitled to injunctive relief to enforce any
such restrictions and obligations, and that in the event any actual proceedings
are brought in equity to enforce any such provision, the Employee shall not
raise as a defense that there is an adequate remedy at law. Nothing in this
Agreement shall be construed to prohibit the Company from pursuing any other
available remedies for such breach or threatened breach, including termination
of payments and recovery of damages from the Employee.
(b) In the event the Company has reason to believe that the
Employee has violated or may be violating any provision of this Agreement during
or after the Employee's employment, the Company will give the Employee notice of
such belief and the reasons therefor. Unless the Employee promptly satisfies the
Company that such belief was mistaken, the Employee hereby authorizes the
Company to notify any third party of such belief and to furnish a copy of
relevant provisions of this Agreement to said party. The foregoing is in
addition to, but not in lieu of, any and all rights the Company may have in law
or in equity in the event of a breach by the Employee.
6. GOVERNING LAW. This Agreement shall be governed, construed and
interpreted under, and in accordance with, the laws of the State of
Pennsylvania.
7. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
(and supersedes and replaces in their entirety any prior agreements,
arrangements and understandings) between the parties with respect to the subject
matter hereof, and no amendment hereof shall be deemed valid unless in writing
and signed by parties hereto.
8. INTERPRETATION AND CONSTRUCTION. The headings and sections of this
Agreement are inserted for convenience only and shall not be deemed to
constitute a part of this Agreement.
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9. SEVERABILITY. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall be ineffective to the extent of such
prohibition or unenforceability without affecting, impairing or invalidating the
remaining provisions hereof or the enforceability thereof in such jurisdiction
or the validity or enforceability of any provision hereof in any other
jurisdiction, unless to enforce the remaining provisions would materially alter
the parties' respective benefits and burdens hereunder.
10. BINDING EFFECT; NON-ASSIGNABILITY; WAIVER. The rights and
obligations of the Company under this Agreement shall inure to the benefit of,
and shall be binding upon, the Company and its successors and assigns. The
rights and obligations of the Employee under this Agreement are personal to the
Employee and may not be assigned, transferred or delegated by The Employee to
any other person or entity; PROVIDED, that the provisions of Section 3 hereof
shall be binding upon the heirs, successors and legal representatives of the
Employee. The waiver of either of the parties of any breach of any provision
hereof shall not be effective unless in writing and shall not constitute a
waiver by such party if any other succeeding breach of any provision hereof.
11. NOTICES. All notices, requests, demands, and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered or mailed by registered or certified mail, or overnight delivery
service, to the addresses hereinafter described or at such other addresses as
may be designated in writing by notice duly given to the other party. The date
of the giving of such notices, requests, demands, and other communications shall
be deemed to be the date of delivery.
If to the Employee to:
If to the Company to:
Dick's Sporting Goods, Inc.
000 Xxxxxxxx Xxxxx
XXXX Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
12. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
13. VARIATIONS IN PRONOUNS. All pronouns and any variations thereof
refer to masculine, feminine or neuter, singular or plural, as the context may
require.
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14. NO THIRD PARTY BENEFICIARY RIGHTS. This Agreement is not intended
to and shall not be construed to give any person other than the parties
signatory hereto any interest or rights (including, without limitation, any
third party beneficiary rights) with respect to or in connection with any
agreement or provision contained herein or contemplated hereby.
15. ACKNOWLEDGMENT. The Employee acknowledges the following:
(a) He has carefully read all of the provisions of this Agreement,
and has given careful consideration to the restrictions imposed upon him hereby,
and he agrees that the same are necessary for the proper protection of the
Company's business.
(b) He has had and expects to continue to have access to
confidential and proprietary information of the Company, has received valuable
training at the expense of the Company, and has developed important knowledge
and skills as a result of his employment by the Company, and the Company's
business will be materially and adversely affected if he violates this
Agreement, including in particular the provisions of Section 2 or 3.
(c) He considers the Agreement and each of the restrictive
provisions contained herein to be reasonable with respect to the subject matter
thereof, and represents that his experience and capabilities are such that the
provisions of this Agreement, including but not limited to Sections 2 and 3
hereof, will not prevent him from earning a livelihood.
(d) The Company has agreed to enter into this Agreement in
consideration of the representation by the Employee that he will abide by and be
bound by all of the restrictions set forth herein.
(e) His participation in the Program and receipt of the severance
benefits described in Section 4(b) are contingent upon his agreement to and
compliance with the other provisions of this Agreement, including but not
limited to Sections 2 and 3 hereof.
(f) He has had an opportunity to consider and review this
Agreement for a sufficient period of time.
(g) He has been advised to consult with an attorney prior to
executing this Agreement, and has done so if he, in his sole discretion,
believed it necessary or appropriate, and had a sufficient opportunity to
discuss it with his attorney, and understands its terms and effects.
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IN WITNESS WHEREOF, intending to be legally bound hereby, the parties
have executed this Agreement as of the day and year first above written.
By:
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(Signature Above)
Print Name of Employee:
DICK'S SPORTING GOODS, INC.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Chairman and Chief Executive Officer
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