[LETTERHEAD OF XXXXXX'X APPEARS HERE]
EXHIBIT 10.17
June 6, 1996
Xxxxxxx X. Xxxxx
Senior Vice President and
Chief Financial Officer
Xxxxxx'x Sporting Goods
0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxx 00000
Dear Xxx:
This letter agreement sets forth the terms and conditions under which
Xxxxxx'x Sporting Goods Inc.-Services (the "Company") will provide certain
payments to you in the event your employment is terminated by the Company other
than for Cause, as defined herein:
At all times during your employment with the Company you shall remain an at
will employee which means the Company may terminate you at any time without
notice of Cause. You expressly acknowledge by your execution of this letter
agreement that nothing in this letter agreement shall affect your at will
employment status.
If your employment is terminated by the Company within the first 24 months
of your employment for any reason other than Cause, as that term is defined
herein, you will be paid as follows:
(1) all current salary the Company owes you as of the date of your
termination; and
(2) an amount equal to 50% of your annual base salary at the rate in effect
at the time of your termination (the "Wage Continuation").
The Wage Continuation shall be paid in lieu of notice of termination, and
will be paid over the 6 month period following your termination, in equal, bi-
weekly payments, in accordance with the Company's typical payroll schedule and
policies. The Wage Continuation shall be offset by any compensation, salary
commission or other income earned by you, accrued on your behalf or attributable
to you during the 6 months following your termination. You shall furnish the
Company with such information as the
Company may reasonably request regarding such other employment and compensation
received by you.
Your duties and responsibilities as Senior Vice President and Chief
Financial Officer shall continue and may be amended from time to time by the
Board of Directors of the Company or Chief Executive Officer.
As used in this letter agreement, Cause shall mean the occurrence of any
one or more of the following events:
(i) you have engaged in willful conduct, including embezzlement, fraud,
or malfeasance in the performance of your duties as prescribed from
time to time by the Board of Directors of the Company;
(ii) you have breached a policy or procedure of the Company which is
generally applicable to officers of the Company, which breach is
material and continues for a period of 3 days after being given
notice of such breach by the Company;
(iii) you have failed to perform your duties as prescribed and amended from
time to time by the Board of Directors of the Company (other than
scheduled vacation leave or sick leave taken in accordance with the
Company leave policy applicable to senior level executives) which
failure continues for a period of 5 days after being given notice of
such breach by the Company, unless this failure to perform relates to
a disability; in the event you become disabled the then existing
disability policies of the Company for senior level executives shall
be applicable;
(iv) you have violated any law, regulation, ordinance of a governmental
entity (other than traffic violations and similar minor offenses) or
you have violated any judicial decree applicable to the Company or to
you;
(v) you have materially breached any of the terms of this letter
agreement or any other written agreement between you and the Company
which breach continues for a period of 3 days after being given
notice of such breach by the Company; or
(vi) any representations made by you to the Company prove to be materially
false in any manner.
If the Company has Cause to terminate you, you may, at your option, submit your
immediate resignation which resignation shall be accepted by the Company and
the Company shall not disclose the reason for the resignation, unless required
by applicable regulation, subpoena, administrative process or court order to
make such disclosure.
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Additionally, the Company shall not be obligated to pay the Wage
Continuation upon your death. If you become disabled while an active employee
with the Company, the Company will not be obligated to pay the Wage
Continuation; however in that event, the Company shall be obligated to pay
disability benefits in accordance with the Company's then existing policies
regarding the payment of disability benefits for senior level executives. If
you are terminated without Cause and become disabled within 6 months of your
termination, the Company shall pay the Wage Continuation, subject to any offsets
allowable under this letter agreement.
As consideration for the promises provided for in this letter agreement,
you acknowledge that by reason of the nature of your duties, you will or may
have access to and become informed of confidential and secret or proprietary
information which is a competitive asset of the Company, including without
limitation (i) customer information such as names, addresses, sales histories,
purchasing habits, credit status, and pricing levels, (ii) certain prospective
customer information and lists, (iii) merchandise and product information, (iv)
merchandise and product suppliers, and prospective suppliers' names, addresses
and contacts, (v) future corporate planning data, (vi) marketing strategies,
(vii) the Company's financial results and business condition, and (viii) any of
the foregoing which belong to any other person or company but to which you had
access by reason of your employment with the Company (collectively,
"Confidential Information"). You agree to keep in strict confidence, and not,
either directly or indirectly, to make known, divulge, reveal, furnish, make
available or use (except for use in the regular course of your duties hereunder
or as necessary, as determined by you in good faith for you to perform your
duties hereunder) any Confidential Information. You acknowledge that all sales
manuals, instructions books, catalogs, price lists, information and records,
technical manuals and documentation, drafts or instructions, guides and manuals,
and other sales or technical information and aids relating to the Company's
business and any and all other documents containing Confidential Information
furnished you by any employee of the Company or otherwise acquired or developed
by you shall at all times be the property of the Company. Upon termination of
your employment with the Company, you shall return to the Company any materials
containing Confidential Information which are in your possession, custody or
control.
Your obligations under this paragraph shall survive such termination of
your employment with the Company, but shall not be applicable to (i) any such
Confidential Information which becomes, through no fault of yours, generally
known to the trade, (ii) information which you can demonstrate was known to you
prior to commencing your employment with the Company, (iii) information in the
public domain, (iv) information required to be disclosed under or by subpoena or
lawful court or by direction of the Chief Executive Officer or the Board of
Directors, and (v) information which you need to disclose to your personal
financial or legal advisors in connection with any litigation between the
parties regarding this letter agreement. Your obligations under this paragraph
are in addition to, and not in limitation or pre-emption of, all other
obligations of confidentiality which you may have to the Company under Company
policies or under general legal or equitable principles.
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For the purposes of this letter agreement, "Entity" shall include, without
limitation, a person, firm partnership, limited liability company, corporation
or any other form of business enterprise.
You also acknowledge that during the term of this letter agreement, your
access to the Confidential Information will enable you to benefit from the
Company's goodwill and know-how. To protect these vital interests of the
Company, you agree that during the term of this letter agreement and for a
period of twelve (12) months following your termination for any reason, you will
not, without the prior written consent of the Company, directly or indirectly,
whether as a director, officer, employee, agent, consultant, shareholder,
partner, inventor or otherwise:
(i) invest (except as a five percent (5%) or less shareholder of any
publicly traded corporation) or become employed by or associated with
any Entity which competes directly or indirectly with the Company or
accept employment with or render services to an Entity which competes
directly or indirectly with the Company; or
(ii) actively solicit the employment or hiring by any Entity or any
employee of the Company.
This covenant not to compete shall apply whether you act as an individual
or for your own account, or as a partner, employee, agent, salesman,
distributor, consultant or representative of any other Entity. For the purposes
of this letter agreement, an Entity which competes directly or indirectly with
the Company is any Entity primarily engaged in the business of selling sporting
goods, active sportswear and athletic shoes in Texas, Louisiana, California,
Arizona or New Mexico.
Your Wage Continuation shall be forfeited and all payments due under this
letter agreement shall cease, if any of the noncompete provisions of this letter
agreement are breached or violated. In that event, the Company will have no
obligation to pay you any further Wage Continuation under this letter agreement.
Should any dispute or controversy arise between the parties, including
without limitation, any dispute relating to this letter agreement, your
employment or termination of employment from the Company, the parties
specifically stipulate and agree to submit any such dispute to final and binding
arbitration. Such arbitration shall be conducted before a single arbitrator
pursuant to the Commercial Arbitration Rules then in effect of the American
Arbitration Association, except to the extent such rules are inconsistent with
this paragraph. Exclusive venue for such arbitration shall be in Houston, Xxxxxx
County, Texas. The arbitration shall apply the laws of the state of Texas
(without regard to conflict of law rules) in determining the substance of the
dispute, controversy or claim and shall decide same in accordance with the
applicable usages and terms of trade. Evidentiary questions shall be governed by
the Federal Rules of Evidence. The arbitrator's award shall be in writing and
set forth the findings and conclusions upon
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which the award is based, with the costs of such arbitration to be split equally
between the parties. Any award pursuant to such arbitration shall be final and
binding upon the parties, and judgment on the award may be entered in any
federal or state court in Xxxxxx County, Texas, or any other court having
jurisdiction. The terms of this paragraph shall survive the termination of this
letter agreement.
By execution of this letter agreement, you, with an adequate opportunity to
consult with legal counsel knowingly and voluntarily waive any right to trial by
jury of any dispute pertaining to or relating in any way to your employment with
or termination from the Company, including any matters relating to this letter
agreement, the provisions of any federal, state or local law, regulation or
ordinance notwithstanding. Notwithstanding the foregoing provisions, if you
breach any of the non-disclosure or non-competition provisions of this letter
agreement, the Company shall have the right to seek immediate injunctive relief
in the form of a temporary, preliminary or permanent mandatory or restraining
injunction, enjoining you from such further breach of those provisions of this
letter agreement.
No delay or omission by the Company or you in exercising any right or
remedy under any of the terms of this letter agreement shall operate as a waiver
of any rights or remedies which the Company or you may have under this letter
agreement, either at law or in equity, and no single or partial exercise of any
such right shall preclude any other or further exercise thereof or of the
exercise of any other right or remedy. All other terms and conditions of your
employment shall continue to be governed by the Company's policies and
procedures, as those may be amended from time to time.
If the terms and conditions of the foregoing agreement meet with your
approval, please indicate so by signing in the space provided for below and
returning this original to me.
Sincerely,
/s/ XXXXX X. XXXXXXXX
Xxxxx X. Xxxxxxxx
Agreed and Approved:
/s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
Date: July 1, 1996
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