AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.6
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered
into by and between Xxxxxx-Xxxx Sports, Inc. (the “Company”) and Xxxxx X. Xxxxx (the
“Executive”), dated as of the 13th Day of April amending in part and restating
that certain Employment Agreement between the parties dated as of November 10, 2008 (the
“Original Agreement”).
For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company and the Executive agree as follows:
1. Employment. Subject to the terms and conditions set forth in this Agreement, the
Company hereby offers, and the Executive hereby accepts, continued employment.
2. Term. Subject to earlier termination as hereafter provided, the initial term of
Executive’s employment hereunder shall commence on January 7, 2009, the effective date of the
Original Agreement (the “Commencement Date”), and end on January 31, 2013 and, following
the initial term, shall automatically renew thereafter for successive terms of one year each. The
term of this Agreement, as from time to time renewed, is hereafter referred to as “the term of
this Agreement” or “the term hereof.”
3. Capacity and Performance.
(a) During her employment hereunder, the Executive shall serve the Company as its Chief
Operations Officer (“COO”), reporting to the chief executive officer of the Company (the
“CEO”).
(b) During the term hereof, the Executive shall be employed by the Company on a full-time
basis. She shall have the duties and responsibilities of COO and such other duties and
responsibilities, reasonably consistent with that position, with respect to the Supply Chain,
manufacturing, distribution, sourcing, information technology, apparel and related operations of
the Company and its Immediate Affiliates, as may be assigned by the CEO or the Board of Directors
of the Company (the “Board”) or a committee thereof from time to time.
(c) Subject to business travel as necessary or desirable for the performance of the
Executive’s duties and responsibilities hereunder, the Executive’s primary worksite during the term
hereof shall be at the location of the Company’s offices in Van Nuys, California as of the
Commencement Date (the “Van Nuys Location”) or such other site as the Company may select
from time to time, provided such site is no more than thirty-five (35) miles from the Van Nuys
Location unless the Executive has expressly consented in writing thereto.
(d) During the term hereof, the Executive shall devote her full business time and best
efforts, business judgment, skill and knowledge exclusively to the advancement of the business and
interests of the Company and its Immediate Affiliates and to the discharge of her duties and
responsibilities hereunder. During the term of this Agreement, the Executive may engage in passive
management of her personal investments and in such community and charitable activities as do not
individually or in the aggregate give rise to a conflict of interest or
otherwise interfere with her performance of her duties and responsibilities hereunder. It is
agreed that the Executive shall not accept membership on a board of directors or other governing
board of any Person (as defined in Section 13 hereof) without the prior approval of the
Board or its authorized representative. It also is agreed that if the Board subsequently
determines, and gives notice to the Executive, that any such membership, previously approved, is
materially inconsistent with the Executive’s obligations under Section 7, Section 8
or Section 9 of this Agreement or gives rise to a material conflict of interest, the
Executive shall cease such activity promptly following notice from the Company.
4. Compensation and Benefits. As compensation for all services performed by the
Executive under and during the term hereof and subject to performance of the Executive’s duties and
of the obligations of the Executive to the Company and its Affiliates, pursuant to this Agreement
or otherwise:
(a) Base Salary.
(i) Initially during the term hereof, the Company shall pay the Executive a base salary
at the rate of Three Hundred Forty Five Thousand Dollars ($345,000.00) per annum, payable in
accordance with the payroll practices of the Company for its executives and, commencing in
calendar year 2010, subject to annual review by the compensation committee of the Board and
to increase, but not decrease, in the discretion of such committee or the Board. The
Executive’s base salary, as from time to time increased, is hereafter referred to as the
“Base Salary.”
(ii) Effective January 1, 2010, the Company shall provide the Executive a housing
allowance in an amount of Eight Thousand Dollars ($8,000.00) per month, grossed up for the
federal, state and local (if applicable) income and employment tax liability resulting to
the Executive (the “Housing Allowance”). The Company will provide the Executive the
Housing Allowance, payable monthly with the Base Salary, while her employment continues
under this Agreement, until January 31, 2013. In the event that the Executive’s employment
hereunder terminates prior to January 31, 2013, the Housing Allowance will be provided to
the Executive in accordance with the applicable provision of Section 5 hereof and
the following: In the event that the Executive’s employment hereunder is terminated by the
Company other than for Cause or is terminated by the Executive for Good Reason prior to
January 31, 2013, the Housing Allowance will be continued, as Post-Employment Compensation
(as defined in Section 5(h) hereof), subject to the conditions set forth in said
Section 5(h), payable on a monthly basis until the expiration of twelve (12) months
following the Date of Termination (as defined in Section 5(a) hereof) or until
January 31, 2013, whichever occurs first. In the event of termination of the Executive’s
employment pursuant to Section 5(a) hereof (as a result of death), the Housing
Allowance will be payable monthly to the Executive’s estate until the expiration of twelve
(12) months following the Date of Termination or until January 31, 2013, whichever occurs
first. In the event that the Executive’s employment hereunder is terminated by the Company
pursuant to Section 5(b) hereof, the Housing Allowance will be continued, as
Post-Employment Compensation (as defined in Section 5(h) hereof), subject to the
conditions set forth in said Section 5(h),
2
payable on a monthly basis until the
expiration of twelve (12) months following the Date of
Termination, until the Executive commences new employment or until January 31, 2013, whichever occurs
first. In the event that the Executive’s employment terminates other than in accordance
with Section 5(a), Section 5(b), Section 5(d), Section 5(e)
or Section 5(g) of this Agreement, the Housing Allowance shall cease on the Date of
Termination. The Company will review and adjust the Housing Allowance at reasonable
intervals during the term hereof and following the final payment hereunder to true up for
federal, state and local (if any) income and employment taxes imposed on the Executive as a
result of the Housing Allowance paid hereunder; the Executive agrees that she will cooperate
by providing such information and supporting documentation as the Company may reasonably
request in connection with any such review; the Company will provide the Executive a copy of
the results of each such review and supporting calculations; and the Company and the
Executive each agrees to pay promptly such amount, if any, determined by any Company review
to be owed to the other party. The true up payment to be made by the Company to the
Executive hereunder shall be made by no later than the end of the Executive’s taxable year
immediately following the taxable year in which the Executive remits the related taxes.
(b) Bonus Compensation. For each fiscal year completed during the term hereof, the
Executive shall have the opportunity to earn an annual bonus (“Annual Bonus”) under the
executive incentive plan then applicable to the Company’s executives, as in effect from time to
time, based on target objectives determined by the Board or a designated committee thereof after
consultation with the CEO. Effective January 1, 2010, the Executive’s target bonus under the
executive incentive plan shall be Seventy Five (75%) of the Base Salary, with a potential for the
Annual Bonus to exceed target if achievement exceeds the target objectives. The actual amount of
each Annual Bonus shall be as determined by the Board or its designated committee. Any Annual
Bonus due to the Executive hereunder will be payable not later than two and one-half months
following the close of the fiscal year for which the bonus was earned or as soon as
administratively practicable thereafter, within the meaning of Section 409A of the Internal Revenue
Code and the regulations promulgated thereunder, each as amended (“Section 409A”). Except
as otherwise provided in Section 5 hereof, the Executive must be employed on the last day
of a fiscal year in order to be eligible to earn an Annual Bonus for that fiscal year.
(c) Equity Participation. Any equity awards granted to the Executive after the date
hereof shall be at the discretion of the Board of Managers of Easton Xxxx Sports, LLC (the
“Parent”) and subject to the Easton Xxxx Sports, LLC Fifth Amended and Restated Limited
Liability Company Agreement as amended from time to time (the “LLC Agreement”), to the
Easton Xxxx Sports, LLC 2006 Equity Incentive Plan, as amended from time to time (the
“Plan”), or any subsequent equity incentive plan and to any unit certificate and/or other
agreements and requirements as the Parent may adopt from time to time for those equity participants
who are employees of the Company or for all equity participants generally.
(d) Employee Benefit Plans. During the term hereof, the Executive shall be entitled
to participate in all “Employee Benefit Plans,” as that term is defined in Section 3(3) of
ERISA, including both health and welfare plans and retirement plans, from time to time in effect
for executives of the Company generally, except to the extent any of the Employee Benefit Plans is
duplicative of a benefit otherwise provided to the Executive under this Agreement. The Executive’s
participation shall be subject to the terms of the applicable Employee Benefit Plan
documents and generally applicable Company policies. The Company reserves the right and
Executive agrees to accept any modification or change in employee benefit plans so long as such
change applies to the group of participants eligible for the benefit plan.
3
(e) Car Allowance. Effective January 1, 2010, the Company shall provide the Executive
a non-accountable expense allowance for an automobile and its expenses in the amount of One
Thousand Five Hundred Dollars ($1,500.00) per month (which amount shall be subject to federal,
state and local (if any) income and employment taxes).
(f) Vacations. During the term hereof, the Executive will be entitled to four (4)
weeks of vacation per year, to be taken at such times and intervals as shall be determined by the
Executive, subject to the reasonable business needs of the Company and with the approval of the
Board or a committee thereof. Vacation shall otherwise be governed by the policies of the Company,
as in effect from time to time.
(g) Business Expenses. The Company will pay or reimburse the Executive within thirty
(30) days of the Company’s receipt of a reasonably detailed expense report for all reasonable,
customary and necessary business expenses incurred or paid by the Executive in the performance of
her duties and responsibilities hereunder, subject to any maximum annual limit and other
restrictions on such expenses set by the Board, to such reasonable substantiation, documentation
and submission deadlines as may be specified by the Company from time to time. Any such
reimbursements shall be paid no later than December 31 of the year following the year in which the
expense was incurred.
(h) Directors & Officers Insurance Coverage. During the term hereof, the Company
shall provide the Executive the same coverage under any directors and officers (“D&O”)
liability insurance which the Company elects to maintain as it provides to its other executives
and, after the termination of her employment hereunder, the same rights of indemnification and
contribution, and the same coverage under any D&O liability insurance it elects to maintain, as its
other former executives. The Company shall be under no obligation hereunder, however, to maintain
any D&O liability insurance.
5. Termination of Employment and Severance Benefits. Notwithstanding the provisions
of Section 2 hereof, the Executive’s employment hereunder shall terminate during the term
hereof under the following circumstances:
(a) Death. In the event of the Executive’s death during the term hereof, the
Executive’s employment hereunder shall immediately and automatically terminate. In such event,
promptly following the date of termination of the Executive’s employment with the Company
(hereafter, the “Date of Termination”), the Company shall pay promptly to her estate the Final
Compensation (as defined in Section 13 hereof). In addition to Final Compensation: (A)
Subject to the Board’s discretion as provided in Section 4(b), the Company will pay to the
Executive’s estate an Annual Bonus for the fiscal year in which the Date of Termination occurs,
determined by multiplying the Annual Bonus the Executive would have received had she continued
employment through the last day of that fiscal year by a fraction, the numerator of which is the
number of days she was employed during the fiscal year, through the Date of
4
Termination, and the
denominator of which is 365 (a “Final Pro-Rated Bonus”). Such Final Pro-Rated Bonus will be (i) based on an assumed bonus of no less than the Annual Bonus received by
the Executive (if any) for the fiscal year preceding the fiscal year in which the Date of
Termination occurs and (ii) payable at the time annual bonuses are paid to Company executives
generally under its executive incentive plan. (B) The Company will pay the full premium cost of
health and dental plan coverage for each of the Executive’s qualified beneficiaries for twelve (12)
months from the Date of Termination or until the date the qualified beneficiary ceases to be
eligible for coverage continuation under the federal law commonly known as “COBRA,” whichever is
less; provided, however, that in order to be eligible for the Company’s payments hereunder the
qualified beneficiary must elect in a timely manner to continue coverage under the Company’s health
and dental plans under COBRA. (C) The Company will pay the Executive’s estate on a monthly basis
until the expiration of twelve (12) months following the Date of Termination or until January 31,
2013, whichever is earlier, any Housing Allowance due to it in accordance with Section
4(a)(ii) hereof.
(b) Disability.
(i) The Company may terminate the Executive’s employment hereunder, upon notice to the
Executive, in the event that the Executive becomes disabled during her employment through
any illness, injury, accident or condition of either a physical or psychological nature and,
as a result, is unable to perform substantially all of her duties and responsibilities
hereunder, notwithstanding the provision of any reasonable accommodation (exclusive of the
leave of absence provided hereunder), for one hundred and eighty (180) days during any
period of three hundred and sixty-five (365) consecutive calendar days. In the event of
such termination, and provided that the Executive satisfies in full all of the conditions
set forth in Section 5(h) hereof, then, in addition to Final Compensation, the
Company shall provide the Executive the following: (A) The Company will pay the Executive a
Final Pro-Rated Bonus for the fiscal year on which the Date of Termination occurs, payable
at the time annual bonuses are paid to Company executives generally under its executive
incentive plan or, if later on the sixtieth (60th) day after the Date of
Termination (subject to Section 5(h) hereof). (B) The Company will pay the full
premium cost of health and dental plan coverage for Executive and her qualified
beneficiaries for twelve (12) months following the Date of Termination or, until the date
the Executive and her qualified beneficiaries cease to be eligible for coverage continuation
under COBRA, whichever is less; provided, however, that in order to be
eligible for the Company’s premium payments hereunder the Executive and each qualified
beneficiary must elect in a timely manner to continue coverage under the Company’s health
and dental plans under COBRA. (C) If the Executive fails to satisfy the requirements to
participate in the Company’s long-term disability insurance plan, the Company will continue
to pay the Executive the Base Salary from the Date of Termination until the expiration of
six (6) months thereafter or, if earlier, until the date the Executive recovers sufficiently
from her illness or injury to resume work on a substantially full-time basis (the
“Recovery Date”), with payments commencing on the sixtieth (60th) day
after the Date of Termination (subject to Section 5(h) hereof), but with the first
payment retroactive to the day immediately following the Date of Termination. (D) The
Company will pay to the Executive any Housing Allowance due to her in accordance with
Section 4(a)(ii) and this clause (D), which Housing Allowance will be
payable on a monthly basis (x) until the expiration of twelve (12) months following the
Date of Termination, (y) until the date the Executive commences new employment, or (z)
until January 31, 2013, whichever occurs first, with payments commencing on the sixtieth
(60th) day after the Date of Termination (subject to Section 5(h)
hereof), but with the first payment retroactive to the month immediately following the month
in which the Date of Termination occurred.
5
(ii) The Board may designate another employee to act in the Executive’s place during
any period of the Executive’s disability. Notwithstanding any such designation, the
Executive shall continue to receive compensation and benefits in accordance with
Sections 4(a) through 4(e) of this Agreement, subject to the terms and
conditions of any plans, policies, agreements and other documents to which reference is made
therein (collectively, the “Plan Documents”), while her disability continues, until
the Executive becomes eligible for disability income benefits under any disability plan in
which she is a participant as a result of her employment with the Company or until she
recovers sufficiently to resume her duties and responsibilities hereunder (provided she does
so within the aforesaid one hundred and eighty (180) days or such longer period as the Board
in its discretion may provide) or until the termination of her employment, whichever shall
first occur. If, while her employment hereunder continues, the Executive is receiving
disability income benefits under any such disability plan, the Executive shall not be
eligible to receive the Base Salary, but shall continue to be eligible for payments and
benefits in accordance with Sections 4(b) through 4(e) of this Agreement,
subject to the terms and conditions of the Plan Documents, until the earlier to occur of her
recovery or the termination of her employment under this Agreement. Executive agrees that
determination of disability benefits is solely determined by the insurance company providing
such benefits to executives and employees.
(iii) If any question shall arise as to whether during any period the Executive is
disabled through any illness, injury, accident or condition of either a physical or
psychological nature so as to be unable to perform substantially all of her duties and
responsibilities hereunder, the Executive may, and at the request of the Company shall,
submit to a medical examination by a physician selected by the Company to whom the Executive
or her duly appointed guardian, if any, has no reasonable objection to determine whether the
Executive is so disabled and such determination shall for the purposes of this Agreement be
conclusive of the issue. If such question shall arise and the Executive shall fail to
submit to such medical examination, the Company’s determination of the issue shall be
binding on the Executive.
(c) By the Company for Cause. The Company may terminate the Executive’s employment
hereunder for Cause at any time upon notice to the Executive setting forth in reasonable detail the
nature of such Cause. For purposes of this Agreement, “Cause” shall be limited to: (i)
Executive’s indictment, charge or conviction of, or plea of nolo contendere to, (A) a felony or (B)
any other crime involving fraud or material financial dishonesty or (C) any other crime involving
moral turpitude that might be reasonably expected to, or does, materially adversely affect the
Company or any of its Affiliates, whether that effect is to economics, to reputation or otherwise;
(ii) Executive’s gross negligence or willful misconduct with regard to the Company or any of its
Affiliates, including but not limited to its Immediate Affiliates, which has a material adverse
impact on Company or its Affiliates, whether economic or to
6
reputation or otherwise; (iii) Executive’s refusal or willful failure to substantially
perform her duties or to follow a material lawful written directive of the CEO or the Board or its
designee within the scope of the Executive’s duties hereunder which refusal or failure, in either
case, remains uncured or continues after twenty (20) days’ written notice from the Board which
references the potential for a “for Cause” termination and specifies in reasonable detail the
nature of the refusal or willful failure which must be cured; (iv) Executive’s theft, fraud or any
material act of financial dishonesty related to the Company or any of its Affiliates; (v) the
failure by the Executive to disclose any legal impediments to her employment by the Company or her
breach of any of her obligations to a former employer in connection with her employment by the
Company (e.g., her disclosure or use of proprietary confidential information of a former employer
on behalf of the Company without such former employer’s consent); provided that Executive
has been provided with written notification of the foregoing and has been given five (5) days to
present any mitigating, corrective or clarifying information to the Board; (vi) the Executive’s
breach or violation of those provisions of this Agreement setting forth the Executive’s obligations
with respect to confidentiality, non-competition and non-solicitation; or (vii) the Executive’s
breach of any other material provision of this Agreement unless corrected by the Executive within
twenty (20) days of the Company’s written notification to the Executive of such breach. In the
event of such termination, the Company shall have no obligation to the Executive under this
Agreement other than provision of Final Compensation. Any equity in the Parent held by the
Executive on the Date of Termination shall be governed by the terms of the LLC Agreement, the
applicable equity incentive plan and any applicable unit certification, agreements and other
requirements.
(d) By the Company other than for Cause. The Company may terminate the Executive’s
employment hereunder other than for Cause at any time upon notice to the Executive. In the event
of such termination, and provided that the Executive satisfies in full all of the conditions set
forth in Section 5(h) hereof, then, in addition to Final Compensation, the Executive, as
compensation for her satisfying those conditions, shall be entitled to the following:
(i) The Company shall pay the Executive a Final Pro-Rated Bonus for the fiscal year in
which the Date of Termination occurs, payable at the time annual bonuses are paid to Company
executives generally under its executive incentive plan or, if later, on the sixtieth
(60th) day after the Date of Termination (subject to Section 5(h)
hereof).
(ii) The Company shall pay the Executive compensation for the period of eighteen (18)
months following the Date of Termination, at the rate of one-twelfth of the Base Salary per
month, commencing on the sixtieth (60th) day after the Date of Termination
(subject to Section 5(h) hereof), but with the first payment being retroactive to
the day immediately following the Date of Termination.
(iii) The Company shall pay the full premium cost of health and dental plan coverage
for Executive and her qualified beneficiaries until the earliest to occur of (A) the
expiration of eighteen (18) months following the Date of Termination, (B) the date the
Executive becomes eligible for participation in health and dental plans of another employer
or (C) the date the Executive ceases to be eligible for participation under the Company’s
health and dental plans under COBRA; provided, however, that, in order to
be eligible for the Company’s payments hereunder, the Executive and each of her
qualified beneficiaries must elect in a timely manner to continue coverage under the
Company’s health and dental plans under COBRA.
7
(iv) The Company shall pay to the Executive any Housing Allowance due to her in
accordance with Section 4(a)(ii) hereof and this clause (iv), which Housing
Allowance will be payable on a monthly basis until the expiration of twelve (12) months
following the Date of Termination or until January 31, 2013, whichever occurs first, with
the first payment being made on the sixtieth (60th) day after the Date of
Termination (subject to Section 5(h) hereof), but with the first payment being
retroactive to the month immediately following the month in which the Date of Termination
occurred.
(e) By the Executive for Good Reason.
(i) The Executive may terminate her employment hereunder for Good Reason by providing
notice to the Company of the condition giving rise to the Good Reason no later than thirty
(30) days following the occurrence of the condition, by giving the Company thirty (30) days
to remedy the condition and by terminating employment for Good Reason within thirty (30)
days thereafter if the Company fails to remedy the condition.
(ii) For purposes of this Agreement, “Good Reason” shall mean, without the
Executive’s consent, the occurrence of any one or more of the following events: (A) a
material breach of this Agreement by the Company; (B) the material diminution of the
Executive’s title from that of Chief Operations Officer or of any of the Executive’s
significant duties, authority or responsibilities; (C) any reduction in or failure to pay
the Base Salary; or (D) any relocation of the Executive’s primary worksite to a site that is
more than thirty-five (35) miles from the Van Nuys Location.
(iii) In the event of termination in accordance with this Section 5(e), and
provided that the Executive satisfies in full all of the conditions set forth in Section
5(h) hereof, then, in addition to Final Compensation, the Company shall provide the
Executive the same bonus, compensation, premium payments and, if applicable, Housing
Allowance, she would have received under clauses (i), (ii), (iii),
and (iv) of Section 5(d) had her employment been terminated by the Company
other than for Cause.
(f) By the Executive Other than for Good Reason. The Executive may terminate her
employment hereunder at any time upon sixty (60) days’ notice to the Company. In the event of
termination of the Executive pursuant to this Section 5(f), the Board may elect to waive
the period of notice, or any portion thereof, and, if the Board so elects, the Company will pay the
Executive her Base Salary for the initial sixty (60) days of the notice period (or for any
remaining portion thereof). The Company’s only other obligation to the Executive hereunder shall
be for Final Compensation, if any. Any equity in the Parent held by the Executive on the Date of
Termination shall be governed by the terms of the LLC Agreement, the applicable equity incentive
plan and any applicable unit certification, agreements and other requirements.
8
(g) Termination Following a Change of Control. In the event that there occurs a
Change of Control, as defined in Section 13(b) below, and during the period commencing on
the day immediately following the occurrence of a Change of Control and ending twenty-four (24)
months thereafter the Company terminates the Executive’s employment hereunder other than for Cause
in accordance with Section 5(d) or the Executive terminates her employment hereunder for
Good Reason in accordance with Section 5(e) and provided that the Executive satisfies in
full all of the conditions set forth in Section 5(h) hereof, then, in addition to Final
Compensation, the Executive, in lieu of any payment for which she would have been eligible under
Section 5(d) or Section 5(e) hereof, will be eligible for (A) a single lump sum
payment equal to eighteen (18) months of Base Salary, without offset for other earnings; (B) a
Final Pro-Rated Bonus for the fiscal year in which the Date of Termination occurs, payable at the
time bonuses are paid generally; (C) health and dental plan premium payments (or, as applicable,
reimbursements) on the same terms and conditions applicable in the event of a termination other
than for Cause or for Good Reason prior to a Change of Control; and (D) any Housing Allowance due
to her in accordance with Section 4(a)(ii) hereof and this clause (D), which
Housing Allowance will be payable on a monthly basis until the expiration of twelve (12) months
following the Date of Termination or January 31, 2013, whichever occurs first, with the first
payment being made on the sixtieth (60th) day after the Date of Termination (subject to
Section 5(h) hereof), but with the first payment being retroactive to the month immediately
following the month in which the Date of Termination occurred.
(h) Conditions. The Executive’s eligibility to receive and retain any
“Post-Employment Compensation” (meaning any and all compensation, of any kind, provided in
accordance with the applicable provision of Section 5 of this Agreement in connection with
or following termination of employment, exclusive of Final Compensation) is subject to full
satisfaction of all of the following as well as (A) the covenant of confidentiality set forth in
Section 7 below and (B) the assignment of rights to Intellectual Property (as hereafter
defined) set forth in Section 8 below, but with the express understanding and agreement of
the parties that the Executive is free to elect not to comply with clause (i) below and is
free not to forbear from competition or solicitation as set forth in clauses (ii),
(iii) and (iv) immediately below, but that her right to any Post-Employment
Compensation under this Agreement is expressly conditioned on compliance with said clause
(i) and the forbearance required under all of said clauses (ii), (iii) and
(iv), as well as her full satisfaction of her obligations under the covenant of
confidentiality and assignment of rights to Intellectual Property (which obligations are not
optional and shall survive any termination, howsoever occurring). The conditions to receipt of
Post-Employment Compensation are as follows:
(i) The Executive’s execution and return, to the person designated by the Company to
receive notices on its behalf in accordance with Section 18 hereof, of a timely and
effective release of claims in the form attached hereto and marked Exhibit A (“Release
of Claims”), within the time period specified therein. The Release of Claims creates
legally binding obligations and the Company therefore advises the Executive to consult an
attorney before signing it. Notwithstanding any other provision of this Agreement, (A) the
Company shall not be required to make any payment of Post-Employment Compensation unless and
until a Release of Claims has been executed by such holder and delivered to the Company, and
the Release of Claims has become
9
irrevocable, all within sixty (60) days following the Date
of Termination; and (B) without limiting the generality of the foregoing, the Company shall not be or become obligated
to make any such payment unless a Release of Claims is so executed and delivered and the
Release of Claims has become irrevocable before the expiration of such 60-day period. The
foregoing provisions relating to a Release of Claims and any other provisions herein
relating to a Release of Claims are not in limitation of any claims provisions contained in
the LLC Agreement and the provisions of the LLC Agreement relating to releases shall apply
in accordance with their terms.
(ii) Forbearance by the Executive for eighteen (18) months following the Date of
Termination from competition with the business of the Company and its Immediate Affiliates
anywhere in the world where the Company or any of those Immediate Affiliates is doing
business, whether as owner, partner, investor, consultant, agent, employee, co-venturer or
otherwise. Specifically, but without limiting the foregoing, in order to satisfy this
condition, the Executive must forbear from engaging in any activity that is competitive, or
is in preparation to engage in competition, with the business of the Company and its
Immediate Affiliates and further the Executive must forbear from working or providing
services, in any capacity, whether as an employee, independent contractor or otherwise,
whether with or without compensation, for or to any person or entity engaged in the business
of the Company and its Immediate Affiliates. The business of the Company and its Affiliates
is sporting hard goods. For illustrative purposes only, competitors of the Company and its
Immediate Affiliates on the date of this Agreement include Amer Sports Corporation and
Jarden Corporation and their respective subsidiaries. The foregoing condition, however,
shall not fail to be met solely due to the Executive’s passive ownership of less than 3% of
the equity securities of any publicly traded company.
(iii) Forbearance by the Executive for eighteen (18) months following the Date of
Termination from any direct or indirect solicitation or encouragement of any of the
Customers of the Company or any of its Immediate Affiliates to terminate or diminish their
relationship with the Company or any of its Immediate Affiliates and from any direct or
indirect solicitation or encouragement of any of the Customers or Prospective Customers of
the Company or any of its Immediate Affiliates to conduct with herself or any other Person
(as defined in Section 13 hereof) any business or activity which such Customer or
Prospective Customer conducts or could conduct with the Company or any of its Immediate
Affiliates. For purposes of this Section 5(h), a Customer is a person or entity
which was such at any time during the eighteen (18) months prior to the Date of Termination
and a Potential Customer is a Person contacted by the Company or any of its Immediate
Affiliates to become such at any time within eighteen (18) months prior to the Date of
Termination other than by general advertisement, provided, in each case that the Executive
had contact with such Customer or Potential Customer through her employment or her other
associations with the Company or any of its Immediate Affiliates or had access to
Confidential Information that would assist in her solicitation of such Customer or Potential
Customer in competition with the Company or any of its Immediate Affiliates.
10
(iv) Forbearance by the Executive for eighteen (18) months following the Date of
Termination from directly or indirectly hiring or otherwise engaging the
services of any employee, independent contractor or other agent providing services to
the Company or any of its Immediate Affiliates and from soliciting any such employee,
independent contractor or agent to terminate or diminish his/her/its relationship with the
Company or any of its Immediate Affiliates. For purposes of this Section 5(h), an
employee, independent contractor or agent means any Person who was performing services for
the Company or any of its Immediate Affiliates in such capacity at any time during the
twelve (12) months immediately preceding the Date of Termination.
(i) Timing of Payments. Notwithstanding anything to the contrary in this Agreement,
if at the time of the Executive’s separation from service the Executive is a “specified employee,”
as hereinafter defined, no payment shall be made to the Executive before the date which is six (6)
months after she separates from service (within the meaning of Section 409A), except to the extent
of amounts that do not constitute a deferral of compensation within the meaning of Treasury
Regulations 1.409A-1(b) (including without limitation by reason of the safe harbor set forth in
1.409A-1(b)(9)(iii)), benefits which qualify as excepted welfare benefits pursuant to Section 409A,
or other amounts or benefits that are not subject to the requirements of Section 409A. For
purposes of this Section, “separation from service” shall be determined in a manner
consistent with subsection (a)(2)(A)(i) of Section 409A and the term “specified employee”
shall mean an individual determined by the Company to be a specified employee as defined in
subsection (a)(2)(B)(i) of Section 409A.
6. Effect of Termination. The provisions of this Section 6 shall apply to any
termination of the Executive’s employment under this Agreement, whether pursuant to Section
5 or otherwise.
(a) Provision by the Company of Final Compensation, if any, to which the Executive is entitled
and Post-Employment Compensation, if any, which the Executive earns under the applicable
termination provision of Section 5 shall constitute the entire obligation of the Company to
the Executive hereunder following termination of her employment by the Company. The Executive
shall promptly give the Company notice of all facts necessary for the Company to determine the
amount and duration of its obligations in connection with any termination pursuant to Section
5 hereof.
(b) Except for health and dental plan participation continued in accordance with COBRA, the
Executive’s participation in Employee Benefit Plans shall terminate pursuant to the terms of the
applicable Plan Documents based on the Date of Termination without regard to any Post-Employment
Compensation earned by the Executive following the Date of Termination.
(c) Provisions of this Agreement shall survive any termination if so provided herein or if
necessary or desirable to accomplish the purposes of other surviving provisions, including without
limitation the conditions to receipt of Post-Employment Compensation set forth in Section
5(h) and the obligations of the Executive under Sections 7 and 8 hereof. The
Executive recognizes that, except as expressly provided in Section 5(d) and 5(e)
with respect to Post-Employment Compensation earned in accordance with Section 5(h), or as
expressly provided in Section 5(f) with respect to Base Salary for any notice period
waived, no compensation is earned after termination of employment.
11
7. Confidential Information.
(a) The Executive acknowledges that the Company and its Affiliates continually develop
Confidential Information (as defined in Section 13 hereof); that the Executive may develop
Confidential Information for the Company or its Affiliates; and that the Executive may learn of
Confidential Information during the course of employment. The Executive will comply with the
policies and procedures of the Company and its Affiliates for protecting Confidential Information
and shall not disclose to any Person or use, other than as required by applicable law or for the
proper performance of her duties and responsibilities to the Company and its Affiliates, any
Confidential Information obtained by the Executive incident to her employment or other association
with the Company or any of its Affiliates. The Executive understands that this restriction shall
continue to apply after her employment terminates, regardless of the reason for such termination.
(b) All documents, records, tapes and other media of every kind and description relating to
the business, present or otherwise, of the Company or any of its Affiliates and any copies, in
whole or in part, thereof (the “Documents”), whether or not prepared by the Executive,
shall be the sole and exclusive property of the Company and its Affiliates. The Executive shall
safeguard all Documents and shall surrender to the Company at the time her employment terminates,
or at such earlier time or times as the CEO or the Board or its designee may specify, all Documents
and all other property of the Company and its Affiliates then in the Executive’s possession or
control.
8. Assignment of Rights to Intellectual Property. The Executive shall promptly and fully
disclose all Intellectual Property (as defined in Section 13 hereof) to the Company. The
Executive hereby assigns and agrees to assign to the Company (or as otherwise directed by the
Company) the Executive’s full right, title and interest in and to all Intellectual Property. The
Executive agrees to execute any and all applications for domestic and foreign patents, copyrights
or other proprietary rights and to do such other acts (including without limitation the execution
and delivery of instruments of further assurance or confirmation) requested by the Company to
assign the Intellectual Property to the Company and to permit the Company to enforce any patents,
copyrights or other proprietary rights to the Intellectual Property. The Executive will not charge
the Company for time spent in complying with these obligations. The Executive acknowledges her
understanding that any provision of this Agreement requiring her to assign rights to Intellectual
Property does not apply to any invention that qualifies under California Labor Code §2870, which
was reproduced in Exhibit B to the Original Agreement (“Written Notification to the
Employee”), attached hereto, which the Executive here acknowledges that she has received. All
copyrightable works that the Executive creates during the course of her employment by the Company
and which pertain to the business of the Company or any of its Affiliates or are suggested by any
work performed by the Executive for the Company or any of its Affiliates or make use of
Confidential Information shall be considered “work made for hire” and, upon creation, shall be
owned exclusively by the Company or its applicable Affiliate. Further, the Executive hereby
waives, expressly and irrevocably, any and all moral rights she may have as an author, whether
arising under the copyright laws of the United States or any other jurisdiction or at common law or
otherwise, with respect to any copyrighted works prepared by the Executive in the course of her
employment, including without limitation the right to attribution of authorship, the right to
restrain any distortion, mutilation or other
modification of any such work and the right to prohibit any use of any such work in
association with a product, service, cause or institution that might be prejudicial to the
Company’s reputation.
12
9. Restricted Activities. The Executive agrees that certain restrictions on her
activities during her employment are necessary to protect the goodwill, Confidential Information
and other legitimate interests of the Company and its Affiliates:
(a) While the Executive is employed by the Company, the Executive shall not, directly or
indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or
otherwise, compete with the Company or any of its Affiliates anywhere in the world or undertake any
planning for competition with the Company or any of its Affiliates. Specifically, but without
limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is
directly or indirectly competitive or potentially competitive with the business of the Company or
any of its Affiliates as conducted or under consideration at any time during the Executive’s
employment or to provide services in any capacity to a Person which is a competitor of the Company
or any of its Affiliates.
(b) The Executive agrees that, while she is employed by the Company, and excluding any
activities undertaken on behalf of the Company or any of its Affiliates in the course of her
duties, she will not hire or attempt to hire any employee of the Company or any of its Affiliates;
assist in such hiring by any Person; encourage any such employee to terminate her or her
relationship with the Company or any of its Affiliates; or solicit or encourage any customer of the
Company or any of its Affiliates to terminate or diminish its relationship with them; or solicit or
encourage any customer or potential customer of the Company or any of its Affiliates to conduct
with any Person any business or activity which such customer or potential customer conducts or
could conduct with the Company or any of its Affiliates.
(c) The Executive agrees that during her employment by the Company she shall not publish any
work that disparages the Company or any of its Affiliates, their management or their business or
the Products.
10. Enforcement of Covenants. The Executive acknowledges that she has carefully read and
considered all the terms and conditions of this Agreement, including the restraints imposed upon
her pursuant to Sections 7, 8 and 9 hereof. The Executive agrees that
those restraints are necessary for the reasonable and proper protection of the Company and its
Affiliates and that each and every one of the restraints is reasonable in respect to subject
matter, length of time and geographic area. The Executive further acknowledges that, were she to
breach any of the covenants contained in Section 7, 8 or 9 hereof, the
damage to the Company and its Affiliates would be irreparable. The Executive therefore agrees that
the Company, in addition to any other remedies available to it, shall be entitled to preliminary
and permanent injunctive relief against any breach or threatened breach by the Executive of any of
said covenants, without having to post bond. The parties further agree that, in the event that any
provision of Section 7, 8 or 9 hereof shall be determined by any court of
competent jurisdiction to be unenforceable by reason of its being extended over too great a time,
too large a geographic area or too great a range of activities, such provision shall be deemed to
be modified to permit its enforcement to the maximum extent permitted by law.
13
11. Conflicting Agreements. The Executive hereby represents and warrants that the
execution of this Agreement and the performance of her obligations hereunder will not breach or be
in conflict with any other agreement to which the Executive is a party or is bound and that the
Executive is not now subject to any covenants against competition or similar covenants or any court
order or other legal obligation that would affect the performance of her obligations hereunder.
The Executive will not disclose to or use on behalf of the Company any proprietary information of
her former employer or any other Person without such Person’s consent.
12. Indemnification. The Company shall indemnify the Executive to the fullest extent
permitted by applicable law. Executive’s right to indemnification shall include the right to be
paid by the Company the expenses incurred in defending any covered proceeding in advance of its
final disposition, provided that Executive shall repay any advanced amounts if it shall be
ultimately determined that the Executive is not entitled to be indemnified for such expenses under
this Agreement or otherwise (whether because of Executive’s breach of this Agreement or for
Executive’s conduct constituting Cause hereunder). The Executive agrees promptly to notify the
Company of any actual or threatened claim arising out of or as a result of her employment or
offices with the Company or any of its Affiliates.
13. Definitions. Words or phrases which are initially capitalized or are within quotation
marks shall have the meanings provided in this Section and as provided elsewhere herein. For
purposes of this Agreement, the following definitions apply:
(a) “Affiliates” means all persons and entities directly or indirectly controlling,
controlled by or under common control with the entity specified, where control may be by management
authority or equity interest.
(b) “Change of Control” shall mean the occurrence of (i) any change in the ownership
of the capital equity of the Parent, if, immediately after giving effect thereto, (A) the Investors
(as defined below) and their Affiliates will hold, directly or indirectly, less than 50% of the
number of Common Units held by the Investors and their Affiliates as of the date immediately prior
to such Change of Control, or (B) any Person (as defined within this paragraph) other than the
Investors and their Affiliates will hold, directly or indirectly, greater than 50% of the number of
outstanding Common Units of the Parent; or (ii) any sale or other disposition of all or
substantially all of the assets of the Parent (including, without limitation, by way of a merger or
consolidation or through the sale of all or substantially all of the stock or membership interests
of its subsidiaries or sale of all or substantially all of the assets of the Parent and its direct
and indirect subsidiaries, taken as a whole) to another Person (the “Change of Control
Transferee”) if, immediately after giving effect thereto, any Person (or group of Persons
acting in concert) other than the Investors and their Affiliates will have the power to elect a
majority of the members of the board of managers or board of directors (or other similar governing
body) of the Change of Control Transferee. For purposes of this Section 13(b): A
“Person” shall have the meaning ascribed to that term in section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934 and “Investors” shall mean all Unit-holders of the
Parent as of the date of this Agreement, including without limitation Fenway Partners, Inc.,
American Capital Strategies Ltd., Antares Capital Corporation, Xxxx Sports Holdings, LLC, Xxxx
Sports 2001, LLC, Xxxx Sports 2001 Coinvestors, LLC and Xxxx Sports 2001 Investments, LLC.
14
(c) “Confidential Information” shall mean any and all information of the Company and
its Affiliates that is not generally known by those with whom the Company or any of its Affiliates
competes or does business, or with whom the Company or any of its Affiliates plans to compete or do
business, including without limitation (i) information related to the Products, technical data,
methods, processes, know-how and inventions of the Company and its Affiliates, (ii) the
development, research, testing, marketing and financial activities and strategic plans of the
Company and its Affiliates, (iii) the manner in which they operate, (iv) their costs and sources of
supply, (v) the identity and special needs of the customers and prospective customers of the
Company and its Affiliates and (vi) the persons and entities with whom the Company and its
Affiliates have business relationships and the nature and substance of those relationships.
Confidential Information also includes any information that the Company or any of its Affiliates
may receive or has received from customers, subcontractors, suppliers or others, with any
understanding, express or implied, that the information would not be disclosed. Confidential
Information does not include information that enters the public domain, other than through a breach
by the Executive or another Person of an obligation of confidentiality to the Company or one of its
Affiliates.
(d) “Final Compensation” means (i) Base Salary earned but not paid through the Date of
Termination, (ii) pay at the final rate of the Base Salary for any vacation earned but not used
through the Date of Termination, (iii) any Annual Bonus earned but unpaid for the fiscal year
preceding that in which the Date of Termination occurs and (iv) any business expenses incurred by
the Executive but un-reimbursed on the Date of Termination, provided that such expenses and
required substantiation and documentation are submitted prior to, or within sixty (60) days
following, the Date of Termination and that such expenses are reimbursable under Company policy.
(e) “Immediate Affiliates” of the Company are its direct and indirect subsidiaries,
its direct and indirect parents and their other direct and indirect subsidiaries (excluding the
Company itself).
(f) “Intellectual Property” means any invention, formula, process, discovery,
development, design, innovation or improvement (whether or not patentable or registrable under
copyright statutes) made, conceived, or first actually reduced to practice by the Executive solely
or jointly with others, during her employment by the Company; provided, however,
that, as used in this Agreement and as provided by Section 2870 of the California Labor Code, the
term “Intellectual Property” shall not apply to any invention that the Executive develops on her
own time, without using the equipment, supplies, facilities or trade secret information of the
Company or any of its Immediate Affiliates to which the Executive has access as a result of her
employment, unless such invention relates at the time of conception or reduction to practice of the
invention (i) to the business of the Company or such Immediate Affiliate or (ii) to the actual or
demonstrably anticipated research or development of the Company or of any Immediate Affiliates to
which the Executive has access as a result of her employment or (iii) results from any work
performed by the Executive for the Company.
(g) Other than for purposes of Section 13(b), above, “Person” means an
individual, a corporation, a limited liability company, an association, a partnership, an estate, a
trust and any other entity or organization, other than the Company or any of its Affiliates.
15
(h) “Products” means all products planned, researched, developed, tested,
manufactured, sold, licensed, leased or otherwise distributed or put into use by the Company or any
of its Affiliates, together with all services provided or planned by the Company or any of its
Affiliates, during the Executive’s employment.
14. Withholding. Except as otherwise provided herein, all payments made by the Company
under this Agreement shall be reduced by any tax or other amounts required to be withheld by the
Company under applicable law.
15. Assignment. Neither the Company nor the Executive may make any assignment of this
Agreement or any interest herein, by operation of law or otherwise, without the prior written
consent of the other; provided, however, that the Company may assign its rights and
obligations under this Agreement without the consent of the Executive in the event the Company
shall hereafter effect a corporate reorganization, consolidate with, or merge into, any Person or
transfer all or substantially all of its properties or assets to any Person. This Agreement shall
inure to the benefit of and be binding upon the Company and the Executive, their respective
successors, executors, administrators, heirs and permitted assigns.
16. Severability. If any portion or provision of this Agreement shall to any extent be
declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this
Agreement, or the application of such portion or provision in circumstances other than those as to
which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion
and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by
law.
17. Waiver. No waiver of any provision hereof shall be effective unless made in writing
and signed by the waiving party. The failure of either party to require the performance of any
term or obligation of this Agreement, or the waiver by either party of any breach of this
Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a
waiver of any subsequent breach.
18. Notices. Any and all notices, requests, demands and other communications provided for
by this Agreement shall be in writing and shall be effective when delivered in person, consigned to
a reputable national courier for next day or next business day delivery or deposited in the United
States mail, postage prepaid, registered or certified, and addressed to the Executive at her last
known address on the books of the Company or, in the case of the Company, to it c/o Xxxxxxx X.
Xxxxxx, Fenway Partners, LLC, 000 X. 00xx Xx., 00xx Xxxxx, Xxx Xxxx, XX 00000 or to such other
address as either party may specify by notice to the other actually received.
19. Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all
prior agreements, whether written or oral between the Company and the Executive with respect to
the Executive’s employment and all related matters.
20. Amendment. This Agreement may be amended or modified only by a written instrument
signed by the Executive and by an expressly authorized representative of the Board.
16
21. Headings. The headings and captions in this Agreement are for convenience only and in
no way define or describe the scope or content of any provision of this Agreement.
22. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be an original and all of which together shall constitute one and the same instrument.
23. Governing Law. This is a California contract and shall be construed and enforced
under and be governed in all respects by the laws of the State of California, without regard to the
conflict of laws principles thereof, and, for the avoidance of doubt, shall include both the
statutory and common law of California, except to the extent preempted by federal law.
[Remainder of page intentionally left blank. Signature page follows immediately.]
17
IN WITNESS WHEREOF, this Agreement has been executed by the Company, by its duly authorized
representative, and by the Executive, as of the date first above written.
| THE COMPANY: XXXXXX-XXXX SPORTS, INC. |
||||
| By: | /s/ Xxxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxx | |||
| Title: | Senior Vice President-Human Resources | |||
| THE EXECUTIVE: |
||||
| /s/ Xxxxx X. Xxxxx | ||||
| Xxxxx X. Xxxxx | ||||
18
EXHIBIT A
RELEASE OF CLAIMS
FOR AND IN CONSIDERATION OF the Post-Employment Compensation that I am eligible to earn
following the termination of my employment, as that term is defined in the amended and restated
employment agreement between me and Xxxxxx-Xxxx Sports, Inc. (the “Company”) dated as of
the [ ] day of March, 2010 (the “Agreement”), which is conditioned, inter alia, on my
signing this Release of Claims and to which I am not otherwise entitled, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, I, on my own
behalf and on behalf of my heirs, executors, administrators, beneficiaries, representatives and
assigns, and all others connected with or claiming through me, hereby release and forever discharge
the Company and its Affiliates (as that term is defined in the Agreement) and all of their
respective past, present and future officers, directors, trustees, shareholders, employees, agents,
general and limited partners, members, managers, joint venturers, representatives, successors and
assigns, and all others connected with any of them (all of the foregoing, collectively, the
“Released”), both individually and in their official capacities, from any and all causes of
action, rights and claims of any type or description, known or unknown, which I have had in the
past, now have, or might now have, through the date of my signing of this Release of Claims,
including without limitation any causes of action, rights or claims in any way resulting from,
arising out of or connected with my employment by the Company or any of its Affiliates or the
termination of that employment or pursuant to any federal, state or local law, regulation or other
requirement, including without limitation Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, the Americans with Disabilities Act and the fair employment
practices laws of the state or states in which I have been employed by the Company or any of its
Affiliates, each as amended from time to time, (all of the foregoing, in the aggregate,
“Claims”).
In signing this Release of Claims, I expressly waive and relinquish all rights and benefits
afforded by Section 1542 of the Civil Code of the State of California, and do so understanding and
acknowledging the significance of such specific waiver of Section 1542, which Section states as
follows:
A general release does not extend to claims which the creditor does not know
or suspect to exist in her favor at the time of executing the release, which
if known by her must have materially affected her settlement with the
debtor.
Thus, notwithstanding the provisions of Section 1542, and for the purpose of implementing a
full and complete release and discharge of the Released, I expressly acknowledge that this Release
of Claims is intended to include in its effect, without limitation, all Claims which I do not know
or suspect to exist in my favor at the time of execution hereof, and that this Release of Claims
contemplates the extinguishment of all such Claims.
19
Excluded from the scope of this Release of Claims is (i) any claim arising under the terms of
the Agreement after the effective date of this Release of Claims (ii) any right of
indemnification by or contribution from the Company that I am entitled to, including without
limitation any such right pursuant to the Articles of Incorporation or By-Laws of the Company or
any of its Immediate Affiliates (as that term is defined in the Agreement), and (iii) any right to
payment under the LLC Agreement (as that term is defined in the Agreement).
In signing this Release of Claims, I acknowledge my understanding that I may not sign it prior
to the termination of my employment, but that I may consider the terms of this Release of Claims
for up to twenty-one (21) days (or such longer period as the Company may specify) from the date my
employment with the Company terminates, before signing, dating and returning this Release of Claims
to the Company c/o Xxxxxxx X. Xxxxxx, Fenway Partners, LLC, 000 X. 00xx Xx., 00xx Xxxxx, Xxx Xxxx,
XX 00000, or to such other address as the Company may specify. I also acknowledge that I am
advised by the Company and its Affiliates to seek the advice of an attorney prior to signing this
Release of Claims; that I have had sufficient time to consider this Release of Claims and to
consult with an attorney, if I wished to do so, or to consult with any other person of my choosing
before signing; and that I am signing this Release of Claims voluntarily and with a full
understanding of its terms.
I further acknowledge that, in signing this Release of Claims, I have not relied on any
promises or representations, express or implied, that are not set forth expressly in the Agreement.
I understand that I may revoke this Release of Claims at any time within seven (7) days of the
date of my signing by written notice to the Company c/o Xxxxxxx X. Xxxxxx, Fenway Partners, LLC,
000 X. 00xx Xx., 00xx Xxxxx, Xxx Xxxx, XX 00000, or to such other address as the Company may
specify and that this Release of Claims will take effect only upon the expiration of such seven-day
revocation period and only if I have not timely revoked it.
Intending to be legally bound, I have signed this Release of Claims as of the date written
below.
| Signature: | ||||||
| Date Signed: | ||||||
20
