EXHIBIT 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into this
_____ day of April, 1996, by and between SPORTS & RECREATION, INC., a Delaware
corporation (hereinafter called "Employer"), and XXXXXXX X. XXXXXXXX
(hereinafter called "Employee").
WHEREAS, Employer desires to employ Employee, and Employee desires to
accept his employment, subject to the terms and conditions contained herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound thereby, agree as follows:
WITNESSETH:
1. EMPLOYMENT. Employer hereby agrees to employ Employee, and Employee
hereby accepts employment with Employer upon the terms and conditions
hereinafter set forth (such period of time being hereinafter referred to as the
"Initial Term").
2. TERM.
(a) INITIAL TERM. Subject to the provisions of resignation and
termination as hereinafter provided, the term of this Agreement shall
commence on April 15, 1996 (the "Start Date") and shall terminate on April
14, 1998.
(b) AUTOMATIC RENEWAL. Subject to the termination provisions hereof,
on each anniversary of the Start Date, this Agreement shall automatically
renew for an additional one (1) year term, unless either party has
provided to the other party hereto, prior to the February 1 immediately
preceding such anniversary of the Start Date, written notice of an
intention not to renew this Agreement.
3. DUTIES. The Employee is engaged as the Employer's Executive Vice
President and Chief Financial Officer and shall have such duties,
responsibilities and accommodations as the Employer's Board of Directors and
Chief Executive Officer shall designate to that position, together with such
other duties as are consistent with such position and may be assigned to him,
from time to time, by the Chief Executive Officer of Employer.
4. EXTENT OF SERVICE. Employee shall exclusively devote his entire working
time, energy and attention to his duties in connection with Employer, provided
that the Employee may (i) make passive investments in entities which are not
publicly traded and which are not competitive with the company or suppliers of
goods or services to Employee, (ii) own up to 2% of the outstanding equity
securities of any entity which is publicly traded on a
national securities exchange or on the Nasdaq Stock Market, and (iii) with the
approval of the Chief Executive Officer, serve on boards for or engage in
activities of a community, civic or public interest nature.
5. COMPENSATION AND BENEFITS. During the term of this Agreement, Employer
shall pay to Employee the following compensation, which shall be payable in
accordance with Employer's normal payroll policies applicable to all of
Employer's employees:
(a) BASE SALARY. During the period from the Start Date through April
14, 1999, an annual salary of no less than $180,000 U.S. (the "Annual Base
Salary" or "Base Salary"), provided that the Board of Directors in its
sole discretion may increase such Annual Base Salary at any time during
the term of this Agreement and upon such increase the increased salary
shall become the new Annual Base Salary from the effective date of such
increase forward;
(b) BONUS. In addition to the Annual Base Salary, the Employee shall
be entitled to such bonus or bonuses as the Board of Directors shall from
time to time determine; provided, however, that the bonus for the first
year of this agreement will be no less than $90,000 (the "Minimum First
Year Bonus") paid on a pro rata basis with each regular pay period
commencing on the first pay period after the Start Date. Subject to
agreement between the employee, the Chief Executive Officer and the
compensation committee of the Board of Directors as to the target
performance criteria for the year (the "Annual Target Performance
Criteria"), bonuses after the first year will be payable based on
attainment of such Annual Target Performance Criteria for Employee's
position.
(c) STOCK OPTION GRANTS FOR 1996. In addition to the Base Salary and bonus
set forth in subsections (a) and (b) above, the Employer shall grant,
effective as of the same date as this Agreement, stock options to purchase
150,000 shares of the Employer's stock (the "1996 Option") of which
options to purchase 54,236 shares of Employer's stock is intended to be
Incentive Stock Options ("ISOs") as that term is defined in Section 422 of
the Internal Revenue Code of 1986, as amended (the "Code") to the extent
the aggregate exercise price of the common stock of Employer for which
such options are exercisable for the first time during any calendar year
equals or is less than $100,000.00, with the balance of such options which
become exercisable for the first time in any calendar year being
designated as nonqualified options. Such stock options shall be granted to
Employee in accordance with Employer's 1989 Stock Incentive Plan, will be
exercisable for ten years from the date of grant and the exercise price
will be $6.875 per share (which was the closing price of the Employer's
shares on the New York Stock Exchange on the day prior to the day Employee
began employment with the Employer). The 1996 Options will vest as
follows: options
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to purchase 60,000 shares will vest on April 14, 1998, and additional
options to purchase 30,000 shares will vest on April 14th of each year
following 1998 ending with April 14, 2001. Pursuant to Internal Revenue
Code Section 422(d), the value of shares of employer stock that can be
exercised for the first time by a taxpayer in any one year under an ISO
cannot exceed $100,000, based on the fair market value of the stock on the
date of grant. Consequently, the breakdown between ISOs and NQSOs for this
grant is as follows:
1998 1999 2000 2001 TOTAL
------ ------ ------ ------ -------
ISOs 13,559 13,559 13,559 13,559 54,236
NQSOs 46,441 16,441 16,441 16,441 95,764
------ ------ ------ ------ -------
60,000 30,000 30,000 30,000 150,000
====== ====== ====== ====== =======
(d) STOCK OPTION GRANTS FOR 1997 THROUGH 1999. In addition to the 1996
Options, the Employer agrees that if Employee remains employed by Employer
on such date, it will grant to Employee options to purchase additional
shares of its common stock as follows:
(i) on April 15, 1997, and effective on such date (the "1997 Grant
Date"), an option to purchase an aggregate of thirty thousand
(30,000) shares of common stock of the Employer at an exercise
price per share equal to the fair market value of a share of such
stock as determined under the terms of the plan pursuant to which
the option is granted, vesting as follows: options to purchase
12,000 shares shall vest on April 14, 1999; options to purchase an
additional 6,000 shares shall vest on April 14, 2000; options to
purchase an additional 6,000 shares shall vest on April 14, 2001;
and options to purchase an additional 6,000 shares shall vest on
April 14, 2002;
(ii) on April 15, 1998, and effective on such date (the "1998 Grant
Date") an option to purchase an aggregate of thirty thousand
(30,000) shares of common stock of the Employer at an exercise
price per share equal to the fair market value of a share of such
stock as determined under the terms of the plan pursuant to which
the option is granted, vesting as follows: options to purchase
12,000 shares shall vest on April 14, 2000; options to purchase an
additional 6,000 shares shall vest on April 14, 2001; options to
purchase an additional 6,000 shares shall vest on April 14, 2002;
and options to purchase an additional 6,000 shares shall vest on
April 14, 2003;
(iii) as many options as possible up to a maximum of one-half of
each grant under this subparagraph 5(d) is intended to be ISOs, and
the balance is intended to be nonqualified stock options, with the
precise number of
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those that are ISOs to be determined as follows: to the extent the
aggregate exercise price of the Employer's Common Stock for which
ISOs granted to Employee are exercisable for the first time during
any calendar year exceeds $100,000, then the balance of options
which become exercisable for the first time during such calendar
year shall be non-qualified stock options.
(e) OPTIONS GRANTED SUBJECT TO PLAN AVAILABILITY. The parties hereto
acknowledge that there currently may not be a sufficient number of shares
of the Employer's Common Stock reserved under the 1989 Plan to cover the
options which the Employer has agreed to grant to Employer under this
Agreement. The Employer hereby agrees to increase the number of shares
available under the 1989 Plan to cover such options or to adopt one, or
more than one, new stock option plan that has a sufficient number of
shares to cover such options on a timely basis and to take all reasonable
steps to qualify such plan and such options for an exemption under Rule
16b-3 of Section 16(b) of the Securities Exchange Act of 1934, as amended,
or any successor to such rule.
(f) STOCK PURCHASE ASSISTANCE PROGRAM. As an additional benefit, until
June 30, the Employer will sell to the Employee up to 30,545 shares of the
Employer's common stock at a purchase price equal to $6.875 per share,
which is the closing price of Employer's shares on the day prior to the
Start Date. For each $1.00, up to seventy thousand dollars ($70,000), that
Employee spends to purchase Employer Common Stock from the Employer
pursuant to this Section 5(f), the Employer will loan Employee $2.00, up
to $140,000, to purchase the shares of Common Stock. Such loan shall be
represented by a promissory note, in substantially the same form as
Exhibit B attached hereto, providing for annual payments of interest at a
per annum rate equal, at the date such note is issued, to the most
recently published "federal long-term rate" within the meaning of Section
1274(d)(1)(A) of the Code, with principal and all accrued but unpaid
interest due on the fifth anniversary date of the execution and delivery
of such note. Employee understands and agrees that the issuance of such
shares will not be registered under the Securities Act of 1933, as amended
(the "Securities Act"), will be "Restricted Shares" within the meaning of
Rule 144(d) of the Securities Exchange Commission, and will be issued in
reliance upon an exemption from such registration set forth in Section
4(2) of the Securities Act in reliance upon the Employee's representation
that he is purchasing such shares for the purpose of investment and not
with a view to or intent to distribute them to or hold them on behalf of
any other person. According such shares will be issued with a legend
affixed thereto as follows:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES LAWS
OF THE UNITED STATES, THE
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STATE OF FLORIDA, OR ANY OTHER STATE OR COUNTRY. THEY HAVE BEEN
ACQUIRED FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO
DISTRIBUTION OR RESALE AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER FEDERAL AND APPLICABLE STATE AND FOREIGN SECURITIES LAWS OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS
NOT REQUIRED.
The Employee agrees that he shall make in writing such investment
representations as the Employer requires to comply with the provisions of
section (d) of Rule 144 under the Securities Act or any amended or
successor Rule covering the same subject matter ("Rule 144"). The Employer
agrees that it will promptly, upon request by Employee, remove the legends
referred to above from the certificate or certificates representing the
Restricted Shares at such time as the Restricted Shares are no longer
subject to either the restrictions contained herein or the holding period
provisions of Rule 144(d); provided that in connection with any such
request Employee agrees to make such filings and observe any other
relevant limitations under such Rule and any state securities laws that
may be required in connection with any sale of such Restricted Shares
thereafter.
(f) OTHER BENEFIT PROGRAMS. During the term of this Agreement, Employee
shall be entitled to participate in Employer's executive benefit program
available for senior executive officers as it may exist from time to time.
6. TERMINATION.
(a) TERMINATION WITH OR WITHOUT CAUSE. The foregoing
notwithstanding, this Agreement is not to be considered an agreement for a
fixed term or as a guarantee of continuing employment. Accordingly,
subject to the provisions of Sections 7 and 8 hereof, Employee's
employment may be terminated by Employer with or without Cause (as
hereinafter defined) upon immediate written notice to Employee at any time
during the term of this Agreement. In the event that such termination is
for Cause, Employee shall be paid the bi-weekly portion of his annual base
pay then due through the date of such termination and shall be entitled to
no other benefits or salary from that date forward. Additionally,
Employee's employment shall automatically terminate upon his death or upon
a determination that he is permanently disabled. Employee may resign as an
officer and, if applicable, director and terminate his employment at any
time upon 30 days' written notice to Employer. Upon any such termination,
Employee shall immediately return any and all property and records
belonging to Employer which are in Employee's possession and shall vacate
Employer's offices in a prompt and professional manner. In addition to the
foregoing, upon termination of Employee's employment with
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Employer for any reason, Employee shall resign immediately as an officer
and, if applicable, director of Employer and any subsidiary of Employer
unless Employer indicates in writing to Employee its desire that Employee
retain any such position. The foregoing notwithstanding, in the event of
Employee's termination whether or not for Cause, Employee shall be
entitled to receive all benefits which are accrued, vested and earned up
to the termination date under the terms of any existing benefit plan such
as the vested balance of the employee's account under any retirement or
deferred compensation plan and any benefits which are legally required to
be provided after termination such as COBRA benefits (the "Legally Earned
or Required Benefits").
(b) TRANSITION SERVICES. Upon a termination of employment, whether
by Employee or by Employer, with or without Cause, Employee shall
cooperate with Employer in order to insure an orderly and businesslike
transfer of Employee's duties to other personnel designated by the
Employer. Additionally, Employee shall make himself available at
reasonable times upon reasonable notice to consult with Employer and
assist Employer with respect to (i) any matters for which Employer
requests such assistance for a period of ninety (90) days after such
termination, and (ii) any litigation or governmental or quasi-governmental
agency investigation which may be pending at the time of termination or
implemented after termination which relates to any period during which
Employee was employed by Employer for the period during which severance or
Change of Control (as hereinafter defined) benefits are being paid;
provided, that, in either case, Employer shall reimburse Employee for any
reasonable out-of-pocket expense incurred by Employee at Employer's
request in connection with such consultation or assistance, and with
respect to (ii), Employer shall schedule such consultation at times which
will not interfere with any subsequent employment which Employee has
obtained and such consultation shall not require more than an average of
two days per month without Employee's consent. A breach of the foregoing
provisions by Employee shall be deemed to be a material breach of this
Agreement.
7. SEVERANCE OR CHANGE OF CONTROL BENEFITS. If during the term of this
Agreement, (a) Employee's employment is terminated (i) by the Employer other
than for Cause, as defined below, (ii) by the Employee as a result of the
occurrence of a Constructive Termination Event, as defined below, which has not
been cured by the Employer within 30 days of receipt of written notice from the
Employee that such event has occurred, or (iii) as a result of the Employee's
death or Permanent Disability, as defined below, or (b) during the one year
period after the occurrence of a Change of Control, as defined below, either
Employee terminates his employment or has his employment terminated for any
reason, other than one involving theft or misappropriation of Employer funds,
then, upon the occurrence of such termination, Employer shall pay to the
Employee (or the Employee's estate in the event of death)
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in satisfaction of and in lieu of any and all claims which Employee may have
against Employer for salary and benefits under this Agreement, an amount equal
to the greater of (i) the Base Salary remaining to be paid throughout the
unexpired term of this agreement assuming that the agreement is not renewed
pursuant to the provisions of Section 2(b) above or (ii) the Employee's annual
compensation (defined for purposes of this section as the total of Employee's
Base Salary and Bonus for the twelve months preceding the date of such
termination; provided, however, Employer shall not be obligated to pay any
severance or Change of Control benefit until Employee (or Employee's personal
representative in the event of Employee's death or legal guardian in the event
of permanent disability which causes Employee to be unable to do so) has
delivered to Employer a complete and unconditional release, in form reasonably
satisfactory to Employer, releasing Employer from any and all claims which
Employee may have against Employer as a result of any occurrence during
Employee's employment and including, but not limited to, any claim for wrongful
termination (the "Employee Release"). The foregoing notwithstanding, the
Employee Release shall not release the Employer from any of its post termination
obligations under this Agreement. Such severance or Change of Control benefit
shall be paid in bi-weekly installments over the greater of (i) the remaining
term of the Agreement assuming that the agreement is not renewed pursuant to the
provisions of Section 2(b) above or (ii) the one year period following such
termination. Anything to the contrary in the foregoing notwithstanding, Employer
shall never be obligated to pay more than one severance benefit or one Change of
Control benefit hereunder. Accordingly, if Employee is entitled to a Change of
Control benefit under this paragraph, Employee shall not be entitled to a
severance benefit for any event which arises after the Change of Control and
likewise if Employee is entitled to a severance benefit hereunder, Employee
shall not be entitled to a Change of Control benefit as a result of a Change of
Control which occurs after such severance. Upon receipt of the Employee Release,
the Employer will deliver to Employee a complete and unconditional release
releasing the Employee from any and all claims which the Employer may have
against the Employee other than claims forembezzlement, misappropriation,
theft or fraud (the "Employer Release"). The foregoing notwithstanding, the
Employer Release shall not release the Employee from any of his post-
termination obligations under this Agreement including but not limited to the
Restrictive Covenants of Sections 9 and 10. As used herein:
(A) the term "Cause" means (i) the Employee's violation of his
fiduciary duty to the Employer, (ii) gross or wilful failure by the
Employee to perform the duties of Employee's position, (iii) the
Employee's habitual unexcused absence over an extended period, (iv) the
Employee's disloyalty or insubordination, or other similar misconduct
which is of the nature of disloyalty or insubordination, (v) embezzlement
or misappropriation of Employer funds by the Employee, (vi) the conviction
of the Employee of a crime involving a felony, or (vii) the Employee's
commission of an act involving sexual
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harassment or similar serious breach of conduct involving moral turpitude,
provided that in the event of a termination for Cause involving
insubordination or disloyalty or other similar conduct which is of the
nature of disloyalty or insubordination, the Employer shall give the
Employee written notice of the conduct constituting such Cause and the
Employee shall have thirty (30) days to correct such conduct. If Employee
fails to correct such conduct within such 30-day period, such conduct will
be deemed to be Cause;
(B) the term "Constructive Termination Event" means action by the
Employer which is directed at the Employee specifically and not at all
employees generally and which has the effect of significantly reducing the
Employee's compensation, employment responsibilities, authority, or the
accommodations in which the Employee performs his job;
(C) the term "Permanent Disability" means the permanent mental or
physical inability of the Employee to perform with reasonable
accommodation the essential duties of Employee's position as existing on
the date of this Agreement which condition causes the Employee to be
unable to perform the duties of his office for shorter of a period of 120
consecutive days or 180 days in any twelve-month period;
(D) the term "Change of Control" means the first to occur of:
(i) the cumulative acquisition by any person (as that term is
defined in Section 13 (d) and 14 (d)(2) of the Securities Exchange
Act of 1934, as amended, but excluding Employer, any wholly owned
subsidiary of Employer or any employee benefit plan of Employer)
during the term of this Agreement of twenty-five percent or more of
the voting securities of Employer either directly or indirectly. For
purposes of this determination, the attribution provisions of
Section 318 of the Code, as amended, shall be used to determine the
voting stock indirectly owned by a person; or
(ii) any transaction or series of transactions (including but
not limited to any tender offer, exchange offer, merger or other
business combination, sale of assets or other similar transaction)
occurring during the term of this Agreement, the result of which is
that less than a majority of the combined voting power of the then
outstanding securities of the Employer or any successor to the
Employer resulting from such transaction or series of transactions
are held in the aggregate by holders of the Employer's securities
entitled to vote generally in the election of directors of Employer
immediately prior to such transaction or the beginning of the series
of transactions; or
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(iii) during the period of this Agreement, individuals who at
the date of execution of this Agreement constitute the Board of
Directors of the Employer cease for any reason to constitute at
least a majority of the Board of Directors of the Employer, unless
the election, or the nomination for election by the Employer's
stockholders, of each successor to such director or each additional
director elected during the term of this agreement was approved by a
vote of at least two-thirds of the directors still in office who
were directors of the Employer at the date of this Agreement and
those who were nominated and elected by such directors in compliance
with this provision.
8. EFFECT OF TERMINATION WITHOUT CAUSE OR CHANGE OF CONTROL ON OPTIONS AND
EXCISE TAXES.
(a) OPTIONS. In the event of a Change of Control or Employer's
termination of Employee's employment without cause, all options granted to
Employee prior to such Change of Control or termination without cause
shall immediately vest and be exercisable by Employee, regardless of
Employee's employment or termination of employment with Employer.
(b) EXCISE TAX. In the event that any payment to be received by the
Employee in connection with a Change of Control of Employer or the
termination of his employment by Employer would be subject to an excise
tax pursuant to Section 4999 of the Code, whether in whole or in part, as
a result of being an "excess parachute payment" with the meaning of such
term in Section 2806(b) of the Code the amount payable under this
subparagraph (c) shall be reduced so that no portion of such payment or
the value of such acceleration rights is subject to excise tax pursuant to
Section 4999 of the Code. If the amount necessary to eliminate such excise
tax exceeds the amount otherwise payable under this Section 11(c), no
payment shall be made under this paragraph and no further adjustment shall
be made. Notwithstanding the preceding sentence, (a) no portion of such
payment or any acceleration right which tax counsel, selected by
Employer's independent auditors and acceptable to Employee, determines not
to constitute a "parachute payment" within the meaning of Section
2806(b)(2) of the Code will be taken into account and (b) no portion of
the total of Employee's Base Salary and Bonus which tax counsel selected
by Employer's independent auditors and acceptable to the Employee
determines to be reasonable compensation for services rendered within the
meaning of Section 2806(b)(4) of the Code will be taken into account.
9. NON-COMPETITION AND TIME RESTRICTED ACTIVITIES. During the term of this
Agreement and for a period of one year after the termination of the Employee's
employment hereunder (the "Restricted Period"), without the written consent of
the Employer, Employee shall not either directly or indirectly:
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(a) engage (whether for his own account or as a partner, joint
venturer, employee, consultant, agent, contractor, officer, director or
shareholder or otherwise) in any business which operates a retail sporting
goods store located within a 50-mile radius of any retail sporting goods
store operated by the Employer while Employee was employed by Employer,
provided that the foregoing shall not be deemed to prohibit Employee from
purchasing and owning securities of a company traded on a national
securities exchange or on the Nasdaq Stock Market with which Employee has
no relationship so long as such ownership does not exceed 2% of the
outstanding stock of such company. For purposes of the foregoing, a retail
sporting goods store shall be deemed to be any store which sells sporting
goods as its principal business regardless of the format or size of the
store or the variety of the sporting goods offered for sale; or
(b) solicit, contact or encourage (i) any person who is an exempt
employee of the Employer or of any division or subsidiary of the Employer
or (ii) any supplier, vendor, agent or consultant to the Employer, to
terminate its, his, or her relationship with the Employer;
(c) make any derogatory, defamatory or negative statement about the
Employer or any of its officers, directors, or employees to the press, to
any part of the investment community, to the public, or to any person
connected with, employed by or having a relationship to the Employer,
provided that nothing contained herein shall be deemed to prohibit full
and xxxxx discussions of the Employer and its subsidiaries and its affairs
in any Board of Directors meeting of the Employer;
(d) wilfully interfere with or disrupt the Employer's operations; or
(e) assist, advise or provide information or support, whether
financial or otherwise, to any person in connection with any proxy
contest, action by written consent or vote, the purpose of which is to
elect a director or slate of directors who were not nominated by the then
sitting Board of Directors of the Employer, provided, however, that
nothing contained herein shall require the Employee to vote any shares
held by him in any particular manner.
10. NONDISCLOSURE OF CONFIDENTIAL INFORMATION AND TRADE SECRETS. While
employed by Employer and after termination of such employment for the Applicable
Period as defined below, Employee shall not disclose, either directly or
indirectly, any Confidential Information or Trade Secrets to any other person or
otherwise use such Confidential Information or Trade Secrets for any purpose
except in connection with his employment with the Employer. For purposes of the
foregoing, the term Trade Secret has the meaning ascribed thereto in Section
688.002(4), Florida
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Statutes, or any revision or successor thereto, and Confidential Information
means any technical or nontechnical data, formula, pattern, compilation,
program, device, method, technique, drawing, process, know-how, financial data,
financial plan, marketing plan, expansion plan, cost analysis, list of suppliers
or employees, or other proprietary information which is proprietary, secret and
confidential and is not readily and legally available to the public from sources
other than the Employer which is not classified as a Trade Secret. The term
"Applicable Period" shall mean two years with respect to disclosure of
Confidential Information and the period during which a claim may be brought
under Florida Statutes Chapter 688 or any revision or successor thereto with
respect to disclosure of Trade Secrets.
11. SPECIAL INTERPRETIVE AND ENFORCEMENT PROVISION. The prohibited
activities set forth in Sections 9 and 10 above are herein defined as
"Restricted Activities" and the covenants set forth therein are herein defined
as "Restrictive Covenants". If a court determines that any Restricted Activity
is not enforceable or is unreasonable, arbitrary or against public policy, the
Restricted Activity and the related Restrictive Covenant shall be considered
divisible both as to time and geographic area, if applicable, so that the
Employer shall be authorized to enforce such Restrictive Covenant for such
lesser time and if applicable lesser geographic area as the court determines to
be reasonable, non-arbitrary and not against public policy. In the event of a
breach or violation or threatened breach or violation by Employee of the
provisions of any of these Restrictive Covenants, Employer shall be entitled to
an injunction (without the provision of bond by Employer) restraining Employee
from directly or indirectly engaging in the Restricted Activities in breach or
violation of these Restrictive Covenants, and restraining Employee from
rendering any services to or participating with any person, firm, corporation,
association, partnership, venture or other entity which would constitute a
violation of a Restrictive Covenant. Nothing herein shall be construed as
prohibiting Employer from pursuing any other remedies available to it by law or
by this Agreement for breach, violation or threatened breach or violation of the
provisions of these Restrictive Covenants, including, by way of illustration and
not by way of limitation, the recovery of damages from Employee or any other
person, firm, corporation or entity. The provisions of these Restrictive
Covenants shall survive the termination of this Agreement for the purpose of
providing Employer with the protection of the covenants of Employee provided
herein. Should an action have to be brought by Employer against Employee to
enforce the Restrictive Covenants of Section 9, the period of restriction
applicable to such covenant shall be deemed to begin running on the date of
entry of an order granting Employer preliminary injunctive relief and shall
continue uninterrupted for the original intended period of one year. Employee
acknowledges and agrees that the intent and purpose of the Restrictive Covenants
in Section 10 is to preclude Employee from engaging in the Restricted Activities
for a full year and that such purpose and effect would be frustrated by
measuring the period of restriction from the date of termination of Employee's
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employment where Employee failed to honor these Restrictive Covenants until
directed to do so by court order.
13. CESSATION OF BENEFITS. In the event that (i) Employee materially
breaches Employee's agreements contained herein after a severance or Change of
Control benefit becomes payable hereunder and such breach is not cured to
Employer's satisfaction within ten (10) days of written notice thereof, (ii)
Employee asserts in any litigation that the Restrictive Covenants or the
Employee Release is unenforceable for any reason, or (iii) facts come to the
attention of the Employer which prove Employee, while employed by Employer, was
guilty of committing an act involving embezzlement, misappropriation, theft or
fraud, in addition to any other remedy which Employer may have as a result
thereof, Employer shall be entitled to stop paying any severance or Change of
Control benefit then being paid and discontinue the payment of any other
benefits to Employee hereunder from and after the date of such event.
14. NOTICES. Any notices, consents, approvals or waivers which are to be
given to any party to this Agreement by any other party or parties to this
Agreement shall be in writing, shall be properly addressed to the party to whom
such notice is directed, and shall be either actually delivered to such party or
sent by United States mail, return receipt requested. Notices shall be addressed
to the parties as follows:
NAME ADDRESS
---- -------
Employer Sports & Recreation, Inc.
0000 Xxxx Xxxxxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxx
Employee Xxxxxxx X. Xxxxxxxx
00000 Xxxxx Xxxx Xxxxx
Xxxx, Xxxxxxx 00000
15. LITIGATION FORUM. The parties hereto agree that this Agreement shall
be deemed for all purposes to have been entered into in Hillsborough County,
Florida. The parties hereto agree that all actions or proceedings, directly or
indirectly, arising out of or related to this Agreement or contesting the
validity or applicability of this Agreement shall be litigated exclusively in
the Circuit Court in and for Hillsborough County, Florida, or the United States
District Court for the Middle District of Florida, Tampa Division.
16. EXPENSES OF ENFORCEMENT. In the event of any legal proceeding arising
directly or indirectly from this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees and costs from the non-prevailing party
(at both the trial and appellate court levels).
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17. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement, including all exhibits and
schedules hereto as referenced herein, constitutes the entire agreement
between the parties hereto pertaining to the subject matters hereof, and
supersedes all negotiations, preliminary agreements, and all prior and
contemporaneous discussions and understandings of the parties in
connection with the subject matters hereof. Except as otherwise herein
provided, no covenant, representation or condition not expressed in this
Agreement, or in an amendment hereto made and executed in accordance with
the provisions of subsection (b) of this section, shall be binding upon
the parties hereto or shall affect or be effective to interpret, change or
restrict the provisions of this Agreement.
(b) AMENDMENTS AND WAIVERS. No change, modification, waiver or
termination of any of the terms, provisions, or conditions of this
Agreement shall be effective unless made in writing and signed or
initialed by all parties hereto. Any waiver of any breach of any provision
of this Agreement shall operate only as to the specific breach waived and
shall not be deemed a waiver of any other breach, whether occurring before
or after such waiver.
(c) GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Florida, without reference to
principles of choice or conflict of law thereunder.
(d) SEPARABILITY. Except as provided in Section 11 hereof, if any
section, subsection or provision of this Agreement or the application of
such section, subsection or provision is held invalid, the remainder of
this Agreement and the application of such section, subsection or
provision to persons or circumstances, other than those with respect to
which it is held invalid, shall not be affected thereby.
(e) HEADINGS AND CAPTIONS. The titles or captions of sections and
subsections contained in this Agreement are provided for convenience of
reference only, and shall not be considered a part hereof for purposes of
interpreting or applying this Agreement; and, therefore, such titles or
captions do not define, limit, extend, explain, or describe the scope or
extent of this Agreement or any of its terms, provisions, representations,
warranties, conditions, etc., in any manner or way whatsoever.
(f) GENDER AND NUMBER. All pronouns and variations thereof shall be
deemed to refer to the masculine, feminine or neuter and to the singular
or plural as the identity of the person or entity or persons or entities
may require.
(g) BINDING EFFECT ON SUCCESSORS AND ASSIGNS. This Agreement shall
be binding upon and shall inure to the
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benefit of the parties hereto and their respective successors, heirs and
assigns, provided that the rights and obligations of Employee hereunder
are personal to Employee and may not be assigned or transferred without
the consent of Employer except in the event of a transfer upon death
pursuant to a will or the laws of intestate succession.
(h) CONTINUANCE OF AGREEMENT. The rights, responsibilities and
duties of the parties hereto and the covenants and agreements herein
contained shall survive the execution hereof, shall continue to bind the
parties hereto, and shall continue in full force and effect until each and
every obligation of the parties hereto, pursuant to this Agreement, shall
have been fully performed.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above-written.
WITNESSES: SPORTS & RECREATION, INC.
__________________________ By: _______________________
Its: Duly Authorized Officer
__________________________ "EMPLOYER"
__________________________ __________________________
Xxxxxxx X. Xxxxxxxx,
individually
__________________________ "EMPLOYEE"
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