EXHIBIT 10.2(a)
AMENDMENT
THIS AMENDMENT TO DEFERRED COMPENSATION AGREEMENT (this "Amendment") is made
as of the 31st day of December, 1998, by and between Xxxxx X. Xxxxxxxx
("Employee") and Xxxxxx'x Sporting Goods Inc.-Services, a Delaware corporation
("Employer").
WHEREAS, Employee and Xxxxxx'x Sporting Goods, Inc. ("OSGI") have previously
entered into that certain Deferred Compensation Agreement (the "DCA"), providing
for the payment to Employee or Employee's designated beneficiary of certain
payments designated therein upon Employee's attainment of the age of 65 or
earlier death, and further providing for an insurance policy to be acquired and
held in trust to informally fund such payment obligations; and
WHEREAS, OSGI has previously assigned its interest in the DCA to Employer,
and Employer has assumed OSGI's obligation thereunder; and
WHEREAS, Employer and Employee now wish to amend the DCA to resolve certain
ambiguities therein and to provide for more immediate recovery of proceeds from
the insurance policy than would be available under the terms of the DCA;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth hereinafter, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree to amend the DCA as follows:
1. All terms used herein and not otherwise defined in this Amendment shall
have the meanings set forth in the DCA.
2. Immediately upon execution and delivery of this Amendment by both
parties hereto, Employer shall instruct the Trustee to cancel the
Insurance Policy and obtain from the insurance company issuing same full
and final payment of all cash value and other amounts payable to Trustee
upon termination thereof. Employer shall further instruct Trustee to
remit all of such funds promptly to Employer. Employee hereby expressly
consents to the cancellation of the Insurance Policy and the delivery of
such funds to Employer, in consideration for Employer's agreement to
make the payments described in Section 3 below.
3. In lieu of the payments provided under Section 4 of the DCA, Employer
shall make ten (10) annual payments to Employee in the amount of
$151,515.00 each. The first payment shall be made on the 1st day of the
month immediately following the month in which Employee attains the age
of 65, and each subsequent payment shall be made on the anniversary of
such date; provided, however, that the first payment shall not be made
prior to the date on which the later of the following shall have
occurred: (i) this Amendment has been executed and delivered by all
parties hereto and (ii) Employer shall have received from CIT
Group/Business Credit, Inc. a writing to the effect that execution and
delivery of this Amendment, and Employer's performance of its
obligations hereunder will
not breach Employer's obligation under the Amended and Restated Financing
Agreement, as amended.
4. In the event of Employee's death before all ten (10) installments have
been paid to Employee, the remaining payments shall be made pursuant to
the above described schedule to Employee's beneficiary designated in
accordance with Section 5 of the DCA.
5. Upon cancellation of the Insurance Policy and delivery of the funds to
Employer, Employer shall instruct Trustee to terminate the Trust.
Employee hereby expressly consents to the termination of the Trust, and
joins in Employer's instructions to Trustee for such termination.
6. In the event of any conflict between the terms of this Amendment and the
DCA, the terms of this Amendment shall govern. Any inconsistent
provisions of the DCA shall be deemed to have been expressly amended to
the extent necessary to give full effect to the terms of this Amendment.
7. At any time or from time to time after the execution and delivery of
this Amendment, Employer and Employee shall, at the request of the
other, execute and deliver any further instruments or documents,
including but not limited to any waiver of claims against the Trustee,
and take all such further action as such party reasonably may request in
order to consummate and make effective the transaction described herein.
8. Except as expressly set forth herein, the DCA shall remain in full force
and effect.
In witness whereof, the parties hereto have executed this Amendment on the
____ day of December, 1998, to be effective on the day and year first written
above.
EMPLOYER
XXXXXX'X SPORTING GOODS INC.-SERVICES
By:
_____________________________________
Printed Name: Xxxxxx X. Xxxx
Title: Executive Vice President
Date: December 31, 1998
EMPLOYEE:
________________________________________
Xxxxx X. Xxxxxxxx
Date: December 31, 1998
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