EXHIBIT 10.1
SEPARATION AGREEMENT
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This SEPARATION AGREEMENT (this "Agreement") is made and entered into
as of September 26, 2003 (the "Effective Date") by and between Sport Supply
Group, Inc., a Delaware corporation and its subsidiaries (collectively,
"SSG"), Xxxxxxx Radio Corp., a Delaware corporation and its subsidiaries
(collectively "Xxxxxxx"; SSG and Xxxxxxx are collectively referred to as the
"Company") and Xxxx X. Xxxxxx ("Xxxxxx").
WHEREAS, except as otherwise set forth herein, SSG and Xxxxxx desire to
terminate their relationship as employer and employee, respectively, and
enter into this Agreement.
WHEREAS, except as otherwise set forth herein, Xxxxxxx and Xxxxxx
desire to terminate their relationship, whereby Xxxxxx is an officer and/or
director of Xxxxxxx and various of its subsidiaries, and enter into this
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and Xxxxxx agree
as follows:
1. Resignation. Xxxxxx hereby voluntarily resigns as an officer, director
and/or employee, as appropriate, of SSG and Xxxxxxx, effective September 8,
2003. Notwithstanding the foregoing, Xxxxxx shall be deemed to have
resigned from employment with SSG as of September 15, 2003 ("Resignation
Date").
2. Settlement Amount. Although the Company is not obligated to do so, and
as full consideration for Xxxxxx'x commitments herein and the releases
provided below, upon acceptance by him, commencing September 16, 2003, SSG
shall pay to Xxxxxx 52 weeks ("Settlement Period") of pay in the amount of
$6,346.15 per week which is equal to his Xxxxxxxx Career Serviceweekly
salary in effect prior to his resignation ("Settlement Amount"). All of the
above payments shall be paid to Xxxxxx semi-monthly, in accordance with
SSG's present payroll policy for salaried employees, in an amount equal to
his weekly salary in effect on the Resignation Date. In the event that
SSG's present payroll policy is changed, the semi-monthly payments shall be
changed to conform to such payroll policy until the end of the Settlement
Period. SSG shall deduct and withhold from Xxxxxx'x semi-monthly amounts
applicable taxes, FICA and other amounts required to be withheld.
Xxxxxx understands and agrees that, in the event he obtains employment or a
consulting position with total compensation, as defined below, of at least
90% of his base salary with SSG as of the Resignation Date during the period
he is receiving any Settlement Amount hereunder, he shall immediately notify
the Company in writing of such employment or consulting position and, as of
Xxxxxx'x effective date of new employment or consulting position, the
Company will no longer have any obligation to remit any such Settlement
Amount or provide any miscellaneous benefits to him and any Settlement
Amount received by Xxxxxx prior to such time shall be in full and final
satisfaction of all Settlement Amounts and miscellaneous benefits to be
provided to him pursuant to Sections 2 and 3 herein. Total compensation
shall include any and all base salary, commissions, deferred compensation
arrangements, stock grants, options or stock appreciation rights and bonuses
earned but not paid during the Settlement Period.
3. Miscellaneous Benefits.
3.1. To the extent permitted by SSG's insurance carriers and applicable law,
and provided Xxxxxx elects to continue such group health care coverage,
which includes dental coverage, and continues to make any required
contribution, the Company agrees to make the Company premium payments for
group health care coverage through the end of Xxxxxx'x Settlement Period.
Because Xxxxxx is no longer an active employee, he is not eligible to
continue contributing to the Employee Savings Plan or to have life
insurance, long-term disability coverage, country club memberships or
benefit tax gross ups after the Effective Date, and is not accruing vacation
or sick leave through the end of his Settlement Period.
Following the expiration of the Settlement Period, Xxxxxx will receive
information on continuing his group health care under COBRA.
3.2. To the extent permitted by Park Place Motorcars, SSG's car leasing
company, with regard to the Mercedes Benz previously utilized by Xxxxxx,
2002 Mercedes Benz, Make: MBCA, Model No. E55, VIN No. xxxxxxxxxxxxxxxxx
("car"), SSG shall assign such leasing agreement ("car lease") to Xxxxxx as
soon as practicable after the Effective Date, after which time Xxxxxx shall
be solely responsible for any and all obligations under the leasing
agreement, including but not limited to insurance, wear and tear,
maintenance, excess mileage and residual value, and SSG shall have no
further obligation therefore. Xxxxxx agrees to complete, execute and
deliver to SSG and Park Place Motorcars all assignment documents and
applications necessary to effectuate such assignment no later than 5 days
after the Effective Date. In the event that Xxxxxx fails to do so, SSG
shall be entitled to cancel said leasing agreement pursuant to its terms,
and Xxxxxx shall be obligated to return said Mercedes Benz, shall be
responsible for any fees and/or penalties associated with same, and hereby
authorizes SSG to deduct said fees and/or penalties from the semi-monthly
payments made under Section 2 herein.
To the extent that the assignment of the car lease does not completely
relieve SSG of any liability for such car or car lease, Xxxxxx agrees that
he shall defend, indemnify and hold harmless SSG, its affiliates and
subsidiaries and their respective employees, officers, directors,
stockholders, agents, licensees, representatives, successors and assigns
from and against any and all claims, demands, judgments, liabilities,
damages, losses, costs and expenses of any nature (including attorneys' fees
and expenses), including without limitation, death, personal injury, bodily
injury, sickness, disease, property damage, loss of use of property or
product liability arising from his leasing and use of the car or the
assignment to, or assumption by him, of the car lease.
4. Cooperation. In further consideration of the Settlement Amount,
Xxxxxx also agrees to cooperate with the Company in the handling or defense
of any legal claims or disputes related to his past association with the
Company. Xxxxxx will make himself reasonably available to Company in
connection with any pending or threatened claims or charges against Company,
will provide information requested by Company in a truthful and complete
manner without the need for subpoena, and will, upon reasonable notice,
attend any legal proceeding at which his presence is needed by Company
without the need for subpoena; provided, however, that both parties will
cooperate in an effort to avoid schedule conflicts. The Company agrees to
reimburse Xxxxxx for any reasonable costs for travel, previously approved by
the Company in writing, which are incurred by Xxxxxx in fulfilling his
obligation of cooperation set forth in this Section 4.
5. Covenants and Agreements of Xxxxxx. Xxxxxx acknowledges and agrees
that the benefits set forth in Sections 2 and 3 hereof and the other
consideration he has accepted and received pursuant to this Agreement are
not otherwise due to him. In consideration for the payments and other
consideration reflected in Sections 2 and 3 of this Agreement, the receipt
and sufficiency of which are hereby acknowledged, Xxxxxx voluntarily and
knowingly:
5.1. Nondisparagement of Company. Agrees that after the date hereof, he
will not say, publish or take any action that casts the Company or any of
its Affiliates (as defined in Section 21 of this Agreement), any of its
products or the industry or management of the Company or any of its
Affiliates in an unfavorable light, or disparage or injure the Company's or
any of its Affiliate's goodwill, business reputation or relationship with
existing or potential suppliers, vendors, customers, employees, contractors,
investors, lenders or the financial community in general, or the goodwill or
business reputation of the Company's or any of its Affiliate's employees,
officers, directors, consultants or contractors. Notwithstanding the
foregoing, nothing herein shall prohibit or hinder Xxxxxx from truthfully
testifying in a hearing, deposition or other legal proceeding in which
Xxxxxx could be criminally or civilly sanctioned for the failure to respond
truthfully.
5.2. Release. a.) Xxxxxx hereby fully and finally releases the Company
(including all parents, subsidiaries, and Affiliates), its shareholders,
directors, officers, principals, vice-principals, partners, agents, legal
counsel and other legal representatives of every kind (collectively the
"Released Parties") from any and all claims, actions, demands, and/or causes
of action, of whatever kind or character, whether now known or unknown,
arising from, relating to, or in any way connected with, facts or events
related to his employment or his resignation from such employment and/or his
position as, or resignation with regard to the positions of, officer or
director of any of the Released Parties, as appropriate, occurring on or
before the Effective Date of this Agreement. Xxxxxx agrees that this
Agreement specifically includes, without limitation, a release and waiver of
any personal injury claims, negligence claims, contractual claims (express
or implied), wrongful discharge claims, and claims of discrimination,
retaliation and harassment of every possible kind, including but not limited
to, claims on the basis of race, color, sex, national origin, religion,
disability, age (under the Age Discrimination in Employment Act ("ADEA") or
any other statute), and any related attorney's fees and costs claims, if
any, that he may have against the Released Parties. Xxxxxx agrees not to
pursue future employment with Company or its Affiliates. Xxxxxx waives and
releases the Released Parties from any claims that this Agreement was
procured by fraud or signed under duress or coercion so as to make the
Agreement not binding. Xxxxxx is not relying upon any representations by
the Released Parties' legal counsel in deciding to enter into this
Agreement. Xxxxxx understands and agrees that by signing this Agreement he
is giving up the right to pursue any legal claims that he may have against
the Released Parties.
Notwithstanding the foregoing, Xxxxxx does not release the Company from any
claim for indemnification that may be available to him, as a result of his
former position as an officer or director of the Company, as appropriate, as
available to Company officers and directors pursuant to any applicable
provision of the Company's certificate of incorporation or bylaw in effect
as of the Effective Date.
b.) In consideration of the provisions of this Agreement and for other
good and sufficient consideration, receipt of which is hereby acknowledged,
and on condition that Xxxxxx fulfills all the obligations of this Agreement,
the Company hereby fully and forever releases and discharges Xxxxxx from all
actions, causes of actions, suits, covenants, contracts, controversies,
agreements, promises, claims, and demands in law or equity (regardless of
whether or not known at present) which the Company ever had or now has
arising from Xxxxxx'x exercise of his corporate fiduciary duties pertaining
to his employment by, or positions with, the Company, as appropriate. Also,
notwithstanding the foregoing, the Company does not release any claims
against Xxxxxx for breach of his obligations under this Agreement.
5.3 IMPORTANT NOTICE. With respect to this waiver of claims under the ADEA
as set forth above, Xxxxxx understands and agrees that a) this Agreement is
worded in an understandable way; (b) he is not waiving claims under the ADEA
that may arise after the date of this Agreement; (c) the rights and claims
waived in this Agreement are in exchange for additional consideration over
and above any consideration to which Xxxxxx was already undisputedly
entitled; (d) Xxxxxx has been advised to consult with an attorney prior to
executing this Agreement and has had sufficient time and opportunity to do
so; (e) Xxxxxx has been given at least twenty-one (21) days to consider this
Agreement, although he may choose to execute the Agreement in less than
twenty-one (21) days; (f) changes to the Agreement, whether material or
immaterial, will not restart the running of the twenty-one (21) days; and
(g) Xxxxxx may revoke his waiver and release of any ADEA claims covered by
this Agreement within seven (7) days from the date he executes this
Agreement. Notice of revocation must be in writing to Sport Supply Group,
Inc., 0000 Xxxxxxxx Xxxxx, Xxxxxxx Xxxxxx, XX 00000, Attention: General
Counsel, with a copy to Xxxxxxx Radio Corp., 0 Xxxxx Xxxx, Xxxxxxxxxx, Xxx
Xxxxxx 00000, Attention: General Counsel, and must be received by SSG and
Xxxxxxx within seven (7) days after Xxxxxx signs this Agreement.
Xxxxxx will retain the right to file a charge or challenge the validity of
this waiver as to ADEA claims covered by the Older Workers Benefit
Protection Act ("OWBPA"); however, such a challenge will not affect the
validity of the release of any other claims covered by this Agreement.
The release of ADEA claims covered by the OWBPA is an important part of this
Agreement; accordingly, the Company may, at its option, declare the entire
Agreement void and elect not to go forward with any of the remaining terms
of this Agreement if Xxxxxx exercises his right to revoke the release of
ADEA claims within the seven (7) day revocation period provided for above,
or it may elect to keep the remainder of the Agreement in place in which
case the parties will continue to be bound to performance of all remaining
terms.
By execution hereof, Xxxxxx represents, covenants, and warrants that no
claims released or waived herein have been previously conveyed, assigned, or
transferred in any manner, whether in whole or in part, to any persons,
entity, or other third party. Xxxxxx expressly represents that he is
competent and authorized to release and/or waive any claim he may have
against the Company on any basis whatsoever.
5.4 Return of Property. Xxxxxx further agrees to return to SSG (Attention:
Manager of Human Resources), simultaneously with the execution of this
Agreement, all computers, computer disks or other magnetic storage data,
facsimile machines, telephones, credit cards, calling cards, keys, security
codes, security badges, and other property of the Company in Xxxxxx'x
possession or control and all documents, records, notebooks, mailing lists,
business proposals, contracts, agreements and other repositories containing
information concerning the Company or its business, whether copies or
originals (including but not limited to all correspondence, client and/or
customer lists, vendor agreements, minutes or agenda(s) for any meeting,
hand-written notes, journals, computer printouts or programs or
electronically stored data, office memoranda, other tangible items or
materials). SSG acknowledges that Xxxxxx has made representation that he
has already returned to SSG all property referred to above. Notwithstanding
the foregoing, the Company agrees that, as of the Effective Date, Xxxxxx
shall assume ownership of the following in their present condition, for
which he shall be solely responsible and for which the Company shall have no
further responsibility: a.) Dell Latitude Laptop w/o carrying case, Serial
No. xxxxxxx; b.) HP Photosmart copier/printer, Serial No. xxxxxxxxxxx c.) PC
Desktop, Serial No. xxxxxxxxxxxxx; d.) Symantec back up hard drive; and e.)
Docking Station for Laptop.
5.5. Transfer and Release of Proprietary Information and Goodwill. Xxxxxx
agrees that all ownership rights regarding the Trade Secrets and
Confidential Information (as these terms are defined below) that Xxxxxx
received, handled or developed while associated with Company in the past are
transferred to Company and are now the sole property of Company, and Xxxxxx
waives any claim to the contrary.
5.6. Acknowledgment. Xxxxxx acknowledges that as of Resignation Date: (i)
Xxxxxx'x employment by, or positions with, the Company, as appropriate, is
lawfully and voluntarily terminated by virtue of Xxxxxx'x resignation; (ii)
Xxxxxx has received all due and owing pay for all labor and services
performed by him for the Company; (iii) Xxxxxx has received or been
compensated for all salary, vacation time, sick leave, compensatory time,
reimbursable expenses, car allowance, personal injuries, bonuses, profit-
sharing, retirement, health, welfare, pension, all rights under all employee
benefits to which he may have been entitled as of the Effective Date; (iv)
Xxxxxx will promptly reimburse the Company for all personal expenses
incurred by Xxxxxx, including, without limitation, travel advances
(including but not limited to those incurred through use of Xxxxxx'x
American Airlines Airpass Account as set forth above) and agrees that if he
has not reimbursed the Company for same by the Effective Date of this
Agreement, the Company may withhold from the first semi-monthly payment and,
to the extent the first semi-monthly payment is insufficient to cover the
entire amount owed, any subsequent payments under Section 2 above, an amount
equal to the expenses owed by Xxxxxx; and (v) except as set forth in Section
5.7 of this Agreement, there are no other agreements, whether written or
oral, between Xxxxxx and the Company. SSG acknowledges that Xxxxxx has
submitted his final expense report, dated September 18, 2003, for expenses
Xxxxxx advises he incurred during his employment with the Company for which
he has not previously submitted expense reports and agrees to remit payment
for any such expenses, which are approved in accordance with SSG's corporate
policy, less any withholdings for charges for which Xxxxxx owes payment to
the Company.
5.7 Termination of Agreements. Xxxxxx acknowledges and agrees that, in
consideration of the payments and other consideration reflected in Sections
2 and 3 of this Agreement, the following agreements by and between Xxxxxx
and SSG are hereby terminated and of no further force or effect and that the
Company shall have no liability or obligation under any such agreements:
* That certain Employment Agreement dated as of January 23, 1997 to be
effective as of December 11, 1996;
* That certain Non-Qualified Stock Option Agreement dated January 23,
1997;
* That certain Employment Agreement dated as of January 14, 1998, as
amended by Amendment No. 1 To Employment Agreement dated to be
effective as of February 25, 2000;
* That certain Severance Agreement dated as of January 14, 1998;
* That certain Non-Qualified Stock Option Agreement dated January 29,
1999; and
* That certain Severance Agreement dated as of March 12,1999.
Notwithstanding the foregoing, the following agreements between Xxxxxx
and SSG shall remain in full force and effect:
* Indemnification Agreement dated as of December 11, 1996;
* Restricted Stock Award Agreement dated as of January 14, 1998.
Xxxxxx also acknowledges and agrees that, in consideration of the payments
and other consideration reflected in Sections 2 and 3 of this Agreement, any
other agreements presently or previously in effect by and between Xxxxxx and
the Company are hereby terminated and of no further force or effect and that
the Company shall have no liability or obligation under any such agreements.
Notwithstanding the foregoing, any of the remaining, outstanding options
granted to Xxxxxx by Xxxxxxx on July 7, 1994, shall remain in full force and
effect in accordance with the provisions of the Xxxxxxx Radio Corp. Stock
Compensation Program.
5.8 Nondisclosure; Confidentiality.
a. Definitions. As used herein, "Trade Secrets" are information of
special value, not generally known to the public or competitors,
that the Company has taken steps to maintain as secret from
persons other than those selected by the Company. "Confidential
Information" is information acquired by Xxxxxx in the course and
scope of his activities for Company that is designated by Company
or by regulatory agencies as "confidential" or that Company
indicates through its policies, procedures, or other instructions
should not be disclosed to anyone outside Company except through
controlled means. The controlled disclosure of Confidential
Information to customers or vendors for legitimate business
purposes and the availability of the Confidential Information to
others outside Company through independent investigation and
effort will not remove it from protected status as Confidential
Information under this Agreement if Xxxxxx was first entrusted
with the Confidential Information while employed with Company.
Without limitation, some examples of protected Confidential
Information and Trade Secrets under this Agreement are the
Company's customer lists, customer contact information, strategic
and marketing plans, names, addresses and contact information
relating to Company's vendors and suppliers, financial results,
profit margins, rates charged to customers, any information
designated by a customer as "confidential" or treated as
confidential, and Company's future business plans and strategies.
A protected item may be both a Trade Secret and Confidential
Information, but need not be both to be protected hereunder.
Trade Secret and Confidential Information that are intentionally
made available to the general public by the Company or with the
Company's express authorization will not be considered a Trade
Secret or Confidential Information.
b. Handling of Covered Items. All Confidential Information, Trade
Secrets, and other proprietary materials shall remain the
exclusive property of Company at all times; such materials shall,
together with all copies thereof, be returned and delivered to
Company by Xxxxxx upon execution and delivery of this Agreement.
c. Restriction on Disclosure of Information. Xxxxxx agrees that he
will not use or disclose any Trade Secrets or Confidential
Information following his resignation from employment for the
benefit of any person or entity other than the Company unless
expressly authorized to do so by the Company in writing or
compelled to do so by law through court order, legally binding
subpoena, or comparable requirement. In the event disclosure is
compelled by law, Xxxxxx will give Company written notice as soon
as possible under the circumstances and will take all steps
reasonably available to him to protect against unnecessary
disclosure. Unless otherwise prohibited by applicable law, the
restrictions on use and disclosure of Trade Secrets and
Confidential Information provided for herein will continue in
effect for as long as the Company maintains the information as
confidential, which will be presumed to be a period of at least
three years unless Xxxxxx can show otherwise.
5.9 Protective Covenants. Xxxxxx agrees that the following covenants
are reasonable and necessary agreements for the protection of the Company's
business interests. Xxxxxx agrees that during the period of time that
Company is paying Xxxxxx pursuant to the terms of Sections 2 and 3 hereof,
Xxxxxx will not directly or indirectly compete with Company in the United
States. For the purposes of this Section, the following terms shall have
the meanings indicated below:
a. The term "compete" shall mean, with respect to the business of
Company, engaging in or attempting to engage in, either alone or with
any individual, partnership, corporation, entity or association,
directly or indirectly, through one or more intermediaries or
otherwise: i.) the direct marketing, sourcing, sales and distribution
of sports related or physical education equipment to institutional
customers, retailers or individual customers, ii.) any sourcing,
marketing, sales or distribution of consumer electronics products,
iii.) any involvement with any transaction with regard to a tender or
exchange offer, sale of assets or securities, dissolution, liquidation,
recapitalization or similar transactions of or involving Xxxxxxx or any
of its subsidiaries or affiliates (including, without limitation, SSG)
about which Xxxxxxx or any of its subsidiaries or affiliates
(including, without limitation, SSG) entertained discussions on or
before the Resignation Date; (iv) otherwise acting, alone or in concert
with others, to seek to control or influence, in any manner, the
management, Board of Directors or policies of Xxxxxxx or any of its
subsidiaries or affiliates (including, without limitation, SSG); (v)
any discussions or enter into any arrangements, understandings or
agreements (whether written or oral) with, or advise, finance, assist
or encourage, any other persons in connection with any of the
foregoing, or make any investment in any other person that engages, or
offers or proposes to engage, in any of the foregoing.
b. The words "direct " as it modifies the word "compete" shall mean:
(i) acting as an agent, representative, consultant, officer, director,
or employee of any entity or enterprise that is competing (as defined
in this Section) with the business of Company; (ii)
participating in any such competing entity or enterprise as an owner,
partner, limited partner, joint venturer, creditor, or stockholder
(except as a stockholder holding less than a five percent (5%) interest
in a corporation whose shares are actively traded on a regional or
national securities exchange or in the over-the-counter market); (iii)
communicating to any such competing entity or enterprise any
competitive non-public information concerning any past, present, or
identified prospective client or customer of, or supplier to, Company;
(iv) soliciting the customers, distributors, dealers, independent
contractors or independent sales persons of Company or its Affiliates
(as defined below) as of the Effective Date; or (v) recruiting, hiring,
or assisting others in recruiting or hiring (collectively referred to
as "Recruiting Activity") any person who is, or within the 12-month
period immediately preceding the date of any such Recruiting Activity
was, an employee of Company or its Affiliates (or encouraging any such
person to terminate their relationship with Company).
x. Xxxxxx understands and agrees that the scope of this covenant
contained in this Section is reasonable as to time, area, and persons
and is necessary to protect the proprietary and legitimate business
interest of the Company, and but for such covenant by Xxxxxx the
Company would not have agreed to enter into the transactions
contemplated by this Agreement. Xxxxxx agrees that this covenant is
reasonable in light of the compensation Company has agreed to provide
Xxxxxx pursuant to this Agreement. It is further agreed that such
covenant will be regarded as divisible and will be operative as to
time, area, and persons to the extent that it may be so operative.
6. Conditions. It is expressly understood that the obligations and
agreements of the Company pursuant to this Agreement are expressly subject
to the continuing performance by Xxxxxx of the obligations, covenants and
agreements assumed by him pursuant hereto. In this regard and not by way of
limitation, the obligations, covenants and agreements of the Company
pursuant to Sections 2 and 3 are expressly conditioned on Xxxxxx continuing
performance of the obligations and agreements described in this Agreement.
In the event the Company's Board of Directors in good faith determines that
Xxxxxx has engaged in any activity that is materially inimical, contrary,
detrimental or harmful to the Company's interests or otherwise breached any
representation, agreement, covenant or obligation contained herein, the
agreements, covenants and obligations of the Company pursuant hereto shall
terminate and be of no further force or effect, without prejudice to any
other right the Company may have hereunder to performance of the agreements
and obligations assumed by Xxxxxx hereunder.
7. Revocation of this Agreement. Xxxxxx further acknowledges and agrees
that he has the right to discuss all aspects of this Agreement with a
private attorney, and that he has done so to the extent he desires. Xxxxxx
acknowledges and understands that he has twenty-one (21) days to sign this
Agreement after receipt of it in order to fully consider all of its terms
but that he may waive same if he so chooses. Xxxxxx further acknowledges
and understands that this Agreement may be revoked by him in writing within
seven (7) days from the date he signs it, and that this Agreement shall not
become effective or enforceable until eight (8) days after Xxxxxx has signed
this Agreement.
8. Full and Final Settlement. This Agreement is contractual, not a mere
recital, and is a full and final settlement of any and all claims each party
hereto may have against the other and its Affiliates on any basis
whatsoever, and shall be binding on each party hereto and their heirs,
personal representative(s), estate, successors and assigns.
9. Entire Agreement. This Agreement constitutes the entire understanding
Xxxxxx has with the Company and supersedes any previous agreement, whether
oral or written, between the Company and Xxxxxx. No other promises or
agreements regarding the matters addressed herein shall be binding unless
they are in writing and signed by Xxxxxx and the Chief Executive Officer
and/or President of the Company.
10. No Continuing Waiver. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other
provisions, whether or not similar, nor shall any waiver constitute a
continuing waiver. Any waiver must be in writing and signed by the party
entitled to performance.
11. Attorneys' Fees. If any civil action, whether at law or in equity, is
necessary to enforce or interpret any of the terms of this Agreement, the
prevailing party shall be entitled to reasonable attorneys' fees, court
costs and other reasonable expenses of litigation, in addition to any other
relief to which such party may be entitled.
12. Confidentiality. Xxxxxx further agrees to keep the terms of this
Agreement wholly and completely confidential. Further, Xxxxxx agrees not to
disclose the amount, terms, substance, or contents of this Agreement to any
person or persons, excluding only his spouse, his attorneys, his tax
advisors and any government agency to which he is required by law to reveal
the terms of this Agreement. In addition, Xxxxxx agrees not to use or
disclose any Confidential Information. Xxxxxx further represents and
warrants that none of the Company's Confidential Information is in his
possession or control, including without limitation, on the computer or
diskettes in his possession or control.
13. Injunctive Relief. Each party acknowledges that a remedy at law for
any breach or attempted breach of this Agreement will be inadequate, agrees
that each party will be entitled to specific performance and injunctive and
other equitable relief in case of any breach or attempted breach and agrees
not to use as a defense that any party has an adequate remedy at law. This
Agreement shall be enforceable in a court of equity, or other tribunal with
jurisdiction, by a decree of specific performance, and appropriate
injunctive relief may be applied for and granted in connection herewith.
Such remedy shall not be exclusive and shall be in addition to any other
remedies now or hereafter existing at law or in equity, by statute or
otherwise. No delay or omission in exercising any right or remedy set forth
in this Agreement shall operate as a waiver thereof or of any other right or
remedy and no single or partial exercise thereof shall preclude any other or
further exercise thereof or the exercise of any other right or remedy.
14. No Admission of Liability. This Agreement does not constitute an
admission of liability of any kind by the Company or Xxxxxx.
15. Governing Law. This Agreement shall be interpreted by, governed by,
and enforced under the substantive laws (and not the choice of law
provisions) of the State of Texas, except where preempted by federal law.
16. Notices. All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed to have been duly
given on the date of service if served personally on the party to whom
notice is to be given, or on the third day after mailing if mailed to the
party to whom notice is to be given, properly addressed, certified mail,
return receipt requested, postage prepaid, as follows:
If to the Company:
Sport Supply Group, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxx Xxxxxx, Xxxxx 00000
Attention: General Counsel
with a copy to:
Xxxxxxx Radio Corp.
0 Xxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: General Counsel
If to Xxxxxx:
Xxxx Xxxxxx
[home address deleted for Confidentiality]
17. Counterparts. This Agreement may be executed in multiple original
counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute but one and the same agreement.
18. Jurisdiction. The parties hereto hereby irrevocably submit to the
exclusive jurisdiction of the state and federal courts of the State of Texas
and agree and consent that service of process may be made upon each party in
any proceeding arising out of this Agreement by service of process as
provided by Texas law. All parties hereto hereby irrevocably waive, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of
or relating to this Agreement brought in the District Court of Dallas
County, State of Texas, or in the United States District Court for the
Northern District of Texas, and hereby further irrevocably waives any claims
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum. The parties hereto further agree to
designate an agent for service of process in the City of Dallas in
connection with any such suit, action or proceeding if requested by the
other party in contemplation of such a suit, action or proceeding and
deliver to the other party evidence thereof. The parties hereto hereby
irrevocably agree that any proceeding against any party arising out of or in
connection with this Agreement shall be brought in the District Courts of
Dallas County, Texas, or in the United States District Court for the
Northern District of Texas.
19. Severability. The parties hereto expressly agree that it is not the
intention of any of them to violate any public policy, statutory or common
law rules, regulations, or decisions of any governmental or regulatory body.
If any provision of this Agreement is judicially or administratively
interpreted or construed as being in violation of any public policy,
statutory or common law rules, regulations or decisions of any governmental
or regulatory body, such sections, sentences, words, clauses or combinations
thereof shall be modified to the extent necessary to make it enforceable and
this Agreement shall remain binding upon the parties hereto.
20. Descriptive Headings. The subject headings of the sections of this
Agreement are included for purposes of convenience only, and shall not
affect the construction or interpretation of any of its provisions.
21. Affiliate. When used in this Agreement, the term "Affiliate" shall
mean (1) any corporation or organization of which such person is an officer,
director or partner or is directly or indirectly the beneficial owner of 10%
or more of any class of equity securities or financial interest therein; or
(2) any persons that directly or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control
with, the person specified. Any person who is an Affiliate of any party
hereto on the date hereof shall be deemed to be the Affiliate of such party
for purposes of this Agreement, regardless of whether such person ceases to
be an Affiliate of such party after the date hereof. Any person who at any
time after the date hereof becomes an Affiliate of any party hereto shall be
deemed to be the Affiliate of such party for purposes of this Agreement,
regardless of whether such person was an Affiliate on the date hereof.
22. Nondisparagement of Xxxxxx; Letter of Recommendation. The Company
agrees that after the date hereof, it will not say, publish or take any
action that casts Xxxxxx in an unfavorable light, or disparage or injure the
Xxxxxx'x or Xxxxxx'x business reputation. Notwithstanding the foregoing,
nothing herein shall prohibit or hinder the Company from truthfully stating
Xxxxxx'x performance as an officer, director or employee, as appropriate, of
the Company. The Company also agrees, upon written request by Xxxxxx, to
provide Xxxxxx with a letter of recommendation signed by the Chairman of
Xxxxxxx and/or SSG.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be effective as of September 26, 2003.
SPORT SUPPLY GROUP, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
Name: Xxxxxxxx X. Xxxxxxx
Title: Chief Operating Officer
XXXXXXX RADIO CORP.
By: /s/ Xxxxxxxxx X. Xxxxxxxxx, SVP
Name: Xxxxxxxxx X. Xxxxxxxxx
Title: SVP-HR
Xxxx X. Xxxxxx
___________________________________
