AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment dated as of August 29, 1997, effective as of
July 1, 1997, to Employment Agreement dated April 11, 1997 (the "Employment
Agreement") is entered into among Xxxx X. Xxxxxx (the "Executive"), Xxxx Sports
Corp., a Delaware corporation (the "Holding Company"), and Xxxx Sports, Inc., a
California corporation (the "Operating Company"). Except as otherwise provided
in Appendix A hereto, the Holding Company and the Operating Company are
collectively referred to herein as the "Company."
WHEREAS, the Executive currently serves as President and Chief
Operating Officer of both the Holding Company and the Operating Company pursuant
to the terms of the Employment Agreement; and
WHEREAS, the Company and the Executive desire to amend the
Employment Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements contained herein, the parties hereby agree that the Employment
Agreement shall be amended as set forth below, effective as of July 1, 1997.
1. The first sentence of Section 3(a) of the Employment
Agreement is amended to read in its entirety as follows:
"During the Employment Period, the Company shall pay to the Executive
an annual base salary at the rate of $300,000 per annum, payable in
accordance with the Company's executive payroll policy."
2. The fifth sentence of Section 3(c)(i) of the Employment
Agreement is amended to read in its entirety as follows, and Appendix A to this
Amendment shall be Appendix A to the Employment Agreement:
"All restricted phantom stock units awarded pursuant to this Section
3(c)(i) shall become fully vested upon the earlier to occur of the
termination of the Employment Period or a 'Change in Control' of the
Company, as such term is defined in Appendix A to this Agreement;
provided, however, that in the event of the termination of the
Executive's employment voluntarily by the Executive pursuant to Section
4(e) hereof or by the Company for "Cause" pursuant to Section 4(c)
hereof (as such term is defined in such section), no such restricted
phantom stock units shall vest, and all such restricted phantom stock
units shall be forfeited."
3. Section 3(e) of the Employment Agreement is amended to read
in its entirety as follows:
"(e) Perquisites. During the Employment Period, the Executive
shall be entitled to (i) the use of an automobile and reimbursement by
the Company for all expenses relating to the operation thereof and (ii)
reimbursement for all expenses relating to the Executive's commuting by
commercial airline between the San Xxxx and Los Angeles metropolitan
areas."
4. Section 3(h) of the Employment Agreement is amended by
adding the following sentence at the end thereof:
"In addition, the Executive shall be reimbursed for all medical and
dental expenses that are not covered under the medical and dental plans
otherwise covering the Executive."
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
XXXX SPORTS CORP.
By /s/ Xxxxx X. Xxx
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Xxxxx X. Xxx
Chairman of the Board and
Chief Executive Officer
XXXX SPORTS, INC.
By /s/ Xxxxx X. Xxx
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Xxxxx X. Xxx
Chairman of the Board and
Chief Executive Officer
EXECUTIVE:
/s/ Xxxx X. Xxxxxx
------------------------------------
Xxxx X. Xxxxxx
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Appendix A
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For purposes of the Employment Agreement dated April 11, 1997,
as amended as of August 29, 1997, among Xxxx X. Xxxxxx, Xxxx Sports Corp. (the
"Company") and Xxxx Sports, Inc., "Change in Control" shall mean:
(1) the acquisition by any individual, entity or group (a
"Person"), including any "person" within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), of beneficial ownership within the meaning of Rule 13d-3 promulgated
under the Exchange Act, of 20% or more of either (i) the then outstanding shares
of common stock of the Company (the "Outstanding Company Common Stock") or (ii)
the combined voting power of the then outstanding securities of the Company
entitled to vote generally in the election of directors (the "Outstanding
Company Voting Securities"); provided, however, that the following acquisitions
shall not constitute a Change in Control: (A) any acquisition directly from the
Company (excluding any acquisition resulting from the exercise of a conversion
or exchange privilege in respect of outstanding convertible or exchangeable
securities), (B) any acquisition by the Company, (C) any acquisition by an
employee benefit plan (or related trust) sponsored or maintained by the Company
or any corporation controlled by the Company, (D) any acquisition by any
corporation pursuant to a reorganization, merger or consolidation involving the
Company, if, immediately after such reorganization, merger or consolidation,
each of the conditions described in clauses (i), (ii) and (iii) of section (3)
of this definition shall be satisfied; and provided further that, for purposes
of clause (B), if any Person (other than the Company or any employee benefit
plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company) shall become the beneficial owner of 20%
or more of the Outstanding Company Common Stock or 20% or more of the
Outstanding Company Voting Securities by reason of an acquisition by the Company
and such Person shall, after such acquisition by the Company, become the
beneficial owner of any additional shares of the Outstanding Company Common
Stock or any additional Outstanding Voting Securities and such beneficial
ownership is publicly announced, such additional beneficial ownership shall
constitute a Change in Control;
(2) individuals who, as of the date hereof, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at least
66-2/3% of such Board; provided, however, that any individual who becomes a
director of the Company subsequent to the date hereof whose election, or
nomination for election by the Company's stockholders, was approved by the vote
of at least 66-2/3% of the directors then comprising the Incumbent Board shall
be deemed to have been a member of the
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Incumbent Board; and provided further, that no individual who was initially
elected as a director of the Company as a result of an actual or threatened
election contest, as such terms are used in Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act, or any other actual or threatened
solicitation of proxies or consents by or on behalf of any Person other than the
Board shall be deemed to have been a member of the Incumbent Board;
(3) approval by the stockholders of the Company of a
reorganization, merger or consolidation unless, in any such case, immediately
after such reorganization, merger or consolidation, (i) more than 60% of the
then outstanding shares of common stock of the corporation resulting from such
reorganization, merger or consolidation and more than 60% of the combined voting
power of the then outstanding securities of such corporation entitled to vote
generally in the election of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals or entities who were
the beneficial owners, respectively, of the Outstanding Company Common Stock and
the Outstanding Company Voting Securities immediately prior to such
reorganization, merger or consolidation and in substantially the same
proportions relative to each other as their ownership, immediately prior to such
reorganization, merger or consolidation, of the Outstanding Company Common Stock
and the Outstanding Company Voting Securities, as the case may be, (ii) no
Person (other than the Company, any employee benefit plan (or related trust)
sponsored or maintained by the Company or the corporation resulting from such
reorganization, merger or consolidation (or any corporation controlled by the
Company) and any Person which beneficially owned, immediately prior to such
reorganization, merger or consolidation, directly or indirectly, 20% or more of
the Outstanding Company Common Stock or the Outstanding Company Voting
Securities, as the case may be) beneficially owns, directly or indirectly, 20%
or more of the then outstanding shares of common stock of such corporation or
20% or more of the combined voting power of the then outstanding securities of
such corporation entitled to vote generally in the election of directors and
(iii) at least 66-2/3% of the members of the board of directors of the
corporation resulting from such reorganization, merger or consolidation were
members of the Incumbent Board at the time of the execution of the initial
agreement or action of the Board providing for such reorganization, merger or
consolidation; or
(4) approval by the stockholders of the Company of (i) a plan
of complete liquidation or dissolution of the Company or (ii) the sale or other
disposition of all or substantially all of the assets of the Company other than
to a corporation with respect to which, immediately after such sale or other
disposition, (A) more than 60% of the then outstanding shares of common stock
thereof and more than 60% of the combined voting power of the then outstanding
securities thereof entitled to vote generally in the election of directors is
then beneficially
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owned, directly or indirectly, by all or substantially all of the individuals
and entities who were the beneficial owners, respectively, of the Outstanding
Company Common Stock and the Outstanding Company Voting Securities immediately
prior to such sale or other disposition and in substantially the same
proportions relative to each other as their ownership, immediately prior to such
sale or other disposition, of the Outstanding Company Common Stock and the
Outstanding Company Voting Securities, as the case may be, (B) no Person (other
than the Company, any employee benefit plan (or related trust) sponsored or
maintained by the Company or such corporation (or any corporation controlled by
the Company) and any Person which beneficially owned, immediately prior to such
sale or other disposition, directly or indirectly, 20% or more of the
Outstanding Company Common Stock or the Outstanding Company Voting Securities,
as the case may be) beneficially owns, directly or indirectly, 20% or more of
the then outstanding shares of common stock thereof or 20% or more of the
combined voting power of the then outstanding securities thereof entitled to
vote generally in the election of directors and (C) at least 66-2/3% of the
members of the board of directors thereof were members of the Incumbent Board at
the time of the execution of the initial agreement or action of the Board
providing for such sale or other disposition.
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