Exhibit 99.3
RESIGNATION AND GENERAL RELEASE AGREEMENT
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This Resignation and General Release Agreement (this "Agreement") is
entered into as of June 15, 2004 by and between Xxxxxx'x Trading Company, Inc.,
an Indiana corporation (the "Company"), and Xxxxxx X. Xxxxxxxxx, an individual
residing at [home address omitted] ("Executive").
WHEREAS, Executive is serving as Senior Vice President, Marketing of
the Company;
WHEREAS, Executive wishes to resign from his position with the Company,
as described herein;
WHEREAS, Executive and the Company each desire to set forth in this
Agreement the terms and conditions of Executive's resignation and resolve any
and all claims or potential claims between them arising out of or in any way
related to Executive's employment with the Company;
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and valuable consideration, receipt of which is hereby
acknowledged, the parties agree as follows:
1. Executive's Resignation. Executive shall resign as Senior Vice
President, Marketing of the Company, and his employment with the Company shall
end in all respects, at the close of business on the earlier of (i) September
25, 2004 (the "Outside Date") or (ii) the date which is thirty (30) days after
either Executive or the Chief Executive Officer of the Company provides a notice
of termination to the other party (the "Notice Date"; the earlier of the Outside
Date or the date which is thirty (30) days after the Notice Date being
hereinafter referred to as the "Resignation Date"); provided, however, that in
the event the Chief Executive Officer determines that it is in the Company's
best interest, Executive agrees that he will resign as an officer on a date
earlier than the Resignation Date, but remain as an employee of the Company for
all purposes through such Resignation Date.
2. Payments and Benefits to Executive. The Company agrees to
provide the following payments and benefits to Executive:
(a) The Company shall pay Executive his regular and usual
base salary ($265,000 annual rate) and usual benefits earned through the
Resignation Date;
(b) In addition to the foregoing, and provided that
Executive is not in breach of the terms of this Agreement, the Company shall
also provide the following benefits:
(i) The Company shall continue to pay Executive
his regular and usual base salary ($265,000 annual rate) through the first
anniversary of the Resignation Date, pursuant to the Company's normal payroll
practices and subject to applicable withholdings and authorized deductions;
provided, however, that the Company's payments under this Paragraph during three
(3) month period prior to the first anniversary of the Resignation Date (the
"Mitigation Period"), shall be reduced by any compensation to which Executive is
entitled to receive during such Mitigation Period for services performed for
another employer, and Executive agrees to report such compensation promptly to
the Company's Senior Vice President, Human Resources, at the Company's principal
offices; and provided further, however, that Executive shall have no obligation
to find employment with another employer;
(ii) All vested options as of the Resignation
Date granted to Executive under the Company's 1999 Stock Option Plan, as
amended, shall be exercisable through the first anniversary of the Resignation
Date (a schedule of vested options as of the date hereof is attached hereto);
and
(iii) Executive shall be entitled to receive a
regular employee discount pursuant to whatever employee discount program the
Company is then providing to its employees, through the first anniversary of the
Resignation Date.
(c) After the Resignation Date, Executive shall have the
option to continue his health insurance pursuant to the provisions of the
Consolidated Omnibus Reconciliation Act of 1985 ("COBRA"), in which event he
will be responsible for the full cost of premiums as permitted by COBRA.
(d) Executive acknowledges and agrees that he is entitled
to no other payments, benefits, or compensation of any kind other than as set
forth in this Paragraph 2.
3. Release.
(a) In consideration of the obligations contained in this
Agreement, Executive acknowledges and agrees that upon and following the
Resignation Date, he shall be entitled to no further payments, rights, or
benefits pursuant to any other agreement with the Company or any affiliate of
the Company existing as of the date hereof, other than the payments, rights, or
benefits set forth herein. In this regard, Executive hereby (i) waives his right
to receive any further compensation and benefits from the Company or any
affiliate of the Company pursuant to any other agreement with the Company or any
affiliate of the Company existing as of the date hereof (other than pursuant to
this Agreement), and (ii) agrees that all other obligations of the Company are
hereby discharged; provided, however, that nothing in this Agreement shall
affect (x) any vested interest Executive may have in Xxxxxx'x Trading Company,
Inc.'s 401(k) Plan (which shall be distributed to Executive within 30 days
following the Resignation Date), (y) any COBRA rights Executive may have, or (z)
the extended rights to exercise vested options set forth in Section 2(b)(ii)
above (no unvested options shall vest after the Resignation Date).
(b) Except for those obligations created by or arising
out of this Agreement, Executive, on behalf of himself, his descendants,
dependents, heirs, executors, administrators, assigns, and successors, and each
of them, acknowledges full and complete satisfaction of and releases and
discharges and covenants not to xxx the Company, its subsidiaries, parent, and
affiliated companies, past and present, and each of them, as well as its and
their trustees, directors, officers, agents, attorneys, insurers, and employees,
past and present, and each of them, (together and each of them collectively
referred to as "Releasees") from and with respect to any and all claims, wages,
agreements, obligations, demands, and causes of action, known or unknown,
suspected or unsuspected, arising out of or in any way connected with
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Executive's employment relationship with the Company or any other transactions,
occurrences, acts, or omissions or any loss, damage, or injury whatever, known
or unknown, suspected or unsuspected, resulting from any act or omission by or
on the part of said Releasees, or any of them, committed or omitted prior to the
date of this Agreement (collectively "Claims"). Without limiting the generality
of the foregoing, Executive acknowledges and agrees that the Claims being
released include, but are not limited to, any claim under Title VII of the Civil
Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with
Disabilities Act, the Family and Medical Leave Act of 1993, the Indiana Civil
Rights Law, or common law theory, or any Claim for severance pay, bonus, stock
options, sick leave, holiday pay, vacation pay, life insurance, health or
medical insurance, or any other fringe benefit.
(c) Except for those obligations created by or arising
out of this Agreement, and except in respect of any criminal or fraudulent acts
by Executive, the Company releases, discharges and covenants not to xxx
Executive in respect of Executive's employment with the Company.
4. Non-Competition. Executive acknowledges that by virtue of his
position with the Company he has been given access to confidential and highly
sensitive non-public information of substantial importance to the Company,
including but not limited to financial information, identities of distributors,
contractors, and vendors utilized in the Company's business, non-public forms,
contracts, and other documents used in the Company's business, trade secrets
used, developed, or acquired by the Company, information concerning the manner
and details of the Company's operation, organization and management, the
Company's business plans and strategies, price information, customer lists, and
research and development data, and that the services he has provided to the
Company are unique. For a period of one (1) year commencing on the Resignation
Date (the "Non-Competition Term"), Executive agrees that he will not directly or
indirectly engage in, as an employee, consultant, or otherwise, any business in
the United States primarily engaged in the retail sporting goods or retail
sports apparel business, nor will he accept employment, consult for, or
participate, directly or indirectly, in the ownership or management of any
enterprise in the United States engaged in such a business (such competing
businesses currently include, without limitation, Academy Sports, Bass Pro, REI,
Gander Mountain, Cabella's, Sports Authority, Dick's Sporting Goods, Gart
Sports, Modell's, Copeland, Sports Chalet, Hibbett's and Christie Sports, and
any subsidiaries of any of them). Notwithstanding the foregoing, Executive may
invest as the holder of not more than four percent (4%) of the outstanding
shares of any corporation whose stock is listed on any national or regional
securities exchange or reported by the National Association of Securities
Dealers Automated Quotation System or any successor thereto.
5. Non-Solicitation. For a period of one (1) year, commencing on
the Resignation Date (the "Non-Solicitation Term"), Executive and/or any entity
with which he is at the time affiliated (and which is not affiliated with the
Company), shall not, directly or indirectly, hire or offer to hire or entice
away or in any other manner persuade or attempt to persuade any officer,
employee, agent, or customer of the Company or any of its affiliates, or any
person who supplies goods or services or licenses intangible or tangible
property to the Company or any of its affiliates to discontinue his, her, or its
relationship with such entity. Executive represents and warrants that he has
not, prior to the date hereof, acted or failed to act in a way that would
constitute a breach of the terms of this covenant not to solicit.
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6. Confidential or Proprietary Information or Material. Executive
recognizes and acknowledges that, through his association with the Company, he
has had access to confidential or proprietary information or material relating
in the reasonable opinion of the Company to the Company's operations or
businesses, including the Company's subsidiaries, which he may have obtained
from the Company, its subsidiaries, or their officers, directors, or employees,
or otherwise by virtue of his employment by the Company. Confidential or
proprietary information or material includes, without limitation, the following
types of information or material, both existing and contemplated, regarding the
Company, its direct or indirect parents, subsidiaries, affiliates, or related
companies: proprietary data processing systems and software; corporate
information, including contractual arrangements, plans, strategies, tactics,
policies, resolutions, patent, copyright, trademark, and tradename applications,
and any litigation or negotiations; marketing information, including sales or
product plans, strategies, methods, customers, prospects, or market research
data; financial information, including cost and performance data, debt
arrangements, equity structure, investors, and holdings; operations and
scientific information, including trade secrets and technical information; and
personnel information, including personnel lists, resumes, personnel data,
organizational structure, and performance evaluations; provided, however, that
confidential or proprietary information or material does not include any
information or material that is generally available to the public. Executive
recognizes that this confidential or proprietary information or material
constitutes a valuable and unique asset of the Company, developed and perfected
over considerable time and at substantial expense to the Company. Executive
shall not disclose, without the written consent of the Company or as required by
law, to any person, firm, partnership, association, or corporation such
confidential or proprietary information or material, and Executive agrees to
hold such confidential or proprietary information or material in trust for the
sole benefit of the Company. Executive shall not, for the direct or indirect
benefit of himself or another: (1) take with him, without the written consent of
the Company, any lists of Company customers or potential customers, pricing
lists, employee lists, or other documents, computer software,
electronically-stored data, recordings, master videotapes of any of the
foregoing, or any other confidential or proprietary information or material; or
(2) reconstruct the same or similar information from memory or from some other
source associated with the Company.
7. Non-Disparagement/No Publicity. Executive agrees not to make
any disparaging remarks, or any remarks that could reasonably be construed as
disparaging, regarding the Company or its officers, directors, employees,
partners, owners, affiliates, or agents. Executive further agrees that he will
not take any action or provide information or issue statements, to the media or
otherwise, or cause anyone else to take any action or provide information or
issue statements, to the media or otherwise, regarding the Company or its
officers, directors, employees, partners, owners, affiliates, or agents. The
Company agrees that it will not make any disparaging remarks about Executive.
8. Confidentiality. Executive agrees to keep the terms of this
Agreement confidential and agrees that he will not disclose any information
concerning it to anyone, except that he may disclose the terms of this Agreement
to his attorneys, accountants, advisors, and immediate family members, provided
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that he advises such persons of the confidential nature of this Agreement and
they agree not to disclose such information further, and except as may otherwise
be necessary to enforce its terms or as required by law.
9. Representation and Warranties. Executive hereby represents and
warrants that (i) he is free to enter into this Agreement and that he is not
subject to any obligations or disabilities which will or might prevent him or
interfere with his keeping and performing all of the agreements, covenants, and
conditions to be kept or performed hereunder, and (ii) he has not heretofore
assigned or transferred to any person not a party to this Agreement any released
matter or any part or portion thereof and he shall defend, indemnify, and hold
harmless the Company from and against any claim (including the payment of
attorneys' fees and costs actually incurred whether or not litigation is
commenced) based on or in connection with or arising out of any such assignment
or transfer made, purported, or claimed.
10. Amendments; Waivers. This Agreement may be amended only by
agreement in writing of each of the parties hereto. No waiver of any provision
or consent to any exception to the terms of this Agreement shall be effective
unless in writing and signed by the party to be bound and then only to the
specific purpose, extent, and instance so provided.
11. Severability. If any provision of this Agreement or the
application thereof is held invalid, the invalidity shall not affect other
provisions or applications of the Agreement which can be given effect without
the invalid provisions or application and, to this end, the provisions of this
Agreement are declared to be severable.
12. Entire Agreement. This instrument constitutes and contains the
entire agreement and final understanding concerning Executive's employment,
separation from the same, and the other subject matters addressed herein between
the parties. It is intended by the parties as a complete and exclusive statement
of the terms of their agreement. It supersedes and replaces all prior
negotiations and all agreements, proposed or otherwise, whether written or oral,
concerning the subject matters hereof. Any representation, promise, or agreement
not specifically included in this Agreement shall not be binding upon or
enforceable against either party. This is a fully integrated agreement.
13. Further Action. The parties shall execute and deliver all
documents, provide all information and take or forbear from taking all action as
may be necessary or appropriate to achieve the purposes of this Agreement.
Nothing herein shall prohibit Executive from seeking a judicial determination of
the validity of the waivers set forth herein.
14. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Indiana applicable to
contracts made and performed in the State of Indiana and without regard to
conflicts of laws doctrines.
15. Succession. This Agreement shall be binding upon and
enforceable by, and shall inure to the benefit of, the Company and its
respective successors and assigns, whether as a result of merger, acquisition or
otherwise. The obligations and duties of Executive hereunder are personal and
not assignable, and any attempt of assignment or transfer of Executive's duties
or obligations shall be void.
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16. Headings. The headings of the several paragraphs herein are
inserted for convenience of reference only and are not intended to be a part of
or to affect the meaning of this Agreement.
17. Counterparts. This Agreement may be executed in one or more
counterparts, and by different parties in separate counterparts. All of such
counterparts shall constitute one and the same instrument. A signature by
facsimile shall have the same force and effect as an original.
IN WITNESS WHEREOF, the undersigned have read and understand
the consequences of this Agreement and voluntarily signed it.
EXECUTED as of the date first above written at Plainfield,
Indiana.
By: /s/ XXXXXX X. XXXXXXXXX
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Xxxxxx X. Xxxxxxxxx
XXXXXX'X TRADING COMPANY, INC.
By: /s/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx, Chief Executive Officer
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ACKNOWLEDGMENT AND WAIVER
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I, Executive, hereby acknowledge that I was given 21 days to consider
the foregoing Agreement and voluntarily chose to sign the Agreement prior to the
expiration of the 21-day period.
I declare under penalty of perjury under the laws of the State of
Indiana that the foregoing is true and correct.
EXECUTED this 15 day of June, 2004, at Plainfield, Indiana.
/s/ XXXXXX X. XXXXXXXXX
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Xxxxxx X. Xxxxxxxxx
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