FORM 10−K
SPORTS AUTHORITY INC /DE/ − TSA
Filed: April 15, 2004 (period: January 31, 2004)
Annual report which provides a comprehensive overview of the company for the past year
Table of Contents
Part III
of this Form 10−K is incorporated by reference from the Registrant's 2004 definitive proxy
Items 1. 2. Business and Properties
PART I
ITEM 1.
ITEM 3.
ITEM 4.
Business; and ITEM 2. Properties
Legal Proceedings
Submission of Matters to a Vote of Security Holders
PART II
Market Price of Common Stock and Related Stockholder Matters
Selected Consolidated Financial Data
Management's Discussion and Analysis of Financial Condition and Results of
Operations
ITEM 7A. Quantitative and Qualitative Disclosures about Market Risk
ITEM 8. Financial Statements and Supplementary Data
ITEM 9. Changes in and Disagreements with Accountants on Accounting and Financial
Disclosure
ITEM 9A. Controls and Procedures
ITEM 5.
ITEM 6.
ITEM 7.
PART III
ITEM 10. Directors and Executive Officers of the Registrant
ITEM 11. Executive Compensation
ITEM 12. Security Ownership of Certain Beneficial Owners and Management and Related
Stockholder Matt
ITEM 13. Certain Relationships and Related Transactions
ITEM 14. Principal Accountant Fees and Services
PART IV
ITEM 15. Exhibits, Financial Statement Schedules, And Reports on Form 8−K
SIGNATURES
Signature
EXHIBIT INDEX
EX−10.2 (Material contracts)
EX−10.5.1 (Material contracts)
EX−10.14 (Material contracts)
EX−10.15 (Material contracts)
EX−10.16 (Material contracts)
EX−10.17 (Material contracts)
EX−10.18 (Material contracts)
EX−10.19 (Material contracts)
EX−10.20 (Material contracts)
EX−10.21 (Material contracts)
EX−10.22 (Material contracts)
EX−10.23 (Material contracts)
EX−10.24 (Material contracts)
EX−10.25 (Material contracts)
EX−10.33.1 (Material contracts)
EX−14 (Code of Ethics and Business Conduct)
EX−21 (Subsidiaries of the registrant)
EX−23.1 (Consents of experts and counsel)
EX−31.1
EX−31.2
EX−32.1
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TABLE OF CONTENTS
THE SPORTS AUTHORITY, INC. INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10−K
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
For the Fiscal Year ended January 31, 2004
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934
For the Transition Period from
to
Commission file number 000−23515
THE SPORTS AUTHORITY, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
84−1242802
(I.R.S. Employer Identification No.)
1050 West Hampden Avenue
Englewood, Colorado
(Address of principal executive office)
80110
(Zip Code)
(303) 200−5050
(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
Common Stock, par value $.01 per share
(title of class)
New York Stock Exchange
(name of each exchange on which registered)
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes
No
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S−K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10−K or any amendment to this
Form 10−K.
Indicate by check mark whether the registrant is an accelerated filer (as defined in Exchange Act Rule 12b−2) Yes
No
The aggregate market value of the voting stock held by non−affiliates of the registrant, based on the last sale price of registrant's common stock on
August 2, 2003, as reported by the Nasdaq Stock Market's National Market, was approximately $242,000,000. In determining the market value of non−affiliate
voting stock, shares of registrant's common stock beneficially owned by each executive officer and Director have been excluded. This determination of affiliate
status is not necessarily a conclusive determination for other purposes.
Indicate the number of shares outstanding of each of the registrant's classes of common stock, as of the latest practicable date: 25,502,597 Shares of
Common Stock outstanding as of March 26, 2004.
Documents Incorporated by Reference
Part III of this Form 10−K is incorporated by reference from the Registrant's 2004 definitive proxy statement to be filed with the Securities and Exchange
Commission no later than 120 days after the end of the Registrant's fiscal year.
TABLE OF CONTENTS
Part I
Items 1. & 2.
Item 3.
Item 4.
Business and Properties
Legal Proceedings
Submission of Matters to a Vote of Security Holders
Part II
Item 5.
Item 6.
Item 7.
Item 7A.
Item 8.
Item 9.
Item 9a.
Market Price of Common Stock and Related Stockholder Matters
Selected Consolidated Financial Data
Management's Discussion and Analysis of Financial Condition and Results of Operations
Quantitative and Qualitative Disclosures about Market Risk
Financial Statements and Supplementary Data
Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
Controls and Procedures
Part III
Item 10.
Item 11.
Item 12.
Item 13.
Item 14.
Directors and Executive Officers of the Registrant
Executive Compensation
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
Certain Relationships and Related Transactions
Principal Accountant Fees and Services
Part IV
Item 15.
Exhibits, Financial Statement Schedules, and Reports on Form 8−K
Index to Consolidated Financial Statements
Forward−Looking Statements
We caution that any forward−looking statements (as such term is defined in the Private Securities Litigation Reform Act of 1995) contained in this Annual
Report on Form 10−K or made by our management involve risks and uncertainties and are subject to change based on various important factors, many of which
may be beyond our control. Accordingly, our future performance and financial results may differ materially from those expressed or implied in any such
forward−looking statements. Accordingly, investors should not place undue reliance on forward−looking statements as a prediction of actual results. You can
identify these statements as those that may predict, forecast, indicate or imply future results, performance or advancements and by forward−looking words such
as "believe," "anticipate," "expect," "estimate," "predict," "intend," "plan," "project," "will," "will be," "will continue," "will result," "could," "may," "might" or
any variations of such words or other words with similar meanings. Forward−looking statements address, among other things, our expectations, our growth
strategies, including our plans to open new stores, our efforts to increase profit margins and return on invested capital, plans to grow our private label business,
projections of our future profitability, results of operations, capital expenditures or our financial condition or other "forward−looking" information and includes
statements about revenues, earnings, spending, margins, liquidity, store openings and operations, inventory, private label products, our actions, plans or
strategies.
The following factors, among others, in some cases have affected and in the future could affect our financial performance and actual results and could cause
actual results for 2004 and beyond to differ materially from those expressed or implied in any forward−looking statements included in this report or otherwise
made by our management: the intense competition in the sporting goods industry and actions by our competitors; our inability to manage our growth, open new
stores on a timely basis and expand successfully in new and existing markets; the availability of retail store sites on terms acceptable to us; the cost of real estate
and other items related to our stores; changes in consumer demand; risks relating to product liability claims and the availability of sufficient insurance coverage
relating to those claims; our relationships with our suppliers, distributors or manufacturers and their ability to provide us with sufficient quantities of products;
any serious disruption at our distribution or return facility; the seasonality of our business; the potential impact of natural disasters or national and international
security concerns on us or the retail environment; risks related to the economic impact or the effect on the U.S. retail environment relating to instability and
conflict in the Middle East or elsewhere; risks relating to the regulation of the products we sell, such as firearms; risks associated with relying on foreign sources
of production; risks relating to our pursuit of strategic acquisitions; our ability to meet our labor needs; changes in general economic and business conditions and
in the specialty retail or sporting goods industry in particular; and other factors discussed elsewhere in this report in further detail under the caption "Risks and
Uncertainties" as well as other reports or filings filed by us with the Securities and Exchange Commission.
In addition, we operate in a highly competitive and rapidly changing environment; therefore, new risk factors can arise, and it is not possible for
management to predict all such risk factors, nor to assess the impact of all such risk factors on our business or the extent to which any individual risk factor, or
combination of factors, may cause results to differ materially from those contained in any forward−looking statement. We do not assume any obligation and do
not intend to update any forward−looking statements.
PART I
ITEM 1. Business; and ITEM 2. Properties
General
On August 4, 2003, a wholly−owned subsidiary of Gart Sports Company completed a merger with The Sports Authority, Inc., creating the nation's largest
publicly traded full−line sporting goods retailer with pro forma combined sales of approximately $2.5 billion in the fiscal year ended January 31, 2004. The
combined company operated 384 stores in 45 states as of January 31, 2004. The merger was accounted for under the purchase method of accounting with Gart
Sports Company as the acquirer, and accordingly, our financial information includes TSA since the date of the merger. Prior year financial information and
financial information for the first 26 weeks of the 52 weeks ended January 31, 2004, reflect the former Gart Sports Company on a stand−alone basis.
In connection with the merger, The Sports Authority, Inc. became a wholly−owned subsidiary of Gart Sports Company. Gart Sports Company was then
renamed The Sports Authority, Inc. and the former The Sports Authority, Inc. was renamed TSA Stores, Inc. ("TSA Stores"). Except as otherwise indicated
herein, the words "we," "us," "our," and "Company" refer to The Sports Authority, Inc. (formerly Gart Sports Company), and its direct and indirect subsidiaries,
references to "Gart Sports" or to the "Sports Authority" refer to the stores operated under those brand names by certain of our wholly−owned subsidiaries and the
"TSA merger" means the Gart Sports Company/The Sports Authority, Inc. merger described above.
At the time of the merger, TSA Stores operated 205 Sports Authority stores. In addition, a joint venture between TSA Stores and AEON Co., Ltd. operated
39 Sports Authority stores in Japan under a licensing agreement.
We currently operate our stores under four brand names: Sports Authority, Gart Sports, Oshman's and Sportmart. Gart Sports' business was established in
1928 and Gart Sports Company was incorporated in Delaware in 1993. In January 1998, Gart Sports acquired 59 Sportmart superstores, doubling its store base
and expanding its geographic presence to eight additional states. In June 2001, Gart Sports acquired 58 Oshman's stores, increasing its store base by nearly 50%
and expanding its geographic presence to nine additional states. Finally, the TSA merger in August 2003 more than doubled the Company's store base and
expanded its presence to 20 additional states.
Our corporate headquarters are located at 1050 West Hampden Avenue, Englewood, Colorado 80110, and our telephone number is (303) 200−5050. Our
website is located at www.thesportsauthority.com. We are not including the information contained on our website as part of, or incorporating it by reference into,
this Annual Report on Form 10−K. We make available free of charge through our website our Annual Reports on Form 10−K, Quarterly Reports on Form 10−Q
and Current Reports on Form 8−K, and amendments to these reports, as soon as reasonably practicable after we electronically file such material with, or furnish
such material to, the Securities and Exchange Commission.
Industry Overview, Competition
The sporting goods retail sector is highly fragmented and intensely competitive. This sector is comprised of five principal categories of retailers: large
format sporting goods stores, traditional sporting goods stores, specialty sporting goods stores, mass merchandisers and catalog and internet based retailers. In
addition, a variety of other retailers sell various types of sporting goods, principally athletic footwear and apparel.
Large Format Sporting Goods Stores. Full line sporting goods retailers, like us, generally range in size from 20,000 to 100,000 square feet, offer a broad
selection of brand name sporting goods and tend to be either anchor stores in strip malls or in free−standing locations. Examples of these retailers include our
stores (which include Sports Authority, Gart Sports, Sportmart and Oshman's), Dick's Sporting Goods, Sport Chalet, Galyan's Trading Company, GI Joe's,
Academy Sports and Outdoors, Decathlon and Dunham's Sports.
Traditional Sporting Goods Stores. Traditional sporting goods retailers tend to have relatively small stores, generally range in size from 5,000 to 20,000
square feet and are frequently located in malls or strip centers. Examples of these retailers are Modell's Sporting Goods, Big 5 Sporting Goods and Hibbett
Sporting Goods, as well as local independent sporting goods retailers. These retailers typically carry limited quantities of each item in their assortment and
generally offer a more limited selection at higher prices than full line sporting goods retailers.
Specialty Sporting Goods Stores. Specialty sporting goods retailers include specialty shops and are frequently located in malls or strip centers. Examples
of these retailers include Edwin Watts Golf Shops, Golfsmith, Nevada Bob's, Champs, Foot Locker, Foot Action, The Athlete's Foot, Bass Pro Shops, The Finish
Line, West Marine, Cabela's and REI. These retailers also include pro shops that often are single store operations. Specialty sporting goods retailers typically
carry a wide assortment of one specific product category, such as athletic shoes or golf, tennis, camping or outdoor equipment and generally have higher prices
than full line sporting goods retailers.
Mass Merchandisers. Mass merchandisers' stores generally range in size from 50,000 to 200,000 square feet, feature sporting goods as part of their overall
assortment and are located primarily in strip centers, free−standing locations or shopping malls. Stores in this category include discount retailers such as
Wal−Mart, Target and Kmart, warehouse clubs such as Costco, and department stores such as JC Penney and Sears. These retailers usually have limited selection
and fewer brand names and typically do not offer the customer service offered by specialty and full line sporting goods retailers.
Catalog and Internet Based Retailers. We compete with catalog and internet retailers such as L.L. Bean, Eddie Bauer, Land's End and Cabela's, internet
retailers, and sporting goods websites operated by GSI Commerce, Inc.
We believe that we will continue to face competition from retailers in each of these categories. The principal competitive factors include store location and
image, product selection, quality, price, and customer service. Increased competition in markets in which we have stores, the adoption by competitors of
innovative store formats and retail sales methods, the entry of new competitors in our markets or the expansion of operations by existing competitors in our
markets could have a material adverse effect on our business, financial condition and operating results. In addition, some of our competitors have substantially
greater resources than us. We believe that the principal strengths with which we compete are our broad selection and competitive prices combined with a high
level of customer service and brand names typically available only in specialty stores and pro shops.
Business Strategy
Our business strategy is to provide our customers with an extensive selection of high quality, brand name merchandise at competitive prices with a high
level of customer service. The key elements of our business strategy are the following:
Broad Assortment of Quality, Brand Name Products. We carry over 125,000 active Stock Keeping Units (SKUs), including popular brands like Adidas,
Coleman, Columbia, Easton, FootJoy, K2, New Balance, Nike, Rawlings, Reebok, Rollerblade, Rossignol, Russell, Salomon, Spalding, Speedo, The North Face
and Wilson. Our customer service, expert technicians and specialty store presentation enable us to purchase directly from manufacturers the full product lines
typically available only in specialty stores and pro shops, such as Armour, Cleveland, Taylor Made, and Titleist golf accessories, Schwinn Fitness, Haro Bikes,
Diamondback bikes, Volkl ski equipment and Burton snowboards.
Attractive Shopping Environment. We seek to offer an attractive shopping environment that showcases the breadth of our product offerings and reinforces
our distinctive brand image. Our brightly−lit stores are designed to project a clean, upscale atmosphere, with a user−friendly layout
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featuring wide aisles, well−organized merchandise displays and clearly defined departments arranged in a logical and convenient floor plan.
Customer Service. Our objective is to provide a high level of customer service generally associated with specialty sporting goods stores and pro shops. We
have committed increased resources to our customer service program in an effort to achieve these high standards. In 2003, we began using a commission
program to increase the level of customer service in many of our technical areas such as bikes, fitness, ski, and golf. We use an independent professional
shopping service to monitor the stores' compliance with customer service initiatives and procedures. In addition, we offer our customers special services
including special order capability, equipment rental, on−site repair centers, ski lift tickets and hunting and fishing licenses. We strive to provide a high level of
technical service for products, including skis and snowboards, bikes, exercise equipment and hunting products.
Customized Merchandise Mix. We tailor our product mix to market to specific demographic groups and lifestyles. Purchasing decisions are made on a
regional, and sometimes a store by store basis, and field personnel work directly with our buyers to achieve the appropriate product mix in each store. Various
factors typically influence the product mix in a particular market, like disposable income, professional and amateur sports activities and specific regional and
seasonal activities.
Promotional Advertising and Marketing. We use a promotional pricing and advertising strategy focused on the creation of "events" to drive traffic and
sales in our stores. Each event is based upon either a key shopping period, such as the winter holiday season, Father's Day or Back−to−School, or a specific sales
or promotional event, including the annual Sniagrab® ("bargains" spelled backwards) sale, which we believe is the largest pre−season ski and snowboard sale in
the United States. Our strategy of clustering stores in major markets enables us to employ an aggressive advertising strategy on a cost−effective basis, utilizing
primarily newspaper and, to a lesser degree, radio and television.
E−Commerce. Under license and e−commerce agreements with GSI Commerce, Inc. ("GSI"), GSI operates sporting goods retail websites at
www.thesportsauthority.com, www.gartsports.com, www.sportmart.com, and www.oshmans.com. Under these agreements, GSI owns certain content and
technology related to the website, purchases and owns the merchandise sold on the websites, and hosts, maintains, fulfills orders and furnishes all other
"back−end" operations required to operate the websites. GSI Commerce receives all revenue generated from the websites and pays us a royalty based on a certain
percentage of sales from these sites.
Merchandising
We offer our customers over 125,000 active SKUs of high quality, brand name sporting goods and apparel. New brands and products are continuously
introduced and featured in our stores and our advertising. Our merchandise is broadly classified into one of two major categories, hardlines or softlines. Hardlines
include items like skis, golf equipment, bicycles, exercise equipment and outdoor gear, including camping, hunting and fishing. Softlines consist primarily of
apparel, footwear and outerwear.
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The following table sets forth our percentage of total net sales for each major product category for the periods indicated:
Fiscal Years
Hardlines
Softlines
Apparel
Footwear
Subtotal
Total
2003
2002
2001
(Unaudited)
(Unaudited)
(Unaudited)
51.4%
51.2%
51.6%
26.1
22.5
26.7
22.1
25.5
22.9
48.6
48.8
48.4
100.0%
100.0%
100.0%
Winter Equipment and Apparel
We believe that our stores offer the widest selection of ski and snowboard merchandise in the Western United States and we expect to significantly expand
our winter sports offering in Sports Authority stores in the northeast. Our extensive selection consists of winter sports apparel, accessories and equipment for
general use and for skiing, snowboarding and snowshoeing. We have become a leader in snowboard retailing offering a wide range of snowboard−related
products, including snowboards, boots, bindings and apparel. We offer products from a wide variety of well−known winter sports equipment and apparel
suppliers, including Atomic, Columbia, K2, Salomon, Rossignol, Technica, Nordica, Ride, Morrow, Lamar, Vans, Pro−Tec, DaKine and Smith. In addition to
offering the most widely known and available popular brands, our stores carry winter equipment and apparel from manufacturers that are typically only available
in specialty stores, like Spyder, The North Face, Volkl, Mountainsmith and Burton.
Many of our stores offer customer rentals of winter sports equipment, including skis, snowboards, boots, snowshoes and poles. The rental equipment ranges
from entry−level products designed for beginners to advanced products for more accomplished skiers and snowboarders. Other services offered in these stores
include demo ski programs, custom boot fitting, ski mounting, complete ski and snowboard repair facilities, each with specialized equipment, and the
convenience of in−store lift ticket sales to area resorts.
Ongoing remodeling of ski departments in our stores includes the addition of specially designed fixtures for displaying ski and snowboard packages, poles
and bindings, enhanced vendor presence in signing and graphics and accessory fixturing that will highlight various categories like socks, goggles, gloves,
mittens, hats and helmets.
Footwear, In−line Skates and General Apparel
Our stores carry a full line of athletic footwear, sportswear and apparel designed for a wide variety of activities and performance levels. Footwear is
available for diverse activities like basketball, baseball, football, soccer, tennis, golf, aerobics, running, walking, cycling, hiking, cross−training, wrestling and
snowshoeing. We are also a major retailer of in−line and ice hockey skates and skateboards. Our broad assortment of footwear vendors includes Nike, Adidas,
Asics, Reebok, New Balance, Timberland, K−Swiss, Saucony, Vans, K2 and Rollerblade. Our wide variety of apparel includes athletic basics and sports−specific
collections, as well as swimwear, outdoor apparel and casual apparel. We offer men's, women's and children's styles in all categories. During seasonal
timeframes, we emphasize our ski and snowboard apparel and accessories in the appropriate markets. In addition, we carry a broad selection of licensed apparel
for professional and college teams that is tailored to each specific market. Our
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extensive variety of well−known apparel vendors includes Nike, Under Armour, Adidas, The North Face, Burton, Ride, Spyder, Columbia, Salomon, Levi's,
Carhartt, Quiksilver, Champion and Russell.
Team Sports, Exercise and Outdoor Recreation
Team Sports and Exercise. We offer a broad range of brand name equipment for traditional team sports, including football, baseball, softball, basketball,
hockey, volleyball, lacrosse and soccer. We also carry a variety of fitness equipment, including treadmills, stationary bicycles, home gyms, elliptical trainers,
weight machines and free weights and equipment for recreational activities including table tennis, foosball, air hockey, darts, volleyball, croquet and horseshoes.
In addition, we offer home delivery and in−home set up of exercise equipment and outdoor equipment (such as basketball hoops and trampolines). Our stores
carry brands like Icon, Proform, Reebok, Nike Equipment, Easton, Louisville Slugger, Lifetime Products, Rawlings, Wilson, Spalding, Goalrilla, Bauer and
Schwinn.
Golf and Tennis. We maintain a wide assortment of golf and tennis apparel and equipment to cater to every type of customer, ranging from the
recreational athlete to the most avid sports enthusiast. Most of our stores have a tennis stringing and re−gripping center and several stores offer demo rackets.
Many stores feature indoor putting greens and driving cages, enabling customers to try out equipment prior to purchase. We have access to products from a wide
variety of well−known golf and racquet sports equipment and apparel suppliers, including Taylor Made, Callaway, Nike Golf, Cleveland, Armour Golf, Titleist,
Wilson, Prince and Head. In fiscal 2003, we completed a new golf department prototype called "Golf Day" which is a specialty store−within−a−store concept
designed to create a more convenient, customer−friendly shopping environment. The "Golf Day" concept was implemented in 19 stores in fiscal 2003, and we
intend to implement the concept in approximately 51 additional stores in fiscal 2004.
Cycling. In most of our stores, we offer a selection of bicycles, including mountain bikes, BMX bikes and youth bikes, from manufacturers like
Diamondback, Mongoose, K2, Haro and Huffy. Our stores carry cycling apparel, accessories and components from suppliers like Bell, Kryptonite, Nike, Pearl
Izumi, Giro and Thule. Most of our stores have their own bicycle repair facility where work can be performed on most makes and models of bicycles, including
those purchased from other retailers. Our stores also carry a selection of scooters, including gas powered and electric.
Water Sports. We carry a broad selection of products designed for a variety of water sports, including recreational and competitive swimming, water
skiing, canoeing, knee boarding, wake boarding, body boarding, surfing and a variety of pool toys. Suppliers of these products include Body Glove, HO, O'Brien
and O'Neill. Swimsuits and accessories are available from Nike, OP, Quiksilver, Speedo, Tyr, Island Soul, Nautica and Anne Cole. In addition, we carry
snorkeling equipment and wet suits.
Hunting, Fishing and Camping Apparel and Equipment
Hunting. We carry a broad selection of hunting equipment and accessories, including eye and ear protection, gun cabinets and safes. In particular markets,
our stores provide a complete selection of sporting arms, scopes, clothing and hunting licenses. We carry top brand names like Remington, Beretta, Browning,
Leupold, Weatherby, Winchester and Ruger.
Fishing. Our stores offer a broad range of freshwater and salt water fishing equipment, accessories and fishing licenses. In particular markets, we offer
instructional fishing courses on topics such as fly tying and salt water fishing. We sell equipment and accessories from widely known fishing equipment and
accessory manufacturers including Shimano, Shakespeare, Berkley, Scientific Angler and Daiwa.
Camping. Our stores typically carry a wide selection of outdoor products for most types of camping, backpacking, canoeing, kayaking and other outdoor
activities. In particular markets, we offer
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products from a broad range of manufacturers, including Coleman, Jansport, Kelty, Slumberjack and The North Face.
Expansion of Private Label Program. In 2001, we purchased the "Alpine Design" trademark in an effort to expand our private label program with a
recognized and established national brand. Following the TSA merger, we were able to expand our private label offerings to include the following private brands
that were being sold in Sports Authority stores: "The Sports Authority," "TSA Total Sports America," "TSA Athletic," "Estero," "Parkside," "Northpoint
Adventure Gear," "Masse," "ProV2," "Woodbridge," "Ocean Ridge," "CO2" and "Tranquil Escapes." As a result of the TSA merger, we also acquired the rights
to market certain "Head" and "Body Glove" merchandise under licenses and we acquired use of the "Golf Day" brand name. We intend to continue expanding
this portion of our business not only for the additional margin contribution, but also for the added value benefits for the consumer. We source apparel, including
outdoor and snowsports apparel as well as lifestyle apparel, and footwear and hardline products, including primarily camping and fishing products, under our
private label program. This program allows us to provide the customer enhanced value through quality and lower pricing. Control of product advertising and
market positioning of products are additional strategic benefits of our private label program.
Our Stores
We create a dynamic shopping atmosphere that appeals broadly to both the casual sporting goods customer and the sports enthusiast. Based on more than
70 years of experience in the sporting goods retail industry, we have developed a superstore prototype designed to feature the quality and variety of brand name
merchandise offered in our stores. The majority of our stores are superstores, which typically range in size from 30,000 to 45,000 square feet. In select markets,
we will open superstores ranging from 48,000 to 50,000 square feet. Generally, 80% of store space is dedicated to selling while 20% is used for office and
non−retail functions. We have determined that the superstore format provides the best opportunity for growth and is the primary prototype for future store
openings.
We also have a limited number of smaller format stores, ranging from 15,000 to 25,000 feet. These stores include freestanding and strip center stores which
more closely resemble traditional sporting goods stores and stores in enclosed shopping malls, which carry a selection of merchandise intended to appeal to the
mall−oriented shopper, focusing on apparel and footwear.
Our prototypical store layout features a racetrack configuration with apparel and specialty brand shops in the middle of the store and the specialty hardlines
departments along the outside of the racetrack. The lighting, flooring and color scheme is designed to enhance the presentation of the merchandise and avoid a
warehouse−type atmosphere. We capitalize on consumers' awareness of our brands through custom, full−color graphic packages, designed to be compatible with
standard fixtures.
As a result of the TSA merger, our store remodeling program has been significantly expanded. Under this comprehensive program, virtually all Sports
Authority stores will receive some level of remodeling over the next two years, ranging from new apparel fixtures and signage to major store refurbishment. The
program is designed to improve the look and feel of the stores and to align the merchandising layout and overall visual presentation of Sports Authority stores
with Gart, Sportmart and Oshman's stores. As such, the program will incorporate a number of initiatives implemented in Gart and Oshman stores in the last few
years, including updated merchandising standards and fixture programs for increased capacity and visibility of hardlines merchandise and implementation of
floor layout "models" by format and market, which ensures consistency in merchandising from store to store.
Most Sports Authority stores will receive the new standardized fixture package rolled out to the Gart chain over the past three years, which focuses on
increasing capacity and flexibility. Our fixture package utilizes a set of apparel fixtures, accessories, signage and graphics that clearly define the product
categories and sub−categories to create a more customer friendly environment. We negotiate
6
with apparel vendors on an ongoing basis to use these same fixtures in developing vendor shop areas. This coordinated effort produces a completely integrated,
flexible apparel fixture program.
We intend to perform remodels on approximately 70 stores, primarily Sports Authority stores, in fiscal 2004 ranging from major remodels to minor
upgrades and installation of standardized fixture packages.
Operations, Customer Service and Training
Typically, our superstores have 30 to 60 associates and technicians, while our non−superstores employ a staff of approximately 20 to 25. Additional
seasonal support is hired during Father's Day, Back−to−School, the winter holiday season and the annual Sniagrab® pre−season ski sale.
We are committed to providing our customers with a satisfying shopping experience. To achieve this, we constantly strive to provide friendly and
knowledgeable sales associates to deliver a level of service generally associated with specialty sporting goods stores and pro shops. We continue to commit
significant resources to the training of sales associates by conducting regional vendor clinics, which teach both technical and salesmanship skills covering a broad
range of sporting goods categories. In addition, we offer vendor−based website−training for some of the more technical products in our assortments. Incentive
plans have been developed that are intended to keep our sales associates focused on serving customers. We also continue to employ outside shopping services to
provide us with an independent assessment of both general customer service and cashier customer service levels at each of our stores.
Our stores are typically open seven days a week adjusted as required by law in individual markets. Additionally, our stores are open on most holidays and
for extended hours during key selling periods or special events.
Site Selection and Location
In new store locations, we consider the demographic and lifestyle characteristics of a market, including, among other factors, levels of disposable income;
trade area; local buying patterns; enthusiasm for outdoor recreation; popularity of collegiate and professional sports teams; and regional sports activities.
7
The following table sets forth the location, by state, of our stores, as of January 31, 2004:
Number
of Stores
State
California
Florida
Illinois
Texas
Colorado
New Jersey
New York
Arizona
Georgia
Maryland
Utah
Washington
Virginia
Michigan
Minnesota
Connecticut
Idaho
North Carolina
Missouri
Pennsylvania
Massachusetts
New Mexico
South Carolina
Wyoming
Hawaii
Louisiana
Nevada
Ohio
Oregon
Tennessee
Wisconsin
Arkansas
Kansas
Montana
New Hampshire
Oklahoma
Alabama
Alaska
Delaware
Indiana
Iowa
Maine
Mississippi
Nebraska
Rhode Island
52
45
32
29
24
15
13
12
12
11
11
11
10
8
8
7
7
7
6
6
5
5
4
4
3
3
3
3
3
3
3
2
2
2
2
2
1
1
1
1
1
1
1
1
1
Total
384
We plan to open new stores primarily in existing and adjacent markets to further leverage our existing distribution systems, advertising programs and
management structure. We opened 14 new stores in fiscal 2003 and intend to open approximately 23 new stores and relocate two stores in fiscal 2004.
In conjunction with the TSA merger, we have identified approximately 27 Sports Authority stores to be closed or relocated. The decision to close these
stores was based on substandard performance prior to the merger, or because such stores overlapped with existing Gart, Sportmart or Oshman's stores. Through
January 31, 2004, we had completed the closure of eleven Sports Authority stores and the relocation of two others. Additionally, we closed one Gart Sports store
in an overlapping market, and two small−format stores where the leases expired. We expect to complete the closure of the remaining Sports Authority stores
identified in the merger integration process over the next 12 to 15 months.
Management Information Systems
In 2003, we devoted significant resources to the integration of TSA Stores' systems and the Gart Sports' systems. By the end of fiscal 2003, all significant
systems had been fully integrated, including merchandise procurement, store communications and telecommunications systems, and all financial reporting
applications. We continue to focus on the integration of the TSA Stores' warehouse management systems and store point−of−sale systems, and expect to be
substantially completed with the integration of all systems by the end of fiscal 2004.
We have installed sophisticated management information systems that use the JDA retail software system operating on multiple iSeries and open system
platforms. We utilize both IBM 4690 and NCR
8
7453 point−of−sale systems that incorporate scanning, price look−up and store level access to our merchandise information systems. Our fully integrated
management information systems track purchasing, sales and inventory transfers down to the SKU level and have allowed us to improve overall inventory
management by identifying individual SKU activity and projecting trends and replenishment needs on a timely basis. We utilize a fully integrated merchandise
planning and allocation system that facilitates optimal distribution of most products to the stores through the integration of historical sales data and forecasted
data at an individual store and item level.
A state−of−the−art data warehouse application provides real−time inventory, sales, margin and payroll information for a variety of users. This tool allows
our merchandising staff to analyze product and pricing strategies, our operations staff to optimize its investments in store labor and our executive staff to monitor
key business performance indicators on a daily basis. Store operations personnel in every location have online access to e−mail, product signage, standard
operating procedures, store level financial performance reports and advertising information through our corporate intranet. Additionally, we utilize radio
frequency scanning for receiving and price look−up functions at all of our stores and distribution centers. This technology allows us to streamline our
merchandise handling and inventory management, and should result in lower overall cost of inventory ownership and improved accuracy in forecasting
merchandise needs.
Marketing and Advertising
Our comprehensive marketing program is designed to promote our extensive selection of brand name and private label products at competitive prices. The
program is centered on extensive newspaper advertising supplemented by television, radio and billboard ads. The advertising strategy is focused on weekly
newspaper advertising utilizing both multi−page pre−printed flyer inserts and standard run of press advertising, with additional emphasis on key shopping
periods, like the winter holiday season, Father's Day, Back−to−School, and on specific sales and promotional events, including the annual Sniagrab® ski sale.
The focus of Sports Authority's advertising and promotion has traditionally been encouraging consumers to "Get Out and Play," and to make participation in or
attendance at almost any type of sports, leisure or recreational activity a meaningful part of their lifestyle.
Our strategy of clustering stores in major markets enables us to employ an aggressive advertising strategy on a cost−effective basis through the use of
newspaper, radio and television advertising. Our goal is to be one of the dominant sporting goods advertisers in each of our markets. We advertise in major
metropolitan newspapers as well as regional newspapers circulated in areas surrounding our store locations. Newspaper advertising typically consists of weekly
promotional ads with three−color inserts. Television advertising is generally concentrated three to four days prior to a promotional event or key shopping period.
Radio advertising is used primarily to publicize specific promotions in conjunction with newspaper advertising or to announce a public relations promotion or
new store grand opening. Billboards emphasizing our image and high quality brand name merchandise are strategically located on high traffic thoroughfares near
store locations. Vendor payments under cooperative advertising arrangements with us, as well as vendor buy−ins to sponsor sporting events and programs, have
significantly contributed to our advertising leverage.
Our advertising is designed to create an "event" in the stores and to drive customer traffic with advertisements promoting a wide variety of sale priced
merchandise appropriate for the current holiday or event. In addition to holidays, our events include the annual Sniagrab® ski sale, celebrity autograph sessions,
events related to local sports teams, race sponsorships and registrations, vendor demonstrations and other activities that attract customers to our stores. We also
sponsor tournaments and amateur competitive events in an effort to align our company with both the serious sports enthusiast and the recreational athlete. Our
advertising and marketing program is administered by an in−house staff.
9
Purchasing and Distribution
Our Merchandise Purchasing Department manages all aspects of merchandise procurement and also determines initial pricing, develops product marketing
plans and works with the allocation and replenishment groups to establish stock levels and product mix. The buying staff regularly communicates with store
operations to monitor shifts in consumer tastes and market trends.
Our Planning, Allocation, Replenishment and Merchandise Control Department is responsible for merchandise distribution, inventory control and the E−3
Replenishment Purchasing and Allocation System. This group acts as the central processing intermediary between the buying staff and our stores.
The group also coordinates the inventory levels necessary for each advertising promotion with the buying staff and Advertising Department, tracking the
effectiveness of certain ads to allow the buying staff and Advertising Department to determine the relative success of each promotional program. The group's
other duties include implementation of price changes, creation of all merchandise purchase orders, and determination of the optimal inventory levels for each
store.
We purchase merchandise from over 1,000 vendors and have no long−term purchase commitments. During fiscal 2003, Nike, our largest vendor,
represented approximately 13.0% of our purchases. No other vendor represented more than 10.0% of our purchases.
We generally utilize a "hub and spoke" distribution system in which vendors ship directly to one of our regional distribution centers. We believe that this
distribution system has the following advantages compared to direct store delivery (i.e., drop shipping): reduced individual store inventory investment; more
timely replenishment of store inventory needs; better use of store floor space; reduced transportation costs and easier returns to vendors.
We have six regional distribution centers in Colorado, California, Illinois, Texas, Georgia, and New Jersey. In addition to the six regional distribution
centers, we periodically lease warehouse space in markets where the regional distribution centers are located. These warehouses are used primarily to store
back−stock quantities of large inventory items such as treadmills, weight sets and table−games. Inventory arriving at the distribution centers is allocated directly
to the stores or to the warehouses. The E−3 automated reorder system regularly replenishes the stores by allocating merchandise to the distribution centers based
on store sales.
We operate tractor trailers for delivering merchandise from our Denver distribution center to our Colorado stores, and contract with common carriers to
deliver merchandise to our stores outside a 150−mile radius from Denver. Common carriers are also used to deliver merchandise received at our other
distribution centers.
Properties
We currently lease a substantial majority of all of our store locations. We also operate six owned locations and own three closed locations, which were
acquired in the TSA merger. Store leases typically provide for an initial term of 10−20 years, with multiple five−year renewal options. Most leases provide for
the payment of minimum annual rent subject to periodic adjustments, plus other charges, including a proportionate share of real estate taxes, insurance and
common area maintenance expenses. As current leases expire, we regularly evaluate whether to renew the leases or to strategically relocate stores to a better
location. Leases for our stores expire at varying dates between 2004 and 2023, with 12 such leases expiring in fiscal 2004. Nine such stores are subject to leases
with options to renew and three such stores will be relocated or the lease terms renegotiated. Leases for five of our stores have expired and are occupied on a
month−to−month basis. We anticipate that all of our 2004 store openings will be completed under long−term operating leases.
10
We lease properties from partnerships or trusts, the partners and trust accounts of which are affiliated with Ms. Oshman, a former director, and her family
members. Seven related leases are for a distribution center and Oshman's former corporate offices in Houston, Texas, which we lease from Oshman family trusts,
including trusts for the benefit of Ms. Oshman. For fiscal 2003, rent expense under these leases was in the aggregate approximately $407,000.
We also lease our six regional distribution centers. The lease for the 225,000 square foot distribution center in Denver, Colorado, expires in 2014, assuming
all options are exercised. The lease for the 616,000 square foot distribution center in Fontana, California expires in 2014. The lease for the 260,000 square foot
distribution center in Romeoville, Illinois expires in 2018, assuming all options are exercised. The leases for the 269,000 square foot distribution center in
Houston, Texas will expire in 2006. The lease for the 290,000 square foot distribution center near McDonough, Georgia expires in 2010. The lease for the
416,000 square foot distribution center in Burlington, New Jersey expires in March 2013. In addition, we periodically lease warehouse space on a short term
basis.
Approximately 70% of our former corporate offices in Denver, Colorado have not yet been sub−leased and are being actively marketed. The lease for our
new 200,000 square foot corporate office in Englewood, Colorado expires in 2027, assuming all options are exercised. We are seeking a termination of the lease
on the former TSA corporate headquarters in Ft. Lauderdale, Florida and the former Gart Sports corporate headquarters in Denver, Colorado.
Associates
At January 31, 2004, we employed approximately 17,000 individuals, 53% of whom were employed on a full−time basis and 47% of whom were employed
on a part−time basis, or less than 32 hours per week. Due to the seasonal nature of our business, total employment fluctuates during the year. We consider our
employee relations to be good. None of our associates are covered by a collective bargaining agreement.
Trademarks and Tradenames
We use The Sports Authority®, Gart Sports®, Gart Sports Superstore®, Oshman's®, Sportmart®, Sniagrab®, Sportscastle®, SuperSports USA®, Alpine
Design®, Head®, ProV2® trademarks and trade names, which have been registered with the U.S. Patent and Trademark Office.
We also own and use numerous other trademarks and servicemarks which involve the manufacturing of soft goods, advertising slogans, promotional event
names and store names used in our business. Many of these names are registered, or are the subject of pending applications, with the U.S. Patent and Trademark
Office and other applicable offices around the world. Marks registered in the United States in the "Authority" family include "Authority," "The Sports
Authority," "Sports Authority," "The Ski Authority," "Golf Authority," "Tennis Authority" and "Team Sports Authority," among others. Marks used in the "Play"
family include "Get Out and Play" and "Come In and Play," among others. Marks used in our private label program include those listed under the caption
"Merchandising." We vigorously protect our trademarks, service marks and trade name from infringement throughout the world by strategic registration and
enforcement efforts.
Government Regulation
We must comply with federal, state and local regulations, including the federal Brady Handgun Violence Prevention Act, which require us, as a federal
firearms licensee, to perform a pre−sale background check of purchasers of hunting rifles. This background check is performed using either the FBI−managed
National Instant Criminal Background Check System ("NICS"), or a state government−managed system that relies on NICS and any additional information
collected by the state. These background check systems either confirm that a sale can be made, deny the sale, or require that the
11
sale be delayed for further review. We are also provided with a transaction number for the proposed sale, which we are required to record on Form 4473 of the
Bureau of Alcohol, Tobacco and Firearms and retain a copy for our records for 20 years for auditing purposes for each approved, denied or delayed sale. We
complete the sale after all of these procedures are complete.
In addition, many of our imported products are subject to existing or potential duties, tariffs or quotas that may limit the quantity of products that we may
import into the U.S. and other countries or impact the cost of such products. To date, quotas in the operation of our business have not restricted us, and customs
duties have not comprised a material portion of the total cost of our products.
ITEM 3. Legal Proceedings
We are, from time to time, involved in various legal proceedings and claims arising in the ordinary course of business. We believe that the ultimate
disposition of these matters will not have a material adverse effect on our consolidated financial condition, results of operations or liquidity.
In June 2000, a former employee of Sportmart brought two class action complaints in California against us, alleging various wage and hour claims in
violation of the California Labor Code, California Business and Professional Code section 17200 and other related matters. One complaint alleges that we
classified some of our managers in our California stores as exempt from overtime pay when they would have been classified as non−exempt and paid overtime.
The second complaint alleges that we failed to pay hourly employees in its California stores for all hours worked. In March 2001, a third class action complaint
was filed in the same court in California alleging the same wage and hour violations regarding classification of certain managers as exempt from overtime pay. In
July 2001, a fourth complaint was filed alleging that store managers should also not be classified as employees exempt from overtime pay. All the complaints
seek compensatory damages, punitive damages and penalties. The amount of damages sought is unspecified. We have entered into a settlement agreement
relating to the first two complaints that were filed, which has received preliminary approval by the court. With the settlement of the first two complaints, the
named plaintiffs in the third and fourth actions will be included in the settlement class although they may opt to proceed with their lawsuits on an individual
basis. We recorded an estimated liability totaling $1.5 million, including attorney fees and expenses, in the year ended January 31, 2004.
In June 2003, Financo, Inc., a financial advisory firm, filed a complaint against us in the Delaware Court of Chancery alleging that we owed Financo
$2,000,000 for services provided to us in connection with the merger negotiations with TSA. No written contract existed between Financo and us. We reached a
settlement with Financo and paid a total of $500,000, including attorney fees and expenses, during the year ended January 31, 2004.
TSA Stores is one of thirty−three named defendants, including firearms manufacturers, distributors and retailers, in City of Chicago and County of Cook v.
Beretta U.S.A. Corp. et al., Circuit Court of Cook County, Illinois. This suit was served on TSA Stores in November 1998. The original complaint was based on
legal theories of public nuisance and negligent entrustment of firearms and alleged that the defendants created a public nuisance by distributing, marketing and
selling firearms in the portion of Cook County outside Chicago knowing or recklessly disregarding that these guns would be illegally transferred and used in
Chicago to commit crimes. The complaint sought damages allocated among the defendants exceeding $433 million to compensate the City of Chicago and Cook
County for their alleged costs resulting from the alleged public nuisance. The complaint also sought punitive damages and injunctive relief imposing additional
regulations on the methods the defendants use to distribute, market and sell firearms in Cook County. In February 2000, the Court dismissed the complaint's
negligent entrustment count. The plaintiffs filed an amended complaint with the Court's permission in March 2000, which contained both the public nuisance and
negligent entrustment counts. In September 2000, the Court granted the motions of the defendants to dismiss the amended complaint,
12
in its entirety, with prejudice. In October 2000, the plaintiffs appealed the dismissal of their public nuisance claim to the Appellate Court of Illinois, First Judicial
District. On November 4, 2002, the Appellate Court reversed the dismissal of the public nuisance claim and remanded the case to the trial court for further
proceedings. On November 25, 2002, TSA Stores filed a petition for rehearing with the Appellate Court, which was denied on March 7, 2003. On March 27,
2003, TSA Stores joined in a petition by the other defendants for leave to appeal to the Illinois Supreme Court the Appellate Court's decision reversing the trial
court's dismissal of the public nuisance claim, which was granted on April 8, 2003. The Illinois Supreme Court heard oral arguments by the parties on
September 10, 2003 and has yet to render a decision. We are currently unable to predict the outcome of this case.
ITEM 4. Submission of Matters to a Vote of Security Holders
No matters were put to a vote of security holders during the fourth quarter of fiscal 2003.
13
PART II
ITEM 5.
Market Price of Common Stock and Related Stockholder Matters
Our common stock trades on the New York Stock Exchange under the symbol "TSA." Prior to August 4, 2003, our common stock traded on the NASDAQ
National Market under the symbol "GRTS." As of March 26, 2004, there were 2,557 holders of record. The number of holders of our common stock does not
include beneficial owners whose shares are held in the name of banks, brokers, nominees or other fiduciaries. The table below sets forth the reported high and
low closing prices on the NASDAQ National Market and New York Stock Exchange during fiscal 2003 and 2002:
High
Low
Fiscal Year 2003
First quarter
$
24.00 $
12.96
Second quarter
30.76
20.26
Third quarter
37.99
26.30
Fourth quarter
44.60
36.10
Fiscal Year 2002
First quarter
$
37.75 $
22.75
Second quarter
36.16
17.31
Third quarter
21.76
14.40
Fourth quarter
26.56
15.69
We have never declared or paid any dividends on our common stock. We plan to retain earnings to finance future growth and have no current plans to pay
cash dividends. The payment of any future cash dividends will be at the sole discretion of our board of directors and will depend upon, among other things, future
earnings, capital requirements, and our general financial condition. Our ability to declare or pay dividends on our common stock and to repurchase shares of our
common stock is limited to $16 million per year under our revolving line of credit.
See Item 12 of this annual report for information on securities authorized for issuance under equity compensation plans.
ITEM 6.
Selected Consolidated Financial Data
The selected consolidated financial data presented below under the caption "Statement of Income Data" for each of the fiscal years in the three−year period
ended January 31, 2004, and the "Balance Sheet Data" as of January 31, 2004 and February 1, 2003 are derived from our audited consolidated financial
statements included in this Form 10−K. This data should be read in conjunction with our consolidated financial statements, the accompanying notes and Item 7,
"Management's Discussion and Analysis of Financial Condition and Results of Operations." The "Statement of Income Data" for each of the fiscal years in the
two−year period ended February 3, 2001, and the "Balance Sheet Data" as of February 2, 2002, February 3, 2001, and January 29, 2000 are derived from audited
consolidated financial statements not included in this Form 10−K.
Fiscal 2003 began on February 2, 2003 and ended on January 31, 2004 and included 52 weeks of operations. Fiscal 2002 began on February 3, 2002 and
ended on February 1, 2003 and included 52 weeks of operations. Fiscal 2001 began on February 4, 2001 and ended on February 2, 2002 and included 52 weeks
of operations. Fiscal 2000 began on January 30, 2000 and ended on February 3, 2001 and included 53 weeks of operations. Fiscal 1999 began on January 31,
1999 and ended on January 29, 2000 and included 52 weeks of operations.
The results for fiscal year 2003 are not comparable to the other periods presented, due to the inclusion of Sports Authority results of operations since
August 4, 2003, the date of merger. The results
14
for fiscal year 2001 are not comparable to the prior periods presented, due to the inclusion of Oshman's results of operations since June 7, 2001, the date of
acquisition. The results for fiscal year 2000, although it includes a fifty−third week of operations, and fiscal year 1999 are considered comparable to each other.
Fiscal Years
2003
2002
2001
2000
1999
(Dollars in thousands, except share and per share amounts)
STATEMENT OF INCOME
DATA:
Net sales
Cost of goods sold, buying,
distribution and occupancy
$
Gross profit
Operating expenses
Merger integration costs
Operating income
Interest expense
Other income, net
Income before income taxes
Income tax benefit (expense)
1,760,450
$
1,051,244
$
935,717
$
751,124
$
680,995
(1,274,721)
(776,340)
(696,296)
(559,778)
(517,405)
485,729
(409,023)
(43,807)
274,904
(228,982)
—
239,421
(204,429)
(12,490)
191,346
(164,541)
—
163,590
(150,684)
—
32,899
(12,327)
3,514
45,922
(9,166)
1,043
22,502
(10,981)
2,030
26,805
(11,670)
556
12,906
(10,916)
779
24,086
(7,719)
37,799
(14,632)
13,551
(5,285)
15,691
7,405
2,769
(996)
Net income
$
16,367(1)
$
23,167
$
8,266(3)
$
23,096(5)
$
1,773
Basic earnings per share
$
0.89(1)
$
1.97
$
0.86(3)
$
3.13(5)
$
0.23
Weighted average shares of
common stock outstanding
Diluted earnings per share
Weighted average shares of
common stock and common stock
equivalents outstanding
18,309,174(2)
$
0.84(1)
19,479,695
11,766,983
$
1.86
12,427,086
15
9,598,553(4)
$
0.80(3)
10,315,785
7,380,529
$
2.99(5)
7,729,601
7,632,696
$
0.23
7,701,427
Fiscal Years
2003
2002
2001
2000
1999
(Dollars in thousands)
OTHER DATA:
Number of stores at beginning of period
Number of stores opened or acquired
Number of stores closed
181
219(6)
(16)(7)
179
9
(7)
120
64(8)
(5)(9)
127
—
(7)
125
7
(5)
Number of stores at end of period
384
181
179
120
127
16,262,863
7,468,628
7,215,591
4,517,122
4,600,738
Total gross square feet at end of period
Comparable store sales increase
(decrease)(10)
Depreciation and amortization
BALANCE SHEET DATA (at end of
period):
Working capital
Total assets
Long−term debt and capital leases
Stockholders' equity
$
$
(0.7)%
37,290
378,909
1,339,556
318,158
439,266
0.0%
22,716
$
$
171,799
540,240
122,286
198,580
$
$
(0.9)%
19,994
142,563
536,630
160,295
135,509
$
$
6.4%
14,487
113,324
335,949
97,705
88,886
$
$
(0.6)%
13,892
104,853
344,085
108,176
65,894
(1)
Amount includes the effect of $26.7 million, net of tax, or $1.37 per diluted share, of merger integration costs associated with the TSA merger;
non−recurring interest income of $1.3 million, net of tax, or $0.07 per diluted share, and a non−recurring tax benefit of $1.7 million, or $0.09 per
diluted share, both related to the settlement of a tax dispute involving our former parent; and a non−recurring expense of $0.9 million, net of tax, or
$0.05 per diluted share, including attorneys' fees and expenses, related to the settlement of wage and hour class action lawsuits in California.
(2)
We issued 12.4 million shares in connection with the TSA merger, which was completed on August 4, 2003.
(3)
Amount includes the effect of $7.6 million, net of tax, or $0.74 per diluted share of merger integration costs associated with the acquisition of
Oshman's.
(4)
We acquired Oshman's on June 7, 2001. This transaction involved the issuance of 3.4 million shares of our common stock.
(5)
Amount includes the effect of a one−time tax benefit of $13.5 million, or $1.75 per diluted share, associated with the reversal of tax asset valuation
allowances.
(6)
Includes 205 Sports Authority stores acquired in the TSA merger on August 4, 2003.
(7)
Includes 11 Sports Authority stores closing and one Gart store closing as a result of the merger integration process.
(8)
Includes 58 Oshman's stores acquired on June 7, 2001.
(9)
Includes four Oshman's stores closed after the acquisition on June 7, 2001.
(10)
New stores enter the comparable store sales base at the beginning of their 14 th full month of operation. The Oshman's stores were included in the
comparable store sales base beginning August 2, 2002, the beginning of the 14 th full month of operations from the acquisition date. The Sports
Authority stores that met the criteria above were included in the comparable store sales base beginning August 4, 2003, the merger date.
16
ITEM 7.
Management's Discussion and Analysis of Financial Condition and Results of Operations
The following discussion and analysis should be read in conjunction with "Selected Consolidated Financial Data" and our consolidated financial
statements and accompanying notes included elsewhere in this report. This discussion and analysis contains forward−looking statements that involve risks,
uncertainties and assumptions. The actual results may differ materially from those anticipated in these forward−looking statements as a result of a number of
factors.
Overview
On August 4, 2003, a wholly−owned subsidiary of Gart Sports Company completed a merger with The Sports Authority, Inc. In connection with the merger,
Gart Sports Company was renamed The Sports Authority, Inc. The references made to the entities herein refer to The Sports Authority, Inc. (formerly Gart
Sports Company which includes "Sports Authority" or "Company" or "we" or "our" or "us") and its subsidiaries. "TSA" refers to TSA Stores Inc. (formerly
known as The Sports Authority, Inc.). The merger was accounted for under the purchase method of accounting with Gart Sports Company as the acquirer, and
accordingly, the results of operations for fiscal 2003 include the results of TSA since the date of the merger. Prior year results, as well as results for the first 26
weeks of the 52 weeks ended January 31, 2004, reflect the former Gart Sports Company on a stand−alone basis.
At the closing of the TSA merger, we became the nation's largest publicly traded full−line sporting goods retailer, with a presence in most major markets
across the United States. At January 31, 2004, we operated 384 stores in 45 states under the Sports Authority, Gart Sports, Oshman's and Sportmart brand names.
We also have a licensing agreement with Mega Sports to operate stores in Japan under the Sports Authority name. We believe that our geographic dispersion will
benefit top−line sales due to sales of licensed apparel in a broader number of professional team markets, and balancing of seasonal and weather fluctuations,
among other factors. In 2003, our efforts were focused on integrating the systems, processes and cultures of the two organizations, while ensuring the continuous
flow of merchandise to our stores to maintain top−line sales. Comparable store sales for the post−merger 26 weeks ended January 31, 2004 were slightly
positive, a favorable indication that sales volumes were maintained during the merger integration process. We also expect the TSA merger to provide us with
synergistic benefits in gross margin as a result of reduced inventory costs and increased vendor entitlements. Additionally, we expect to realize significant cost
savings from eliminating redundant back office functions.
In 2004, our focus will be on increasing sales through a number of initiatives, including: improving in−stock positions and rationalizing our merchandise
assortment across the chain; growing the ski and snowboard business in the northeastern Sports Authority stores; remodeling a significant number of Sports
Authority stores to create a more appealing, customer−friendly environment; realigning stores among the six distribution centers to reduce in−transit time;
remodeling the Sports Authority distribution centers and improving information systems to increase product flow−through and data integrity; and continued new
store development, with 23 new stores and two relocations planned for the year. In addition, we expect that the closure of a number of underperforming or
overlapping Sports Authority stores will enhance our profitability, as negative contributors are eliminated from operating results. We identified 27 Sports
Authority stores for closure as part of the merger integration process, of which eleven were closed and two relocated as of January 31, 2004. We expect to close
the remaining stores identified for closure within the next 12 to 15 months. The implementation of these initiatives will require significant capital expenditures,
which we estimate will approximate $85 million in fiscal 2004, and working capital to fund closed store lease obligations. We believe that our operating cash
flows and the availability under our $600 million revolving credit facility provide the liquidity required for these initiatives.
17
Given the economic characteristics of our store formats, the similar nature of the products sold, the type of customer and method of distribution, our
operations are aggregated in one reportable segment as defined by Statement of Financial Accounting Standards No. 131, "Disclosure About Segments of an
Enterprise and Related Information."
Results of Operations
The following table sets forth for the periods indicated, certain income and expense items expressed as a percentage of net sales and the number of stores
open at the end of each period (dollars rounded to millions):
Fiscal 2003
Dollars
Net sales
Cost of goods sold, buying, distribution and occupancy
$
Fiscal 2002
%
1,760.4
1,274.7
Dollars
100.0%
72.4
$
Fiscal 2001
%
1,051.2
776.3
100.0%
73.8
$
%
935.7
696.3
100.0%
74.4
26.2
21.8
—
239.4
204.4
12.5
25.6
21.8
1.4
Gross profit
Operating expenses
Merger integration costs
485.7
409.0
43.8
27.6
23.2
2.5
Operating income
Interest expense
Other income, net
32.9
(12.3)
3.5
1.9
(0.7)
0.2
45.9
(9.2)
1.1
4.4
(0.9)
0.1
22.5
(11.0)
2.1
2.4
(1.2)
0.3
24.1
(7.7)
1.4
(0.5)
37.8
(14.6)
3.6
(1.4)
13.6
(5.3)
1.5
(0.6)
Income before income taxes
Income tax expense
Net income
Number of stores at end of period
$
16.4
0.9%
384
274.9
229.0
—
Dollars
$
23.2
181
2.2%
$
8.3
0.9%
179
We consider cost of goods sold to include the direct cost of merchandise, plus certain costs associated with procurement, warehousing, handling and
distribution. In addition to the full cost of inventory, cost of goods sold includes related occupancy costs and amortization and depreciation of leasehold
improvements and rental equipment.
Operating expenses include controllable and non−controllable store expenses (except occupancy), non−store expenses and depreciation and amortization not
associated with cost of goods sold.
Fiscal 2003 as compared to Fiscal 2002
Net Sales. Net sales increased $709.2 million, or 67.5%, to $1,760.4 million in fiscal 2003, compared to $1,051.2 million in fiscal 2002. The sales increase
reflects the inclusion of $697.0 million in sales from TSA stores from August 4, 2003, the merger date, versus results for Gart Sports on a stand−alone basis in
fiscal 2002. Additionally, non−comparable sales for Gart on a stand−alone basis increased $28.3 million, net, reflecting an increase from store openings in fiscal
2002 and fiscal 2003 of $45.6 million, offset by a decrease of $17.3 million, primarily from store closings. Comparable store sales in fiscal 2003, which includes
TSA stores since August 4, 2003, decreased 0.7%, primarily due to a first quarter decline of 8.8% for Gart on a stand−alone basis. The first quarter was impacted
by a comparison to increased sales from the Salt Lake City Winter Olympics in 2002 and a decrease in sales due to a major snowstorm in the Denver area in
2003, among other factors. Sales performance improved thereafter, with relatively flat comparable store sales in the second and fourth quarters, and a 1.7%
increase in the third quarter. Focusing on results for the Company following the TSA merger, comparable store sales increased $9.9 million or 0.8% for the last
half of the 2003 fiscal year. The
18
increase resulted from a positive performance in the team sports, hunting and camping categories, and by strong sales in the ski, snowboard and snow apparel
categories in Sports Authority locations in the northeast. The northeast stores benefited from an expanded product offering in these categories, as the broader
assortment available in Gart stores was introduced into Sports Authority cold−weather markets. In aggregate, these factors produced a $15.9 million or 8.0%
increase in comparable store sales. Partially offsetting these gains were declines in the fitness equipment, trends/gifts and skate categories aggregating
$12.7 million or 7.1% decrease in comp store sales.
Gross Profit. Gross profit for fiscal 2003 was $485.7 million, or 27.6% of net sales, as compared to $274.9 million, or 26.2% of net sales, for fiscal 2002.
The increase as a percent of net sales reflected improved merchandise margins for the combined companies as a result of lower inventory costs. Gart Sports
results also improved on a stand−alone basis over the prior year, with an increase in merchandise margins of 0.5% of net sales. The increase reflects a somewhat
less promotional selling environment in fiscal 2003 than in the prior year combined with reduced inventory costs, which produced improvements in merchandise
margin rates in a number of categories. These categories include fitness equipment, snowboards, hunting and camping, which produced a combined increase in
merchandise margin rates of 90 basis points. In addition, the application of EITF Consensus No. 02−16, "Accounting by a Customer (Including a Reseller) for
Certain Consideration Received from a Vendor" ("EITF 02−16") resulted in the recharacterization of $3.0 million of vendor allowances, from a reduction of
advertising expense to a reduction of the cost of inventory purchased, of which $2.1 million, or 0.1% of net sales, was recognized in cost of goods sold in fiscal
2003.
Operating Expenses. Operating expenses in fiscal 2003 were $409.5 million, or 23.3% of net sales, compared to $229.0 million, or 21.8% of net sales, for
fiscal 2002. The increase in operating expense dollars primarily reflects the store operating costs associated with 205 TSA stores acquired on August 4, 2003.
Operating expenses also increased as a percent of sales due to the following factors:
(i)
TSA Stores' overall operating expenses historically trended higher than Gart's. TSA Stores' selling, general and administrative expenses
were 26.0%, 25.5% and 24.6% of net sales in 2002, 2001 an 2000, compared to Gart's operating expenses of 21.8% of net sales for each of
fiscal 2002 and 2001, and 21.9% of net sales for fiscal 2000. The implementation of consistent operating procedures for the combined
company is an ongoing process that we expect to have completed by the end of fiscal 2004;
(ii)
The higher level of general and administrative costs as a result of the TSA merger, including insurance costs, which increased $2.8 million,
and corporate office rent, which increased $1.7 million due to additional leased office space to accommodate our larger corporate offices;
(iii)
The recharacterization of $3.0 million, or 0.2% of net sales, of cooperative advertising monies from a reduction of advertising expense to a
reduction of inventory costs as required by EITF 02−16; and
(iv)
Establishing a reserve for the settlement of wage and hour class action lawsuits in California totaling $1.5 million, including attorney fees
and expenses, recorded in the first quarter of 2003.
Merger Integration Costs. Merger integration costs for fiscal 2003 were $43.8 million, or 2.5% of net sales, and were related to the TSA merger.
Integration costs include only non−recurring, incremental costs arising as a direct result of integrating the two companies following the merger. For fiscal 2003,
these costs consisted of $17.7 million of duplicative payroll, benefits and retention payments, $8.4 million of severance costs, $6.7 million of consulting fees,
$6.0 million of expense related to winding up the operations of the TSA corporate office in Ft. Lauderdale and closing a Gart store in an overlapping market,
$3.0 million for relocation and travel, and $2.0 million of advertising related to rebranding and announcing the combined company.
19
Operating Income. As a result of the factors described above, operating income for fiscal 2003 was $32.9 million, or 1.9% of net sales, compared to
$45.9 million, or 4.4% of net sales, in fiscal 2002.
Interest Expense. Interest expense for fiscal 2003 increased to $12.3 million, or 0.7% of net sales, from $9.2 million, or 0.9% of net sales, in the prior year.
The increase in interest expense is related to the assumption of TSA Stores' debt upon completion of the merger and to financing of merger and integration costs.
Other Income. Other income was $3.5 million for fiscal 2003 compared to $1.1 million for fiscal 2002. The increase is primarily attributable to interest
income associated with the settlement of the Rite Aid tax dispute totaling $2.1 million.
Income Taxes. Our income tax expense for fiscal 2003 was $7.7 million compared to $14.6 million in fiscal 2002. Tax expense for fiscal 2003 was offset
by a tax benefit of $1.7 million recorded as a result of the settlement with our former parent regarding an IRS examination of our 1992 and 1993 consolidated
federal income tax returns. Excluding this one−time benefit, the Company's estimated tax rate was approximately 39% for both fiscal 2003 and fiscal 2002.
Fiscal 2002 as compared to Fiscal 2001
Net Sales. Net sales increased $115.5 million, or 12.3%, to $1,051.2 million in fiscal 2002 compared to $935.7 million in fiscal 2001. Sales in fiscal 2001
include Oshman's results after the June 7, 2001 acquisition date compared to a full year of results for the combined company in fiscal 2002, resulting in an
increase of fiscal 2002 net sales of approximately $92.0 million or 8.8%. New stores contributed approximately $23.5 million in net sales, or 2.2%, for fiscal
2002. Comparable store sales in fiscal 2002, which included the Oshman's stores from August 4, 2002, were flat, reflecting several offsetting factors throughout
the year. In the first quarter of 2002, comparable store sales were strong due to a strong late ski season in our cold−weather markets, sales of merchandise related
to the Winter Olympics in Salt Lake City and increased exercise equipment promotions. The second quarter reflected a general decline in business, and a
significant decline in the camping and hunting departments due to drought and forest fire activity in the Rocky Mountain Region and the western United States.
Third quarter 2002 sales increases were driven by licensed apparel sales as teams in our markets were involved in the Major League Baseball World Series and
playoffs. However, these increases were offset by a soft selling environment in the fourth quarter of 2002, combined with a mild winter, which impacted our
outdoor apparel sales.
Gross Profit. Gross profit for fiscal 2002 was $274.9 million, or 26.2% of net sales, as compared to $239.4 million, or 25.6% of net sales, for fiscal 2001.
The increase as a percent of sales is due to a number of factors including: a less promotional strategy taken during the year; synergies realized from the Oshman's
acquisition; systems investments, allowing us to better manage in−stock positions; and the addition of key personnel in the buying organization, particularly in
the softlines department. Due to the nature of these items, they cannot be independently quantified.
Operating Expenses. Operating expenses in fiscal 2002 were $229.0 million, or 21.8% of net sales, compared to $204.4 million, or 21.8% of net sales, for
fiscal 2001. Fiscal 2002 reflects a full year of operating expenses related to the Oshman's stores, while fiscal 2001 includes only results after the June 7, 2001, the
acquisition date. As a percentage of sales, operating expenses were flat year over year, due to a continued focus on controlling costs.
Merger Integration Costs. Merger integration costs were $12.5 million, or 1.4% of net sales, for fiscal 2001 and related to the Oshman's acquisition. These
costs include $3.6 million of duplicative or retention payroll and benefits, $3.0 million of advertising related to rebranding and announcing the combined
company, $1.5 million for outside consulting services related to the integration, $2.3 million
20
of costs associated with consolidating and relocating the corporate offices, and the balance principally for other corporate office costs, travel and employee
relocation and other personnel costs. We incurred no further merger integration costs related to the Oshman's acquisition since the fourth quarter of fiscal 2001.
Operating Income. As a result of the factors described above, operating income for fiscal 2002 was $45.9 million or 4.4% of net sales compared to
$22.5 million or 2.4% of net sales in fiscal 2001. Fiscal 2002 operating income increased $10.9 million, or 0.7% of sales, when compared to fiscal 2001 operating
income excluding integration costs of $35.0 million or 3.7% of sales.
Interest Expense. Interest expense for fiscal 2002 decreased to $9.2 million, or 0.9% of net sales, from $11.0 million, or 1.2% of net sales, in the prior
year. The decrease in interest expenses is related to lower effective borrowing rates on amounts borrowed in 2002, resulting in approximately $2.7 million in
interest savings, a settlement with the IRS in the third quarter of 2002 reducing interest expense by $0.7 million, and an increase to interest expense of
$1.6 million due to an overall higher average debt balance, resulting from a decrease in the average debt as a result of the net proceeds from the May 2002
common stock offering, offset by the increased average debt due to the acquisition of Oshman's on June 7, 2001 and the shares repurchased under the 2002
common share repurchase program.
Other Income. Other income was $1.1 million for fiscal 2002 compared to $2.1 million for fiscal 2001. The decrease is primarily attributable to
non−recurring items recorded in fiscal 2001, including $0.7 million of income related to a consulting services agreement, $0.3 million of income recognized on
the sales of marketable securities, and a one−time gain of $0.2 million on the sale of certain assets that were held in Edmonton, Alberta, Canada. These items
were offset primarily by increased sales tax handling income in the current year of approximately $0.2 million, due to increased sales volume as a result of the
acquisition of Oshman's.
Income Taxes. Our income tax expense for fiscal 2002 was $14.6 million compared to $5.3 million in fiscal 2001. Our effective tax rate for fiscal 2002
was 38.7% compared to 39.0% in fiscal 2001, reflecting changes in certain permanent tax differences as compared to fiscal 2001.
Liquidity and Capital Resources
Our primary capital requirements are for inventory and other seasonal working capital needs, capital improvements, including investments in store
remodeling, store fixtures and ongoing infrastructure improvements, and pre−opening expenses to support our expansion plans.
Cash Flow Analysis
Fiscal
2003
Fiscal
2002
Fiscal
2001
(dollars in thousands, except ratios)
Cash provided by operating activities, excluding effects of merger and acquisitions
Cash used in investing activities
Cash provided by financing activities
$
Capital expenditures
Long−term debt (at end of period)
Working capital (at end of period)
$
Current ratio (at end of period)
Long−term debt to equity ratio (at end of period)
45,921 $
(104,927)
76,859
67,584
317,321
378,909
1.76
0.72
21
$
20,807 $
(25,827)
3,640
12,079
(64,414)
55,764
25,876
121,147
171,799
23,459
158,474
142,563
1.84
0.61
$
1.62
1.17
Cash provided by operating activities increased $25.1 million in fiscal 2003 compared to fiscal 2002. The increase is primarily due to a higher level of
accounts payable financing in fiscal 2003, only partially offset by an increase in inventories, producing a net $39.4 million improvement in operating cash flows
year over year. Additionally, net income adjusted to exclude depreciation and amortization increased by $8.1 million over fiscal 2002. These increases in
operating cash flows were partially offset by an increase in accounts receivable of $13.0 million due to increased vendor entitlement receivables. In fiscal 2002,
the increase in cash provided by operations compared to fiscal 2001 is due to an increase in net income adjusted to exclude depreciation and amortization.
Cash used in investing activities increased $79.1 million in fiscal 2003 compared to fiscal 2002. The change reflects an increase in capital expenditures in
fiscal 2003 of $41.7 million, combined with TSA merger costs (net of cash acquired) of $42.8 million offset by the receipt of $5.1 million on the sale−leaseback
of a TSA store site. Additionally, we entered into a second sale−leaseback transaction of a TSA store site in January 2004, while the proceeds of $10.9 million
were received on the first business day of fiscal 2004. Total capital expenditures were $67.6 million in fiscal 2003, and included: $24.2 million for expanding and
remodeling the corporate office and improvements and upgrades to our information and POS systems; $20.9 million for the development of 17 new or relocated
stores, and for stores planned to be opened in early fiscal 2004; and $20.2 million for refurbishment, remodel and general capital improvements of existing stores.
Cash used in investing activities declined $38.6 million in fiscal 2002 versus 2001, reflecting non−recurring acquisition costs in fiscal 2001 of $49.9 million
related to the Oshman's acquisition.
Cash provided by financing activities, which typically consists principally of net borrowings or payments under our revolving credit facility, increased
$73.2 million in fiscal 2003 compared to fiscal 2002. The increase reflects additional borrowings required to finance TSA merger costs and the higher level of
capital expenditures in fiscal 2003 not otherwise financed by operating cash flows. Proceeds from stock option exercises were $9.9 million in fiscal 2003
compared to $2.7 million in fiscal 2002, consistent with the increase in stock option exercises due to acceleration of vesting of TSA options as a result of the
merger. In fiscal 2002, cash flows from financing activities other than stock option exercises were relatively neutral as proceeds from our secondary common
stock offering were used to pay down long−term debt. By comparison, financing cash flows of $55.8 million in fiscal 2001 reflected the higher level of
borrowings required to finance the Oshman's acquisition.
Working capital was $378.9 million as of January 31, 2004 compared to $171.8 million as of February 1, 2003, an increase of $207.1 million. The increase
is due principally to an increase in inventories net of accounts payable of $169.5 million year over year, reflecting additional stores acquired in the TSA merger.
Additionally, current deferred income taxes increased $80.0 million, reflecting tax assets generated in connection with the TSA merger and tax assets acquired
from the former Sports Authority.
Our liquidity and capital needs have principally been met by operating cash flows and by borrowings under a revolving credit facility with CIT/Business
Credit, Inc. ("CIT"), as agent.
Upon consummation of the merger, we entered into a new credit financing agreement (the "Credit Agreement") with CIT, as agent, that allows us to borrow
up to $600,000,000, limited to an amount equal to 70% of eligible inventory or 85% of the appraised net orderly liquidation value of eligible inventory (as
defined in the agreement). We are also entitled to seasonal increases in the inventory advance rate for up to 120 days during any calendar year as designated by
us for the lesser of 80% of eligible inventory or 90% of appraised net orderly liquidation value. Borrowings are secured by substantially all present and future
accounts (as defined in the Credit Agreement), inventories, trade receivables, equipment, documents of title and intangible assets. The borrowings mature, absent
an occurrence of default under the agreement, on August 4, 2007. The Credit Agreement contains certain covenants, including financial covenants that require us
to maintain a specified minimum level earnings
22
before interest, taxes, depreciation and amortization to interest ratios if we do not have at least $50 million available for borrowing in the first year, $60 million in
the second year and $75 million thereafter. In addition, the Credit Agreement restricts, among other things, our ability to incur additional debt, to merge,
consolidate or sell assets, to make loans or advances to others, to guaranty obligations of others, to pledge our assets, to make certain investments, and to engage
in transactions with affiliates. Our ability to declare or pay dividends on our common stock and to repurchase our common stock is limited to $16 million per
year under the Credit Agreement. We are in compliance with all covenants under the Credit Agreement. In connection with the Credit Agreement, we pledged all
of the outstanding common stock of our subsidiaries, including TSA Stores, Inc. our principal operating retail subsidiary, as collateral for the Credit Agreement.
Interest is payable monthly at Chase Manhattan Bank's prime rate plus a margin rate ranging from 0% to 0.50% or, at our option, at Chase Manhattan Bank's
LIBOR rate plus a margin rate ranging from 1.50% to 2.50%. At January 31, 2004, there was $317.3 million outstanding under the Credit Agreement and
$139.5 million was available for borrowing.
Capital expenditures are projected to be approximately $85 million in fiscal 2004, primarily for the opening of approximately 23 new stores and relocation
of two stores, remodeling of approximately 70 stores, principally Sports Authority stores; completion of a new distribution center in Fontana, California, and
refurbishment of the existing Sports Authority distribution centers, and information systems upgrades and enhancements and ongoing Sports Authority systems
integration. We lease the majority of our store locations and intend to continue to finance our new store construction with long−term operating leases. Based
upon recent store openings, newly constructed superstores require a cash investment of approximately $1.6 million for a 42,000 square foot store and
approximately $1.3 million for a 32,000 square foot store. The level of capital improvements will be affected by the mix of new construction versus renovation of
existing retail space.
We believe that cash generated from operations, combined with funds available under the revolving credit facility, will be sufficient to fund projected
capital expenditures, future common share purchases, if any, and other working capital requirements for the foreseeable future. We intend to utilize the revolving
credit facility to meet seasonal fluctuations in cash flow requirements.
23
Contractual obligations and commercial commitments
To facilitate an understanding of our contractual obligations and commercial commitments, the following data is provided (dollars in thousands):
Payments due by period
Within
1 year
Total
2−3
years
4−5
years
After
5 years
(in thousands)
Contractual obligations:
Long term debt
Capital lease obligations
Operating leases, net
Total contractual cash obligations
$
317,321
1,371
2,030,005
$
—
396
198,886
$
—
736
390,852
$
317,321
239
369,043
$
—
—
1,071,224
$
2,348,697
$
199,282
$
391,588
$
686,603
$
1,071,224
Amount of commitment expiration per period
Within
1 year
Total
2−3
years
4−5
years
After
5 years
(in thousands)
Other commercial commitments:
Import letters of credit
Standby letters of credit
$
2,403
13,397
$
2,403
13,397
$
—
—
$
—
—
$
—
—
Total commercial commitments (1)
$
15,800
$
15,800
$
—
$
—
$
—
(1)
We have routine commitments under merchandise inventory purchase orders, which vary in amount from month to month depending on seasonality
and other factors. Such purchase orders are cancelable by us without payment. In addition, we have entered into employment agreements with each of
our executive officers. Payments under these employment agreements are dependent on these executives providing future services and certain
payments are required to be made upon termination of employment by us without cause, as defined in the employment agreements. These items have
not been included in the amounts in the above table.
Interest Rate and Foreign Currency Risk Management
We entered into an interest rate swap agreement on June 28, 2001, expiring on June 30, 2004, and entered into a second interest rate swap agreement on
December 11, 2002, expiring on May 31, 2005, to minimize the risks and costs associated with our financing activities. Under the swap agreements, we pay fixed
rate interest and receive variable LIBOR interest rate payments periodically over the life of the agreements. The total notional amounts under the interest rate
swaps are $60 million, which do not represent the exposure due to credit loss.
Our interest rate swaps are designated as cash flow hedges and are considered highly effective, as defined by FASB Statement No. 133. Net settlements on
the swap agreements are recorded as interest expense. At January 31, 2004, the fair value of the swap agreements was a loss of $759,000, net of the related tax
benefit. The unrealized loss from these interest rate swaps is included in other comprehensive income and is a component of stockholders' equity.
Our exposure to foreign currency risk is not material.
24
Seasonality and Inflation
The following table sets forth our unaudited consolidated quarterly results of operations for each of the quarters in fiscal 2003 and 2002. This information is
unaudited, but is prepared on the same basis as the annual financial information and, in the opinion of management, reflects all adjustments (consisting only of
normal recurring adjustments) necessary for a fair presentation of the information for the periods presented. The results of operations for any quarter are not
necessarily indicative of the results for any future period.
The results for the last two quarters of fiscal year 2003 are not comparable to the other periods presented due to the inclusion of The Sports Authority results
of operations, after August 4, 2003, the date of merger.
Fiscal 2003
First
Quarter (1)
Second
Quarter (1)
Third
Quarter (2)
Fourth
Quarter (2)
(dollars in millions)
Net sales
% of full year net sales
Operating income (loss)
$228.4
13.0%
$4.0
$267.5
15.2%
$10.3
$552.5
31.4%
$(9.0)
$712.0
40.4%
$27.6
Fiscal 2002 (1)
First
Quarter
Second
Quarter
Third
Quarter
Fourth
Quarter
(dollars in millions)
Net sales
% of full year net sales
Operating income
$245.0
23.3%
$6.7
$261.7
24.9%
$12.5
$227.8
21.7%
$3.7
$316.8
30.1%
$23.0
(1)
Amounts reflect the results of Gart Sports on a stand−alone basis for these periods.
(2)
Amounts include the results of the former Sports Authority, Inc. from August 4, 2004, the date of merger.
The fourth quarter has historically been our strongest quarter. We believe that two primary factors contribute to this seasonality: first, sales of cold weather
sporting goods and ski and snowboard merchandise during the fourth quarter are generally strong in anticipation of the ski and snowboard season; and second,
holiday sales contribute significantly to our operating results. As a result of these factors, inventory levels, which gradually increase beginning in April, generally
reach their peak in November and then decline to their lowest level following the December holiday season. Any decrease in sales for the fourth quarter, whether
due to a slow holiday selling season, poor snowfall in ski areas near our markets or otherwise, could have a material adverse effect on our business, financial
condition and operating results for the entire fiscal year.
Although our operations are influenced by general economic conditions, we do not believe that inflation has a material impact on our results of operations.
We believe that we are generally able to pass along inflationary increases in costs to our customers.
Critical Accounting Policies
Management's Discussion and Analysis of Financial Condition and Results of Operations discusses the results of operations and financial condition as
reflected in our consolidated financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States.
The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates
and assumptions that affect the
25
reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and reported amounts of
revenues and expenses during the reporting period. On an ongoing basis, management evaluates its estimates and judgments, including those related to inventory
valuation, accounts receivable, the recoverability of long−lived assets including intangible assets, store closing reserves, income taxes, self insured reserves and
the estimates used to apply the purchase method of accounting to our mergers and acquisitions. Management bases its estimates and judgments on its historical
experience and other relevant factors, which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent
from other sources. See Note 2 to the consolidated financial statements for a complete listing of our significant accounting policies.
Valuation of Inventory
We value our inventory at the lower of last−in, first−out ("LIFO") cost or market. Cost is determined using the average cost of items purchased and applying
the dollar value LIFO inventory method. Our dollar value LIFO pools are computed using the Inventory Price Index Computation ("IPIC") method. LIFO cost of
our inventories is then compared to estimated market value. This assessment of estimated market value is based on the quality and age of merchandise, the rate of
sale of merchandise, the quantities on hand, and our assessment of the market conditions. Estimates and judgments are required in the determination of the
market value of our inventory and future events, such as changes in customer merchandise preferences or unseasonable weather patterns, could impact the market
value of our inventory.
Inventory shrinkage is accrued as a percentage of merchandise sales based on historical inventory shrinkage trends. We perform physical inventories at
stores and distribution centers throughout the year. The reserve for inventory shrinkage represents an estimate for inventory shrinkage for each location since the
last physical inventory date through the reporting date. These estimates are impacted by internal and external factors and may vary from actual results.
Vendor Allowances
We receive certain allowances from our vendors, which include rebates and cooperative advertising funds. These amounts are negotiated with vendors
typically on an annual basis and are, at times, dependent on projected purchase volumes and advertising plans. The amounts are subject to changes in market
conditions or marketing strategies of our vendors, and changes in our product purchases. We record an estimate of earned allowances based on the latest
information available with respect to purchase volumes, advertising plans and status of our negotiation with vendors. We received $39.0 million, $28.2 million
and $22.9 million in vendor allowances for fiscal years 2003, 2002 and 2001, respectively. Of those amounts, $32.8 million, $28.2 million, and $22.9 million, in
fiscal years 2003, 2002 and 2001, respectively, were vendor allowances for advertising costs and were recorded as a reduction of advertising expense, while any
remainder was recorded as a reduction of the cost of inventory purchased.
Impairment of Assets
We review long−lived tangible and intangible assets for impairment whenever events or changes in circumstances indicate that the carrying amount of an
asset may not be fully recoverable. Recoverability of assets to be held and used is measured by a comparison of the carrying amount of an asset to future net cash
flows expected to be generated by the asset. If such assets are considered to be impaired, the impairment to be recognized is measured by the amount by which
the carrying amount of the assets exceeds the fair value of the assets. Assets to be disposed of are reported at the lower of the carrying amount or fair value less
costs to sell. Future events could cause management to conclude that impairment indicators exist and that the value of long−lived tangible and intangible assets is
impaired.
26
Store Closing Reserves
Prior to December 31, 2002 and the adoption of SFAS No. 146, "Accounting for Costs associated with Exit or Disposal Activities" ("SFAS No. 146"), we
recorded a provision for store closing costs when the decision was made by management to close a store. In accordance with SFAS No. 146, for store closing
activities initiated after December 31, 2002, the related liability is recorded at fair value when a liability is incurred rather than when the decision to close a store
is made. This will change the timing of recognition for certain exit costs, so that certain exit costs will be recognized over the period in which the exit activities
occur. We also record store exit reserves arising from our various mergers and acquisitions pursuant to SFAS No. 141, "Business Combinations" and EITF Issue
No. 95−3, "Recognition of Liabilities in Connection with a Purchase Business Combination" ("EITF 95−3"). Under EITF 95−3, the costs of a plan to exit an
activity of the acquired company are recognized as liabilities assumed in the business combination. As such, reserves are recorded in purchase accounting for the
net present value of projected costs to be incurred after the store closing date. The costs incurred in connection with store closings primarily consist of
post−closing future net lease obligations, utilities, property taxes, and employee costs directly related to the store closing.
Deferred Taxes
Deferred tax assets and liabilities are recognized based on differences between the financial statement carrying amount and the tax bases of assets and
liabilities. Deferred tax assets are reviewed for recoverability based on projections of future operating results, which dictate our ability to realize the tax assets.
We record a valuation allowance to reduce the carrying value of our deferred tax assets when this amount exceeds the amount more likely than not to be realized.
As of January 31, 2004, we had no valuation allowance on our deferred tax assets.
Self Insured Reserves
We are self−insured for our workers' compensation, general liability and employee medical plans up to a self−insured retention amount. We record a reserve
for the estimated cost of both reported and incurred but not reported ("IBNR") claims. The estimate of our current claim obligation requires significant judgment
and is based on specific loss estimates for reported claims, and on loss triangulation estimates of future claims payments, including IBNR's. Reserves are
regularly evaluated for adequacy based on the most current available information, including historical claims experience and expected future claims costs.
Acquisitions and Mergers Accounting
Our acquisitions and mergers are accounted for under the purchase method of accounting. Accordingly, the total costs of such transactions are allocated to
the tangible and intangible assets acquired and liabilities assumed based on their respective fair values. The determination of fair values involves the use of
estimates and assumptions, which are subject to adjustment in the future. While we believe that the historical experience and other factors considered provide a
meaningful basis for the accounting policies applied in the preparation of the consolidated financial statements, we cannot guarantee that our estimates and
assumptions will be accurate, and will not require adjustment in future periods.
Impact of Recent Accounting Pronouncements
In April 2003, the FASB issued Statement No. 149, "Amendment of Statement 133 on Derivative Instruments and Hedging Activities". This Statement
amends and clarifies financial accounting and reporting for derivative instruments, including certain derivative instruments embedded in other contracts and for
hedging activities under Statement No. 133, "Accounting for Derivative Instruments
27
and Hedging Activities". The provisions of this Statement are effective for us for all derivatives and hedging activity entered into after June 30, 2003. The
adoption of this Statement had no impact on our overall financial position and results of operations.
In May 2003, the FASB issued Statement No. 150, "Accounting for Certain Financial Instruments with Characteristics of both Liabilities and Equity". This
Statement establishes standards for how an issuer classifies and measures certain financial instruments with characteristics of both liabilities and equity. The
provisions of this Statement are effective for these financial instruments with our fiscal year beginning February 1, 2004. We expect that the adoption of this
Statement will have no material impact on our overall financial position and results of operations.
In November 2002, the EITF of the FASB issued consensus No. 02−16, "Accounting by a Customer (Including a Reseller) for Certain Consideration
Received from a Vendor" ("EITF 02−16"). EITF 02−16 addresses how a reseller of a vendor's products should account for cash consideration received from the
vendor and addresses two Issues. On Issue 1, the Task Force reached a consensus that cash consideration received from a vendor is presumed to be a reduction of
cost of sales when recognized in the reseller's income statement. This presumption is overcome when the consideration is a reimbursement for specific,
incremental, identifiable costs incurred by the reseller to sell the vendor's products, in which case the cash consideration should be characterized as a reduction of
that cost when recognized in the reseller's income statement. Additionally, the Task Force concluded on Issue 2 that a refund or a rebate of a specified amount of
cash consideration payable only if the reseller completes a specified level of purchases should be recognized as a reduction of cost of sales based on a systematic
and rational allocation of the cash consideration offered to each of the underlying transactions that results in progress by the reseller toward earning the refund or
rebate, provided the amounts are probable and reasonably estimable. In its January 2003 meeting, the Task Force amended the transition guidance relative to
adoption of EITF 02−16 to require that the consensus on Issue 1 be applied to new arrangements, including modifications of existing arrangements, entered into
after December 31, 2002. Issue 2 remains applicable to arrangements entered into after November 21, 2002.
We receive certain allowances from our vendors, which include rebates and cooperative advertising funds. These amounts are negotiated with vendors
typically on an annual basis and are, at times, dependent on projected purchase volumes and advertising plans. The amounts are subject to changes in market
conditions or marketing strategies of our vendors, and changes in our product purchases. We record an estimate of earned allowances based on the latest
information available with respect to purchase volumes, advertising plans and status of our negotiation with vendors. We have historically treated certain vendor
entitlements as a reduction of inventory costs, while cooperative advertising reimbursements have been reflected as a reduction of selling, general, and
administrative expense. The impact of EITF 02−16 for fiscal 2002 was immaterial and for fiscal 2003 was a recharacterization of $3.0 million from reduction of
advertising expense to reduction of cost of inventory purchased. The net impact of EITF 02−16 for fiscal 2003 was a reduction of net income of $0.5 million, or
$0.03 per diluted share.
Risks and Uncertainties
Integration of The Sports Authority, Inc. (formerly known as Gart Sports Company) and TSA Stores, Inc. (formerly known as The Sports
Authority, Inc.) may be difficult and expensive to achieve.
On August 4, 2003, we completed the merger of equals contemplated by the Agreement and Plan of Merger, dated as of February 19, 2003, among Gart
Sports Company, Gold Acquisition Corp. and The Sports Authority, Inc. Pursuant to the merger agreement, we changed our name from Gart Sports Company to
The Sports Authority, Inc. and the company formerly known as The Sports Authority, Inc. changed its name to TSA Stores, Inc.
28
The merger involves the integration of companies that have previously operated independently. The integration will be a complex, time consuming and
expensive process and may materially harm our business if not completed in a timely and efficient manner. We may not be able to integrate the operations of the
companies without encountering difficulties, including possible unanticipated costs, failure to retain key employees, the diversion of management's attention or
failure to integrate our information systems. Due to the location of the combined company's headquarters in Colorado, a significant number of the members of
the management team of TSA Stores have not remained with the combined company. As a result, we may lose some historical knowledge of the operations and
business of TSA Stores. Additionally, we may not realize the increased revenues and cost savings that the pre−merger companies expected to achieve as a result
of the merger or that would justify the investment made.
If the benefits of the merger do not exceed the costs associated with the merger, including any dilution to the stockholders resulting from the issuance of
shares in connection with the merger, our financial results, including earnings per share, could be adversely affected.
Intense competition in the sporting goods industry could limit our growth and reduce our profitability.
The sporting goods retail market is highly fragmented and intensely competitive. Our current and prospective competitors include many large companies
that have substantially greater market presence, name recognition, financial, marketing and other resources than we do. We compete directly or indirectly with
the following categories of companies:
•
full−line sporting goods retailers;
•
traditional sporting goods stores and chains;
•
specialty sporting goods retailers and pro shops;
•
mass merchandisers, warehouse clubs, discount stores and department stores; and
•
catalog and internet−based sporting goods retailers.
Increased competition in markets in which we have stores, the adoption by competitors of innovative store formats, pricing strategies and retail sale
methods, the entry of new competitors in our markets or the expansion of operations by existing competitors in our markets could cause us to lose market share,
limit our growth and reduce our profitability.
29
If we are unable to predict or react to changes in consumer demand, our sales may decline and we may be required to take significant markdowns in
inventory.
Our success depends on our ability to anticipate and respond in a timely manner to changing consumer demand and preferences regarding sporting goods.
Our products must appeal to a broad range of consumers whose preferences cannot be predicted with certainty and are subject to change. Additionally, we often
make commitments to purchase products from our vendors several months in advance of the proposed delivery. If we misjudge the market for our merchandise,
we may lose sales or we may overstock unpopular products, which may require us to take significant inventory markdowns. In either case, our revenues and
profit margins could significantly decline and our business and financial results may suffer.
We sell products that expose us to a greater risk of product liability and infringement claims, and our insurance may not be sufficient to cover damages
related to those claims. Additionally, we face claims in Illinois relating to the sale of handguns before 1999.
We may be subject to lawsuits resulting from injuries associated with the use of sporting goods equipment that we sell or rent. Among other things, we sell
long guns, handguns and air pistols, which are products that are associated with an increased risk of injury and related lawsuits. We may incur losses relating to
these claims or the defense of these claims. We may also incur losses due to lawsuits relating to our performance of background checks on firearm purchasers as
mandated by state and federal law or the improper use of firearms sold by us, including lawsuits by municipalities or other organizations attempting to recover
costs from firearm manufacturers and retailers relating to the misuse of firearms. In addition, in the future there may be increased federal, state or local
regulation, including taxation, of the sale of firearms in our current markets as well as future markets in which we may operate. Commencement of these lawsuits
against us or the establishment of new regulations could reduce our sales and decrease our profitability. There is a risk that claims or liabilities will exceed our
insurance coverage.
TSA Stores is one of thirty−three named defendants, including firearms manufacturers, distributors and retailers, in City of Chicago and County of Cook v.
Beretta U.S.A. Corp. et al., Circuit Court of Cook County, Illinois. This suit was served on TSA Stores in November 1998. The original complaint was based on
legal theories of public nuisance and negligent entrustment of firearms and alleged that the defendants created a public nuisance by distributing, marketing and
selling firearms in the portion of Cook County outside Chicago knowing or recklessly disregarding that these guns would be illegally transferred and used in
Chicago to commit crimes. The complaint sought damages allocated among the defendants exceeding $433 million to compensate the City of Chicago and Cook
County for their alleged costs resulting from the alleged public nuisance. The complaint also sought punitive damages and injunctive relief imposing additional
regulations on the methods the defendants use to distribute, market and sell firearms in Cook County. In February 2000, the Court dismissed the complaint's
negligent entrustment count. The plaintiffs filed an amended complaint with the Court's permission in March 2000, which contained both the public nuisance and
negligent entrustment counts. In September 2000, the Court granted the motions of the defendants to dismiss the amended complaint, in its entirety, with
prejudice. In October 2000, the plaintiffs appealed the dismissal of their public nuisance claim to the Appellate Court of Illinois, First Judicial District. On
November 4, 2002, the Appellate Court reversed the dismissal of the public nuisance claim and remanded the case to the trial court for further proceedings. On
November 25, 2002, TSA Stores filed a petition for rehearing with the Appellate Court, which was denied on March 7, 2003. On March 27, 2003, TSA Stores
joined in a petition by the other defendants for leave to appeal to the Illinois Supreme Court the Appellate Court's decision reversing the trial court's dismissal of
the public nuisance claim, which was granted on April 8, 2003. The Illinois Supreme Court heard oral arguments by the parties on September 10, 2003 and has
yet to render a decision. We are currently unable to predict the outcome of this case.
30
There is a risk that claims or liabilities with respect to lawsuits will exceed our insurance coverage. Additionally, we may be unable to purchase adequate
liability insurance in the future. Although we have entered into product and infringement liability indemnity agreements with many of our vendors, we cannot
assure you that we will be able to collect payments sufficient to offset product liability losses. Furthermore, we are subject to regulation by the Consumer Product
Safety Commission and similar state regulatory agencies. If we fail to comply with government and industry safety standards, we may be subject to claims,
lawsuits, fines and adverse publicity that could have a material adverse effect on our business and results of operations.
If our suppliers and distributors do not provide us with sufficient quantities of products, or if conditions in any of the foreign countries where they
source merchandise adversely change, we may not be able to offer competitively priced merchandise or the quantities or assortment that our customers
demand.
We purchase merchandise from over 1,000 vendors. In fiscal 2003, purchases from Nike represented approximately 13.0% of our total purchases. Although
purchases from no other vendor represented more than 10.0% of our total purchases, our dependence on our principal suppliers involves risk. We do not have
long−term agreements with our suppliers and cannot guarantee that we will be able to maintain our relationships with them. If there is a disruption in supply from
a principal supplier or distributor, we may be unable to obtain the merchandise that we desire to sell and that consumers desire to purchase. Moreover, many of
our suppliers provide us with incentives, such as return privileges, volume purchasing allowances and cooperative advertising allowances. A decline or
discontinuation of these incentives could reduce our profits.
Additionally, we believe that a significant portion of the products that we purchase, including those purchased from domestic suppliers, are manufactured
abroad. Government regulations, political unrest, war, changes in local economic or labor conditions, trade issues or interruptions or delays in imports could
disrupt or delay shipments of merchandise to our stores and cause shortages in our inventory and a decline in our sales. If one or more of these factors occur, our
business and financial results could suffer.
Our comparable store sales will fluctuate and may not be a meaningful indicator of future performance.
Changes in our comparable store sales results could affect the price of our common stock. A number of factors have historically affected, and will continue
to affect, our comparable store sales results, including:
•
competition;
•
our new store openings;
•
general regional and national economic conditions;
•
actions taken by our competitors;
•
consumer trends and preferences;
•
changes in the other tenants in the shopping centers in which we are located;
•
new product introductions and changes in our product mix;
•
timing and effectiveness of promotional events;
•
lack of new product introductions to spur growth in the sale of various kinds of sports equipment; and
•
weather.
Our comparable store sales may vary from quarter to quarter, and an unanticipated decline in revenues or comparable store sales may cause the price of our
common stock to fluctuate significantly.
31
Our business is seasonal, and our annual results are highly dependent on the success of our holiday selling season.
Our business is highly seasonal in nature. Our highest sales and operating profitability historically occur during the fourth fiscal quarter, which is due, in
part, to the holiday selling season and, in part, to our strong sales of cold weather sporting goods and apparel. Any decrease in our fourth quarter sales, whether
because of a slow holiday selling season, poor snowfall in ski areas near our markets, or otherwise, could have a material adverse effect on our business, financial
condition and operating results for the entire fiscal year.
A downturn in the economy could significantly reduce our revenues.
Sales of sporting goods historically depend on consumers' discretionary spending. An economic downturn in any of our major markets, or in general, could
reduce consumer spending on discretionary items that could adversely impact our revenues and cause our business and financial results to suffer.
General economic conditions are beyond our control and are affected by:
•
the impact of an economic recession;
•
unemployment trends;
•
interest rates and inflation;
•
consumer and commercial credit availability;
•
consumer debt levels;
•
geopolitical uncertainty;
•
tax rates and tax policy;
•
the impact of natural disasters; and
•
other factors that influence consumer confidence and spending.
Increasing volatility in financial markets may cause the above factors to change with an even greater degree of frequency and magnitude.
We have a significant amount of debt that could adversely affect our business and growth prospects.
We entered into a credit facility at the completion of the TSA merger that provides for loans of up to $600 million. As of January 31, 2004, we had
approximately $317.3 million of long−term debt. This debt could have significant adverse effects on our business. This debt:
•
makes it more difficult for us to obtain additional financing on favorable terms;
•
requires us to dedicate a substantial portion of our cash flows from operations to the repayment of our debt and the interest on our debt;
•
limits our ability to capitalize on significant business opportunities; and
•
makes us more vulnerable to economic downturns.
If we are unable to generate sufficient cash flows from operations in the future, we may have to refinance all or a portion of our debt and/or obtain additional
financing. We cannot assure you that refinancing or additional financing on favorable terms could be obtained or that we will be able to operate at a profit.
32
Additionally, the credit facility entered into upon consummation of the merger imposes operating and financial restrictions that may impair our ability to
respond to changing business and economic conditions or to grow our business.
Our business depends on our ability to satisfy our labor needs.
Many of our employees are in entry−level or part−time positions that historically have high rates of turnover. We may be unable to satisfy our labor needs
and control our costs due to external factors such as unemployment levels, minimum wage legislation and wage inflation. If general economic conditions
improve, it may be more difficult to attract and retain quality employees. As a result, our business may suffer.
Terrorist attacks or acts of war may seriously harm our business.
Terrorist attacks or acts of war may cause damage or disruption to us and our employees, facilities, information systems, vendors and customers, which
could significantly impact our net sales, costs and expenses and financial condition. The threat of terrorist attacks in the United States since September 11, 2001
continues to create many economic and political uncertainties. The potential for future terrorist attacks, the national and international responses to terrorist attacks
and other acts of war or hostility may cause greater uncertainty and cause our business to suffer in ways that we currently cannot predict. The military action
taken by the United States and its allies against the government of Iraq could have a short or long term negative economic impact upon the financial markets and
our business in general. Additionally, events such as those referred to above could cause or contribute to a general decline in equity valuations, which in turn
could reduce the market value of your investment in us.
Because an equity owner of one of our significant stockholders is a member of the board of directors of one of our competitors, there may be conflicts of
interest.
Green Equity Investors, L.P. (we refer to Green Equity Investors, L.P. and its affiliates as Leonard Green) currently holds approximately 8% of our
outstanding common stock. Jonathan D. Sokoloff, one of our current directors, and Jonathan A. Seiffer, a former director, are equity owners of Leonard Green,
and both previously served on Big 5 Sporting Goods' board of directors. John G. Danhakl, also an equity owner of Leonard Green, currently serves on the board
of directors of Big 5 Sporting Goods. Leonard Green does not have formal procedures to prohibit Messrs. Seiffer, Sokoloff and Danhakl from sharing
information about us and Big 5 Sporting Goods with each other. Messrs. Seiffer, Sokoloff and Danhakl may have conflicts of interest with respect to various
matters affecting us, including the pursuit of business opportunities presented to Leonard Green. Leonard Green does not have procedures in place that are
designed to resolve conflicts arising in connection with its investments in entities that compete with each other. All potential conflicts may not be resolved in a
manner that is favorable to us. We believe that it is impossible to predict the precise circumstances under which future potential conflicts may arise, and,
therefore, we intend to address potential conflicts on a case−by−case basis.
Anti−takeover provisions may prevent stockholders from realizing a premium return.
Anti−takeover provisions in our certificate of incorporation and bylaws may deter unfriendly offers or other efforts to obtain control over us. These
anti−takeover provisions, among other things:
•
allow our board of directors to issue "blank check" preferred stock without stockholder approval, and establish the rights, including voting
rights, preferences and limitations of the preferred stock;
•
establish advance notice requirements for stockholder nominations to the board of directors or for stockholder proxy proposals;
33
•
permit the board of directors to increase its own size and fill the resulting vacancies through a majority vote of directors, even if less than a
quorum; and
•
require that mergers and other business combinations with certain interested stockholders, including any holder of 10% or more of our
common stock, be approved by a supermajority of the holders of our common stock that are not interested in the transaction.
Section 203 of the Delaware General Corporate Law also imposes restrictions on mergers and other business combinations between us and any holder of
15% or more of our common stock.
These measures could make us less attractive to a potential acquirer and deprive stockholders of the opportunity to sell their common stock at a premium
price.
Our quarterly operating results may fluctuate substantially, which may adversely affect our business and the market price of our common stock,
particularly if our quarterly results fall below the expectations of securities analysts.
Our sales and results of operations have fluctuated in the past and may vary from quarter to quarter in the future. These fluctuations may adversely affect our
business, financial condition and the market price of our common stock, particularly if our quarterly results fall below the expectations of securities analysts. A
number of factors, many of which are outside our control, may cause variations in our quarterly net sales and operating results, including:
•
changes in consumer demand for the products that we offer in our stores;
•
pre−opening costs associated with new stores;
•
costs related to the closures of existing stores;
•
litigation;
•
changes in merchandise mix;
•
sales and promotional events sponsored by our competitors; and
•
general economic conditions.
Our stock price has been volatile in the past and may remain volatile in the future. The value of our common stock may decline as a result of this
volatility.
The market price of our common stock has been in the past, and may in the future be, subject to wide fluctuations in response to factors such as:
•
fluctuations in quarterly operating results;
•
announcements, by us or our competitors, of actual or expected financial results, significant contracts, acquisitions, strategic partnerships,
joint ventures or capital commitments;
•
changes in recommendations or financial estimates by securities analysts;
•
conditions and trends in the sporting goods industry; and
•
general conditions in the economy or the financial markets.
Additionally, in recent years, the stock market has experienced significant price and volume fluctuations that are often unrelated to the performance or
condition of particular companies. Such broad market fluctuations could adversely affect the market price of our common stock. Following periods of volatility
in the market price of a particular company's securities, securities class action litigation has often been brought against a company. If we become subject to this
kind of litigation in the future, it could result in substantial litigation costs, damages awards against us and the diversion of our management's attention and
resources.
34
The loss of key executives could have a material adverse effect on our business.
Our future success depends on the continued services of our senior management, particularly John Douglas Morton, our vice chairman of the board and
chief executive officer. Any loss or interruption of the services of our senior management could significantly reduce our ability to effectively manage our
operations and implement our key initiatives because we may not be able to find appropriate replacements for our senior management should the need arise. If
we were to lose any key senior management, our business could be materially adversely affected.
We rely on our information systems to operate our business, and if our information systems fail to adequately perform these functions, our business and
financial results could be adversely affected.
The efficient operation of our business is dependent on the successful integration and operation of our information systems. In particular, we rely on our
information systems to manage effectively our sales, warehousing, distribution, merchandise planning and replenishment and to optimize our overall inventory
levels. Most of our information systems are centrally located at our headquarters, with offsite backup at other locations. Following the TSA merger, we continue
to focus on the integration of the warehouse management systems and store point−of−sale systems. Some of our systems have not been fully implemented and
require additional configuration, testing and user training before they become fully operational. Systems integration issues are complex, time−consuming and
expensive. The failure to integrate successfully our information systems or their failure to perform as we anticipate could disrupt our business, lead to
unanticipated costs, adversely affect our revenues and cause our business and financial results to suffer.
A disruption in the operation of our distribution centers would affect our ability to deliver merchandise to our stores, which could impact adversely our
revenues and harm our business and financial results.
Most of our merchandise is shipped by our vendors to a limited number of distribution centers. Our distribution centers receive and allocate merchandise to
our stores. Events such as fire or other catastrophic events, any malfunction or disruption of our centralized information systems or shipping problems may result
in delays or disruptions in the timely distribution of merchandise to our stores, which could adversely impact our revenues and our business and financial results.
Our ability to successfully operate the new regional distribution center in Burlington, New Jersey will depend on the successful integration of our warehouse
management systems. Additionally, the success of this and other supply chain initiatives is heavily dependent on the implementation and consistent execution of
new processes and the use of new systems capabilities by our merchandising and supply chain personnel. The new distribution center may not enable us to
improve the flow of merchandise to our stores or improve our inventory management.
Lack of available retail store sites on terms acceptable to us, rising real estate prices and other costs and risks relating to new store openings could
severely limit our growth opportunities.
Our strategy includes opening stores in new and existing markets. We must successfully choose store sites, execute favorable real estate transactions on
terms that are acceptable to us, hire competent personnel and effectively open and operate these new stores. Our plans to increase the number of our retail stores
will depend in part on the availability of existing retail stores or store sites. We may not have stores or sites available to us for purchase or lease, or available on
terms acceptable to us. If additional retail store sites are unavailable on acceptable terms, we may not be able to carry out a significant part of our growth
strategy. Rising real estate costs and acquisition, construction and development costs could also inhibit our ability to grow. If we fail to locate desirable sites,
obtain lease rights to these sites on terms acceptable to us, hire adequate personnel and open and effectively operate these new stores, our financial performance
could be adversely affected.
We may pursue strategic acquisitions, which could have an adverse impact on our business.
35
We may from time to time acquire complementary companies or businesses. Acquisitions may result in difficulties in assimilating acquired companies, and
may result in the diversion of our capital and our management's attention from other business issues and opportunities. We may not be able to successfully
integrate operations that we acquire, including their personnel, financial systems, distribution, operations and general store operating procedures. If we fail to
successfully integrate acquisitions, our business could suffer. In addition, the integration of any acquired business, and their financial results, into ours may
adversely affect our operating results. We currently do not have any agreements with respect to any such acquisitions.
ITEM 7A.
Quantitative and Qualitative Disclosures about Market Risk
Our primary interest rate risk exposure results from our long−term debt agreement. Our long−term debt bears interest at variable rates that are tied to either
the U.S. prime rate or LIBOR at the time of the borrowing. We maintain portions of our debt in LIBOR traunches that mature in one to nine months. As those
traunches mature, the interest rates on our outstanding borrowings are changed to reflect current prime or LIBOR rates. Therefore, our interest expense changes
as the prime or LIBOR market rates change. We have entered into two interest rate swap instruments, designated as cash flow hedges, as shown in the following
table:
Date
Entered Into
Rate paid
Rate received
Notional amount
Fair value
at 01/31/04
June 28, 2001
5.35%
3−mo. US Libor $
20,000,000 $
(420,000)
December 11, 2002
2.95%
3−mo. US Libor $
40,000,000 $
(815,000)
Based on our overall interest rate exposure at January 31, 2004, a hypothetical instantaneous increase or decrease of one percentage point in interest rates
applied to borrowings under our revolving credit facility would change our after−tax earnings by approximately $1.6 million over a 12−month period prior to
considering the effects of our interest rate swaps.
Our exposure to foreign currency exchange rates is limited because we do not operate any stores outside of the United States. We do not consider the market
risk exposure relating to foreign currency exchange to be material. Foreign currency fluctuations did not have a material impact on us during the quarter or year
to date periods in fiscal 2003, 2002 or 2001.
ITEM 8.
Financial Statements and Supplementary Data
The financial statements and supplementary financial information required by this Item and included in this report are listed in the Index to Consolidated
Financial Statements appearing on page F−1.
ITEM 9.
Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
None
36
ITEM 9A.
Controls and Procedures
Under the supervision and with the participation of our management, including the Chief Executive Officer and Chief Financial Officer, we have conducted
an evaluation of the effectiveness of the design and operation of our disclosure controls and procedures (as such term is defined in Rules 13a−15(e) and
15d−15(e) under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) as of the end of the period covered by this report (the "Evaluation
Date"). There are inherent limitations to the effectiveness of any system of disclosure controls and procedures, including the possibility of human error and the
circumvention or overriding of the controls and procedures. Accordingly, even effective disclosure controls and procedures can only provide reasonable
assurance of achieving their control objectives. Based on such evaluation, the Chief Executive Officer and Chief Financial Officer have concluded that, as of the
Evaluation Date, our disclosure controls and procedures are effective in alerting them on a timely basis to material information relating to us required to be
included in our reports filed or submitted under the Exchange Act.
There was no change in our internal control over financial reporting during our fourth fiscal quarter in 2003 that has materially affected, or is reasonably
likely to materially affect, our internal control over financial reporting.
37
PART III
ITEM 10. Directors and Executive Officers of the Registrant
Directors
The following table and information sets forth the names of the Directors, the year from which each individual has served as a Director, the age of each
Director and the principal occupation of each Director.
Name
Martin E. Hanaka
John D. Morton
Gordon D. Barker
Mary Elizabeth Burton
Cynthia R. Cohen
Peter R. Formanek
Kevin M. McGovern
Jonathan D. Sokoloff
Director
Since
Age
Position
2003
1995
1998
2003
2003
1998
2003
1993
54
53
58
52
50
60
55
46
Chairman of the Board
Vice−Chairman of the Board and Chief Executive Officer
Director
Director
Director
Director
Director
Director
Martin E. Hanaka. Mr. Hanaka serves as chairman of the board and has served in such position since August 2003, the time of the merger of The Sports
Authority and Gart Sports Company. Mr. Hanaka joined the former The Sports Authority in February 1998 as its vice chairman and served as its chief executive
officer from September 1998 to August 2003. He served as The Sports Authority's chairman since November 1999. From 1994 until October 1997, Mr. Hanaka
served as president and chief operating officer and a director of Staples, Inc., an office supply retailer. Mr. Hanaka's extensive retail career includes serving as
executive vice president of marketing and as president and chief operating officer of Lechmere, Inc. from 1992 to 1994, and serving in various capacities during
his 20−year career at Sears Roebuck & Co., most recently as Vice President in charge of Sears Brand Central. Mr. Hanaka also serves as a director of
Trans−World Entertainment, a movie and video retail chain operating under several brands, and the Sporting Goods Manufacturers Association, as a national
trustee of the Boys & Girls Clubs of America, and as a member of the Cornell University Entrepreneurship and Personal Enterprise Council and the Cornell
University Council.
John Douglas Morton. Mr. Morton is vice chairman of the board and chief executive officer of the Company and has held such positions since
August 2003. Prior to that time, from May 1995, Mr. Morton was our president, chairman of the board and chief executive officer. Mr. Morton joined us in 1986
as division manager of our Utah region. In 1988, he was promoted to division vice president of the Utah region, and, in 1990, he was promoted to vice president
of operations. In 1994, Mr. Morton was promoted to executive vice president with responsibility for stores, distribution and marketing. Prior to joining us, he
served in various positions with Wolfe's Sporting Goods, a seven−store sporting goods retailer, from 1972 to 1980, including merchandise manager—ski,
camping, golf and tennis, store manager, and operations manager. From 1980 until joining us, he served as a district manager for Malone and Hyde's sporting
goods division, a 40−store retail sporting goods retailer. Mr. Morton has worked for over 30 years in the sporting goods retail industry. Mr. Morton also serves
on the board of Ultimate Electronics, Inc., an electronics retail chain.
Gordon D. Barker. Mr. Barker became one of our directors in April 1998. Mr. Barker was the chief executive officer and a director of Thrifty Payless
Holdings, Inc., a subsidiary of RiteAid Corporation, from 1996 until its acquisition by RiteAid Corporation in 1997. He previously served in various capacities at
Thrifty Payless since 1968, including as chief operating officer from 1994 to 1996 and as president from 1994 to 1997. Mr. Barker served as chief executive
officer of Snyder Drug Stores/Drug Emporium, a privately held mid−western chain of approximately 240 corporate and affiliate
38
drug stores, from October 1999 until September 2003, at which time Snyder Drug Stores filed for bankruptcy protection under Chapter 11 of the United States
Bankruptcy Code. Mr. Barker is also a director of United Natural Foods, a distributor of natural food products.
Mary Elizabeth Burton. Ms. Burton became one of our directors in August 2003 at the time of the merger of The Sports Authority and Gart Sports
Company. Ms. Burton was a director of the former Sports Authority since 1999. Since July 1992, Ms. Burton has also served as chairman and chief executive
officer of BB Capital, Inc., a management services and advisory company, which she owns. From June 1998 until April 1999, Ms. Burton serves as the chief
executive officer of The Cosmetic Center, Inc., a specialty retailer of cosmetics and fragrances. From July 1991 to June 1992, Ms. Burton served as the chief
executive officer of PIP Printing, Inc., a leading business printing franchise chain. In addition, Ms. Burton was the chief executive officer of Supercuts, Inc., from
September 1987 until May 1991, as well as having served in various other senior executive level capabilities in the retailing industry. Ms. Burton currently also
serves as a director of Staples, Inc., Zale Corporation, Aeropostale, Inc. and Rent−A−Center, Inc.
Cynthia R. Cohen. Ms. Cohen became one of our directors in August 2003 at the time of the merger of The Sports Authority and Gart Sports Company.
Ms. Cohen was a director of the former Sports Authority since 1998. Ms. Cohen is the founder of Strategic Mindshare, a strategic management consulting firm
serving retailers, consumer product manufacturers and e−businesses. She has served as President of Strategic Mindshare since the company's organization in
1990. Prior to that, Ms. Cohen was a partner in management consulting with Deloitte & Touche LLP. Ms. Cohen is a director of Office Depot, Inc., an office
supply retailer, and Hot Topic, a teen apparel retailer. In addition, Ms. Cohen serves on the executive advisory board for the Center for Retailing Education and
Research at the University of Florida and is Vice Chair of the Board of the Center for Women's Business Research.
Peter R. Formanek. Mr. Formanek became one of our directors in April 1998. Mr. Formanek was co−founder of AutoZone Inc., a retailer of aftermarket
automotive parts, and served as president and chief operating officer of AutoZone, Inc. from 1986 until his retirement in 1994. He currently is a director of The
Perrigo Company, a manufacturer of store brand over−the−counter drug products and vitamins. While Mr. Fornanek currently also serves as a director of Borders
Group, Inc., the second largest operator of book superstores and the largest operator of mall−based bookstores in the United States, his term expires on May 20,
2004 and he is not standing for re−election to the Borders board.
Kevin M. McGovern. Mr. McGovern became one of our directors in August 2003 at the time of the merger of The Sports Authority and Gart Sports
Company. Mr. McGovern was a director of the former Sports Authority since 2000. Mr. McGovern is currently the chairman and chief executive officer of
McGovern Capital LLC, which structures, funds and implements capital formation, joint ventures and business alliances. He is the principal in the law firm of
McGovern & Associates. Mr. McGovern also serves as the chairman of Greenwhich Alliances, which specializes in the formation and negotiation of strategic
alliances. He is also a Trustee of Cornell University.
Jonathan D. Sokoloff. Mr. Sokoloff became one of our directors in April 1993. Mr. Sokoloff has been a partner of Leonard Green & Associates, L.P., a
merchant banking firm and the general partner of Green Equity Investors, L.P., the holder of approximately 8% of our outstanding common stock, since 1990,
and was employed at Drexel Burnham Lambert Incorporated from 1985 through 1990, most recently as a managing director. He has been an executive officer
and equity owner of Leonard Green & Partners, L.P., a merchant banking firm affiliated with Leonard Green & Associates, L.P., since its formation in 1994, and
is also a director of Rite Aid Corporation, Diamond Triumph Auto Glass, Inc., Dollar Financial Group, Inc., and several private companies.
39
Executive Officers
The following table sets forth the name and age of each of our executive officers and all positions and offices held with us:
Name
Age
John Douglas Morton
Elliott Kerbis
Thomas T. Hendrickson
53
51
49
Greg A. Waters
Nesa E. Hassanein
43
51
John Douglas Morton.
Position
Vice−Chairman of the Board and Chief Executive Officer
President and Chief Merchandising Officer
Vice Chairman, Chief Financial Officer, Chief Administrative Officer
and Treasurer
Executive Vice President and Chief Operating Officer
Executive Vice President, General Counsel and Secretary
See "Directors" for information concerning Mr. Morton.
Elliott Kerbis. Mr. Kerbis is president and chief merchandising officer for The Sports Authority. He joined TSA in October 2000 as executive vice
president−merchandising and sales promotion and was promoted to president and chief merchandising officer in January 2002. He previously served as Senior
Vice President of Merchandise at Filene's, a department store owned by The May Department Store Company from May 1999 to August 2000, and as Executive
Vice President of Merchandise for Hardlines of The Caldor Corporation, a discount retailer, from 1987 to 1999. Prior to joining Caldor Corporation, Mr. Kerbis
served in various capacities with R.H. Macy & Co. from 1977 to 1987.
Thomas T. Hendrickson. Mr. Hendrickson became our non−director vice chairman and chief administrative officer in August 2003 in addition to being
our chief financial officer and treasurer which he became in January 1998. Mr. Hendrickson previously served as the executive vice president and chief financial
officer of Sportmart, which position he held since September 1996. He joined Sportmart in January 1993 as vice president–financial operations. In March 1993,
he was named chief financial officer of Sportmart, and, in March 1995, he was named senior vice president and chief financial officer of Sportmart. From 1987
until joining Sportmart, Mr. Hendrickson was employed as the vice president and controller of Millers Outpost Stores. Mr. Hendrickson is a certified public
accountant and has over 20 years of business experience.
Greg A. Waters. Mr. Waters became our chief operating officer in August 2003 in addition to being our executive vice president–store operations which
he became in June 2001. He joined us in April 1998 as senior vice president–store operations. Prior to joining us, Mr. Waters served as the western regional vice
president for The Sports Authority since 1994 and as a district manager for The Sports Authority since 1991.
Nesa E. Hassanein. Ms. Hassanein became our executive vice president in addition to being our general counsel and secretary which she became in
June 2000. From June 2000 to August 2003, she was senior vice president, general counsel and secretary. Ms. Hassanein joined us in July 1998 as vice president
and corporate counsel. Prior to joining us, Ms. Hassanein served as senior vice president and general counsel for Atlas Air Inc. during 1997. Ms. Hassanein
previously served as a partner with Morrison & Foerster, LLP from 1995 to 1997, as a shareholder with Brownstein Hyatt Farber & Strickland, PC from 1992 to
1995, and as an associate with Skadden, Arps, Slate, Meagher & Flom from 1982 to 1991.
The remaining information required by this Item 10 is incorporated herein by reference, when filed, to our Proxy Statement for our 2004 Annual Meeting of
Stockholders expected to be filed no later than May 3, 2004.
40
ITEM 11. Executive Compensation
Information required to be set forth in Item 11 has been omitted and will be incorporated herein by reference, when filed, to our Proxy Statement for our
2004 Annual Meeting of Stockholders expected to be filed no later than May 3, 2004.
ITEM 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
Information required to be set forth in Item 12 has been omitted and will be incorporated herein by reference, when filed, to our Proxy Statement for our
2004 Annual Meeting of Stockholders expected to be filed no later than May 3, 2004.
ITEM 13. Certain Relationships and Related Transactions
Information required to be set forth in Item 13 has been omitted and will be incorporated herein by reference, when filed, to our Proxy Statement for our
2004 Annual Meeting of Stockholders expected to be filed no later than May 3, 2004.
ITEM 14. Principal Accountant Fees and Services
Information required to be set forth in Item 14 has been omitted and will be incorporated herein by reference, when filed, to our Proxy Statement for our
2004 Annual Meeting of Stockholders expected to be filed no later than May 3, 2004.
41
PART IV
ITEM 15. Exhibits, Financial Statement Schedules, And Reports on Form 8−K
(a) 1. Financial Statements:
See Index to Consolidated Financial Statements on page F−1 hereof.
2. Financial Statement Schedules:
All schedules are omitted because of the absence of conditions under which they are required or because the required information is presented in the
consolidated financial statements or notes thereto.
3. Exhibits:
2.1
Agreement and Plan of Merger, dated as of February 19, 2003, by and among the Registrant, Gold Acquisition Corp. and The Sports
Authority, Inc. (n/k/a TSA Stores, Inc.) (incorporated by reference to Exhibit 2.1 to the Registrant's Form 8−K (File No. 000−23515) filed
with the Commission on February 20, 2003).
3.1
Amended and Restated Certificate of Incorporation of Registrant (incorporated by reference to Exhibit 3.1 to the Registrant's Form 8−K
(File No. 001−31746) filed with the Commission on August 13, 2003).
3.2
Amended and Restated Bylaws of Registrant (incorporated by reference to Exhibit 3.2 to the Registrant's Form 8−K (File No. 001−31746)
filed with the Commission on August 13, 2003).
4.1
Registrant's Form of Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the Registrant's Form 8−K (File
No. 001−31746) filed with the Commission on August 13, 2003).
10.1
Financing Agreement, dated August 4, 2003, by and among The CIT Group/Business Credit, Inc. (as Agent and a Lender), Wells Fargo
Foothill, LLC (as Document Agent), Bank of America, N.A. (as a Co−Syndication Agent), Fleet Retail Finance Inc. (as Co−Syndication
Agent), the Lenders signatory thereto, Registrant and The Subsidiaries of Registrant thereto (incorporated by reference to Exhibit 10.1 to the
Registrant's Form 8−K (File No. 001−31746) filed with the Commission on August 13, 2003).
10.2
Joinder Agreement, dated as of December 18, 2003, by and among The CIT Group/Business Credit, Inc. (as Agent and a Lender), Wells
Fargo Foothill, LLC (as Document Agent), Bank of America, N.A. (as a Co−Syndication Agent), Fleet Retail Finance Inc. (as
Co−Syndication Agent), the Lenders signatory thereto, Registrant and The Subsidiaries of Registrant thereto.*
10.3
Registration Rights Agreement, dated as of January 9, 1998, by and between the Registrant and Green Equity Investors, L.P. (incorporated
by reference to Exhibit 99.2 to the Registrant's Current Report on Form 8−K (File No. 000−23515) file with the Commission on January 13,
1998).
10.4
Registrant's 1994 Management Equity Plan (incorporated by reference to Exhibit 10.3 to the Registrant's Registration Statement on
Form S−4 (File No. 333−42355) filed with the commission on December 16, 1997).
10.4.1
Amendment to Registrant's 1994 Management Equity Plan (incorporated by reference to Exhibit A to the Registrant's Registration Statement
on Form S−4 (File No. 000−23515) filed with the Commission on May 14, 1999).
42
10.5
10.5.1
10.6
Registrant's Employee Benefit Plan, dated as of December 9, 1996 (incorporated by reference to Exhibit 10.4 to the Registrant's Registration
Statement of Form S−4 (File No. 333−42355) filed with the Commission on December 16, 1997).
The Sports Authority 401(k) Retirement Plan, January 1, 2004 Restatement.*
Management Services Agreement, dated January 9, 1998, by and between the Registrant, Gart Bros. Sporting Goods Company,
Sportmart, Inc. and Leonard Green & Associates, L.P. (incorporated by reference to Exhibit 10.10 to the Registrant's Form 10−K (File
No. 000−23515) filed with the Commission on April 4, 2003).
10.6.1
First Amendment to Management Services Agreement, dated as of June 15, 2001, by and between the Registrant, Gart Bros. Sporting Goods
Company, Sportmart, Inc. and Leonard Green & Associates, L.P., dated as of January 9, 1998 (incorporated by reference to Exhibit 10.10.1
to the Registrant's Form 10−K (File No. 000−23515) filed with the Commission on April 4, 2003).
10.7
Tax Sharing Agreement, dated as of September 25, 1992, by and among TCH Corporation and its then subsidiaries, including the Registrant
(incorporated by reference to Exhibit 10.11 to the Registrant's Registration Statement on Form S−4 (File No. 333−42355) filed with the
Commission on December 16, 1997).
10.8
Sportmart, Inc. 1996 Restricted Stock Plan, as amended and restated, dated as of July 1, 1996 (incorporated by reference to Exhibit 10.40 to
Sportmart, Inc.'s Quarterly Report on Form 10−Q for the quarter ended July 28, 1996 (File No. 000−20672) filed with the Commission on
August 11, 1996).
10.9
Sportmart, Inc. Stock Option Plan, as amended (incorporated by reference to Exhibit 10.1 to Sportmart, Inc.'s Registration Statement on
Form S−1 (File No. 33−50726) filed with the Commission on September 11, 1996).
10.10
Letter Agreement dated July 2, 2002 between the Registrant and Larry Hochberg (incorporated by reference to Exhibit 10.17 to the
Registrant's Form 10−K (File No. 000−23515) filed with the Commission on April 4, 2003).
10.11
Deferred Compensation Plan of Gart Bros. Sporting Goods Company, dated as of January 1, 1999 (incorporated by reference to
Exhibit 10.37 to the Registrant's Annual Report on Form 10−K for the fiscal year ended January 29, 2000 (File No. 000−23515) filed with
the Commission on April 20, 2000).
10.12
Consulting and Non−Competition Agreement between Alvin Lubetkin and Gart Bros. Sporting Goods Company, dated as of June 7, 2001
(incorporated by reference to Exhibit 10.35 to the Registrant's Registration Statement on Form S−4 (File No. 333−59090) filed with the
Commission on April 17, 2001).
10.13
Consulting and Non−Competition Agreement between Marilyn Oshman and Gart Bros. Sporting Goods Company, dated as of June 7, 2001
(incorporated by reference to Exhibit 10.36 to the Registrant's Registration Statement on Form S−4 (File No. 333−59090) filed with the
Commission on April 17, 2001).
10.14
Amended and Restated Employment Agreement, dated as of August 4, 2003, between the Registrant and John Douglas Morton.*
10.15
Employment Agreement, dated as of August 4, 2003, between the Registrant and Thomas T. Hendrickson.*
43
10.16
Employment Agreement, dated as of August 4, 2003, between the Registrant and Elliot J. Kerbis.*
10.17
Employment Agreement, dated as of August 4, 2003, between the Registrant and Gregory A. Waters.*
10.18
Employment Agreement, dated as of August 4, 2003, between the Registrant and Nesa E. Hassanein.*
10.19
Agreement, effective as of December 30, 2003 between the Registrant and Martin E. Hanaka.*
10.20
Consulting Agreement, effective as of December 30, 2003 between the Registrant and Martin E. Hanaka.*
10.21
Form of Indemnification Agreement between the Registrant and its directors.*
10.22
Form of Indemnification Agreement between the Registrant and certain of its executive officers.*
10.23
2 Half 2003 Sports Authority Company Bonus Plan.*
10.24
Integration Bonus Plan adopted August 5, 2003.*
10.25
2003 Executive Incentive Plan of the former Sports Authority, Inc., effective as of February 2, 2003.*
10.26
Registrant's 2003 Performance Bonus Plan (attached as Annex G to the joint proxy statement/prospectus contained in Registrant's Form S−4
(File No. 333−104321) as amended or supplemented, filed with the Commission on June 20, 2003).
10.27
2000 Stock Option and Stock Award Plan, as amended (incorporated by reference to Exhibit A to TSA Stores, Inc.'s (formerly known as
The Sports Authority, Inc.) Proxy Statement (File No. 001−13426) filed with the Commission on April 26, 2002).
10.28
Director Stock Plan (incorporated by reference to Exhibit 10.1 to TSA Stores, Inc.'s (formerly known as The Sports Authority, Inc.)
Form 10−Q (File No. 001−13426) filed with the Commission on December 12, 2000).
10.29
Salaried Employee's Stock Option and Stock Award Plan (incorporated by reference to TSA Stores, Inc.'s (formerly known as The Sports
Authority, Inc.) Form 10−K (File No. 001−13426) filed with the Commission on April 4, 2003).
10.30
The Sports Authority, Inc. 2003 Long Term Incentive Compensation Plan (incorporated by reference to the Registrant's Form S−8/S−3 (File
No. 333−111751) filed with the Commission on January 7, 2004).
10.31
Amended and Restated Joint Venture Agreement, dated as of March 12,1999 between TSA Stores, Inc. and AEON Co. Ltd. (incorporated
by reference to Exhibit 10.19 to TSA Stores, Inc.'s (formerly known as The Sports Authority, Inc.) Form 10−K (File No. 001−13426) filed
with the Commission on April 23, 1999).
10.32
Amended and Restated Services Agreement dated as of March 26, 1999 between TSA Stores, Inc. and Mega Sports Co., Ltd. (incorporated
by reference to Exhibit 10.21 to TSA Stores, Inc.'s (formerly known as The Sports Authority, Inc.) Form 10−K (File No. 001−13426) filed
with the Commission on April 23, 1999).
nd
44
10.33
10.33.1
Amended and Restated License Agreement dated as of March 26, 1999 between TSA Stores, Inc. (formerly known as The Sports
Authority, Inc.) and Mega Sports Co., Ltd. (incorporated by reference to Exhibit 10.20 to TSA Stores, Inc.'s Form 10−K (File
No. 001−13426) filed with the Commission on April 23, 1999).
First Amendment to Amended and Restated License Agreement, dated April 2, 2004 between TSA Stores, Inc. (formerly known as The
Sports Authority, Inc.), The Sports Authority Michigan, Inc. and Mega Sports Co., Ltd.*
14.
The Sports Authority, Inc. Code of Business Conduct and Ethics.*
21.
List of Subsidiaries.*
23.1
Consent of Deloitte & Touche LLP.*
31.1
Certification pursuant to Rule 13A−14 or 15D−14 of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the
Sarbanes− Oxley Act of 2002, signed by the Chief Executive Officer.*
31.2
Certification pursuant to Rule 13A−14 or 15D−14 of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the
Sarbanes− Oxley Act of 2002, signed by the Chief Financial Officer.*
32.1
Statement required by 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of Sarbanes−Oxley Act of 2002, signed by the Chief
Executive Officer and the Chief Financial Officer.*
*
Filed as part of this Annual Report on Form 10−K.
(b) Reports on Form 8−K
We filed a Current Report on Form 8−K with the Commission dated December 2, 2003, to report under Item 5 that we issued a news release to report our
earnings for the fiscal quarter ended November 1, 2003.
We filed a Current Report on Form 8−K with the Commission dated March 17, 2004, to report under Item 5 that we issued a news release to report our
earnings for the fiscal year ended January 31, 2004.
45
THE SPORTS AUTHORITY, INC.
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Independent Auditors' Report
Consolidated Balance Sheets as of January 31, 2004 and February 1, 2003
Consolidated Statements of Income for the periods ended January 31, 2004, February 1, 2003 and February 2, 2002
Consolidated Statements of Stockholders' Equity and Comprehensive Income for the periods ended January 31, 2004, February 1, 2003 and February 2, 2002
Consolidated Statements of Cash Flows for the periods ended January 31, 2004, February 1, 2003 and February 2, 2002
Notes to Consolidated Financial Statements
F−1
INDEPENDENT AUDITORS' REPORT
To the Board of Directors and Stockholders of
The Sports Authority, Inc.
We have audited the accompanying consolidated balance sheets of The Sports Authority, Inc. and subsidiaries as of January 31, 2004 and February 1, 2003,
and the related consolidated statements of income, stockholders' equity and comprehensive income, and cash flows for each of the fiscal years ended January 31,
2004, February 1, 2003 and February 2, 2002. These financial statements are the responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our audits.
We conducted our audits in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan
and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable
basis for our opinion.
In our opinion, such consolidated financial statements present fairly, in all material respects, the financial position of The Sports Authority, Inc. and
subsidiaries as of January 31, 2004 and February 1, 2003, and the results of their operations and their cash flows for each of the fiscal years ended January 31,
2004, February 1, 2003 and February 2, 2002 in conformity with accounting principles generally accepted in the United States of America.
/s/ DELOITTE & TOUCHE LLP
Denver, Colorado
April 13, 2004
F−2
THE SPORTS AUTHORITY, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(Dollars in Thousands, Except Share and Per Share Amounts)
January 31, 2004
February 1, 2003
ASSETS
Current assets:
Cash and cash equivalents
Accounts receivable, net
Inventories
Prepaid expenses and other assets
Deferred income taxes
$
Total current assets
Property and equipment, net
Favorable leases, net of accumulated amortization of $6,173 and $3,015,
respectively
Deferred income taxes
Goodwill, net of accumulated amortization of $734
Other assets, net of accumulated amortization of $9,189 and $5,993, respectively
Total assets
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable
Current portion of capital lease obligations
Accrued expenses
28,009
52,717
687,215
23,616
89,066
$
10,156
13,245
333,538
10,507
9,046
880,623
186,573
376,492
87,960
22,428
41,734
132,734
75,464
11,025
9,161
44,576
11,026
$
1,339,556
$
540,240
$
326,198
302
175,214
$
142,025
665
62,003
Total current liabilities
Long−term debt
Capital lease obligations, less current portion
Other long−term liabilities
Total liabilities
501,714
317,321
837
80,418
204,693
121,147
1,139
14,681
900,290
341,660
—
—
Commitments and contingencies
Stockholders' equity:
Preferred stock, $.01 par value. 10,000,000 shares authorized; none issued
Common stock, $.01 par value. 75,000,000 shares authorized; 26,781,727 and
13,440,987 shares issued and 25,208,973 and 11,868,233 shares outstanding,
respectively
Additional paid−in capital
Unamortized restricted stock compensation
Accumulated other comprehensive loss
Retained earnings
Treasury stock, 1,572,754 common shares, at cost
Total stockholders' equity
Total liabilities and stockholders' equity
$
268
394,218
(15,274)
(759)
84,289
(23,476)
134
156,958
(2,024)
(934)
67,922
(23,476)
439,266
198,580
1,339,556
$
See accompanying notes to consolidated financial statements.
F−3
540,240
THE SPORTS AUTHORITY, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
(Dollars in Thousands, Except Share and Per Share Amounts)
52 weeks ended
January 31, 2004
Net sales
Cost of goods sold, buying, distribution and occupancy
$
52 weeks ended
February 1, 2003
1,760,450
1,274,721
$
52 weeks ended
February 2, 2002
1,051,244
776,340
$
935,717
696,296
Gross profit
Operating expenses
Merger integration costs
485,729
409,023
43,807
274,904
228,982
—
239,421
204,429
12,490
Operating income
32,899
45,922
22,502
(12,327)
3,514
(9,166)
1,043
(10,981)
2,030
(8,813)
(8,123)
(8,951)
24,086
(7,719)
37,799
(14,632)
13,551
(5,285)
Nonoperating income (expense):
Interest expense
Other income, net
Income before income taxes
Income tax expense
Net income
$
16,367
$
23,167
$
8,266
Earnings per share:
Basic
$
0.89
$
1.97
$
0.86
$
0.84
$
1.86
$
0.80
Diluted
Basic weighted average shares outstanding
18,309,174
11,766,983
9,598,553
Diluted weighted average shares outstanding
19,479,695
12,427,086
10,315,785
See accompanying notes to consolidated financial statements.
F−4
THE SPORTS AUTHORITY, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY AND COMPREHENSIVE INCOME
(Dollars in Thousands, Except Share Amounts)
Common stock
Shares
Balances at February 3,
2001
Net income
Unrealized gain on equity
securities, net of
reclassification adjustment
for realized loss
Unrealized loss on interest
rate swap
Treasury stock
Dollars
7,357,064 $
—
Additional
paid−in
capital
77 $
—
Unamortized
restricted
stock
compensation
57,014 $
—
(2,055) $
—
Accumulated
other
comprehensive
loss
Retained
earnings
(226) $
—
36,489
8,266 $
Balances at February 2,
2002
Net income
Unrealized loss on equity
securities, net of
reclassification adjustment
for realized loss
Unrealized loss on interest
rate swap
Balances at February 1,
2003
Net income
Unrealized gain on equity
securities, net of
reclassification adjustment
for realized loss
Unrealized gain on interest
rate swaps
Comprehensive income
Merger of The Sports
Authority
Exercise of stock options,
including tax benefit of
$7,440
Restricted stock vesting and
repurchase
Issuance of restricted stock
Equity award issuance
Cancellation of restricted
stock
Amortization of restricted
stock
Balances at January 31,
2004
382,139 $
—
Dollars
(2,413) $
—
Total
stockholders'
equity
88,886
8,266
—
—
—
295
—
295
—
—
295
—
—
—
—
(517)
—
(517)
—
—
(517)
$
(229,200)
3,350,532
—
34
—
37,777
245,386
5,204
—
2
—
—
3,175
68
1,462
—
—
(141)
—
—
10,728,986 $
—
113 $
—
—
—
8,044
—
—
—
—
229,200
16
—
—
—
—
—
—
—
—
—
—
—
—
3,177
68
—
141
—
—
—
—
—
—
633
—
—
—
—
633
99,355 $
—
(2,743) $
—
(448) $
—
44,755
23,167 $
—
—
(1,462)
23,167
611,355 $
—
(3,110)
—
(5,523) $
—
(3,110)
37,811
135,509
23,167
—
—
—
—
(100)
—
(100)
—
—
(100)
—
—
—
—
(386)
—
(386)
—
—
(386)
Comprehensive income
Purchase of treasury stock
Proceeds from secondary
offering
Exercise of stock options,
including tax benefit of
$2,775
Stock issued to Directors
Restricted stock vesting and
repurchase
Issuance of restricted stock
Cancellation of restricted
stock
Amortization of restricted
stock
8,266
Shares
—
Comprehensive income
Purchase of treasury stock
Acquisition of Oshman's
Exercise of stock options,
including tax benefit of
$1,070
Stock issued to Directors
Issuance of restricted stock
Cancellation of restricted
stock
Amortization of restricted
stock
Comprehensive
income
$
(961,399)
22,681
—
—
—
—
—
961,399
1,750,000
18
52,072
—
—
—
—
—
52,090
334,260
784
3
—
5,495
25
—
—
—
—
—
—
—
—
—
—
5,498
25
15,602
—
—
—
(52)
153
—
(153)
—
—
—
—
—
—
—
—
(52)
—
—
—
(90)
90
—
—
—
—
—
—
—
—
782
—
—
—
—
782
(2,024) $
—
(934) $
—
67,922
16,367 $
11,868,233 $
—
134 $
—
156,958 $
—
16,367
1,572,754 $
—
(17,953)
(23,476) $
—
(17,953)
198,580
16,367
—
—
—
—
31
—
31
—
—
31
—
—
—
—
144
—
144
—
—
144
16,542
—
—
201,184
—
12,404,693
$
124
201,060
892,460
9
17,958
17,292
—
26,295
—
—
1
1,847
15,431
1,000
—
—
(36)
—
—
—
25,208,973 $
268 $
394,218 $
—
—
—
—
—
—
—
—
—
17,967
—
—
—
—
—
—
—
—
—
—
—
—
1,875
—
1,001
36
—
—
—
—
—
2,117
—
—
—
—
2,117
(15,274) $
(759) $
28
(15,431)
—
84,289
1,572,754 $
(23,476) $
439,266
See accompanying notes to consolidated financial statements.
F−5
THE SPORTS AUTHORITY, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Dollars in Thousands)
52 weeks ended
January 31, 2004
Cash flows from operating activities:
Net income
Adjustments to reconcile net income to net cash provided by
operating activities:
Depreciation and amortization
Amortization of loan origination costs
Deferred income taxes
Loss on disposition of assets
Gain on sale of securities
Increase (decrease) in other long term liabilitites
Stock−based compensation, directors
Changes in operating assets and liabilities, excluding
effects of merger and acquistions:
Accounts receivables, net
Inventories
Prepaid expenses
Other assets
Accounts payable
Accrued expenses and other current liabilities
$
52 weeks ended
February 1, 2003
16,367
Net cash provided by operating activities
Cash flows from investing activities:
Sale of marketable securities
Purchases of property and equipment
Proceeds from sale of property and equipment
Receipts on notes receivable
Direct merger costs with The Sports Authority, Inc., net of
cash acquired
Acquisition of Oshman's, net of cash acquired
$
52 weeks ended
February 2, 2002
23,167
$
8,266
37,290
1,472
10,222
581
(101)
(1,451)
—
22,716
1,110
14,632
297
19,994
752
5,285
238
2,849
25
(3,108)
68
(12,974)
(46,065)
1,420
1,643
53,339
(15,822)
(1,081)
(6,921)
(904)
(2,152)
(25,155)
(7,776)
(4,992)
(28,392)
(2,987)
(821)
22,500
(4,724)
45,921
20,807
12,079
197
(67,584)
5,119
169
—
(25,876)
—
49
826
(23,459)
7,834
252
(42,828)
—
—
—
—
(49,867)
Net cash used in investing activities
(104,927)
(25,827)
(64,414)
Cash flows from financing activities:
Proceeds from long−term debt
Principal payments on long−term debt
Principal payments on capital lease obligations
Purchase of treasury stock
Proceeds from stock offering, net of offering cost
Proceeds from the sale of common stock under option plans
Payment of financing fees
772,813
(699,624)
(782)
—
—
10,527
(6,075)
349,280
(381,849)
(651)
(17,953)
52,090
2,723
—
345,224
(285,610)
(532)
(3,110)
—
2,107
(2,315)
Net cash provided by financing activities
Increase (decrease) in cash and cash equivalents
Cash and cash equivalents at beginning of period
76,859
3,640
55,764
17,853
10,156
(1,380)
11,536
3,429
8,107
Cash and cash equivalents at end of period
$
28,009
$
10,156
$
11,536
Supplemental disclosure of cash flow information:
Cash paid during the period for interest
$
8,466
$
8,113
$
9,955
$
1,246
$
Cash received (paid) during the period for income taxes
See accompanying notes to consolidated financial statements.
F−6
(1,585) $
(317)
THE SPORTS AUTHORITY, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(1) Company
On August 4, 2003, a wholly−owned subsidiary of Gart Sports Company completed a merger with The Sports Authority, Inc. In connection with the merger,
Gart Sports Company ("Gart") was renamed The Sports Authority, Inc. The references made to the entities herein refer to The Sports Authority, Inc. (formerly
Gart Sports Company, which is also referred to as "Sports Authority" or "Company"). "TSA" refers to TSA Stores, Inc., (formerly known as The Sports
Authority, Inc.). The statement of income for the year ended January 1, 2004 reflects the results of the combined company from the merger date. Prior year
results, as well as results for the first 26 weeks of the year ended January 31, 2004, include the former Gart Sports Company on a stand−alone basis. In the
merger, the TSA shareholders received 0.37 shares of Sports Authority common stock for each share of TSA stock they owned. With the addition of the 205 TSA
stores, the combined company operated 384 retail sporting goods stores in 45 states as of January 31, 2004.
Under license and e−commerce agreements with GSI Commerce Inc. ("GSI"), GSI operates sporting goods retail websites at www.thesportsauthority.com,
www.gartsports.com, www.sportmart.com, and www.oshmans.com. Under these agreements, GSI owns certain content and technology related to the website,
purchases and owns the merchandise sold on the websites, and hosts, maintains, fulfills orders and furnishes all other "back−end" operations required to operate
the websites. GSI receives all revenue generated from the websites and pays us a royalty based on a certain percentage of sales from these sites.
Mega Sports Co., Ltd. ("Mega Sports"), a joint venture between the Company and AEON Co., Ltd. ("AEON"), operates The Sports Authority stores in
Japan pursuant to a license agreement with the Company. Under the agreement, Mega Sports pays a royalty based on its gross sales, in exchange for use of
trademarks and other intangible property owned by the Company and for merchandising assistance provided by the Company. In April 2004, the license
agreement was amended to extend the term of the agreement from 2005 to 2014 and to revise the royalty payable by Mega Sports, among other things. TSA
Stores has a 19.9% ownership interest in Mega Sports. AEON is a major Japanese retailer that owns 4.5% of the Company's outstanding stock.
(2) Summary of Significant Accounting Policies
(a) Consolidation
The consolidated financial statements present the financial position, results of operations and cash flows of The Sports Authority, Inc. and its subsidiaries.
All significant intercompany balances and transactions have been eliminated in consolidation.
(b) Fiscal Year
The Company's fiscal reporting year ends on the Saturday closest to the end of January. The fiscal years referred to in these consolidated financial
statements are the 52 weeks ended January 31, 2004 ("fiscal 2003"), the 52 weeks ended February 1, 2003 ("fiscal 2002"), and the 52 weeks ended February 2,
2002 ("fiscal 2001").
(c) Cash and Cash Equivalents
The Company considers cash on hand in stores, bank deposits and all highly liquid investments with original maturities of 3 months or less to be cash and
cash equivalents.
F−7
(d) Accounts Receivable, Net
Receivables include trade and non−trade receivables. Trade receivables were $1.7 million at January 31, 2004 and $1.4 million at February 1, 2003.
Non−trade receivables were $51.0 million at January 31, 2004 and $11.8 million at February 1, 2003 and consist primarily of amounts due from vendors under
various incentive and promotional programs. Non−trade receivables at January 31, 2004 also included $10.9 million related to the sale−leaseback of a Sports
Authority location.
(e) Inventories
The Company accounts for inventories at the lower of cost or market. Cost is determined using the average cost of items purchased and applying the dollar
value last−in, first−out ("LIFO") inventory method. The Company's dollar value LIFO pools are computed using the Inventory Price Index Computation ("IPIC")
method. LIFO cost of the Company's inventories is then compared to estimated market value. This assessment of estimated market value is based on the quality
and age of merchandise, the rate of sale of merchandise, the quantities on hand, and the Company's assessment of the market conditions. Estimates and
judgments are required in the determination of the market value of the Company's inventory and future events, like changes in customer merchandise preferences
or unseasonable weather patterns, could impact the market value of the Company's inventory. At January 31, 2004 and February 1, 2003, the replacement cost of
inventory, calculated by valuing inventories at the first−in, first−out method, approximated its carrying value.
Inventory shrinkage is accrued as a percentage of merchandise sales based on historical inventory shrinkage trends. The Company performs physical
inventories at stores and distribution centers throughout the year. The reserve for inventory shrinkage represents an estimate for inventory shrinkage for each
location since the last physical inventory date through the reporting date. These estimates are impacted by internal and external factors and may vary from actual
results.
(f) Property and Equipment
Property and equipment are recorded at cost. Property under capital leases is stated at the present value of future minimum lease payments. Depreciation is
provided on the straight−line method over the estimated useful lives of the assets, which range from three to nine years for furniture, fixtures, equipment and
software. Property held under capital leases and leasehold improvements are amortized on the straight−line method over the shorter of the lease term or estimated
useful life of the asset. Maintenance and repairs, which do not extend the useful life of the respective assets, are charged to expense as incurred.
The Company capitalizes the costs of major purchased and internally developed software systems and certain costs associated with customizing those
systems. Related training costs and costs incurred post−implementation are expensed as incurred. The Company capitalized $894,000, $1,335,000 and $717,000
of internal payroll and related costs for fiscal years 2003, 2002 and 2001, respectively. Depreciation of purchased and internally developed software systems is
calculated using the straight−line method over the estimated useful lives of the software, which range from three to seven years.
(g) Accounting for Long−Lived Assets and Long−Lived Assets to Be Disposed Of
Pursuant to Statement of Financial Accounting Standards No. 144, "Accounting for the Impairment or Disposal of Long−Lived Assets" ("SFAS No. 144"),
the Company reviews long−lived tangible and intangible assets for impairment whenever events or changes in circumstances indicate that the carrying amount of
an asset may not be recoverable. Recoverability of assets to be held and used is measured by a comparison of the carrying amount of an asset to future net cash
flows expected to be generated by the asset. If such assets are determined to be impaired, an impairment charge is recorded as measured by the excess of the
carrying amount of the assets over their fair value. The Company did
F−8
not record a charge for asset impairment in fiscal 2003, 2002 or 2001. Assets to be disposed of are reported at the lower of the carrying amount or fair value less
costs to sell.
(h) Goodwill and Other Intangible Assets
In accordance with Statement of Financial Accounting Standards No. 142, "Accounting for Goodwill and Other Intangible Assets" ("SFAS No. 142"), the
Company ceased amortization of goodwill derived from purchase business combinations completed prior to or on June 30, 2001 at the beginning of fiscal 2002.
Prior to fiscal 2002, goodwill was amortized using the straight−line method over a period of 40 years. In lieu of amortization, SFAS No. 142 requires that
goodwill and intangible assets deemed to have indefinite lives be evaluated for impairment on an annual basis.
The Company performs annual impairment testing which considers the Company's fair value to determine whether an impairment charge related to the
carrying value of the Company's recorded goodwill and other intangible assets is necessary. As a result of this testing, the Company concluded that there was no
such impairment loss at January 31, 2004 or February 1, 2003. The Company will continue to assess whether goodwill and trademarks are impaired on an annual
basis. Additional impairment assessments may be performed on an interim basis if the Company encounters events or changes in circumstances, that would
indicate that, more likely than not, the book value of goodwill has been impaired. Finite−lived intangible assets will continue to be amortized over their useful
lives and periodically reviewed for impairment or if events or circumstances indicate impairment.
The adoption of SFAS No. 142 did not have a material impact on the Company's consolidated financial position, results of operations, or cash flows in
regard to the impairment provisions of the statement while the application of the non−amortization provisions of the statement have resulted in the cessation of
amortization of approximately $1.1 million per year.
Finite−lived intangible assets include favorable leases, loan origination costs and certain capitalizable costs incurred to obtain store locations. Additionally,
in conjunction with the merger, the Company recorded an intangible asset representing the estimated fair value of a license agreement between TSA and Mega
Sports Co., Ltd. ("Mega Sports"), a joint venture which operates The Sports Authority stores in Japan. Under the license agreement, Mega Sports pays royalties
based on a percentage of Mega Sports gross sales, in exchange for use of trademarks, technology, and know−how of the Company and merchandising assistance
by the Company. The fair value of the contract reflects estimated, discounted royalty income to be received under the license agreement. Loan origination costs
are amortized using the interest method over the term of the related debt. Favorable lease assets and other costs incurred to obtain store locations are amortized
over the related lease term, and the Mega Sports license agreement is amortized over the life of the contract. Non−amortized intangible assets include goodwill
and trademarks. Goodwill is related to previous acquisitions and the TSA merger. Trademarks primarily represent an estimate of the value of the TSA name. The
carrying amount of intangible assets, including goodwill, is as follows (in thousands):
Years Ended
January 31, 2004
Gross Carrying
Amount
Goodwill
Trademark
Favorable leases
License agreement
Loan origination fees
Lease acquisition costs
Total
February 1, 2003
Accumulated
Amortization
Gross Carrying
Amount
Accumulated
Amortization
$
133,468
40,604
28,601
11,957
10,478
4,253
$
(734) $
—
(6,173)
(575)
(3,925)
(951)
45,310
—
14,040
—
4,043
3,413
$
(734)
—
(3,015)
—
(2,453)
(682)
$
229,361
$
(12,358) $
66,806
$
(6,884)
F−9
The changes in the carrying amount of goodwill for the year ended January 31, 2004 are as follows:
Carrying Amount
Goodwill, net at February 1, 2003
Goodwill acquired during year
Oshman's purchase price adjustments
$
44,576
86,556
1,602
Goodwill, net at January 31, 2004
$
132,734
During the year ended January 31, 2004, amortization of intangible assets was $5.3 million. The estimated amortization of intangible assets for each of the
five fiscal years ending in fiscal 2008 is as follows (in thousands):
Amortization
Expense
Fiscal Year
2004
2005
2006
2007
2008
$
$
$
$
$
7,491
6,748
6,773
5,229
4,257
(i) Self Insured Reserves
The Company is self−insured for its workers' compensation, general liability and employee medical plans up to a self−insured retention amount. The
Company records a reserve for the estimated cost of both reported and incurred but not reported ("IBNR") claims. The estimate of its current claim obligation
requires significant judgment and is based on specific loss estimates for reported claims, and on loss triangulation estimates of future claims payments, including
IBNR's. Reserves are regularly evaluated for adequacy based on the most current available information, including historical claims experience and expected
future claims costs.
(j) Revenue Recognition
Revenue from merchandise sales is recognized when merchandise is sold, net of an allowance for estimated returns. Revenue from service sales is
recognized when the services are performed. Sales returns approximated 6% of net sales in fiscal year 2003, and approximated 4% of net sales in fiscal years
2002, and 2001. The Company's allowance for sales returns is reviewed for adequacy based on current returns experience. The Company records revenue from
sales made under its layaway program upon the final payment and delivery of the layaway merchandise to the customer. Any deposits received prior to final
delivery of the product are recorded as a current liability. The Company records royalties under license agreements with Mega Sports and GSI Commerce, Inc.
("GSI") as a component of net sales when earned. These royalties totaled less than 0.5% of Net Sales in each of the fiscal years 2003, 2002 and 2001.
(k) Vendor Allowances
The Company receives certain allowances from its vendors, which include rebates and cooperative advertising funds. These amounts are negotiated with
vendors typically on an annual basis and are, at times, dependent on projected purchase volumes and advertising plans. The amounts are subject to changes in
market conditions or marketing strategies of our vendors, and changes in our product purchases. We record an estimate of earned allowances based on the latest
information available with respect to purchase volumes, advertising plans and status of our negotiation with vendors. Cooperative advertising funds are recorded
as a reduction of advertising costs in the period in which the costs are
F−10
incurred. Volume allowances that are not a reimbursement of specific costs are recorded as a reduction of the cost of inventory.
(l) Pre−Opening Expenses
The Company expenses pre−opening costs in the period in which they are incurred. Pre−opening expenses include payroll, supplies and other costs incurred
prior to the store opening date, and typically approximate $125,000 per new store and totaled $1.6 million, $1.2 million and $0.8 million for fiscal 2003, fiscal
2002 and fiscal 2001, respectively.
(m) Advertising Costs
Advertising costs are expensed in the period in which the advertising occurs. The Company participates in various advertising and marketing cooperative
programs with its vendors, who, under these programs, reimburse the Company for certain costs incurred. A receivable for cooperative advertising to be
reimbursed is recorded as a decrease to expense as the reimbursements are earned. Gross advertising expense incurred prior to vendor allowances was
approximately $80.1 million, $46.0 million and $41.2 million in fiscal years 2003, 2002 and 2001, respectively. Cooperative advertising allowances recorded as a
reduction of advertising expense were $32.8 million, $28.2 million and $22.9 million in fiscal years 2003, 2002 and 2001, respectively, resulting in net
advertising costs, which are included in operating expenses, of $47.3 million, $17.8 million and $18.3 million in fiscal years 2003, 2002 and 2001, respectively.
(n) Merger Integration Costs
Merger integration costs are costs incurred in connection with the Company's merger and acquisitions. These costs include only non−recurring, incremental
costs arising as a direct result of the merger or acquisition, are included as a component of operating income in the accompanying statements of income and are
expensed as incurred. Merger integration costs totaled $43.8 million, $0.0 million and $12.5 million for fiscal years 2003, 2002 and 2001, respectively.
(o) Income Taxes
In connection with the TSA merger, the Company changed its tax year from the Saturday closest to the end of September to the Saturday closest to the end
of January, commensurate with its fiscal year end. Income taxes are accounted for under the asset and liability method. Deferred tax assets and liabilities are
recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their
respective tax bases and operating loss and tax credit carryforwards. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to
taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a
change in tax rates is recognized in operations in the period that includes the enactment date. Deferred tax assets are reviewed for recoverability based on
projections of future operating results, which dictate the Company's ability to realize the tax assets. A valuation allowance to reduce the carrying value of the
deferred tax assets is recorded when this amount exceeds the amount more likely than not to be realized. As of January 31, 2004, the Company had no valuation
allowance on its deferred tax assets.
(p) Earnings Per Share
Basic earnings per share ("EPS") is computed by dividing earnings available to common stockholders by the weighted−average number of common shares
outstanding for the period. Diluted EPS reflects the potential dilution of securities that could share in earnings. In loss periods, including common stock
equivalents would be anti−dilutive and, accordingly, no impact is provided for common stock equivalents. The computation of diluted EPS also excludes the
effect of anti−dilutive stock options outstanding in each of the respective periods aggregating 455,910 in fiscal 2003, 19,451 in fiscal 2002 and 61,827 in fiscal
2001.
F−11
(q) Stock Compensation Plans
At January 31, 2004, the Company has three stock−based employee compensation plans, which are described more fully in Note 17. The Company accounts
for the stock−based compensation granted to employees under the plans using the recognition and measurement principles of APB Opinion No. 25, Accounting
for Stock Issued to Employees, and related Interpretations. Historically, no stock−based employee compensation cost has been recorded in net income for the
Company's stock options, as options granted under the plan had an exercise price equal to the market value of the underlying common stock on the date of grant.
Compensation expense is recorded by the Company for its grants of unvested restricted stock or for grants of stock−based compensation to nonemployee
directors. The compensation expense is amortized on a straight−line basis over the vesting period of the stock and is based on the fair value of the stock on the
date of the grant. The following table illustrates the effect on net income and earnings per share if the Company had applied the fair value recognition provisions
of FASB Statement No. 123, Accounting for Stock−Based Compensation, to stock−based employee compensation (in thousands).
Fiscal Year
2003
2002
16,367
$
2001
Net income, as reported
Add: Stock−based compensation expense included in net income,
net of related tax effects
Deduct: Total stock−based employee compensation expense
determined under fair value based method for all awards, net of
related tax effects
$
23,167
Pro forma net income
$
13,666
$
22,060
$
7,278
Earnings per share:
Basic — as reported
$
0.89
$
1.97
$
0.86
Basic — pro forma
$
0.75
$
1.87
$
0.76
Diluted — as reported
$
0.84
$
1.86
$
0.80
Diluted — pro forma
$
0.70
$
1.78
$
0.71
2,304
$
8,266
482
(5,005)
410
(1,589)
(1,398)
The per share weighted−average fair value of stock options granted during fiscal 2003, 2002, and 2001 was $19.19, $15.59, and $10.26, respectively, on the
date of grant or exchange using the Black Scholes option−pricing model (which incorporates a present value calculation).
The following weighted−average assumptions were used for grants issued in fiscal 2003, 2002, and 2001:
Fiscal Year
Expected volatility
Risk free interest rates
Expected life of options
Expected dividend yield
(r) Fair Value of Financial Instruments
2003
2002
2001
63.2%
3.00%
6 years
0%
66.4%
3.50%
6 years
0%
69.4%
4.75%
6 years
0%
The Company has estimated the fair value of its financial instruments using the following methods and assumptions: the carrying amounts of cash and cash
equivalents, receivables and accounts payable approximate fair value because of their short−term nature, and the carrying amount of debt
F−12
approximates fair value because of the variable market rate of interest charged and use of interest rate swap agreements that qualify for hedge accounting.
(s) Derivative Instruments and Hedging
In June 1998, the Financial Accounting Standards Board (the "FASB") issued SFAS No. 133, "Accounting for Derivative Instruments and Hedging
Activities". The Statement became effective in the first quarter of fiscal year 2001. The statement requires that every derivative instrument be recorded on the
balance sheet as either an asset or liability, measured at its fair value, and requires that changes in the derivative's fair value be recognized currently in earnings,
unless specific hedge accounting criteria are met. The Company adopted this statement on February 4, 2001. The Company utilizes two interest rate swap
agreements to minimize the risks and costs associated with its financing activities (see Note 12). The Company has no other derivative instruments.
(t) Store Closing Reserves
Prior to December 31, 2002 and the adoption of SFAS No. 146, "Accounting for Costs associated with Exit or Disposal Activities," the Company recorded a
provision for store closing when the decision to close a store was made. In accordance with SFAS No. 146, for store closing activities initiated after
December 31, 2002, the Company records a liability at fair value for costs associated with exit or disposal activities when a liability is incurred rather than when
the decision to close a store is made. This changes the timing of recognition for certain exit costs, so that certain exit costs will be recognized over the period in
which the exit activities occur. The Company also records store exit reserves arising from its various mergers and acquisitions pursuant to SFAS No. 141,
"Business Combinations" and EITF Issue No. 95−3, "Recognition of Liabilities in Connection with a Purchase Business Combination" ("EITF 95−3"). Under
EITF 95−3, the costs of a plan to exit an activity of the acquired company are recognized as liabilities assumed in the business combination. As such, reserves are
recorded in purchase accounting for the net present value of projected costs to be incurred after the store closing date. The costs incurred in connection with store
closings primarily consist of future net lease obligations, utilities, property taxes, and employee costs directly related to the store closing.
(u) Acquisitions and Mergers Accounting
The Company's acquisitions and mergers are accounted for under the purchase method of accounting. Accordingly, the total costs of such transactions are
allocated to the tangible and intangible assets acquired and liabilities assumed based on their respective fair values. The determination of fair values involves the
use of estimates and assumptions, which are subject to adjustment in the future.
(v) Comprehensive Income
Accumulated other comprehensive income (loss) is comprised of unrealized holding gains (losses) on the Company's marketable securities and the fair value
of the Company's interest rate swap agreements.
(w) Enterprise−Wide Operating Information
The Company is the largest publicly traded full−line sporting goods retailer in the United States. Given the economic characteristics of the store formats, the
similar nature of the products sold, the type of customer and method of distribution, the operations of the Company are aggregated in one reportable segment as
defined by Statement of Financial Accounting Standards No. 131, "Disclosure About Segments of an Enterprise and Related Information."
(x) Use of Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make
estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the
F−13
financial statements and reported amounts of revenues and expenses during the reporting period. On an ongoing basis, management evaluates its estimates and
judgments, including those related to inventory valuation, accounts receivable, the recoverability of long−lived assets including intangible assets, store closing
reserves, income taxes, and the estimates used to apply the purchase method of accounting to the Company's mergers and acquisitions. Actual results could differ
from those estimates.
(y) New Accounting Pronouncements
In April 2003, the FASB issued Statement No. 149, "Amendment of Statement 133 on Derivative Instruments and Hedging Activities." This Statement
amends and clarifies financial accounting and reporting for derivative instruments, including certain derivative instruments embedded in other contracts and for
hedging activities under Statement No. 133, "Accounting for Derivative Instruments and Hedging Activities." The provisions of this Statement are effective for
the Company for all derivatives and hedging activity entered into after June 30, 2003. The adoption of this Statement had no impact on the Company's overall
financial position and results of operations.
In May 2003, the FASB issued Statement No. 150, "Accounting for Certain Financial Instruments with Characteristics of both Liabilities and Equity." This
Statement establishes standards for how an issuer classifies and measures certain financial instruments with characteristics of both liabilities and equity. The
provisions of this Statement are effective for these financial instruments with the Company's fiscal year beginning February 1, 2004. It is anticipated that the
adoption of this Statement will have no material impact on the Company's overall financial position and results of operations.
In November 2002, the EITF of the FASB issued consensus No. 02−16, "Accounting by a Customer (Including a Reseller) for Certain Consideration
Received from a Vendor" ("EITF 02−16"). EITF 02−16 addresses how a reseller of a vendor's products should account for cash consideration received from the
vendor and addressed two Issues. On Issue 1, the Task Force reached a consensus that cash consideration received from a vendor is presumed to be a reduction of
cost of sales when recognized in the reseller's income statement. This presumption is overcome when the consideration is a reimbursement for specific,
incremental, identifiable costs incurred by the reseller to sell the vendor's products, in which case the cash consideration should be characterized as a reduction of
that cost when recognized in the reseller's income statement. Additionally, the Task Force concluded on Issue 2 that a refund or a rebate of a specified amount of
cash consideration payable only if the reseller completes a specified level of purchases should be recognized as a reduction of cost of sales based on a systematic
and rational allocation of the cash consideration offered to each of the underlying transactions that results in progress by the reseller toward earning the refund or
rebate, provided the amounts are probable and reasonably estimable. In its January 2003 meeting, the Task Force amended the transition guidance relative to
adoption of EITF 02−16 to require that the consensus on Issue 1 be applied to new arrangements, including modifications of existing arrangements, entered into
after December 31, 2002. Issue 2 remains applicable to arrangements entered into after November 21, 2002.
The Company has historically treated certain vendor entitlements as a reduction of inventory costs, while cooperative advertising reimbursements have been
reflected as a reduction of selling, general, and administrative expense. The impact of EITF 02−16 on fiscal 2002 was immaterial and for fiscal 2003 was a
recharacterization of $3.0 million, from reduction of advertising expense to reduction of cost of inventory purchased, of which $2.1 million was recognized in
cost of goods sold in fiscal 2003. The net impact of EITF 02−16 on fiscal 2003 was a reduction of net income of $0.5 million, or $0.03 per diluted share.
(z) Reclassifications
Certain prior year amounts have been reclassified to conform to the current year presentation.
F−14
(3) Merger
On August 4, 2003, TSA was merged with a wholly−owned subsidiary of Gart Sports Company, as a result of which Gart Sports Company became the
owner of 100 percent of the outstanding common stock of TSA and was renamed The Sports Authority, Inc. The primary reasons for the merger of Gart and
TSA, and the primary factors that contributed to a purchase price that resulted in recognition of goodwill are:
•
The merger would create a national sporting goods retailer, melding the complementary geographic footprints of Gart and TSA;
•
The combined company could realize significant operating synergies and cost savings;
•
The opportunity for enhanced brands offering, given the potential for the expansion of premium brands into all stores and the ability to
strengthen vendor relationships and gain volume discounts with key national brands and use the best practices of each company in
marketing;
•
The opportunity for private label expansion, leveraging TSA's hardlines expertise and Gart's softline expertise and leveraging the size of the
combined company to facilitate new product offerings and lower costs;
•
The merger would enable the combined company to offer a broader selection of sporting goods to a greater number of consumers at
competitive prices; and
•
The combination would improve the combined company's access to financial resources in the future
Based on an exchange ratio of 0.37 shares of Gart common stock for each TSA share, Gart issued approximately 12.4 million common shares and
1.5 million vested employee stock options in the exchange, which increased stockholders' equity by approximately $201 million. The common stock was valued
at $15.51 per share, which was the average closing price of Gart's common stock for two business days prior to and after the date the Agreement and Plan of
Merger was executed, as well as the closing price on February 19, 2003, the date the Agreement and Plan of Merger was executed. The employee stock options
were valued using the Black−Scholes option pricing model, based on assumptions prevalent at the February announcement date, which included an expected
volatility rate of 69.1%, a risk free interest rate of 3.5%, an expected life of 1 year, and no dividend yield. The transaction is being accounted for using the
purchase method of accounting as required by SFAS No. 141, "Business Combinations," with Gart as the accounting acquirer. Accordingly, the assets and
liabilities of TSA have been adjusted to their fair values and the excess of the purchase price over the fair value of TSA assets acquired is recorded as goodwill in
the accompanying balance sheet. The statement of income for the year ended January 31, 2004 reflects the results of the combined company from the merger
date. Prior year results, as well as results for the first 26 weeks of the 52 weeks ended January 31, 2004, include the former Gart Sports Company on a
stand−alone basis. The allocation of the purchase price to specific assets and liabilities is based, in part, upon independent appraisals and internal estimates of
cash flow and recoverability, and may be revised as more definitive facts and
F−15
evidence become available. The following table summarizes the estimated fair values of the assets acquired and liabilities assumed at August 4, 2003:
Inventory
Other current assets
Property and equipment, net
Favorable leases and other long term assets, excluding goodwill
Deferred tax assets
Goodwill
Current liabilities
Long term debt
Other non−current liabilities
$
307,614
47,195
83,004
74,922
114,035
86,556
(316,300)
(122,985)
(72,857)
Fair value of net assets acquired, including intangibles
$
201,184
The following unaudited pro forma summary presents information as if TSA had been acquired at the beginning of each period presented. The pro forma
amounts include certain adjustments, including recognition of depreciation and amortization based on the preliminary allocated purchase price of property and
equipment acquired, amortization of favorable leases, amortization of other finite lived intangible assets acquired, interest expense, and cessation of the
amortization of certain lease acquisition costs. The pro forma amounts do not reflect any benefits from synergies, which might be achieved from combining the
operations. No adjustments have been made to the pro forma statement of income to conform accounting policies and practices. In addition, no adjustments have
been made to eliminate the after−tax effect of certain items included in the amounts below, for the 52 weeks ended January 31, 2004, including: $26.7 million of
merger integration costs; $0.9 million of costs to settle class−action wage and hour lawsuits; $1.8 million of merger related costs recorded by TSA prior to the
merger date of August 4, 2003; and $1.3 million of interest income and a $1.7 million tax benefit, both related to the settlement of a tax dispute with the
Company's former parent.
The pro forma information does not necessarily reflect the actual results that would have occurred had the companies been combined during the periods
presented, nor is it necessarily indicative of the future results of operations of the combined companies.
Fifty−two weeks ended
January 31,
2004
February 1,
2003
(Unaudited, in thousands except per share amounts)
Net Sales
$
2,457,602
$
2,482,922
Net Income
$
19,513
$
40,916
Basic earnings per share
$
0.78
$
1.71
Diluted earnings per share
$
0.74
$
1.63
F−16
(4) Acquisition
On June 7, 2001, Gart Sports Company completed its acquisition of Oshman's Sporting Goods, Inc. The consideration consisted of approximately
3.4 million shares of Gart Sports Company common stock valued at approximately $37.8 million and approximately $50.2 million in cash. At the time of the
acquisition, Oshman's operated 58 sporting goods specialty stores, including 43 SuperSports USA stores and 15 traditional stores. The acquisition was accounted
for under the purchase method of accounting, and accordingly, the accompanying statements of income include the results of Oshman's since the date of the
acquisition.
The total cost of the acquisition has been allocated to the tangible and intangible assets acquired and liabilities assumed based on their respective fair values.
The final adjusted allocation of the purchase price is as follows (in thousands):
Inventory
Other current assets
Property and equipment, net
Favorable leases and other long term assets, excluding goodwill
Goodwill
Current liabilities
Long term debt
Other long term liabilities
$
67,336
19,363
19,749
14,763
46,913
(66,509)
(12,128)
(1,463)
Book value of net assets acquired, including intangibles
$
88,024
(5) Accounts Receivable
Activity in the allowance for doubtful accounts is as follows (in thousands):
Fiscal Year
2003
2002
Allowance for doubtful accounts at beginning of period
Additions
Amounts charged against the allowance
$
922
1,888
(662)
$
Allowance for doubtful accounts at end of period
$
2,148
$
2001
1,116
886
(1,080)
922
$
$
606
974
(464)
1,116
(6) Property and Equipment
Property and equipment consist of the following (in thousands):
January 31, 2004
Land
Buildings and improvements
Leasehold improvements
Capitalized lease property
Data processing equipment and software
Furniture, fixtures and office equipment
Less accumulated depreciation and amortization, capital leases
Less accumulated depreciation and amortization, other
Property and equipment, net
F−17
February 1, 2003
$
12,270
18,698
75,668
2,392
36,686
132,262
(2,105)
(89,298)
$
—
—
56,119
2,392
19,893
79,739
(1,868)
(68,315)
$
186,573
$
87,960
Land and buildings at January 31, 2004 includes six owned and operating store sites acquired in the TSA merger, as well as three closed store sites. Prior to
year−end, the Company completed separate sale−leaseback transactions on two additional TSA−owned store sites for combined proceeds of $16.0 million, of
which $10.9 million was received in early fiscal 2004.
(7) Favorable Leases
Favorable leases acquired in the TSA merger and Oshman's acquisition were primarily the result of net current market rents of store locations exceeding the
contractual lease rates at the merger date. The favorable lease amounts are based upon independent appraisals and are amortized over the existing lease terms on
a straight−line basis. In fiscal 2003 and 2001, the Company recorded $14.5 million and $13.3 million of favorable leases in connection with the TSA merger and
Oshman's acquisition, respectively. Amortization expense was $3,064,000 for fiscal 2003, $1,859,000 for fiscal 2002 and $1,152,000 for fiscal 2001.
(8) Accrued Expenses
Accrued expenses consist of the following (in thousands):
January 31, 2004
Accrued compensation and benefits
Accrued sales and property taxes
Accrued advertising
Accrued store closing reserve (see Note 11)
Accrued gift cards and merchandise return vouchers
Self−insured reserves
Other
Accrued expenses
February 1, 2003
$
34,087
26,188
15,710
14,614
33,980
19,220
31,415
$
14,426
9,524
4,009
8,262
11,685
3,027
11,070
$
175,214
$
62,003
(9) Long−Term Debt
Upon consummation of the merger, the Company entered into a new credit financing agreement (the "Credit Agreement") with CIT, as agent, that allows
the Company to borrow up to $600,000,000, limited to an amount equal to 70% of eligible inventory or 85% of the appraised net orderly liquidation value of
eligible inventory (as defined in the Credit Agreement). The Company is also entitled to seasonal increases in the inventory advance rate for up to 120 days
during any calendar year as designated by the Company for the lesser of 80% of eligible inventory or 90% of appraised net orderly liquidation value. Borrowings
are secured by substantially all present and future accounts (as defined in the Credit Agreement), inventories, trade receivables, equipment, documents of title
and intangible assets. The borrowings mature, absent an occurrence of default under the agreement, on August 4, 2007. The Credit Agreement contains certain
covenants, including financial covenants that require the Company to maintain a specified minimum level earnings before interest, taxes, depreciation and
amortization to interest ratios if the Company does not have at least $50 million available for borrowing in the first year, $60 million in the second year and
$75 million thereafter. In addition, the Credit Agreement restricts, among other things, the Company's ability to incur additional debt, to merge, consolidate or
sell assets, to make loans or advances to others, to guaranty obligations of others, to pledge its assets, to make certain investments, and to engage in transactions
with affiliates. The Company's ability to declare or pay dividends on its common stock and to repurchase its common stock is limited to $16 million per year
under the Credit Agreement. The Company is in compliance with all covenants under the Credit Agreement. In connection with the Credit Agreement, the
Company pledged all of the outstanding common stock of its subsidiaries, including TSA Stores, Inc.,
F−18
its principal operating retail subsidiary, as collateral for the Credit Agreement. Interest is payable monthly at Chase Manhattan Bank's prime rate plus a margin
rate ranging from 0% to 0.50% or, at the option of the Company, at Chase Manhattan Bank's LIBOR rate plus a margin rate ranging from 1.50% to 2.50%. At
January 31, 2004, and February 1, 2003, $317.3 million and $121.1 million, respectively, remained outstanding under the Credit Agreement and $139.5 million
and $90.6 million, respectively, was available for borrowing.
Loan interest is payable monthly at Chase Manhattan Bank's prime rate plus a margin rate ranging from 0% to 0.50% or, at the option of the Company, at
Chase Manhattan Bank's LIBOR rate plus a margin rate ranging from 1.50% to 2.50%. The Company's margin rates for the first loan year were 0.0% on prime
and 2.0% on LIBOR borrowings The margin rates on borrowings during the term of the agreement may be reduced to as low as 0.0% on prime and 1.50% on
LIBOR, respectively, if certain Earnings Before Interest, Taxes, Depreciation, and Amortization ("EBITDA") levels are achieved. The margin rates on current
borrowings under the agreement are 0.0% on prime and 2.00% on LIBOR, based on the historical earnings levels achieved by the Company.
The terms of the agreement provide for an annual collateral management fee of $200,000 and an unused line of credit fee, payable monthly, of .375% per
annum on the unused portion of the line of credit. At the end of fiscal 2003 and 2002, $317.3 million and $121.1 million, respectively, were outstanding under
the Credit Agreement and $139.5 million and $90.6 million, respectively, were available for borrowing, as calculated using eligible inventory. Borrowings under
the new Credit Agreement of approximately $123 million were utilized to repay outstanding borrowings owed by TSA under its revolving credit facility at the
time of the merger.
The Company paid one−time fees of approximately $6.1 million in fiscal 2003 to secure the new Credit Agreement, and is amortizing that amount over the
life of the agreement on the effective interest method.
The new Credit Agreement replaced a $300,000,000 credit agreement between Gart Bros. Sporting Goods Company and CIT. Interest under the prior
facility was payable monthly at Chase Manhattan Bank's prime rate plus a margin rate not to exceed 0.25% or, at the option of the Company, at Chase Manhattan
Bank's LIBOR rate plus a margin rate not to exceed 2.25%. The replaced agreement contained terms and conditions substantially like those of the new Credit
Agreement, but provided for a lower inventory advance rate and a higher interest margin rate. Borrowings under the prior agreement were paid in full at the
merger date.
As of January 31, 2004, the Company has 25 letters of credit outstanding that total approximately $15.8 million and expire throughout 2004.
(10) Other Long−Term Liabilities
Other long−term liabilities consist of the following (in thousands):
January 31,
2004
Long−term portion of store closing reserves
Deferred rent
Deferred long−term compensation
Other long−term liabilities
February 1, 2003
$
60,905
16,958
2,555
$
—
11,524
3,157
$
80,418
$
14,681
(11) Store Closing Activities
In fiscal 2003, the Company recorded $79.0 million of store closing reserves as a part of its purchase accounting for the TSA merger, comprised of:
(a) $22.4 million for the estimated fair value of
F−19
store closing reserves related to TSA stores closed prior to the merger, (b) $53.2 million for 27 TSA stores that have been targeted for closure due to the merger,
as well as the TSA corporate office, and (c) $3.4 million for excess space at two open TSA stores. The $53.2 million reserve relates to stores targeted for closure
as a result of the merger, due principally to their location in overlapping Gart markets or due to historical underperformance. The $3.4 million reserve relates to
vacant space at one TSA store due to the loss of a subtenant, and at another store where the Company entered into an agreement with the landlord to buy out of
the unutilized space in 2004. As of January 31, 2004, the Company had closed eleven TSA locations and relocated two others. The remaining stores in the TSA
store exit plan are expected to close within the next 12 to 15 months.
The Company also recorded store exit reserves of $1.3 million for one Oshman store closed in the third quarter of 2003 due to its close proximity to an
existing TSA store, which was included in integration expense in the accompanying statement of income. Additionally, reserves for two previously closed store
sites and the former Gart corporate office were increased by $0.8 million, due primarily to loss of subtenant revenues. The charge was recorded as a component
of operating expenses in the accompanying statement of income. Finally, reserves for two previously recorded Oshman's store closures were reversed due to no
future obligations, and such reversal reduced goodwill in the accompanying balance sheet. The Company regularly evaluates the adequacy of its store closing
reserves based on recent broker analyses, general economic conditions, current trends in the real estate market, and historical experience with respect to
marketing its closed store sites.
Activity in the provision for closed stores is as follows:
Fiscal Years
2003
2002
2001
In thousands
Provision for closed stores, beginning of period
Increase (decrease) recorded as a component of purchase accounting:
Oshman's acquisition
TSA merger
$
Subtotal—purchase accounting
Increase (decrease) recorded in operating expenses:
Oshman's store closure due to TSA merger
Gart corporate office closure due to Oshman's acquisition
Unrelated to mergers and acquisitions
Subtotal—operating expense
Cash Receipts (Payments):
Sublease receipts
Lease payments and other exit costs
Subtotal—cash receipts (payments)
Exit Reserves, end of period(1)
$
8,262
$
11,830
$
945
(723)
78,960
(1,673)
—
10,530
—
78,237
(1,673)
10,530
1,318
—
766
—
—
577
—
1,384
698
2,084
577
2,082
2,600
(15,664)
—
(2,472)
—
(1,727)
(13,064)
(2,472)
(1,727)
75,519
$
8,262
$
11,830
(1)
At January 31, 2004, the ending reserve balance is comprised of $74.2 million of remaining reserves established as a component of purchase
accounting in connection with the Company's merger and acquisitions. The remaining balance of $1.3 million represents remaining reserves
established in connection with routine store closing activities unrelated to the Company's merger or acquisitions.
F−20
(12) Financial Instruments and Risk Management
Interest Rate Instruments
The Company entered into an interest rate swap agreement on June 28, 2001, expiring on June 30, 2004, for a notional amount of $20 million and entered
into a second interest rate swap agreement on December 11, 2002 for a notional amount of $40 million, beginning September 2, 2003, and expiring on May 31,
2005, to minimize the risks and costs associated with its financing activities in general and to minimize its exposure to variable cash flows in particular. Under
the swap agreements, the Company pays fixed rate interest and receives variable LIBOR interest rate payments periodically over the life of the agreement. The
total notional interest rate swap amounts are $60 million and are used to measure interest to be paid or received and do not represent the exposure due to credit
loss.
The Company's interest rate swaps are each designated as a cash flow hedge and are considered highly effective, as defined by FASB Statement No. 133.
There is no charge to earnings for changes in the fair value of the swap agreements. Cash settlements on the swap agreements are recorded as interest expense. At
January 31, 2004 and February 1, 2003, the fair value of the swaps was a loss of $759,000 and $903,000, respectively, net of the related tax benefit. The
unrealized losses from these interest rate swaps are included in other comprehensive income and are shown as a component of stockholders' equity.
(13) Income Taxes
Income tax benefit (expense) consists of the following (in thousands):
Fiscal Year
2003
Current:
Federal
State
2002
$
2,503
—
$
2,503
Deferred:
Federal
State
$
$
2001
—
—
$
—
—
—
—
(9,367)
(855)
(12,048)
(2,584)
(4,930)
(355)
(10,222)
(14,632)
(5,285)
(7,719)
$
(14,632)
$
(5,285)
A reconciliation of the U.S. federal statutory tax rate to the Company's effective tax rate is as follows:
Fiscal Year
2003
U.S. federal statutory rate
Increase (decrease) resulting from:
State and local taxes, net of federal benefit
Tax settlement with former parent
Other, net
F−21
2002
2001
35.0%
34.0%
34.0%
3.5%
(6.9)%
0.4%
4.5%
—
0.2%
4.5%
—
0.5%
32.0%
38.7%
39.0%
The tax effects of temporary differences that give rise to significant portions of deferred tax assets and deferred tax liabilities are presented below (in
thousands):
January 31, 2004
Assets:
Accounts receivable
Property and equipment
Tax credit carryforwards
Net operating loss carryforwards
Accrued compensation and benefits
Accrued occupancy
Accrued merchandise credits and gift certificates
Store closing reserves
Other accrued expenses
$
Liabilities:
Property and equipment
Accrued expenses
Inventories
Intangible assets
Prepaid expenses
Other
Net deferred tax asset
$
749
20,942
5,712
60,180
8,786
—
12,102
29,057
17,364
February 1, 2003
$
618
—
3,164
14,816
2,089
3,602
—
—
4,685
154,892
28,974
—
(1,569)
(516)
(19,683)
(1,467)
(857)
(8,078)
—
(1,230)
—
(1,459)
—
(24,092)
(10,767)
130,800
$
18,207
On a tax basis, the Company generated a net operating loss for the fiscal year 2003, and utilized approximately $36.6 million and $0 of its net operating loss
carryforwards to reduce taxable income in fiscal 2002 and 2001, respectively. Of the $36.6 million utilized in fiscal 2002, approximately $20.0 million was in
connection with the agreement entered into with the IRS on November 1, 2002, described below. At January 31, 2004, the Company has $132.0 million of
federal and $300.0 million of state net operating loss carryforwards expiring from 2014 to 2024. Of these, $14.1 million of federal and $181.3 million of state net
operating loss carryforwards relate to the TSA merger. In addition, the Company also has tax credit carryforwards of $5.7 million, of which $2.9 million have no
expiration date and $2.8 million expire in varying amounts through 2024. Based upon the Company's performance, current tax planning strategies and
management estimates of future taxable income, management believes it is more likely than not, that all of the Company's tax assets including operating loss
carryforwards, will be utilized. As such, no valuation allowance has been established.
Prior to April 21, 1994, the Company's financial results were included in the consolidated U.S. federal income tax returns of its former parent. Pursuant to
the tax sharing agreement between the Company and its former parent, which was effective from September 25, 1992 up to and including April 20, 1994, the
Company recorded income taxes assuming the Company filed a separate income tax return. The tax sharing agreement also provides for the treatment of tax loss
carrybacks, indemnifications, and resolution of disputes.
On November 1, 2002, in order to eliminate the accrual of additional interest on taxes owed to the IRS, the Company entered into an agreement with the
IRS, based upon the terms of a settlement between the IRS and the Company's former parent which was subsequently approved by the Joint Committee of
Taxation in August of 2003. Pursuant to the agreement, the Company paid the IRS tax
F−22
of $1.1 million and interest of $0.5 million. As such, the Company recorded a reversal of its remaining accrued interest payable to the IRS, totaling
approximately $0.7 million. The tax liability settled under the agreement was recorded as a reduction of the long−term deferred tax liability that had been
established previously in relation to this matter. A significant portion of the tax liability agreed to by the Company under the agreement did not require cash
payment as those adjustments reduced existing net operating losses carryforwards previously generated by the Company. The Company believes this to be a full
and complete settlement of all its separate return issues under review by the IRS. In addition, during the first quarter of fiscal 2003, the Company finalized a
settlement with its former parent under the tax sharing agreement. As a result, the Company received a refund of $4.6 million, which included tax and interest in
the amount $2.5 million and $2.1 million, respectively. An income tax benefit in the amount of $1.7 million was recognized in the first quarter of fiscal 2003 for
that part of the tax refund in which a deferred asset had not previously been established.
(14) Leases
The Company is obligated for one leased property which is classified as a capital lease for financial reporting purposes. The lease term expires in 2007 and
provides for minimum annual rental payments plus contingent rentals based upon a percentage of sales in excess of stipulated amounts. The gross amount of
capitalized property under capital leases and related accumulated amortization recorded is included in property and equipment.
The Company has noncancelable operating leases primarily for stores, distribution facilities, corporate offices and equipment, expiring at various dates from
2004 to 2023. These leases generally contain renewal options for multiple five−year renewal periods and require the Company to pay all executory costs such as
real estate taxes, maintenance and insurance. Certain leases include contingent rentals based upon a percentage of sales in excess of a specified amount. The
Company also subleases all or parts of certain excess property it currently leases. Eight of the leases are with partnerships, the partners of which are former
directors of the Company and thier family members. Rent expense under these related party lease agreements was as follows (in thousands):
Fiscal Year
2003
Base rentals
Total rent expense under all operating lease agreements was as follows (in thousands):
$
2002
1,199
$
2001
1,087
$
720
Fiscal Year
2003
Base rentals
Contingent rentals
Sublease rental income
2002
2001
$
137,999
834
(3,415)
$
78,658
1,026
(2,113)
$
68,231
977
(2,859)
$
135,418
$
77,571
$
66,349
Minimum base rentals include noncash rent expense related to the amortization of deferred rent totaling $5,434,000 in fiscal 2003, $2,686,000 in fiscal
2002, and $2,022,000 in fiscal 2001.
F−23
At January 31, 2004, future minimum lease payments under noncancelable leases, with initial or remaining lease terms in excess of one year, are as
follows (in thousands):
Capital
leases
Fiscal Years:
2004
2005
2006
2007
2008
Thereafter
Total minimum lease payments
Amounts to
be paid to
related parties
Total
$
396
369
367
234
5
—
$
198,886
198,488
192,364
189,539
179,504
1,071,224
$
199,282
198,857
192,731
189,773
179,509
1,071,224
$
715
715
748
772
772
6,697
$
1,371
$
2,030,005
$
2,031,376
$
10,419
Less imputed interest (at rates ranging from 9.0% to 10.75%)
Present value of future minimum rentals of which $302 is
included in current liabilities, at January 31, 2004
Operating
leases, net
205
$
1,166
The total future minimum lease payments include amounts to be paid to related parties and are shown net of $23,483,484 of noncancelable sublease
payments and exclude estimated executory costs, which are principally real estate taxes, maintenance, and insurance.
In connection with the transfer of certain leased stores to a former affiliate in 1991, the Company remains liable as assignor on one lease. The former
affiliate has agreed to indemnify the Company for any losses it may incur as assignor, however, such indemnification is unsecured. In addition, the Company
remains liable as assignor on three leases as a result of the Sportmart acquisition. The remaining future minimum lease payments on these leases, exclusive of
any variable rent or cost reimbursement that might be required, are as follows at January 31, 2004 (in thousands):
Fiscal Years
2004
2005
2006
2007
2008
Thereafter
$
2,583
2,330
2,396
2,396
1,896
4,009
Total minimum lease payments
$
15,610
In the event of default on the lease obligations, and failure by the assignee to indemnify the Company, the Company would incur a loss to the extent of any
remaining obligations, less any obligation mitigated by the lessor re−leasing the property.
(15) Employee Benefit Plans
Profit Sharing Plan
In January 2004, the Company amended its 401(k) Retirement Plan to, among other things, increase the employer's matching contribution rate, reduce the
eligibility period, and to cause employees of TSA Stores to vest 100% in matching contribution in their account as of January 1, 2004, qualified defined
contribution profit sharing plan to include a 401(k) plan feature for all eligible
F−24
employees. On August 4, 2003, the TSA Stores, Inc. 401(k) Savings and Profit Sharing Plan was merged into the Company's plan. On August 1, 2001 the
Oshman's Profit Sharing Plan was merged into the Company's plan. Participants vest in the Company's contributions at a rate of 20% per year after the first year
of service. The plan provides for discretionary contributions, if any, by the Company in amounts determined annually by the Board of Directors. The Company
matching contributions were $1,405,000 in fiscal 2003, $522,000 in fiscal 2002 and $320,000 in fiscal 2001.
(16) Deferred Compensation Plan
The Company has a nonqualified Deferred Compensation Plan (the "DCP") for certain members of management. Eligible employees may contribute a
portion of base salary or bonuses to the plan annually. The DCP provides for additional matching contributions by the Company, with limitations similar to the
Company's 401(k) plan, as well as discretionary contributions in an amount determined by the Company prior to the end of each plan year. The Company made
no matching contributions to the DCP during fiscal 2003, 2002 or 2001.
(17) Stock Compensation Plans
Long Term Incentive Compensation Plan
In August 2003, the Company adopted a long term incentive compensation plan (the "Long Term Incentive Compensation Plan") following approval by the
shareholders which authorizes the issuance of various equity based awards of 2,500,000 shares of common stock. As of January 31, 2004, 619,500 options and
482,000 restricted stock units have been issued and remain outstanding under the Long Term Incentive Compensation Plan. Stock options are granted with an
exercise price equal to the fair value of the underlying stock at the date of grant. All stock options have a ten−year term and vest 25% per year over four years
from the date of grant. Restricted stock, recorded at the fair value of the stock at the grant date, is granted to certain employees of the Company and either cliff
vests after five years from the grant date or vests 20% per year over five years from the date of grant. The Company recorded approximately $15.4 million of
unamortized compensation as a reduction to stockholders' equity in fiscal 2003 related to grants of restricted stock. These amounts are being amortized to
compensation expense on a straight−line basis over the vesting period.
Management Equity Plan
The Company adopted a management equity plan (the "Management Equity Plan") which authorized the issuance of common stock plus grants of options to
purchase shares of authorized but unissued common stock up to 3,000,000 combined shares and options. As of January 31, 2004, 147,600 purchased shares of
common stock, 1,008,370 options, and 494,408 shares of restricted stock have been issued and remain outstanding under the Management Equity Plan. Stock
options are granted with an exercise price equal to the estimated fair value of the underlying stock at the date of grant. All stock options have a ten−year term and
vest 20% per year over five years from the date of grant. Restricted stock, recorded at the fair value of the stock at the grant date, is granted to certain employees
of the Company and either cliff vests after five years from the grant date or vests 20% per year over five years from the date of grant. The Company recorded
approximately $0.1, $0.2 and $1.5 million of unamortized compensation as a reduction to stockholders' equity in fiscal 2003, 2002 and 2001, respectively, related
to grants of restricted stock under this Management Equity Plan. These amounts are being amortized to compensation expense on a straight−line basis over the
vesting period.
Substitute Company Options
In connection with the merger with TSA, options outstanding under TSA's 2000 Stock Option and Stock Award Plan, the Salaried Employees' Stock Option
and Stock Award Plan and the Director
F−25
Stock Plan were assumed by the Company. These substitute options were modified to Company options utilizing the same conversion ratio of 0.37 to one as the
common stock and dividing the exercise price of the previous options by the conversion ratio. The holders of TSA substitute options vested fully on August 4,
2003. All such persons had their original terms during which holders can exercise those options. As of August 4, 2003, 4,008,059 TSA options were exchanged
for 1,482,982 Company substitute options. As of January 31, 2004, 879,918 options remain outstanding under the TSA substitute options.
Stock option activity during the periods indicated for the Company's stock option plans was as follows:
Weighted
average
exercise
price
Number of
options
Options
exercisable
Balance at February 3, 2001
Granted
Exercised
Canceled
1,242,671 $
364,300
(245,386)
(68,022)
8.40
15.13
8.59
10.18
510,459
Balance at February 2, 2002
Granted
Exercised
Canceled
1,293,563
423,500
(334,260)
(23,800)
10.17
20.56
8.14
10.45
482,501
Balance at February 1, 2003
Granted
Exchanged for TSA options
Exercised
Canceled
1,359,003
642,500
1,482,982
(892,460)
(69,744)
13.90
30.41
15.75
11.76
22.98
402,181
Balance at January 31, 2004
2,522,281
19.69
1,325,632
$
Canceled options are a result of employee terminations.
The following table summarizes the status of outstanding stock options as of January 31, 2004:
Options outstanding
Range of exercise prices
Number of
options
outstanding
Options exercisable
Remaining
contractual life
(in years)
Weighted
average
exercise price
Number of
options
exercisable
Weighted
average
exercise price
$4.06 – 6.63
7.75 – 14.00
15.14 – 20.00
20.42 – 29.88
31.55 – 67.23
457,017
553,783
492,651
708,263
310,567
6.0
6.0
7.7
8.4
7.4
$
6.26
12.10
19.09
28.09
34.86
313,917
427,883
185,084
225,013
173,735
$
6.33
11.63
18.06
24.89
35.75
$4.06 – 67.23
2,522,281
7.2
$
19.69
1,325,632
$
16.65
Unvested stock grants under the equity award plans during the periods indicated were as follows:
Fiscal Year
2003
Shares of unvested stock granted
Weighted average fair value of shares at grant date
485,000
$31.82
F−26
2002
$
7,500
20.42
2001
122,500
$11.93
(18) Related Party Transactions
Prior to the merger, Green Equity Investors, whose general partner is Leonard Green & Associates, LP ("LGA"), owned approximately 26% of the
outstanding common stock of the Company, which equated to approximately 13% of the combined company post merger. In December 2003, LGA sold
1.1 million shares of stock, reducing its beneficial interest in the Company to approximately 8%. The Company had a management services agreement with LGA
whereby LGA received an annual retainer fee of $0.5 million plus reasonable expenses for providing certain management, consulting and financial planning
services. The management services agreement also provided that LGA may receive reasonable and customary fees and reasonable expenses from time to time for
providing financial advisory and investment banking services in connection with major financial transactions that are undertaken. The management services
agreement was due to terminate in January 2004. In September 2003, the Company bought out the remaining term of the agreement for $0.2 million. In addition,
in the third quarter of 2003, the Company paid LGA a fee of $4.25 million, plus out−of−pocket expenses, in connection with the TSA merger which is included
in the total purchase price paid.
The Company entered into a severance and noncancelable consulting agreement with Martin E. Hanaka, our Chairman of the Board and the former
Chairman and CEO of TSA. Pursuant to the severance agreement, Mr. Hanaka's employment with the Company ceased as of December 31, 2003. Under this
agreement, the Company will continue, until August 3, 2006, to nominate Mr. Hanaka, and, if elected by our shareholders, he shall serve as Chairman of the
Board, to the extent the Board appoints him to such position. Pursuant to the terms of the agreement, Mr. Hanaka was paid a cash payment of $2.5 million,
received $1.0 million in Company common stock, and his unvested equity awards became fully vested and remain exercisable until at least August 4, 2006. The
amounts related to this agreement were recorded as merger integration costs in the accompanying Statement of Income. In addition and simultaneous with this
agreement, the Company executed a consulting agreement with Mr. Hanaka. Mr. Hanaka has agreed to provide consulting services to the Company focussing on
the cultural integration and the long−term strategic growth of the Company and the enhancement of the public reputation and image of the Company. Pursuant to
the consulting agreement, the Company agreed to pay a fee of $100,000 per year to Mr. Hanaka and to pay his related office expenses in Fort Lauderdale,
Florida, for his services to be rendered over a period of approximately 31 months, terminating August 3, 2006.
During 2001, the Company had noncancelable consulting agreements with certain former Oshman's executives who were formerly Directors of the
Company. The Company paid fees ranging from $175,000 to $400,000 per year for services rendered for periods ranging from 12 to 30 months following the
June 7, 2001 merger agreement. The consultants agreed to be available, from time to time, to advise the Company on strategic issues, planning, merchandising
and operational issues related to the acquisition of Oshman's.
Mr. Morton, our Vice Chairman and Chief Executive Officer, has a brother who is the President for Scott USA. In the Company's view, all such purchases
were made on an arm's length basis at prices that did not exceed those that the Company would have paid to another vendor. The Company purchased
$2.1 million, $2.2 million, and $2.8 million in fiscal 2003, 2002 and 2001, respectively. In each of these years, such purchases represented less than 1% of our
total purchases.
As of January 31, 2004, there were no payments due to LGA or other related parties except $1.0 million in Company common stock due to Mr. Hanaka, in
connection with his severance agreement as outlined above. See future minimum lease payments at Note 14.
F−27
(19) Contingencies
Legal Proceedings
The Company is, from time to time, involved in various legal proceedings and claims arising in the ordinary course of business. Management believes that
the outcome of all such pending legal proceedings to which the Company is a party will not, in the aggregate, have a material adverse effect on the Company's
business, financial condition, or operating results.
In June 2000, a former employee of Sportmart brought two class action complaints in California against the Company, alleging various wage and hour
claims in violation of the California Labor Code, California Business and Professional Code section 17200 and other related matters. One complaint alleges that
the Company classified some of its managers in its California stores as exempt from overtime pay when they would have been classified as non−exempt and paid
overtime. The second complaint alleges that the Company failed to pay hourly employees in its California stores for all hours worked. In March 2001, a third
class action complaint was filed in the same court in California alleging the same wage and hour violations regarding classification of certain managers as
exempt from overtime pay. In July 2001, a fourth complaint was filed alleging that store managers should also not be classified as employees exempt from
overtime pay. All the complaints seek compensatory damages, punitive damages and penalties. The amount of damages sought is unspecified. The Company has
entered into a settlement agreement relating to the first two complaints that were filed, which has received preliminary approval by the court. With the settlement
of the first two complaints, the named plaintiffs in the third and fourth actions will be included in the settlement class although they may opt to proceed with their
lawsuits on an individual basis. The Company recorded an estimated liability totaling $1.5 million, including attorney fees and expenses, in the year ended
January 31, 2004.
In June 2003, Financo, Inc., a financial advisory firm, filed a complaint against Gart Sports Company in the Delaware Court of Chancery alleging that Gart
Sports owed Financo $2,000,000 for services provided to Gart Sports in connection with the merger negotiations with TSA. No written contract exists between
Gart Sports and Financo. The Company reached a settlement with Financo and paid a total of $500,000, including attorney fees and expenses, during the year
ended January 31, 2004.
TSA Stores is one of thirty−three named defendants, including firearms manufacturers, distributors and retailers, in City of Chicago and County of Cook v.
Beretta U.S.A. Corp. et al., Circuit Court of Cook County, Illinois. This suit was served on TSA Stores in November 1998. The original complaint was based on
legal theories of public nuisance and negligent entrustment of firearms and alleged that the defendants created a public nuisance by distributing, marketing and
selling firearms in the portion of Cook County outside Chicago knowing or recklessly disregarding that these guns would be illegally transferred and used in
Chicago to commit crimes. The complaint sought damages allocated among the defendants exceeding $433 million to compensate the City of Chicago and Cook
County for their alleged costs resulting from the alleged public nuisance. The complaint also sought punitive damages and injunctive relief imposing additional
regulations on the methods the defendants use to distribute, market and sell firearms in Cook County. In February 2000, the Court dismissed the complaint's
negligent entrustment count. The plaintiffs filed an amended complaint with the Court's permission in March 2000, which contained both the public nuisance and
negligent entrustment counts. In September 2000, the Court granted the motions of the defendants to dismiss the amended complaint, in its entirety, with
prejudice. In October 2000, the plaintiffs appealed the dismissal of their public nuisance claim to the Appellate Court of Illinois, First Judicial District. On
November 4, 2002, the Appellate Court reversed the dismissal of the public nuisance claim and remanded the case to the trial court for further proceedings. On
November 25, 2002, TSA Stores filed a petition for rehearing with the Appellate Court which was denied on March 7, 2003. On March 27, 2003, TSA Stores
joined in a petition by the other defendants for leave to appeal to the Illinois Supreme Court of the Appellate Court's decision reversing the trial court's dismissal
of the public nuisance claim, which was granted on
F−28
April 8, 2003. The Illinois Supreme Court heard oral arguments by the parties on September 10, 2003 and has yet to render a decision. The Company is currently
unable to predict the outcome of this case.
(20) Earnings Per Share
The following table sets forth the computations of basic and diluted earnings per share.
Fiscal
2003
2002
2001
Net income
Weighted average shares of common stock outstanding
$
16,367,000
18,309,174
$
23,167,000
11,766,983
$
8,266,000
9,598,553
Basic earnings per share
$
0.89
$
1.97
$
0.86
Number of shares used for diluted earnings per share:
Weighted average shares of common stock outstanding
Dilutive securities — stock options and restricted stock
18,309,174
1,170,521
11,766,983
660,103
9,598,553
717,232
Weighted average shares of common stock and common stock
equivalents outstanding
19,479,695
12,427,086
10,315,785
Diluted earnings per share
$
0.84
$
1.86
$
0.80
(21) E−Commerce Agreement
In June 2001 and July 2001, the former Gart Sports Company and former Sports Authority, Inc., respectively, entered into separate license and e−commerce
agreements with GSI, which expire on December 31, 2011 and November 8, 2019, respectively. Under the terms of the agreements, GSI developed and is
currently operating four online sporting goods stores at www.thesportsauthority.com, www.gartsports.com, www.sportmart.com, and www.oshmans.com. Under
these agreements, GSI owns certain content and technology related to the websites, purchases and owns the merchandise sold on the websites, and hosts,
maintains, fulfills orders and furnishes all other "back−end" operations required to operate the websites. GSI receives all revenue generated from the websites
and pays the Company a royalty based on a certain percent of sales from these sites. In connection with the e−commerce agreements, GSI granted Gart Sports a
warrant to purchase 60,000 shares of common stock of GSI. A similar warrant for 30,000 GSI shares was acquired from Oshman's at the time of the acquisition.
The Company sold 60,000 of these warrants in October 2001, and recognized a gain of $195,000. The remaining warrant to purchase 30,000 shares was
exercised on November 2, 2001, and the shares that were acquired upon exercise of the warrant were classified as available−for−sale marketable equity securities
and were sold in September 2003 for a realized gain of $100,000.
(22) Stock Offering
On May 29, 2002, the Company completed a stock offering for 3.5 million shares of common stock. This offering resulted in net proceeds of approximately
$52 million from the sale of 1.75 million new shares by the Company. The Company used the net proceeds to repay certain borrowings under the revolving line
of credit agreement with CIT Group/Business Credit, Inc. The balance of the shares was sold by selling stockholders, including Green Equity Investors, L.P. The
Company did not receive any proceeds from the sale of shares by selling stockholders.
F−29
(23) Quarterly Financial Data (unaudited)
Note that the amounts below are not necessarily comparable to one another or to anticipated future periods due to the inclusion of TSA results since the
August 4, 2003 merger date, Oshman's results since the June 7, 2001 acquisition date, and non−recurring merger integration costs.
First
quarter
Second
quarter
Third
quarter
Fourth
quarter
Annual
(in thousands, except per share amounts)
Fiscal 2003
Net sales
Gross profit
Net income
Basic earnings per share
Diluted earnings per share
Fiscal 2002
Net sales
Gross profit
Net income (loss)
Basic earnings (loss) per share
Diluted earnings (loss) per share
$
228,432
57,581
4,189
0.35
0.34
$
267,514
70,692
5,260
0.44
0.42
$
552,534 $
146,716
(7,652)
(0.31)
(0.31)
711,970
$
210,740(a)
14,570(b)
0.58
0.55
1,760,450
485,729
16,367
0.89
0.84
$
244,976
61,453
2,590
0.24
0.22
$
261,705
68,059
6,334
0.52
0.48
$
227,762
56,967
1,397
0.12
0.11
316,801
$
88,425(c)
12,846
1.08
1.03
1,051,244
274,904
23,167
1.97
1.86
$
(a)
During the fourth quarter of 2003, the Company recorded vendor incentives, pursuant to vendor agreements and arising as a result of the TSA merger,
resulting in an increase of gross profit of $4.3 million.
(b)
During the fourth quarter of 2003, the Company recorded merger integration costs, net of tax, of $13.7 million related to the TSA merger.
(c)
During the fourth quarter of 2002, the Company recorded a reduction of its required LIFO inventory reserve, increasing the Company's gross profit by
$1.5 million.
F−30
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on April 14, 2004 on its behalf
by the undersigned thereunto duly authorized.
THE SPORTS AUTHORITY, INC.
BY: /S/ JOHN DOUGLAS MORTON
John Douglas Morton,
Vice Chairman of the Board and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officers or directors of the Registrant, by virtue of their signatures to this report,
appearing below, hereby constitute and appoint John Douglas Morton and Thomas T. Hendrickson, or any one of them, with full power of substitution, as
attorneys−in−fact in their names, places and stead to execute any and all amendments to this report in the capacities set forth opposite their names and hereby
ratify all that said attorneys−in−fact do by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant
and in the capacities indicated on April 14, 2004.
Signature
/s/ JOHN DOUGLAS MORTON
Title
Vice Chairman of the Board and Chief Executive Officer (Principal Executive
Officer)
John Douglas Morton
/s/ THOMAS T. HENDRICKSON
Chief Financial Officer, Chief Administrative Officer and Treasurer (Principal
Financial and Accounting Officer)
Thomas T. Hendrickson
/s/ MARTIN E. HANAKA
Chairman of the Board
Martin E. Hanaka
/s/ JONATHAN D. SOKOLOFF
Director
Jonathan D. Sokoloff
/s/ GORDON D. BARKER
Director
Gordon D. Barker
/s/ PETER R. FORMANEK
Director
Peter R. Formanek
II−1
/s/ MARY ELIZABETH BURTON
Director
Mary Elizabeth Burton
/s/ CYNTHIA R. COHEN
Director
Cynthia R. Cohen
/s/ KEVIN M. MCGOVERN
Director
Kevin M. McGovern
II−2
EXHIBIT INDEX
Exhibit No.
Description
2.1
Agreement and Plan of Merger, dated as of February 19, 2003, by and among the Registrant, Gold Acquisition Corp. and The Sports
Authority, Inc. (n/k/a TSA Stores, Inc.) (incorporated by reference to Exhibit 2.1 to the Registrant's Form 8−K (File No. 000−23515) filed
with the Commission on February 20, 2003).
3.1
Amended and Restated Certificate of Incorporation of Registrant (incorporated by reference to Exhibit 3.1 to the Registrant's Form 8−K
(File No. 001−31746) filed with the Commission on August 13, 2003).
3.2
Amended and Restated Bylaws of Registrant (incorporated by reference to Exhibit 3.2 to the Registrant's Form 8−K (File No. 001−31746)
filed with the Commission on August 13, 2003).
4.1
Registrant's Form of Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the Registrant's Form 8−K (File
No. 001−31746) filed with the Commission on August 13, 2003).
10.1
Financing Agreement, dated August 4, 2003, by and among The CIT Group/Business Credit, Inc. (as Agent and a Lender), Wells Fargo
Foothill, LLC (as Document Agent), Bank of America, N.A. (as a Co−Syndication Agent), Fleet Retail Finance Inc. (as Co−Syndication
Agent), the Lenders signatory thereto, Registrant and The Subsidiaries of Registrant thereto (incorporated by reference to Exhibit 10.1 to the
Registrant's Form 8−K (File No. 001−31746) filed with the Commission on August 13, 2003).
10.2
Joinder Agreement, dated as of December 18, 2003, by and among The CIT Group/Business Credit, Inc. (as Agent and a Lender), Wells
Fargo Foothill, LLC (as Document Agent), Bank of America, N.A. (as a Co−Syndication Agent), Fleet Retail Finance Inc. (as
Co−Syndication Agent), the Lenders signatory thereto, Registrant and The Subsidiaries of Registrant thereto.*
10.3
Registration Rights Agreement, dated as of January 9, 1998, by and between the Registrant and Green Equity Investors, L.P. (incorporated
by reference to Exhibit 99.2 to the Registrant's Current Report on Form 8−K (File No. 000−23515) file with the Commission on January 13,
1998).
10.4
Registrant's 1994 Management Equity Plan (incorporated by reference to Exhibit 10.3 to the Registrant's Registration Statement on
Form S−4 (File No. 333−42355) filed with the commission on December 16, 1997).
10.4.1
Amendment to Registrant's 1994 Management Equity Plan (incorporated by reference to Exhibit A to the Registrant's Registration Statement
on Form S−4 (File No. 000−23515) filed with the Commission on May 14, 1999).
10.5
Registrant's Employee Benefit Plan, dated as of December 9, 1996 (incorporated by reference to Exhibit 10.4 to the Registrant's Registration
Statement of Form S−4 (File No. 333−42355) filed with the Commission on December 16, 1997).
10.5.1
10.6
The Sports Authority 401(k) Retirement Plan, January 1, 2004 Restatement.*
Management Services Agreement, dated January 9, 1998, by and between the Registrant, Gart Bros. Sporting Goods Company,
Sportmart, Inc. and Leonard Green & Associates, L.P. (incorporated by reference to Exhibit 10.10 to the Registrant's Form 10−K (File
No. 000−23515) filed with the Commission on April 4, 2003).
II−3
10.6.1
First Amendment to Management Services Agreement, dated as of June 15, 2001, by and between the Registrant, Gart Bros. Sporting Goods
Company, Sportmart, Inc. and Leonard Green & Associates, L.P., dated as of January 9, 1998 (incorporated by reference to Exhibit 10.10.1
to the Registrant's Form 10−K (File No. 000−23515) filed with the Commission on April 4, 2003).
10.7
Tax Sharing Agreement, dated as of September 25, 1992, by and among TCH Corporation and its then subsidiaries, including the Registrant
(incorporated by reference to Exhibit 10.11 to the Registrant's Registration Statement on Form S−4 (File No. 333−42355) filed with the
Commission on December 16, 1997).
10.8
Sportmart, Inc. 1996 Restricted Stock Plan, as amended and restated, dated as of July 1, 1996 (incorporated by reference to Exhibit 10.40 to
Sportmart, Inc.'s Quarterly Report on Form 10−Q for the quarter ended July 28, 1996 (File No. 000−20672) filed with the Commission on
August 11, 1996).
10.9
Sportmart, Inc. Stock Option Plan, as amended (incorporated by reference to Exhibit 10.1 to Sportmart, Inc.'s Registration Statement on
Form S−1 (File No. 33−50726) filed with the Commission on September 11, 1996).
10.10
Letter Agreement dated July 2, 2002 between the Registrant and Larry Hochberg (incorporated by reference to Exhibit 10.17 to the
Registrant's Form 10−K (File No. 000−23515) filed with the Commission on April 4, 2003).
10.11
Deferred Compensation Plan of Gart Bros. Sporting Goods Company, dated as of January 1, 1999 (incorporated by reference to
Exhibit 10.37 to the Registrant's Annual Report on Form 10−K for the fiscal year ended January 29, 2000 (File No. 000−23515) filed with
the Commission on April 20, 2000).
10.12
Consulting and Non−Competition Agreement between Alvin Lubetkin and Gart Bros. Sporting Goods Company, dated as of June 7, 2001
(incorporated by reference to Exhibit 10.35 to the Registrant's Registration Statement on Form S−4 (File No. 333−59090) filed with the
Commission on April 17, 2001).
10.13
Consulting and Non−Competition Agreement between Marilyn Oshman and Gart Bros. Sporting Goods Company, dated as of June 7, 2001
(incorporated by reference to Exhibit 10.36 to the Registrant's Registration Statement on Form S−4 (File No. 333−59090) filed with the
Commission on April 17, 2001).
10.14
Amended and Restated Employment Agreement, dated as of August 4, 2003, between the Registrant and John Douglas Morton.*
10.15
Employment Agreement, dated as of August 4, 2003, between the Registrant and Thomas T. Hendrickson.*
10.16
Employment Agreement, dated as of August 4, 2003, between the Registrant and Elliot J. Kerbis.*
10.17
Employment Agreement, dated as of August 4, 2003, between the Registrant and Gregory A. Waters.*
10.18
Employment Agreement, dated as of August 4, 2003, between the Registrant and Nesa E. Hassanein.*
10.19
Agreement, effective as of December 30, 2003 between the Registrant and Martin E. Hanaka.*
II−4
10.20
Consulting Agreement, effective as of December 30, 2003 between the Registrant and Martin E. Hanaka.*
10.21
Form of Indemnification Agreement between the Registrant and its directors.*
10.22
Form of Indemnification Agreement between the Registrant and certain of its executive officers.*
10.23
2 Half 2003 Sports Authority Company Bonus Plan.*
10.24
Integration Bonus Plan adopted August 5, 2003.*
10.25
2003 Executive Incentive Plan of the former Sports Authority, Inc., effective as of February 2, 2003.*
10.26
Registrant's 2003 Performance Bonus Plan (attached as Annex G to the joint proxy statement/prospectus contained in Registrant's Form S−4
(File No. 333−104321) as amended or supplemented, filed with the Commission on June 20, 2003).
10.27
2000 Stock Option and Stock Award Plan, as amended (incorporated by reference to Exhibit A to TSA Stores, Inc.'s (formerly known as
The Sports Authority, Inc.) Proxy Statement (File No. 001−13426) filed with the Commission on April 26, 2002).
10.28
Director Stock Plan (incorporated by reference to Exhibit 10.1 to TSA Stores, Inc.'s (formerly known as The Sports Authority, Inc.)
Form 10−Q (File No. 001−13426) filed with the Commission on December 12, 2000).
10.29
Salaried Employee's Stock Option and Stock Award Plan (incorporated by reference to TSA Stores, Inc.'s (formerly known as The Sports
Authority, Inc.) Form 10−K (File No. 001−13426) filed with the Commission on April 4, 2003).
10.30
The Sports Authority, Inc. 2003 Long Term Incentive Compensation Plan (incorporated by reference to the Registrant's Form S−8/S−3 (File
No. 333−111751) filed with the Commission on January 7, 2004).
10.31
Amended and Restated Joint Venture Agreement, dated as of March 12,1999 between TSA Stores, Inc. and AEON Co. Ltd. (incorporated
by reference to Exhibit 10.19 to TSA Stores, Inc.'s (formerly known as The Sports Authority, Inc.) Form 10−K (File No. 001−13426) filed
with the Commission on April 23, 1999).
10.32
Amended and Restated Services Agreement dated as of March 26, 1999 between TSA Stores, Inc. and Mega Sports Co., Ltd. (incorporated
by reference to Exhibit 10.21 to TSA Stores, Inc.'s (formerly known as The Sports Authority, Inc.) Form 10−K (File No. 001−13426) filed
with the Commission on April 23, 1999).
10.33
Amended and Restated License Agreement dated as of March 26, 1999 between TSA Stores, Inc. (formerly known as The Sports
Authority, Inc.) and Mega Sports Co., Ltd. (incorporated by reference to Exhibit 10.20 to TSA Stores, Inc.'s Form 10−K (File
No. 001−13426) filed with the Commission on April 23, 1999).
10.33.1
nd
First Amendment to Amended and Restated License Agreement, dated April 2, 2004 between TSA Stores, Inc. (formerly known as The
Sports Authority, Inc.), The Sports Authority Michigan, Inc. and Mega Sports Co., Ltd.*
14.
The Sports Authority, Inc. Code of Business Conduct and Ethics.*
21.
List of Subsidiaries.*
II−5
23.1
Consent of Deloitte & Touche LLP.*
31.1
Certification pursuant to Rule 13A−14 or 15D−14 of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the
Sarbanes− Oxley Act of 2002, signed by the Chief Executive Officer.*
31.2
Certification pursuant to Rule 13A−14 or 15D−14 of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the
Sarbanes− Oxley Act of 2002, signed by the Chief Financial Officer.*
32.1
Statement required by 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of Sarbanes−Oxley Act of 2002, signed by the Chief
Executive Officer and the Chief Financial Officer.*
*
Filed as part of this Annual Report on Form 10−K.
II−6
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Exhibit 10.2
JOINDER AGREEMENT
THIS JOINDER AGREEMENT ("Agreement") dated as of December 18, 2003 is made and entered into by and among The Sports Authority, Inc., a
Delaware corporation (formerly known as Gart Sports Company) (hereinafter referred to as "Parent"), each of the Subsidiaries of Parent signatory hereto (such
Subsidiaries identified on the signatory pages hereof as "Existing Borrowers" are, together with Parent, hereinafter referred to collectively and individually,
jointly and severally, as the "Existing Borrowers," and each, individually, as an "Existing Borrower"), and New Borrowers (defined below), on the one hand,
and the lenders identified on the signature pages hereof (such lenders, together with their respective successors and assigns, are referred to hereinafter each
individually as a "Lender" and collectively as the "Lenders"), and The CIT Group/Business Credit, Inc., a New York corporation (in its capacity as agent for the
Lenders, the "Agent"), on the other hand. Initially capitalized terms used herein and not defined herein shall have the meanings assigned to them in the Financing
Agreement (defined below).
RECITALS:
A. Existing Borrowers and Lenders have previously entered into that certain Financing Agreement, dated as of August 4, 2003 (the "Financing
Agreement"), pursuant to which, subject to the terms and conditions set forth therein, the Lenders acting through the Agent have made certain credit facilities
available to the Existing Borrowers;
B. Existing Borrowers have informed Agent that the Parent intends to make the following fundamental corporate changes affecting certain of the Existing
Borrowers (collectively, the "Restructure"):
(a) Parent has already formed TSA Corporate Services, Inc., a Colorado corporation ("TSA Services"), and TSA Gift Card, Inc., a Virginia
corporation ("TSA Gift Card", and collectively, jointly and severally, with TSA Services, "New Borrowers" and each, individually, a "New
Borrower");
(b) Sportmart, Inc., a Delaware corporation, will be merged with and into its parent, Gart Bros. Sporting Goods Co., a Colorado corporation
("GBSGC");
(c) GBSGC will be merged with and into TSA Stores, Inc., a Delaware corporation ("TSA Stores");
(d) Oshman's Sporting Goods, Inc., a Delaware corporation ("Oshman's"), will be merged with and into TSA Stores;
(e) Oshman's Sporting Goods, Inc.—Services, a Delaware corporation, a subsidiary of Oshman's, will be merged with and into TSA Services;
(f) TSA Stores will contribute all of its domestic intellectual property rights to The Sports Authority Michigan, Inc., a Michigan corporation
("TSA Michigan");
(g) TSA Michigan will contribute its intellectual property rights (including, without limitation, such rights acquired from TSA Stores) to TSA
Services;
(h) TSA Stores will contribute its sole Michigan store (acquired by merger with Oshman's) to TSA Michigan;
C. In connection with the Restructure, Existing Borrowers have requested that the Agent and the Lenders permit New Borrowers to be added and joined as
additional Borrowers under the Financing Agreement and, subject to the terms and conditions set forth herein, Agent and Lenders have agreed to permit such
additions; and
D. Existing Borrowers, New Borrowers, Lenders and the Agent desire to enter into this Agreement in order to provide for the joinder of New Borrower as
"Borrowers" under the Financing Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants and conditions herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.
Joinder. Each of TSA Services and TSA Gift Card hereby agrees as follows in favor of the Agent and Lenders:
(a) Effective as of the date hereof, each New Borrower hereby agrees to become a Borrower under, and to bind itself to the Financing
Agreement and each other Loan Document to which the Borrowers are bound generally as of the date hereof, and, in such capacity, to jointly and
severally assume and bind itself to all debts, liabilities and obligations of the Borrowers thereunder (including, without limitation, all Obligations).
(b) In furtherance but without limitation of the foregoing, as security for the prompt payment in full of all Obligations, each of the New
Borrowers hereby pledges and grants to the Agent on behalf of the Lenders a continuing general lien upon, and security interest in, all their Collateral.
To facilitate the foregoing grant of a security interest, each New Borrower agrees to execute (and, if required by Agent, acknowledge) and deliver to
the Agent such instruments and agreements as the Agent may require in connection herewith, including without limitation, UCC−1 financing
statements, collateral assignments, legal opinions, resolutions, incumbency certificates, good standing certificates, qualifications to do business and
other, related documents, instruments, certificates or agreements as Agent may reasonably request to give effect to this joinder of each New Borrower
as a Borrower.
(c) To induce the Agent and Lenders to accept each New Borrower as a Borrower, New Borrower hereby agrees to and makes each and every
representation and warranty made in the Financing Agreement and the other Loan Documents in respect of the Borrowers generally, as fully and
completely as if each New Borrower were an original party thereto (except to the extent that such representations and warranties relate solely to an
earlier date), subject, however, to the disclosures set forth on Schedule 1(c) attached hereto.
2.
Conditions to the Effectiveness of this Agreement.
(a) Conditions Precedent. This Agreement shall not become effective unless and until the Agent shall have received each of the documents and
other items listed in Schedule 2(a) attached hereto, each to be in form and substance satisfactory to the Agent and its counsel, and, as applicable, duly
executed and delivered by the party or parties thereto.
(b) Condition Subsequent. On or before January 31, 2004 (the "Restructure Deadline"), the Borrowers shall either (i) consummate the
Restructure (including, without limitation, delivery to the Agent of the stock certificates of TSA Michigan and New Borrowers) or (ii) tender to the
Agent the stock certificates of TSA Michigan, The Sports Authority Florida, Inc., a Florida corporation, and Authority International, Inc., a Delaware
corporation. The failure by Borrowers to comply with the foregoing condition by the Restructure Deadline shall constitute an Event of Default under
the Financing Agreement.
3.
Miscellaneous.
(a) Effect of Agreement. All references to Borrowers in the Financing Agreement and the other Loan Documents shall be deemed to include each
New Borrower with the same force and effect as if each New Borrower were an original signatory thereto. The Financing Agreement shall be read in
conjunction with this Agreement. This Agreement shall be considered a Loan Document.
(b) Reaffirmation of Representations and Warranties. Subject to the disclosures set forth on Schedule 1(a), each Existing Borrower hereby
ratifies and reaffirms all of the representations and warranties set forth in the Financing Agreement and the other Loan Documents, except to the
extent that such representations and warranties relate to an earlier date.
(c) Ratification. Each Existing Borrower hereby restates, ratifies and reaffirms each and every term and condition set forth in the Financing
Agreement and the Loan Documents effective as of the date hereof.
(d) Estoppel. To induce the Agent and Lenders to enter into this Agreement, Borrowers hereby acknowledge and agree that, as of the date
hereof, no Default or Event of Default has occurred and is continuing and, in addition, there exists no right of offset, defense, counterclaim or
objection in favor of any Borrower in respect to any Obligations.
(e) Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California and all
applicable federal laws of the United States of America.
(f) Costs and Expenses. Borrowers agree to pay on demand all reasonable costs and expenses of the Agent in connection with the preparation,
execution, delivery and enforcement of this Agreement and all other agreements and instruments executed in connection herewith, including, without
limitation, the reasonable fees and out−of−pocket expenses of the Agent's counsel and the cost of any searches respecting the New Borrowers or their
assets.
(g) Counterparts; Effectiveness. This Agreement may be executed in any number of counterparts and by different parties on separate
counterparts, including by facsimile signature, each of which when so executed and delivered shall be deemed to be an original. All such counterparts,
taken together, shall constitute but one and the same Agreement. This Agreement shall become effective upon the execution of a counterpart of this
Agreement by each of the parties hereto.
[the remainder of this page left blank intentionally; signatures to follow]
IN WITNESS WHEREOF, the parties hereto have caused this Joinder Agreement to be executed and delivered by their proper and duly authorized officers
as of the date set forth above.
AGENT:
THE CIT GROUP/BUSINESS CREDIT, INC., a New York corporation
By:
Name:
Title:
PARENT:
THE SPORTS AUTHORITY, INC., a Delaware corporation
By:
Name:
Title:
EXISTING BORROWERS:
GART BROS. SPORTING GOODS COMPANY, a Colorado corporation
By:
Name:
Title:
OSHMAN'S SPORTING GOODS, INC., a Delaware corporation
By:
Name:
Title:
SPORTMART, INC., a Delaware corporation
By:
Name:
Title:
THE SPORTS AUTHORITY FLORIDA, INC., a Florida corporation
By:
Name:
Title:
THE SPORTS AUTHORITY MICHIGAN, INC., a Michigan corporation
By:
Name:
Title:
TSA STORES, INC., a Delaware corporation
By:
Name:
Title:
NEW BORROWERS:
TSA CORPORATE SERVICES, INC., a Colorado corporation
By:
Name:
Title:
TSA GIFT CARD, INC., a Virginia corporation
By:
Name:
Title:
LENDERS:
THE CIT GROUP/BUSINESS CREDIT, INC., a New York corporation
By:
Name:
Title:
FLEET RETAIL FINANCE INC., a Delaware corporation
By:
Name:
Title:
BANK OF AMERICA, N.A., a national association organized under the laws of
the United States
By:
Name:
Title:
WELLS FARGO FOOTHILL, LLC, a California limited liability company
By:
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation
By:
Name:
Title:
NATIONAL CITY COMMERCIAL FINANCE, INC., an Ohio corporation
By:
Name:
Title:
CONGRESS FINANCIAL CORPORATION (SOUTHWEST), a Texas
corporation
By:
Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION, a national association
organized under the laws of the United States
By:
Name:
Title:
JPMORGAN CHASE BANK, a New York corporation
By:
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION, a national association organized
under the laws of the United States
By:
Name:
Title:
AmSOUTH BANK, an Alabama corporation
By:
Name:
Title:
Schedule 1(c)
NONE
Schedule 2(a)
•
That certain Stock Pledge Agreement, dated as of December 18, 2003, by and between The Sports Authority Michigan, Inc. and the Agent;
•
That certain Stock Pledge Agreement, dated as of December 18, 2003, by and between TSA Services and the Agent;
•
Trademark Collateral Assignment, dated as of December 18, 2003, by TSA Gift Card in favor of the Agent;
•
Patent Collateral Assignment, dated as of December 18, 2003, by TSA Gift Card in favor of the Agent;
•
Copyright Collateral Assignment, dated as of December 18, 2003, by TSA Gift Card in favor of the Agent;
•
Trademark Collateral Assignment, dated as of December 18, 2003, by TSA Services in favor of the Agent;
•
Patent Collateral Assignment, dated as of December 18, 2003, by TSA Services in favor of the Agent;
•
Copyright Collateral Assignment, dated as of December 18, 2003, by TSA Services in favor of the Agent;
•
UCC−1 Financing Statement(s) duly prepared and delivered by TSA Services;
•
Certificate of the Secretary of TSA Services certifying to the following: (1) a copy of resolutions of the board of directors of TSA Services
authorizing the execution, delivery and performance of this Agreement, the other Loan Documents, and the transactions contemplated
thereby, and such other documents relating thereto as the Agent reasonably may request; (2) a certified copy of the articles of incorporation
of TSA Services; (3) a certified copy of the by−laws of TSA Services; and (4) signature and incumbency certificates of TSA Services's
officers who are authorized to execute this Agreement and the other Loan Documents to which TSA Services is to be a party;
•
Certificate of Good Standing from TSA Services's jurisdiction of organization and the secretary of state of each jurisdiction in which TSA
Services is qualified to do business, each dated a recent date prior to the date of this Agreement;
•
UCC−1 Financing Statement(s) duly prepared and delivered by TSA Gift Card;
•
Certificate of the Secretary of TSA Gift Card certifying to the following: (1) a copy of resolutions of the board of directors of TSA Gift
Card authorizing the execution, delivery and performance of this Agreement, the other Loan Documents, and the transactions contemplated
thereby, and such other documents relating thereto as the Agent reasonably may request; (2) a certified copy of the articles of incorporation
of TSA Gift Card; (3) a certified copy of the by−laws of TSA Gift Card; and (4) signature and incumbency certificates of TSA Gift Card's
officers who are authorized to execute this Agreement and the other Loan Documents to which TSA Gift Card is to be a party;
•
Certificate of Good Standing from TSA Gift Card's jurisdiction of organization and the secretary of state of each jurisdiction in which TSA
Gift Card is qualified to do business, each dated a recent date prior to the date of this Agreement; and
•
Such opinions of counsel for each of TSA Services and TSA Gift Card as the Agent shall request, each such opinion to be in a form, scope,
and substance satisfactory to the Bank and its counsel.
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JOINDER AGREEMENT
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Exhibit 10.5.1
THE SPORTS AUTHORITY
401(k) RETIREMENT PLAN
January 1, 2004 Restatement
TABLE OF CONTENTS
PREAMBLE
ARTICLE I
DEFINITIONS
1.1
1.2
Plan Definitions
Interpretation
1
6
ARTICLE II
SERVICE
2.1
2.2
2.3
2.4
2.5
2.6
2.7
2.8
2.9
2.10
Special Definitions
Crediting of Hours of Service
Limitations on Crediting of Hours of Service
Department of Labor Rules
Crediting of Continuous Service
Eligibility Service
Years of Vesting Service
Crediting of Hours of Service with Respect to Short Computation Periods
Crediting of Service on Transfer or Amendment
Crediting of Service to Leased Employees
6
7
8
8
9
9
9
9
9
10
ARTICLE III
ELIGIBILITY
3.1
3.2
3.3
3.4
3.5
Eligibility
Transfers of Employment
Reemployment
Notification Concerning New Eligible Employees
Effect and Duration
10
10
11
11
11
ARTICLE IV
TAX−DEFERRED CONTRIBUTIONS
4.1
4.2
4.3
4.4
4.5
4.6
4.7
Tax−Deferred Contributions
Amount of Tax−Deferred Contributions
Amendments to Reduction Authorization
Suspension of Tax−Deferred Contributions
Resumption of Tax−Deferred Contributions
Delivery of Tax−Deferred Contributions
Vesting of Tax−Deferred Contributions
11
11
11
12
12
12
12
ARTICLE V
AFTER−TAX AND ROLLOVER CONTRIBUTIONS
5.1
5.2
5.3
Prior After−Tax Contributions
Rollover Contributions
Vesting of After−Tax and Rollover Contributions
12
12
13
ARTICLE VI
EMPLOYER CONTRIBUTIONS
6.1
6.2
6.3
6.4
6.5
6.6
6.7
6.8
6.9
6.10
6.11
Contribution Period
Qualified Nonelective Contributions
Allocation of Qualified Nonelective Contributions
Amount and Allocation of Regular Matching Contributions
Additional Discretionary Matching Contributions
Verification of Amount of Employer Contributions by the Sponsor
Payment of Employer Contributions
Allocation Requirements for Employer Contributions
Vesting of Employer Contributions
Election of Former Vesting Schedule
Forfeitures to Reduce Employer Contributions
ARTICLE VII
13
13
13
14
14
14
14
15
15
15
16
LIMITATIONS ON CONTRIBUTIONS
7.1
7.2
7.3
7.4
7.5
7.6
7.7
7.8
7.9
7.10
7.11
7.12
7.13
7.14
Definitions
Code Section 402(g) Limit
Distribution of Excess Deferrals
Limitation on Tax−Deferred Contributions of Highly Compensated Employees
Determination and Allocation of Excess Tax−Deferred Contributions Among Highly Compensated
Employees
Distribution of Excess Tax−Deferred Contributions
Limitation on Matching Contributions of Highly Compensated Employees
Determination and Allocation of Excess Matching Contributions Among Highly Compensated
Employees
Forfeiture or Distribution of Excess Contributions
Treatment of Forfeited Matching Contributions
Determination of Income or Loss
Code Section 415 Limitations on Crediting of Contributions and Forfeitures
Application of Code Section 415 Limitations Where Participant is Covered Under Other Qualified
Defined Contribution Plan
Scope of Limitations
16
18
19
19
20
21
21
22
23
23
23
24
24
25
ARTICLE VIII
TRUST FUNDS AND ACCOUNTS
8.1
8.2
8.3
8.4
8.5
8.6
General Fund
Investment Funds
Loan Investment Fund
Income on Trust
Accounts
Sub−Accounts
25
25
25
25
25
26
ARTICLE IX
LIFE INSURANCE CONTRACTS
9.1
No Life Insurance Contracts
26
ARTICLE X
DEPOSIT AND INVESTMENT OF CONTRIBUTIONS
10.1
10.2
10.3
10.4
Future Contribution Investment Elections
Deposit of Contributions
Election to Transfer Between Funds
404(c) Protection
26
26
26
26
ARTICLE XI
CREDITING AND VALUING ACCOUNTS
11.1
11.2
11.3
11.4
11.5
Crediting Accounts
Valuing Accounts
Plan Valuation Procedures
Finality of Determinations
Notification
27
27
27
27
28
ARTICLE XII
LOANS
12.1
12.2
12.3
12.4
12.5
12.6
12.7
12.8
12.9
Application for Loan
Reduction of Account Upon Distribution
Requirements to Prevent a Taxable Distribution
Administration of Loan Investment Fund
Default
Deemed Distribution Under Code Section 72(p)
Treatment of Outstanding Balance of Loan Deemed Distributed Under Code Section 72(p)
Special Rules Applicable to Loans
Loans Granted Prior to Amendment
28
28
28
30
30
30
30
31
31
ARTICLE XIII
WITHDRAWALS WHILE EMPLOYED
13.1
13.2
13.3
13.4
13.5
13.6
13.7
13.8
13.9
13.10
Non−Hardship Withdrawals of After−Tax Contributions
Non−Hardship
Withdrawals of Rollover Contributions
1
Age 59 /2 Withdrawals
Non−Hardship Withdrawals of Employer Contributions
Overall Limitations on Non−Hardship Withdrawals
Hardship Withdrawals
Hardship Determination
Satisfaction of Necessity Requirement for Hardship Withdrawals
Conditions and Limitations on Hardship Withdrawals
Order of Withdrawal from a Participant's Sub−Accounts
ARTICLE XIV
TERMINATION OF EMPLOYMENT AND SETTLEMENT DATE
32
32
32
32
32
33
33
33
34
34
14.1
14.2
14.3
14.4
14.5
Termination of Employment and Settlement Date
Separate Accounting for Non−Vested Amounts
Disposition of Non−Vested Amounts
Treatment of Forfeited Amounts
Recrediting of Forfeited Amounts
34
34
35
36
36
ARTICLE XV
DISTRIBUTIONS
15.1
15.2
15.3
15.4
15.5
15.6
15.7
15.8
15.9
15.10
Distributions to Participants
Partial Distributions to Retired or Terminated Participants
Distributions to Beneficiaries
Cash Outs and Participant Consent
Required Commencement of Distribution
Reemployment of a Participant
Restrictions on Alienation
Facility of Payment
Inability to Locate Payee
Distribution Pursuant to Qualified Domestic Relations Orders
36
37
37
37
37
38
38
38
38
38
ARTICLE XVI
FORM OF PAYMENT
16.1
16.2
16.3
16.4
16.5
Form of Payment
Direct Rollover
Notice Regarding Forms of Payment
Distribution in the Form of Employer Stock
Elimination of Optional Forms of Payment
39
39
39
40
40
ARTICLE XVII
BENEFICIARIES
17.1
17.2
Designation of Beneficiary
Spousal Consent Requirements
40
40
ARTICLE XVIII
ADMINISTRATION
18.1
18.2
18.3
18.4
18.5
18.6
18.7
Authority of the Sponsor
Discretionary Authority
Action of the Sponsor
Claims Review Procedure
Qualified Domestic Relations Orders
Indemnification
Actions Binding
41
41
41
41
42
43
43
ARTICLE XIX
AMENDMENT AND TERMINATION
19.1
19.2
19.3
19.4
19.5
Amendment
Limitation on Amendment
Termination
Reorganization
Withdrawal of an Employer
43
43
43
44
45
ARTICLE XX
ADOPTION BY OTHER ENTITIES
20.1
20.2
Adoption by Related Companies
Effective Plan Provisions
45
45
ARTICLE XXI
MISCELLANEOUS PROVISIONS
21.1
21.2
21.3
21.4
21.5
21.6
21.7
21.8
21.9
21.10
21.11
21.12
21.13
21.14
21.15
21.16
21.17
No Commitment as to Employment
Benefits
No Guarantees
Expenses
Precedent
Duty to Furnish Information
Merger, Consolidation, or Transfer of Plan Assets
Back Pay Awards
Condition on Employer Contributions
Return of Contributions to an Employer
Validity of Plan
Trust Agreement
Parties Bound
Application of Certain Plan Provisions
Merged Plans
Transferred Funds
Veterans Reemployment Rights
45
45
46
46
46
46
46
46
47
47
47
47
47
47
48
48
48
21.18
21.19
Delivery of Cash Amounts
Written Communications
48
48
ARTICLE XXII
TOP−HEAVY PROVISIONS
22.1
22.2
22.3
22.4
Definitions
Applicability
Minimum Employer Contribution
Accelerated Vesting
48
50
50
51
APPENDIX
SECTION I
DEFINITIONS
1.3
Definitions
53
SECTION II
GENERAL RULES
2.11
2.12
2.13
Effective Date
Precedence
Requirements of Treasury Regulations Incorporated
53
53
54
SECTION III
TIME AND MANNER OF DISTRIBUTION
3.6
3.7
3.8
Required Beginning Date
Death of Participant Before Distributions Begin
Forms of Distribution
54
54
54
SECTION IV
REQUIRED MINIMUM DISTRIBUTIONS
DURING PARTICIPANT'S LIFETIME
4.8
4.9
Amount of Required Minimum Distribution For Each Distribution Calendar Year
Lifetime Required Minimum Distributions Continue Through Year of Participant's Death
55
55
SECTION V
REQUIRED MINIMUM DISTRIBUTIONS
AFTER PARTICIPANT'S DEATH
5.4
5.5
Death On or After Date Distributions Begin
Death Before Date Distributions Begin
55
56
PREAMBLE
The Sports Authority 401(k) Retirement Plan, originally effective as of December 1, 1994, is hereby amended and restated in its entirety. This amendment
and restatement shall be effective as of January 1, 2004. The Plan, as amended and restated hereby, is intended to qualify as a profit−sharing plan under Code
Section 401(a), and includes a cash or deferred arrangement that is intended to qualify under Code Section 401(k). The Plan is maintained for the exclusive
benefit of eligible employees and their beneficiaries.
Notwithstanding any other provision of the Plan to the contrary, a Participant's vested interest in his Account under the Plan on and after the effective date
of this amendment and restatement shall be not less than his vested interest in his account on the day immediately preceding the effective date. Any provision of
the Plan that restricted or limited withdrawals, loans, or other distributions, or otherwise required separate accounting with respect to any portion of a
Participant's Account immediately prior to the later of the effective date of this amendment and restatement or the date this amendment and restatement is
adopted and the elimination of which would adversely affect the qualification of the Plan under Code Section 401(a) shall continue in effect with respect to such
portion of the Participant's Account as if fully set forth in this amendment and restatement.
Any sample amendment adopted by the Sponsor prior to this amendment and restatement for purposes of complying with EGTRRA shall continue in effect
after this amendment and restatement.
Effective as of January 1, 2004 (the "merger date"), the Gart Sports Company Retirement Savings Plan (the "merged plan") is merged into and made a part
of the Plan. All assets and liabilities of the "merged plan" are transferred to and made a part of the Plan. Each Employee who was eligible to participate in the
"merged plan" immediately prior to the "merger date" shall continue to be eligible to participate in the Plan on and after the "merger date". In no event shall a
Participant's vested interest in his Sub−Account attributable to amounts transferred to the Plan from the "merged plan" (his "transferee Sub−Account") on and
after the "merger date" be less than his vested interest in his account under the "merged plan" immediately prior to the "merger date". Notwithstanding any other
provision of the Plan to the contrary, a Participant's service credited for eligibility and vesting purposes under the "merged plan" as of the "merger date", if any,
shall be included as Eligibility and Vesting Service under the Plan to the extent Eligibility and Vesting Service are credited under the Plan.
ARTICLE I
DEFINITIONS
1.1 Plan Definitions
As used herein, the following words and phrases have the meanings hereinafter set forth, unless a different meaning is plainly required by the context:
An "Account" means the account maintained by the Trustee in the name of a Participant that reflects his interest in the Trust and any Sub−Accounts
maintained thereunder, as provided in Article VIII.
An "Additional Discretionary Matching Contribution" means any Matching Contribution made to the Plan at an Employer's discretion in addition to the
Employer's Regular Matching Contribution as provided in Article VI.
The "Administrator" means the Sponsor unless the Sponsor designates another person or persons to act as such.
An "After−Tax Contribution" means any after−tax employee contribution made by a Participant to the Plan as may be permitted under Article V or as may
have been permitted under the terms of the Plan prior to this amendment and restatement or any after−tax employee contribution made by a Participant to another
plan that is transferred directly to the Plan.
The "Beneficiary" of a Participant means the person or persons entitled under the provisions of the Plan to receive distribution hereunder in the event the
Participant dies before receiving distribution of his entire interest under the Plan.
A Participant's "Benefit Payment Date" means the first day on which all events have occurred which entitle the Participant to receive payment of his
benefit.
A "Break in Service" means any "computation period" (as defined in Section 2.1 for purposes of determining years of Vesting Service) during which a
person completes fewer than 501 Hours of Service except that no person shall incur a Break in Service solely by reason of temporary absence from work not
exceeding 12 months resulting from illness, layoff, or other cause if authorized in advance by an Employer or a Related Company pursuant to its uniform leave
policy, if his employment shall not otherwise be terminated during the period of such absence.
The "Code" means the Internal Revenue Code of 1986, as amended from time to time. Reference to a Code section includes such section and any
comparable section or sections of any future legislation that amends, supplements, or supersedes such section.
The "Compensation" of a Participant for any period means the wages as defined in Code Section 3401(a), determined without regard to any rules that limit
compensation included in wages based on the nature or location of the employment or services performed, and all other payments made to him for such period
for services as an Employee for which his Employer is required to furnish the Participant a written statement under Code Sections 6041(d), 6051(a)(3), and 6052
(commonly referred to as W−2 earnings), but excluding moving expenses incurred by the Participant to the extent that at the time of payment it is reasonable to
believe that such amounts are deductible by the Participant under Code Section 217.
Notwithstanding the foregoing, Compensation shall not include the following:
•
bonuses.
•
commissions.
•
travel reimbursements, company auto expense and specific taxable incentive gifts.
In addition to the foregoing, Compensation includes any amount that would have been included in the foregoing description, but for the Participant's
election to defer payment of such amount under Code Section 125, 402(e)(3), 402(h)(1)(B), 403(b), or 457(b) and certain contributions described in Code
Section 414(h)(2) that are picked up by the employing unit and treated as employer contributions. Effective for Plan Years beginning on and after January 1,
2001, Compensation shall also include any amount that is not included in the Participant's taxable gross income pursuant to Code Section 132(f).
In no event, however, shall the Compensation of a Participant taken into account under the Plan for any Plan Year exceed $150,000 (subject to adjustment
annually as provided in Code Sections 401(a)(17)(B) and 415(d); provided, however, that the dollar increase in effect on January 1 of any calendar year, if any, is
effective for Plan Years beginning in such calendar year). If the Compensation of a Participant is determined over a period of time that contains fewer than 12
calendar months, then the annual compensation limitation described above shall be adjusted with respect to that Participant by multiplying the annual
compensation limitation in effect for the Plan Year by a fraction the numerator of which is the number of full months in the period and the denominator of which
is 12; provided, however, that no proration is required for a Participant who is covered under the Plan for less than one full Plan Year if the formula for
allocations is based on Compensation for a period of at least 12 months.
A "Contribution Period" means the period specified in Article VI for which Employer Contributions shall be made.
"Disabled" means a Participant can no longer continue in the service of his employer because of a mental or physical condition that is likely to result in
death or is expected to continue for a period of at least six months. A Participant shall be considered Disabled only if the Administrator determines he is Disabled
based on a written certificate of a physician acceptable to it.
An "Eligible Employee" means any Employee who has met the eligibility requirements of Article III to participate in the Plan.
The "Eligibility Service" of an employee means the period or periods of service credited to him under the provisions of Article II for purposes of
determining his eligibility to participate in the Plan as may be required under Article III.
An "Employee" means any person who is classified by an Employer, in accordance with its payroll records, as an employee of the Employer, other than any
such person who is either (i) covered by a collective bargaining agreement that does not specifically provide for coverage under the Plan or (ii) a nonresident
alien who does not receive United States source income. Any individual who is not treated by an Employer as a common law employee of the Employer shall be
excluded from Plan participation even if a court or administrative agency determines that such individual is a common law employee and not an independent
contractor.
An "Employer" means the Sponsor and any entity which has adopted the Plan as may be provided under Article XX, including Authority International; The
Sports Authority Michigan, Inc.; and The Sports Authority Florida, Inc.
An "Employer Contribution" means the amount, if any, that an Employer contributes to the Plan as may be provided under Article VI or Article XXII.
An "Enrollment Date" means the first day of each calendar month.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time. Reference to a section of ERISA includes such
section and any comparable section or sections of any future legislation that amends, supplements, or supersedes such section.
The "General Fund" means a Trust Fund maintained by the Trustee as required to hold and administer any assets of the Trust that are not allocated among
any separate Investment Funds as may be provided in the Plan or the Trust Agreement. No General Fund shall be maintained if all assets of the Trust are
allocated among separate Investment Funds.
A "Highly Compensated Employee" means any Employee or former Employee who is a "highly compensated active employee" or a "highly compensated
former employee" as defined hereunder.
A "highly compensated active employee" includes any Employee who performs services for an Employer or any Related Company during the Plan Year and
who (i) was a five percent owner at any time during the Plan Year or the "look back year" or (ii) received "compensation" from the Employers and Related
Companies during the "look back year" in excess of $80,000 (subject to adjustment annually at the same time and in the same manner as under Code
Section 415(d)) and was in the top paid group of employees for the "look back year". An Employee is in the top paid group of employees if he is in the top
20 percent of the employees of his Employer and all Related Companies when ranked on the basis of "compensation" paid during the "look back year".
A "highly compensated former employee" includes any Employee who (1) separated from service from an Employer and all Related Companies (or is
deemed to have separated from service from an Employer and all Related Companies) prior to the Plan Year, (2) performed no services for an Employer or any
Related Company during the Plan Year, and (3) was a "highly compensated active employee" for either the separation year or any Plan Year ending on or after
the date the Employee attains age 55, as determined under the rules in effect under Code Section 414(q) for such year.
The determination of who is a Highly Compensated Employee hereunder, including determinations as to the number and identity of employees in the top
paid group, shall be made in accordance with the provisions of Code Section 414(q) and regulations issued thereunder.
For purposes of this definition, the following terms have the following meanings:
(a) An employee's "compensation" means compensation as defined in Code Section 415(c)(3) and regulations issued thereunder.
(b) The "look back year" means the 12−month period immediately preceding the Plan Year.
An "Hour of Service" with respect to a person means each hour, if any, that may be credited to him in accordance with the provisions of Article II.
An "Investment Fund" means any separate investment Trust Fund maintained by the Trustee as may be provided in the Plan or the Trust Agreement or any
separate investment fund maintained by the Trustee, to the extent that there are Participant Sub−Accounts under such funds, to which assets of the Trust may be
allocated and separately invested.
A "Matching Contribution" means any Employer Contribution made to the Plan on account of a Participant's Tax−Deferred Contributions as provided in
Article VI, including Regular Matching Contributions and Additional Discretionary Matching Contributions.
The "Normal Retirement Date" of an employee means the date he attains age 65.
A "Participant" means any person who has an Account in the Trust.
The "Plan" means the Sports Authority 401(k) Retirement Plan, as from time to time in effect.
A "Plan Year" means the 12−consecutive−month period ending each December 31.
A "Predecessor Employer" means any company that is a predecessor organization to an Employer under the Code. In addition, a Predecessor Employer
includes the following: Casey Sporting Goods Co., Dave Cook Sporting Goods Co., Sportsmart, Inc., Oshman's Sporting Goods, Inc., Gart Sports Company, and
Kmart Corporation.
"Prior Employer Contributions" means that portion of a Participant's Account that are attributable to employer contributions made on his behalf prior to
January 1, 2003.
"Prior Nonelective Contributions" means the portion of a Participant's Account that is attributable to nonelective contributions made by the Employer on
his behalf prior to January 1, 2004.
"Prior Safe Harbor Contributions" means the portion of a Participant's Account that is attributable to safe harbor contributions made on his behalf prior to
January 1, 2004.
A "Qualified Nonelective Contribution" means any Employer Contribution made to the Plan as provided in Article VI that is 100 percent vested when
made and may be taken into account to satisfy the limitations on Tax−Deferred Contributions and/or Matching Contributions made by or on behalf of Highly
Compensated Employees under Article VII.
A "Regular Matching Contribution" means any Matching Contribution made to the Plan at the rate specified in Article VI, other than an Additional
Discretionary Matching Contribution.
A "Related Company" means any corporation or business, other than an Employer, which would be aggregated with an Employer for a relevant purpose
under Code Section 414.
A Participant's "Required Beginning Date" means the following:
(a) for a Participant who is not a "five percent owner", April 1 of the calendar year following the calendar year in which occurs the later of the
Participant's (i) attainment of age 70 1/2 or (ii) Settlement Date.
(b) for a Participant who is a "five percent owner", April 1 of the calendar year following the calendar year in which the Participant attains age
701/2.
A Participant is a "five percent owner" if he is a five percent owner, as defined in Code Section 416(i) and determined in accordance with Code Section 416,
but without regard to whether the Plan is top−heavy, for the Plan Year ending with or within the calendar year in which the Participant attains age 70 1/2. The
Required Beginning Date of a Participant who is a "five percent owner" hereunder shall not be redetermined if the Participant ceases to be a five percent owner
as defined in Code Section 416(i) with respect to any subsequent Plan Year.
A "Rollover Contribution" means any rollover contribution to the Plan made by a Participant as may be permitted under Article V.
The "Settlement Date" of a Participant means the date on which a Participant's interest under the Plan becomes distributable in accordance with Article XV.
The "Sponsor" means The Sports Authority, Inc., and any successor thereto.
A "Sub−Account" means any of the individual sub−accounts of a Participant's Account that is maintained as provided in Article VIII.
A "Tax−Deferred Contribution" means the amount contributed to the Plan on a Participant's behalf by his Employer in accordance with Article IV.
The "Trust" means the trust, custodial accounts, annuity contracts, or insurance contracts maintained by the Trustee under the Trust Agreement.
The "Trust Agreement" means any agreement or agreements entered into between the Sponsor and the Trustee relating to the holding, investment, and
reinvestment of the assets of the Plan, together with all amendments thereto and shall include any agreement establishing a custodial account, an annuity contract,
or an insurance contract (other than a life, health or accident, property, casualty, or liability insurance contract) for the investment of assets if the custodial
account or contract would, except for the fact that it is not a trust, constitute a qualified trust under Code Section 401.
The "Trustee" means the trustee or any successor trustee which at the time shall be designated, qualified, and acting under the Trust Agreement and shall
include any insurance company that issues an annuity or insurance contract pursuant to the Trust Agreement or any person holding assets in a custodial account
pursuant to the Trust Agreement. The Sponsor may designate a person or persons other than the Trustee to perform any responsibility of the Trustee under the
Plan, other than trustee responsibilities as defined in ERISA Section 405(c)(3), and the Trustee shall not be liable for the performance of such person in carrying
out such responsibility except as otherwise provided by ERISA. The term Trustee shall include any delegate of the Trustee as may be provided in the Trust
Agreement.
A "Trust Fund" means any fund maintained under the Trust by the Trustee.
A "Valuation Date" means the date or dates designated by the Sponsor and communicated in writing to the Trustee for the purpose of valuing the General
Fund and each Investment Fund and adjusting Accounts and Sub−Accounts hereunder, which dates need not be uniform with respect to the General Fund, each
Investment Fund, Account, or Sub−Account; provided, however, that the General Fund and each Investment Fund shall be valued and each Account and
Sub−Account shall be adjusted no less often than once annually.
The "Vesting Service" of an employee means the period or periods of service credited to him under the provisions of Article II for purposes of determining
his vested interest in his Employer Contributions Sub−Account, if Employer Contributions are provided for under either Article VI or Article XXII.
1.2 Interpretation
Where required by the context, the noun, verb, adjective, and adverb forms of each defined term shall include any of its other forms. Wherever used herein,
the masculine pronoun shall include the feminine, the singular shall include the plural, and the plural shall include the singular.
ARTICLE II
SERVICE
2.1 Special Definitions
For purposes of this Article, the following terms have the following meanings.
A "computation period" for purposes of determining an employee's years of Vesting Service means each Plan Year; provided, however, that if an
employee first completed an Hour of Service prior to the effective date of the Plan, a Plan Year shall not mean any short Plan Year beginning on the effective
date of the Plan, if any, but shall mean any 12−consecutive−month period beginning before the effective date of the Plan that would have been a Plan Year if the
Plan had been in effect.
The "continuous service" of an employee means the continuous service credited to him in accordance with the provisions of this Article.
The "employment commencement date" of an employee means the date he first completes an Hour of Service.
A "maternity/paternity absence" means a person's absence from employment with an Employer or a Related Company because of the person's pregnancy,
the birth of the person's child, the placement of a child with the person in connection with the person's adoption of the child, or the caring for the person's child
immediately following the child's birth or adoption. A person's absence from employment will not be considered a maternity/paternity absence unless the person
furnishes the Administrator such timely information as may reasonably be required to establish that the absence was for one of the purposes enumerated in this
paragraph and to establish the number of days of absence attributable to such purpose.
The "reemployment commencement date" of an employee means the first date following a "severance date" on which he again completes an Hour of
Service.
The "severance date" of an employee means the earlier of (i) the date on which he retires, dies, or his employment with all Employers and Related
Companies is otherwise terminated, or (ii) the first anniversary of the first date of a period during which he is absent from work with all Employers and Related
Companies for any other reason; provided, however, that if he terminates employment with or is absent from work with all Employers and Related Companies on
account of service with the armed forces of the United States, he shall not incur a "severance date" if he is eligible for reemployment rights under the Uniformed
Services Employment and Reemployment Rights Act of 1994 and he returns to work with an Employer or a Related Company within the period during which he
retains such reemployment rights, but, if he does not return to work within such period, his "severance date" shall be the earlier of the date which is one year after
his absence commenced or the last day of the period during which he retains such reemployment rights; and provided, further, that if an employee is on a
"maternity/paternity absence" beyond the first anniversary of the first day of such absence, he shall not incur a "severance date" if he returns to employment
before the second anniversary of the first day of such absence but, if he does not return within such period, his "severance date" shall be the second anniversary
of the first date of such "maternity/paternity absence"; and provided, further, that if an employee is on a paid leave of absence beyond the first anniversary of the
first day of such absence, he shall not incur a "severance date" if he returns to employment before the second anniversary of the first day of such absence but, if
he does not return within such period, his "severance date" shall be the first anniversary of the first date of such paid leave of absence.
2.2 Crediting of Hours of Service
A person shall be credited with an Hour of Service for:
(a)
Each hour for which he is paid, or entitled to payment, for the performance of duties for an Employer, a Predecessor Employer, or a Related
Company during the applicable period; provided, however, that hours compensated at a premium rate shall be treated as
straight−time hours.
(b)
Subject to the provisions of Section 2.3, each hour for which he is paid, or entitled to payment, by an Employer, a Predecessor Employer, or
a Related Company on account of a period of time during which no duties are performed (irrespective of whether the employment
relationship has terminated) due to vacation, holiday, illness, incapacity (including disability), lay−off, jury duty, military duty, or leave of
absence.
(c)
Each hour for which he would have been scheduled to work for an Employer, a Predecessor Employer, or a Related Company during the
period that he is absent from work because of service with the armed forces of the United States provided he is eligible for reemployment
rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 and returns to work with an Employer or a
Related Company within the period during which he retains such reemployment rights; provided, however, that the same Hour of Service
shall not be credited under paragraph (b) of this Section and under this paragraph (c).
(d)
Each hour for which back pay, irrespective of mitigation of damages, is either awarded or agreed to by an Employer, a Predecessor
Employer, or a Related Company; provided, however, that the same Hour of Service shall not be credited both under paragraph (a) or (b) or
(c) of this Section, as the case may be, and under this paragraph (d); and provided, further, that the crediting of Hours of Service for back
pay awarded or agreed to with respect to periods described in such paragraph (b) shall be subject to the limitations set forth therein and in
Section 2.3.
(e)
Solely for purposes of determining whether a person who is on a "maternity/paternity absence" has incurred a Break in Service for a
"computation period", Hours of Service shall include those hours with which such person would otherwise have been credited but for such
"maternity/paternity absence", or shall include eight Hours of Service for each day of "maternity/paternity absence" if the actual hours to be
credited cannot be determined; except that not more than the minimum number of hours required to prevent a Break in Service shall be
credited by reason of any "maternity/paternity absence"; provided, however, that any hours included as Hours of Service pursuant to this
paragraph shall be credited to the "computation period" in which the absence from employment begins, if such person otherwise would
incur a Break in Service in such "computation period", or, in any other case, to the immediately following "computation period".
(f)
Solely for purposes of determining whether he has incurred a Break in Service, each hour for which he would have been scheduled to work
for an Employer, a Predecessor Employer, or a Related Company during the period of time that he is absent from work on an approved
leave of absence pursuant to the Family and Medical Leave Act of 1993; provided, however, that Hours of Service shall not be credited to
an employee under this paragraph if the employee fails to return to employment with an Employer or a Related Company following such
leave.
Except as otherwise specifically provided with respect to Predecessor Employers, Hours of Service shall not be credited for employment with a corporation
or business prior to the date such corporation or business becomes a Related Company.
Notwithstanding the foregoing, for calendar years prior to January 1, 1995 and solely with respect to any Participant as of December 1, 1994, employment
with Kmart Corporation shall be considered employment with an Employer for Vesting purposes under the Plan by:
(i)
crediting the Participant with one year of Vesting Service for the year in which he first completed an hour for which he was paid or entitled
to payment by Kmart Corporation if such hour was completed prior to August 1 of that year; and
(ii)
crediting that Participant with one year of Vesting Service for each subsequent calendar year through December 31, 1994 if he was
employed by Kmart during that calendar year.
Effective August 4, 2003, employment with the Sports Authority, Inc. (formerly known as Gart Sports Company), shall be treated as employment with an
Employer.
2.3 Limitations on Crediting of Hours of Service
In the application of the provisions of paragraph (b) of Section 2.2, the following shall apply:
(a)
An hour for which a person is directly or indirectly paid, or entitled to payment, on account of a period during which no duties are
performed shall not be credited to him if such payment is made or due under a plan maintained solely for the purpose of complying with
applicable workers' compensation, unemployment compensation, or disability insurance laws.
(b)
Hours of Service shall not be credited with respect to a payment which solely reimburses a person for medical or medically−related
expenses incurred by him.
(c)
A payment shall be deemed to be made by or due from an Employer, a Predecessor Employer, or a Related Company (i) regardless of
whether such payment is made by or due from such employer directly or indirectly, through (among others) a trust fund or insurer to which
any such employer contributes or pays premiums, and (ii) regardless of whether contributions made or due to such trust fund, insurer, or
other entity are for the benefit of particular persons or are on behalf of a group of persons in the aggregate.
(d)
No more than 501 Hours of Service shall be credited to a person on account of any single continuous period during which he performs no
duties (whether or not such period occurs in a single "computation period"), unless no duties are performed due to service with the armed
forces of the United States for which the person retains reemployment rights as provided in paragraph (c) of Section 2.2 or because of
approved leaves of absence of up to two years.
2.4 Department of Labor Rules
The rules set forth in paragraphs (b) and (c) of Department of Labor Regulations Section 2530.200b−2, which relate to determining Hours of Service
attributable to reasons other than the performance of duties and crediting Hours of Service to particular periods, are hereby incorporated into the Plan by
reference.
2.5 Crediting of Continuous Service
A person shall be credited with "continuous service" for the aggregate of the periods of time between his "employment commencement date" or any
"reemployment commencement date" and the "severance date" that next follows such "employment commencement date" or "reemployment commencement
date"; provided, however, that an employee who has a "reemployment commencement date" within the 12−consecutive−month period following the earlier of the
first date of his absence or his "severance date" shall be credited with "continuous service" for the period between his "severance date" and "reemployment
commencement date".
2.6 Eligibility Service
An employee shall be credited with Eligibility Service equal to his "continuous service". Eligibility Service shall be computed in full months treating each
calendar month or portion of a calendar month in which an employee is credited with "continuous service" as a month of Eligibility Service.
2.7 Years of Vesting Service
An employee shall be credited with a year of Vesting Service for each "computation period" during which he completes at least 1,000 Hours of Service.
2.8 Crediting of Hours of Service with Respect to Short Computation Periods
The following provisions shall apply with respect to crediting Hours of Service with respect to any short "computation period":
(a)
For purposes of this Article, the following terms have the following meanings:
(i)
An "old computation period" means any "computation period" that ends immediately prior to a change in the "computation
period".
(ii)
A "short computation period" means any "computation period" of fewer than 12 consecutive months.
(b)
Notwithstanding any other provision of the Plan to the contrary, no person shall incur a Break in Service for a short "computation period"
solely because of such short "computation period".
(c)
For purposes of determining the years of Vesting Service to be credited to an Employee, a "computation period" shall not include the "short
computation period", but if an Employee completes at least 1,000 Hours of Service in the 12−consecutive−month period beginning on the
first day of the "short computation period", such Employee shall be credited with a year of Vesting Service for such 12−consecutive−month
period.
2.9 Crediting of Service on Transfer or Amendment
Notwithstanding any other provision of the Plan to the contrary, if an Employee is transferred from employment covered under a qualified plan maintained
by an Employer or a Related Company for which service for purposes of eligibility to participate is credited based on Hours of Service and computation periods
in accordance with Department of Labor Regulations Section 2530.200 through 2530.203 to employment covered under the Plan or, prior to amendment, the
Plan provided for crediting of service for purposes of eligibility to participate on the basis of Hours of Service and computation periods in accordance with
Department of Labor Regulations Section 2530.200 through 2530.203, an affected Employee shall be credited with Eligibility Service hereunder as provided in
Treasury Regulations Section 1.410(a)−7(f)(1).
In addition, notwithstanding any other provision of the Plan to the contrary, if an Employee is transferred from employment covered under a qualified plan
maintained by an Employer or a Related Company for which service for purposes of vesting is credited based on elapsed time in accordance with Treasury
Regulations Section 1.410(a)−7 to employment covered under the Plan or, prior to amendment, the Plan provided for crediting of service for purposes of vesting
on the basis of elapsed time in accordance with Treasury Regulations Section 1.410(a)−7, an affected Employee shall be credited with Vesting Service hereunder
as provided in Treasury Regulations Section 1.410(a)−7(f)(1).
2.10 Crediting of Service to Leased Employees
Notwithstanding any other provision of the Plan to the contrary, a "leased employee" working for an Employer or a Related Company (other than an
"excludable leased employee") shall be considered an employee of such Employer or Related Company for purposes of Eligibility and Vesting Service crediting
under the Plan, but shall not be eligible to participate in the Plan. Such "leased employee" shall also be considered an employee of such Employer or Related
Company for purposes of applying Code Sections 401(a)(3), (4), (7), and (16), and 408(k), 415, and 416.
A "leased employee" means any person who performs services for an Employer or a Related Company (the "recipient") (other than an employee of the
"recipient") pursuant to an agreement between the "recipient" and any other person (the "leasing organization") on a substantially full−time basis for a period of
at least one year, provided that such services are performed under primary direction of or control by the "recipient". An "excludable leased employee" means any
"leased employee" of the "recipient" who is covered by a money purchase pension plan maintained by the "leasing organization" which provides for (i) a
nonintegrated employer contribution on behalf of each participant in the plan equal to at least ten percent of compensation, (ii) full and immediate vesting, and
(iii) immediate participation by employees of the "leasing organization" (other than employees who perform substantially all of their services for the "leasing
organization" or whose compensation from the "leasing organization" in each plan year during the four−year period ending with the plan year is less than
$1,000); provided, however, that "leased employees" do not constitute more than 20 percent of the "recipient's" nonhighly compensated work force. For purposes
of this Section, contributions or benefits provided to a "leased employee" by the "leasing organization" that are attributable to services performed for the
"recipient" shall be treated as provided by the "recipient".
ARTICLE III
ELIGIBILITY
3.1 Eligibility
Each Employee who was an Eligible Employee immediately prior to January 1, 2004 shall continue to be an Eligible Employee on January 1, 2004. Each
other Employee shall become an Eligible Employee as of the Enrollment Date coinciding with or next following the date on which he has both attained age 21
and completed 1/4 year of Eligibility Service.
3.2 Transfers of Employment
If a person is transferred directly from employment with an Employer or with a Related Company in a capacity other than as an Employee to employment as
an Employee, he shall become an Eligible Employee as of the date he is so transferred if prior to an Enrollment Date coinciding with or preceding such transfer
date he has met the eligibility requirements of Section 3.1. Otherwise, the eligibility of a person who is so transferred to participate in the Plan shall be
determined in accordance with Section 3.1.
3.3 Reemployment
If a person who terminated employment with an Employer and all Related Companies is reemployed as an Employee and if he had been an Eligible
Employee prior to his termination of employment, he shall again become an Eligible Employee on the date he is reemployed. Otherwise, the eligibility of a
person who terminated employment with an Employer and all Related Companies and who is reemployed by an Employer or a Related Company to participate in
the Plan shall be determined in accordance with Section 3.1 or 3.2.
3.4 Notification Concerning New Eligible Employees
Each Employer shall notify the Administrator as soon as practicable of Employees becoming Eligible Employees as of any date.
3.5 Effect and Duration
Upon becoming an Eligible Employee, an Employee shall be entitled to make Tax−Deferred Contributions to the Plan in accordance with the provisions of
Article IV and receive allocations of Employer Contributions in accordance with the provisions of Article VI (provided he meets any applicable requirements
thereunder) and shall be bound by all the terms and conditions of the Plan and the Trust Agreement. A person shall continue as an Eligible Employee eligible to
make Tax−Deferred Contributions to the Plan and to participate in allocations of Employer Contributions only so long as he continues employment as an
Employee.
ARTICLE IV
TAX−DEFERRED CONTRIBUTIONS
4.1 Tax−Deferred Contributions
Effective as of the date he becomes an Eligible Employee, each Eligible Employee may elect, in accordance with rules prescribed by the Administrator, to
have Tax−Deferred Contributions made to the Plan on his behalf by his Employer as hereinafter provided. An Eligible Employee's election shall include his
authorization for his Employer to reduce his Compensation and to make Tax−Deferred Contributions on his behalf. An Eligible Employee who elects not to have
Tax−Deferred Contributions made to the Plan as of the first Enrollment Date he becomes eligible to participate may change his election by amending his
reduction authorization as prescribed in this Article.
Tax−Deferred Contributions on behalf of an Eligible Employee shall commence as soon as administratively practicable on or after the date on which his
election is effective.
4.2 Amount of Tax−Deferred Contributions
The amount of Tax−Deferred Contributions to be made to the Plan on behalf of an Eligible Employee by his Employer shall be an integral percentage of his
Compensation of not less than one percent nor more than 15 percent. In the event an Eligible Employee elects to have his Employer make Tax−Deferred
Contributions on his behalf, his Compensation shall be reduced for each payroll period by the percentage he elects to have contributed on his behalf to the Plan in
accordance with the terms of his currently effective reduction authorization. The Employer may, in its discretion, limit the Tax−Deferred Contributions for
Highly Compensated Employees.
4.3 Amendments to Reduction Authorization
An Eligible Employee may elect, in the manner prescribed by the Administrator, to change the amount of his future Compensation that his Employer
contributes on his behalf as Tax−Deferred Contributions. An Eligible Employee may amend his reduction authorization at such time or times during the Plan
Year as the Administrator may prescribe by giving such number of days advance notice of his election as the Administrator may prescribe. An Eligible Employee
who amends his reduction authorization shall be limited to selecting an amount of his Compensation that is otherwise permitted under this Article IV.
Tax−Deferred Contributions shall be made on behalf of such Eligible Employee by his Employer pursuant to his properly amended reduction authorization
commencing with Compensation paid to the Eligible Employee on or after the date such amendment is effective, until otherwise altered or terminated in
accordance with the Plan.
4.4 Suspension of Tax−Deferred Contributions
An Eligible Employee on whose behalf Tax−Deferred Contributions are being made may elect, in the manner prescribed by the Administrator, to have such
contributions suspended at any time by giving such number of days advance notice of his election as the Administrator may prescribe. Any such voluntary
suspension shall take effect commencing with Compensation paid to such Eligible Employee on or after the expiration of the required notice period and shall
remain in effect until Tax−Deferred Contributions are resumed as hereinafter set forth.
4.5 Resumption of Tax−Deferred Contributions
An Eligible Employee who has voluntarily suspended his Tax−Deferred Contributions may elect, in the manner prescribed by the Administrator, to have
such contributions resumed. An Eligible Employee may make such election at such time or times during the Plan Year as the Administrator may prescribe, by
giving such number of days advance notice of his election as the Administrator may prescribe.
4.6 Delivery of Tax−Deferred Contributions
As soon after the date an amount would otherwise be paid to an Employee as it can reasonably be separated from Employer assets, each Employer shall
cause to be delivered to the Trustee in cash all Tax−Deferred Contributions attributable to such amounts.
4.7 Vesting of Tax−Deferred Contributions
A Participant's vested interest in his Tax−Deferred Contributions Sub−Account shall be at all times 100 percent.
ARTICLE V
AFTER−TAX AND ROLLOVER CONTRIBUTIONS
5.1 Prior After−Tax Contributions
Eligible Employees are not currently permitted to make After−Tax Contributions to the Plan. However, the Plan includes assets attributable to After−Tax
Contributions made to the Plan prior to the effective date of this amendment and restatement or transferred to the Plan from another qualified plan.
5.2 Rollover Contributions
An Employee who was a participant in a plan qualified under Code Section 401 and who receives (or is eligible to receive) a cash distribution from such
plan that he elects either (i) to roll over immediately to a qualified retirement plan or (ii) to roll over into a conduit IRA from which he receives a later cash
distribution, may elect to make a Rollover Contribution to the Plan if he is entitled under Code Section 402(c) or 408(d)(3)(A) to roll over such distribution to
another qualified retirement plan. The Administrator may require an Employee to provide it with such information as it deems necessary or desirable to show that
he is entitled to roll over such distribution to another qualified retirement plan. An Employee shall make a Rollover Contribution to the Plan by delivering, or
causing to be delivered, to the Trustee the cash that constitutes the Rollover Contribution amount. If the Employee received a cash distribution that he is rolling
over, such delivery must be made within 60 days of receipt of the distribution from the plan or from the conduit IRA in the manner prescribed by the
Administrator.
5.3 Vesting of After−Tax Contributions and Rollover Contributions
A Participant's vested interest in his After−Tax Contributions Sub−Account and Rollover Contributions Sub−Account shall be at all times 100 percent.
ARTICLE VI
EMPLOYER CONTRIBUTIONS
6.1 Contribution Period
The Contribution Periods for Employer Contributions shall be as follows:
(a)
The Contribution Period for Regular Matching Contributions under the Plan is payroll period.
(b)
The Contribution Period for Additional Discretionary Matching Contributions is each Plan Year.
(c)
The Contribution Period for Qualified Nonelective Contributions under the Plan is each Plan Year.
6.2 Qualified Nonelective Contributions
Each Employer may, in its discretion, make a Qualified Nonelective Contribution to the Plan for the Contribution Period in an amount determined by the
Sponsor.
6.3 Allocation of Qualified Nonelective Contributions
Any Qualified Nonelective Contribution made for a Contribution Period shall be allocated among the Eligible Employees during the Contribution Period
who have met the allocation requirements for Qualified Nonelective Contributions described in this Article, other than any such Eligible Employee who is a
Highly Compensated Employee, in accordance with one of the following options, as determined by the Administrator:
(a)
Flat Dollar Amount: The allocable share of each such Eligible Employee in the Qualified Nonelective Contribution shall be a flat dollar
amount, as determined by the Sponsor for the Contribution Period.
(b)
Order of "test compensation": The allocable share of each such Eligible Employee in the Qualified Nonelective Contribution shall be
determined as follows:
(i)
the Eligible Employee with the least "test compensation", as defined in Section 7.1, shall receive an allocation equal to the lower
of:
(A)
the maximum contribution permitted to be made to the Plan on his behalf under Code Section 415, taking into account
any contributions already made on his behalf; or
(B)
the full amount of the Qualified Nonelective Contribution made by the Employer for the Contribution Period.
(ii)
If any Qualified Nonelective Employer Contribution remains after allocation has been made in accordance with the provisions of
paragraph (a) above, the Eligible Employee with the next lowest "test compensation", as defined in Section 7.1, shall receive an
allocation equal to the lower of:
(A)
the maximum contribution permitted to be made to the Plan on his behalf under Code Section 415, taking into account
any contributions already made on his behalf; or
(B)
the balance of the Qualified Nonelective Contribution made by the Employer for the Contribution Period remaining
after allocation has been made in accordance with the provisions of paragraph (a) above.
(iii)
If any Qualified Nonelective Contribution remains after allocation has been made in accordance with the provisions of
paragraph (b) above, allocations shall continue to Eligible Employees as provided in paragraph (b) in ascending order of "test
compensation", until the Qualified Nonelective Contribution has been fully allocated.
6.4 Amount and Allocation of Regular Matching Contributions
Each Employer may, in its discretion, make a Regular Matching Contribution to the Plan for each Contribution Period on behalf of each of its Eligible
Employees who has met the allocation requirements for Regular Matching Contributions described in this Article.
The amount of any such Regular Matching Contribution with respect to similarly situated Eligible Employees, as determined by the Employer in a
non−discriminatory manner, shall be equal to a uniform percentage, determined by the Employer, in its discretion, of the Tax−Deferred Contributions made for
the Contribution Period on behalf of such similarly situated Eligible Employees.
6.5 Additional Discretionary Matching Contributions
In addition to its Regular Matching Contribution, each Employer may make an Additional Discretionary Matching Contribution to the Plan for each
Contribution Period on behalf of each of its Eligible Employees who has met the allocation requirements for Additional Discretionary Matching Contributions
described in this Article. The amount of any such Additional Discretionary Matching Contribution with respect to similarly situated Eligible Employees, as
determined by the Employer in a non−discriminatory manner, shall be equal to a uniform percentage, determined by the Employer, in its discretion, of the
Tax−Deferred Contributions made on behalf of each such similarly situated Eligible Employee for the Contribution Period.
6.6 Verification of Amount of Employer Contributions by the Sponsor
The Sponsor shall verify the amount of Employer Contributions to be made by each Employer in accordance with the provisions of the Plan.
Notwithstanding any other provision of the Plan to the contrary, the Sponsor shall determine the portion of the Employer Contribution to be made by each
Employer with respect to an Employee who transfers from employment with one Employer as an Employee to employment with another Employer as an
Employee.
6.7 Payment of Employer Contributions
Employer Contributions made for a Contribution Period shall be paid in cash to the Trustee within the period of time required under the Code in order for
the contribution to be deductible by the Employer in determining its Federal income taxes for the Plan Year.
6.8 Allocation Requirements for Employer Contributions
A person who was an Eligible Employee at any time during a Contribution Period shall be eligible to receive an allocation of Regular Matching
Contributions for such Contribution Period.
A person who was an Eligible Employee during a Contribution Period shall be eligible to receive an allocation of Additional Discretionary Matching
Contributions for such Contribution Period only if (i) he is employed on the last day of the Contribution Period and (ii) he has completed at least 1,000 Hours of
Service during the Contribution Period. The number of Hours of Service required to receive an allocation of Additional Discretionary Matching Contributions
hereunder shall be pro−rated for any short Contribution Period.
A person who was an Eligible Employee at any time during a Contribution Period shall be eligible to receive an allocation of Qualified Nonelective
Contributions for such Contribution Period.
6.9 Vesting of Employer Contributions
A Participant's vested interest in his Qualified Nonelective Contributions, Prior Safe Harbor Contributions and Prior Employer Contributions Sub−Accounts
shall be at all times 100 percent. A Participant who was formerly employed by TSA Stores, Inc. prior to January 1, 2004, shall be at all times 100 percent vested
in the Prior Safe Harbor Matching Contributions and Regular Matching Contributions in his Account.
A Participant's vested interest in his Prior Nonelective Contributions Sub−Account shall be zero percent until he has completed five years of Vesting
Service, in which event his vested interest on his Prior Nonelective Contributions Sub−Account shall be 100 percent.
With respect to Participants other than former employees of TSA Stores, Inc., a Participant's vested interest in his Regular and Additional Discretionary
Matching Contributions Sub−Accounts shall be determined in accordance with the following schedule:
Vested
Interest
Years of Vesting Service
Less than 1
0%
1, but less than 2
20%
2, but less than 3
40%
3, but less than 4
60%
4, but less than 5
80%
5 or more
100%
Notwithstanding the foregoing, if a Participant is employed by an Employer or a Related Company on his Normal Retirement Date, the date he becomes
Disabled, or the date he dies, his vested interest in his Regular and Additional Discretionary Matching Contributions Sub−Accounts shall be 100 percent.
6.10 Election of Former Vesting Schedule
If the Sponsor adopts an amendment to the Plan that directly or indirectly affects the computation of a Participant's vested interest in his Employer
Contributions Sub−Account, any Participant with three or more years of Vesting Service shall have a right to have his vested interest in his Employer
Contributions Sub−Account continue to be determined under the vesting provisions in effect prior to the amendment rather than under the new vesting
provisions, unless the vested interest of the Participant in his Employer Contributions Sub−Account under the Plan as amended is not at any time less than such
vested interest determined without regard to the amendment. A Participant shall exercise his right under this Section by giving written notice of his exercise
thereof to the Administrator within 60 days after the latest of (i) the date he receives notice of the amendment from the Administrator, (ii) the effective date of the
amendment, or (iii) the date the amendment is adopted. Notwithstanding the foregoing, a Participant's vested interest in his Employer Contributions
Sub−Account on the effective date of such an amendment shall not be less than his vested interest in his Employer Contributions Sub−Account immediately prior
to the effective date of the amendment.
6.11 Forfeitures to Reduce Employer Contributions
Notwithstanding any other provision of the Plan to the contrary, the amount of the Employer Contribution required under this Article for a Plan Year shall
be reduced by the amount of any forfeitures occurring during the Plan Year or any prior Plan Year that are not used to pay Plan expenses and that are applied
against Employer Contributions as provided in Article XIV.
ARTICLE VII
LIMITATIONS ON CONTRIBUTIONS
7.1 Definitions
For purposes of this Article, the following terms have the following meanings:
The "aggregate limit" means the sum of (i) 125 percent of the greater of the average "contribution percentage" for "eligible participants" other than Highly
Compensated Employees or the average "deferral percentage" for Eligible Employees other than Highly Compensated Employees and (ii) the lesser of
200 percent or two plus the lesser of such average "contribution percentage" or average "deferral percentage", or, if it would result in a larger "aggregate limit",
the sum of (iii) 125 percent of the lesser of the average "contribution percentage" for "eligible participants" other than Highly Compensated Employees or the
average "deferral percentage" for Eligible Employees other than Highly Compensated Employees and (iv) the lesser of 200 percent or two plus the greater of
such average "contribution percentage" or average "deferral percentage". For purposes of determining the "aggregate limit", the "contribution percentages" and
"deferral percentages" used shall be for the applicable "testing year".
The "annual addition" with respect to a Participant for a "limitation year" means the sum of the Tax−Deferred Contributions and Employer Contributions
allocated to his Account for the "limitation year" (including any "excess contributions" that are distributed pursuant to this Article), the employer contributions,
"employee contributions", and forfeitures allocated to his accounts for the "limitation year" under any other qualified defined contribution plan (whether or not
terminated) maintained by an Employer or a Related Company concurrently with the Plan, and amounts described in Code Sections 415(l)(2) and
419A(d)(2) allocated to his account for the "limitation year".
The "contribution percentage" with respect to an "eligible participant" for a particular Plan Year means the ratio of the Matching Contributions made to
the Plan on his behalf for the Plan Year to his "test compensation" for such Plan Year. To the extent permitted by regulations issued under Code Section 401(m),
the Sponsor may elect to include the Tax−Deferred Contributions and/or Qualified Nonelective Contributions made to the Plan on an "eligible participant's"
behalf for the Plan Year in computing the numerator of such "eligible participant's" "contribution percentage". Notwithstanding the foregoing, any Tax−Deferred
Contributions and/or Qualified Nonelective Contributions that are included in determining the numerator of an "eligible participant's" "deferral percentage" may
not be included in determining the numerator of his "contribution percentage".
Contributions made on an "eligible participant's" behalf for a Plan Year shall be included in determining his "contribution percentage" for such Plan Year
only if the contributions are allocated to the "eligible participant's" Account as of a date within such Plan Year and are made to the Plan before the end of the
12−month period immediately following the Plan Year to which the contributions relate. The determination of an "eligible participant's" "contribution
percentage" shall be made after any reduction required to satisfy the Code Section 415 limitations is made as provided in this Article VII and shall satisfy such
other requirements as may be prescribed by the Secretary of the Treasury.
The "deferral percentage" with respect to an Eligible Employee for a particular Plan Year means the ratio of the Tax−Deferred Contributions made on his
behalf for the Plan Year to his "test compensation" for the Plan Year. To the extent permitted by regulations issued under Code Section 401(k), the Sponsor may
elect to include Qualified Nonelective Contributions made to the Plan on the Eligible Employee's behalf for the Plan Year in computing the numerator of such
Eligible Employee's "deferral percentage". Notwithstanding the foregoing, any Tax−Deferred Contributions and/or Qualified Nonelective Contributions that are
included in determining the numerator of an Eligible Employee's "contribution percentage" may not be included in determining the numerator of his "deferral
percentage".
Contributions made on an Eligible Employee's behalf for a Plan Year shall be included in determining his "deferral percentage" for such Plan Year only if
they meet the following requirements:
(a)
Tax−Deferred Contributions must relate to Compensation that would, but for the Eligible Employee's deferral election, have been received
by the Eligible Employee during such Plan Year.
(b)
The contributions must be allocated to the Eligible Employee's Account as of a date within such Plan Year.
(c)
The contributions must be made to the Plan before the end of the 12−month period immediately following the Plan Year to which they
relate.
The determination of an Eligible Employee's "deferral percentage" shall be made after any reduction required to satisfy the Code Section 415 limitations is
made as provided in this Article VII and shall satisfy such other requirements as may be prescribed by the Secretary of the Treasury.
An "elective contribution" means any employer contribution made to a plan maintained by an Employer or a Related Company on behalf of a Participant in
lieu of cash compensation pursuant to his written election to defer under any qualified CODA as described in Code Section 401(k), any simplified employee
pension cash or deferred arrangement as described in Code Section 402(h)(1)(B), any eligible deferred compensation plan under Code Section 457, or any plan as
described in Code Section 501(c)(18), and any contribution made on behalf of the Participant by an Employer or a Related Company for the purchase of an
annuity contract under Code Section 403(b) pursuant to a salary reduction agreement.
An "eligible participant" means any Eligible Employee who is eligible to have Tax−Deferred Contributions made on his behalf (if Tax−Deferred
Contributions are taken into account in determining "contribution percentages"), or to participate in the allocation of Matching Contributions.
An "employee contribution" means any employee after−tax contribution allocated to an Eligible Employee's account under any qualified plan of an
Employer or a Related Company.
An "excess contribution" means any contribution made to the Plan on behalf of a Participant that exceeds one of the limitations described in this Article.
An "excess deferral" with respect to a Participant means that portion of a Participant's Tax−Deferred Contributions for his taxable year that, when added to
amounts deferred for such taxable year under other plans or arrangements described in Code Section 401(k), 408(k), or 403(b) (other than any such plan or
arrangement that is maintained by an Employer or a Related Company), would exceed the dollar limit imposed under Code Section 402(g) as in effect on
January 1 of the calendar year in which such taxable year begins and is includible in the Participant's gross income under Code Section 402(g).
A "limitation year" means the Plan Year.
A "matching contribution" means any employer contribution allocated to an Eligible Employee's account under any plan of an Employer or a Related
Company solely on account of "elective contributions" made on his behalf or "employee contributions" made by him.
A "qualified matching contribution" means any employer contribution allocated to an Eligible Employee's account under any plan of an Employer or a
Related Company solely on account of "elective contributions" made on his behalf or "employee contributions" made by him that is a qualified matching
contribution as defined in regulations issued under Code Section 401(k), is nonforfeitable when made, and is distributable only as permitted in regulations issued
under Code Section 401(k).
A "qualified nonelective contribution" means any employer contribution allocated to an Eligible Employee's account under any plan of an Employer or a
Related Company that the Participant could not elect instead to receive in cash, that is a qualified nonelective contribution as defined in Code Sections
401(k) and 401(m) and regulations issued thereunder, is nonforfeitable when made, and is distributable only as permitted in regulations issued under Code
Section 401(k).
The "test compensation" of an Eligible Employee or "eligible participant" for a Plan Year means compensation as defined in Code Section 414(s) and
regulations issued thereunder, limited, however, to $150,000 (subject to adjustment annually as provided in Code Sections 401(a)(17)(B) and 415(d); provided,
however, that the dollar increase in effect on January 1 of any calendar year, if any, is effective for Plan Years beginning in such calendar year) and, if elected by
the Sponsor, further limited solely to "test compensation" of an Employee attributable to periods of time when he is an Eligible Employee or "eligible
participant". If the "test compensation" of an Eligible Employee or "eligible participant" is determined over a period of time that contains fewer than 12
calendar months, then the annual compensation limitation described above shall be adjusted with respect to that Eligible Employee or "eligible participant" by
multiplying the annual compensation limitation in effect for the Plan Year by a fraction the numerator of which is the number of full months in the period and the
denominator of which is 12; provided, however, that no proration is required for an Eligible Employee or "eligible participant" who is covered under the Plan for
less than one full Plan Year if the formula for allocations is based on Compensation for a period of at least 12 months.
The "testing year" means the Plan Year for which the limitations on "deferral percentages" and "contribution percentages" of Highly Compensated
Employees are being determined.
7.2 Code Section 402(g) Limit
In no event shall the amount of the Tax−Deferred Contributions made on behalf of an Eligible Employee for his taxable year, when aggregated with any
"elective contributions" made on behalf of the Eligible Employee under any other plan of an Employer or a Related Company for his taxable year, exceed the
dollar limit imposed under Code Section 402(g), as in effect on January 1 of the calendar year in which such taxable year begins. In the event that the
Administrator determines that the reduction percentage elected by an Eligible Employee will result in his exceeding the Code Section 402(g) limit, the
Administrator may adjust the reduction authorization of such Eligible Employee by reducing the percentage of his Tax−Deferred Contributions to such smaller
percentage that will result in the Code Section 402(g) limit not being exceeded. If the Administrator determines that the Tax−Deferred Contributions made on
behalf of an Eligible Employee would exceed the Code Section 402(g) limit for his taxable year, the Tax−Deferred Contributions for such Participant shall be
automatically suspended for the remainder, if any, of such taxable year.
If an Employer notifies the Administrator that the Code Section 402(g) limit has nevertheless been exceeded by an Eligible Employee for his taxable year,
the Tax−Deferred Contributions that, when aggregated with "elective contributions" made on behalf of the Eligible Employee under any other plan of an
Employer or a Related Company, would exceed the Code Section 402(g) limit, plus any income and minus any losses attributable thereto, shall be distributed to
the Eligible Employee no later than the April 15 immediately following such taxable year. Any Tax−Deferred Contributions that are distributed to an Eligible
Employee in accordance with this Section shall not be taken into account in determining the Eligible Employee's "deferral percentage" for the "testing year" in
which the Tax−Deferred Contributions were made, unless the Eligible Employee is a Highly Compensated Employee.
If an amount of Tax−Deferred Contributions is distributed to a Participant in accordance with this Section, Matching Contributions that are attributable
solely to the distributed Tax−Deferred Contributions, plus any income and minus any losses attributable thereto, shall be forfeited by the Participant no earlier
than the date on which distribution of Tax−Deferred Contributions pursuant to this Section occurs and no later than the last day of the Plan Year following the
Plan Year for which the Matching Contributions were made.
7.3 Distribution of Excess Deferrals
Notwithstanding any other provision of the Plan to the contrary, if a Participant notifies the Administrator in writing no later than the March 1 following the
close of the Participant's taxable year that "excess deferrals" have been made on his behalf under the Plan for such taxable year, the "excess deferrals", plus any
income and minus any losses attributable thereto, shall be distributed to the Participant no later than the April 15 immediately following such taxable year. Any
Tax−Deferred Contributions that are distributed to a Participant in accordance with this Section shall nevertheless be taken into account in determining the
Participant's "deferral percentage" for the "testing year" in which the Tax−Deferred Contributions were made. If an amount of Tax−Deferred Contributions is
distributed to a Participant in accordance with this Section, Matching Contributions that are attributable solely to the distributed Tax−Deferred Contributions,
plus any income and minus any losses attributable thereto, shall be forfeited by the Participant no earlier than the date on which distribution of Tax−Deferred
Contributions pursuant to this Section occurs and no later than the last day of the Plan Year following the Plan Year for which the Matching Contributions were
made.
7.4 Limitation on Tax−Deferred Contributions of Highly Compensated Employees
Notwithstanding any other provision of the Plan to the contrary, the Tax−Deferred Contributions made with respect to a Plan Year on behalf of Eligible
Employees who are Highly Compensated Employees may not result in an average "deferral percentage" for such Eligible Employees that exceeds the greater of:
(a)
a percentage that is equal to 125 percent of the average "deferral percentage" for all other Eligible Employees for the "testing year"; or
(b)
a percentage that is not more than 200 percent of the average "deferral percentage" for all other Eligible Employees for the "testing year"
and that is not more than two percentage points higher than the average "deferral percentage" for all other Eligible Employees for the
"testing year",
unless the "excess contributions", determined as provided in Section 7.5, are distributed as provided in Section 7.6.
In order to assure that the limitation contained herein is not exceeded with respect to a Plan Year, the Administrator is authorized to suspend completely
further Tax−Deferred Contributions on behalf of Highly Compensated Employees for any remaining portion of a Plan Year or to adjust the projected "deferral
percentages" of Highly Compensated Employees by reducing the percentage of their deferral elections for any remaining portion of a Plan Year to such smaller
percentage that will result in the limitation set forth above not being exceeded. In the event of any such suspension or reduction, Highly Compensated Employees
affected thereby shall be notified of the reduction or suspension as soon as possible and shall be given an opportunity to make a new deferral election to be
effective the first day of the next following Plan Year. In the absence of such an election, the election in effect immediately prior to the suspension or adjustment
described above shall be reinstated as of the first day of the next following Plan Year.
In determining the "deferral percentage" for any Eligible Employee who is a Highly Compensated Employee for the Plan Year, "elective contributions",
"qualified nonelective contributions", and "qualified matching contributions" (to the extent that "qualified nonelective contributions" and "qualified matching
contributions" are taken into account in determining "deferral percentages") made to his accounts under any plan of an Employer or a Related Company that is
not mandatorily disaggregated pursuant to IRS regulations Section 1.410(b)−7(c), as modified by Section 1.401(k)−1(g)(11), shall be treated as if all such
contributions were made to the Plan; provided, however, that if such a plan has a plan year different from the Plan Year, any such contributions made to the
Highly Compensated Employee's accounts under the plan for the plan year ending with or within the same calendar year as the Plan Year shall be treated as if
such contributions were made to the Plan. Notwithstanding the foregoing, such contributions shall not be treated as if they were made to the Plan if regulations
issued under Code Section 401(k) do not permit such plan to be aggregated with the Plan.
If one or more plans of an Employer or Related Company are aggregated with the Plan for purposes of satisfying the requirements of Code
Section 401(a)(4) or 410(b), then "deferral percentages" under the Plan shall be calculated as if the Plan and such one or more other plans were a single plan.
Plans may be aggregated to satisfy Code Section 401(k) only if they have the same plan year.
The Administrator shall maintain records sufficient to show that the limitation contained in this Section was not exceeded with respect to any Plan Year and
the amount of the "qualified nonelective contributions" and/or "qualified matching contributions" taken into account in determining "deferral percentages" for
any Plan Year.
7.5 Determination and Allocation of Excess Tax−Deferred Contributions Among Highly Compensated Employees
Notwithstanding any other provision of the Plan to the contrary, in the event that the limitation on Tax−Deferred Contributions described in Section 7.4 is
exceeded in any Plan Year, the Administrator shall determine the dollar amount of the excess by reducing the dollar amount of the contributions included in
determining the "deferral percentage" of Highly Compensated Employees in order of their "deferral percentages" as follows:
(a)
The highest "deferral percentage(s)" shall be reduced to the greater of (1) the maximum "deferral percentage" that satisfies the limitation on
Tax−Deferred Contributions described in Section 7.4 or (2) the next highest "deferral percentage".
(b)
If the limitation on Tax−Deferred Contributions described in Section 7.4 would still be exceeded after application of the provisions of
paragraph (a), the Administrator shall continue reducing "deferral percentages" of Highly Compensated Employees, continuing with the
next highest "deferral percentage", in the manner provided in paragraph (a) until the limitation on Tax−Deferred Contributions described in
Section 7.4 is satisfied.
The determination of the amount of "excess contributions" hereunder shall be made after Tax−Deferred Contributions and "excess deferrals" have been
distributed pursuant to Sections 7.2 and 7.3, if applicable.
After determining the dollar amount of the "excess contributions" that have been made to the Plan, the Administrator shall allocate such excess among
Highly Compensated Employees in order of the dollar amount of the Tax−Deferred Contributions (to the extent such contributions are included in determining
"deferral percentages") allocated to their Accounts as follows:
(c)
The contributions made on behalf of the Highly Compensated Employee(s) with the largest dollar amount of Tax−Deferred Contributions
allocated to his Account for the Plan Year shall be reduced by the dollar amount of the excess (with such dollar amount being allocated
equally among all such Highly Compensated Employees), but not below the dollar amount of such contributions made on behalf of the
Highly Compensated Employee(s) with the next highest dollar amount of such contributions allocated to his Account for the Plan Year.
(d)
If the excess has not been fully allocated after application of the provisions of paragraph (c), the Administrator shall continue reducing the
contributions made on behalf of Highly Compensated Employees, continuing with the Highly Compensated Employees with the largest
remaining dollar amount of such contributions allocated to their Accounts for the Plan Year, in the manner provided in paragraph (c) until
the entire excess determined above has been allocated.
7.6 Distribution of Excess Tax−Deferred Contributions
"Excess contributions" allocated to a Highly Compensated Employee pursuant to the preceding Section, plus any income and minus any losses attributable
thereto, shall be distributed to the Highly Compensated Employee prior to the end of the next succeeding Plan Year. If such excess amounts are distributed more
than 21/2 months after the last day of the Plan Year for which the excess occurred, an excise tax may be imposed under Code Section 4979 on the Employer
maintaining the Plan with respect to such amounts.
If an amount of Tax−Deferred Contributions is distributed to a Participant in accordance with this Section, Matching Contributions that are attributable
solely to the distributed Tax−Deferred Contributions, plus any income and minus any losses attributable thereto, shall be forfeited by the Participant no earlier
than the date on which distribution of Tax−Deferred Contributions pursuant to this Section occurs and no later than the last day of the Plan Year following the
Plan Year for which the Matching Contributions were made.
7.7 Limitation on Matching Contributions of Highly Compensated Employees
Notwithstanding any other provision of the Plan to the contrary, the Matching Contributions made with respect to a Plan Year on behalf of "eligible
participants" who are Highly Compensated Employees may not result in an average "contribution percentage" for such "eligible participants" that exceeds the
greater of:
(a)
a percentage that is equal to 125 percent of the average "contribution percentage" for all other "eligible participants" for the "testing year";
or
(b)
a percentage that is not more than 200 percent of the average "contribution percentage" for all other "eligible participants" for the "testing
year" and that is not more than two percentage points higher than the average "contribution percentage" for all other "eligible participants"
for the "testing year",
unless the "excess contributions", determined as provided in Section 7.8, are forfeited or distributed as provided in Section 7.9.
In determining the "contribution percentage" for any "eligible participant" who is a Highly Compensated Employee for the Plan Year, "matching
contributions", "employee contributions", "qualified nonelective contributions", and "elective contributions" (to the extent that "qualified nonelective
contributions" and "elective contributions" are taken into account in determining "contribution percentages") made to his accounts under any plan of an Employer
or a Related Company that is not mandatorily disaggregated pursuant to IRS regulations Section 1.410(b)−7(c), as modified by IRS regulations
Section 1.401(k)−1(g)(11), shall be treated as if all such contributions were made to the Plan; provided, however, that if such a plan has a plan year different
from the Plan Year, any such contributions made to the Highly Compensated Employee's accounts under the plan for the plan year ending with or within the
same calendar year as the Plan Year shall be treated as if such contributions were made to the Plan. Notwithstanding the foregoing, such contributions shall not
be treated as if they were made to the Plan if regulations issued under Code Section 401(m) do not permit such plan to be aggregated with the Plan.
If one or more plans of an Employer or a Related Company are aggregated with the Plan for purposes of satisfying the requirements of Code
Section 401(a)(4) or 410(b), the "contribution percentages" under the Plan shall be calculated as if the Plan and such one or more other plans were a single plan.
Plans may be aggregated to satisfy Code Section 401(m) only if they have the same plan year.
The Administrator shall maintain records sufficient to show that the limitation contained in this Section was not exceeded with respect to any Plan Year and
the amount of the "elective contributions", "qualified nonelective contributions", and/or "qualified matching contributions" taken into account in determining
"contribution percentages" for any Plan Year.
7.8 Determination and Allocation of Excess Matching Contributions Among Highly Compensated Employees
Notwithstanding any other provision of the Plan to the contrary, in the event that the limitation on Matching Contributions described in Section 7.7 is
exceeded in any Plan Year, the Administrator shall determine the dollar amount of the excess by reducing the dollar amount of the contributions included in
determining the "contribution percentage" of Highly Compensated Employees in order of their "contribution percentages" as follows:
(a)
The highest "contribution percentage(s)" shall be reduced to the greater of (1) the maximum "contribution percentage" that satisfies the
limitation on Matching Contributions described in Section 7.7 or (2) the next highest "contribution percentage".
(b)
If the limitation on Matching Contributions described in Section 7.7 would still be exceeded after application of the provisions of
paragraph (a), the Administrator shall continue reducing "contribution percentages" of Highly Compensated Employees, continuing with
the next highest "contribution percentage", in the manner provided in paragraph (a) until the limitation on Matching Contributions
described in Section 7.7 is satisfied.
The determination of the amount of excess Matching Contributions shall be made after application of Sections 7.2, 7.3, and 7.6, if applicable.
After determining the dollar amount of the "excess contributions" that have been made to the Plan, the Administrator shall allocate such excess among
Highly Compensated Employees in order of the dollar amount of the Matching and Tax−Deferred Contributions (to the extent such contributions are included in
determining "contribution percentages") allocated to their Accounts as follows:
(c)
The contributions made on behalf of the Highly Compensated Employee(s) with the largest dollar amount of Matching and Tax−Deferred
Contributions allocated to his Account for the Plan Year shall be reduced by the dollar amount of the excess (with such dollar amount being
allocated equally among all such Highly Compensated Employees), but not below the dollar amount of such contributions made on behalf
of the Highly Compensated Employee(s) with the next highest dollar amount of such contributions allocated to his Account for the Plan
Year.
(d)
If the excess has not been fully allocated after application of the provisions of paragraph (c), the Administrator shall continue reducing the
contributions made on behalf of Highly Compensated Employees, continuing with the Highly Compensated Employees with the largest
remaining dollar amount of such contributions allocated to their Accounts for the Plan Year, in the manner provided in paragraph (c) until
the entire excess determined above has been allocated.
7.9 Forfeiture or Distribution of Excess Contributions
"Excess contributions" allocated to a Highly Compensated Employee pursuant to the preceding Section, plus any income and minus any losses attributable
thereto, shall be forfeited, to the extent forfeitable, or distributed to the Participant prior to the end of the next succeeding Plan Year as hereinafter provided. If
such excess amounts are distributed more than 2 1/2 months after the last day of the Plan Year for which the excess occurred, an excise tax may be imposed under
Code Section 4979 on the Employer maintaining the Plan with respect to such amounts.
The distribution or forfeiture requirement of this Section shall be satisfied by reducing contributions made by or on behalf of the Highly Compensated
Employee to the extent necessary in the following order:
(a)
Matching Contributions included in determining the Highly Compensated Employee's "contribution percentage" shall be distributed or
forfeited, as appropriate.
(b)
Tax−Deferred Contributions included in determining the Highly Compensated Employee's "contribution percentage" shall be distributed.
Excess Matching Contributions shall be distributed only to the extent a Participant has a vested interest in his Matching Contributions
Sub−Account and shall otherwise be forfeited. Any amounts forfeited with respect to a Participant pursuant to this Section shall be treated
as a forfeiture under the Plan no later than the last day of the Plan Year following the Plan Year for which the Matching Contributions were
made.
7.10 Treatment of Forfeited Matching Contributions
Any Matching Contributions that are forfeited pursuant to the provisions of the preceding Sections of this Article shall be treated as a forfeiture under the
Plan and applied in accordance with the provisions of Article XIV.
7.11 Determination of Income or Loss
The income or loss attributable to "excess contributions" that are distributed pursuant to this Article shall be determined for the preceding Plan Year under
the method otherwise used for allocating income or loss to Participants' Accounts.
7.12 Code Section 415 Limitations on Crediting of Contributions and Forfeitures
Notwithstanding any other provision of the Plan to the contrary, the "annual addition" with respect to a Participant for a "limitation year" shall in no event
exceed the lesser of (i) $30,000 (adjusted as provided in Code Section 415(d)) or (ii) 25 percent of the Participant's compensation, as defined in Code
Section 415(c)(3) and regulations issued thereunder, for the "limitation year"; provided, however, that the limit in clause (i) shall be pro−rated for any short
"limitation year". If the "annual addition" to the Account of a Participant in any "limitation year" would otherwise exceed the amount that may be applied for his
benefit under the limitation contained in this Section, the limitation shall be satisfied by reducing contributions made to the Participant's Account to the extent
necessary in the following order:
Tax−Deferred Contributions made by the Participant for the "limitation year" and the Matching Contributions attributable thereto, if any, shall be
reduced pro rata.
Qualified Nonelective Contributions otherwise allocable to the Participant's Account for the "limitation year", if any, shall be reduced.
The amount of any reduction of Tax−Deferred Contributions (plus any income attributable thereto) shall be returned to the Participant. The amount of any
reduction of Employer Contributions shall be deemed a forfeiture for the "limitation year".
Amounts deemed to be forfeitures under this Section shall be held unallocated in a suspense account established for the "limitation year" and shall be
applied against the Employer's contribution obligation for the next following "limitation year" (and succeeding "limitation years", as necessary). If a suspense
account is in existence at any time during a "limitation year", all amounts in the suspense account must be applied against the Employer's contribution obligation
before any further contributions that would constitute "annual additions" may be made to the Plan. No suspense account established hereunder shall share in any
increase or decrease in the net worth of the Trust.
For purposes of this Article, excesses shall result only from the allocation of forfeitures, a reasonable error in estimating a Participant's annual compensation
(as defined in Code Section 415(c)(3) and regulations issued thereunder), a reasonable error in determining the amount of "elective contributions" that may be
made with respect to any Participant under the limits of Code Section 415, or other limited facts and circumstances that justify the availability of the provisions
set forth above.
7.13 Application of Code Section 415 Limitations Where Participant is Covered Under Other Qualified Defined Contribution Plan
If a Participant is covered by any other qualified defined contribution plan (whether or not terminated) maintained by an Employer or a Related Company
concurrently with the Plan, and if the "annual addition" for the "limitation year" would otherwise exceed the amount that may be applied for the Participant's
benefit under the limitation contained in the preceding Section, such excess shall be reduced first by returning or forfeiting, as provided under the applicable
defined contribution plan, the contributions last allocated to the Participant's accounts for the "limitation year" under all such defined contribution plans, and, to
the extent such contributions are returned to the Participant, the income attributable thereto. If contributions are allocated to the defined contribution plans as of
the same date, any excess shall be allocated pro rata among the defined contribution plans. For purposes of determining the order of reduction hereunder,
contributions to a simplified employee pension plan described in Code Section 408(k) shall be deemed to have been allocated first and contributions to a welfare
benefit fund or individual medical account shall be deemed to have been allocated next, regardless of the date such contributions were actually allocated.
7.14 Scope of Limitations
The Code Section 415 limitations contained in the preceding Sections shall be applicable only with respect to benefits provided pursuant to defined
contribution plans and defined benefit plans described in Code Section 415(k). For purposes of applying the Code Section 415 limitations contained in the
preceding Sections, the term "Related Company" shall be adjusted as provided in Code Section 415(h).
ARTICLE VIII
TRUST FUNDS AND ACCOUNTS
8.1 General Fund
The Trustee shall maintain a General Fund as required to hold and administer any assets of the Trust that are not allocated among the Investment Funds as
provided in the Plan or the Trust Agreement. The General Fund shall be held and administered as a separate common trust fund. The interest of each Participant
or Beneficiary under the Plan in the General Fund shall be an undivided interest.
8.2 Investment Funds
The Sponsor shall determine the number and type of Investment Funds and shall communicate the same and any changes therein in writing to the
Administrator and the Trustee. Each Investment Fund shall be held and administered as a separate common trust fund. The interest of each Participant or
Beneficiary under the Plan in any Investment Fund shall be an undivided interest.
The Sponsor may determine to offer one or more Investment Funds that are invested primarily in equity securities issued by an Employer or a Related
Company that are publicly traded and are "qualifying employer securities" as defined in ERISA Section 407(d)(5). In no event may a Participant's Tax−Deferred
Contributions made for any Plan Year beginning on or after January 1, 1999 in excess of one percent of the Participant's Compensation for such Plan Year be
required to be invested in such equity securities.
8.3 Loan Investment Fund
If a loan from the Plan to a Participant is approved in accordance with the provisions of Article XII, the Sponsor shall direct the establishment and
maintenance of a loan Investment Fund in the Participant's name. The assets of the loan Investment Fund shall be held as a separate trust fund. A Participant's
loan Investment Fund shall be invested in the note(s) reflecting the loan(s) made to the Participant in accordance with the provisions of Article XII.
Notwithstanding any other provision of the Plan to the contrary, income received with respect to a Participant's loan Investment Fund shall be allocated and the
loan Investment Fund shall be administered as provided in Article XII.
8.4 Income on Trust
Any dividends, interest, distributions, or other income received by the Trustee with respect to any Trust Fund maintained hereunder shall be allocated by the
Trustee to the Trust Fund for which the income was received.
8.5 Accounts
As of the first date a contribution is made by or on behalf of an Employee there shall be established an Account in his name reflecting his interest in the
Trust. Each Account shall be maintained and administered for each Participant and Beneficiary in accordance with the provisions of the Plan. The balance of
each Account shall be the balance of the account after all credits and charges thereto, for and as of such date, have been made as provided herein.
8.6 Sub−Accounts
A Participant's Account shall be divided into such separate, individual Sub−Accounts as are necessary or appropriate to reflect the Participant's interest in
the Trust.
ARTICLE IX
LIFE INSURANCE CONTRACTS
9.1 No Life Insurance Contracts
A Participant's Account may not be invested in life insurance contracts on the life of the Participant.
ARTICLE X
DEPOSIT AND INVESTMENT OF CONTRIBUTIONS
10.1 Future Contribution Investment Elections
Each Eligible Employee shall make an investment election in the manner and form prescribed by the Administrator directing the manner in which the
contributions made on his behalf shall be invested. An Eligible Employee's investment election shall specify the percentage, in the percentage increments
prescribed by the Administrator, of such contributions that shall be allocated to one or more of the Investment Funds with the sum of such percentages equaling
100 percent. The investment election by a Participant shall remain in effect until his entire interest under the Plan is distributed or forfeited in accordance with the
provisions of the Plan or until he records a change of investment election with the Administrator, in such form as the Administrator shall prescribe. If recorded in
accordance with any rules prescribed by the Administrator, a Participant's change of investment election may be implemented effective as of the business day on
which the Administrator receives the Participant's instructions but not later than the next business day.
10.2 Deposit of Contributions
All contributions made on a Participant's behalf shall be deposited in the Trust and allocated among the Investment Funds in accordance with the
Participant's currently effective investment election, including investment in stock of The Sports Authority, Inc. If no investment election is recorded with the
Administrator at the time contributions are to be deposited to a Participant's Account, his contributions shall be allocated among the Investment Funds as directed
by the Administrator.
10.3 Election to Transfer Between Funds
A Participant may elect to transfer investments from any Investment Fund to any other Investment Fund. The Participant's transfer election shall specify a
percentage, in the percentage increments prescribed by the Administrator, of the amount eligible for transfer that is to be transferred, which percentage may not
exceed 100 percent. Any transfer election must be recorded with the Administrator, in such form as the Administrator shall prescribe. Subject to any restrictions
pertaining to a particular Investment Fund, if recorded in accordance with any rules prescribed by the Administrator, a Participant's transfer election may be
implemented effective as of the business day on which the Administrator receives the Participant's instructions.
10.4 404(c) Protection
The Plan is intended to constitute a plan described in ERISA Section 404(c) and regulations issued thereunder. The fiduciaries of the Plan may be relieved
of liability for any losses that are the direct and necessary result of investment instructions given by a Participant, his Beneficiary, or an alternate payee under a
qualified domestic relations order.
ARTICLE XI
CREDITING AND VALUING ACCOUNTS
11.1 Crediting Accounts
All contributions made under the provisions of the Plan shall be credited to Accounts in the Trust Funds by the Trustee, in accordance with procedures
established in writing by the Administrator, either when received or on the succeeding Valuation Date after valuation of the Trust Fund has been completed for
such Valuation Date as provided in Section 11.2, as shall be determined by the Administrator.
11.2 Valuing Accounts
Accounts in the Trust Funds shall be valued by the Trustee on the Valuation Date, in accordance with procedures established in writing by the
Administrator, either in the manner adopted by the Trustee and approved by the Administrator or in the manner set forth in Section 11.3 as Plan valuation
procedures, as determined by the Administrator.
11.3 Plan Valuation Procedures
With respect to the Trust Funds, the Administrator may determine that the following valuation procedures shall be applied. As of each Valuation Date
hereunder, the portion of any Accounts in a Trust Fund shall be adjusted to reflect any increase or decrease in the value of the Trust Fund for the period of time
occurring since the immediately preceding Valuation Date for the Trust Fund (the "valuation period") in the following manner:
(a)
First, the value of the Trust Fund shall be determined by valuing all of the assets of the Trust Fund at fair market value.
(b)
Next, the net increase or decrease in the value of the Trust Fund attributable to net income and all profits and losses, realized and
unrealized, during the valuation period shall be determined on the basis of the valuation under paragraph (a) taking into account appropriate
adjustments for contributions, loan payments, and transfers to and distributions, withdrawals, loans, and transfers from such Trust Fund
during the valuation period.
(c)
Finally, the net increase or decrease in the value of the Trust Fund shall be allocated among Accounts in the Trust Fund in the ratio of the
balance of the portion of such Account in the Trust Fund as of the preceding Valuation Date less any distributions, withdrawals, loans, and
transfers from such Account balance in the Trust Fund since the Valuation Date to the aggregate balances of the portions of all Accounts in
the Trust Fund similarly adjusted, and each Account in the Trust Fund shall be credited or charged with the amount of its allocated share.
Notwithstanding the foregoing, the Administrator may adopt such accounting procedures as it considers appropriate and equitable to
establish a proportionate crediting of net increase or decrease in the value of the Trust Fund for contributions, loan payments, and transfers
to and distributions, withdrawals, loans, and transfers from such Trust Fund made by or on behalf of a Participant during the valuation
period.
11.4 Finality of Determinations
The Trustee shall have exclusive responsibility for determining the value of each Account maintained hereunder. The Trustee's determinations thereof shall
be conclusive upon all interested parties.
11.5 Notification
Within a reasonable period of time after the end of each Plan Year, the Administrator shall notify each Participant and Beneficiary of the value of his
Account and Sub−Accounts as of a Valuation Date during the Plan Year.
ARTICLE XII
LOANS
12.1 Application for Loan
A Participant who is a party in interest as defined in ERISA Section 3(14) may make application to the Administrator for a loan from his Account, other
than from his Oshman prior employer contribution source. Loans shall be made to Participants in accordance with written guidelines which are hereby
incorporated into and made a part of the Plan. To the extent that such written guidelines comply with the requirements of Code Section 72(p), but are inconsistent
with the provisions of this Article, such written guidelines shall be given effect.
As collateral for any loan granted hereunder, the Participant shall grant to the Plan a security interest in his vested interest under the Plan equal to the
amount of the loan; provided, however, that in no event may the security interest exceed 50 percent of the Participant's vested interest under the Plan determined
as of the date as of which the loan is originated in accordance with Plan provisions. In the case of a Participant who is an active employee, the Participant also
shall enter into an agreement to repay the loan by payroll withholding. No loan in excess of 50 percent of the Participant's vested interest under the Plan shall be
made from the Plan. Loans shall not be made available to Highly Compensated Employees in an amount greater than the amount made available to other
employees.
A loan shall not be granted unless the Participant consents to the charging of his Account for unpaid principal and interest amounts in the event the loan is
declared to be in default.
12.2 Reduction of Account Upon Distribution
Notwithstanding any other provision of the Plan, the amount of a Participant's Account that is distributable to the Participant or his Beneficiary under
Article XIII or XV shall be reduced by the portion of his vested interest that is held by the Plan as security for any loan outstanding to the Participant, provided
that the reduction is used to repay the loan. If distribution is made because of the Participant's death prior to the commencement of distribution of his Account
and the Participant's vested interest in his Account is payable to more than one individual as Beneficiary, then the balance of the Participant's vested interest in
his Account shall be adjusted by reducing the vested account balance by the amount of the security used to repay the loan, as provided in the preceding sentence,
prior to determining the amount of the benefit payable to each such individual.
12.3 Requirements to Prevent a Taxable Distribution
Notwithstanding any other provision of the Plan to the contrary, the following terms and conditions shall apply to any loan made to a Participant under this
Article:
(a)
The interest rate on any loan to a Participant shall be a reasonable interest rate commensurate with current interest rates charged for loans
made under similar circumstances by persons in the business of lending money.
(b)
The amount of any loan to a Participant (when added to the outstanding balance of all other loans to the Participant from the Plan or any
other plan maintained by an Employer or a Related Company) shall not exceed the lesser of:
(i)
$50,000, reduced by the excess, if any, of the highest outstanding balance of any other loan to the Participant from the Plan or
any other plan maintained by an Employer or a Related Company during the preceding 12−month period over the outstanding
balance of such loans on the date a loan is made hereunder; or
(ii)
50 percent of the vested portions of the Participant's Account and his vested interest under all other plans maintained by an
Employer or a Related Company.
(c)
The term of any loan to a Participant shall be no greater than five years, except in the case of a loan used to acquire any dwelling unit which
within a reasonable period of time is to be used (determined at the time the loan is made) as a principal residence (as defined in Code
Section 121) of the Participant.
(d)
Substantially level amortization shall be required over the term of the loan with payments made not less frequently than quarterly, except
that if so provided in the written guidelines applicable to Plan loans, the amortization schedule may be waived and payments suspended
while a Participant is on a leave of absence from employment with an Employer or any Related Company (for periods in which the
Participant does not perform military service as described in paragraph (e)), provided that all of the following requirements are met:
(i)
Such leave is either without pay or at a reduced rate of pay that, after withholding for employment and income taxes, is less than
the amount required to be paid under the amortization schedule;
(ii)
Payments resume after the earlier of (a) the date such leave of absence ends or (b) the one−year anniversary of the date such
leave began;
(iii)
The period during which payments are suspended does not exceed one year;
(iv)
Payments resume in an amount not less than the amount required under the original amortization schedule; and
(v)
The waiver of the amortization schedule does not extend the period of the loan beyond the maximum period permitted under this
Article.
(e)
If a Participant is absent from employment with any Employer or any Related Company for a period during which he performs services in
the uniformed services (as defined in chapter 45 of title 38 of the United States Code), whether or not such services constitute qualified
military service, the suspension of payments shall not be taken into account for purposes of applying either paragraph (c) or
paragraph (d) of this Section provided that all of the following requirements are met:
(i)
Payments resume upon completion of such military service;
(ii)
Payments resume in an amount not less than the amount required under the original amortization schedule and continue in such
amount until the loan is repaid in full;
(iii)
Upon resumption, payments are made no less frequently than required under the original amortization schedule and continue
under such schedule until the loan is repaid in full; and
(iv)
The loan is repaid in full, including interest accrued during the period of such military service, no later than (1) for loans made
prior to January 1, 2004, the last scheduled repayment date under the original amortization schedule extended by the period of
such
military service and (2) for loans made on or after January 1, 2004, the maximum period otherwise permitted under this
Article extended by the period of such military service.
(f)
The loan shall be evidenced by a legally enforceable agreement that demonstrates compliance with the provisions of this section.
12.4 Administration of Loan Investment Fund
Upon approval of a loan to a Participant, the Administrator shall direct the Trustee to transfer an amount equal to the loan amount from the Investment
Funds in which it is invested, as directed by the Administrator, to the loan Investment Fund established in the Participant's name. Any loan approved by the
Administrator shall be made to the Participant out of the Participant's loan Investment Fund. All principal and interest paid by the Participant on a loan made
under this Article shall be deposited to his Account and shall be allocated upon receipt among the Investment Funds in accordance with the Participant's currently
effective investment election. The balance of the Participant's loan Investment Fund shall be decreased by the amount of principal payments and the loan
Investment Fund shall be terminated when the loan has been repaid in full.
12.5 Default
If either (1) a Participant fails to make or cause to be made, any payment required under the terms of the loan within 90 days following the date on which
such payment shall become due, unless payment is not made because the Participant is on a leave of absence and the amortization schedule is waived as provided
in Section 12.3(d) or (e), or (2) there is an outstanding principal balance existing on a loan after the last scheduled repayment date (extended as provided in
Section 12.3(e), if applicable), the Administrator shall direct the Trustee to declare the loan to be in default, and the entire unpaid balance of such loan, together
with accrued interest, shall be immediately due and payable. In any such event, if such balance and interest thereon is not then paid, the Trustee shall charge the
Account of the borrower with the amount of such balance and interest as of the earliest date a distribution may be made from the Plan to the borrower without
adversely affecting the tax qualification of the Plan or of the cash or deferred arrangement.
12.6 Deemed Distribution Under Code Section 72(p)
If a Participant's loan is in default as provided in Section 12.5, the Participant shall be deemed to have received a taxable distribution in the amount of the
outstanding loan balance as required under Code Section 72(p), whether or not distribution may actually be made from the Plan without adversely affecting the
tax qualification of the Plan; provided, however, that the taxable portion of such deemed distribution shall be reduced in accordance with the provisions of Code
Section 72(e) to the extent the deemed distribution is attributable to the Participant's After−Tax Contributions.
If a Participant is deemed to have received distribution of an outstanding loan balance hereunder, no further loans may be made to such Participant from his
Account unless either (a) there is a legally enforceable arrangement among the Participant, the Plan, and the Participant's employer that repayment of such loan
shall be made by payroll withholding or (b) the loan is secured by such additional collateral consisting of real, personal, or other property satisfactory to the
Administrator to provide adequate security for the loan.
12.7 Treatment of Outstanding Balance of Loan Deemed Distributed Under Code Section 72(p)
With respect to any loan made on or after January 1, 2002, the balance of such loan that is deemed to have been distributed to a Participant hereunder shall
cease to be an outstanding loan for purposes of Code Section 72(p) and a Participant shall not be treated as having received a taxable distribution when his
Account is offset by such outstanding loan balance as provided in Section 12.5. Any interest that accrues on a loan after it is deemed to have been distributed
shall not be treated as an additional loan to the Participant and shall not be included in the Participant's taxable income as a deemed distribution. Notwithstanding
the foregoing, however, unless a Participant repays such loan, with interest, the amount of such loan, with interest thereon calculated as provided in the original
loan note, shall continue to be considered an outstanding loan for purposes of determining the maximum permissible amount of any subsequent loan under
Section 12.3(b).
If a Participant elects to make payments on a loan after it is deemed to have been distributed hereunder, such payments shall be treated as After−Tax
Contributions to the Plan solely for purposes of determining the taxable portion of the Participant's Account and shall not be treated as After−Tax Contributions
for any other Plan purpose, including application of the limitations on contributions applicable under Code Sections 401(m) and 415.
12.8 Special Rules Applicable to Loans
Any loan made hereunder shall be subject to the following rules:
(a)
Loans Limited to Eligible Employees: No loans shall be made to an Employee who makes a Rollover Contribution in accordance with
Article V, but who is not an Eligible Employee as provided in Article III.
(b)
Minimum Loan Amount: A Participant may not request a loan for less than $1,000.
(c)
Maximum Number of Outstanding Loans: A Participant with an outstanding loan may not apply for another loan until the existing loan is
paid in full and may not refinance an existing loan or obtain a second loan for the purpose of paying off the existing loan. The provisions of
this paragraph shall not apply to any loans made prior to the effective date of this amendment and restatement; provided, however, that any
such loan shall be taken into account in determining whether a Participant may apply for a new loan hereunder.
(d)
Maximum Period for Principal Residence Loan: The term of any loan to a Participant that is used to acquire any dwelling unit which within
a reasonable period of time is to be used (determined at the time the loan is made) as a principal residence (as defined in Code Section 121)
of the Participant shall be no greater than ten years.
(e)
Pre−Payment Without Penalty: A Participant may pre−pay the balance of any loan hereunder prior to the date it is due without penalty.
(f)
Effect of Termination of Employment: Upon a Participant's termination of employment, the balance of any outstanding loan hereunder shall
immediately become due and owing.
(g)
No Roll Over of Loans: A Participant may not elect to roll over any loan note held pursuant to the provisions of this Article.
12.9 Loans Granted Prior to Amendment
Notwithstanding any other provision of this Article to the contrary, any loan made under the provisions of the Plan as in effect prior to this amendment and
restatement shall remain outstanding until repaid in accordance with its terms or the otherwise applicable Plan provisions.
ARTICLE XIII
WITHDRAWALS WHILE EMPLOYED
13.1 Non−Hardship Withdrawals of After−Tax Contributions
A Participant who is employed by an Employer or a Related Company may elect at any time, subject to the limitations and conditions prescribed in this
Article, to make a cash withdrawal from his After−Tax Contributions Sub−Account.
13.2 Non−Hardship Withdrawals of Rollover Contributions
A Participant who is employed by an Employer or a Related Company may elect at any time, subject to the limitations and conditions prescribed in this
Article, to make a cash withdrawal from his Rollover Contributions Sub−Account.
13.3 Age 591/2 Withdrawals
A Participant who is employed by an Employer or a Related Company and who has attained age 59 1/2 may elect, subject to the limitations and conditions
prescribed in this Article, to make a cash withdrawal from his vested interest in any of the following Sub−Accounts:
(a)
his Tax−Deferred Contributions Sub−Account.
(b)
his Qualified Nonelective Contributions Sub−Account.
(c)
his Regular Matching Contributions Sub−Account.
(d)
his Additional Discretionary Matching Contributions Sub−Account.
(e)
his Prior Employer Contributions Sub−Account.
(f)
his Prior Safe Harbor Contributions Sub−Account.
(g)
his Prior Nonelective Contributions Sub−Account.
13.4 Non−Hardship Withdrawals of Employer Contributions
A Participant who is employed by Oshman and who has been a Participant under the Plan for at least 60 months may elect, subject to the limitations and
conditions prescribed in this Article, to make a one−time cash withdrawal of 50 percent of the amounts held in his Account.
A Participant who is a former employee of TSA Stores, Inc. and who has been a Participant under the Plan for at least 60 months may elect, subject to the
limitations and conditions prescribed in this Article, to make a cash withdrawal of amounts held in his Prior Employer Contributions Sub−Account.
13.5 Overall Limitations on Non−Hardship Withdrawals
Non−hardship withdrawals made pursuant to this Article shall be subject to the following conditions and limitations:
(a)
A Participant must apply for a non−hardship withdrawal such number of days prior to the date as of which it is to be effective as the
Administrator may prescribe.
(b)
Withdrawals may be made effective as soon as administratively practicable after the Administrator's approval of the Participant's
withdrawal application.
(c)
A Participant may not make more than one non−hardship withdrawal in accordance with the provisions of this Article during a calendar
month.
13.6 Hardship Withdrawals
A Participant who is employed by an Employer or a Related Company and who is determined by the Administrator to have incurred a hardship in
accordance with the provisions of this Article may elect, subject to the limitations and conditions prescribed in this Article, to make a cash withdrawal from his
vested interest in any of the following Sub−Accounts:
(a)
his Tax−Deferred Contributions Sub−Account, excluding any income credited to such Sub−Account.
(b)
his Regular Matching Contributions Sub−Account.
(c)
his Additional Discretionary Matching Contributions Sub−Account.
13.7 Hardship Determination
The Administrator shall grant a hardship withdrawal only if it determines that the withdrawal is necessary to meet an immediate and heavy financial need of
the Participant. An immediate and heavy financial need of the Participant means a financial need on account of:
(a)
expenses previously incurred by or necessary to obtain for the Participant, the Participant's spouse, or any dependent of the Participant (as
defined in Code Section 152) medical care described in Code Section 213(d);
(b)
costs directly related to the purchase (excluding mortgage payments) of a principal residence for the Participant;
(c)
payment of tuition, related educational fees, and room and board expenses for the next 12 months of post−secondary education for the
Participant, the Participant's spouse, or any dependent of the Participant; or
(d)
the need to prevent the eviction of the Participant from his principal residence or foreclosure on the mortgage of the Participant's principal
residence.
13.8 Satisfaction of Necessity Requirement for Hardship Withdrawals
A withdrawal shall be deemed to be necessary to satisfy an immediate and heavy financial need of a Participant only if the Participant satisfies all of the
following requirements:
(a)
The withdrawal is not in excess of the amount of the immediate and heavy financial need of the Participant.
(b)
The Participant has obtained all distributions, other than hardship distributions, and all non−taxable loans currently available under all plans
maintained by an Employer or any Related Company.
(c)
The Participant's Tax−Deferred Contributions and the Participant's "elective contributions" and "employee contributions", as defined in
Article VII, under all other qualified and non−qualified deferred compensation plans maintained by an Employer or any Related Company
shall be suspended for at least six months after his receipt of the withdrawal.
(d)
The Participant's Tax−Deferred Contributions and "elective contributions", as defined in Article VII, for his taxable year immediately
following the taxable year of the withdrawal shall not exceed the applicable limit under Code Section 402(g) for such next taxable year less
the amount of the Participant's Tax−Deferred Contributions and "elective contributions" for the taxable year of the withdrawal.
A Participant shall not fail to be treated as an Eligible Employee for purposes of applying the limitations contained in Article VII of the Plan merely because
his Tax−Deferred Contributions are suspended in accordance with this Section.
13.9 Conditions and Limitations on Hardship Withdrawals
Hardship withdrawals made pursuant to this Article shall be subject to the following conditions and limitations:
(a)
A Participant must apply for a hardship withdrawal such number of days prior to the date as of which it is to be effective as the
Administrator may prescribe.
(b)
Hardship withdrawals may be made effective as soon as administratively practicable after the Administrator's approval of the Participant's
withdrawal application.
(c)
The amount of a hardship withdrawal may include any amounts necessary to pay any Federal, state, or local income taxes or penalties
reasonably anticipated to result from the distribution.
13.10 Order of Withdrawal from a Participant's Sub−Accounts
Distribution of a withdrawal amount shall be made from a Participant's Sub−Accounts, to the extent necessary, in the order prescribed by the Administrator,
which order shall be uniform with respect to all Participants and non−discriminatory. If the Sub−Account from which a Participant is receiving a withdrawal is
invested in more than one Investment Fund, the withdrawal shall be charged against the Investment Funds as directed by the Administrator.
ARTICLE XIV
TERMINATION OF EMPLOYMENT AND SETTLEMENT DATE
14.1 Termination of Employment and Settlement Date
A Participant's Settlement Date shall occur on the date he terminates employment with the Employers and all Related Companies because of death,
disability, retirement, or other termination of employment. Written notice of a Participant's Settlement Date shall be given by the Administrator to the Trustee.
14.2 Separate Accounting for Non−Vested Amounts
If as of a Participant's Settlement Date the Participant's vested interest in his Employer Contributions Sub−Account is less than 100 percent, that portion of
his Employer Contributions Sub−Account that is not vested shall be accounted for separately from the vested portion and shall be disposed of as provided in the
following Section. If prior to such Settlement Date the Participant received a distribution under the Plan, his vested interest in his Employer Contributions
Sub−Account shall be an amount ("X") determined by the following formula:
X = P(AB + D) − D
For purposes of the formula:
P
=
The Participant's vested interest in his Employer Contributions Sub−Account on the date
distribution is to be made.
AB
=
The balance of the Participant's Employer Contributions Sub−Account as of the Valuation Date
immediately preceding the date distribution is to be made.
D
=
The amount of all prior distributions from the Participant's Employer Contributions Sub−Account.
Amounts deemed to have been distributed to a Participant pursuant to Code Section 72(p), but
which have not actually been offset against the Participant's Account balance shall not be
considered distributions hereunder.
14.3 Disposition of Non−Vested Amounts
That portion of a Participant's Employer Contributions Sub−Account that is not vested upon the occurrence of his Settlement Date shall be disposed of as
follows:
(a)
If the Participant has no vested interest in his Account upon the occurrence of his Settlement Date or his vested interest in his Account as of
the date of distribution does not exceed $5,000, resulting in the distribution or deemed distribution to the Participant of his entire vested
interest in his Account, the non−vested balance remaining in the Participant's Employer Contributions Sub−Account shall be forfeited and
his Account closed as of (i) the Participant's Settlement Date, if the Participant has no vested interest in his Account and is therefore
deemed to have received distribution on that date, or (ii) the date actual distribution is made to the Participant.
(b)
If the Participant's vested interest in his Account exceeds $5,000 and the Participant is eligible for and consents in writing to a single sum
payment of his vested interest in his Account, the non−vested balance remaining in the Participant's Employer Contributions Sub−Account
shall be forfeited and his Account closed as of the date the single sum payment occurs, provided that such distribution is made because of
the Participant's Settlement Date. A distribution is deemed to be made because of a Participant's Settlement Date if it occurs prior to the end
of the second Plan Year beginning on or after the Participant's Settlement Date.
(c)
If neither paragraph (a) nor paragraph (b) is applicable, the non−vested balance remaining in the Participant's Employer Contributions
Sub−Account shall continue to be held in such Sub−Account and shall not be forfeited until the date the Participant incurs five consecutive
Breaks in Service.
14.4 Treatment of Forfeited Amounts
Whenever the non−vested balance of a Participant's Employer Contributions Sub−Account is forfeited during a Plan Year in accordance with the provisions
of the preceding Section, the amount of such forfeiture shall be applied first against the Employer Contribution obligations for any subsequent Contribution
Period of the Employer for which the Participant last performed services as an Employee and then against Plan expenses. Notwithstanding the foregoing,
however, should the amount of all such forfeitures for any Contribution Period with respect to any Employer exceed the amount of such Employer's Employer
Contribution obligation for the Contribution Period, the excess amount of such forfeitures shall be held unallocated in a suspense account established with respect
to the Employer and shall be applied against Plan expenses and the Employer's Employer Contribution obligations for the following Contribution Period.
14.5 Recrediting of Forfeited Amounts
A former Participant who forfeited the non−vested portion of his Employer Contributions Sub−Account in accordance with the provisions of
paragraph (a) or (b) of Section 14.3 and who is reemployed by an Employer or a Related Company shall have such forfeited amounts recredited to a new
Account in his name, without adjustment for interim gains or losses experienced by the Trust, if:
(a)
he returns to employment with an Employer or a Related Company before he incurs five consecutive Breaks in Service commencing after
the date he received, or is deemed to have received, distribution of his vested interest in his Account;
(b)
he resumes employment covered under the Plan before the earlier of (i) the end of the five−year period beginning on the date he is
reemployed or (ii) the date he incurs five consecutive Breaks in Service commencing after the date he received, or is deemed to have
received, distribution of his vested interest in his Account; and
(c)
if he received actual distribution of his vested interest in his Account, he repays to the Plan the full amount of such distribution that is
attributable to Employer Contributions before the earlier of (i) the end of the five year period beginning on the date he is reemployed or
(ii) the date he incurs five consecutive Breaks in Service commencing after the date he received distribution of his vested interest in his
Account.
Funds needed in any Plan Year to recredit the Account of a Participant with the amounts of prior forfeitures in accordance with the preceding sentence shall
come first from forfeitures that arise during such Plan Year, and then from Trust income earned in such Plan Year, to the extent that it has not yet been allocated
among Participants' Accounts as provided in Article XI, with each Trust Fund being charged with the amount of such income proportionately, unless his
Employer chooses to make an additional Employer Contribution, and shall finally be provided by his Employer by way of a separate Employer Contribution.
ARTICLE XV
DISTRIBUTIONS
15.1 Distributions to Participants
A Participant whose Settlement Date occurs shall receive distribution of his vested interest in his Account in the form provided under Article XVI beginning
as soon as reasonably practicable following his Settlement Date or the date his application for distribution is filed with the Administrator, if later.
15.2 Partial Distributions to Retired or Terminated Participants
A Participant whose Settlement Date has occurred, but who has not reached his Required Beginning Date may elect to receive partial distribution of any
portion of his Account at any time prior to his Required Beginning Date in the form provided in Article XVI.
15.3 Distributions to Beneficiaries
If a Participant dies prior to his Benefit Payment Date, his Beneficiary shall receive distribution of the Participant's vested interest in his Account in the form
provided under Article XVI beginning as soon as reasonably practicable following the date the Beneficiary's application for distribution is filed with the
Administrator. Unless distribution is to be made over the life or over a period certain not greater than the life expectancy of the Beneficiary, distribution of the
Participant's entire vested interest shall be made to the Beneficiary no later than the end of the fifth calendar year beginning after the Participant's death. If
distribution is to be made over the life or over a period certain no greater than the life expectancy of the Beneficiary, distribution shall commence no later than:
(a)
If the Beneficiary is not the Participant's spouse, the end of the first calendar year beginning after the Participant's death; or
(b)
If the Beneficiary is the Participant's spouse, the later of (i) the end of the first calendar year beginning after the Participant's death or
(ii) the end of the calendar year in which the Participant would have attained age 70 1/2.
If distribution is to be made to a Participant's spouse, it shall be made available within a reasonable period of time after the Participant's death that is no less
favorable than the period of time applicable to other distributions. If a Participant dies after the date distribution of his vested interest in his Account begins under
this Article, but before his entire vested interest in his Account is distributed, his Beneficiary shall receive distribution of the remainder of the Participant's vested
interest in his Account beginning as soon as reasonably practicable following the Participant's date of death in a form that provides for distribution at least as
rapidly as under the form in which the Participant was receiving distribution.
15.4 Cash Outs and Participant Consent
Notwithstanding any other provision of the Plan to the contrary, if a Participant's vested interest in his Account does not exceed $5,000, distribution of such
vested interest shall be made to the Participant in a single sum payment or through a direct rollover, as described in Article XVI, as soon as reasonably
practicable following his Settlement Date. If a Participant has no vested interest in his Account on his Settlement Date, he shall be deemed to have received
distribution of such vested interest on his Settlement Date.
If a Participant's vested interest in his Account exceeds $5,000, distribution shall not commence to such Participant prior to his Normal Retirement Date
without the Participant's written consent.
15.5 Required Commencement of Distribution
Notwithstanding any other provision of the Plan to the contrary, distribution of a Participant's vested interest in his Account shall commence to the
Participant no later than the earlier of:
(a)
unless the Participant elects a later date, 60 days after the close of the Plan Year in which (i) the Participant's Normal Retirement Date
occurs, (ii) the tenth anniversary of the year in which he commenced participation in the Plan occurs, or (iii) his Settlement Date occurs,
whichever is latest; or
(b)
his Required Beginning Date.
Distributions required to commence under this Section shall be made in the form provided under Article XVI and in accordance with Code
Section 401(a)(9) and regulations issued thereunder, including the minimum distribution incidental benefit requirements.
15.6 Reemployment of a Participant
If a Participant whose Settlement Date has occurred is reemployed by an Employer or a Related Company, he shall lose his right to any distribution or
further distributions from the Trust arising from his prior Settlement Date and his interest in the Trust shall thereafter be treated in the same manner as that of any
other Participant whose Settlement Date has not occurred.
15.7 Restrictions on Alienation
Except as provided in Code Section 401(a)(13) (relating to qualified domestic relations orders), Code Section 401(a)(13)(C) and (D) (relating to offsets
ordered or required under a criminal conviction involving the Plan, a civil judgment in connection with a violation or alleged violation of fiduciary
responsibilities under ERISA, or a settlement agreement between theParticipant and the Department of Labor in connection with a violation or alleged violation
of fiduciary responsibilities under ERISA), Section 1.401(a)−13(b)(2) of Treasury regulations (relating to Federal tax levies and judgments), or as otherwise
required by law, no benefit under the Plan at any time shall be subject in any manner to anticipation, alienation, assignment (either at law or in equity),
encumbrance, garnishment, levy, execution, or other legal or equitable process; and no person shall have power in any manner to anticipate, transfer, assign
(either at law or in equity), alienate or subject to attachment, garnishment, levy, execution, or other legal or equitable process, or in any way encumber his
benefits under the Plan, or any part thereof, and any attempt to do so shall be void.
15.8 Facility of Payment
If the Administrator finds that any individual to whom an amount is payable hereunder is incapable of attending to his financial affairs because of any
mental or physical condition, including the infirmities of advanced age, such amount (unless prior claim therefore shall have been made by a duly qualified
guardian or other legal representative) may, in the discretion of the Administrator, be paid to another person for the use or benefit of the individual found
incapable of attending to his financial affairs or in satisfaction of legal obligations incurred by or on behalf of such individual. The Trustee shall make such
payment only upon receipt of written instructions to such effect from the Administrator. Any such payment shall be charged to the Account from which any such
payment would otherwise have been paid to the individual found incapable of attending to his financial affairs and shall be a complete discharge of any liability
therefore under the Plan.
15.9 Inability to Locate Payee
If any benefit becomes payable to any person, or to the executor or administrator of any deceased person, and if that person or his executor or administrator
does not present himself to the Administrator within a reasonable period after the Administrator mails written notice of his eligibility to receive a distribution
hereunder to his last known address and makes such other diligent effort to locate the person as the Administrator determines, that benefit will be forfeited.
However, if the payee later files a claim for that benefit, the benefit will be restored.
15.10 Distribution Pursuant to Qualified Domestic Relations Orders
Notwithstanding any other provision of the Plan to the contrary, if a qualified domestic relations order so provides, distribution may be made to an alternate
payee pursuant to a qualified domestic relations order, as defined in Code Section 414(p), regardless of whether the Participant's Settlement Date has occurred or
whether the Participant is otherwise entitled to receive a distribution under the Plan.
ARTICLE XVI
FORM OF PAYMENT
16.1 Form of Payment
Distribution shall be made to a Participant, or his Beneficiary, if the Participant has died, in a single sum cash payment.
16.2 Direct Rollover
Notwithstanding any other provision of the Plan to the contrary, in lieu of receiving distribution in the form of payment provided under this Article, a
"qualified distributee" may elect in writing, in accordance with rules prescribed by the Administrator, to have a portion or all of any "eligible rollover
distribution" paid directly by the Plan to the "eligible retirement plan" designated by the "qualified distributee". Any such payment by the Plan to another
"eligible retirement plan" shall be a direct rollover.
Notwithstanding the foregoing, a "qualified distributee" may not elect a direct rollover with respect to a portion of an "eligible rollover distribution" if the
value of such portion is less than $500. For purposes of this Section, the following terms have the following meanings:
(a)
An "eligible retirement plan" means an individual retirement account described in Code Section 408(a), an individual retirement annuity
described in Code Section 408(b), an annuity plan described in Code Section 403(a), or a qualified trust described in Code
Section 401(a) that accepts rollovers; provided, however, that, in the case of a direct rollover by a surviving spouse, an eligible retirement
plan does not include a qualified trust described in Code Section 401(a).
(b)
An "eligible rollover distribution" means any distribution of all or any portion of the balance of a Participant's Account; provided, however,
that an eligible rollover distribution does not include the following:
(i)
any distribution to the extent such distribution is required under Code Section 401(a)(9).
(ii)
the portion of any distribution that consists of the Participant's After−Tax Contributions.
(iii)
any hardship withdrawal of Tax−Deferred Contributions made in accordance with the provisions of Article XIII.
(c)
A "qualified distributee" means a Participant, his surviving spouse, or his spouse or former spouse who is an alternate payee under a
qualified domestic relations order, as defined in Code Section 414(p).
16.3 Notice Regarding Forms of Payment
Within the 60 day period ending 30 days before a Participant's Benefit Payment Date, the Administrator shall provide the Participant with a written
explanation of his right to defer distribution until his Normal Retirement Date, or such later date as may be provided in the Plan, his right to make a direct
rollover, and the form of payment provided under the Plan. Distribution of the Participant's Account may commence fewer than 30 days after such notice is
provided to the Participant if (i) the Administrator clearly informs the Participant of his right to consider his election of whether or not to make a direct rollover
or to receive a distribution prior to his Normal Retirement Date for a period of at least 30 days following his receipt of the notice and (ii) the Participant, after
receiving the notice, affirmatively elects an early distribution.
16.4 Distribution in the Form of Employer Stock
Notwithstanding any other provision of the Plan to the contrary, to the extent that his Account is invested in Employer stock on the date distribution is to be
made to a Participant, the Participant may elect to receive distribution of the fair market value of such Account in the form of Employer stock.
16.5 Elimination of Optional Forms of Payment
Prior to the effective date of this amendment and restatement, the Plan provided for distribution in the form of installment payments. The Plan no longer
provides for distribution in that form. Notwithstanding the foregoing, if a Participant's Benefit Payment Date occurs before the earlier of (1) 90 days following
the date the Participant is provided with a notice describing elimination of such form of payment that meets the requirements of Department of Labor Regulations
Section 2520.104b−3 or (2) the first day of the second Plan Year following the Plan Year in which the amendment and restatement is adopted, the Participant
may elect to receive distribution under the eliminated form of payment as provided under the Plan as in effect immediately prior to the effective date of the
amendment and restatement.
ARTICLE XVII
BENEFICIARIES
17.1 Designation of Beneficiary
An unmarried Participant's Beneficiary shall be the person or persons designated by such Participant in accordance with rules prescribed by the
Administrator. A married Participant's Beneficiary shall be his spouse, unless the Participant designates a person or persons other than his spouse as Beneficiary
with his spouse's written consent. For purposes of this Section, a Participant shall be treated as unmarried and spousal consent shall not be required if the
Participant is not married on his Benefit Payment Date.
If no Beneficiary has been designated pursuant to the provisions of this Section, or if no Beneficiary survives the Participant and he has no surviving spouse,
then the Beneficiary under the Plan shall be the deceased Participant's surviving children in equal shares or, if there are no surviving children, the Participant's
estate. If a Beneficiary dies after becoming entitled to receive a distribution under the Plan but before distribution is made to him in full, and if the Participant has
not designated another Beneficiary to receive the balance of the distribution in that event, the estate of the deceased Beneficiary shall be the Beneficiary as to the
balance of the distribution.
17.2 Spousal Consent Requirements
Any written spousal consent given pursuant to this Article must acknowledge the effect of the action taken and must be witnessed by a Plan representative
or a notary public. In addition, the spouse's written consent must either (i) specify any non−spouse Beneficiary designated by the Participant and that such
Beneficiary may not be changed without written spousal consent or (ii) acknowledge that the spouse has the right to limit consent to a specific Beneficiary, but
permit the Participant to change the designated Beneficiary without the spouse's further consent. A Participant's spouse will be deemed to have given written
consent to the Participant's designation of Beneficiary if the Participant establishes to the satisfaction of a Plan representative that such consent cannot be
obtained because the spouse cannot be located or because of other circumstances set forth in Section 401(a)(11) of the Code and regulations issued thereunder.
Any written consent given or deemed to have been given by a Participant's spouse hereunder shall be valid only with respect to the spouse who signs the consent.
ARTICLE XVIII
ADMINISTRATION
18.1 Authority of the Sponsor
The Sponsor, which shall be the administrator for purposes of ERISA and the plan administrator for purposes of the Code, shall be responsible for the
administration of the Plan and, in addition to the powers and authorities expressly conferred upon it in the Plan, shall have all such powers and authorities as may
be necessary to carry out the provisions of the Plan, including the power and authority to interpret and construe the provisions of the Plan, to make benefit
determinations, and to resolve any disputes which arise under the Plan. The Sponsor may employ such attorneys, agents, and accountants as it may deem
necessary or advisable to assist in carrying out its duties hereunder. The Sponsor shall be a "named fiduciary" as that term is defined in ERISA Section 402(a)(2).
The Sponsor, by action of its board of directors, may:
(a)
allocate any of the powers, authority, or responsibilities for the operation and administration of the Plan (other than trustee responsibilities
as defined in ERISA Section 405(c)(3)) among named fiduciaries; and
(b)
designate a person or persons other than a named fiduciary to carry out any of such powers, authority, or responsibilities;
except that no allocation by the Sponsor of, or designation by the Sponsor with respect to, any of such powers, authority, or responsibilities to another named
fiduciary or a person other than a named fiduciary shall become effective unless such allocation or designation shall first be accepted by such named fiduciary or
other person in a writing signed by it and delivered to the Sponsor.
18.2 Discretionary Authority
In carrying out its duties under the Plan, including making benefit determinations, interpreting or construing the provisions of the Plan, and resolving
disputes, the Sponsor (or any individual to whom authority has been delegated in accordance with Section 18.1) shall have absolute discretionary authority.
18.3 Action of the Sponsor
Any act authorized, permitted, or required to be taken under the Plan by the Sponsor and which has not been delegated in accordance with Section 18.1, may
be taken by a majority of the members of the board of directors of the Sponsor, either by vote at a meeting, or in writing without a meeting, or by the employee or
employees of the Sponsor designated by the board of directors to carry out such acts on behalf of the Sponsor. All notices, advice, directions, certifications,
approvals, and instructions required or authorized to be given by the Sponsor as under the Plan shall be in writing and signed by either (i) a majority of the
members of the Sponsor's board of directors or by such member or members as may be designated by an instrument in writing, signed by all the members
thereof, as having authority to execute such documents on its behalf, or (ii) the employee or employees authorized to act for the Sponsor in accordance with the
provisions of this Section.
18.4 Claims Review Procedure
Whenever a claim for benefits under the Plan filed by any person (herein referred to as the "Claimant") is denied, whether in whole or in part, the Sponsor
shall transmit a written notice of such decision to the Claimant within 90 days of the date the claim was filed or, if special circumstances require an extension,
within 180 days of such date, which notice shall be written in a manner calculated to be understood by the Claimant and shall contain a statement of (i) the
specific reasons for the denial of the claim, (ii) specific reference to pertinent Plan provisions on which the denial is based, (iii) a description of any additional
material or information necessary for the Claimant to perfect the claim and an explanation of why such information is necessary, (iv) that the Claimant is entitled
to receive, upon request and free of charge, reasonable access to, and copies of, all documents, (v) records and other information relevant to the Claimant's claim,
a description of the review procedures and in the event of an adverse review decision, a statement describing any voluntary review procedures and the Claimant's
right to obtain copies of such procedures, and (vi) a statement that there is no further administrative review following the initial review, and that the Claimant has
a right to bring a civil action under ERISA Section 502(a) if the Sponsor's decision on review is adverse to the Claimant. The notice shall also include a statement
advising the Claimant that, within 60 days of the date on which he receives such notice, he may obtain review of such decision in accordance with the procedures
hereinafter set forth. Within such 60−day period, the Claimant or his authorized representative may request that the claim denial be reviewed by filing with the
Sponsor a written request therefor, which request shall contain the following information:
(a)
the date on which the Claimant's request was filed with the Sponsor; provided, however, that the date on which the Claimant's request for
review was in fact filed with the Sponsor shall control in the event that the date of the actual filing is later than the date stated by the
Claimant pursuant to this paragraph;
(b)
the specific portions of the denial of his claim which the Claimant requests the Sponsor to review;
(c)
a statement by the Claimant setting forth the basis upon which he believes the Sponsor should reverse the previous denial of his claim for
benefits and accept his claim as made; and
(d)
any written material (offered as exhibits) which the Claimant desires the Sponsor to examine in its consideration of his position as stated
pursuant to paragraph (c) of this Section.
Within 60 days of the date determined pursuant to paragraph (a) of this Section or, if special circumstances require an extension, within 120 days of such
date, the Sponsor shall conduct a full and fair review of the decision denying the Claimant's claim for benefits and shall render its written decision on review to
the Claimant. The Sponsor's decision on review shall be written in a manner calculated to be understood by the Claimant and shall specify the reasons and Plan
provisions upon which the Sponsor's decision was based. Notwithstanding the foregoing, special procedures apply for processing claims and reviewing prior
claim determinations if a Claimant's claim for benefits is contingent upon a determination as to whether a Participant is Disabled under the Plan.
18.5 Qualified Domestic Relations Orders
The Sponsor shall establish reasonable procedures to determine the status of domestic relations orders and to administer distributions under domestic
relations orders which are deemed to be qualified orders. Such procedures shall be in writing and shall comply with the provisions of Code Section 414(p) and
regulations issued thereunder.
18.6 Indemnification
In addition to whatever rights of indemnification the Trustee or the members of the Sponsor's board of directors or any employee or employees of the
Sponsor to whom any power, authority, or responsibility is delegated pursuant to Section 18.3, may be entitled under the articles of incorporation or regulations
of the Sponsor, under any provision of law, or under any other agreement, the Sponsor shall satisfy any liability actually and reasonably incurred by any such
person or persons, including expenses, attorneys' fees, judgments, fines, and amounts paid in settlement (other than amounts paid in settlement not approved by
the Sponsor), in connection with any threatened, pending or completed action, suit, or proceeding which is related to the exercising or failure to exercise by such
person or persons of any of the powers, authority, responsibilities, or discretion as provided under the Plan, or reasonably believed by such person or persons to
be provided hereunder, and any action taken by such person or persons in connection therewith, unless the same is judicially determined to be the result of such
person or persons' gross negligence or willful misconduct.
18.7 Actions Binding
Subject to the provisions of Section 18.4, any action taken by the Sponsor which is authorized, permitted, or required under the Plan shall be final and
binding upon the Employers, the Trustee, all persons who have or who claim an interest under the Plan, and all third parties dealing with the Employers or the
Trustee.
ARTICLE XIX
AMENDMENT AND TERMINATION
19.1 Amendment
Subject to the provisions of Section 19.2, the Sponsor may at any time and from time to time, by action of its board of directors, or such officers of the
Sponsor as are authorized by its board of directors, amend the Plan, either prospectively or retroactively. Any such amendment shall be by written instrument
executed by the Sponsor.
19.2 Limitation on Amendment
The Sponsor shall make no amendment to the Plan which shall decrease the accrued benefit of any Participant or Beneficiary, except that nothing contained
herein shall restrict the right to amend the provisions of the Plan relating to the administration of the Plan and Trust. Moreover, no such amendment shall be
made hereunder which shall permit any part of the Trust to revert to an Employer or any Related Company or be used or be diverted to purposes other than the
exclusive benefit of Participants and Beneficiaries. The Sponsor shall make no retroactive amendment to the Plan unless such amendment satisfies the
requirements of Code Section 401(b) and/or Section 1.401(a)(4)−11(g) of the Treasury regulations, as applicable.
19.3 Termination
The Sponsor reserves the right, by action of its board of directors, to terminate the Plan as to all Employers at any time (the effective date of such
termination being hereinafter referred to as the "termination date"). Upon any such termination of the Plan, the following actions shall be taken for the benefit of
Participants and Beneficiaries:
(a)
As of the termination date, each Investment Fund shall be valued and all Accounts and Sub−Accounts shall be adjusted in the manner
provided in Article XI, with any unallocated contributions or forfeitures being allocated as of the termination date in the manner otherwise
provided in the Plan. The termination date shall become a Valuation Date for purposes of
Article XI. In determining the net worth of the Trust, there shall be included as a liability such amounts as shall be necessary to pay all
expenses in connection with the termination of the Trust and the liquidation and distribution of the property of the Trust, as well as other
expenses, whether or not accrued, and shall include as an asset all accrued income.
(b)
All Accounts shall then be disposed of to or for the benefit of each Participant or Beneficiary in accordance with the provisions of
Article XV as if the termination date were his Settlement Date; provided, however, that notwithstanding the provisions of Article XV, if the
Plan does not offer an annuity option and if neither his Employer nor a Related Company establishes or maintains another defined
contribution plan (other than an employee stock ownership plan as defined in Code Section 4975(e)(7)), the Participant's written consent to
the commencement of distribution shall not be required regardless of the value of the vested portions of his Account.
(c)
Notwithstanding the provisions of paragraph (b) of this Section, no distribution shall be made to a Participant of any portion of the balance
of his Tax−Deferred Contributions Sub−Account prior to his separation from service (other than a distribution made in accordance with
Article XIII or required in accordance with Code Section 401(a)(9)) unless (i) neither his Employer nor a Related Company establishes or
maintains another defined contribution plan (other than an employee stock ownership plan as defined in Code Section 4975(e)(7), a tax
credit employee stock ownership plan as defined in Code Section 409, or a simplified employee pension as defined in Code Section 408(k))
either at the time the Plan is terminated or at any time during the period ending 12 months after distribution of all assets from the Plan;
provided, however, that this provision shall not apply if fewer than two percent of the Eligible Employees under the Plan were eligible to
participate at any time in such other defined contribution plan during the 24−month period beginning 12 months before the Plan
termination, and (ii) the distribution the Participant receives is a "lump sum distribution" as defined in Code Section 402(e)(4), without
regard to clauses (I), (II), (III), and (IV) of sub−paragraph (D)(i) thereof.
Notwithstanding anything to the contrary contained in the Plan, upon any such Plan termination, the vested interest of each Participant and Beneficiary in
his Employer Contributions Sub−Account shall be 100 percent; and, if there is a partial termination of the Plan, the vested interest of each Participant and
Beneficiary who is affected by the partial termination in his Employer Contributions Sub−Account shall be 100 percent. For purposes of the preceding sentence
only, the Plan shall be deemed to terminate automatically if there shall be a complete discontinuance of contributions hereunder by all Employers.
19.4 Reorganization
The merger, consolidation, or liquidation of any Employer with or into any other Employer or a Related Company shall not constitute a termination of the
Plan as to such Employer. If an Employer disposes of substantially all of the assets used by the Employer in a trade or business or disposes of a subsidiary and in
connection therewith one or more Participants terminates employment but continues in employment with the purchaser of the assets or with such subsidiary, no
distribution from the Plan shall be made to any such Participant from his Tax−Deferred Contributions Sub−Account prior to his separation from service (other
than a distribution made in accordance with Article XIII or required in accordance with Code Section 401(a)(9)), except that a distribution shall be permitted to
be made in such a case, subject to the Participant's consent (to the extent required by law), if (i) the distribution would constitute a "lump sum distribution" as
defined in Code Section 402(e)(4), without regard to clauses (I), (II), (III), or (IV) of sub−paragraph (D)(i) thereof, (ii) the Employer continues to maintain the
Plan after the disposition, (iii) the purchaser does not maintain the Plan after the disposition, and (iv) the distribution is made by the end of the second calendar
year after the calendar year in which the disposition occurred.
19.5 Withdrawal of an Employer
An Employer other than the Sponsor may withdraw from the Plan at any time upon notice in writing to the Administrator (the effective date of such
withdrawal being hereinafter referred to as the "withdrawal date"), and shall thereupon cease to be an Employer for all purposes of the Plan. An Employer shall
be deemed automatically to withdraw from the Plan in the event of its complete discontinuance of contributions, or, subject to Section 19.4 and unless the
Sponsor otherwise directs, it ceases to be a Related Company of the Sponsor or any other Employer. Upon the withdrawal of an Employer, the withdrawing
Employer shall determine whether a partial termination has occurred with respect to its Employees. In the event that the withdrawing Employer determines a
partial termination has occurred, the action specified in Section 19.3 shall be taken as of the withdrawal date, as on a termination of the Plan, but with respect
only to Participants who are employed solely by the withdrawing Employer, and who, upon such withdrawal, are neither transferred to nor continued in
employment with any other Employer or a Related Company. The interest of any Participant employed by the withdrawing Employer who is transferred to or
continues in employment with any other Employer or a Related Company, and the interest of any Participant employed solely by an Employer or a Related
Company other than the withdrawing Employer, shall remain unaffected by such withdrawal; no adjustment to his Accounts shall be made by reason of the
withdrawal; and he shall continue as a Participant hereunder subject to the remaining provisions of the Plan.
ARTICLE XX
ADOPTION BY OTHER ENTITIES
20.1 Adoption by Related Companies
A Related Company that is not an Employer may, with the consent of the Sponsor, adopt the Plan and become an Employer hereunder by causing an
appropriate written instrument evidencing such adoption to be executed in accordance with the requirements of its organizational authority. Any such instrument
shall specify the effective date of the adoption.
20.2 Effective Plan Provisions
An Employer who adopts the Plan shall be bound by the provisions of the Plan in effect at the time of the adoption and as subsequently in effect because of
any amendment to the Plan.
ARTICLE XXI
MISCELLANEOUS PROVISIONS
21.1 No Commitment as to Employment
Nothing contained herein shall be construed as a commitment or agreement upon the part of any person to continue his employment with an Employer or
Related Company, or as a commitment on the part of any Employer or Related Company to continue the employment, compensation, or benefits of any person
for any period.
21.2 Benefits
Nothing in the Plan nor the Trust Agreement shall be construed to confer any right or claim upon any person, firm, or corporation other than the Employers,
the Trustee, Participants, and Beneficiaries.
21.3 No Guarantees
The Employers, the Administrator, and the Trustee do not guarantee the Trust from loss or depreciation, nor do they guarantee the payment of any amount
which may become due to any person hereunder.
21.4 Expenses
The expenses of administration of the Plan, including the expenses of the Administrator and fees of the Trustee, shall be paid from the Trust as a general
charge thereon, unless the Sponsor elects to make payment. Notwithstanding the foregoing, the Sponsor may direct that administrative expenses that are allocable
to the Account of a specific Participant shall be paid from that Account and that the costs incident to the management of the assets of an Investment Fund or to
the purchase or sale of securities held in an Investment Fund shall be paid by the Trustee from such Investment Fund.
21.5 Precedent
Except as otherwise specifically provided, no action taken in accordance with the Plan shall be construed or relied upon as a precedent for similar action
under similar circumstances.
21.6 Duty to Furnish Information
The Employers, the Administrator, and the Trustee shall furnish to any of the others any documents, reports, returns, statements, or other information that
the other reasonably deems necessary to perform its duties hereunder or otherwise imposed by law.
21.7 Merger, Consolidation, or Transfer of Plan Assets
The Plan shall not be merged or consolidated with any other plan, nor shall any of its assets or liabilities be transferred to another plan, unless, immediately
after such merger, consolidation, or transfer of assets or liabilities, each Participant in the Plan would receive a benefit under the Plan which is at least equal to
the benefit he would have received immediately prior to such merger, consolidation, or transfer of assets or liabilities (assuming in each instance that the Plan had
then terminated).
21.8 Back Pay Awards
The provisions of this Section shall apply only to an Employee or former Employee who becomes entitled to back pay by an award or agreement of an
Employer without regard to mitigation of damages. If a person to whom this Section applies was or would have become an Eligible Employee after such back
pay award or agreement has been effected, and if any such person who had not previously elected to make Tax−Deferred Contributions pursuant to Section 4.1
shall within 30 days of the date he receives notice of the provisions of this Section make an election to make Tax−Deferred Contributions in accordance with
such Section 4.1 (retroactive to any Enrollment Date as of which he was or has become eligible to do so), then such Participant may elect that any Tax−Deferred
Contributions not previously made on his behalf but which, after application of the foregoing provisions of this Section, would have been made under the
provisions of Article IV shall be made out of the proceeds of such back pay award or agreement. In addition, if any such Employee or former Employee would
have been eligible to participate in the allocation of Employer Contributions under the provisions of Article VI or XXII for any prior Plan Year after such back
pay award or agreement has been effected, his Employer shall make an Employer Contribution equal to the amount of the Employer Contribution which would
have been allocated to such Participant under the provisions of Article VI or XXII as in effect during each such Plan Year. The amounts of such additional
contributions shall be credited to the Account of such Participant. Any additional contributions made pursuant to this Section shall be made in accordance with,
and subject to the limitations of the applicable provisions of the Plan.
21.9 Condition on Employer Contributions
Notwithstanding anything to the contrary contained in the Plan or the Trust Agreement, any contribution of an Employer hereunder is conditioned upon the
continued qualification of the Plan under Code Section 401(a), the exempt status of the Trust under Code Section 501(a), and the deductibility of the contribution
under Code Section 404. Except as otherwise provided in this Section and Section 21.10, however, in no event shall any portion of the property of the Trust ever
revert to or otherwise inure to the benefit of an Employer or any Related Company.
21.10 Return of Contributions to an Employer
Notwithstanding any other provision of the Plan or the Trust Agreement to the contrary, in the event any contribution of an Employer made hereunder:
(a)
is made under a mistake of fact, or
(b)
is disallowed as a deduction under Code Section 404,
such contribution may be returned to the Employer within one year after the payment of the contribution or the disallowance of the deduction to the extent
disallowed, whichever is applicable. In the event the Plan does not initially qualify under Code Section 401(a), any contribution of an Employer made hereunder
may be returned to the Employer within one year of the date of denial of the initial qualification of the Plan, but only if an application for determination was
made within the period of time prescribed under ERISA Section 403(c)(2)(B).
21.11 Validity of Plan
The validity of the Plan shall be determined and the Plan shall be construed and interpreted in accordance with the laws of the state or commonwealth in
which the Trustee has its principal place of business or, if the Trustee is an individual or group of individuals, the state or commonwealth in which the Sponsor
has its principal place of business, except as preempted by applicable Federal law. The invalidity or illegality of any provision of the Plan shall not affect the
legality or validity of any other part thereof.
21.12 Trust Agreement
The Trust Agreement and the Trust maintained thereunder shall be deemed to be a part of the Plan as if fully set forth herein and the provisions of the Trust
Agreement are hereby incorporated by reference into the Plan.
21.13 Parties Bound
The Plan shall be binding upon the Employers, all Participants and Beneficiaries hereunder, and, as the case may be, the heirs, executors, administrators,
successors, and assigns of each of them.
21.14 Application of Certain Plan Provisions
For purposes of the general administrative provisions and limitations of the Plan, a Participant's Beneficiary or alternate payee under a qualified domestic
relations order shall be treated as any other person entitled to receive benefits under the Plan. Upon any termination of the Plan, any such Beneficiary or alternate
payee under a qualified domestic relations order who has an interest under the Plan at the time of such termination, which does not cease by reason thereof, shall
be deemed to be a Participant for all purposes of the Plan. A Participant's Beneficiary, if the Participant has died, or alternate payee under a qualified domestic
relations order shall be treated as a Participant for purposes of directing investments as provided in Article X.
21.15 Merged Plans
In the event another defined contribution plan (the "merged plan") is merged into and made a part of the Plan, each Employee who was eligible to
participate in the "merged plan" immediately prior to the merger shall become an Eligible Employee on the date of the merger. In no event shall a Participant's
vested interest in his Sub−Account attributable to amounts transferred to the Plan from the "merged plan" (his "transferee Sub−Account") on and after the merger
be less than his vested interest in his account under the "merged plan" immediately prior to the merger. Notwithstanding any other provision of the Plan to the
contrary, a Participant's service credited for eligibility and vesting purposes under the "merged plan" as of the merger, if any, shall be included as Eligibility and
Vesting Service under the Plan to the extent Eligibility and Vesting Service are credited under the Plan. Special provisions applicable to a Participant's
"transferee Sub−Account", if any, shall be specifically reflected in the Plan or in an Addendum to the Plan.
21.16 Transferred Funds
If funds from another qualified plan are transferred or merged into the Plan, such funds shall be held and administered in accordance with any restrictions
applicable to them under such other plan to the extent required by law and shall be accounted for separately to the extent necessary to accomplish the foregoing.
21.17 Veterans Reemployment Rights
Notwithstanding any other provision of the Plan to the contrary, contributions, benefits, and service credit with respect to qualified military service shall be
provided in accordance with Code Section 414(u). The Administrator shall notify the Trustee of any Participant with respect to whom additional contributions are
made because of qualified military service.
21.18 Delivery of Cash Amounts
To the extent that the Plan requires the Employers to deliver cash amounts to the Trustee, such delivery may be made through any means acceptable to the
Trustee, including wire transfer.
21.19 Written Communications
Any communication among the Employers, the Administrator, and the Trustee that is stipulated under the Plan to be made in writing may be made in any
medium that is acceptable to the receiving party and permitted under applicable law. In addition, any communication or disclosure to or from Participants and/or
Beneficiaries that is required under the terms of the Plan to be made in writing may be provided in any other medium (electronic, telephonic, or otherwise) that is
acceptable to the Administrator and permitted under applicable law.
ARTICLE XXII
TOP−HEAVY PROVISIONS
22.1 Definitions
For purposes of this Article, the following terms shall have the following meanings:
The "compensation" of an employee means compensation as defined in Code Section 415 and regulations issued thereunder. In no event, however, shall the
"compensation" of a Participant taken into account under the Plan for any Plan Year exceed $150,000 (subject to adjustment annually as provided in Code
Sections 401(a)(17)(B) and 415(d); provided, however, that the dollar increase in effect on January 1 of any calendar year, if any, is effective for Plan Years
beginning in such calendar year). If the "compensation" of a Participant is determined over a period of time that contains fewer than 12 calendar months, then the
annual "compensation" limitation described above shall be adjusted with respect to that Participant by multiplying the annual "compensation" limitation in effect
for the Plan Year by a fraction the numerator of which is the number of full months in the period and the denominator of which is 12; provided, however, that no
proration is "required" for a Participant who is covered under the Plan for less than one full Plan Year if the formula for allocations is based on "compensation"
for a period of at least 12 months.
The "determination date" with respect to any Plan Year means the last day of the preceding Plan Year, except that the "determination date" with respect to
the first Plan Year of the Plan, shall mean the last day of such Plan Year.
A "key employee" means any Employee or former Employee who is a "key employee" pursuant to the provisions of Code Section 416(i)(1) and any
Beneficiary of such Employee or former Employee.
A "non−key employee" means any Employee who is not a "key employee".
A "permissive aggregation group" means those plans included in each Employer's "required aggregation group" together with any other plan or plans of
the Employer, so long as the entire group of plans would continue to meet the requirements of Code Sections 401(a)(4) and 410.
A "required aggregation group" means the group of tax−qualified plans maintained by an Employer or a Related Company consisting of each plan in
which a "key employee" participates and each other plan that enables a plan in which a "key employee" participates to meet the requirements of Code
Section 401(a)(4) or Code Section 410, including any plan that terminated within the five−year period ending on the relevant "determination date".
A "super top−heavy group" with respect to a particular Plan Year means a "required" or "permissive aggregation group" that, as of the "determination
date", would qualify as a "top−heavy group" under the definition in this Section with "90 percent" substituted for "60 percent" each place where "60 percent"
appears in the definition.
A "super top−heavy plan" with respect to a particular Plan Year means a plan that, as of the "determination date", would qualify as a "top−heavy plan"
under the definition in this Section with "90 percent" substituted for "60 percent" each place where "60 percent" appears in the definition. A plan is also a "super
top−heavy plan" if it is part of a "super top−heavy group".
A "top−heavy group" with respect to a particular Plan Year means a "required" or "permissive aggregation group" if the sum, as of the "determination
date", of the present value of the cumulative accrued benefits for "key employees" under all defined benefit plans included in such group and the aggregate of the
account balances of "key employees" under all defined contribution plans included in such group exceeds 60 percent of a similar sum determined for all
employees covered by the plans included in such group.
A "top−heavy plan" with respect to a particular Plan Year means (i), in the case of a defined contribution plan (including any simplified employee pension
plan), a plan for which, as of the "determination date", the aggregate of the accounts (within the meaning of Code Section 416(g) and the regulations and rulings
thereunder) of "key employees" exceeds 60 percent of the aggregate of the accounts of all participants under the plan, with the accounts valued as of the relevant
valuation date and increased for any distribution of an account balance made in the five−year period ending on the "determination date", (ii), in the case of a
defined benefit plan, a plan for which, as of the "determination date", the present value of the cumulative accrued benefits payable under the plan (within the
meaning of Code Section 416(g) and the regulations and rulings thereunder) to "key employees" exceeds 60 percent of the present value of the cumulative
accrued benefits under the plan for all employees, with the present value of accrued benefits for employees (other than "key employees") to be determined under
the accrual method uniformly used under all plans maintained by an Employer or, if no such method exists, under the slowest accrual method permitted under the
fractional accrual rate of Code Section 411(b)(1)(C) and including the present value of any part of any accrued benefits distributed in the five−year period ending
on the "determination date", and (iii) any plan (including any simplified employee pension plan) included in a "required aggregation group" that is a "top−heavy
group". For purposes of this paragraph, the accounts and accrued benefits of any employee who has not performed services for an Employer or a Related
Company during the five−year period ending on the "determination date" shall be disregarded. For purposes of this paragraph, the present value of cumulative
accrued benefits under a defined benefit plan for purposes of top−heavy determinations shall be calculated using the actuarial assumptions otherwise employed
under such plan, except that the same actuarial assumptions shall be used for all plans within a "required" or "permissive aggregation group". A Participant's
interest in the Plan attributable to any Rollover Contributions, except Rollover Contributions made from a plan maintained by an Employer or a Related
Company, shall not be considered in determining whether the Plan is top−heavy. Notwithstanding the foregoing, if a plan is included in a "required" or
"permissive aggregation group" that is not a "top−heavy group", such plan shall not be a "top−heavy plan".
The "valuation date" with respect to any "determination date" means the most recent Valuation Date occurring within the 12−month period ending on the
"determination date".
22.2 Applicability
Notwithstanding any other provision of the Plan to the contrary, the provisions of this Article shall be applicable during any Plan Year in which the Plan is
determined to be a "top−heavy plan" as hereinafter defined. If the Plan is determined to be a "top−heavy plan" and upon a subsequent "determination date" is
determined no longer to be a "top−heavy plan", the vesting provisions of this Article shall continue to apply.
22.3 Minimum Employer Contribution
If the Plan is determined to be a "top−heavy plan" for a Plan Year, the Employer Contributions, other than Matching Contributions, allocated to the Account
of each "non−key employee" who is an Eligible Employee and who is employed by an Employer or a Related Company on the last day of such top−heavy Plan
Year shall be no less than the lesser of (i) three percent of his "compensation" or (ii) the largest percentage of "compensation" that is allocated as an Employer
Contribution and/or Tax−Deferred Contribution for such Plan Year to the Account of any "key employee"; except that, in the event the Plan is part of a "required
aggregation group", and the Plan enables a defined benefit plan included in such group to meet the requirements of Code Section 401(a)(4) or 410, the minimum
allocation of Employer Contributions to each such "non−key employee" shall be three percent of the "compensation" of such "non−key employee". Any
minimum allocation to a "non−key employee" required by this Section shall be made without regard to any social security contribution made on behalf of the
non−key employee, his number of hours of service, his level of "compensation", or whether he declined to make elective or mandatory contributions.
Employer Contributions allocated to a Participant's Account in accordance with this Section shall be considered "annual additions" under Article VII for the
"limitation year" for which they are made and shall be separately accounted for. Employer Contributions allocated to a Participant's Account shall be allocated
upon receipt among the Investment Funds in accordance with the Participant's currently effective investment election.
22.4 Accelerated Vesting
If the Plan is determined to be a "top−heavy plan", a Participant's vested interest in his Employer Contributions Sub−Account shall be determined no less
rapidly than in accordance with the following vesting schedule:
Vested
Interest
Years of Vesting Service
Less than 1
1, but less than 2
2, but less than 3
3, but less than 4
4, but less than 5
5 or more
0%
20%
40%
60%
80%
100%
***
EXECUTED AT
,
, this
day of
,
.
THE SPORTS AUTHORITY, INC.
By:
Title
APPENDIX
TO
THE SPORTS AUTHORITY 401(K) RETIREMENT PLAN
Re: Minimum Distribution Requirements
SECTION I
DEFINITIONS
1.3 Definitions
For purposes of this Appendix the following terms have the following meanings. Except as otherwise specifically provided herein, any term defined in
Section 1.1 of the Plan has the meaning given such term in such Section.
A Participant's "designated beneficiary" means the individual who is designated as the Participant's Beneficiary under Article XVII of the Plan and is the
designated beneficiary under Code Section 401(a)(9) and Section 1.401(a)(9)−1, Q&A−4, of the Treasury regulations.
A "distribution calendar year" means a calendar year for which a minimum distribution is required. For distributions beginning before the Participant's
death, the first "distribution calendar year" is the calendar year immediately preceding the calendar year which contains the Participant's Required Beginning
Date. For distributions beginning after the Participant's death, the first "distribution calendar year" is the calendar year in which distributions are required to begin
under Section 3.2 of this Appendix. The required minimum distribution for the Participant's first "distribution calendar year" will be made on or before the
Participant's Required Beginning Date. The required minimum distribution for other "distribution calendar years", including the required minimum distribution
for the "distribution calendar year" in which the Participant's Required Beginning Date occurs, will be made on or before December 31 of that "distribution
calendar year".
A Participant's or Beneficiary's "life expectancy" means his life expectancy as computed by use of the Single Life Table in Section 1.401(a)(9)−9 of the
Treasury regulations.
A "Participant's account balance" means the Account balance as of the last Valuation Date in the calendar year immediately preceding the "distribution
calendar year" (the "valuation calendar year") increased by the amount of any contributions made and allocated or forfeitures allocated to the Account balance as
of dates in the "valuation calendar year" after the Valuation Date and decreased by distributions made in the "valuation calendar year" after the Valuation Date.
The Account balance for the "valuation calendar year" includes any amounts rolled over or transferred to the Plan either in the "valuation calendar year" or in the
"distribution calendar year" if distributed or transferred in the "valuation calendar year".
SECTION II
GENERAL RULES
2.11 Effective Date
The provisions of this Appendix will apply for purposes of determining required minimum distributions for calendar years beginning with the 2003 calendar
year.
2.12 Precedence
The requirements of this Appendix will take precedence over any inconsistent provisions of the Plan.
2.13 Requirements of Treasury Regulations Incorporated
All distributions required under this Appendix will be determined and made in accordance with the Treasury regulations under Code Section 401(a)(9).
SECTION III
TIME AND MANNER OF DISTRIBUTION
3.6 Required Beginning Date
A Participant's entire interest will be distributed, or begin to be distributed, to the Participant no later than the Participant's Required Beginning Date.
3.7 Death of Participant Before Distributions Begin
If a Participant dies before distributions begin, the Participant's entire interest will be distributed, or begin to be distributed, no later than as follows:
(a)
If the Participant's surviving spouse is the Participant's sole "designated beneficiary", then distributions to the surviving spouse will begin
by December 31 of the calendar year immediately following the calendar year in which the Participant died, or by December 31 of the
calendar year in which the Participant would have attained age 70 1/2, if later.
(b)
If the Participant's surviving spouse is not the Participant's sole "designated beneficiary", then distributions to the "designated beneficiary"
will begin by December 31 of the calendar year immediately following the calendar year in which the Participant died.
(c)
If there is no "designated beneficiary" as of September 30 of the year following the year of the Participant's death, the Participant's entire
interest will be distributed by December 31 of the calendar year containing the fifth anniversary of the Participant's death.
(d)
If the Participant's surviving spouse is the Participant's sole "designated beneficiary" and the surviving spouse dies after the Participant but
before distributions to the surviving spouse begin, this Section 3.2, other than Section 3.2(a), will apply as if the surviving spouse were the
Participant.
For purposes of this Section 3.2 and Section V, unless Section 3.2(d) applies, distributions are considered to begin on the Participant's Required Beginning
Date. If Section 3.2(d) applies, distributions are considered to begin on the date distributions are required to begin to the surviving spouse under Section 3.2(a). If
distributions under an annuity purchased from an insurance company irrevocably commence to the Participant before the Participant's Required Beginning Date
(or to the Participant's surviving spouse before the date distributions are required to begin to the surviving spouse under Section 3.2(a)), the date distributions are
considered to begin is the date distributions actually commence.
3.8 Forms of Distribution
Unless the Participant's interest is distributed in the form of an annuity purchased from an insurance company or in a single sum on or before the Required
Beginning Date, as of the first "distribution calendar year", distributions will be made in accordance with Sections IV and V of this Appendix. If the Participant's
interest is distributed in the form of an annuity purchased from an insurance company, distributions thereunder will be made in accordance with the requirements
of Code Section 401(a)(9) and the Treasury regulations.
SECTION IV
REQUIRED MINIMUM DISTRIBUTIONS
DURING PARTICIPANT'S LIFETIME
4.8 Amount of Required Minimum Distribution For Each Distribution Calendar Year
During the Participant's lifetime, the minimum amount that will be distributed for each "distribution calendar year" is the lesser of:
(a)
the quotient obtained by dividing the "Participant's account balance" by the distribution period in the Uniform Lifetime Table set forth in
Section 1.401(a)(9)−9 of the Treasury regulations, using the Participant's age as of the Participant's birthday in the "distribution calendar
year"; or
(b)
if the Participant's sole "designated beneficiary" for the "distribution calendar year" is the Participant's spouse, the quotient obtained by
dividing the "Participant's account balance" by the number in the Joint and Last Survivor Table set forth in Section 1.401(a)(9)−9 of the
Treasury regulations, using the Participant's and spouse's attained ages as of the Participant's and spouse's birthdays in the "distribution
calendar year".
4.9 Lifetime Required Minimum Distributions Continue Through Year of Participant's Death
Required minimum distributions will be determined under this Section IV beginning with the first "distribution calendar year" and up to and including the
"distribution calendar year" that includes the Participant's date of death.
SECTION V
REQUIRED MINIMUM DISTRIBUTIONS
AFTER PARTICIPANT'S DEATH
5.4 Death On or After Date Distributions Begin
If a Participant dies on or after the date distributions begin, the following rules shall apply.
(a)
If there is a "designated beneficiary", the minimum amount that will be distributed for each "distribution calendar year" after the year of the
Participant's death is the quotient obtained by dividing the "Participant's account balance" by the longer of the remaining "life expectancy"
of the Participant or the remaining "life expectancy" of the Participant's "designated beneficiary", determined as follows:
(1)
The Participant's remaining "life expectancy" is calculated using the age of the Participant in the year of death, reduced by one
for each subsequent year.
(2)
If the Participant's surviving spouse is the Participant's sole "designated beneficiary", the remaining "life expectancy" of the
surviving spouse is calculated for each "distribution calendar year" after the year of the Participant's death using the surviving
spouse's age as of the spouse's birthday in that year. For "distribution calendar years" after the year of the surviving spouse's
death, the remaining "life expectancy" of the surviving spouse is calculated using the age of the surviving spouse as of the
spouse's birthday in the calendar year of the spouse's death, reduced by one for each subsequent calendar year.
(3)
If the Participant's surviving spouse is not the Participant's sole "designated beneficiary", the "designated beneficiary's"
remaining "life expectancy" is calculated using the age of the beneficiary in the year following the year of the Participant's death,
reduced by one for each subsequent year.
(b)
If there is no "designated beneficiary" as of September 30 of the year after the year of the Participant's death, the minimum amount that will
be distributed for each "distribution calendar year" after the year of the Participant's death is the quotient obtained by dividing the
"Participant's account balance" by the Participant's remaining "life expectancy" calculated using the age of the Participant in the year of
death, reduced by one for each subsequent year.
5.5 Death Before Date Distributions Begin
If the Participant dies before the date distributions begin, the following rules shall apply.
(a)
If there is a "designated beneficiary", the minimum amount that will be distributed for each "distribution calendar year" after the year of the
Participant's death is the quotient obtained by dividing the "Participant's account balance" by the remaining "life expectancy" of the
Participant's "designated beneficiary", determined as provided in Section 5.1 of this Appendix.
(b)
If there is no "designated beneficiary" as of September 30 of the year following the year of the Participant's death, distribution of the
Participant's entire interest will be completed by December 31 of the calendar year containing the fifth anniversary of the Participant's
death.
(c)
If the Participant dies before the date distributions begin, the Participant's surviving spouse is the Participant's sole "designated beneficiary",
and the surviving spouse dies before distributions are required to begin to the surviving spouse under Section 3.2(a) of this Appendix, this
Section 5.2 will apply as if the surviving spouse were the Participant.
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Exhibit 10.5.1
THE SPORTS AUTHORITY 401(k) RETIREMENT PLAN January 1, 2004 Restatement
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Exhibit 10.14
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (this "Agreement") is entered into by and between The Sports Authority, Inc., a Delaware corporation
previously known as Gart Sports Company (the "Company"), and John Douglas Morton (the "Executive") and shall be effective as of the "Effective Time," as
defined in the written Agreement and Plan of Merger, dated as of February 19, 2003, by and among Gart Sports Company (referred to therein as "Parent"), Gold
Acquisition Corp., a Delaware corporation and wholly owned subsidiary of Parent, and The Sports Authority, Inc., a Delaware corporation (the "Merger
Agreement").
WHEREAS, the Company and the Executive entered into an employment agreement at the time of the execution of the Merger Agreement, which became
effective as of the Effective Time (the "Prior Agreement") and now, pursuant to Section 19 of the Prior Agreement, the parties wish to amend and restate the
Prior Agreement in the form of this Amended and Restated Agreement, also effective as of the Effective Time; and
WHEREAS, the Company desires to continue to employ the Executive as its Chief Executive Officer, have the Executive serve as a member of the Board of
Directors of the Company (the "Board"), and the Executive desires to serve in such capacity on behalf of the Company
NOW, THEREFORE, in consideration of the promises and of the mutual covenants and agreements hereinafter set forth, the Company and the Executive
hereby agree as follows:
1.
Employment.
(a) Term. The term of this Agreement (the "Term") shall begin as of the Effective Time and shall end at the time of the termination of the
Executive's employment in accordance with Section 9 herein.
(b) Duties. The Executive shall serve as the Chief Executive Officer of the Company and a member of the Board and shall report solely and
directly to the Board. The Executive shall be responsible for oversight and management of all operations and activities of the Company. In addition,
the Executive shall perform all other duties and accept all other responsibilities incident to such position as may be reasonably assigned to him by the
Board. For as long as and during such period in which the Executive is serving as the Chief Executive Officer of the Company, the Company shall
cause the Executive to be nominated to serve as a member of the Board, and, if elected by the Company's shareholders, the Executive shall serve as
Vice Chairman of the Board.
(c) Best Efforts. During the period of his employment, the Executive shall devote his best efforts and full−time and attention to promote the
business and affairs of the Company and its affiliated companies, and shall be engaged in other business activities only to the extent that such activities
are not competitive with the Company and do not interfere or conflict with his obligations to the Company hereunder, including, without limitation,
the obligations pursuant to Section 12 below. Notwithstanding the foregoing, (i) the level of time and attention devoted to the Company by the
Executive in accordance with the preceding sentence may be adjusted during the Term based upon the mutual agreement of the parties and (ii) the
Executive may (A) serve on corporate, civic, educational, philanthropic or charitable boards or committees, (B) deliver lectures, fulfill speaking
engagements or teach at educational institutions and (C) manage personal investments, so long as such activities do not significantly interfere with the
performance of the Executive's responsibilities hereunder. The foregoing shall also not be construed as preventing the Executive from investing his
assets in such form or manner as will not require any significant services on his part in the operation of the affairs of the businesses or entities in which
such investments are made; provided, however, that the Executive shall not invest in any business competitive with the Company, except that the
Executive shall be permitted to own not more than 5% of the stock of those companies whose securities are listed on a national securities exchange or
on the NASDAQ system.
2. Compensation. As compensation for the services to be rendered hereunder, the Company shall pay to the Executive an annual base salary of $935,000.
This amount may be subject to annual increases (but not decreases), as determined in the sole discretion of the Compensation Committee of the Board. The
Executive's base salary shall be paid in accordance with the Company's existing payroll policies.
3. Bonus. The Executive shall be eligible for an annual target bonus payment in an amount equal to 100% of his base salary (the "Bonus"). The Bonus
shall be determined based on the achievement of certain performance objectives of the Company as established by the Compensation Committee and
communicated to the Executive in writing as soon as practicable after commencement of the year in respect of which the Bonus is paid. The Bonus may be
greater or less than the target Bonus, based on the level of achievement of the applicable performance objectives.
4. Equity Award. The Executive shall be eligible to receive stock options and other equity−based compensation awards under the Company's 2003 Long
Term Incentive Compensation Plan and otherwise.
5. Expenses. The Company shall reimburse the Executive for all necessary and reasonable travel, entertainment and other business expenses incurred by
him in the performance of his duties hereunder in accordance with such reasonable procedures as the Company may adopt generally from time to time. The
Company shall also reimburse the Executive for reasonable legal fees incurred in connection with the review of the terms of this Agreement.
6. Vacation. The Executive shall be entitled to vacation, holiday and sick leave at levels no less than commensurate with those provided to any other
senior executive officer of the Company, in accordance with the Company's vacation, holiday and other pay−for−time−not−worked policies. Notwithstanding the
foregoing, in no event shall the Executive's vacation, holiday and sick leave be at a lesser level than that to which the Executive was entitled immediately prior to
the Effective Time.
7. Retirement and Welfare Benefits. The Executive shall be entitled to participate in the Company's health, life insurance, long and short−term disability,
dental, retirement, and medical programs, if any, as well as executive bonus, benefit or incentive programs (long−term or short−term, including equity−based
programs), if any, pursuant to their respective terms and conditions, on a basis no less than commensurate with those provided to any other senior executive
officer of the Company. Nothing in this Agreement shall preclude the Company or any affiliate of the Company from terminating or amending any employee
benefit plan or program from time to time after the effective date of this Agreement, provided that any such amendment or termination shall be effective as to the
Executive only if it is equally applicable to every other senior executive officer of the Company.
8. Perquisites. The Executive shall be provided with such other executive perquisites as may be provided to other senior executive officers of the
Company (including but not limited to the use of a Company−provided automobile of a type similar to that being provided to the Executive immediately prior to
the Effective Time and all operating and insurance costs related thereto, and a discount card allowing the Executive to purchase items from the Company's retail
stores at cost plus 10%).
9.
Termination.
(a) Termination by the Company.
(1) For Cause. The Company may terminate Executive's employment hereunder at any time for Cause (as defined and in accordance
with the procedures outlined below), in which case the Company's sole liability to the Executive shall be for unpaid salary and benefits
(then owed, or accrued and owed in the future, but in all events and without increasing the Executive's rights under any other provision
hereof, excluding any bonus payments not yet paid) through the date of termination and unreimbursed expenses incurred by the Executive
pursuant to Section 5 above, each of which shall be paid within 10 days following the date of the Executive's termination.
(2) Without Cause. The Company may also terminate the Executive's employment without Cause at any time upon not less than thirty
(30) days' prior written notice to the Executive; provided, however, that in the event that such notice is given, the Executive shall be under
no obligation to render any additional services to the Company and shall be allowed to seek other employment. Upon the Executive's
termination in accordance with the preceding sentence, the Company shall pay to the Executive a single lump sum in cash, within 10 days
following the date of the Executive's termination, unless another date is mutually agreed upon by the parties, equal to the aggregate amount
of (i) unpaid salary, accrued but unpaid annual bonus and benefits (then owed, or accrued and owed in the future) through the date of
termination, (ii) three times the Executive's base salary in effect immediately prior to such termination and three times Executive's annual
target bonus, calculated as though the Executive had attained 100% of the target for the applicable year during which the termination
occurs; and (iii) all unreimbursed expenses incurred by the Executive pursuant to Section 5, and the Executive shall be fully vested in all
outstanding long−term incentive awards (whether based in equity or cash, and specifically including, but not limited to, stock options and
restricted stock) then held by the Executive. In addition, all health, life insurance, long−term disability, dental, and medical programs
specified in Section 7, and all perquisites described in Section 8, shall continue for a period of three years commencing on the Executive's
date of termination (the "Severance Term"); provided, however, that the Company shall in no event be required to provide any coverage
after such time as the Executive becomes entitled to receive benefits of the same type from another employer or recipient of the Executive's
services (and provided, further, that such entitlement shall be determined without regard to any individual waivers or other similar
arrangements). At the conclusion of the Severance Term, the Executive shall be entitled to receive all accrued benefits then owed and any
benefits pursuant to the Company's plan or program which are accrued and owed in the future. In addition, if a termination described in this
Section 9(a)(2) occurs (A) within the 18−month period commencing on the date of a Change of Control (as defined below), or (B) prior to a
Change of Control and such termination was at the request of a third party who had memorialized an intention or taken steps reasonably
calculated to effect a Change of Control or was otherwise in anticipation of a Change of Control, the Executive shall receive the payments
and benefits described in this Section 9(a)(2), plus clear title, free of any liens, to the car provided to the Executive pursuant to Section 8
herein.
(3) "Cause" Defined. As used in this Agreement, termination for "Cause" shall mean a termination based upon:
(i) a material violation of any material written rule or policy of the Company (A) for which violation any employee may
be terminated pursuant to the written policies of the Company reasonably applicable to an executive employee, and (B) which
the Executive fails to correct within 30 days after the Executive receives written notice from the Board of such violation;
(ii) misconduct by the Executive to the material and demonstrable detriment of the Company;
(iii) the Executive's conviction (by a court of competent jurisdiction, not subject to further appeal) of, or pleading guilty to,
a felony;
(iv) the Executive's continued and ongoing gross negligence in the performance of his duties and responsibilities to the
Company as described in this Agreement; or
(v) the Executive's material failure to perform his duties and responsibilities to the Company as described in this
Agreement (other than any such failure resulting from the Executive's incapacity due to physical or mental illness or any such
failure subsequent to the Executive being delivered a notice of termination without Cause by the Company or delivering a notice
of termination for Good Reason to the Company), in either case after written notice from the Board to the Executive of the
specific nature of such material failure and the Executive's failure to cure such material failure within thirty (30) days following
receipt of such notice.
Cause shall not exist unless and until the Company has delivered to the Executive, along with the notice of Termination for Cause, a copy of a resolution
duly adopted by two−thirds ( 2/3) of the entire Board (excluding the Executive if the Executive is a Board member) at a meeting of the Board called and held for
such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with counsel, to be heard before the Board), finding that in
the good faith opinion of the Board an event set forth in clauses (i), (ii), (iv) or (v) above has occurred and specifying the particulars thereof in detail. The Board
must notify the Executive of any event constituting Cause within ninety (90) days following the Board's knowledge of its existence or such event shall not
constitute Cause under this Agreement.
(b) Termination by the Executive.
(1) The Executive may resign from his employment hereunder in the event of "Good Reason" after thirty (30) days' written notice
from the Executive to the Board describing in detail the "Good Reason," if not cured within such 30−day period; provided, however, that
such notice shall be given no later than ninety (90) days after the time that the Executive has actual knowledge of the event or condition
purportedly giving rise to Good Reason. In the event of any such resignation, the Company's obligations to the Executive shall be the same
as set forth in Section 9(a)(2) above, and if (A) such resignation occurs within the 18−month period commencing on the date of a Change of
Control or (B) prior to a Change of Control the event constituting Good Reason for such termination was at the request of a third party who
had memorialized an intention or taken steps reasonably calculated to effect a Change of Control or was otherwise in anticipation of a
Change of Control, then the last sentence of Section 9(a)(2) shall apply.
(2) The Executive may resign his employment hereunder other than for Good Reason at any time by giving no less than thirty
(30) days' written notice to the Board. In the event of any such resignation, the Company's sole obligation to the Executive shall be for
unpaid salary and benefits (then owed or accrued and owed in the future, but in all events and without increasing the Executive's rights
under any other provision hereof, excluding any bonus payments not yet paid) and reimbursement of expenses pursuant to Section 5 above
through the effective date of the Executive's resignation specified in the Executive's notice.
(3) For the purposes of this Agreement, "Good Reason" means resignation by the Executive based upon the occurrence without the
Executive's express written consent of any of the following:
(i) a significant diminution by the Company of the Executive's role with the Company or a significant detrimental change
in the nature and/or scope of the Executive's status with the Company (including a diminution in title or a failure of the
Executive to be elected or reelected to the Board);
(ii) a reduction in the Executive's base salary or target or maximum annual bonus opportunity, other than as part of an
across the board reduction in salaries of management personnel (including all vice presidents and positions above) of less than
20%;
(iii) at any time following a Change of Control (as defined below), a material diminution by the Company of compensation
and benefits (taken as a whole) provided to the Executive immediately prior to a Change of Control;
(iv) the relocation of the Executive's principal executive office to a location more than 30 miles further from the
Executive's principal residence than the Executive's principal executive office immediately prior to such relocation, or any
requirement that the Executive be based anywhere other than the Executive's principal executive office;
(v) any failure by the Company to comply with and satisfy clause (ii) of the first sentence of Section 18; or
(vi) any other material breach by the Company of any of the terms and conditions of this Agreement.
Notwithstanding the above, a resignation by the Executive for any reason during the 30−day period commencing six months after a Change of Control, upon
giving at least thirty (30) days' advance written notice to the Board, shall be considered to be a resignation for Good Reason.
(c) Termination by Death or Disability. In the event of the Executive's death or "permanent disability" (as defined below) during the Term, the
Executive's employment shall terminate on the date of death or date of permanent disability. In the event of such termination, the Company's sole
obligations hereunder to the Executive (or the Executive's estate) shall be for unpaid salary, accrued but unpaid annual bonus and benefits (then owed
or accrued and owed in the future), a pro−rata annual bonus for the year of termination based on the Executive's target bonus for such year and the
portion of such year in which the Executive was employed, and reimbursement of expenses pursuant to Section 5 through the effective date of
termination, each of which shall be paid within 10 days following the date of the Executive's termination. For purposes of this Section 9(c), the
Executive shall be considered to have suffered a "permanent disability" if he has become eligible to receive benefits under the long−term disability
plan of the Company.
10. Change of Control.
(a) A "Change of Control" shall be deemed to have occurred if, after the Effective Time, (i) the beneficial ownership (as defined in Rule 13d−3
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of securities representing more than 30% of the combined voting
power of the Company is acquired by any "person" as defined in sections 13(d) and 14(d) of the Exchange Act (other than the Company, any
subsidiary of the Company, or any trustee or other fiduciary holding securities under an employee benefit plan of the Company), (ii) the merger or
consolidation of the Company with or into another corporation where the shareholders of the Company, immediately prior to the consolidation or
merger, would not, immediately after the consolidation or merger, beneficially own (as such term is defined in Rule 13d−3 under the Exchange Act),
directly or indirectly, shares representing in the aggregate 50% or more of the combined voting power of the securities of the corporation issuing cash
or securities in the consolidation or merger (or of its ultimate parent corporation, if any) in substantially the same proportion as their ownership of the
Company immediately prior to such merger or consolidation, (iii) the sale or other disposition of all or substantially all of the Company's assets to an
entity, other than a sale or disposition by the Company of all or substantially all of the Company's assets to an entity, at least 50% of the combined
voting power of the voting securities of which are owned directly or indirectly by shareholders of the Company, immediately prior to the sale or
disposition, in substantially the same proportion as their ownership of the Company immediately prior to such sale or disposition, or (iv) during any
period of two consecutive years, individuals who at the beginning of such period were members of the Board ("Incumbent Directors") cease for any
reason (other than death) to constitute at least a majority thereof; provided that each new director whose election, or nomination for election by the
Company's shareholders, was approved by a vote of at least a majority of the directors then still in office who were directors at the beginning of such
period shall be deemed an Incumbent Director unless such approval was made directly or indirectly in connection with an actual or threatened election
contest with respect to directors or as a result of any other actual or threatened solicitation of proxies or consents by or on behalf of any person other
than the Board.
(b) Anything in this Agreement to the contrary notwithstanding, if it is determined that any payment or benefit provided to the Executive under
this Agreement or otherwise, whether or not in connection with a Change of Control (a "Payment"), would constitute an "excess parachute payment"
within the meaning of section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), such that the Payment would be subject to an
excise tax under section 4999 of the Code (the "Excise Tax"), the Company shall pay to the Executive an additional amount (the "Gross−Up
Payment") such that the net amount of the Gross−Up Payment retained by the Executive after the payment of any Excise Tax and any federal, state
and local income and employment tax on the Gross−Up Payment, shall be equal to the Excise Tax due on the Payment and any interest and penalties
in respect of such Excise Tax. For purposes of determining the amount of the Gross−Up Payment, Executive shall be deemed to pay federal income
tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross−Up
Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence (or, if
greater, the state and locality in which Executive is required to file a nonresident income tax return with respect to the Payment) in the calendar year in
which the Gross−Up Payment is to be made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such
state and local taxes.
(c) All determinations made pursuant to the foregoing paragraph shall be made by the Company's independent public accounting firm
immediately prior to the transaction resulting in the application of section 4999 of the Code or, if such firm continues to be retained by the Company
or its successor to provide any services whatsoever subsequent to such transaction, an independent public accounting firm selected by the Executive in
the Executive's sole discretion (the "Accounting Firm"), which firm shall provide its determination and any supporting calculations (the
"Determination") both to the Company and to the Executive within ten days of the date of the Executive's termination or any other date selected by the
Executive or the Company. Within ten calendar days of the delivery of the Determination to the Executive, the Executive shall have the right to
dispute the Determination (the "Dispute"). The existence of any Dispute shall not in any way affect the Executive's right to receive the Gross−Up
Payments in accordance with the Determination. If there is no dispute, the Determination by the Accounting Firm shall be final, binding and
conclusive upon the Company and the Executive, subject to the application of Section 10(d). All of the fees and expenses of the Accounting Firm in
performing the determinations referred to above shall be borne solely by the Company. Within five days after the Accounting Firm's determination,
the Company shall pay to the Executive the Gross−Up Payment, if any. If the Accounting Firm determines that no Excise Tax is payable by the
Executive, it will, at the same time as it makes such determination, furnish Executive with an opinion that the Executive has substantial authority not
to report any Excise Tax on his federal, state, local income or other tax return. The Company agrees to indemnify and hold harmless the Accounting
Firm of and from any and all claims, damages and expenses resulting from or relating to its determinations pursuant to this Section 10(c), except for
claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm.
(d) As a result of the uncertainty in the application of sections 4999 and 280G of the Code, it is possible that the Gross−Up Payments either will
have been made which should not have been made, or will not have been made which should have been made, by the Company (an "Excess Gross−Up
Payment" or a "Gross−Up Underpayment," respectively). If it is established pursuant to (A) a final determination of a court for which all appeals have
been taken and finally resolved or the time for all appeals has expired, or (B) an Internal Revenue Service (the "IRS") proceeding which has been
finally and conclusively resolved, that an Excess Gross−Up Payment has been made, such Gross−Up Excess Payment shall be deemed for all purposes
to be a loan to the Executive made on the date the Executive received the Excess Gross−Up Payment and the Executive shall repay the Excess
Gross−Up Payment to the Company either (i) on demand, if the Executive is in possession of the Excess Gross−Up Payment or (ii) upon the refund of
such Excess Gross−Up Payment to the Executive from the IRS, if the IRS is in possession of such Excess Gross−Up Payment, together with interest
on the Excess Gross−Up Payment at (X) 120% of the applicable federal rate (as defined in Section 1274(d) of the Code) compounded semi−annually
for any period during which the Executive held such Excess Gross−Up Payment and (Y) the interest rate paid to the Executive by the IRS in respect of
any period during which the IRS held such Excess Gross−Up Payment. If it is determined (I) by the Accounting Firm, the Company (which shall
include the position taken by the Company, together with its consolidated group, on its federal income tax return) or the IRS, (II) pursuant to a
determination by a court, or (III) upon the resolution to the Executive's satisfaction of the Dispute, that a Gross−Up Underpayment has occurred, the
Company shall pay an amount equal to the Gross−Up Underpayment to the Executive within ten calendar days of such determination or resolution,
together with interest on such amount at 120% of the applicable federal rate compounded semi−annually from the date such amount should have been
paid to the Executive pursuant to the terms of this Agreement or otherwise, but for the operation of this Section 10(d), until the date of payment.
11. Post−Termination Assistance. Upon the Executive's termination of employment with the Company, the Executive agrees to fully cooperate in all
matters relating to the winding up or pending work on behalf of the Company and the orderly transfer of work to other employees of the Company following any
termination of the Executive's employment. The Executive further agrees that he will provide, upon reasonable notice, such information and assistance to the
Company as may reasonably be requested by the Company in connection with any audit, governmental investigation, litigation, or other dispute in which the
Company is or may become a party and as to which the Executive has knowledge; provided, however, that (i) the Company agrees to reimburse the Executive for
any related out−of−pocket expenses, including travel expenses, and to pay the Executive reasonable compensation for his time based on his rate of base salary at
the time of termination, and (ii) any such assistance may not unreasonably interfere with Executive's then current employment.
12. Restrictive Covenants. In consideration of the obligations of the Company hereunder, the Executive agrees that he shall not, (i) during the Term and for
a period of two years after a termination of the Executive's employment with the Company for any reason (A) directly or indirectly become an employee,
director, consultant or advisor of, or otherwise affiliated with, any retailer of sporting goods, athletic footwear or athletic apparel which sells in the United States
through any retail channel, including without limitation, stores, catalogs, direct mail, the Internet, and commercial and/or institutional sales (unless (1) the
sporting goods, athletic footwear and athletic apparel sold by such retailer constitute less than 50% of the total sales by such retailer and its licensees in the
United States during the fiscal year of the Company immediately preceding the year of such termination, (2) such retailer had sales totaling less than
$300,000,000 during the fiscal year of the Company immediately preceding the year of such termination and had less than twenty (20) retail outlets in the United
States at the end of such fiscal year, or (3) the classes of products sold by such retailer constitute less than 10% of the total sales by the Company and its licensees
in the United States during the fiscal year of the Company immediately preceding the year of such termination), or (B) directly or indirectly solicit or hire or
encourage the solicitation or hiring of any person who was an employee of the Company at any time on or after the date of such termination (unless more than
six months shall have elapsed between the last day of such person's employment by the Company and the first date of such solicitation or hiring); (ii) during or
after the Term, make statements or representations, or otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any other action
which disparages the Company or its officers, directors, businesses or reputations; or (iii) during or after the Term, without the written consent of the Board,
disclose to any person other than as required by law or court order, any confidential information obtained by the Executive while in the employ of the Company,
provided, however, that confidential information shall not include any information known generally to the public (other than as a result of unauthorized
disclosure by the Executive) or any specific information or type of information generally not considered confidential by persons engaged in the same business as
the Company, or information disclosed by the Company by any member of the Board or any other officer thereof to a third party without restrictions on the
disclosure of such information. For the purpose of Sections 11 and 12 only, the term "Company" shall mean the Company and its subsidiaries. Notwithstanding
the above, nothing in this Agreement shall preclude the Executive from making truthful statements or disclosures that are required by applicable law, regulation
or legal process.
13. Enforcement. The Executive hereby expressly acknowledges that the restrictions contained in Section 12 are reasonable and necessary to protect the
Company's legitimate interests, that the Company would not have entered into this Agreement in the absence of such restrictions, and that any violation of such
restrictions will result in irreparable harm to the Company. The Executive agrees that the Company shall be entitled to preliminary and permanent injunctive
relief, without the necessity of proving actual damages, as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of
the restrictions contained in Section 12, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled.
The Executive irrevocably and unconditionally (i) agrees that any legal proceeding arising out of this paragraph may be brought in the United States District
Court for the District of Colorado, or if such court does not have jurisdiction or will not accept jurisdiction, in any court of general jurisdiction in Denver County,
Colorado, (ii) consents to the non−exclusive jurisdiction of such court in any such proceeding, and (iii) waives any objection to the laying of venue of any such
proceeding in any such court. The Executive also irrevocably and unconditionally consents to the service of any process, pleadings, notices or other papers in
connection with any such proceeding.
14. Survival. The provisions of Sections 10, 11, 12, 13, 22 and 23 shall survive the termination of this Agreement.
15. No Mitigation or Set Off. In no event shall the Executive be obligated to seek other employment or take any other action by way of mitigation of the
amounts payable to the Executive under any of the provisions of this Agreement and such amounts shall not be reduced, regardless of whether the Executive
obtains other employment. The Company's obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder
shall not be affected by any circumstances, including, without limitation, any set−off, counterclaim, recoupment, defense or other right which the Company may
have against the Executive or others; provided, however, the Company shall have the right to offset the amount of any funds loaned or advanced to the Executive
and not repaid against any severance obligations the Company may have to the Executive hereunder.
16. Return of Documents. Upon termination of his employment, the Executive agrees to return all documents belonging to the Company in his possession
including, but not limited to, contracts, agreements, licenses, business plans, equipment, software, software programs, products, work−in−progress, source code,
object code, computer disks, books, notes and all copies thereof, whether in written, electronic or other form; provided that the Executive may retain copies of his
rolodex. In addition, the Executive shall certify to the Company in writing as of the effective date of termination that none of the assets or business records
belonging to the Company are in his possession, remain under his control, or have been transferred to any third person.
17. Effect of Waiver. The waiver by either party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach hereof. No waiver shall be valid unless in writing.
18. Assignment. This Agreement may not be assigned by either party without the express prior written consent of the other party hereto, except that the
Company (i) may assign this Agreement to any subsidiary or affiliate of the Company, provided that no such assignment shall relieve the Company of its
obligations hereunder without the written consent of the Executive and (ii) will require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in
the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. As used in this Agreement,
"Company" shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform
this Agreement by operation of law, or otherwise.
19. Entire Agreement; Effectiveness of Agreement. This Agreement sets forth the entire agreement of the parties hereto and supersedes any and all prior
agreements and understandings concerning the Executive's employment by the Company, including, without limitation, the severance agreement dated
October 21, 1998, as amended. This Agreement may be changed only by a written document signed by the Executive and the Company. Notwithstanding the
foregoing, this Agreement shall not supercede or replace any agreement entered into between the Company and the Executive with respect to any plan or benefit
described in Section 7 or 8 herein.
20. Severability. If any one or more of the provisions, or portions of any provision, of the Agreement shall be held to be invalid, illegal or unenforceable,
the validity, legality or enforceability of the remaining provisions or parts hereof shall not in any way be affected or impaired thereby.
21. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE SUBSTANTIVE AND PROCEDURAL LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO RULES GOVERNING
CONFLICTS OF LAW.
22. Arbitration. Other than as set forth in Section 13, any controversy, claim or dispute arising out of or relating to this Agreement or the Executive's
employment by the Company, including, but not limited to, common law and statutory claims for discrimination, wrongful discharge, and unpaid wages, shall be
resolved by arbitration in Denver, Colorado pursuant to then prevailing National Rules for the Resolution of Employment Disputes of the American Arbitration
Association. It is the intent of the Company that, following a Change of Control, the Executive shall not be required to incur any expenses associated with the
enforcement of his rights under this Agreement by arbitration, litigation or other legal action because the cost and expense thereof would substantially detract
from the benefits intended to be extended to the Executive hereunder. Accordingly, the Company shall pay the Executive on demand the amount necessary to
reimburse the Executive in full for all expenses (including all attorneys' fees and legal expenses) incurred by the Executive in enforcing any of the obligations of
the Company under this Agreement, or in defending any action by the Company against the Executive in respect of such obligations or the obligations of the
Executive under this Agreement, if such action is commenced on or following a Change of Control. The Company shall pay such expenses to the Executive upon
demand in connection with any action described in the preceding sentence which is commenced prior to a Change of Control if the Executive substantially
prevails on at least one material issue in dispute.
23. Indemnification. During the Term, the Executive shall be entitled to indemnification and insurance coverage for directors and officers liability,
fiduciary liability and other liabilities arising out of the Executive's position with the Company in any capacity, in an amount not less than the highest amount
available to any other senior level executive or member of the Board and to the full extent provided by the Company's certificate of incorporation or by−laws,
and such coverage and protections, with respect to the various liabilities as to which the Executive has been customarily indemnified prior to termination of
employment, shall continue for at least six years following the end of the Term. Any indemnification agreement entered into between the Company and the
Executive shall continue in full force and effect in accordance with its terms following the termination of this Agreement.
24. Notices. All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, or by facsimile or nationally recognized overnight courier service, addressed as follows:
If to Executive:
At the address set forth on the signature page.
If to the Company:
The Sports Authority, Inc.
1050 West Hampden Avenue
Englewood, Colorado 80110
Attn: General Counsel
Telecopy: 303−864−2188
or to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
25. Withholding. The Company may withhold from amounts payable under this Agreement any and all federal, state, and local taxes that are required to be
withheld by any applicable laws and regulations. The Company may also withhold any amounts necessary pursuant to the benefit plans, policies, or arrangements
of the Company or otherwise, in accordance with any applicable Company policies, laws and/or regulations.
******
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written.
THE SPORTS AUTHORITY, INC.
By:
Its:
Senior Vice President
JOHN DOUGLAS MORTON
By:
Address and contact information for John Douglas Morton as of the date
hereof (not to be included with any public filings):
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AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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Exhibit 10.15
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into by and between The Sports Authority, Inc., a Delaware corporation previously
known as Gart Sports Company (the "Company"), and Thomas Hendrickson (the "Executive") and shall be effective as of the "Effective Time," as defined in the
written Agreement and Plan of Merger, dated as of February 19, 2003, by and among the Company, Gold Acquisition Corp., a Delaware corporation and wholly
owned subsidiary of the Company, and The Sports Authority, Inc. ("TSA") (the "Merger Agreement").
WHEREAS, the Company desires to employ the Executive as its Chief Administration Officer, Chief Financial Officer and non−director Vice Chairman
and the Executive desires to serve in such capacity on behalf of the Company.
NOW, THEREFORE, in consideration of the promises and of the mutual covenants and agreements hereinafter set forth, the Company and the Executive
hereby agree as follows:
1.
Employment.
(a) Term. The term of this Agreement (the "Term") shall begin as of the Effective Time and shall end at the time of the termination of the
Executive's employment in accordance with Section 9 herein.
(b) Duties. The Executive shall serve as the Chief Administration Officer, Chief Financial Officer, and non−director Vice Chairman of the
Company and shall report directly to the Chief Executive Officer of the Company (the "CEO"). The Executive shall have such duties and
responsibilities as are consistent with his position as Chief Administration Office and Chief Financial Officer of the Company. In addition, the
Executive shall perform all other duties and accept all other responsibilities incident to such position as may be reasonably assigned to him by the
CEO.
(c) Best Efforts. During the period of his employment, the Executive shall devote his best efforts and full−time and attention to promote the
business and affairs of the Company and its affiliated companies, and shall be engaged in other business activities only to the extent that such activities
are not competitive with the Company and do not interfere or conflict with his obligations to the Company hereunder, including, without limitation,
the obligations pursuant to Section 12 below. Notwithstanding the foregoing, the Executive may (A) serve on corporate, civic, educational,
philanthropic or charitable boards or committees, (B) deliver lectures, fulfill speaking engagements or teach at educational institutions and (C) manage
personal investments, so long as such activities do not significantly interfere with the performance of the Executive's responsibilities hereunder. The
foregoing shall also not be construed as preventing the Executive from investing his assets in such form or manner as will not require any significant
services on his part in the operation of the affairs of the businesses or entities in which such investments are made; provided, however, that the
Executive shall not invest in any business competitive with the Company, except that the Executive shall be permitted to own not more than 5% of the
stock of those companies whose securities are listed on a national securities exchange or on the NASDAQ system.
2. Compensation. As compensation for the services to be rendered hereunder, the Company shall pay to the Executive an annual base salary of $550,000
(the "Base Salary"). The Base Salary may be subject to annual increases (but not decreases), as determined in the sole discretion of the Compensation Committee
(the "Compensation Committee") of the Board of Directors of the Company (the "Board"). The Base Salary shall be paid in accordance with the Company's
existing payroll policies.
3. Bonus. The Executive shall be eligible for an annual target bonus payment in an amount equal to 60% of his Base Salary (the "Bonus"). The Bonus
shall be determined based on the achievement of certain performance objectives of the Company as established by the Compensation Committee and
communicated to the Executive in writing as soon as practicable after commencement of the year in respect of which the Bonus is paid. The Bonus may be
greater or less than the target Bonus, based on the level of achievement of the applicable performance objectives.
4. Equity Award. The Executive shall be eligible to receive stock options and other equity−based compensation awards under the Company's 2003 Long
Term Incentive Compensation Plan and otherwise; provided that the Executive shall be granted such awards in the form, on the same terms and conditions, at the
same time, and in an amount no less than 60% of the amount, granted to the CEO during the Term; further provided, however, that any awards granted to the
CEO which are extraordinary one−time or "sign−on" grants shall be ignored for purposes of the preceding proviso.
5. Expenses. The Company shall reimburse the Executive for all necessary and reasonable travel, entertainment and other business expenses incurred by
him in the performance of his duties hereunder in accordance with such reasonable procedures as the Company may adopt generally from time to time. The
Company shall also reimburse the Executive for reasonable legal fees incurred in connection with the review of the terms of this Agreement.
6. Vacation. The Executive shall be entitled to vacation, holiday and sick leave at levels no less than commensurate with those provided to the CEO, in
accordance with the Company's vacation, holiday and other pay−for−time−not−worked policies.
7. Retirement and Welfare Benefits. The Executive shall be entitled to participate in the Company's health, life insurance, long and short−term disability,
dental, retirement, and medical programs, if any, pursuant to their respective terms and conditions, on a basis no less than commensurate with those provided to
the CEO. Nothing in this Agreement shall preclude the Company or any affiliate of the Company from terminating or amending any employee benefit plan or
program from time to time after the effective date of this Agreement, provided that any such amendment or termination shall be effective as to the Executive only
if it is equally applicable to every other senior executive officer of the Company.
8. Perquisites. The Executive shall be provided with such other executive perquisites as may be provided to the CEO (including but not limited to the use
of a Company−provided automobile of a type similar to that being provided to the Executive immediately prior to the Effective Time and all operating and
insurance costs related thereto, and a discount card allowing the Executive to purchase items from the Company's retail stores at cost plus 10%).
9.
Termination.
(a) Termination by the Company.
(1) For Cause. The Company may terminate the Executive's employment hereunder at any time for Cause (as defined and in
accordance with the procedures outlined below), in which case the Company's sole liability to the Executive shall be for unpaid Base Salary
and benefits (then owed, or accrued and owed in the future, but in all events and without increasing the Executive's rights under any other
provision hereof, excluding any Bonus payments not yet paid) through the date of termination and unreimbursed expenses incurred by the
Executive pursuant to Section 5 above, each of which shall be paid within 10 days following the date of the Executive's termination.
(2) Without Cause. The Company may also terminate the Executive's employment without Cause at any time upon not less than thirty
(30) days' prior written notice to the Executive; provided, however, that in the event that such notice is given, the Executive shall be under
no obligation to render any additional services to the Company and shall be allowed to seek other employment. Upon the Executive's
termination in accordance with the preceding sentence, the Company shall pay to the Executive a single lump sum in cash, within 10 days
following the date of the Executive's termination, unless another date is mutually agreed upon by the parties, equal to the aggregate amount
of (i) unpaid Base Salary, accrued but unpaid Bonus and benefits (then owed, or accrued and owed in the future) through the date of
termination, (ii) 2.4 times the Base Salary in effect immediately prior to such termination if such termination occurs prior to the third
anniversary of the Effective Time and 1.5 times such Base Salary if such termination occurs on or following the third anniversary of the
Effective Time, and (iii) all unreimbursed expenses incurred by the Executive pursuant to Section 5. In addition, (x) at the time of such
termination, the Executive shall be fully vested in all outstanding long−term incentive awards (whether based in equity or cash, and
specifically including, but not limited to, stock options and restricted stock) then held by the Executive, (y) if such termination occurs on or
following the third anniversary of the Effective Time then, no later than the date on which annual bonuses are generally paid to the
Company's executives in respect of the year of such termination, the Executive shall receive a payment equal to 1.5 times the lesser of
(I) the target Bonus for the year of termination or (II) the Bonus to which the Executive would have been entitled for the year of termination
had the Executive remained employed throughout such year, based on the achievement of the Executive's Bonus objectives for such year;
provided that if any portion of such Bonus is based on subjective determinations, then for purposes of this subclause (II) the amount of the
Bonus shall be determined based on the percentage of the applicable objective performance criteria attained multiplied by the entire target
Bonus, and (z) all health, life insurance, long−term disability, dental, and medical programs specified in Section 7, and all perquisites
described in Section 8, shall continue for 18 months following such termination (the "Severance Term"); provided, however, that the
Company shall in no event be required to provide any coverage after such time as the Executive becomes entitled to receive benefits of the
same type from another employer or recipient of the Executive's services (and provided, further, that such entitlement shall be determined
without regard to any individual waivers or other similar arrangements). At the conclusion of the Severance Term, the Executive shall be
entitled to receive all accrued benefits then owed and any benefits pursuant to the Company's plans or programs which are accrued and
owed in the future. Notwithstanding the foregoing, if a termination described in this Section 9(a)(2) occurs (A) within the 18−month period
commencing on the date of a Change of Control (as defined below), or (B) prior to a Change of Control and such termination was at the
request of a third party who had memorialized an intention or taken steps reasonably calculated to effect a Change of Control or was
otherwise in anticipation of a Change of Control, the Executive shall receive in all cases the payments and benefits described in this
Section 9(a)(2) as if such termination had occurred prior to the third anniversary of the Effective Time, plus the Executive shall receive
clear title, free of any liens, to the car provided to the Executive pursuant to Section 8 herein.
(3) "Cause" Defined. As used in this Agreement, termination for "Cause" shall mean a termination based upon:
(i) a material violation of any material written rule or policy of the Company (A) for which violation any employee may
be terminated pursuant to the written policies of the Company reasonably applicable to an executive employee, and (B) which
the Executive fails to correct within 30 days after the Executive receives written notice from the Board of such violation;
(ii) misconduct by the Executive to the material and demonstrable detriment of the Company;
(iii) the Executive's conviction (by a court of competent jurisdiction, not subject to further appeal) of, or pleading guilty to,
a felony;
(iv) the Executive's continued and ongoing gross negligence in the performance of his duties and responsibilities to the
Company as described in this Agreement; or
(v) the Executive's material failure to perform his duties and responsibilities to the Company as described in this
Agreement (other than any such failure resulting from the Executive's incapacity due to physical or mental illness or any such
failure subsequent to the Executive being delivered a notice of termination without Cause by the Company or delivering a notice
of termination for Good Reason to the Company), in either case after written notice from the Board to the Executive of the
specific nature of such material failure and the Executive's failure to cure such material failure within thirty (30) days following
receipt of such notice.
Cause shall not exist unless and until the Company has delivered to the Executive, along with the notice of Termination for Cause, a copy of a resolution
duly adopted by two−thirds ( 2/3) of the entire Board (excluding the Executive if the Executive is a Board member) at a meeting of the Board called and held for
such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with counsel, to be heard before the Board), finding that in
the good faith opinion of the Board an event set forth in clauses (i), (ii), (iv) or (v) above has occurred and specifying the particulars thereof in detail. The Board
must notify the Executive of any event constituting Cause within ninety (90) days following the Board's knowledge of its existence or such event shall not
constitute Cause under this Agreement.
(b) Termination by the Executive.
(1) The Executive may resign from his employment hereunder in the event of "Good Reason" after thirty (30) days' written notice
from the Executive to the Board describing in detail the "Good Reason," if not cured within such 30−day period; provided, however, that
such notice shall be given no later than ninety (90) days after the time that the Executive has actual knowledge of the event or condition
purportedly giving rise to Good Reason. In the event of any such resignation, the Company's obligations to the Executive shall be the same
as set forth in Section 9(a)(2) above, and if (A) such resignation occurs within the 18−month period commencing on the date of a Change of
Control or (B) prior to a Change of Control the event constituting Good Reason for such termination was at the request of a third party who
had memorialized an intention or taken steps reasonably calculated to effect a Change of Control or was otherwise in anticipation of a
Change of Control, then the last sentence of Section 9(a)(2) shall apply.
(2) The Executive may resign his employment hereunder other than for Good Reason at any time by giving no less than thirty
(30) days' written notice to the Board. In the event of any such resignation, the Company's sole obligation to the Executive shall be for
unpaid Base Salary and benefits (then owed or accrued and owed in the future, but in all events and without increasing the Executive's
rights under any other provision hereof, excluding any Bonus payments not yet paid) and reimbursement of expenses pursuant to Section 5
above through the effective date of the Executive's resignation specified in the Executive's notice.
(3) For the purposes of this Agreement, "Good Reason" means resignation by the Executive based upon the occurrence without the
Executive's express written consent of any of the following:
(i) a significant diminution by the Company of the Executive's role with the Company or a significant detrimental change
in the nature and/or scope of the Executive's status with the Company (including a diminution in title);
(ii) a reduction in Base Salary or target or maximum Bonus, other than as part of an across the board reduction in salaries
of management personnel (including all vice presidents and positions above) of less than 20%;
(iii) at any time following a Change of Control (as defined below), a material diminution by the Company of compensation
and benefits (taken as a whole) provided to the Executive immediately prior to a Change of Control;
(iv) the relocation of the Executive's principal executive office to a location more than 30 miles further from the
Executive's principal residence than the Executive's principal executive office immediately prior to such relocation, or any
requirement that the Executive be based anywhere other than the Executive's principal executive office;
(v) any failure by the Company to comply with and satisfy clause (ii) of the first sentence of Section 18; or
(vi) any other material breach by the Company of any of the terms and conditions of this Agreement.
Notwithstanding the above, a resignation by the Executive for any reason during the 30−day period commencing six months after a Change of Control, upon
giving at least thirty (30) days' advance written notice to the Board, shall be considered to be a resignation for Good Reason.
(c) Termination by Death or Disability. In the event of the Executive's death or "permanent disability" (as defined below) during the Term, the
Executive's employment shall terminate on the date of death or date of permanent disability. In the event of such termination, the Company's sole
obligations hereunder to the Executive (or the Executive's estate) shall be for unpaid Base Salary, accrued but unpaid Bonus and benefits (then owed
or accrued and owed in the future), a pro−rata Bonus for the year of termination based on the Executive's target Bonus for such year and the portion of
such year in which the Executive was employed, and reimbursement of expenses pursuant to Section 5 through the effective date of termination, each
of which shall be paid within 10 days following the date of the Executive's termination. For purposes of this Section 9(c), the Executive shall be
considered to have suffered a "permanent disability" if he has become eligible to receive benefits under the long−term disability plan of the Company.
10. Change of Control.
(a) A "Change of Control" shall be deemed to have occurred if, after the Effective Time, (i) the beneficial ownership (as defined in Rule 13d−3
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of securities representing more than 30% of the combined voting
power of the Company is acquired by any "person" as defined in sections 13(d) and 14(d) of the Exchange Act (other than the Company, any
subsidiary of the Company, or any trustee or other fiduciary holding securities under an employee benefit plan of the Company), (ii) the merger or
consolidation of the Company with or into another corporation where the shareholders of the Company, immediately prior to the consolidation or
merger, would not, immediately after the consolidation or merger, beneficially own (as such term is defined in Rule 13d−3 under the Exchange Act),
directly or indirectly, shares representing in the aggregate 50% or more of the combined voting power of the securities of the corporation issuing cash
or securities in the consolidation or merger (or of its ultimate parent corporation, if any) in substantially the same proportion as their ownership of the
Company immediately prior to such merger or consolidation, (iii) the sale or other disposition of all or substantially all of the Company's assets to an
entity, other than a sale or disposition by the Company of all or substantially all of the Company's assets to an entity, at least 50% of the combined
voting power of the voting securities of which are owned directly or indirectly by shareholders of the Company, immediately prior to the sale or
disposition, in substantially the same proportion as their ownership of the Company immediately prior to such sale or disposition, or (iv) during any
period of two consecutive years, individuals who at the beginning of such period were members of the Board ("Incumbent Directors") cease for any
reason (other than death) to constitute at least a majority thereof; provided that each new director whose election, or nomination for election by the
Company's shareholders, was approved by a vote of at least a majority of the directors then still in office who were directors at the beginning of such
period shall be deemed an Incumbent Director unless such approval was made directly or indirectly in connection with an actual or threatened election
contest with respect to directors or as a result of any other actual or threatened solicitation of proxies or consents by or on behalf of any person other
than the Board.
(b) Anything in this Agreement to the contrary notwithstanding, if it is determined that any payment or benefit provided to the Executive under
this Agreement or otherwise, whether or not in connection with a Change of Control (a "Payment"), would constitute an "excess parachute payment"
within the meaning of section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), such that the Payment would be subject to an
excise tax under section 4999 of the Code (the "Excise Tax"), the Company shall pay to the Executive an additional amount (the "Gross−Up
Payment") such that the net amount of the Gross−Up Payment retained by the Executive after the payment of any Excise Tax and any federal, state
and local income and employment tax on the Gross−Up Payment, shall be equal to the Excise Tax due on the Payment and any interest and penalties
in respect of such Excise Tax. For purposes of determining the amount of the Gross−Up Payment, Executive shall be deemed to pay federal income
tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross−Up
Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence (or, if
greater, the state and locality in which Executive is required to file a nonresident income tax return with respect to the Payment) in the calendar year in
which the Gross−Up Payment is to be made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such
state and local taxes.
(c) All determinations made pursuant to the foregoing paragraph shall be made by the Company's independent public accounting firm
immediately prior to the transaction resulting in the application of section 4999 of the Code or, if such firm continues to be retained by the Company
or its successor to provide any services whatsoever subsequent to such transaction, an independent public accounting firm selected by the Executive in
the Executive's sole discretion (the "Accounting Firm"), which firm shall provide its determination and any supporting calculations (the
"Determination") both to the Company and to the Executive within ten days of the date of the Executive's termination or any other date selected by the
Executive or the Company. Within ten calendar days of the delivery of the Determination to the Executive, the Executive shall have the right to
dispute the Determination (the "Dispute"). The existence of any Dispute shall not in any way affect the Executive's right to receive the Gross−Up
Payments in accordance with the Determination. If there is no dispute, the Determination by the Accounting Firm shall be final, binding and
conclusive upon the Company and the Executive, subject to the application of Section 10(d). All of the fees and expenses of the Accounting Firm in
performing the determinations referred to above shall be borne solely by the Company. Within five days after the Accounting Firm's determination,
the Company shall pay to the Executive the Gross−Up Payment, if any. If the Accounting Firm determines that no Excise Tax is payable by the
Executive, it will, at the same time as it makes such determination, furnish Executive with an opinion that the Executive has substantial authority not
to report any Excise Tax on his federal, state, local income or other tax return. The Company agrees to indemnify and hold harmless the Accounting
Firm of and from any and all claims, damages and expenses resulting from or relating to its determinations pursuant to this Section 10(c), except for
claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm.
(d) As a result of the uncertainty in the application of sections 4999 and 280G of the Code, it is possible that the Gross−Up Payments either will
have been made which should not have been made, or will not have been made which should have been made, by the Company (an "Excess Gross−Up
Payment" or a "Gross−Up Underpayment," respectively). If it is established pursuant to (A) a final determination of a court for which all appeals have
been taken and finally resolved or the time for all appeals has expired, or (B) an Internal Revenue Service (the "IRS") proceeding which has been
finally and conclusively resolved, that an Excess Gross−Up Payment has been made, such Gross−Up Excess Payment shall be deemed for all purposes
to be a loan to the Executive made on the date the Executive received the Excess Gross−Up Payment and the Executive shall repay the Excess
Gross−Up Payment to the Company either (i) on demand, if the Executive is in possession of the Excess Gross−Up Payment or (ii) upon the refund of
such Excess Gross−Up Payment to the Executive from the IRS, if the IRS is in possession of such Excess Gross−Up Payment, together with interest
on the Excess Gross−Up Payment at (X) 120% of the applicable federal rate (as defined in Section 1274(d) of the Code) compounded semi−annually
for any period during which the Executive held such Excess Gross−Up Payment and (Y) the interest rate paid to the Executive by the IRS in respect of
any period during which the IRS held such Excess Gross−Up Payment. If it is determined (I) by the Accounting Firm, the Company (which shall
include the position taken by the Company, together with its consolidated group, on its federal income tax return) or the IRS, (II) pursuant to a
determination by a court, or (III) upon the resolution to the Executive's satisfaction of the Dispute, that a Gross−Up Underpayment has occurred, the
Company shall pay an amount equal to the Gross−Up Underpayment to the Executive within ten calendar days of such determination or resolution,
together with interest on such amount at 120% of the applicable federal rate compounded semi−annually from the date such amount should have been
paid to the Executive pursuant to the terms of this Agreement or otherwise, but for the operation of this Section 10(d), until the date of payment.
11. Post−Termination Assistance. Upon the Executive's termination of employment with the Company, the Executive agrees to fully cooperate in all
matters relating to the winding up or pending work on behalf of the Company and the orderly transfer of work to other employees of the Company following any
termination of the Executives' employment. The Executive further agrees that he will provide, upon reasonable notice, such information and assistance to the
Company as may reasonably be requested by the Company in connection with any audit, governmental investigation, litigation, or other dispute in which the
Company is or may become a party and as to which the Executive has knowledge; provided, however, that (i) the Company agrees to reimburse the Executive for
any related out−of−pocket expenses, including travel expenses, and to pay the Executive reasonable compensation for his time based on his rate of Base Salary at
the time of termination, and (ii) any such assistance may not unreasonably interfere with Executive's then current employment.
12. Restrictive Covenants. In consideration of the obligations of the Company hereunder, the Executive agrees that he shall not, (i) during the Term and the
Severance Term, if severance is being paid, or if no severance is being paid, for a period of one year after a termination of the Executive's employment with the
Company for any reason, (A) directly or indirectly become an employee, director, consultant or advisor of, or otherwise affiliated with, any retailer of sporting
goods, athletic footwear or athletic apparel which sells in the United States through any retail channel, including without limitation, stores, catalogs, direct mail,
the Internet, and commercial and/or institutional sales (unless (1) the sporting goods, athletic footwear and athletic apparel sold by such retailer constitute less
than 50% of the total sales by such retailer and its licensees in the United States during the fiscal year of the Company immediately preceding the year of such
termination, (2) such retailer had sales totaling less than $300,000,000 during the fiscal year of the Company immediately preceding the year of such termination
and had less than twenty (20) retail outlets in the United States at the end of such fiscal year, or (3) the classes of products sold by such retailer constitute less
than 10% of the total sales by the Company and its licensees in the United States during the fiscal year of the Company immediately preceding the year of such
termination), or (B) directly or indirectly solicit or hire or encourage the solicitation or hiring of any person who was an employee of the Company at any time on
or after the date of such termination (unless more than six months shall have elapsed between the last day of such person's employment by the Company and the
first date of such solicitation or hiring); (ii) during or after the Term, make statements or representations, or otherwise communicate, directly or indirectly, in
writing, orally, or otherwise, or take any other action which disparages the Company or its officers, directors, businesses or reputations; or (iii) during or after the
Term, without the written consent of the CEO, disclose to any person other than as required by law or court order, any confidential information obtained by the
Executive while in the employ of the Company, provided, however, that confidential information shall not include any information known generally to the public
(other than as a result of unauthorized disclosure by the Executive) or any specific information or type of information generally not considered confidential by
persons engaged in the same business as the Company, or information disclosed by the Company by any member of the Board or any other officer thereof to a
third party without restrictions on the disclosure of such information. For the purpose of Sections 11 and 12 only, the term "Company" shall mean the Company
and its subsidiaries. Notwithstanding the above, nothing in this Agreement shall preclude the Executive from making truthful statements or disclosures that are
required by applicable law, regulation or legal process.
13. Enforcement. The Executive hereby expressly acknowledges that the restrictions contained in Section 12 are reasonable and necessary to protect the
Company's legitimate interests, that the Company would not have entered into this Agreement in the absence of such restrictions, and that any violation of such
restrictions will result in irreparable harm to the Company. The Executive agrees that the Company shall be entitled to preliminary and permanent injunctive
relief, without the necessity of proving actual damages, as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of
the restrictions contained in Section 12, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled.
The Executive irrevocably and unconditionally (i) agrees that any legal proceeding arising out of this paragraph may be brought in the United States District
Court for the District of Colorado, or if such court does not have jurisdiction or will not accept jurisdiction, in any court of general jurisdiction in Denver County,
Colorado, (ii) consents to the non−exclusive jurisdiction of such court in any such proceeding, and (iii) waives any objection to the laying of venue of any such
proceeding in any such court. The Executive also irrevocably and unconditionally consents to the service of any process, pleadings, notices or other papers in
connection with any such proceeding.
14. Survival. The provisions of Sections 10, 11, 12, 13, 22 and 23 shall survive the termination of this Agreement.
15. No Mitigation or Set−Off. In no event shall the Executive be obligated to seek other employment or take any other action by way of mitigation of the
amounts payable to the Executive under any of the provisions of this Agreement and such amounts shall not be reduced, regardless of whether the Executive
obtains other employment. The Company's obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder
shall not be affected by any circumstances, including, without limitation, any set−off, counterclaim, recoupment, defense or other right which the Company may
have against the Executive or others; provided, however, the Company shall have the right to offset the amount of any funds loaned or advanced to the Executive
and not repaid against any severance obligations the Company may have to the Executive hereunder.
16. Return of Documents. Upon termination of his employment, the Executive agrees to return all documents belonging to the Company in his possession
including, but not limited to, contracts, agreements, licenses, business plans, equipment, software, software programs, products, work−in−progress, source code,
object code, computer disks, books, notes and all copies thereof, whether in written, electronic or other form; provided that the Executive may retain copies of his
rolodex. In addition, the Executive shall certify to the Company in writing as of the effective date of termination that none of the assets or business records
belonging to the Company are in his possession, remain under his control, or have been transferred to any third person.
17. Effect of Waiver. The waiver by either party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach hereof. No waiver shall be valid unless in writing.
18. Assignment. This Agreement may not be assigned by either party without the express prior written consent of the other party hereto, except that the
Company (i) may assign this Agreement to any subsidiary or affiliate of the Company, provided that no such assignment shall relieve the Company of its
obligations hereunder without the written consent of the Executive, and (ii) will require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in
the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. As used in this Agreement,
"Company" shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform
this Agreement by operation of law, or otherwise.
19. Entire Agreement; Effectiveness of Agreement. This Agreement sets forth the entire agreement of the parties hereto and shall supersede any and all
prior agreements and understandings concerning the Executive's employment by the Company, including, without limitation, a severance agreement between the
Executive and the Company, dated October 21, 1998, as amended. This Agreement may be changed only by a written document signed by the Executive and the
Company. Notwithstanding the foregoing, this Agreement shall not supercede or replace any agreement entered into between the Company and the Executive
with respect to any plan or benefit described in Section 7 or 8 herein.
20. Severability. If any one or more of the provisions, or portions of any provision, of the Agreement shall be held to be invalid, illegal or unenforceable,
the validity, legality or enforceability of the remaining provisions or parts hereof shall not in any way be affected or impaired thereby.
21. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE SUBSTANTIVE AND PROCEDURAL LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO RULES GOVERNING
CONFLICTS OF LAW.
22. Arbitration. Other than as set forth in Section 13, any controversy, claim or dispute arising out of or relating to this Agreement or the Executive's
employment by the Company, including, but not limited to, common law and statutory claims for discrimination, wrongful discharge, and unpaid wages, shall be
resolved by arbitration in Denver, Colorado pursuant to then prevailing National Rules for the Resolution of Employment Disputes of the American Arbitration
Association. It is the intent of the Company that, following a Change of Control, the Executive shall not be required to incur any expenses associated with the
enforcement of his rights under this Agreement by arbitration, litigation or other legal action because the cost and expense thereof would substantially detract
from the benefits intended to be extended to the Executive hereunder. Accordingly, the Company shall pay the Executive on demand the amount necessary to
reimburse the Executive in full for all expenses (including all attorneys' fees and legal expenses) incurred by the Executive in enforcing any of the obligations of
the Company under this Agreement, or in defending any action by the Company against the Executive in respect of such obligations or the obligations of the
Executive under this Agreement, if such action is commenced on or following a Change of Control. The Company shall pay such expenses to the Executive upon
demand in connection with any action described in the preceding sentence which is commenced prior to a Change of Control if the Executive substantially
prevails on at least one material issue in dispute.
23. Indemnification. During the Term, the Executive shall be entitled to indemnification and insurance coverage for directors and officers liability,
fiduciary liability and other liabilities arising out of the Executive's position with the Company in any capacity, in an amount not less than the highest amount
available to any other senior level executive or member of the Board and to the full extent provided by the Company's certificate of incorporation or by−laws,
and such coverage and protections, with respect to the various liabilities as to which the Executive has been customarily indemnified prior to termination of
employment, shall continue for at least six years following the end of the Term. Any indemnification agreement entered into between the Company and the
Executive shall continue in full force and effect in accordance with its terms following the termination of this Agreement.
24. Notices. All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, or by facsimile or nationally recognized overnight courier service, addressed as follows:
If to Executive:
At the address set forth on the signature page.
If to the Company:
The Sports Authority, Inc.
1050 West Hampden Avenue
Englewood, Colorado 80110
Attn: General Counsel
Telecopy: 303−864−2188
or to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
25. Withholding. The Company may withhold from amounts payable under this Agreement any and all federal, state, and local taxes that are required to be
withheld by any applicable laws and regulations. The Company may also withhold any amounts necessary pursuant to the benefit plans, policies, or arrangements
of the Company or otherwise, in accordance with any applicable Company policies, laws and/or regulations.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written.
THE SPORTS AUTHORITY, INC.
By:
Name:
Its:
John Douglas Morton
Chief Executive Officer
Thomas Hendrickson
Address and contact information for Thomas Hendrickson as of the date
hereof (not to be included with any public filings):
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EMPLOYMENT AGREEMENT
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Exhibit 10.16
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into by and between The Sports Authority, Inc., a Delaware corporation previously
known as Gart Sports Company (the "Company"), and Elliott Kerbis (the "Executive") and shall be effective as of the "Effective Time," as defined in the written
Agreement and Plan of Merger, dated as of February 19, 2003, by and among the Company, Gold Acquisition Corp., a Delaware corporation and wholly owned
subsidiary of the Company, and The Sports Authority, Inc. ("TSA") (the "Merger Agreement").
WHEREAS, the Company desires to employ the Executive as its President and Chief Merchandising Officer and the Executive desires to serve in such
capacity on behalf of the Company.
NOW, THEREFORE, in consideration of the promises and of the mutual covenants and agreements hereinafter set forth, the Company and the Executive
hereby agree as follows:
1.
Employment.
(a) Term. The term of this Agreement (the "Term") shall begin as of the Effective Time and shall end at the time of the termination of the
Executive's employment in accordance with Section 12 herein.
(b) Duties. The Executive shall serve as the President and Chief Merchandising Officer of the Company and shall report directly to the Chief
Executive Officer of the Company (the "CEO"). The Executive shall have such duties and responsibilities as are consistent with his position as
President and Chief Merchandising Officer of the Company. In addition, the Executive shall perform all other duties and accept all other
responsibilities incident to such position as may be reasonably assigned to him by the CEO.
(c) Best Efforts. During the period of his employment, the Executive shall devote his best efforts and full−time and attention to promote the
business and affairs of the Company and its affiliated companies, and shall be engaged in other business activities only to the extent that such activities
are not competitive with the Company and do not interfere or conflict with his obligations to the Company hereunder, including, without limitation,
the obligations pursuant to Section 14 below. Notwithstanding the foregoing, the Executive may (A) serve on corporate, civic, educational,
philanthropic or charitable boards or committees, (B) deliver lectures, fulfill speaking engagements or teach at educational institutions and (C) manage
personal investments, so long as such activities do not significantly interfere with the performance of the Executive's responsibilities hereunder. The
foregoing shall also not be construed as preventing the Executive from investing his assets in such form or manner as will not require any significant
services on his part in the operation of the affairs of the businesses or entities in which such investments are made; provided, however, that the
Executive shall not invest in any business competitive with the Company, except that the Executive shall be permitted to own not more than 5% of the
stock of those companies whose securities are listed on a national securities exchange or on the NASDAQ system.
2. Compensation. As compensation for the services to be rendered hereunder, the Company shall pay to the Executive an annual base salary of $650,000
(the "Base Salary"). The Base Salary may be subject to annual increases (but not decreases), as determined in the sole discretion of the Compensation Committee
(the "Compensation Committee") of the Board of Directors of the Company (the "Board"). The Base Salary shall be paid in accordance with the Company's
existing payroll policies.
3. Bonus. The Executive shall be eligible for an annual target bonus payment in an amount equal to 60% of his Base Salary (the "Bonus"). The Bonus
shall be determined based on the achievement of certain performance objectives of the Company as established by the Compensation Committee and
communicated to the Executive in writing as soon as practicable after commencement of the year in respect of which the Bonus is paid. The Bonus may be
greater or less than the target Bonus, based on the level of achievement of the applicable performance objectives.
4. Equity Award. The Executive shall be eligible to receive stock options and other equity−based compensation awards under the Company's 2003 Long
Term Incentive Compensation Plan and otherwise; provided that the Executive shall be granted such awards in the form, on the same terms and conditions, at the
same time, and in an amount no less than 75% of the amount granted to the CEO during the Term; further provided, however, that any awards granted to the
CEO which are extraordinary one−time or "sign−on" grants shall be ignored for the purposes of the preceding proviso.
5. Expenses. The Company shall reimburse the Executive for all necessary and reasonable travel, entertainment and other business expenses incurred by
him in the performance of his duties hereunder in accordance with such reasonable procedures as the Company may adopt generally from time to time. The
Company shall also reimburse the Executive for reasonable legal fees incurred in connection with the review of the terms of this Agreement.
6. Travel Expenses. For a period of one year following the Effective Time, the Company shall reimburse the Executive for economy class travel expenses
between Denver and Southern Florida for the Executive, his spouse and children (the "Travel Reimbursement"). In addition, the Company shall pay to the
Executive an additional amount (the "Travel Reimbursement Tax Payment") such that the net amount of the Travel Reimbursement Tax Payment retained by the
Executive after the payment of any federal, state and local income and employment taxes (calculated assuming that the Executive is subject to tax at the highest
applicable marginal rate) on the Travel Reimbursement Tax Payment shall be equal to the amount of federal, state and local income and employment taxes due
with respect to the Travel Reimbursement.
7. Relocation. The Company shall pay Executive, immediately following the Effective Time, the amount of $50,000 in connection with his relocation to
Colorado. In addition, the Company shall reimburse the Executive for all reasonable expenses incurred with the relocation of the Executive, his spouse and
children from Southern Florida to Denver pursuant to the Company's relocation program, a copy of which has been provided to the Executive (the "Relocation
Reimbursement"). In addition, the Company shall pay to the Executive an additional amount (the "Relocation Tax Payment") such that the net amount of the
Relocation Tax Payment retained by the Executive after the payment of any federal, state and local income and employment taxes (calculated assuming that the
Executive is subject to tax at the highest applicable marginal rate) on the Relocation Tax Payment shall be equal to the amount of federal, state and local income
and employment taxes due with respect to the Relocation Reimbursement.
8. Temporary Residence. The Company will reimburse the Executive for reasonable expenses incurred by him with respect to the rental of a furnished
two bedroom apartment located in a Denver area of the Executive's choice with full services for a period of one year following the Effective Time (the
"Temporary Residence Reimbursement"). In addition, the Company shall pay to the Executive an additional amount (the "Temporary Residence Tax Payment")
such that the net amount of the Temporary Residence Tax Payment retained by the Executive after the payment of any federal, state and local income and
employment taxes (calculated assuming that the Executive is subject to tax at the highest applicable marginal rate) on the Temporary Residence Tax Payment
shall be equal to the amount of federal, state and local income and employment taxes due with respect to the Temporary Residence Reimbursement.
9. Vacation. The Executive shall be entitled to vacation, holiday and sick leave at levels no less than commensurate with those provided to the CEO, in
accordance with the Company's vacation, holiday and other pay−for−time−not−worked policies.
10. Retirement and Welfare Benefits. The Executive shall be entitled to participate in the Company's health, life insurance, long and short−term disability,
dental, retirement, and medical programs, if any, pursuant to their respective terms and conditions, on a basis no less than commensurate with those provided to
the CEO. Nothing in this Agreement shall preclude the Company or any affiliate of the Company from terminating or amending any employee benefit plan or
program from time to time after the effective date of this Agreement, provided that any such amendment or termination shall be effective as to the Executive only
if it is equally applicable to every other senior executive officer of the Company.
11. Perquisites. The Executive shall be provided with such other executive perquisites as may be provided to the CEO (including but not limited to the use
of a Company−provided automobile of a type similar to that being provided to the CEO and all operating and insurance costs related thereto, and a discount card
allowing the Executive to purchase items from the Company's retail stores at cost plus 10%).
12. Termination.
(a) Termination by the Company.
(1) For Cause. The Company may terminate the Executive's employment hereunder at any time for Cause (as defined and in
accordance with the procedures outlined below), in which case the Company's sole liability to the Executive shall be for unpaid Base Salary
and benefits (then owed, or accrued and owed in the future, but in all events and without increasing the Executive's rights under any other
provision hereof, excluding any Bonus payments not yet paid) through the date of termination and unreimbursed expenses incurred by the
Executive pursuant to Section 5 above, each of which shall be paid within 10 days following the date of the Executive's termination.
(2) Without Cause. The Company may also terminate the Executive's employment without Cause at any time upon not less than thirty
(30) days' prior written notice to the Executive; provided, however, that in the event that such notice is given, the Executive shall be under
no obligation to render any additional services to the Company and shall be allowed to seek other employment. Upon the Executive's
termination in accordance with the preceding sentence, the Company shall pay to the Executive a single lump sum in cash, within 10 days
following the date of the Executive's termination, unless another date is mutually agreed upon by the parties, equal to the aggregate amount
of (i) unpaid Base Salary, accrued but unpaid Bonus and benefits (then owed, or accrued and owed in the future) through the date of
termination, (ii) 3.2 times the Base Salary in effect immediately prior to such termination if such termination occurs prior to the third
anniversary of the Effective Time and two times such Base Salary if such termination occurs on or following the third anniversary of the
Effective Time, and (iii) all unreimbursed expenses incurred by the Executive pursuant to Section 5. In addition, (x) at the time of such
termination, the Executive shall be fully vested in all outstanding long−term incentive awards (whether based in equity or cash, and
specifically including, but not limited to, stock options and restricted stock) then held by the Executive, (y) if such termination occurs on or
following the third anniversary of the Effective Time then, no later than the date on which annual bonuses are generally paid to the
Company's executives in respect of the year of such termination, the Executive shall receive a payment equal to two times the lesser of
(I) the target Bonus for the year of termination or (II) the Bonus to which the Executive would have been entitled for the year of termination
had the Executive remained employed throughout such year, based on the achievement of the Executive's Bonus objectives for such year;
provided that if any portion of such Bonus is based on subjective determinations, then for purposes of this subclause (II) the amount of the
Bonus shall be determined based on the percentage of the applicable objective performance criteria attained multiplied by the entire target
Bonus, and (z) all health, life insurance, long−term disability, dental, and medical programs specified in Section 10, and all perquisites
described in Section 11, shall continue for two years commencing on the Executive's date of termination (the "Severance Term"); provided,
however, that the Company shall in no event be required to provide any coverage after such time as the Executive becomes entitled to
receive benefits of the same type from another employer or recipient of the Executive's services (and provided, further, that such
entitlement shall be determined without regard to any individual waivers or other similar arrangements). At the conclusion of the Severance
Term, the Executive shall be entitled to receive all accrued benefits then owed and any benefits pursuant to the Company's plans or
programs which are accrued and owed in the future. Notwithstanding the foregoing, if a termination described in this
Section 12(a)(2) occurs (A) within the 18−month period commencing on the date of a Change of Control (as defined below), or (B) prior to
a Change of Control and such termination was at the request of a third party who had memorialized an intention or taken steps reasonably
calculated to effect a Change of Control or was otherwise in anticipation of a Change of Control, the Executive shall receive in all cases the
payments and benefits described in this Section 12(a)(2) as if such termination had occurred prior to the third anniversary of the Effective
Time, plus the Executive shall receive clear title, free of any liens, to the car provided to the Executive pursuant to Section 11 herein.
(3) "Cause" Defined. As used in this Agreement, termination for "Cause" shall mean a termination based upon:
(i) a material violation of any material written rule or policy of the Company (A) for which violation any employee may
be terminated pursuant to the written policies of the Company reasonably applicable to an executive employee, and (B) which
the Executive fails to correct within 30 days after the Executive receives written notice from the Board of such violation;
(ii) misconduct by the Executive to the material and demonstrable detriment of the Company;
(iii) the Executive's conviction (by a court of competent jurisdiction, not subject to further appeal) of, or pleading guilty to,
a felony;
(iv) the Executive's continued and ongoing gross negligence in the performance of his duties and responsibilities to the
Company as described in this Agreement; or
(v) the Executive's material failure to perform his duties and responsibilities to the Company as described in this
Agreement (other than any such failure resulting from the Executive's incapacity due to physical or mental illness or any such
failure subsequent to the Executive being delivered a notice of termination without Cause by the Company or delivering a notice
of termination for Good Reason to the Company), in either case after written notice from the Board to the Executive of the
specific nature of such material failure and the Executive's failure to cure such material failure within thirty (30) days following
receipt of such notice.
Cause shall not exist unless and until the Company has delivered to the Executive, along with the notice of Termination for Cause, a copy of a resolution
duly adopted by two−thirds ( 2/3) of the entire Board (excluding the Executive if the Executive is a Board member) at a meeting of the Board called and held for
such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with counsel, to be heard before the Board), finding that in
the good faith opinion of the Board an event set forth in clauses (i), (ii), (iv) or (v) above has occurred and specifying the particulars thereof in detail. The Board
must notify the Executive of any event constituting Cause within ninety (90) days following the Board's knowledge of its existence or such event shall not
constitute Cause under this Agreement.
(b) Termination by the Executive.
(1) The Executive may resign from his employment hereunder in the event of "Good Reason" after thirty (30) days' written notice
from the Executive to the Board describing in detail the "Good Reason," if not cured within such 30−day period; provided, however, that
such notice shall be given no later than ninety (90) days after the time that the Executive has actual knowledge of the event or condition
purportedly giving rise to Good Reason. In the event of any such resignation, the Company's obligations to the Executive shall be the same
as set forth in Section 12(a)(2) above, and if (A) such resignation occurs within the 18−month period commencing on the date of a Change
of Control or (B) prior to a Change of Control the event constituting Good Reason for such termination was at the request of a third party
who had memorialized an intention or taken steps reasonably calculated to effect a Change of Control or was otherwise in anticipation of a
Change of Control, then the last sentence of Section 12(a)(2) shall apply.
(2) The Executive may resign his employment hereunder other than for Good Reason at any time by giving no less than thirty
(30) days' written notice to the Board. In the event of any such resignation, the Company's sole obligation to the Executive shall be for
unpaid Base Salary and benefits (then owed or accrued and owed in the future, but in all events and without increasing the Executive's
rights under any other provision hereof, excluding any Bonus payments not yet paid) and reimbursement of expenses pursuant to Section 5
above through the effective date of the Executive's resignation specified in the Executive's notice.
(3) For the purposes of this Agreement, "Good Reason" means resignation by the Executive based upon the occurrence without the
Executive's express written consent of any of the following:
(i) a significant diminution by the Company of the Executive's role with the Company or a significant detrimental change
in the nature and/or scope of the Executive's status with the Company (including a diminution in title);
(ii) a reduction in Base Salary or target or maximum Bonus, other than as part of an across the board reduction in salaries
of management personnel (including all vice presidents and positions above) of less than 20%;
(iii) at any time following a Change of Control (as defined below), a material diminution by the Company of compensation
and benefits (taken as a whole) provided to the Executive immediately prior to a Change of Control;
(iv) the relocation of the Executive's principal executive office to a location more than 30 miles further from the
Executive's principal residence than the Executive's principal executive office immediately prior to such relocation, or any
requirement that the Executive be based anywhere other than the Executive's principal executive office; provided that the
relocation of the Executive from Southern Florida to Denver, Colorado at or shortly following the Effective Time shall be
excluded from this clause (iv);
(v) any failure by the Company to comply with and satisfy clause (ii) of the first sentence of Section 21; or
(vi) any other material breach by the Company of any of the terms and conditions of this Agreement.
Notwithstanding the above, a resignation by the Executive for any reason during the 30−day period commencing six months after a Change of Control, upon
giving at least thirty (30) days' advance written notice to the Board, shall be considered to be a resignation for Good Reason.
(c) Termination by Death or Disability. In the event of the Executive's death or "permanent disability" (as defined below) during the Term, the
Executive's employment shall terminate on the date of death or date of permanent disability. In the event of such termination, the Company's sole
obligations hereunder to the Executive (or the Executive's estate) shall be for unpaid Base Salary, accrued but unpaid Bonus and benefits (then owed
or accrued and owed in the future), a pro−rata Bonus for the year of termination based on the Executive's target Bonus for such year and the portion of
such year in which the Executive was employed, and reimbursement of expenses pursuant to Section 5 through the effective date of termination, each
of which shall be paid within 10 days following the date of the Executive's termination. For purposes of this Section 12(c), the Executive shall be
considered to have suffered a "permanent disability" if he has become eligible to receive benefits under the long−term disability plan of the Company.
13. Change of Control.
(a) A "Change of Control" shall be deemed to have occurred if, after the Effective Time, (i) the beneficial ownership (as defined in Rule 13d−3
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of securities representing more than 30% of the combined voting
power of the Company is acquired by any "person" as defined in sections 13(d) and 14(d) of the Exchange Act (other than the Company, any
subsidiary of the Company, or any trustee or other fiduciary holding securities under an employee benefit plan of the Company), (ii) the merger or
consolidation of the Company with or into another corporation where the shareholders of the Company, immediately prior to the consolidation or
merger, would not, immediately after the consolidation or merger, beneficially own (as such term is defined in Rule 13d−3 under the Exchange Act),
directly or indirectly, shares representing in the aggregate 50% or more of the combined voting power of the securities of the corporation issuing cash
or securities in the consolidation or merger (or of its ultimate parent corporation, if any) in substantially the same proportion as their ownership of the
Company immediately prior to such merger or consolidation, (iii) the sale or other disposition of all or substantially all of the Company's assets to an
entity, other than a sale or disposition by the Company of all or substantially all of the Company's assets to an entity, at least 50% of the combined
voting power of the voting securities of which are owned directly or indirectly by shareholders of the Company, immediately prior to the sale or
disposition, in substantially the same proportion as their ownership of the Company immediately prior to such sale or disposition, or (iv) during any
period of two consecutive years, individuals who at the beginning of such period were members of the Board ("Incumbent Directors") cease for any
reason (other than death) to constitute at least a majority thereof; provided that each new director whose election, or nomination for election by the
Company's shareholders, was approved by a vote of at least a majority of the directors then still in office who were directors at the beginning of such
period shall be deemed an Incumbent Director unless such approval was made directly or indirectly in connection with an actual or threatened election
contest with respect to directors or as a result of any other actual or threatened solicitation of proxies or consents by or on behalf of any person other
than the Board.
(b) Anything in this Agreement to the contrary notwithstanding, if it is determined that any payment or benefit provided to the Executive under
this Agreement or otherwise, whether or not in connection with a Change of Control (a "Payment"), would constitute an "excess parachute payment"
within the meaning of section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), such that the Payment would be subject to an
excise tax under section 4999 of the Code (the "Excise Tax"), the Company shall pay to the Executive an additional amount (the "Gross−Up
Payment") such that the net amount of the Gross−Up Payment retained by the Executive after the payment of any Excise Tax and any federal, state
and local income and employment tax on the Gross−Up Payment, shall be equal to the Excise Tax due on the Payment and any interest and penalties
in respect of such Excise Tax. For purposes of determining the amount of the Gross−Up Payment, Executive shall be deemed to pay federal income
tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross−Up
Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence (or, if
greater, the state and locality in which Executive is required to file a nonresident income tax return with respect to the Payment) in the calendar year in
which the Gross−Up Payment is to be made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such
state and local taxes.
(c) All determinations made pursuant to the foregoing paragraph shall be made by the Company's independent public accounting firm
immediately prior to the transaction resulting in the application of section 4999 of the Code or, if such firm continues to be retained by the Company
or its successor to provide any services whatsoever subsequent to such transaction, an independent public accounting firm selected by the Executive in
the Executive's sole discretion (the "Accounting Firm"), which firm shall provide its determination and any supporting calculations (the
"Determination") both to the Company and to the Executive within ten days of the date of the Executive's termination or any other date selected by the
Executive or the Company. Within ten calendar days of the delivery of the Determination to the Executive, the Executive shall have the right to
dispute the Determination (the "Dispute"). The existence of any Dispute shall not in any way affect the Executive's right to receive the Gross−Up
Payments in accordance with the Determination. If there is no dispute, the Determination by the Accounting Firm shall be final, binding and
conclusive upon the Company and the Executive, subject to the application of Section 13(d). All of the fees and expenses of the Accounting Firm in
performing the determinations referred to above shall be borne solely by the Company. Within five days after the Accounting Firm's determination,
the Company shall pay to the Executive the Gross−Up Payment, if any. If the Accounting Firm determines that no Excise Tax is payable by the
Executive, it will, at the same time as it makes such determination, furnish Executive with an opinion that the Executive has substantial authority not
to report any Excise Tax on his federal, state, local income or other tax return. The Company agrees to indemnify and hold harmless the Accounting
Firm of and from any and all claims, damages and expenses resulting from or relating to its determinations pursuant to this Section 13(c), except for
claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm.
(d) As a result of the uncertainty in the application of sections 4999 and 280G of the Code, it is possible that the Gross−Up Payments either will
have been made which should not have been made, or will not have been made which should have been made, by the Company (an "Excess Gross−Up
Payment" or a "Gross−Up Underpayment," respectively). If it is established pursuant to (A) a final determination of a court for which all appeals have
been taken and finally resolved or the time for all appeals has expired, or (B) an Internal Revenue Service (the "IRS") proceeding which has been
finally and conclusively resolved, that an Excess Gross−Up Payment has been made, such Gross−Up Excess Payment shall be deemed for all purposes
to be a loan to the Executive made on the date the Executive received the Excess Gross−Up Payment and the Executive shall repay the Excess
Gross−Up Payment to the Company either (i) on demand, if the Executive is in possession of the Excess Gross−Up Payment or (ii) upon the refund of
such Excess Gross−Up Payment to the Executive from the IRS, if the IRS is in possession of such Excess Gross−Up Payment, together with interest
on the Excess Gross−Up Payment at (X) 120% of the applicable federal rate (as defined in Section 1274(d) of the Code) compounded semi−annually
for any period during which the Executive held such Excess Gross−Up Payment and (Y) the interest rate paid to the Executive by the IRS in respect of
any period during which the IRS held such Excess Gross−Up Payment. If it is determined (I) by the Accounting Firm, the Company (which shall
include the position taken by the Company, together with its consolidated group, on its federal income tax return) or the IRS, (II) pursuant to a
determination by a court, or (III) upon the resolution to the Executive's satisfaction of the Dispute, that a Gross−Up Underpayment has occurred, the
Company shall pay an amount equal to the Gross−Up Underpayment to the Executive within ten calendar days of such determination or resolution,
together with interest on such amount at 120% of the applicable federal rate compounded semi−annually from the date such amount should have been
paid to the Executive pursuant to the terms of this Agreement or otherwise, but for the operation of this Section 13(d), until the date of payment.
14. Post−Termination Assistance. Upon the Executive's termination of employment with the Company, the Executive agrees to fully cooperate in all
matters relating to the winding up or pending work on behalf of the Company and the orderly transfer of work to other employees of the Company following any
termination of the Executives' employment. The Executive further agrees that he will provide, upon reasonable notice, such information and assistance to the
Company as may reasonably be requested by the Company in connection with any audit, governmental investigation, litigation, or other dispute in which the
Company is or may become a party and as to which the Executive has knowledge; provided, however, that (i) the Company agrees to reimburse the Executive for
any related out−of−pocket expenses, including travel expenses, and to pay the Executive reasonable compensation for his time based on his rate of Base Salary at
the time of termination, and (ii) any such assistance may not unreasonably interfere with Executive's then current employment.
15. Restrictive Covenants. In consideration of the obligations of the Company hereunder, the Executive agrees that he shall not, (i) during the Term and the
Severance Term, if severance is being paid, or if no severance is being paid, for a period of one year after a termination of the Executive's employment with the
Company for any reason, (A) directly or indirectly become an employee, director, consultant or advisor of, or otherwise affiliated with, any retailer of sporting
goods, athletic footwear or athletic apparel which sells in the United States through any retail channel, including without limitation, stores, catalogs, direct mail,
the Internet, and commercial and/or institutional sales (unless (1) the sporting goods, athletic footwear and athletic apparel sold by such retailer constitute less
than 50% of the total sales by such retailer and its licensees in the United States during the fiscal year of the Company immediately preceding the year of such
termination, (2) such retailer had sales totaling less than $300,000,000 during the fiscal year of the Company immediately preceding the year of such termination
and had less than twenty (20) retail outlets in the United States at the end of such fiscal year, or (3) the classes of products sold by such retailer constitute less
than 10% of the total sales by the Company and its licensees in the United States during the fiscal year of the Company immediately preceding the year of such
termination), or (B) directly or indirectly solicit or hire or encourage the solicitation or hiring of any person who was an employee of the Company at any time on
or after the date of such termination (unless more than six months shall have elapsed between the last day of such person's employment by the Company and the
first date of such solicitation or hiring); (ii) during or after the Term, make statements or representations, or otherwise communicate, directly or indirectly, in
writing, orally, or otherwise, or take any other action which disparages the Company or its officers, directors, businesses or reputations; or (iii) during or after the
Term, without the written consent of the CEO, disclose to any person other than as required by law or court order, any confidential information obtained by the
Executive while in the employ of the Company, provided, however, that confidential information shall not include any information known generally to the public
(other than as a result of unauthorized disclosure by the Executive) or any specific information or type of information generally not considered confidential by
persons engaged in the same business as the Company, or information disclosed by the Company by any member of the Board or any other officer thereof to a
third party without restrictions on the disclosure of such information. For the purpose of Sections 14 and 15 only, the term "Company" shall mean the Company
and its subsidiaries. Notwithstanding the above, nothing in this Agreement shall preclude the Executive from making truthful statements or disclosures that are
required by applicable law, regulation or legal process.
16. Enforcement. The Executive hereby expressly acknowledges that the restrictions contained in Section 15 are reasonable and necessary to protect the
Company's legitimate interests, that the Company would not have entered into this Agreement in the absence of such restrictions, and that any violation of such
restrictions will result in irreparable harm to the Company. The Executive agrees that the Company shall be entitled to preliminary and permanent injunctive
relief, without the necessity of proving actual damages, as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of
the restrictions contained in Section 15, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled.
The Executive irrevocably and unconditionally (i) agrees that any legal proceeding arising out of this paragraph may be brought in the United States District
Court for the District of Colorado, or if such court does not have jurisdiction or will not accept jurisdiction, in any court of general jurisdiction in Denver County,
Colorado, (ii) consents to the non−exclusive jurisdiction of such court in any such proceeding, and (iii) waives any objection to the laying of venue of any such
proceeding in any such court. The Executive also irrevocably and unconditionally consents to the service of any process, pleadings, notices or other papers in
connection with any such proceeding.
17. Survival. The provisions of Sections 13, 14, 15, 16, 25 and 26 shall survive the termination of this Agreement.
18. No Mitigation or Set−Off. In no event shall the Executive be obligated to seek other employment or take any other action by way of mitigation of the
amounts payable to the Executive under any of the provisions of this Agreement and such amounts shall not be reduced, regardless of whether the Executive
obtains other employment. The Company's obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder
shall not be affected by any circumstances, including, without limitation, any set−off, counterclaim, recoupment, defense or other right which the Company may
have against the Executive or others; provided, however, the Company shall have the right to offset the amount of any funds loaned or advanced to the Executive
and not repaid against any severance obligations the Company may have to the Executive hereunder.
19. Return of Documents. Upon termination of his employment, the Executive agrees to return all documents belonging to the Company in his possession
including, but not limited to, contracts, agreements, licenses, business plans, equipment, software, software programs, products, work−in−progress, source code,
object code, computer disks, books, notes and all copies thereof, whether in written, electronic or other form; provided that the Executive may retain copies of his
rolodex. In addition, the Executive shall certify to the Company in writing as of the effective date of termination that none of the assets or business records
belonging to the Company are in his possession, remain under his control, or have been transferred to any third person.
20. Effect of Waiver. The waiver by either party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach hereof. No waiver shall be valid unless in writing.
21. Assignment. This Agreement may not be assigned by either party without the express prior written consent of the other party hereto, except that the
Company (i) may assign this Agreement to any subsidiary or affiliate of the Company, provided that no such assignment shall relieve the Company of its
obligations hereunder without the written consent of the Executive, and (ii) will require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in
the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. As used in this Agreement,
"Company" shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform
this Agreement by operation of law, or otherwise.
22. Entire Agreement; Effectiveness of Agreement. This Agreement sets forth the entire agreement of the parties hereto and shall supersede any and all
prior agreements and understandings concerning the Executive's employment by the Company, including, without limitation, a severance agreement, between
TSA and the Executive, dated January 31, 2002. This Agreement may be changed only by a written document signed by the Executive and the Company.
Notwithstanding the foregoing, this Agreement shall not supercede or replace any agreement entered into between the Company and the Executive with respect
to any plan or benefit described in Section 10 or 11 herein.
23. Severability. If any one or more of the provisions, or portions of any provision, of the Agreement shall be held to be invalid, illegal or unenforceable,
the validity, legality or enforceability of the remaining provisions or parts hereof shall not in any way be affected or impaired thereby.
24. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE SUBSTANTIVE AND PROCEDURAL LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO RULES GOVERNING
CONFLICTS OF LAW.
25. Arbitration. Other than as set forth in Section 16, any controversy, claim or dispute arising out of or relating to this Agreement or the Executive's
employment by the Company, including, but not limited to, common law and statutory claims for discrimination, wrongful discharge, and unpaid wages, shall be
resolved by arbitration in Denver, Colorado pursuant to then prevailing National Rules for the Resolution of Employment Disputes of the American Arbitration
Association. It is the intent of the Company that, following a Change of Control, the Executive shall not be required to incur any expenses associated with the
enforcement of his rights under this Agreement by arbitration, litigation or other legal action because the cost and expense thereof would substantially detract
from the benefits intended to be extended to the Executive hereunder. Accordingly, the Company shall pay the Executive on demand the amount necessary to
reimburse the Executive in full for all expenses (including all attorneys' fees and legal expenses) incurred by the Executive in enforcing any of the obligations of
the Company under this Agreement, or in defending any action by the Company against the Executive in respect of such obligations or the obligations of the
Executive under this Agreement, if such action is commenced on or following a Change of Control. The Company shall pay such expenses to the Executive upon
demand in connection with any action described in the preceding sentence which is commenced prior to a Change of Control if the Executive substantially
prevails on at least one material issue in dispute.
26. Indemnification. During the Term, the Executive shall be entitled to indemnification and insurance coverage for directors and officers liability,
fiduciary liability and other liabilities arising out of the Executive's position with the Company in any capacity, in an amount not less than the highest amount
available to any other senior level executive or member of the Board and to the full extent provided by the Company's certificate of incorporation or by−laws,
and such coverage and protections, with respect to the various liabilities as to which the Executive has been customarily indemnified prior to termination of
employment, shall continue for at least six years following the end of the Term. Any indemnification agreement entered into between the Company and the
Executive shall continue in full force and effect in accordance with its terms following the termination of this Agreement.
27. Notices. All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, or by facsimile or nationally recognized overnight courier service, addressed as follows:
If to Executive:
At the address set forth on the signature page.
If to the Company:
The Sports Authority, Inc.
1050 West Hampden Avenue
Englewood, Colorado 80110
Attn: General Counsel
Telecopy: 303−864−2188
or to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
28. Withholding. The Company may withhold from amounts payable under this Agreement any and all federal, state, and local taxes that are required to be
withheld by any applicable laws and regulations. The Company may also withhold any amounts necessary pursuant to the benefit plans, policies, or arrangements
of the Company or otherwise, in accordance with any applicable Company policies, laws and/or regulations.
*****
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written.
THE SPORTS AUTHORITY, INC.
By:
Name:
Its:
Elliott Kerbis
Address and contact information for Elliott Kerbis as of the date hereof
(not to be included with any public filings):
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EMPLOYMENT AGREEMENT
John Douglas Morton
Chief Executive Officer
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Exhibit 10.17
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into by and between The Sports Authority, Inc., a Delaware corporation previously
known as Gart Sports Company (the "Company"), and Greg Waters (the "Executive") and shall be effective as of the "Effective Time," as defined in the written
Agreement and Plan of Merger, dated as of February 19, 2003, by and among the Company, Gold Acquisition Corp., a Delaware corporation and wholly owned
subsidiary of the Company, and The Sports Authority, Inc. ("TSA") (the "Merger Agreement").
WHEREAS, the Company desires to employ the Executive as its Executive Vice President and Chief Operating Officer and the Executive desires to serve in
such capacity on behalf of the Company.
NOW, THEREFORE, in consideration of the promises and of the mutual covenants and agreements hereinafter set forth, the Company and the Executive
hereby agree as follows:
1.
Employment.
(a) Term. The term of this Agreement (the "Term") shall begin as of the Effective Time and shall end at the time of the termination of the
Executive's employment in accordance with Section 9 herein.
(b) Duties. The Executive shall serve as the Executive Vice President and Chief Operating Officer of the Company and shall report directly to
the Chief Executive Officer of the Company (the "CEO"). The Executive shall have such duties and responsibilities as are consistent with his position
as Executive Vice President and Chief Operating Officer of the Company. In addition, the Executive shall perform all other duties and accept all other
responsibilities incident to such position as may be reasonably assigned to him by the CEO.
(c) Best Efforts. During the period of his employment, the Executive shall devote his best efforts and full−time and attention to promote the
business and affairs of the Company and its affiliated companies, and shall be engaged in other business activities only to the extent that such activities
are not competitive with the Company and do not interfere or conflict with his obligations to the Company hereunder, including, without limitation,
the obligations pursuant to Section 12 below. Notwithstanding the foregoing, the Executive may (A) serve on corporate, civic, educational,
philanthropic or charitable boards or committees, (B) deliver lectures, fulfill speaking engagements or teach at educational institutions and (C) manage
personal investments, so long as such activities do not significantly interfere with the performance of the Executive's responsibilities hereunder. The
foregoing shall also not be construed as preventing the Executive from investing his assets in such form or manner as will not require any significant
services on his part in the operation of the affairs of the businesses or entities in which such investments are made; provided, however, that the
Executive shall not invest in any business competitive with the Company, except that the Executive shall be permitted to own not more than 5% of the
stock of those companies whose securities are listed on a national securities exchange or on the NASDAQ system.
2. Compensation. As compensation for the services to be rendered hereunder, the Company shall pay to the Executive an annual base salary of $500,000
(the "Base Salary"). The Base Salary may be subject to annual increases (but not decreases), as determined in the sole discretion of the Compensation Committee
(the "Compensation Committee") of the Board of Directors of the Company (the "Board"). The Base Salary shall be paid in accordance with the Company's
existing payroll policies.
3. Bonus. The Executive shall be eligible for an annual target bonus payment in an amount equal to 60% of his Base Salary (the "Bonus"). The Bonus
shall be determined based on the achievement of certain performance objectives of the Company as established by the Compensation Committee and
communicated to the Executive in writing as soon as practicable after commencement of the year in respect of which the Bonus is paid. The Bonus may be
greater or less than the target Bonus, based on the level of achievement of the applicable performance objectives.
4. Equity Award. The Executive shall be eligible to receive stock options and other equity−based compensation awards under the Company's 2003 Long
Term Incentive Compensation Plan and otherwise.
5. Expenses. The Company shall reimburse the Executive for all necessary and reasonable travel, entertainment and other business expenses incurred by
him in the performance of his duties hereunder in accordance with such reasonable procedures as the Company may adopt generally from time to time. The
Company shall also reimburse the Executive for reasonable legal fees incurred in connection with the review of the terms of this Agreement.
6. Vacation. The Executive shall be entitled to vacation, holiday and sick leave at levels no less than commensurate with those provided to any other
executive vice president of the Company, in accordance with the Company's vacation, holiday and other pay−for−time−not−worked policies.
7. Retirement and Welfare Benefits. The Executive shall be entitled to participate in the Company's health, life insurance, long and short−term disability,
dental, retirement, and medical programs, if any, pursuant to their respective terms and conditions, on a basis no less than commensurate with those provided to
any other executive vice president of the Company. Nothing in this Agreement shall preclude the Company or any affiliate of the Company from terminating or
amending any employee benefit plan or program from time to time after the effective date of this Agreement, provided that any such amendment or termination
shall be effective as to the Executive only if it is equally applicable to every other senior executive officer of the Company.
8. Perquisites. The Executive shall be provided with such other executive perquisites as may be provided to other executive vice presidents of the
Company (including but not limited to the use of a Company−provided automobile of a type similar to that being provided to other executive vice presidents of
the Company and all operating and insurance costs related thereto, and a discount card allowing the Executive to purchase items from the Company's retail stores
at cost plus 10%).
9.
Termination.
(a) Termination by the Company.
(1) For Cause. The Company may terminate the Executive's employment hereunder at any time for Cause (as defined and in
accordance with the procedures outlined below), in which case the Company's sole liability to the Executive shall be for unpaid Base Salary
and benefits (then owed, or accrued and owed in the future, but in all events and without increasing the Executive's rights under any other
provision hereof, excluding any Bonus payments not yet paid) through the date of termination and unreimbursed expenses incurred by the
Executive pursuant to Section 5 above, each of which shall be paid within 10 days following the date of the Executive's termination.
(2) Without Cause. The Company may also terminate the Executive's employment without Cause at any time upon not less than thirty
(30) days' prior written notice to the Executive; provided, however, that in the event that such notice is given, the Executive shall be under
no obligation to render any additional services to the Company and shall be allowed to seek other employment. Upon the Executive's
termination in accordance with the preceding sentence, the Company shall pay to the Executive a single lump sum in cash, within 10 days
following the date of the Executive's termination, unless another date is mutually agreed upon by the parties, equal to the aggregate amount
of (i) unpaid Base Salary, accrued but unpaid Bonus and benefits (then owed, or accrued and owed in the future) through the date of
termination, (ii) 2.4 times the Base Salary in effect immediately prior to such termination if such termination occurs prior to the third
anniversary of the Effective Time and 1.5 times such Base Salary if such termination occurs on or following the third anniversary of the
Effective Time, and (iii) all unreimbursed expenses incurred by the Executive pursuant to Section 5. In addition, (x) at the time of such
termination, the Executive shall be fully vested in all outstanding long−term incentive awards (whether based in equity or cash, and
specifically including, but not limited to, stock options and restricted stock) then held by the Executive, (y) if such termination occurs on or
following the third anniversary of the Effective Time then, no later than the date on which annual bonuses are generally paid to the
Company's executives in respect of the year of such termination, the Executive shall receive a payment equal to 1.5 times the lesser of
(I) the target Bonus for the year of termination or (II) the Bonus to which the Executive would have been entitled for the year of termination
had the Executive remained employed throughout such year, based on the achievement of the Executive's Bonus objectives for such year;
provided that if any portion of such Bonus is based on subjective determinations, then for purposes of this subclause (II) the amount of the
Bonus shall be determined based on the percentage of the applicable objective performance criteria attained multiplied by the entire target
Bonus, and (z) all health, life insurance, long−term disability, dental, and medical programs specified in Section 7, and all perquisites
described in Section 8, shall continue for 18 months following such termination (the "Severance Term"); provided, however, that the
Company shall in no event be required to provide any coverage after such time as the Executive becomes entitled to receive benefits of the
same type from another employer or recipient of the Executive's services (and provided, further, that such entitlement shall be determined
without regard to any individual waivers or other similar arrangements). At the conclusion of the Severance Term, the Executive shall be
entitled to receive all accrued benefits then owed and any benefits pursuant to the Company's plans or programs which are accrued and
owed in the future. Notwithstanding the foregoing, if a termination described in this Section 9(a)(2) occurs (A) within the 18−month period
commencing on the date of a Change of Control (as defined below), or (B) prior to a Change of Control and such termination was at the
request of a third party who had memorialized an intention or taken steps reasonably calculated to effect a Change of Control or was
otherwise in anticipation of a Change of Control, the Executive shall receive in all cases the payments and benefits described in this
Section 9(a)(2) as if such termination had occurred prior to the third anniversary of the Effective Time, plus the Executive shall receive
clear title, free of any liens, to the car provided to the Executive pursuant to Section 8 herein.
(3) "Cause" Defined. As used in this Agreement, termination for "Cause" shall mean a termination based upon:
(i) a material violation of any material written rule or policy of the Company (A) for which violation any employee may
be terminated pursuant to the written policies of the Company reasonably applicable to an executive employee, and (B) which
the Executive fails to correct within 30 days after the Executive receives written notice from the Board of such violation;
(ii) misconduct by the Executive to the material and demonstrable detriment of the Company;
(iii) the Executive's conviction (by a court of competent jurisdiction, not subject to further appeal) of, or pleading guilty to,
a felony;
(iv) the Executive's continued and ongoing gross negligence in the performance of his duties and responsibilities to the
Company as described in this Agreement; or
(v) the Executive's material failure to perform his duties and responsibilities to the Company as described in this
Agreement (other than any such failure resulting from the Executive's incapacity due to physical or mental illness or any such
failure subsequent to the Executive being delivered a notice of termination without Cause by the Company or delivering a notice
of termination for Good Reason to the Company), in either case after written notice from the Board to the Executive of the
specific nature of such material failure and the Executive's failure to cure such material failure within thirty (30) days following
receipt of such notice.
Cause shall not exist unless and until the Company has delivered to the Executive, along with the notice of Termination for Cause, a copy of a resolution
duly adopted by two−thirds ( 2/3) of the entire Board (excluding the Executive if the Executive is a Board member) at a meeting of the Board called and held for
such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with counsel, to be heard before the Board), finding that in
the good faith opinion of the Board an event set forth in clauses (i), (ii), (iv) or (v) above has occurred and specifying the particulars thereof in detail. The Board
must notify the Executive of any event constituting Cause within ninety (90) days following the Board's knowledge of its existence or such event shall not
constitute Cause under this Agreement.
(b) Termination by the Executive.
(1) The Executive may resign from his employment hereunder in the event of "Good Reason" after thirty (30) days' written notice
from the Executive to the Board describing in detail the "Good Reason," if not cured within such 30−day period; provided, however, that
such notice shall be given no later than ninety (90) days after the time that the Executive has actual knowledge of the event or condition
purportedly giving rise to Good Reason. In the event of any such resignation, the Company's obligations to the Executive shall be the same
as set forth in Section 9(a)(2) above, and if (A) such resignation occurs within the 18−month period commencing on the date of a Change of
Control or (B) prior to a Change of Control the event constituting Good Reason for such termination was at the request of a third party who
had memorialized an intention or taken steps reasonably calculated to effect a Change of Control or was otherwise in anticipation of a
Change of Control, then the last sentence of Section 9(a)(2) shall apply.
(2) The Executive may resign his employment hereunder other than for Good Reason at any time by giving no less than thirty
(30) days' written notice to the Board. In the event of any such resignation, the Company's sole obligation to the Executive shall be for
unpaid Base Salary and benefits (then owed or accrued and owed in the future, but in all events and without increasing the Executive's
rights under any other provision hereof, excluding any Bonus payments not yet paid) and reimbursement of expenses pursuant to Section 5
above through the effective date of the Executive's resignation specified in the Executive's notice.
(3) For the purposes of this Agreement, "Good Reason" means resignation by the Executive based upon the occurrence without the
Executive's express written consent of any of the following:
(i) a significant diminution by the Company of the Executive's role with the Company or a significant detrimental change
in the nature and/or scope of the Executive's status with the Company (including a diminution in title);
(ii) a reduction in Base Salary or target or maximum Bonus, other than as part of an across the board reduction in salaries
of management personnel (including all vice presidents and positions above) of less than 20%;
(iii) at any time following a Change of Control (as defined below), a material diminution by the Company of compensation
and benefits (taken as a whole) provided to the Executive immediately prior to a Change of Control;
(iv) the relocation of the Executive's principal executive office to a location more than 30 miles further from the
Executive's principal residence than the Executive's principal executive office immediately prior to such relocation, or any
requirement that the Executive be based anywhere other than the Executive's principal executive office;
(v) any failure by the Company to comply with and satisfy clause (ii) of the first sentence of Section 18; or
(vi) any other material breach by the Company of any of the terms and conditions of this Agreement.
Notwithstanding the above, a resignation by the Executive for any reason during the 30−day period commencing six months after a Change of Control, upon
giving at least thirty (30) days' advance written notice to the Board, shall be considered to be a resignation for Good Reason.
(c) Termination by Death or Disability. In the event of the Executive's death or "permanent disability" (as defined below) during the Term, the
Executive's employment shall terminate on the date of death or date of permanent disability. In the event of such termination, the Company's sole
obligations hereunder to the Executive (or the Executive's estate) shall be for unpaid Base Salary, accrued but unpaid Bonus and benefits (then owed
or accrued and owed in the future), a pro−rata Bonus for the year of termination based on the Executive's target Bonus for such year and the portion of
such year in which the Executive was employed, and reimbursement of expenses pursuant to Section 5 through the effective date of termination, each
of which shall be paid within 10 days following the date of the Executive's termination. For purposes of this Section 9(c), the Executive shall be
considered to have suffered a "permanent disability" if he has become eligible to receive benefits under the long−term disability plan of the Company.
10. Change of Control.
(a) A "Change of Control" shall be deemed to have occurred if, after the Effective Time, (i) the beneficial ownership (as defined in Rule 13d−3
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of securities representing more than 30% of the combined voting
power of the Company is acquired by any "person" as defined in sections 13(d) and 14(d) of the Exchange Act (other than the Company, any
subsidiary of the Company, or any trustee or other fiduciary holding securities under an employee benefit plan of the Company), (ii) the merger or
consolidation of the Company with or into another corporation where the shareholders of the Company, immediately prior to the consolidation or
merger, would not, immediately after the consolidation or merger, beneficially own (as such term is defined in Rule 13d−3 under the Exchange Act),
directly or indirectly, shares representing in the aggregate 50% or more of the combined voting power of the securities of the corporation issuing cash
or securities in the consolidation or merger (or of its ultimate parent corporation, if any) in substantially the same proportion as their ownership of the
Company immediately prior to such merger or consolidation, (iii) the sale or other disposition of all or substantially all of the Company's assets to an
entity, other than a sale or disposition by the Company of all or substantially all of the Company's assets to an entity, at least 50% of the combined
voting power of the voting securities of which are owned directly or indirectly by shareholders of the Company, immediately prior to the sale or
disposition, in substantially the same proportion as their ownership of the Company immediately prior to such sale or disposition, or (iv) during any
period of two consecutive years, individuals who at the beginning of such period were members of the Board ("Incumbent Directors") cease for any
reason (other than death) to constitute at least a majority thereof; provided that each new director whose election, or nomination for election by the
Company's shareholders, was approved by a vote of at least a majority of the directors then still in office who were directors at the beginning of such
period shall be deemed an Incumbent Director unless such approval was made directly or indirectly in connection with an actual or threatened election
contest with respect to directors or as a result of any other actual or threatened solicitation of proxies or consents by or on behalf of any person other
than the Board.
(b) Anything in this Agreement to the contrary notwithstanding, if it is determined that any payment or benefit provided to the Executive under
this Agreement or otherwise, whether or not in connection with a Change of Control (a "Payment"), would constitute an "excess parachute payment"
within the meaning of section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), such that the Payment would be subject to an
excise tax under section 4999 of the Code (the "Excise Tax"), the Company shall pay to the Executive an additional amount (the "Gross−Up
Payment") such that the net amount of the Gross−Up Payment retained by the Executive after the payment of any Excise Tax and any federal, state
and local income and employment tax on the Gross−Up Payment, shall be equal to the Excise Tax due on the Payment and any interest and penalties
in respect of such Excise Tax. For purposes of determining the amount of the Gross−Up Payment, Executive shall be deemed to pay federal income
tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross−Up
Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence (or, if
greater, the state and locality in which Executive is required to file a nonresident income tax return with respect to the Payment) in the calendar year in
which the Gross−Up Payment is to be made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such
state and local taxes.
(c) All determinations made pursuant to the foregoing paragraph shall be made by the Company's independent public accounting firm
immediately prior to the transaction resulting in the application of section 4999 of the Code or, if such firm continues to be retained by the Company
or its successor to provide any services whatsoever subsequent to such transaction, an independent public accounting firm selected by the Executive in
the Executive's sole discretion (the "Accounting Firm"), which firm shall provide its determination and any supporting calculations (the
"Determination") both to the Company and to the Executive within ten days of the date of the Executive's termination or any other date selected by the
Executive or the Company. Within ten calendar days of the delivery of the Determination to the Executive, the Executive shall have the right to
dispute the Determination (the "Dispute"). The existence of any Dispute shall not in any way affect the Executive's right to receive the Gross−Up
Payments in accordance with the Determination. If there is no dispute, the Determination by the Accounting Firm shall be final, binding and
conclusive upon the Company and the Executive, subject to the application of Section 10(d). All of the fees and expenses of the Accounting Firm in
performing the determinations referred to above shall be borne solely by the Company. Within five days after the Accounting Firm's determination,
the Company shall pay to the Executive the Gross−Up Payment, if any. If the Accounting Firm determines that no Excise Tax is payable by the
Executive, it will, at the same time as it makes such determination, furnish Executive with an opinion that the Executive has substantial authority not
to report any Excise Tax on his federal, state, local income or other tax return. The Company agrees to indemnify and hold harmless the Accounting
Firm of and from any and all claims, damages and expenses resulting from or relating to its determinations pursuant to this Section 10(c), except for
claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm.
(d) As a result of the uncertainty in the application of sections 4999 and 280G of the Code, it is possible that the Gross−Up Payments either will
have been made which should not have been made, or will not have been made which should have been made, by the Company (an "Excess Gross−Up
Payment" or a "Gross−Up Underpayment," respectively). If it is established pursuant to (A) a final determination of a court for which all appeals have
been taken and finally resolved or the time for all appeals has expired, or (B) an Internal Revenue Service (the "IRS") proceeding which has been
finally and conclusively resolved, that an Excess Gross−Up Payment has been made, such Gross−Up Excess Payment shall be deemed for all purposes
to be a loan to the Executive made on the date the Executive received the Excess Gross−Up Payment and the Executive shall repay the Excess
Gross−Up Payment to the Company either (i) on demand, if the Executive is in possession of the Excess Gross−Up Payment or (ii) upon the refund of
such Excess Gross−Up Payment to the Executive from the IRS, if the IRS is in possession of such Excess Gross−Up Payment, together with interest
on the Excess Gross−Up Payment at (X) 120% of the applicable federal rate (as defined in Section 1274(d) of the Code) compounded semi−annually
for any period during which the Executive held such Excess Gross−Up Payment and (Y) the interest rate paid to the Executive by the IRS in respect of
any period during which the IRS held such Excess Gross−Up Payment. If it is determined (I) by the Accounting Firm, the Company (which shall
include the position taken by the Company, together with its consolidated group, on its federal income tax return) or the IRS, (II) pursuant to a
determination by a court, or (III) upon the resolution to the Executive's satisfaction of the Dispute, that a Gross−Up Underpayment has occurred, the
Company shall pay an amount equal to the Gross−Up Underpayment to the Executive within ten calendar days of such determination or resolution,
together with interest on such amount at 120% of the applicable federal rate compounded semi−annually from the date such amount should have been
paid to the Executive pursuant to the terms of this Agreement or otherwise, but for the operation of this Section 10(d), until the date of payment.
11. Post−Termination Assistance. Upon the Executive's termination of employment with the Company, the Executive agrees to fully cooperate in all
matters relating to the winding up or pending work on behalf of the Company and the orderly transfer of work to other employees of the Company following any
termination of the Executives' employment. The Executive further agrees that he will provide, upon reasonable notice, such information and assistance to the
Company as may reasonably be requested by the Company in connection with any audit, governmental investigation, litigation, or other dispute in which the
Company is or may become a party and as to which the Executive has knowledge; provided, however, that (i) the Company agrees to reimburse the Executive for
any related out−of−pocket expenses, including travel expenses, and to pay the Executive reasonable compensation for his time based on his rate of Base Salary at
the time of termination, and (ii) any such assistance may not unreasonably interfere with Executive's then current employment.
12. Restrictive Covenants. In consideration of the obligations of the Company hereunder, the Executive agrees that he shall not, (i) during the Term and the
Severance Term, if severance is being paid, or if no severance is being paid, for a period of one year after a termination of the Executive's employment with the
Company for any reason, (A) directly or indirectly become an employee, director, consultant or advisor of, or otherwise affiliated with, any retailer of sporting
goods, athletic footwear or athletic apparel which sells in the United States through any retail channel, including without limitation, stores, catalogs, direct mail,
the Internet, and commercial and/or institutional sales (unless (1) the sporting goods, athletic footwear and athletic apparel sold by such retailer constitute less
than 50% of the total sales by such retailer and its licensees in the United States during the fiscal year of the Company immediately preceding the year of such
termination, (2) such retailer had sales totaling less than $300,000,000 during the fiscal year of the Company immediately preceding the year of such termination
and had less than twenty (20) retail outlets in the United States at the end of such fiscal year, or (3) the classes of products sold by such retailer constitute less
than 10% of the total sales by the Company and its licensees in the United States during the fiscal year of the Company immediately preceding the year of such
termination), or (B) directly or indirectly solicit or hire or encourage the solicitation or hiring of any person who was an employee of the Company at any time on
or after the date of such termination (unless more than six months shall have elapsed between the last day of such person's employment by the Company and the
first date of such solicitation or hiring); (ii) during or after the Term, make statements or representations, or otherwise communicate, directly or indirectly, in
writing, orally, or otherwise, or take any other action which disparages the Company or its officers, directors, businesses or reputations; or (iii) during or after the
Term, without the written consent of the CEO, disclose to any person other than as required by law or court order, any confidential information obtained by the
Executive while in the employ of the Company, provided, however, that confidential information shall not include any information known generally to the public
(other than as a result of unauthorized disclosure by the Executive) or any specific information or type of information generally not considered confidential by
persons engaged in the same business as the Company, or information disclosed by the Company by any member of the Board or any other officer thereof to a
third party without restrictions on the disclosure of such information. For the purpose of Sections 11 and 12 only, the term "Company" shall mean the Company
and its subsidiaries. Notwithstanding the above, nothing in this Agreement shall preclude the Executive from making truthful statements or disclosures that are
required by applicable law, regulation or legal process.
13. Enforcement. The Executive hereby expressly acknowledges that the restrictions contained in Section 12 are reasonable and necessary to protect the
Company's legitimate interests, that the Company would not have entered into this Agreement in the absence of such restrictions, and that any violation of such
restrictions will result in irreparable harm to the Company. The Executive agrees that the Company shall be entitled to preliminary and permanent injunctive
relief, without the necessity of proving actual damages, as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of
the restrictions contained in Section 12, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled.
The Executive irrevocably and unconditionally (i) agrees that any legal proceeding arising out of this paragraph may be brought in the United States District
Court for the District of Colorado, or if such court does not have jurisdiction or will not accept jurisdiction, in any court of general jurisdiction in Denver County,
Colorado, (ii) consents to the non−exclusive jurisdiction of such court in any such proceeding, and (iii) waives any objection to the laying of venue of any such
proceeding in any such court. The Executive also irrevocably and unconditionally consents to the service of any process, pleadings, notices or other papers in
connection with any such proceeding.
14. Survival. The provisions of Sections 10, 11, 12, 13, 22 and 23 shall survive the termination of this Agreement.
15. No Mitigation or Set Off. In no event shall the Executive be obligated to seek other employment or take any other action by way of mitigation of the
amounts payable to the Executive under any of the provisions of this Agreement and such amounts shall not be reduced, regardless of whether the Executive
obtains other employment. The Company's obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder
shall not be affected by any circumstances, including, without limitation, any set−off, counterclaim, recoupment, defense or other right which the Company may
have against the Executive or others; provided, however, the Company shall have the right to offset the amount of any funds loaned or advanced to the Executive
and not repaid against any severance obligations the Company may have to the Executive hereunder.
16. Return of Documents. Upon termination of his employment, the Executive agrees to return all documents belonging to the Company in his possession
including, but not limited to, contracts, agreements, licenses, business plans, equipment, software, software programs, products, work−in−progress, source code,
object code, computer disks, books, notes and all copies thereof, whether in written, electronic or other form; provided that the Executive may retain copies of his
rolodex. In addition, the Executive shall certify to the Company in writing as of the effective date of termination that none of the assets or business records
belonging to the Company are in his possession, remain under his control, or have been transferred to any third person.
17. Effect of Waiver. The waiver by either party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach hereof. No waiver shall be valid unless in writing.
18. Assignment. This Agreement may not be assigned by either party without the express prior written consent of the other party hereto, except that the
Company (i) may assign this Agreement to any subsidiary or affiliate of the Company, provided that no such assignment shall relieve the Company of its
obligations hereunder without the written consent of the Executive, and (ii) will require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in
the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. As used in this Agreement,
"Company" shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform
this Agreement by operation of law, or otherwise.
19. Entire Agreement; Effectiveness of Agreement. This Agreement sets forth the entire agreement of the parties hereto and shall supersede any and all
prior agreements and understandings concerning the Executive's employment by the Company, including, without limitation, the severance agreement between
the Executive and the Company, dated September 1, 2001, as amended. This Agreement may be changed only by a written document signed by the Executive
and the Company. Notwithstanding the foregoing, this Agreement shall not supercede or replace any agreement entered into between the Company and the
Executive with respect to any plan or benefit described in Section 7 or 8 herein.
20. Severability. If any one or more of the provisions, or portions of any provision, of the Agreement shall be held to be invalid, illegal or unenforceable,
the validity, legality or enforceability of the remaining provisions or parts hereof shall not in any way be affected or impaired thereby.
21. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE SUBSTANTIVE AND PROCEDURAL LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO RULES GOVERNING
CONFLICTS OF LAW.
22. Arbitration. Other than as set forth in Section 13, any controversy, claim or dispute arising out of or relating to this Agreement or the Executive's
employment by the Company, including, but not limited to, common law and statutory claims for discrimination, wrongful discharge, and unpaid wages, shall be
resolved by arbitration in Denver, Colorado pursuant to then prevailing National Rules for the Resolution of Employment Disputes of the American Arbitration
Association. It is the intent of the Company that, following a Change of Control, the Executive shall not be required to incur any expenses associated with the
enforcement of his rights under this Agreement by arbitration, litigation or other legal action because the cost and expense thereof would substantially detract
from the benefits intended to be extended to the Executive hereunder. Accordingly, the Company shall pay the Executive on demand the amount necessary to
reimburse the Executive in full for all expenses (including all attorneys' fees and legal expenses) incurred by the Executive in enforcing any of the obligations of
the Company under this Agreement, or in defending any action by the Company against the Executive in respect of such obligations or the obligations of the
Executive under this Agreement, if such action is commenced on or following a Change of Control. The Company shall pay such expenses to the Executive upon
demand in connection with any action described in the preceding sentence which is commenced prior to a Change of Control if the Executive substantially
prevails on at least one material issue in dispute.
23. Indemnification. During the Term, the Executive shall be entitled to indemnification and insurance coverage for directors and officers liability,
fiduciary liability and other liabilities arising out of the Executive's position with the Company in any capacity, in an amount not less than the highest amount
available to any other senior level executive or member of the Board and to the full extent provided by the Company's certificate of incorporation or by−laws,
and such coverage and protections, with respect to the various liabilities as to which the Executive has been customarily indemnified prior to termination of
employment, shall continue for at least six years following the end of the Term. Any indemnification agreement entered into between the Company and the
Executive shall continue in full force and effect in accordance with its terms following the termination of this Agreement.
24. Notices. All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, or by facsimile or nationally recognized overnight courier service, addressed as follows:
If to Executive:
At the address set forth on the signature page.
If to the Company:
The Sports Authority, Inc.
1050 West Hampden Avenue
Englewood, Colorado 80110
Attn: General Counsel
Telecopy: 303−864−2188
or to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
25. Withholding. The Company may withhold from amounts payable under this Agreement any and all federal, state, and local taxes that are required to be
withheld by any applicable laws and regulations. The Company may also withhold any amounts necessary pursuant to the benefit plans, policies, or arrangements
of the Company or otherwise, in accordance with any applicable Company policies, laws and/or regulations.
*****
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written.
THE SPORTS AUTHORITY, INC.
By:
Name: John Douglas Morton
Its: Chief Executive Officer
Greg Waters
Address and contact information for Greg Waters as of the date hereof (not
to be included with any public filings):
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EMPLOYMENT AGREEMENT
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Exhibit 10.18
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into by and between The Sports Authority, Inc., a Delaware corporation previously
known as Gart Sports Company (the "Company"), and Nesa Hassanein (the "Executive") and shall be effective as of the "Effective Time," as defined in the
written Agreement and Plan of Merger, dated as of February 19, 2003, by and among the Company, Gold Acquisition Corp., a Delaware corporation and wholly
owned subsidiary of the Company, and The Sports Authority, Inc. ("TSA") (the "Merger Agreement").
WHEREAS, the Company desires to employ the Executive as its Executive Vice President and General Counsel and the Executive desires to serve in such
capacity on behalf of the Company.
NOW, THEREFORE, in consideration of the promises and of the mutual covenants and agreements hereinafter set forth, the Company and the Executive
hereby agree as follows:
1.
Employment.
(a) Term. The term of this Agreement (the "Term") shall begin as of the Effective Time and shall end at the time of the termination of the
Executive's employment in accordance with Section 9 herein.
(b) Duties. The Executive shall serve as the Executive Vice President and General Counsel of the Company and shall report directly to the Chief
Executive Officer of the Company (the CEO"). The Executive shall have such duties and responsibilities as are consistent with her position as
Executive Vice President and General Counsel of the Company. In addition, the Executive shall perform all other duties and accept all other
responsibilities incident to such position as may be reasonably assigned to her by the CEO.
(c) Best Efforts. During the period of her employment, the Executive shall devote her best efforts and full−time and attention to promote the
business and affairs of the Company and its affiliated companies, and shall be engaged in other business activities only to the extent that such activities
are not competitive with the Company and do not interfere or conflict with her obligations to the Company hereunder, including, without limitation,
the obligations pursuant to Section 12 below. Notwithstanding the foregoing, the Executive may (A) serve on corporate, civic, educational,
philanthropic or charitable boards or committees, (B) deliver lectures, fulfill speaking engagements or teach at educational institutions and (C) manage
personal investments, so long as such activities do not significantly interfere with the performance of the Executive's responsibilities hereunder. The
foregoing shall also not be construed as preventing the Executive from investing her assets in such form or manner as will not require any significant
services on her part in the operation of the affairs of the businesses or entities in which such investments are made; provided, however, that the
Executive shall not invest in any business competitive with the Company, except that the Executive shall be permitted to own not more than 5% of the
stock of those companies whose securities are listed on a national securities exchange or on the NASDAQ system.
2. Compensation. As compensation for the services to be rendered hereunder, the Company shall pay to the Executive an annual base salary of $340,000
(the "Base Salary"). The Base Salary may be subject to annual increases (but not decreases), as determined in the sole discretion of the Compensation Committee
(the "Compensation Committee") of the Board of Directors of the Company (the "Board"). The Base Salary shall be paid in accordance with the Company's
existing payroll policies.
3. Bonus. The Executive shall be eligible for an annual target bonus payment in an amount equal to 60% of her Base Salary (the "Bonus"). The Bonus
shall be determined based on the achievement of certain performance objectives of the Company as established by the Compensation Committee and
communicated to the Executive in writing as soon as practicable after commencement of the year in respect of which the Bonus is paid. The Bonus may be
greater or less than the target Bonus, based on the level of achievement of the applicable performance objectives.
4. Equity Award. The Executive shall be eligible to receive stock options and other equity−based compensation awards under the Company's 2003 Long
Term Incentive Compensation Plan and otherwise.
5. Expenses. The Company shall reimburse the Executive for all necessary and reasonable travel, entertainment and other business expenses incurred by
her in the performance of her duties hereunder in accordance with such reasonable procedures as the Company may adopt generally from time to time. The
Company shall also reimburse the Executive for reasonable legal fees incurred in connection with the review of the terms of this Agreement.
6. Vacation. The Executive shall be entitled to vacation, holiday and sick leave at levels no less than commensurate with those provided to any other
executive vice president of the Company, in accordance with the Company's vacation, holiday and other pay−for−time−not−worked policies.
7. Retirement and Welfare Benefits. The Executive shall be entitled to participate in the Company's health, life insurance, long and short−term disability,
dental, retirement, and medical programs, if any, pursuant to their respective terms and conditions, on a basis no less than commensurate with those provided to
any other executive vice president of the Company. Nothing in this Agreement shall preclude the Company or any affiliate of the Company from terminating or
amending any employee benefit plan or program from time to time after the effective date of this Agreement, provided that any such amendment or termination
shall be effective as to the Executive only if it is equally applicable to every other senior executive officer of the Company.
8. Perquisites. The Executive shall be provided with such other executive perquisites as may be provided to other executive vice presidents of the
Company (including but not limited to the use of a Company−provided automobile of a type similar to that being provided to other executive vice presidents of
the Company and all operating and insurance costs related thereto, and a discount card allowing the Executive to purchase items from the Company's retail stores
at cost plus 10%).
9.
Termination.
(a) Termination by the Company.
(1) For Cause. The Company may terminate the Executive's employment hereunder at any time for Cause (as defined and in
accordance with the procedures outlined below), in which case the Company's sole liability to the Executive shall be for unpaid Base Salary
and benefits (then owed, or accrued and owed in the future, but in all events and without increasing the Executive's rights under any other
provision hereof, excluding any Bonus payments not yet paid) through the date of termination and unreimbursed expenses incurred by the
Executive pursuant to Section 5 above, each of which shall be paid within 10 days following the date of the Executive's termination.
(2) Without Cause. The Company may also terminate the Executive's employment without Cause at any time upon not less than thirty
(30) days' prior written notice to the Executive; provided, however, that in the event that such notice is given, the Executive shall be under
no obligation to render any additional services to the Company and shall be allowed to seek other employment. Upon the Executive's
termination in accordance with the preceding sentence, the Company shall pay to the Executive a single lump sum in cash, within 10 days
following the date of the Executive's termination, unless another date is mutually agreed upon by the parties, equal to the aggregate amount
of (i) unpaid Base Salary, accrued but unpaid Bonus and benefits (then owed, or accrued and owed in the future) through the date of
termination, (ii) 2.4 times the Base Salary in effect immediately prior to such termination if such termination occurs prior to the third
anniversary of the Effective Time and 1.5 times such Base Salary if such termination occurs on or following the third anniversary of the
Effective Time, and (iii) all unreimbursed expenses incurred by the Executive pursuant to Section 5. In addition, (x) at the time of such
termination, the Executive shall be fully vested in all outstanding long−term incentive awards (whether based in equity or cash, and
specifically including, but not limited to, stock options and restricted stock) then held by the Executive, (y) if such termination occurs on or
following the third anniversary of the Effective Time then, no later than the date on which annual bonuses are generally paid to the
Company's executives in respect of the year of such termination, the Executive shall receive a payment equal to 1.5 times the lesser of
(I) the target Bonus for the year of termination or (II) the Bonus to which the Executive would have been entitled for the year of termination
had the Executive remained employed throughout such year, based on the achievement of the Executive's Bonus objectives for such year;
provided that if any portion of such Bonus is based on subjective determinations, then for purposes of this subclause (II) the amount of the
Bonus shall be determined based on the percentage of the applicable objective performance criteria attained multiplied by the entire target
Bonus, and (z) all health, life insurance, long−term disability, dental, and medical programs specified in Section 7, and all perquisites
described in Section 8, shall continue for 18 months following such termination (the "Severance Term"); provided, however, that the
Company shall in no event be required to provide any coverage after such time as the Executive becomes entitled to receive benefits of the
same type from another employer or recipient of the Executive's services (and provided, further, that such entitlement shall be determined
without regard to any individual waivers or other similar arrangements). At the conclusion of the Severance Term, the Executive shall be
entitled to receive all accrued benefits then owed and any benefits pursuant to the Company's plans or programs which are accrued and
owed in the future. Notwithstanding the foregoing, if a termination described in this Section 9(a)(2) occurs (A) within the 18−month period
commencing on the date of a Change of Control (as defined below), or (B) prior to a Change of Control and such termination was at the
request of a third party who had memorialized an intention or taken steps reasonably calculated to effect a Change of Control or was
otherwise in anticipation of a Change of Control, the Executive shall receive in all cases the payments and benefits described in this
Section 9(a)(2) as if such termination had occurred prior to the third anniversary of the Effective Time, plus the Executive shall receive
clear title, free of any liens, to the car provided to the Executive pursuant to Section 8 herein.
(3) "Cause" Defined. As used in this Agreement, termination for "Cause" shall mean a termination based upon:
(i) a material violation of any material written rule or policy of the Company (A) for which violation any employee may
be terminated pursuant to the written policies of the Company reasonably applicable to an executive employee, and (B) which
the Executive fails to correct within 30 days after the Executive receives written notice from the Board of such violation;
(ii) misconduct by the Executive to the material and demonstrable detriment of the Company;
(iii) the Executive's conviction (by a court of competent jurisdiction, not subject to further appeal) of, or pleading guilty to,
a felony;
(iv) the Executive's continued and ongoing gross negligence in the performance of her duties and responsibilities to the
Company as described in this Agreement; or
(v) the Executive's material failure to perform her duties and responsibilities to the Company as described in this
Agreement (other than any such failure resulting from the Executive's incapacity due to physical or mental illness or any such
failure subsequent to the Executive being delivered a notice of termination without Cause by the Company or delivering a notice
of termination for Good Reason to the Company), in either case after written notice from the Board to the Executive of the
specific nature of such material failure and the Executive's failure to cure such material failure within thirty (30) days following
receipt of such notice.
Cause shall not exist unless and until the Company has delivered to the Executive, along with the notice of Termination for Cause, a copy of a resolution
duly adopted by two−thirds ( 2/3) of the entire Board (excluding the Executive if the Executive is a Board member) at a meeting of the Board called and held for
such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with counsel, to be heard before the Board), finding that in
the good faith opinion of the Board an event set forth in clauses (i), (ii), (iv) or (v) above has occurred and specifying the particulars thereof in detail. The Board
must notify the Executive of any event constituting Cause within ninety (90) days following the Board's knowledge of its existence or such event shall not
constitute Cause under this Agreement.
(b) Termination by the Executive.
(1) The Executive may resign from her employment hereunder in the event of "Good Reason" after thirty (30) days' written notice
from the Executive to the Board describing in detail the "Good Reason," if not cured within such 30−day period; provided, however, that
such notice shall be given no later than ninety (90) days after the time that the Executive has actual knowledge of the event or condition
purportedly giving rise to Good Reason. In the event of any such resignation, the Company's obligations to the Executive shall be the same
as set forth in Section 9(a)(2) above, and if (A) such resignation occurs within the 18−month period commencing on the date of a Change of
Control or (B) prior to a Change of Control the event constituting Good Reason for such termination was at the request of a third party who
had memorialized an intention or taken steps reasonably calculated to effect a Change of Control or was otherwise in anticipation of a
Change of Control, then the last sentence of Section 9(a)(2) shall apply.
(2) The Executive may resign her employment hereunder other than for Good Reason at any time by giving no less than thirty
(30) days' written notice to the Board. In the event of any such resignation, the Company's sole obligation to the Executive shall be for
unpaid Base Salary and benefits (then owed or accrued and owed in the future, but in all events and without increasing the Executive's
rights under any other provision hereof, excluding any Bonus payments not yet paid) and reimbursement of expenses pursuant to Section 5
above through the effective date of the Executive's resignation specified in the Executive's notice.
(3) For the purposes of this Agreement, "Good Reason" means resignation by the Executive based upon the occurrence without the
Executive's express written consent of any of the following:
(i) a significant diminution by the Company of the Executive's role with the Company or a significant detrimental change
in the nature and/or scope of the Executive's status with the Company (including a diminution in title);
(ii) a reduction in Base Salary or target or maximum Bonus, other than as part of an across the board reduction in salaries
of management personnel (including all vice presidents and positions above) of less than 20%;
(iii) at any time following a Change of Control (as defined below), a material diminution by the Company of compensation
and benefits (taken as a whole) provided to the Executive immediately prior to a Change of Control;
(iv) the relocation of the Executive's principal executive office to a location more than 30 miles further from the
Executive's principal residence than the Executive's principal executive office immediately prior to such relocation, or any
requirement that the Executive be based anywhere other than the Executive's principal executive office;
(v) any failure by the Company to comply with and satisfy clause (ii) of the first sentence of Section 18; or
(vi) any other material breach by the Company of any of the terms and conditions of this Agreement.
Notwithstanding the above, a resignation by the Executive for any reason during the 30−day period commencing six months after a Change of Control, upon
giving at least thirty (30) days' advance written notice to the Board, shall be considered to be a resignation for Good Reason.
(c) Termination by Death or Disability. In the event of the Executive's death or "permanent disability" (as defined below) during the Term, the
Executive's employment shall terminate on the date of death or date of permanent disability. In the event of such termination, the Company's sole
obligations hereunder to the Executive (or the Executive's estate) shall be for unpaid Base Salary, accrued but unpaid Bonus and benefits (then owed
or accrued and owed in the future), a pro−rata Bonus for the year of termination based on the Executive's target Bonus for such year and the portion of
such year in which the Executive was employed, and reimbursement of expenses pursuant to Section 5 through the effective date of termination, each
of which shall be paid within 10 days following the date of the Executive's termination. For purposes of this Section 9(c), the Executive shall be
considered to have suffered a "permanent disability" if she has become eligible to receive benefits under the long−term disability plan of the
Company.
10. Change of Control.
(a) A "Change of Control" shall be deemed to have occurred if, after the Effective Time, (i) the beneficial ownership (as defined in Rule 13d−3
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of securities representing more than 30% of the combined voting
power of the Company is acquired by any "person" as defined in sections 13(d) and 14(d) of the Exchange Act (other than the Company, any
subsidiary of the Company, or any trustee or other fiduciary holding securities under an employee benefit plan of the Company), (ii) the merger or
consolidation of the Company with or into another corporation where the shareholders of the Company, immediately prior to the consolidation or
merger, would not, immediately after the consolidation or merger, beneficially own (as such term is defined in Rule 13d−3 under the Exchange Act),
directly or indirectly, shares representing in the aggregate 50% or more of the combined voting power of the securities of the corporation issuing cash
or securities in the consolidation or merger (or of its ultimate parent corporation, if any) in substantially the same proportion as their ownership of the
Company immediately prior to such merger or consolidation, (iii) the sale or other disposition of all or substantially all of the Company's assets to an
entity, other than a sale or disposition by the Company of all or substantially all of the Company's assets to an entity, at least 50% of the combined
voting power of the voting securities of which are owned directly or indirectly by shareholders of the Company, immediately prior to the sale or
disposition, in substantially the same proportion as their ownership of the Company immediately prior to such sale or disposition, or (iv) during any
period of two consecutive years, individuals who at the beginning of such period were members of the Board ("Incumbent Directors") cease for any
reason (other than death) to constitute at least a majority thereof; provided that each new director whose election, or nomination for election by the
Company's shareholders, was approved by a vote of at least a majority of the directors then still in office who were directors at the beginning of such
period shall be deemed an Incumbent Director unless such approval was made directly or indirectly in connection with an actual or threatened election
contest with respect to directors or as a result of any other actual or threatened solicitation of proxies or consents by or on behalf of any person other
than the Board.
(b) Anything in this Agreement to the contrary notwithstanding, if it is determined that any payment or benefit provided to the Executive under
this Agreement or otherwise, whether or not in connection with a Change of Control (a "Payment"), would constitute an "excess parachute payment"
within the meaning of section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), such that the Payment would be subject to an
excise tax under section 4999 of the Code (the "Excise Tax"), the Company shall pay to the Executive an additional amount (the "Gross−Up
Payment") such that the net amount of the Gross−Up Payment retained by the Executive after the payment of any Excise Tax and any federal, state
and local income and employment tax on the Gross−Up Payment, shall be equal to the Excise Tax due on the Payment and any interest and penalties
in respect of such Excise Tax. For purposes of determining the amount of the Gross−Up Payment, Executive shall be deemed to pay federal income
tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross−Up
Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence (or, if
greater, the state and locality in which Executive is required to file a nonresident income tax return with respect to the Payment) in the calendar year in
which the Gross−Up Payment is to be made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such
state and local taxes.
(c) All determinations made pursuant to the foregoing paragraph shall be made by the Company's independent public accounting firm
immediately prior to the transaction resulting in the application of section 4999 of the Code or, if such firm continues to be retained by the Company
or its successor to provide any services whatsoever subsequent to such transaction, an independent public accounting firm selected by the Executive in
the Executive's sole discretion (the "Accounting Firm"), which firm shall provide its determination and any supporting calculations (the
"Determination") both to the Company and to the Executive within ten days of the date of the Executive's termination or any other date selected by the
Executive or the Company. Within ten calendar days of the delivery of the Determination to the Executive, the Executive shall have the right to
dispute the Determination (the "Dispute"). The existence of any Dispute shall not in any way affect the Executive's right to receive the Gross−Up
Payments in accordance with the Determination. If there is no dispute, the Determination by the Accounting Firm shall be final, binding and
conclusive upon the Company and the Executive, subject to the application of Section 10(d). All of the fees and expenses of the Accounting Firm in
performing the determinations referred to above shall be borne solely by the Company. Within five days after the Accounting Firm's determination,
the Company shall pay to the Executive the Gross−Up Payment, if any. If the Accounting Firm determines that no Excise Tax is payable by the
Executive, it will, at the same time as it makes such determination, furnish Executive with an opinion that the Executive has substantial authority not
to report any Excise Tax on her federal, state, local income or other tax return. The Company agrees to indemnify and hold harmless the Accounting
Firm of and from any and all claims, damages and expenses resulting from or relating to its determinations pursuant to this Section 10(c), except for
claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm.
(d) As a result of the uncertainty in the application of sections 4999 and 280G of the Code, it is possible that the Gross−Up Payments either will
have been made which should not have been made, or will not have been made which should have been made, by the Company (an "Excess Gross−Up
Payment" or a "Gross−Up Underpayment," respectively). If it is established pursuant to (A) a final determination of a court for which all appeals have
been taken and finally resolved or the time for all appeals has expired, or (B) an Internal Revenue Service (the "IRS") proceeding which has been
finally and conclusively resolved, that an Excess Gross−Up Payment has been made, such Gross−Up Excess Payment shall be deemed for all purposes
to be a loan to the Executive made on the date the Executive received the Excess Gross−Up Payment and the Executive shall repay the Excess
Gross−Up Payment to the Company either (i) on demand, if the Executive is in possession of the Excess Gross−Up Payment or (ii) upon the refund of
such Excess Gross−Up Payment to the Executive from the IRS, if the IRS is in possession of such Excess Gross−Up Payment, together with interest
on the Excess Gross−Up Payment at (X) 120% of the applicable federal rate (as defined in Section 1274(d) of the Code) compounded semi−annually
for any period during which the Executive held such Excess Gross−Up Payment and (Y) the interest rate paid to the Executive by the IRS in respect of
any period during which the IRS held such Excess Gross−Up Payment. If it is determined (I) by the Accounting Firm, the Company (which shall
include the position taken by the Company, together with its consolidated group, on its federal income tax return) or the IRS, (II) pursuant to a
determination by a court, or (III) upon the resolution to the Executive's satisfaction of the Dispute, that a Gross−Up Underpayment has occurred, the
Company shall pay an amount equal to the Gross−Up Underpayment to the Executive within ten calendar days of such determination or resolution,
together with interest on such amount at 120% of the applicable federal rate compounded semi−annually from the date such amount should have been
paid to the Executive pursuant to the terms of this Agreement or otherwise, but for the operation of this Section 10(d), until the date of payment.
11. Post−Termination Assistance. Upon the Executive's termination of employment with the Company, the Executive agrees to fully cooperate in all
matters relating to the winding up or pending work on behalf of the Company and the orderly transfer of work to other employees of the Company following any
termination of the Executives' employment. The Executive further agrees that she will provide, upon reasonable notice, such information and assistance to the
Company as may reasonably be requested by the Company in connection with any audit, governmental investigation, litigation, or other dispute in which the
Company is or may become a party and as to which the Executive has knowledge; provided, however, that (i) the Company agrees to reimburse the Executive for
any related out−of−pocket expenses, including travel expenses, and to pay the Executive reasonable compensation for her time based on her rate of Base Salary
at the time of termination, and (ii) any such assistance may not unreasonably interfere with Executive's then current employment.
12. Restrictive Covenants. In consideration of the obligations of the Company hereunder, the Executive agrees that she shall not, (i) during the Term and
the Severance Term, if severance is being paid, or if no severance is being paid, for a period of one year after a termination of the Executive's employment with
the Company for any reason, (A) directly or indirectly become an employee, director, consultant or advisor of, or otherwise affiliated with, any retailer of
sporting goods, athletic footwear or athletic apparel which sells in the United States through any retail channel, including without limitation, stores, catalogs,
direct mail, the Internet, and commercial and/or institutional sales (unless (1) the sporting goods, athletic footwear and athletic apparel sold by such retailer
constitute less than 50% of the total sales by such retailer and its licensees in the United States during the fiscal year of the Company immediately preceding the
year of such termination, (2) such retailer had sales totaling less than $300,000,000 during the fiscal year of the Company immediately preceding the year of such
termination and had less than twenty (20) retail outlets in the United States at the end of such fiscal year, or (3) the classes of products sold by such retailer
constitute less than 10% of the total sales by the Company and its licensees in the United States during the fiscal year of the Company immediately preceding the
year of such termination), or (B) directly or indirectly solicit or hire or encourage the solicitation or hiring of any person who was an employee of the Company
at any time on or after the date of such termination (unless more than six months shall have elapsed between the last day of such person's employment by the
Company and the first date of such solicitation or hiring); (ii) during or after the Term, make statements or representations, or otherwise communicate, directly or
indirectly, in writing, orally, or otherwise, or take any other action which disparages the Company or its officers, directors, businesses or reputations; or
(iii) during or after the Term, without the written consent of the CEO, disclose to any person other than as required by law or court order, any confidential
information obtained by the Executive while in the employ of the Company, provided, however, that confidential information shall not include any information
known generally to the public (other than as a result of unauthorized disclosure by the Executive) or any specific information or type of information generally not
considered confidential by persons engaged in the same business as the Company, or information disclosed by the Company by any member of the Board or any
other officer thereof to a third party without restrictions on the disclosure of such information. For the purpose of Sections 11 and 12 only, the term "Company"
shall mean the Company and its subsidiaries. Notwithstanding the above, nothing in this Agreement shall preclude the Executive from making truthful statements
or disclosures that are required by applicable law, regulation or legal process.
13. Enforcement. The Executive hereby expressly acknowledges that the restrictions contained in Section 12 are reasonable and necessary to protect the
Company's legitimate interests, that the Company would not have entered into this Agreement in the absence of such restrictions, and that any violation of such
restrictions will result in irreparable harm to the Company. The Executive agrees that the Company shall be entitled to preliminary and permanent injunctive
relief, without the necessity of proving actual damages, as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of
the restrictions contained in Section 12, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled.
The Executive irrevocably and unconditionally (i) agrees that any legal proceeding arising out of this paragraph may be brought in the United States District
Court for the District of Colorado, or if such court does not have jurisdiction or will not accept jurisdiction, in any court of general jurisdiction in Denver County,
Colorado, (ii) consents to the non−exclusive jurisdiction of such court in any such proceeding, and (iii) waives any objection to the laying of venue of any such
proceeding in any such court. The Executive also irrevocably and unconditionally consents to the service of any process, pleadings, notices or other papers in
connection with any such proceeding.
14. Survival. The provisions of Sections 10, 11, 12, 13, 22 and 23 shall survive the termination of this Agreement.
15. No Mitigation or Set Off. In no event shall the Executive be obligated to seek other employment or take any other action by way of mitigation of the
amounts payable to the Executive under any of the provisions of this Agreement and such amounts shall not be reduced, regardless of whether the Executive
obtains other employment. The Company's obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder
shall not be affected by any circumstances, including, without limitation, any set−off, counterclaim, recoupment, defense or other right which the Company may
have against the Executive or others; provided, however, the Company shall have the right to offset the amount of any funds loaned or advanced to the Executive
and not repaid against any severance obligations the Company may have to the Executive hereunder.
16. Return of Documents. Upon termination of her employment, the Executive agrees to return all documents belonging to the Company in her possession
including, but not limited to, contracts, agreements, licenses, business plans, equipment, software, software programs, products, work−in−progress, source code,
object code, computer disks, books, notes and all copies thereof, whether in written, electronic or other form; provided that the Executive may retain copies of
her rolodex. In addition, the Executive shall certify to the Company in writing as of the effective date of termination that none of the assets or business records
belonging to the Company are in her possession, remain under her control, or have been transferred to any third person.
17. Effect of Waiver. The waiver by either party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach hereof. No waiver shall be valid unless in writing.
18. Assignment. This Agreement may not be assigned by either party without the express prior written consent of the other party hereto, except that the
Company (i) may assign this Agreement to any subsidiary or affiliate of the Company, provided that no such assignment shall relieve the Company of its
obligations hereunder without the written consent of the Executive, and (ii) will require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in
the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. As used in this Agreement,
"Company" shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform
this Agreement by operation of law, or otherwise.
19. Entire Agreement; Effectiveness of Agreement. This Agreement sets forth the entire agreement of the parties hereto and shall supersede any and all
prior agreements and understandings concerning the Executive's employment by the Company, including, without limitation, the severance agreement between
the Executive and the Company, dated September 1, 2001, as amended. This Agreement may be changed only by a written document signed by the Executive
and the Company. Notwithstanding the foregoing, this Agreement shall not supercede or replace any agreement entered into between the Company and the
Executive with respect to any plan or benefit described in Section 7 or 8 herein.
20. Severability. If any one or more of the provisions, or portions of any provision, of the Agreement shall be held to be invalid, illegal or unenforceable,
the validity, legality or enforceability of the remaining provisions or parts hereof shall not in any way be affected or impaired thereby.
21. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE SUBSTANTIVE AND PROCEDURAL LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO RULES GOVERNING
CONFLICTS OF LAW.
22. Arbitration. Other than as set forth in Section 13, any controversy, claim or dispute arising out of or relating to this Agreement or the Executive's
employment by the Company, including, but not limited to, common law and statutory claims for discrimination, wrongful discharge, and unpaid wages, shall be
resolved by arbitration in Denver, Colorado pursuant to then prevailing National Rules for the Resolution of Employment Disputes of the American Arbitration
Association. It is the intent of the Company that, following a Change of Control, the Executive shall not be required to incur any expenses associated with the
enforcement of her rights under this Agreement by arbitration, litigation or other legal action because the cost and expense thereof would substantially detract
from the benefits intended to be extended to the Executive hereunder. Accordingly, the Company shall pay the Executive on demand the amount necessary to
reimburse the Executive in full for all expenses (including all attorneys' fees and legal expenses) incurred by the Executive in enforcing any of the obligations of
the Company under this Agreement, or in defending any action by the Company against the Executive in respect of such obligations or the obligations of the
Executive under this Agreement, if such action is commenced on or following a Change of Control. The Company shall pay such expenses to the Executive upon
demand in connection with any action described in the preceding sentence which is commenced prior to a Change of Control if the Executive substantially
prevails on at least one material issue in dispute.
23. Indemnification. During the Term, the Executive shall be entitled to indemnification and insurance coverage for directors and officers liability,
fiduciary liability and other liabilities arising out of the Executive's position with the Company in any capacity, in an amount not less than the highest amount
available to any other senior level executive or member of the Board and to the full extent provided by the Company's certificate of incorporation or by−laws,
and such coverage and protections, with respect to the various liabilities as to which the Executive has been customarily indemnified prior to termination of
employment, shall continue for at least six years following the end of the Term. Any indemnification agreement entered into between the Company and the
Executive shall continue in full force and effect in accordance with its terms following the termination of this Agreement.
24. Notices. All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, or by facsimile or nationally recognized overnight courier service, addressed as follows:
If to Executive:
At the address set forth on the signature page.
If to the Company:
The Sports Authority, Inc.
1050 West Hampden Avenue
Englewood, Colorado 80110
Attn: General Counsel
Telecopy: 303−864−2188
or to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
25. Withholding. The Company may withhold from amounts payable under this Agreement any and all federal, state, and local taxes that are required to be
withheld by any applicable laws and regulations. The Company may also withhold any amounts necessary pursuant to the benefit plans, policies, or arrangements
of the Company or otherwise, in accordance with any applicable Company policies, laws and/or regulations.
*****
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written.
THE SPORTS AUTHORITY, INC.
By:
Name: John Douglas Morton
Its: Chief Executive Officer
Nesa Hassanein
Address and contact information for Nesa Hassanein as of the date hereof
(not to be included with any public filings):
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Exhibit 10.18
EMPLOYMENT AGREEMENT
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Exhibit 10.19
AGREEMENT
This Agreement (the "Agreement") is entered into by and between The Sports Authority, Inc. (the "Company") and Martin E. Hanaka (the "Executive") and
is effective as of December 30, 2003 (the "Effective Date"). Any prior agreement between the Company and the Executive regarding the termination of the
Executive's employment with the Company is void ab initio.
In consideration of the promises set forth in the Agreement, the Executive and the Company (the "Parties") hereby agree as follows:
1.
Entire Agreement.
The Agreement, and the "Consulting Agreement" (as defined below) attached hereto as Exhibit A, is the entire agreement between the Parties with respect
to the subject matter hereof and contains all agreements, whether written, oral, express or implied, between the Parties relating thereto and supersedes and
extinguishes any other agreement relating thereto, whether written, oral, express or implied, between the Parties, including, without limitation, the Employment
Agreement between the Parties, dated as of August 4, 2003 (the "Employment Agreement"); provided that no rights or obligations established under any such
superseded agreement and specifically preserved by the Agreement are extinguished. Other than the Agreement and as otherwise explicitly stated herein, there
are no agreements of any nature whatsoever between the Executive and the Company that survive the Agreement. The Agreement may not be modified or
amended, nor may any rights under it be waived, except in a writing signed and agreed to by the Parties.
2.
Cessation of Employment.
The Executive and the Company hereby mutually agree that Executive's employment with the Company and any of its affiliates or subsidiaries (collectively,
the "Company Group"), shall cease as of December 31, 2003 (the "Termination Date") at 11:59:59 p.m. (the "Termination Time"); provided, however, that until
August 3, 2006, the Company shall cause the Executive to be nominated, and, if elected by the Company's shareholders, the Executive shall serve as a member of
the Board of Directors of the Company (the "Board") and shall serve as Chairman of the Board, for so long as he is elected to such position. Simultaneous with
the execution of this Agreement, the Company and the Executive, have executed the consulting agreement attached hereto as Exhibit A (the "Consulting
Agreement"), pursuant to which the Executive has agreed to render services to the Company and the Company has agreed to engage the Executive as a consultant
upon and immediately following the Termination Time, such that the period during which Consultant is "in the employ of, or providing services to, the
Company" as contemplated in The Sports Authority, Inc., 2000 Stock Option and Stock Award Plan shall be deemed to be continuous and with no interruption.
Notwithstanding the above, during the Consulting Period (as defined in the Consulting Agreement), the Executive shall not receive compensation for his service
on the Board; provided, however, that if the Executive serves on the Board after the end of the Consulting Period, he shall receive compensation identical to
those other non−employee directors serving on the Board at such time.
3.
Entitlements.
Subject to the Executive's not having revoked the Agreement in accordance with Section 7E below, the Company shall provide the Executive the following
post−termination payments and benefits:
A. The Executive's Base Salary (as defined in the Employment Agreement) for the period ending on the Termination Date in accordance with the
Company's regular payroll procedures plus a single lump sum payment of $2,872,500, less the total amount of base salary earned by the Executive under the
Employment Agreement since August 4, 2003. In addition, the Executive shall receive, pursuant to Section 9 of the Company's 2003 Long Term Incentive
Compensation Plan, Company stock having a value of $1,000,000 based on the closing price of a share of the Company's common stock on the day immediately
preceding the Effective Date. The Executive shall also be fully vested as of the Termination Date in all outstanding long−term incentive awards (whether based
in equity or cash, and specifically including but not limited to stock options and restricted stock) then held by him. Any stock options granted pursuant to the
Company's 2003 Long Term Incentive Compensation Plan held by the Executive which are vested as of the Termination Date (whether or not by virtue of the
preceding sentence) shall remain exercisable until August 4, 2006. All other stock options held by the Executive shall terminate in accordance with their
respective terms.
B. All unreimbursed expenses incurred by the Executive (i) which have been submitted to the Company but not paid as of the Termination Date and
(ii) which have not been submitted by the Termination Date, in either case in accordance with the expense reimbursement policy of the Company. In addition, the
Company shall also reimburse the Executive for reasonable legal fees incurred in connection with the ongoing negotiation and review of the terms of this
Agreement.
C. As of and after the Termination Date, the Executive shall no longer participate in, accrue service credit or have contributions made on his behalf under
any employee benefit plan sponsored by the Company in respect of periods commencing on and following the Termination Date, including without limitation,
any plan which is intended to qualify under Section 401(a) of the Internal Revenue Code of 1986, as amended. The Executive shall be entitled to all benefits
accrued up to the Termination Date, to the extent vested under all employee benefit plans of the Company, in accordance with the terms of such plans.
Notwithstanding the foregoing, the Executive shall continue (i) to receive the executive perquisites as may be provided to the Chief Executive Officer of the
Company (the "CEO") (including but not limited to the use of a Company−provided automobile of a type similar to that being provided to the CEO and all
operating and insurance costs related thereto, and a discount card allowing the Executive to purchase items from the Company's retail stores at cost plus 10%);
(ii) to be reimbursed for attendance at industry events and professional sporting events, including, on a reasonable basis the Super Bowl, the NCAA Final Four
and the professional All−Star games; and (iii) to be eligible to participate, at the Company's expense, in the Company's health, life insurance, long and short term
disability, dental, retirement and medical programs, if any, in which he was participating immediately prior to Termination Date, in each case until the day
immediately prior to the third anniversary of August 4, 2003; provided, that the Company may fulfill this obligation to the extent allowed by applicable law by
paying the Executive's premiums under COBRA, and the Executive shall timely elect COBRA coverage if so requested by the Company.
D. For so long as the Executive is Chairman of the Board, the Company shall (i) continue paying for the cost of the office space and conference facilities in
Broward County, Florida which he occupied immediately preceding the Effective Date, and (ii) retain for the Executive the secretarial support he had
immediately preceding the Effective Date.
The payments and property described in clauses A and B above and the medical coverage described in clause C above shall be made and provided on the
business day immediately following the expiration of the seven−day revocation period described in Section 7E below; provided, that the Executive has not
revoked the Agreement during such period.
4.
Confidentiality.
A. The Executive acknowledges and agrees that he shall not, following the Termination Date, without the written consent of the CEO, disclose to any
person other than as required by law or court order, any confidential information obtained by the Executive while in the employ of the Company; provided,
however, that confidential information shall not include any information known generally to the public (other than as a result of unauthorized disclosure by the
Executive) or any specific information or type of information generally not considered confidential by persons engaged in the same business as the Company, or
information disclosed by the Company by any member of the Board or any other officer thereof to a third party without restrictions on the disclosure of such
information.
B. The Executive hereby further agrees that he will not, directly or indirectly, after the Termination Date, make statements or representations, or otherwise
communicate, directly or indirectly, in writing, orally, or otherwise, or take any other action which disparages the Company or its officers, directors, businesses
or reputations.
C. The existence of and the terms and conditions of the Agreement shall be held confidential by the Parties hereto, except for disclosure (i) by the Company
to its legal, actuarial and accounting advisors, (ii) by the Executive to his legal and financial advisors and immediate family members, (iii) by either Party if
required by order of a court or other body having jurisdiction over such matter, or otherwise as required under the securities law, and (iv) by either Party with the
written consent of the other. Notwithstanding the foregoing, nothing in the Agreement shall prevent the Executive from (x) using on his own behalf or any future
employer's behalf, his general knowledge or experience in any area of professional activity, whether or not involving the Executive's service with the Company
or (y) referring to his performance of services with the Company as descriptive of his ability or qualification for employment or engagement by any other entity.
D. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of any party to this
Agreement) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the transactions contemplated by this
Agreement, and all materials of any kind (including opinions or other tax analyses) related to such tax treatment and tax structure; providedthat this sentence
shall not permit any person to disclose the name of, or other information that would identify, any party to such transactions or to disclose confidential commercial
information regarding such transactions.
5.
Restrictive Covenants.
A. The Executive hereby agrees that he shall not, (i) for a period of two years following the end of the Consulting Period (as defined in the Consulting
Agreement), for any reason directly or indirectly become an employee, director, consultant or advisor of, or otherwise affiliated with, any retailer of sporting
goods, athletic footwear or athletic apparel which sells in the United States through any retail channel, including without limitation, stores, catalogs, direct mail,
the Internet, and commercial and/or institutional sales (unless (1) the sporting goods, athletic footwear and athletic apparel sold by such retailer constitute less
than 50% of the total sales by such retailer and its licensees in the United States during the fiscal year of the Company immediately preceding the year of such
termination, or (2) such retailer had sales totaling less than $300,000,000 during the fiscal year of the Company immediately preceding the year of such
termination and, in the case of a retailer, had less than twenty (20) retail outlets in the United States at the end of such fiscal year, or (3) the classes of products
sold by such retailer constitute less than 10% of the total sales by the Company Group and its licensees in the United States during the fiscal year of the Company
immediately preceding the year of such termination).
B. The Executive agrees that he will not directly or indirectly solicit or hire or encourage the solicitation or hiring of any person (other than Sheila Otto)
who was an employee of the Company at any time on or after the Termination Date (unless more than six months shall have elapsed between the last day of such
person's employment by the Company and the first date of such solicitation or hiring).
6.
Cooperation.
A. The Executive agrees to fully cooperate in all matters relating to the winding up or pending work on behalf of the Company and the orderly transfer of
work to other employees of the Company following the Termination Date. The Executive further agrees that he will provide, upon reasonable notice, such
information and assistance to the Company as may reasonably be requested by the Company in connection with any audit, governmental investigation, litigation,
or other dispute in which the Company is or may become a party and as to which the Executive has knowledge; provided, however, that (i) the Company agrees
to reimburse the Executive for any related out−of−pocket expenses, including travel expenses, and to pay the Executive reasonable compensation for his time
based on a daily rate of $5,000, and (ii) any such assistance may not unreasonably interfere with the Executive's then current employment.
7.
Acknowledgment and Release.
A. In consideration of the Company's execution of the Agreement, and except with respect to the Company's obligations arising under or preserved in the
Agreement, the Executive, for and on behalf of himself and his heirs and assigns, hereby waives and releases any common law, statutory or other complaints,
claims, charges or causes of action arising out of or relating to the Executive's employment or termination of employment with, or his serving in any capacity in
respect of, any member of the Company Group, both known and unknown, in law or in equity, which the Executive may now have or ever had against any
member of the Company Group or any shareholder, employee, director or officer of any member of the Company Group (collectively, the "Releasees"),
including, without limitation, any claim for any severance benefit which but for the Agreement might have been due the Executive under any previous agreement
executed by and between any member of the Company Group and the Executive, and any complaint, charge or cause of action arising out of his employment
with the Company Group under the Age Discrimination in Employment Act of 1967 ("ADEA," a law which prohibits discrimination on the basis of age), the
National Labor Relations Act, the Civil Rights Act of 1991, the Americans With Disabilities Act of 1990, Title VII of the Civil Rights Act of 1964, the
Employee Retirement Income Security Act of 1974, all as amended; and all other federal, state and local laws. By signing the Agreement the Executive
acknowledges that he intends to waive and release any rights known or unknown he may have against the Releasees under these and any other laws; provided,
that the Executive does not waive or release claims with respect to the right to enforce the Agreement.
B. The Executive acknowledges that he has not filed any complaint, charge, claim or proceeding against any of the Releasees before any local, state or
federal agency, court or other body relating to his employment or the resignation thereof (each individually a "Proceeding"). The Executive represents that he is
not aware of any basis on which such a Proceeding could reasonably be instituted.
C. The Executive (i) acknowledges that he will not initiate or cause to be initiated on his behalf any Proceedings and will not participate in any Proceeding,
in each case, except as required by law; and (ii) waives any right he may have to benefit in any manner from any relief (whether monetary or otherwise) arising
out of any Proceeding, including any Proceeding conducted by the Equal Employment Opportunity Commission ("EEOC"). Further, the Executive understands
that by entering into the Agreement, he will be limiting the availability of certain remedies that he may have against the Company and limiting also his ability to
pursue certain claims against the Releasees. Notwithstanding the above, nothing in this Section 7 shall prevent the Executive from (i) initiating or causing to be
initiated on his behalf any complaint, charge, claim or proceeding against the Company before any local, state or federal agency, court or other body challenging
the validity of the waiver of his claims under ADEA contained in Section 7 of the Agreement (but no other portion of such waiver); or (ii) initiating or
participating in an investigation or proceeding conducted by the EEOC.
D. The Executive acknowledges that he has been advised that he has twenty−one (21) days from the date of receipt of the Agreement to consider all the
provisions of the Agreement and he does hereby knowingly and voluntarily waive said given twenty−one (21) day period. Notwithstanding such waiver, the
Executive further acknowledges and agrees that more than twenty−one (21) days has passed since he received the Agreement containing the waivers set forth in
this Section 7. THE EXECUTIVE FURTHER ACKNOWLEDGES THAT HE HAS READ THE AGREEMENT CAREFULLY, HAS BEEN ADVISED
BY THE COMPANY TO, AND HAS IN FACT, CONSULTED AN ATTORNEY, SPECIFICALLY STEPHEN F. GOLDENBERG OF THE LAW
OFFICES OF STEPHEN F. GOLDENBERG, P.A., AND FULLY UNDERSTANDS THAT BY SIGNING BELOW HE IS GIVING UP CERTAIN
RIGHTS WHICH HE MAY HAVE TO SUE OR ASSERT A CLAIM AGAINST ANY OF THE RELEASEES, AS DESCRIBED IN THIS SECTION 7
AND THE OTHER PROVISIONS HEREOF. THE EXECUTIVE ACKNOWLEDGES THAT HE HAS NOT BEEN FORCED OR PRESSURED IN
ANY MANNER WHATSOEVER TO SIGN THE AGREEMENT AND THE EXECUTIVE AGREES TO ALL OF ITS TERMS VOLUNTARILY.
E. The Executive shall have seven days from the date of his execution of the Agreement to revoke the Agreement, including the release given under this
Section 7 with respect to all claims referred to herein (including, without limitation, any and all claims arising under ADEA). Notwithstanding anything in the
Agreement to the contrary, if the Executive revokes the Agreement pursuant to the preceding sentence including, without limitation, the release given under this
Section 7, the Executive will be deemed not to have accepted the terms of the Agreement, no action will be required of the Company or the Executive under any
Section of the Agreement, and the Agreement shall be null and void in its entirety.
F. Notwithstanding the foregoing, the Executive does not release, discharge or waive any rights to indemnification that he may have under the By−Laws of
the Company, the laws of the State of Delaware, any indemnification agreement between the Executive and the Company or any insurance coverage maintained
by or on behalf of the Company.
8.
Availability of Relief
A. In the event that the Executive fails to abide by any of the terms of the Agreement, the Company may, in addition to any other remedies it may have,
terminate any benefits or payments that are subsequently due under the Agreement, without waiving the release granted herein.
B. The Executive acknowledges and agrees that the remedy at law available to the Company for breach of any of his post−termination obligations under the
Agreement, including but not limited to his obligations under Sections 4, 5 and 6 of the Agreement, would be inadequate and that damages flowing from such a
breach may not readily be susceptible to being measured in monetary terms. Accordingly, the Executive acknowledges, consents and agrees that, in addition to
any other rights or remedies which the Company may have at law, in equity or under the Agreement, upon adequate proof of his violation of any such provision
of the Agreement, the Company shall be entitled to immediate injunctive relief and may obtain a temporary order restraining any threatened or further breach,
without the necessity of proof of actual damage.
9.
280G Gross−Up Payment.
A. If it is determined that any payment or benefit provided to the Executive under this Agreement or otherwise, whether or not in connection with a change
of control (a "Payment"), would constitute an "excess parachute payment" within the meaning of section 280G of the Internal Revenue Code of 1986, as
amended (the "Code"), such that the Payment would be subject to an excise tax under section 4999 of the Code (the "Excise Tax"), the Company shall pay to the
Executive an additional amount (the "Gross−Up Payment") such that the net amount of the Gross−Up Payment retained by the Executive after the payment of
any Excise Tax and any federal, state and local income and employment tax on the Gross−Up Payment, shall be equal to the Excise Tax due on the Payment and
any interest and penalties in respect of such Excise Tax. For purposes of determining the amount of the Gross−Up Payment, Executive shall be deemed to pay
federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross−Up
Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence (or, if greater, the
state and locality in which Executive is required to file a nonresident income tax return with respect to the Payment) in the calendar year in which the Gross−Up
Payment is to be made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes.
B. All determinations made pursuant to the foregoing paragraph shall be made by the Company's independent public accounting firm immediately prior to
the transaction resulting in the application of section 4999 of the Code or, if such firm continues to be retained by the Company or its successor to provide any
services whatsoever subsequent to such transaction, an independent public accounting firm selected by the Executive in the Executive's sole discretion (the
"Accounting Firm"), which firm shall provide its determination and any supporting calculations (the "Determination") both to the Company and to the Executive
within ten days of the date of the Executive's termination or any other date selected by the Executive or the Company. Within ten calendar days of the delivery of
the Determination to the Executive, the Executive shall have the right to dispute the Determination (the "Dispute"). The existence of any Dispute shall not in any
way affect the Executive's right to receive the Gross−Up Payments in accordance with the Determination. If there is no dispute, the Determination by the
Accounting Firm shall be final, binding and conclusive upon the Company and the Executive, subject to the application of Section 9C. All of the fees and
expenses of the Accounting Firm in performing the determinations referred to above shall be borne solely by the Company. Within five days after the Accounting
Firm's determination, the Company shall pay to the Executive the Gross−Up Payment, if any. If the Accounting Firm determines that no Excise Tax is payable by
the Executive, it will, at the same time as it makes such determination, furnish Executive with an opinion that the Executive has substantial authority not to report
any Excise Tax on his federal, state, local income or other tax return. The Company agrees to indemnify and hold harmless the Accounting Firm of and from any
and all claims, damages and expenses resulting from or relating to its determinations pursuant to this Section 9B, except for claims, damages or expenses
resulting from the gross negligence or willful misconduct of the Accounting Firm.
C. As a result of the uncertainty in the application of sections 4999 and 280G of the Code, it is possible that the Gross−Up Payments either will have been
made which should not have been made, or will not have been made which should have been made, by the Company (an "Excess Gross−Up Payment" or a
"Gross−Up Underpayment," respectively). If it is established pursuant to (1) a final determination of a court for which all appeals have been taken and finally
resolved or the time for all appeals has expired, or (2) an Internal Revenue Service (the "IRS") proceeding which has been finally and conclusively resolved, that
an Excess Gross−Up Payment has been made, such Gross−Up Excess Payment shall be deemed for all purposes to be a loan to the Executive made on the date
the Executive received the Excess Gross−Up Payment and the Executive shall repay the Excess Gross−Up Payment to the Company either (i) on demand, if the
Executive is in possession of the Excess Gross−Up Payment or (ii) upon the refund of such Excess Gross−Up Payment to the Executive from the IRS, if the IRS
is in possession of such Excess Gross−Up Payment, together with interest on the Excess Gross−Up Payment at (X) 120% of the applicable federal rate (as
defined in Section 1274(d) of the Code) compounded semi−annually for any period during which the Executive held such Excess Gross−Up Payment and (Y) the
interest rate paid to the Executive by the IRS in respect of any period during which the IRS held such Excess Gross−Up Payment. If it is determined (I) by the
Accounting Firm, the Company (which shall include the position taken by the Company, together with its consolidated group, on its federal income tax return) or
the IRS, (II) pursuant to a determination by a court, or (III) upon the resolution to the Executive's satisfaction of the Dispute, that a Gross−Up Underpayment has
occurred, the Company shall pay an amount equal to the Gross−Up Underpayment to the Executive within ten calendar days of such determination or resolution,
together with interest on such amount at 120% of the applicable federal rate compounded semi−annually from the date such amount should have been paid to the
Executive pursuant to the terms of this Agreement or otherwise, but for the operation of this Section 9C, until the date of payment.
10. Indemnification. The Executive shall be entitled to indemnification and insurance coverage for directors and officers liability, fiduciary liability and other
liabilities arising out of the Executive's position with the Company in any capacity for the period commencing on the Termination Date and ending on the third
anniversary of August 4, 2003, in an amount not less than the highest amount available to any other senior level executive or member of the Board and to the full
extent provided by the Company's certificate of incorporation or by−laws, and such coverage and protections, with respect to the various liabilities as to which
the Executive has been customarily indemnified prior to the Termination Date, shall continue for at least six years following the third anniversary of August 4,
2003. Any indemnification agreement entered into between the Company and the Executive shall continue in full force and effect in accordance with its terms
following the Termination Date.
11. Miscellaneous.
A. Notices. Any notice given pursuant to the Agreement to any party hereto shall be deemed to have been duly given when mailed by registered or certified
mail, return receipt requested, or by overnight courier, or when hand delivered as follows:
If to the Company:
The Sports Authority, Inc.
1050 West Hampden Avenue
Englewood, Colorado 80110
Attn: General Counsel
Telephone: (303) 200−5050
If to the Executive:
Martin E. Hanaka
or at such other address as either party shall from time to time designate by written notice, in the manner provided herein, to the other party hereto.
B. Successor. The Agreement shall be binding upon and inure to the benefit of the Parties, their respective heirs, successors and assigns.
C. Taxes. The Executive shall be responsible for the payment of any and all required federal, state, local and foreign taxes incurred, or to be incurred, in
connection with any amounts payable to the Executive under the Agreement. Notwithstanding any other provision of the Agreement, the Company may withhold
from amounts payable under the Agreement all federal, state, local and foreign taxes that are required to be withheld by applicable laws and regulations.
D. Severability. In the event that any provision of the Agreement is determined to be invalid or unenforceable, the remaining terms and conditions of the
Agreement shall be unaffected and shall remain in full force and effect. In addition, if any provision is determined to be invalid or unenforceable due to its
duration and/or scope, the duration and/or scope of such provision, as the case may be, shall be reduced, such reduction shall be to the smallest extent necessary
to comply with applicable law, and such provision shall be enforceable, in its reduced form, to the fullest extent permitted by applicable law.
E. Counterparts. The Agreement may be executed by one or more of the Parties hereto on any number of separate counterparts and all such counterparts
shall be deemed to be one and the same instrument. Each party hereto confirms that any facsimile copy of such party's executed counterpart of the Agreement (or
its signature page thereof) shall be deemed to be an executed original thereof.
F. Non−Admission. Nothing contained in the Agreement shall be deemed or construed as an admission of wrongdoing or liability on the part of the
Executive or on the part of the Company.
G. No Mitigation. The Executive shall not be required to mitigate the amount of any payment provided for pursuant to the Agreement by seeking other
employment and, to the extent that the Executive obtains or undertakes other employment, the payment will not be reduced by the earnings of the Executive from
the other employment.
H. Governing Law/Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the substantive and procedural laws of the
state of Delaware without regard to rules governing conflicts of law. Any controversy, claim or dispute arising out of or relating to this Agreement shall be
resolved by arbitration in New York, New York pursuant to then prevailing National Rules for the Resolution of Employment Disputes of the American
Arbitration Association.
IN WITNESS WHEREOF, the undersigned have executed the Agreement to be effective as of the date first written above.
THE SPORTS AUTHORITY, INC.
By:
Title: Chief Executive Officer
Date:
EXECUTIVE
Martin E. Hanaka
Date:
EXHIBIT A
[See attached]
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Exhibit 10.19
AGREEMENT
EXHIBIT A
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Exhibit 10.20
CONSULTING AGREEMENT
This CONSULTING AGREEMENT, effective as of December 30, 2003, is entered into by and between Martin E. Hanaka (the "Consultant") and The
Sports Authority, Inc., a Delaware corporation (the "Company").
WHEREAS, the Company deems it advisable to retain the Consultant to provide consulting and advisory services, and the Consultant is willing to provide
such services to the Company on the terms and conditions described herein.
IT IS, THEREFORE, AGREED:
1. Consulting Period. The "Consulting Period" shall begin upon and immediately following the termination of the Consultant's employment with the
Company pursuant to that certain Agreement, effective as of December 30, 2003, between him and the Company, such that the period during which Consultant is
"in the employ of, or providing services to, the Company" as contemplated in The Sports Authority, Inc., 2000 Stock Option and Stock Award Plan shall be
deemed to be continuous and with no interruption. The Consulting Period shall end on the earlier of (i) August 3, 2006 or (ii) the date this Agreement is
terminated pursuant to Section 5.
2.
Consulting Services and Relationship.
(a) Services. During the Consulting Period, the Consultant shall serve the Company by focusing on the cultural integration and the long−term
strategic growth of the Company, and the enhancement of the public reputation and image of the Company. The Consultant shall perform such
assignments in consultation with the chief executive officer of the Company (the "CEO"). In addition, the Consultant shall perform all other duties and
accept all other responsibilities incident to such position as may be reasonably assigned to the Consultant by the Board of Directors of the Company
(the "Board") with such duties and responsibilities to be carried out in consultation with the CEO. The services to be provided hereunder may be
performed at the Consultant's office located in Florida and it is understood that the Consultant's duties may involve reasonable travel by him,
including, without limitation, travel to the Company's offices in Englewood, Colorado. On such occasions that the Consultant is required to travel to
the Company's offices in Englewood, Colorado, the representative shall be provided with office accommodations located among the senior executive
officers of the Company.
(b) Relationship. The Consultant shall be an independent contractor, and neither the Consultant nor any of his employees, subcontractors or
agents shall be an employee of the Company, within the meaning of all federal, state and local laws and regulations governing employment insurance,
workers' compensation, industrial accident, labor and taxes. Neither the Consultant nor any of his employees, subcontractors or agents shall, by reason
of this Agreement, acquire any benefits, privileges or rights under any benefit plan operated by the Company or its subsidiaries or affiliates for the
benefit of their employees, including, without limitation, (i) any pension or profit−sharing plans or (ii) any plans providing medical, dental, disability
or life insurance protection. The Consultant and each of his employees, subcontractors or agents also agree to be bound by the Company's Code of
Conduct and Conflict of Interest Policy during the Consulting Period.
(c) Authority. Unless otherwise agreed by the Company and the Consultant in writing, during the Consulting Period, neither the Consultant nor
any representative thereof shall have the power or authority to enter into, execute agreements or other documents that are binding upon the Company
or have the authority to direct the operations of the Company, other than in his capacity as Chairman of the Board.
3. Compensation. During the Consulting Period, the Company shall compensate the Consultant at a rate of $100,000 per annum (the "Base Fee"), payable
in equal installments on the 15th day of each month (or the immediately preceding or following business day, if the 15th day of the month is not a business day)
during the Consulting Term.
4. Expenses. The Company shall reimburse the Consultant for all necessary and reasonable travel, entertainment and other business expenses incurred by
him in the performance of his duties hereunder in accordance with such reasonable procedures as the Company may adopt generally from time to time and as are
generally provided to the CEO, which the parties agree shall include first class airfare provided by paid upgrades, or upon an exception basis, as determined by
the Consultant.
5.
Events of Termination.
(a) Death. This Agreement shall terminate automatically upon the death of the Consultant.
(b) Notice. This Agreement may be terminated by the Consultant upon at least 30 days' written notice to the Company to such effect or by the
Company with "Cause" (as defined below).
As used in this Agreement, "Cause" shall mean a termination of the Consulting Period based upon:
(i)
misconduct by the Consultant or any of his employees to the material and demonstrable detriment of the Company;
(ii) the conviction (by a court of competent jurisdiction, not subject to further appeal) of, or pleading guilty to, a felony by the
Consultant;
(iii) the Consultant's continued and ongoing gross negligence in the performance of his duties and responsibilities to the Company as
described in this Agreement; or
(iv) the Consultant's material failure to perform his duties and responsibilities to the Company as described in this Agreement (other
than any such failure resulting from the Consultant's incapacity due to physical or mental illness), in either case after written notice from the
CEO to the Consultant of the specific nature of such material failure and the failure of the Consultant to cure such material failure within
thirty (30) days following receipt of such notice.
6. Obligations upon Termination. Upon termination of this Agreement pursuant to Section 5, the Consultant and the Company shall not have any further
obligation under this Agreement, except for the obligations of the Consultant under Sections 7 and 8 below.
7.
Non−Competition Covenant.
(a) During the Consulting Period, the Consultant shall not, directly or indirectly, become a consultant (including, but not limited to, through any
entity of which the Consultant is an employee, officer, director or advisor), employee, director or advisor of, or otherwise affiliated with, any retailer
or vendor of sporting goods, athletic footwear or athletic apparel which sells in the United States through any retail channel, including without
limitation, stores, catalogs, direct mail, the Internet, and commercial and/or institutional sales (unless (1) the sporting goods, athletic footwear and
athletic apparel sold by such retailer or vendor constitute less than 50% of the total sales by such retailer and its licensees in the United States during
the fiscal year of the Company immediately preceding the year of such termination, or (2) such retailer or vendor had sales totaling less than
$300,000,000 during the fiscal year of the Company immediately preceding the year of such termination and, in the case of a retailer, had less than
twenty (20) retail outlets in the United States at the end of such fiscal year, or (3) the classes of products sold by such retailer or vendor constitute less
than 10% of the total sales by the Company and its licensees in the United States during the fiscal year of the Company immediately preceding the
year of such termination).
(b) During the Consulting Period and for a period of two years thereafter, the Consultant shall not, directly or indirectly, solicit or hire or
encourage the solicitation or hiring of any person (other than Sheila Otto) who was an employee of the Company at any time on or after the date of
such termination (unless more than six months shall have elapsed between the last day of such person's employment by the Company and the first date
of such solicitation or hiring).
(c) For the two year period following the end of the Consulting period, the Consultant shall not, directly or indirectly, become a consultant
(including, but not limited to, through any entity of which the Consultant is an employee, officer, director or advisor), employee, director or advisor of,
or otherwise affiliated with, any retailer of sporting goods, athletic footwear or athletic apparel which sells in the United States through any retail
channel, including without limitation, stores, catalogs, direct mail, the Internet, and commercial and/or institutional sales (unless (1) the sporting
goods, athletic footwear and athletic apparel sold by such retailer constitute less than 50% of the total sales by such retailer and its licensees in the
United States during the fiscal year of the Company immediately preceding the year of such termination, or (2) such retailer had sales totaling less
than $300,000,000 during the fiscal year of the Company immediately preceding the year of such termination and, in the case of a retailer, had less
than twenty (20) retail outlets in the United States at the end of such fiscal year, or (3) the classes of products sold by such retailer constitute less than
10% of the total sales by the Company and its licensees in the United States during the fiscal year of the Company immediately preceding the year of
such termination).
8. Confidential Information. The Consultant shall not, without the written consent of the CEO, disclose to any person other than as required by law or
court order, any confidential information obtained by the Consultant while engaged by the Company, provided, however, that confidential information shall not
include any information known generally to the public (other than as a result of unauthorized disclosure by the Consultant) or any specific information or type of
information generally not considered confidential by persons engaged in the same business as the Company, or information disclosed by the Company by any
member of the Board or any other officer thereof to a third party without restrictions on the disclosure of such information.
9.
Successors.
(a) This Agreement shall not be assignable by the Consultant without the prior written consent of the Company.
(b) This Agreement shall inure to the benefit of and be binding upon the Company and its successors or assigns.
10. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without reference to principles of
conflict of laws. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement may not be
amended or modified otherwise than by a written agreement executed by the parties hereto or their respective successors or legal representatives.
(b) All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Consultant
Martin E. Hanaka
If to the Company
The Sports Authority, Inc.
1050 West Hampden Avenue
Englewood, Colorado 80110
Attn: General Counsel
Telephone: (303) 200−5050
or to such other address as either party shall have furnished to the other in accordance herewith. Notices and communications shall be effective when
actually received by the addressee.
(c) The invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provisions
of this Agreement.
(d) The failure of the Company at any time to enforce performance by the Consultant of any provisions of this Agreement shall in no way affect
the Company's rights thereafter to enforce the same, nor shall the waiver by the Company of any breach of any provision hereof be held to be a waiver
of any other breach of the same or any other provision.
(e) This Agreement contains the entire understanding of the Company and the Consultant with respect to the subject matter hereof, and
supersedes and renders null and void any previous agreements between them with respect thereto.
(f) The Company may withhold from any amounts payable under this Agreement such federal, state or local taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
[Signature page follows]
IN WITNESS WHEREOF, the Consultant and the Company have executed the Consulting Agreement to be effective as of the day and year first above
written.
THE SPORTS AUTHORITY, INC.
By:
Name: John Douglas Morton
Its: Chief Executive Officer
Date:
CONSULTANT
Martin E. Hanaka
Date:
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Exhibit 10.20
CONSULTING AGREEMENT
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Exhibit 10.21
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT (this "Agreement"), dated as of March 1, 2004, between The Sports Authority, Inc., a Delaware corporation (the
"Company") and the undersigned ("Indemnitee").
WHEREAS, Indemnitee is a director of the Company;
WHEREAS, the Amended and Restated Bylaws of the Company provide certain indemnification rights to the directors of the Company, and its directors
have been otherwise assured indemnification, as provided by Delaware law;
WHEREAS, in recognition of Indemnitee's need for substantial protection against personal liability in order to enhance Indemnitee's continued service to
the Company in an effective manner and Indemnitee's reliance on past assurances of indemnification, the Company wishes to provide in this Agreement for the
indemnification of and the advancing of expenses (whether partial or complete) to Indemnitee to the fullest extent permitted by law and as set forth in this
Agreement, and, to the extent insurance is maintained, for the continued coverage of Indemnitee under the Company's directors' and officers' liability insurance
policies;
NOW, THEREFORE, in consideration of the premises, the mutual covenants and agreements contained herein and Indemnitee's continuing to serve as a
director of the Company, the parties hereto agree as follows:
1. Agreement to Serve. Indemnitee hereby agrees to serve as a director of the Company or its subsidiaries for so long as Indemnitee is duly elected or
appointed. Indemnitee may, however, resign from such position at any time and for any reason by delivering Indemnitee's resignation pursuant to the Amended
and Restated Bylaws of the Company. The Company's obligation to indemnify Indemnitee as set forth in this Agreement shall continue in full force and effect
notwithstanding any such termination of appointment, resignation or dissolution.
2. Indemnity. The Company hereby agrees to hold harmless and indemnify Indemnitee with respect to Indemnitee's Corporate Status (as hereinafter
defined) to the full extent authorized or permitted by the Delaware General Corporation Law ("DGCL"), as such may be amended from time to time, and
Article VI of the Amended and Restated Bylaws of the Company, as such may be further amended from time to time. In furtherance of the foregoing, and
without limiting the generality thereof:
(a) Proceedings other than Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification provided
in this Section 2(a) if, by reason of Indemnitee's Corporate Status, Indemnitee is, or is threatened to be made, a party to or participant in any
Proceeding (as hereinafter defined) other than a Proceeding by or in the right of the Company. Pursuant to this Section 2(a), Indemnitee shall be
indemnified against all Expenses (as hereinafter defined), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred
by Indemnitee or on Indemnitee's behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith
and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal
Proceeding, had no reasonable cause to believe Indemnitee's conduct was unlawful.
(b) Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification provided in this Section 2(b) if,
by reason of Indemnitee's Corporate Status, Indemnitee is, or is threatened to be made, a party to or participant in any Proceeding brought by or in the
right of the Company to procure a judgment in its favor. Pursuant to this Section 2(b), Indemnitee shall be indemnified against all Expenses actually
and reasonably incurred by Indemnitee or on Indemnitee's behalf in connection with such Proceeding if Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company; provided, however, that, if applicable law so
provides, no indemnification against such Expenses shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee
shall have been finally adjudged to be liable to the Company unless and to the extent that the Court of Chancery of the State of Delaware shall
determine that such indemnification may be made.
3. Contribution in the Event of Joint Liability. (a) Whether or not the indemnification provided in Section 2 hereof is available, in respect of any
threatened, pending or completed action, suit or proceeding in which the Company is jointly liable with Indemnitee (or would be jointly liable if joined in such
action, suit or proceeding), the Company shall pay, in the first instance, the entire amount of any judgment or settlement of such action, suit or proceeding
without requiring Indemnitee to contribute to such payment, and the Company hereby waives and relinquishes any right of contribution it may have against
Indemnitee. The Company shall not enter into any settlement of any action, suit or proceeding in which the Company is jointly liable with Indemnitee (or would
be jointly liable if joined in such action, suit or proceeding) unless such settlement provides for a full and final release of all claims asserted against Indemnitee.
(b) Without diminishing or impairing the obligations of the Company set forth in the Section 3(a) hereof, if, for any reason, Indemnitee shall
elect or be required to pay all or any portion of any judgment or settlement in any threatened, pending or completed action, suit or proceeding in which
the Company is jointly liable with Indemnitee (or would be jointly liable if joined in such action, suit or proceeding), the Company shall contribute to
the amount of Expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred and paid or payable by Indemnitee in
proportion to the relative benefits received by the Company and all officers, directors or employees of the Company, other than Indemnitee, who are
jointly liable with Indemnitee (or would be jointly liable if joined in such action, suit or proceeding), on the one hand, and Indemnitee, on the other
hand, from the transaction from which such action, suit or proceeding arose; provided, however, that the proportion determined on the basis of relative
benefit may, to the extent necessary to conform to law, be further adjusted by reference to the relative fault of the Company and all officers, directors
or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be jointly liable if joined in such action, suit or
proceeding), on the one hand, and Indemnitee, on the other hand, in connection with the events that resulted in such Expenses, judgments, fines or
settlement amounts, as well as any other equitable considerations which the law may require to be considered. The relative fault of the Company and
all officers, directors or employees of the Company other than Indemnitee who are jointly liable with Indemnitee (or would be jointly liable if joined
in such action, suit or proceeding), on the one hand, and Indemnitee, on the other hand, shall be determined by reference to, among other things, the
degree to which their actions were motivated by intent to gain personal profit or advantage, the degree to which their liability is primary or secondary,
and the degree to which their conduct is active or passive.
(c) The Company hereby agrees to fully indemnify and hold Indemnitee harmless from any claims of contribution which may be brought by
officers, directors or employees of the Company against the Indemnitee who may be jointly liable with Indemnitee.
4. Indemnification for Expenses of a Witness. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of
Indemnitee's Corporate Status, a witness in any Proceeding to which Indemnitee is not a party, Indemnitee shall be indemnified against all Expenses actually and
reasonably incurred by Indemnitee or on Indemnitee's behalf in connection therewith but shall not be entitled to any fees for time spent in connection with
preparation for, travel to and from the Proceeding location and court time.
5. Advancement of Expenses. Notwithstanding any other provision of this Agreement, the Company shall advance all reasonable Expenses to be incurred
by or on behalf of Indemnitee in connection with any Proceeding by reason of Indemnitee's Corporate Status within ten days after the receipt by the Company of
a statement or statements from Indemnitee requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding.
Such statement or statements shall reasonably evidence the Expenses to be incurred by Indemnitee and shall include or be preceded or accompanied by an
undertaking by or on behalf of Indemnitee to repay any Expenses advanced if it shall ultimately be determined by the Company that Indemnitee is not entitled to
be indemnified against such Expenses. Any advances and undertakings to repay pursuant to this Section 5 shall be unsecured and interest free. Notwithstanding
the foregoing, the obligation of the Company to advance Expenses pursuant to this Section 5 shall be subject to the condition that, if, when and to the extent that
the Company determines that Indemnitee would not be permitted to be indemnified under applicable law, the Company shall be entitled to be reimbursed, within
30 days of such determination, by Indemnitee for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced or thereafter
commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any
determination made by the Company that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall
not be required to reimburse the Company for any advance of Expenses until a final judicial determination is made with respect thereto (as to which all rights of
appeal therefrom have been exhausted or lapsed).
6. Procedures and Presumptions for Determination of Entitlement to Indemnification. It is the intent of this Agreement to secure for Indemnitee rights of
indemnity that are as favorable as may be permitted under the law and public policy of the State of Delaware. Accordingly, the parties agree that the following
procedures and presumptions shall apply in the event of any question as to whether Indemnitee is entitled to indemnification under this Agreement:
(a) To obtain indemnification (including, but not limited to, the advancement of Expenses and contribution by the Company) under this
Agreement, Indemnitee shall submit to the President, any Senior Vice President or the General Counsel of the Company a written request, including
therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether
and to what extent Indemnitee is entitled to indemnification. The President, any Senior Vice President or the General Counsel of the Company shall,
promptly upon receipt of such a request for indemnification, advise the Board in writing that Indemnitee has requested indemnification.
(b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 6(a) hereof, a determination, if required by
applicable law, with respect to Indemnitee's entitlement thereto shall be made in the specific case by Independent Counsel in a written opinion unless
previously approved by a majority vote of the disinterested directors, even though less than a quorum.
(c) If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 6(b) hereof, the Independent
Counsel shall be selected as provided in this Section 6(c). The Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request
that such selection be made by the Board). Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection
shall have been given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, however, that such
objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of "Independent Counsel" as
defined in Section 13(e) of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and
timely objection, the person so selected shall act as Independent Counsel. If a written objection is made and substantiated, the Independent Counsel
selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without
merit. If, within 30 days after submission by Indemnitee of a written request for indemnification pursuant to Section 6(a) hereof, no Independent
Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Court of Chancery of the State of Delaware
or other court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the other's
selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the court or by such other person as the
court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel
under Section 6(b) hereof. The Company shall pay any and all reasonable fees and expenses of Independent Counsel incurred by such Independent
Counsel in connection with acting pursuant to Section 6(b) hereof, and the Company shall pay all reasonable fees and expenses incident to the
procedures of this Section 6(c), regardless of the manner in which such Independent Counsel was selected or appointed.
(d) In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such
determination shall presume (unless there is clear and convincing evidence to the contrary) that Indemnitee is entitled to indemnification under this
Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 6(a) of this Agreement.
(e) Indemnitee shall be deemed to have acted in good faith if Indemnitee's action is based on the records or books of account of the Company,
including financial statements, or on information supplied to Indemnitee by the officers of the Company in the course of their duties, or on the advice
of legal counsel for the Company or on information or records given or reports made to the Company by an independent certified public accountant,
by a financial advisor or by an appraiser or other expert selected with reasonable care by the Company. In addition, the knowledge and/or actions, or
failure to act, of any officer, director, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to
indemnification under this Agreement. Whether or not the foregoing provisions of this Section 6(e) are satisfied, it shall in any event be presumed
(unless there is clear and convincing evidence to the contrary) that Indemnitee has at all times acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests of the Company. For purposes of this Section 6(e), Company shall include the
Company and any of its subsidiaries.
(f) If the person, persons or entity empowered or selected under Section 6(b) to determine whether Indemnitee is entitled to indemnification
shall not have made a determination within 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to
indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent a prohibition of such
indemnification under applicable law; provided, however, that such 60 day period may be extended for a reasonable time, not to exceed an additional
15 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional
time for obtaining or evaluating documentation and/or information relating thereto.
(g) Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee's entitlement to
indemnification, including providing to such person, persons or entity, upon reasonable advance request, any documentation or information which is
not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination.
Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination under this Agreement of
Indemnitee's entitlement to indemnification. Any costs or expenses (including attorneys' fees and disbursements) incurred by Indemnitee in so
cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to
Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
7.
Remedies.
(a) In the event that (i) a determination is made pursuant to Section 6 of this Agreement that Indemnitee is not entitled to indemnification under
this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 5 of this Agreement, (iii) no determination of entitlement to
indemnification shall have been made pursuant to Section 6(b) of this Agreement within 90 days after receipt by the Company of the request for
indemnification, (iv) payment of indemnification is not made pursuant to this Agreement within ten days after receipt by the Company of a written
request therefor, or (v) payment of indemnification is not made within ten days after a determination has been made that Indemnitee is entitled to
indemnification or such determination is deemed to have been made pursuant to Section 6 of this Agreement, and such matter has not been cured,
Indemnitee shall be entitled to an adjudication in an appropriate court of the State of Delaware, or in any other court of competent jurisdiction, of his
entitlement to such indemnification. Indemnitee shall commence such proceeding seeking an adjudication within 180 days following the date on
which Indemnitee first has the right to commence such proceeding pursuant to this Section 7(a). The Company shall not oppose Indemnitee's right to
seek any such adjudication.
(b) In the event that a determination shall have been made pursuant to Section 6(b) of this Agreement that Indemnitee is not entitled to
indemnification, any judicial proceeding commenced pursuant to this Section 7 shall be conducted in all respects as a de novo trial, on the merits, and
Indemnitee shall not be prejudiced by reason of that adverse determination.
(c) If a determination shall have been made pursuant to Section 6(b) of this Agreement that Indemnitee is entitled to indemnification, the
Company shall be bound by such determination in any judicial proceeding commenced pursuant to this Section 7, absent a prohibition of such
indemnification under applicable law.
(d) In the event that Indemnitee, pursuant to this Section 7, seeks a judicial adjudication of Indemnitee's rights under, or to recover damages for
breach of, this Agreement, or to recover under any directors' and officers' liability insurance policies maintained by the Company, the Company shall
pay on Indemnitee's behalf, in advance, any and all expenses (of the types described in the definition of Expenses in Section 13 of this Agreement)
actually and reasonably incurred by Indemnitee in such judicial adjudication, regardless of whether Indemnitee ultimately is determined to be entitled
to such indemnification, advancement of expenses or insurance recovery.
(e) The Company shall be precluded from asserting in any judicial proceeding commenced pursuant to this Section 7 that the procedures and
presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court that the Company is bound by all the
provisions of this Agreement.
8.
Non−Exclusivity; Survival of Rights; Insurance; Subrogation.
(a) The rights of indemnification as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at
any time be entitled under applicable law, the Amended and Restated Certificate of Incorporation of the Company, the Amended and Restated Bylaws
of the Company, any agreement, a vote of stockholders or a resolution of directors, or otherwise. No amendment, alteration or repeal of this
Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by
Indemnitee in Indemnitee's Corporate Status prior to such amendment, alteration or repeal. To the extent that a change in the law, whether by statute or
judicial decision, permits greater indemnification than would be afforded currently under the Amended and Restated Certificate of Incorporation and
this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy, by this Agreement, the greater benefits so afforded by such change. No
right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of
any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.
(b) To the extent that the Company maintains an insurance policy or policies providing liability insurance for officers, directors, employees, or
agents or fiduciaries of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise which such
person serves at the request of the Company, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the
maximum extent of the coverage available for Indemnitee under such policy or policies.
(c) In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee, who shall execute all papers required and take all action necessary to secure such rights, including execution of such
documents as are necessary to enable the Company to bring suit to enforce such rights.
(d) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the
extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise.
9. Exception to Right of Indemnification. Notwithstanding any other provision of this Agreement, Indemnitee shall not be entitled to indemnification
under this Agreement with respect to any Proceeding brought by Indemnitee, or any claim therein, unless (a) the bringing of such Proceeding or making of such
claim shall have been approved by the Board or (b) such Proceeding is being brought by Indemnitee to assert Indemnitee's rights under this Agreement.
10. Duration of Agreement. All agreements and obligations of the Company contained herein shall continue during the period Indemnitee is serving as a
director of the Company (or is or was serving at the request of the Company as an officer, director, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise) and shall continue thereafter so long as Indemnitee shall be subject to any Proceeding (or any proceeding commenced under
Section 7 hereof) by reason of Indemnitee's Corporate Status, whether or not Indemnitee is acting or serving in any such capacity at the time any liability or
expense is incurred for which indemnification can be provided under this Agreement. This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all
or substantially all of the business or assets of the Company), assigns, spouses, heirs, executors and personal and legal representatives. This Agreement shall
continue in effect regardless of whether Indemnitee continues to serve as a director of the Company or any other enterprise at the Company's request.
11. Security. To the extent requested by Indemnitee and approved by the Board, the Company may at any time and from time to time provide security to
Indemnitee for the Company's obligations hereunder through an irrevocable bank line of credit, funded trust or other collateral. Any such security, once provided
to Indemnitee, may not be revoked or released without the prior written consent of Indemnitee.
12. Enforcement.
(a) The Company expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in
order to induce Indemnitee to serve as a director of the Company, as applicable, and the Company acknowledges that Indemnitee is relying upon this
Agreement in serving as a director of the Company.
(b) This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior
agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof.
13. Definitions. For purposes of this Agreement:
(a) "Corporate Status" describes the status of a person who is or was an officer or director of the Company or any of its subsidiaries.
(b) "Disinterested Director" means a director of the Company who is not and was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee.
(c) "Expenses" shall include all reasonable attorneys' fees, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, participating, or being or preparing to
be a witness in a Proceeding.
(d) "Independent Counsel" means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently
is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such party (other than with
respect to matters concerning Indemnitee under this Agreement), or (ii) any other party to the Proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term "Independent Counsel" shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine
Indemnitee's rights under this Agreement. The Company agrees to pay the reasonable fees of the Independent Counsel referred to above and to fully
indemnify such counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement
pursuant hereto.
(e) "Proceeding" includes any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation,
inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought by or in the right of the Company or
otherwise and whether civil, criminal, administrative or investigative, in which Indemnitee was, is or will be involved as a party or otherwise, by
reason of the fact that Indemnitee is a director of the Company, by reason of any action taken by Indemnitee or of any inaction on Indemnitee's part
while serving as a director of the Company or by reason of the fact that Indemnitee is or was serving at the request of the Company as an officer,
director, employee, consultant, fiduciary or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, in
each case whether or not Indemnitee is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification
can be provided under this Agreement, and excluding one initiated by Indemnitee pursuant to Section 7 of this Agreement to enforce Indemnitee's
rights under this Agreement.
14. Severability. If any provision or provisions of this Agreement shall be held by a court of competent jurisdiction to be invalid, void, illegal or otherwise
unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation,
each portion of any section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law; and (b) to the fullest
extent possible, the provisions of this Agreement (including, without limitation, each portion of any section of this Agreement containing any such provision held
to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby.
15. Modification and Waiver. No supplement, modification, termination or amendment of this Agreement shall be binding unless executed in writing by
the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or
not similar), nor shall such waiver constitute a continuing waiver.
16. Notice by Indemnitees. Indemnitee agrees promptly to notify the Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to indemnification covered hereunder. The
failure to so notify the Company shall not relieve the Company of any obligation which it may have to Indemnitee under this Agreement or otherwise.
17. Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or on behalf of the Company or any affiliate of the
Company against Indemnitee, Indemnitee's spouse, heirs, assigns or personal or legal representatives after the expiration two years from the date or accrual of
such cause of action, and to the fullest extent permitted by applicable law, any claim or cause of action of the Company or its affiliate shall be extinguished and
deemed released unless asserted by the timely filing of a legal action within such two year period; provided, however, that if any shorter period of limitations is
otherwise applicable to any such cause of action, such shorter period shall govern unless a longer period is required by applicable law.
20. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given if
(i) delivered by and receipted for by the party to whom said notice or other communication shall have been directed, (ii) sent by nationally recognized overnight
courier or (iii) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed:
(a)
If to Indemnitee, to the address set forth on the signature page of this Agreement.
(b)
If to the Company, to its principal executive offices at:
The Sports Authority, Inc.
1050 West Hampden Avenue
Englewood, CO 80110
Attn: General Counsel
or to such other address as may have been furnished to Indemnitees by the Company or to the Company by Indemnitee, as the case may be.
21. Identical Counterparts. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original
but all of which together shall constitute one and the same Agreement. Only one such counterpart signed by the party against whom enforceability is sought
needs to be produced to evidence the existence of this Agreement.
22. Headings. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
23. Governing Law. The parties agree that this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of
Delaware, without application of the conflict of laws principles thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
THE SPORTS AUTHORITY, INC.
By
Name:
Title:
INDEMNITEE
By
Name:
Address:
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Exhibit 10.21
INDEMNIFICATION AGREEMENT
J. Douglas Morton
CEO and President
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Exhibit 10.22
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT (this "Agreement"), dated as of March 1, 2004, between The Sports Authority, Inc., a Delaware corporation (the
"Company") and the undersigned ("Indemnitee").
WHEREAS, Indemnitee is an officer of the Company;
WHEREAS, the Amended and Restated Bylaws of the Company provide certain indemnification rights to the officers of the Company, and its officers have
been otherwise assured indemnification, as provided by Delaware law;
WHEREAS, in recognition of Indemnitee's need for substantial protection against personal liability in order to enhance Indemnitee's continued service to
the Company in an effective manner and Indemnitee's reliance on past assurances of indemnification, the Company wishes to provide in this Agreement for the
indemnification of and the advancing of expenses (whether partial or complete) to Indemnitee to the fullest extent permitted by law and as set forth in this
Agreement, and, to the extent insurance is maintained, for the continued coverage of Indemnitee under the Company's directors' and officers' liability insurance
policies;
NOW, THEREFORE, in consideration of the premises, the mutual covenants and agreements contained herein and Indemnitee's continuing to serve as an
officer of the Company, the parties hereto agree as follows:
1. Agreement to Serve. Indemnitee hereby agrees to serve as an officer of the Company or its subsidiaries for so long as Indemnitee is duly elected or
appointed. Indemnitee may, however, resign from such position at any time and for any reason by delivering Indemnitee's resignation pursuant to the Amended
and Restated Bylaws of the Company. The Company's obligation to indemnify Indemnitee as set forth in this Agreement shall continue in full force and effect
notwithstanding any such termination of appointment, resignation or dissolution.
2. Indemnity. The Company hereby agrees to hold harmless and indemnify Indemnitee with respect to Indemnitee's Corporate Status (as hereinafter
defined) to the full extent authorized or permitted by the Delaware General Corporation Law ("DGCL"), as such may be amended from time to time, and
Article VI of the Amended and Restated Bylaws of the Company, as such may be further amended from time to time. In furtherance of the foregoing, and
without limiting the generality thereof:
(a) Proceedings other than Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification provided
in this Section 2(a) if, by reason of Indemnitee's Corporate Status, Indemnitee is, or is threatened to be made, a party to or participant in any
Proceeding (as hereinafter defined) other than a Proceeding by or in the right of the Company. Pursuant to this Section 2(a), Indemnitee shall be
indemnified against all Expenses (as hereinafter defined), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred
by Indemnitee or on Indemnitee's behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith
and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal
Proceeding, had no reasonable cause to believe Indemnitee's conduct was unlawful.
(b) Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification provided in this Section 2(b) if,
by reason of Indemnitee's Corporate Status, Indemnitee is, or is threatened to be made, a party to or participant in any Proceeding brought by or in the
right of the Company to procure a judgment in its favor. Pursuant to this Section 2(b), Indemnitee shall be indemnified against all Expenses actually
and reasonably incurred by Indemnitee or on Indemnitee's behalf in connection with such Proceeding if Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company; provided, however, that, if applicable law so
provides, no indemnification against such Expenses shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee
shall have been finally adjudged to be liable to the Company unless and to the extent that the Court of Chancery of the State of Delaware shall
determine that such indemnification may be made.
3. Contribution in the Event of Joint Liability. (a) Whether or not the indemnification provided in Section 2 hereof is available, in respect of any
threatened, pending or completed action, suit or proceeding in which the Company is jointly liable with Indemnitee (or would be jointly liable if joined in such
action, suit or proceeding), the Company shall pay, in the first instance, the entire amount of any judgment or settlement of such action, suit or proceeding
without requiring Indemnitee to contribute to such payment, and the Company hereby waives and relinquishes any right of contribution it may have against
Indemnitee. The Company shall not enter into any settlement of any action, suit or proceeding in which the Company is jointly liable with Indemnitee (or would
be jointly liable if joined in such action, suit or proceeding) unless such settlement provides for a full and final release of all claims asserted against Indemnitee.
(b) Without diminishing or impairing the obligations of the Company set forth in the Section 3(a) hereof, if, for any reason, Indemnitee shall
elect or be required to pay all or any portion of any judgment or settlement in any threatened, pending or completed action, suit or proceeding in which
the Company is jointly liable with Indemnitee (or would be jointly liable if joined in such action, suit or proceeding), the Company shall contribute to
the amount of Expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred and paid or payable by Indemnitee in
proportion to the relative benefits received by the Company and all officers, directors or employees of the Company, other than Indemnitee, who are
jointly liable with Indemnitee (or would be jointly liable if joined in such action, suit or proceeding), on the one hand, and Indemnitee, on the other
hand, from the transaction from which such action, suit or proceeding arose; provided, however, that the proportion determined on the basis of relative
benefit may, to the extent necessary to conform to law, be further adjusted by reference to the relative fault of the Company and all officers, directors
or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be jointly liable if joined in such action, suit or
proceeding), on the one hand, and Indemnitee, on the other hand, in connection with the events that resulted in such Expenses, judgments, fines or
settlement amounts, as well as any other equitable considerations which the law may require to be considered. The relative fault of the Company and
all officers, directors or employees of the Company other than Indemnitee who are jointly liable with Indemnitee (or would be jointly liable if joined
in such action, suit or proceeding), on the one hand, and Indemnitee, on the other hand, shall be determined by reference to, among other things, the
degree to which their actions were motivated by intent to gain personal profit or advantage, the degree to which their liability is primary or secondary,
and the degree to which their conduct is active or passive.
(c) The Company hereby agrees to fully indemnify and hold Indemnitee harmless from any claims of contribution which may be brought by
officers, directors or employees of the Company against the Indemnitee who may be jointly liable with Indemnitee.
4. Indemnification for Expenses of a Witness. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of
Indemnitee's Corporate Status, a witness in any Proceeding to which Indemnitee is not a party, Indemnitee shall be indemnified against all Expenses actually and
reasonably incurred by Indemnitee or on Indemnitee's behalf in connection therewith but shall not be entitled to any fees for time spent in connection with
preparation for, travel to and from the Proceeding location and court time.
5. Advancement of Expenses. Notwithstanding any other provision of this Agreement, the Company shall advance all reasonable Expenses to be incurred
by or on behalf of Indemnitee in connection with any Proceeding by reason of Indemnitee's Corporate Status within ten days after the receipt by the Company of
a statement or statements from Indemnitee requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding.
Such statement or statements shall reasonably evidence the Expenses to be incurred by Indemnitee and shall include or be preceded or accompanied by an
undertaking by or on behalf of Indemnitee to repay any Expenses advanced if it shall ultimately be determined by the Company that Indemnitee is not entitled to
be indemnified against such Expenses. Any advances and undertakings to repay pursuant to this Section 5 shall be unsecured and interest free. Notwithstanding
the foregoing, the obligation of the Company to advance Expenses pursuant to this Section 5 shall be subject to the condition that, if, when and to the extent that
the Company determines that Indemnitee would not be permitted to be indemnified under applicable law, the Company shall be entitled to be reimbursed, within
30 days of such determination, by Indemnitee for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced or thereafter
commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any
determination made by the Company that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall
not be required to reimburse the Company for any advance of Expenses until a final judicial determination is made with respect thereto (as to which all rights of
appeal therefrom have been exhausted or lapsed).
6. Procedures and Presumptions for Determination of Entitlement to Indemnification. It is the intent of this Agreement to secure for Indemnitee rights of
indemnity that are as favorable as may be permitted under the law and public policy of the State of Delaware. Accordingly, the parties agree that the following
procedures and presumptions shall apply in the event of any question as to whether Indemnitee is entitled to indemnification under this Agreement:
(a) To obtain indemnification (including, but not limited to, the advancement of Expenses and contribution by the Company) under this
Agreement, Indemnitee shall submit to the President, any Senior Vice President or the General Counsel of the Company a written request, including
therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether
and to what extent Indemnitee is entitled to indemnification. The President, any Senior Vice President or the General Counsel of the Company shall,
promptly upon receipt of such a request for indemnification, advise the Board in writing that Indemnitee has requested indemnification.
(b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 6(a) hereof, a determination, if required by
applicable law, with respect to Indemnitee's entitlement thereto shall be made in the specific case by Independent Counsel in a written opinion unless
previously approved by a majority vote of the disinterested directors, even though less than a quorum.
(c) If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 6(b) hereof, the Independent
Counsel shall be selected as provided in this Section 6(c). The Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request
that such selection be made by the Board). Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection
shall have been given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, however, that such
objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of "Independent Counsel" as
defined in Section 13(e) of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and
timely objection, the person so selected shall act as Independent Counsel. If a written objection is made and substantiated, the Independent Counsel
selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without
merit. If, within 30 days after submission by Indemnitee of a written request for indemnification pursuant to Section 6(a) hereof, no Independent
Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Court of Chancery of the State of Delaware
or other court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the other's
selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the court or by such other person as the
court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel
under Section 6(b) hereof. The Company shall pay any and all reasonable fees and expenses of Independent Counsel incurred by such Independent
Counsel in connection with acting pursuant to Section 6(b) hereof, and the Company shall pay all reasonable fees and expenses incident to the
procedures of this Section 6(c), regardless of the manner in which such Independent Counsel was selected or appointed.
(d) In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such
determination shall presume (unless there is clear and convincing evidence to the contrary) that Indemnitee is entitled to indemnification under this
Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 6(a) of this Agreement.
(e) Indemnitee shall be deemed to have acted in good faith if Indemnitee's action is based on the records or books of account of the Company,
including financial statements, or on information supplied to Indemnitee by the officers of the Company in the course of their duties, or on the advice
of legal counsel for the Company or on information or records given or reports made to the Company by an independent certified public accountant,
by a financial advisor or by an appraiser or other expert selected with reasonable care by the Company. In addition, the knowledge and/or actions, or
failure to act, of any officer, director, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to
indemnification under this Agreement. Whether or not the foregoing provisions of this Section 6(e) are satisfied, it shall in any event be presumed
(unless there is clear and convincing evidence to the contrary) that Indemnitee has at all times acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests of the Company. For purposes of this Section 6(e), Company shall include the
Company and any of its subsidiaries.
(f) If the person, persons or entity empowered or selected under Section 6(b) to determine whether Indemnitee is entitled to indemnification
shall not have made a determination within 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to
indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent a prohibition of such
indemnification under applicable law; provided, however, that such 60 day period may be extended for a reasonable time, not to exceed an additional
15 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional
time for obtaining or evaluating documentation and/or information relating thereto.
(g) Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee's entitlement to
indemnification, including providing to such person, persons or entity, upon reasonable advance request, any documentation or information which is
not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination.
Any Independent Counsel or member of the Board shall act reasonably and in good faith in making a determination under this Agreement of
Indemnitee's entitlement to indemnification. Any costs or expenses (including attorneys' fees and disbursements) incurred by Indemnitee in so
cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to
Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
7.
Remedies.
(a) In the event that (i) a determination is made pursuant to Section 6 of this Agreement that Indemnitee is not entitled to indemnification under
this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 5 of this Agreement, (iii) no determination of entitlement to
indemnification shall have been made pursuant to Section 6(b) of this Agreement within 90 days after receipt by the Company of the request for
indemnification, (iv) payment of indemnification is not made pursuant to this Agreement within ten days after receipt by the Company of a written
request therefor, or (v) payment of indemnification is not made within ten days after a determination has been made that Indemnitee is entitled to
indemnification or such determination is deemed to have been made pursuant to Section 6 of this Agreement, and such matter has not been cured,
Indemnitee shall be entitled to an adjudication in an appropriate court of the State of Delaware, or in any other court of competent jurisdiction, of his
entitlement to such indemnification. Indemnitee shall commence such proceeding seeking an adjudication within 180 days following the date on
which Indemnitee first has the right to commence such proceeding pursuant to this Section 7(a). The Company shall not oppose Indemnitee's right to
seek any such adjudication.
(b) In the event that a determination shall have been made pursuant to Section 6(b) of this Agreement that Indemnitee is not entitled to
indemnification, any judicial proceeding commenced pursuant to this Section 7 shall be conducted in all respects as a de novo trial, on the merits, and
Indemnitee shall not be prejudiced by reason of that adverse determination.
(c) If a determination shall have been made pursuant to Section 6(b) of this Agreement that Indemnitee is entitled to indemnification, the
Company shall be bound by such determination in any judicial proceeding commenced pursuant to this Section 7, absent a prohibition of such
indemnification under applicable law.
(d) In the event that Indemnitee, pursuant to this Section 7, seeks a judicial adjudication of Indemnitee's rights under, or to recover damages for
breach of, this Agreement, or to recover under any directors' and officers' liability insurance policies maintained by the Company, the Company shall
pay on Indemnitee's behalf, in advance, any and all expenses (of the types described in the definition of Expenses in Section 13 of this Agreement)
actually and reasonably incurred by Indemnitee in such judicial adjudication, regardless of whether Indemnitee ultimately is determined to be entitled
to such indemnification, advancement of expenses or insurance recovery.
(e) The Company shall be precluded from asserting in any judicial proceeding commenced pursuant to this Section 7 that the procedures and
presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court that the Company is bound by all the
provisions of this Agreement.
8.
Non−Exclusivity; Survival of Rights; Insurance; Subrogation.
(a) The rights of indemnification as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at
any time be entitled under applicable law, the Amended and Restated Certificate of Incorporation of the Company, the Amended and Restated Bylaws
of the Company, any agreement, a vote of stockholders or a resolution of directors, or otherwise. No amendment, alteration or repeal of this
Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by
Indemnitee in Indemnitee's Corporate Status prior to such amendment, alteration or repeal. To the extent that a change in the law, whether by statute or
judicial decision, permits greater indemnification than would be afforded currently under the Amended and Restated Certificate of Incorporation and
this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy, by this Agreement, the greater benefits so afforded by such change. No
right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of
any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.
(b) To the extent that the Company maintains an insurance policy or policies providing liability insurance for officers, directors, employees, or
agents or fiduciaries of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise which such
person serves at the request of the Company, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the
maximum extent of the coverage available for Indemnitee under such policy or policies.
(c) In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee, who shall execute all papers required and take all action necessary to secure such rights, including execution of such
documents as are necessary to enable the Company to bring suit to enforce such rights.
(d) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the
extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise.
9. Exception to Right of Indemnification. Notwithstanding any other provision of this Agreement, Indemnitee shall not be entitled to indemnification
under this Agreement with respect to any Proceeding brought by Indemnitee, or any claim therein, unless (a) the bringing of such Proceeding or making of such
claim shall have been approved by the Board or (b) such Proceeding is being brought by Indemnitee to assert Indemnitee's rights under this Agreement.
10. Duration of Agreement. All agreements and obligations of the Company contained herein shall continue during the period Indemnitee is serving as an
officer of the Company (or is or was serving at the request of the Company as an officer, director, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise) and shall continue thereafter so long as Indemnitee shall be subject to any Proceeding (or any proceeding commenced under
Section 7 hereof) by reason of Indemnitee's Corporate Status, whether or not Indemnitee is acting or serving in any such capacity at the time any liability or
expense is incurred for which indemnification can be provided under this Agreement. This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all
or substantially all of the business or assets of the Company), assigns, spouses, heirs, executors and personal and legal representatives. This Agreement shall
continue in effect regardless of whether Indemnitee continues to serve as an officer of the Company or any other enterprise at the Company's request.
11. Security. To the extent requested by Indemnitee and approved by the Board, the Company may at any time and from time to time provide security to
Indemnitee for the Company's obligations hereunder through an irrevocable bank line of credit, funded trust or other collateral. Any such security, once provided
to Indemnitee, may not be revoked or released without the prior written consent of Indemnitee.
12. Enforcement.
(a) The Company expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in
order to induce Indemnitee to serve as an officer of the Company, as applicable, and the Company acknowledges that Indemnitee is relying upon this
Agreement in serving as an officer of the Company.
(b) This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior
agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof.
13. Definitions. For purposes of this Agreement:
(a) "Corporate Status" describes the status of a person who is or was an officer or director of the Company or any of its subsidiaries.
(b) "Disinterested Director" means a director of the Company who is not and was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee.
(c) "Expenses" shall include all reasonable attorneys' fees, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, participating, or being or preparing to
be a witness in a Proceeding.
(d) "Independent Counsel" means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently
is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such party (other than with
respect to matters concerning Indemnitee under this Agreement), or (ii) any other party to the Proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term "Independent Counsel" shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine
Indemnitee's rights under this Agreement. The Company agrees to pay the reasonable fees of the Independent Counsel referred to above and to fully
indemnify such counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement
pursuant hereto.
(e) "Proceeding" includes any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation,
inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought by or in the right of the Company or
otherwise and whether civil, criminal, administrative or investigative, in which Indemnitee was, is or will be involved as a party or otherwise, by
reason of the fact that Indemnitee is an officer of the Company, by reason of any action taken by Indemnitee or of any inaction on Indemnitee's part
while serving as an officer of the Company or by reason of the fact that Indemnitee is or was serving at the request of the Company as an officer,
director, employee, consultant, fiduciary or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, in
each case whether or not Indemnitee is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification
can be provided under this Agreement, and excluding one initiated by Indemnitee pursuant to Section 7 of this Agreement to enforce Indemnitee's
rights under this Agreement.
14. Severability. If any provision or provisions of this Agreement shall be held by a court of competent jurisdiction to be invalid, void, illegal or otherwise
unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation,
each portion of any section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law; and (b) to the fullest
extent possible, the provisions of this Agreement (including, without limitation, each portion of any section of this Agreement containing any such provision held
to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby.
15. Modification and Waiver. No supplement, modification, termination or amendment of this Agreement shall be binding unless executed in writing by
the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or
not similar), nor shall such waiver constitute a continuing waiver.
16. Notice by Indemnitees. Indemnitee agrees promptly to notify the Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to indemnification covered hereunder. The
failure to so notify the Company shall not relieve the Company of any obligation which it may have to Indemnitee under this Agreement or otherwise.
17. Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or on behalf of the Company or any affiliate of the
Company against Indemnitee, Indemnitee's spouse, heirs, assigns or personal or legal representatives after the expiration two years from the date or accrual of
such cause of action, and to the fullest extent permitted by applicable law, any claim or cause of action of the Company or its affiliate shall be extinguished and
deemed released unless asserted by the timely filing of a legal action within such two year period; provided, however, that if any shorter period of limitations is
otherwise applicable to any such cause of action, such shorter period shall govern unless a longer period is required by applicable law.
20. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given if
(i) delivered by and receipted for by the party to whom said notice or other communication shall have been directed, (ii) sent by nationally recognized overnight
courier or (iii) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed:
(a) If to Indemnitee, to the address set forth on the signature page of this Agreement.
(b) If to the Company, to its principal executive offices at:
The Sports Authority, Inc.
1050 West Hampden Avenue
Englewood, CO 80110
Attn: General Counsel
or to such other address as may have been furnished to Indemnitees by the Company or to the Company by Indemnitee, as the case may be.
21. Identical Counterparts. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original
but all of which together shall constitute one and the same Agreement. Only one such counterpart signed by the party against whom enforceability is sought
needs to be produced to evidence the existence of this Agreement.
22. Headings. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
23. Governing Law. The parties agree that this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of
Delaware, without application of the conflict of laws principles thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
THE SPORTS AUTHORITY, INC.
By
Name:
Title:
INDEMNITEE
By
Name:
Address:
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Exhibit 10.22
INDEMNIFICATION AGREEMENT
J. Douglas Morton
CEO and President
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Exhibit 10.23
nd
2 Half 2003
Sports Authority Company Bonus Plan
I.
Purpose
To provide a financial incentive and reward for you and other key management associates, this reward is based upon achievement of the company's 2 nd Half
2003 combined company "pre−tax" results (excluding integration costs). The 100% Bonus "Target" has been set at $46.888 million of pre−tax earnings for the
last two fiscal quarters of 2003 (excluding integration costs; equivalent to a full year EPS of $1.94) for the fiscal period from August 4, 2003 through January 31,
2004.
II. Eligibility
To be eligible to receive a bonus payment, you must be actively employed on the earlier of either (a) the date bonus payment checks are cut or (b) April 1,
2004, and be included on the bonus eligible list as approved by the Compensation Committee of the Board of Directors. If your employment with the Sports
Authority should terminate for any reason prior to the earlier of (a) or (b), you will forfeit your eligibility to receive any bonus payout. Salaried associates hired
after 11/1/03 are not eligible to participate in the 2 nd Half 2003 Bonus Plan (associates hired during the third quarter up until this 11/01/03 date will receive a
pro−rata bonus payout). Each eligible associate will receive written confirmation of their eligibility to receive payments under this plan.
III. Bonus Calculation
Target bonus percentages will vary based upon position level in the company. Your targeted bonus payment at 100% of the Pre−tax Earnings goal
($46.888 million) equals a specified percentage of your base salary earnings for the period from August 4, 2003 through January 31, 2004. Individuals who
participate in the plan on a partial year basis, due to the date of hire into the company or an internal promotion to a bonus eligible position, will be eligible to
receive a prorated amount based on eligibility date.
Under the 2nd Half 2003 Bonus Plan, a bonus payment will begin at 83% ($38,914 million—pre−tax earnings) of the targeted Pre−tax Earnings goal of
$46.888 million. If the company achieves this minimum level, you will be entitled to receive a specified percentage of the targeted bonus payment for which you
are eligible. Your earned bonus will increase as our Pre−tax Earnings results improve. The exciting news is that should the company performance exceed 100%
of the Pre−tax Earnings goal, the plan will pay bonuses based upon a scale approved by the Compensation Committee with no limitation on the maximum level.
Example of a bonus payment calculation is detailed below:
IV.
Associate's salary full−year
$
100,000
Associate's salary for the 2 nd half of 2003
Bonus Rate for the Associate
$
50,000
40%
2nd Half 2003 Bonus Award based on achieving the 100% earnings target
$
20,000
Payment of Bonus
Your bonus, if any, will be payable following completion of the audited financial results of the company through the end of the fiscal month of
January 2004. You may expect payment of any bonus amount earned on or about April 1, 2004.
V.
Plan Criteria
The 2nd Half 2003 Bonus Plan is predicated on the approval of the operating numbers submitted for the period covered by the plan. The Board of Directors
reserves the right to adjust the 2 nd Half 2003 goals for any reason to accomplish the best interests of the company. The Board of Directors may continue, alter,
suspend, or amend the plan in future years.
The Board of Directors shall have absolute discretion to review actual reserve usage, as well as other extraordinary items during this period and adjust actual
results to more accurately reflect true operating performance. Any bonus paid must be fully funded from operating results generated during the period covered by
the plan. Also, special extraordinary items shall be taken into account at the discretion of the Board of Directors.
Finally, no bonus will be paid if the company is in default of any bank covenant pursuant to the bank financing arrangements in existence at the time the
Bonus Plan receives approval from the Board of Directors.
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Exhibit 10.23
nd
2 Half 2003 Sports Authority Company Bonus Plan
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Exhibit 10.24
Integration Bonus Plan
Integration Bonus Plan adopted August 5, 2003 by the Compensation Committee of the Board of Directors of Registrant providing for one−half of the
annual bonus payout based on the previous year's bonus formulas and assuming that 100% of the target goals had been met. This bonus was paid to former Gart
Sports Company employees.
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Exhibit 10.24
Integration Bonus Plan
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Exhibit 10.25
2003 EXECUTIVE INCENTIVE PLAN
This document contains the terms and conditions of the Fiscal Year 2003 Executive Incentive Plan (hereinafter called the "Plan") of The Sports Authority
(hereinafter called the "Company") effective February 2, 2003.
I.
Objectives
The objectives of the Executive Incentive Plan are to:
A.
improve Company and individual performance through annual financial incentives which provide rewards to executives whose activities significantly
affect the Company's growth and profitability;
B.
support the Company's planning efforts and encourage cooperation and group effort towards the attainment of business goals;
C.
help attract and retain outstanding executives.
II. Eligibility
Eligibility under the Plan is limited to Executives as approved annually by the Chief Executive Officer of the Company and the Board of Directors. The
following positions are eligible under the 2003 Executive Incentive Plan:
Chairman & CEO
President & Chief Merchandising Officer
Vice Chairman & Chief Administrative Officer
Executive Vice President—Store Operations
See Section VI "Administration" for further eligibility information.
Total Incentive Target Opportunities
All amounts are expressed as a percentage of assigned salary grade midpoint for FY2003.
Grade
Target
%
76
77
79
50%
55%
70%
III. Performance Criteria
The performance criteria used under the Plan for determining annual incentive awards will be based on corporate measures as approved by the Board of
Directors. Performance Criteria and their weighting for the Plan are:
Performance Criteria
Actual pre−tax Earnings per Share (EPS) for Fiscal Year 2003 vs. Budgeted pre−tax EPS Fiscal Year 2003
Actual Comp Sales for Fiscal 2003 vs. Budgeted Comp Sales for Fiscal 2003
(Shrink)
Weight
80%
10%
10%
A matrix displaying the target, as well as the minimum and maximum attainment as a percentage of the target, is included as Appendix 1.
For the Plan to be funded the Company must achieve the EPS Threshold.
IV.
Determination of Awards
After the close of the fiscal business plan year a determination of awards will be made.
V. Payment of Awards
Awards will be paid as soon as practical following the end of the fiscal business year. Incentive payments will be made through payroll, less legally required
and voluntary deductions.
VI. Administration
A.
Newly eligible participants will receive pro−rated payments, based on full months of participation. Participants transferring to an ineligible position
within The Sports Authority may be considered for a pro−rata award for that portion of the year in which he or she was functioning in an eligible
position for the incentive award.
B.
A participant's 2003 annual performance rating must be above 2.50 to be eligible for the Plan.
C.
The Participant must be an active employee of The Sports Authority on the date on which incentive payments are made, and not have given notice of
intention to resign from The Sports Authority, to be eligible to receive payment.
D.
A participant whose employment with the Company is terminated due to retirement, permanent disability or death will be eligible for a pro−rated
share, based on the full weeks worked in the fiscal year in which such termination occurred. Such payment will be calculated and paid at the same
time as all other payments under the Plan are calculated and paid.
E.
A participant whose employment is terminated for any reason other than retirement, permanent disability or death will not be eligible for an incentive
award for the fiscal year in which his/her service is terminated. Additionally, such terminating employee will not be eligible for payment of an
incentive award for any prior fiscal year when notice of termination is given by the employee prior to such time as awards for that prior year are paid.
In the case of death, the payment will be made to the participant's estate.
F.
Time in Position, expressed in full weeks, will be used to prorate payments of newly eligible/hired employees. Plan calculations will be done based on
Time in Position report generated from the Payroll/HR system. Changes to these calculations will be made only in exceptional circumstances, when it
can be demonstrated that there is a bona fide reason the system is incorrect. Appeals of calculations can be addressed to the Senior Vice President,
Human Resources.
G.
Leaves of Absence
An eligible employee who is on a Company approve leave of absence longer than 4 weeks during the Plan Year will be eligible for an incentive on a
pro−rata basis based on the number of full weeks worked in the incentive eligible position.
H.
Participation in the Plan does not in any way represent an explicit or implied right to receive an incentive award payment pursuant to the terms of the
Plan.
I.
Incentive Award payments are based on the sole discretion of the Compensation Committee of the Board and may be increased, reduced or canceled
based on the recommendation of the Chief Executive Officer.
J.
No participant has any right to an incentive award payment until such payment has been authorized by the Compensation Committee of the Board.
K.
Incentive award payments will be computed on the basis of the Company's financial statements prepared in accordance with acceptable accounting
practices. Financial statements and resulting incentive award payments will be subject to audit by the Company's certified public accountants.
L.
The Compensation Committee of the Board shall have full power and final authority to construe, interpret and administer the Plan and determine all
questions as to the status and rights of participants under the Plan.
M.
The Board of Directors of the Company and its committees and management are not liable for any action taken or omitted under the Plan because of
their reliance on financial statements and computations.
N.
No benefit payable under the Plan shall be subject in any manner to assignment, sale, transfer, pledge, garnishment, attachment, execution,
sequestration, levy or any other legal or equitable encumbrance or process of any kind, and any attempt to do so shall be void and of no force or effect.
O.
Participation in the plan does not alter the nature of the participant's employment relationship nor does it represent an employment contract.
P.
The Chief Executive Officer of the Company may award discretionary incentive awards.
VII. Amendments and Termination
The Board of Directors may at any time, or from time to time, amend, suspend or terminate the Plan, including the current Plan year, with or without prior
notice.
VIII.
Definitions
As used in the Plan, the terms below shall have the following meanings ascribed to them:
A.
"Award" and "Incentive Award" shall mean a payment made to a Participant pursuant to Plan provisions contingent upon or measured by the
attainment of the specified performance objective.
B.
"Board" shall mean the Board of Directors of The Sports Authority, Inc.
C.
"Company" shall mean The Sports Authority, Inc., or any successor company or subsidiary company designated by the Board for which employees
could be included in the Plan.
D.
"Disability" shall mean permanent disability as determined by the Compensation Committee in accordance with standards and procedures similar to
those under The Sports Authority's long−term disability plan.
E.
"Participant" shall mean an employee of the Company, who is granted an award under the plan.
F.
"Retirement" shall mean the voluntary termination of employment by an employee at or after the age of 65 for reasons other than the violation of
company policy or unsatisfactory performance.
APPENDIX 1
2003 Executive Incentive Plan Criteria Targets and Weighting
ACKNOWLEDGEMENT FORM
I acknowledge that I have received a copy of the Fiscal Year 2003 Executive Incentive Plan and that I am expected to read and understand its content. I
understand that participation in this Plan does not change the "at−will" nature of my employment with The Sports Authority and is not a guarantee that any
payment will be made to me under the plan. I also understand that if I fail to meet the eligibility requirements and conditions specified in the Executive Incentive
Plan I will not receive an incentive plan payout.
Signature
Print Name
Please return this form to Corporate Human Resources. Thank you.
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Exhibit 10.25
Date
Social Security #
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Exhibit 10.33.1
FIRST AMENDMENT TO
AMENDED AND RESTATED LICENSE AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED LICENSE AGREEMENT ("Amendment") is made and entered into as of the
2
day of April, 2004 (the "Effective Date") by and between TSA STORES, INC., a corporation organized and existing under the laws of the State
of Delaware, United States of America ("U.S.A.") with its principal place of business at 1050 W. Hampden Avenue, Englewood, Colorado 80110, U.S.A.
(formerly The Sports Authority, Inc.) and THE SPORTS AUTHORITY MICHIGAN, INC. a corporation organized and existing under the laws of the State of
Michigan with its principal place of business at 1050 W. Hampden Avenue, Englewood, Colorado 80110, U.S.A. (collectively, "Licensor"), and MEGA
SPORTS CO., LTD., a corporation organized and existing under the laws of Japan, with its principal office at 1−36−5, Nihonbashi Kakigara−cho, Chuo−ku,
Tokyo, 103−0014 Japan ("Licensee").
WHEREAS, Licensor and Licensee entered into a certain Amended and Restated License Agreement effective March 26, 1999 concerning Licensee's use of
the "Licensed Property" in connection with the "TSA Stores" in the "Territory," as such terms are defined therein (the "Original Agreement");
WHEREAS, Licensor and Licensee entered into a certain Internet Supplement to Amended and Restated License Agreement effective December 20, 1999 to
permit Licensee to use the certain aspects of the Licensed Property in a limited fashion on the Internet; and
WHEREAS, Licensor and Licensee wish to terminate the Internet Supplement to Amended and Restated License Agreement and to amend certain terms of
the Original Agreement as of the Effective Date;
NOW, THEREFORE, in consideration of the mutual promises, undertakings and covenants herein, and for other valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties agree as follows:
ARTICLE I
DEFINITIONS
The following defined terms shall have the meanings set forth below. In any conflict between a definition in this Amendment and a definition in the Original
Agreement, the definition that appears herein shall govern.
1.1
"Agreement" when used by itself, shall mean the Original Agreement,as modified by this Amendment.
1.2
"Customer" or "Customers" shall mean any individual person, consumer, organization, business or other entity situated located in Japan, that accesses,
purchases, obtains or otherwise receives any merchandise, services or information furnished by Licensee from the TSA Stores as permitted hereunder.
1.3
"E−Commerce Business" shall mean the business of creating, developing, operating, advertising and promoting the Sportsauthority.co.jp Site,
including, without limitation, the solicitation and fulfillment of E−Commerce Orders, as further set forth herein.
1.4
"E−Commerce Orders" shall mean any orders placed by any Customer for any merchandise or services offered and/or sold by Licensee directly or
indirectly on, by or through the Sportsauthority.co.jp Site.
1.5
"Internet" shall mean a global network of interconnected computer networks, each using the TCP/IP (Transmission Control Protocol/Internet
Protocol), WAP (Wireless Application Protocol), and/or such other standard network interconnection protocols as may be adopted from time to time,
which is used to transmit content that is directly or indirectly delivered to a computer, telephone
or other digital electronic device for display to an end−user, whether such content is delivered through online browsers, offline browsers, or through
"push" technology, electronic mail, broadband distribution, satellite, wireless, telephone connection or other successor technologies or means.
"Internet" shall also mean online services such as AOL, CompuServe, Prodigy and the like.
1.6
"Licensed Property" shall mean the Marks, Technology and, subject to Article 2.2 of this Amendment, the TSA Content.
1.7
"Materials" shall mean the TSA Content, Web pages, Web banners, buttons and links, Web page source code and tags, exterior and interior signs,
flags, banners, packaging, labels, print, electronic and broadcast advertising and promotional media, manuals, brochures, flyers, posters, sales
literature, business forms, gift certificates, credit cards, debit cards, membership or consumer loyalty program cards, stationery, employee uniforms,
badges, store bags and boxes, baskets, trolleys and carts, sales receipts and charge slips, tickets and tags, and the like, bearing any of the Marks and
used on or in connection with the Products or Services or the TSA Stores, the TSA Ltd. Departments, and/or the Sportsauthority.co.jp Site.
1.8
"Party" shall mean Licensor or Licensee; "Parties" shall mean all of them.
1.9
"Royalties" shall mean the following (except with respect to Gross Sales from the TSA Ltd. Departments):
Period
Royalty Rate
In Fiscal Year 2003
In Fiscal Year 2004
In Fiscal Year 2005
In Fiscal Year 2006
In Fiscal Year 2007
In Fiscal Year 2008
In Fiscal Year 2009
In Fiscal Year 2010
In Fiscal Year 2011
In Fiscal Year 2012
In Fiscal Year 2013
In Fiscal Year 2014
In each subsequent Fiscal Year during the Term
and any Renewal Term
ONE and TWO TENTHS of ONE PERCENT
(1.2%) of any and all Gross Sales.
ONE and ONE TENTH of ONE PERCENT
(1.1%) of any and all Gross Sales.
ONE PERCENT (1.0%) of any and all Gross
Sales.
NINE TENTHS of ONE PERCENT (0.9%) of
any and all Gross Sales.
EIGHT TENTHS of ONE PERCENT (0.8%) of
any and all Gross Sales.
EIGHT TENTHS of ONE PERCENT (0.8%) of
any and all Gross Sales.
EIGHT TENTHS of ONE PERCENT (0.8%) of
any and all Gross Sales.
EIGHT TENTHS of ONE PERCENT (0.8%) of
any and all Gross Sales.
EIGHT TENTHS of ONE PERCENT (0.8%) of
any and all Gross Sales.
EIGHT TENTHS of ONE PERCENT (0.8%) of
any and all Gross Sales.
EIGHT TENTHS of ONE PERCENT (0.8%) of
any and all Gross Sales.
EIGHT TENTHS of ONE PERCENT (0.8%) of
any and all Gross Sales.
To be negotiated; provided, however, that it
shall not exceed FIVE TENTHS of ONE
PERCENT (0.5%) of any and all Gross Sales.
With respect to Gross Sales from the TSA Ltd. Departments, "Royalties" shall mean with respect to Fiscal Years from 2003 to 2014 (both inclusive) FIVE
TENTHS of ONE PERCENT (0.5%) of any and all Gross Sales and with respect to each subsequent Fiscal Year during the Term and any Renewal Term the
Royalties shall be negotiated provided, however, that it shall not exceed FIVE TENTHS of ONE PERCENT (0.5%) of any and all Gross Sales.
1.10
"Sportsauthority.co.jp Site" shall mean that certain Internet Web site currently accessible through the URL (as defined below), and any necessary
backup or mirror Internet site.
1.11
"Territory" shall mean Japan.
1.12
"Term" shall mean the period commencing with the Effective Date and continuing approximately eleven (11) years through January 31, 2015 unless
this Agreement is otherwise renewed or earlier terminated as provided below.
1.13
"TSA Content" shall mean any text, graphics, photographs, video, audio and/or other data or information relating to any subject furnished by Licensor
to Licensee and used in connection with the Sportsauthority.co.jp Site, which may be furnished by Licensor to Licensee for use in the E−Commerce
Business, subject to the terms of this Amendment and the Original Agreement.
1.14
"TSA Ltd. Departments" shall mean any sporting goods department or area within any JUSCO store, that is operated by Licensee and is signed,
advertised or promoted under or in connection with the Marks or Materials, and devoted in whole or in part to the advertising, promotion or sale of
any Products and/or an assortment of sporting goods and equipment, footwear and apparel, and/or to provision of the Services.
1.15
"TSA Stores" shall mean: (a) any sporting goods retail outlet established and/or operated by Licensee in the Territory devoted to the sale of an
assortment of sporting goods and equipment, footwear and apparel, and/or to provision of the Services; (b) the Sportsauthority.co.jp Site, and the
E−Commerce Business operated in connection with the same; and (c) the TSA Ltd. Departments as operated by Licensee as permitted hereunder.
1.16
"URL" shall mean the uniform resource locator of the Sportsauthority.co.jp Site on the Internet, and any replacement uniform resource locator
registered by Licensee as provided hereunder.
1.17
"Web" or "web" shall mean the World Wide Web, a network protocol for accessing and viewing text, graphics, sound and other media and engaging
in e−commerce via the Internet.
Additional defined terms that are used herein but not defined above are set forth in the Original Agreement.
ARTICLE II
TRADEMARK AND SERVICE MARK LICENSE
2.1
Article 2.1 of the Original Agreement is deleted in its entirety and replaced by the following provision:
2.1
Grant of License. Subject to the terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee, for the Term and any
Renewal Term only, and Licensee accepts from Licensor, upon the terms and conditions specified herein, the exclusive (except as set forth
in Articles 2.3 (d) and subject to (e) and (f) of the Original Agreement as modified by the Amendment), nontransferable right and license in
the Territory only, to use the Marks on and in connection with the Products, Materials and Services furnished in or in connection with the
TSA Stores if, and only if, such Products, Materials and Services comply with the quality standards set forth herein and those approved and
issued by Licensor from time to time. The scope of the license granted in the Original Agreement is hereby enlarged to permit Licensee
to conduct the E−Commerce Business, and to permit Licensee to advertise, promote and operate the TSA Ltd. Departments. Further, this
license includes the temporary right for Licensee to register the URL in its own name as permitted herein; otherwise, Licensee is prohibited
from using the Marks or any name or mark confusingly similar to the Marks, including any abbreviations of the Marks, as part of its
registered corporate or business name, or as part of any Internet domain name. No other, further or different license is granted or implied
and no assignment of any right or interest is made or intended herein. In particular, no license is granted to permit any third party to use the
Marks, and Licensee may only use the Marks on or in connection with Products, Materials and Services subject to the terms and conditions
of this Agreement. Licensor shall monitor and control the nature and quality of the Products, Materials and Services, and Licensor may
appoint one or more representatives to monitor and exercise such control on Licensor's behalf. Such monitoring shall in no way lessen or
limit Licensee's obligation to use the Marks only as set forth herein.
2.2
Article 2.3(d) of the Original Agreement is deleted in its entirety and replaced by the following provisions:
(d) The TSA Content. From time to time Licensee may request the right to use, reproduce or create derivative works from certain TSA
Content for use and display on the Sportsauthority.co.jp Site. Licensee shall make such requests in writing to Licensor, describing the
desired TSA Content and its intended transformation (if any) and use. Licensor shall use commercially reasonable efforts to respond to such
requests promptly. If Licensor grants permission to use, reproduce or create derivative works from the subject TSA Content, it shall do so in
writing, and such permission shall be subject to the terms and conditions set forth in this Amendment as well as in the Original Agreement.
In particular, with respect to such approved TSA Content, Licensor hereby grants to Licensee, for the Term and any Renewal Term only,
and Licensee accepts from Licensor, upon the terms and conditions specified herein and in the Original Agreement, the non−transferable,
non−exclusive right and license in the Territory only, to use certain approved TSA Content solely in connection with the
Sportsauthority.co.jp Site if, and only if, such use complies with the restrictions set forth herein. Licensor may monitor and control the
nature and quality of Licensee's use of the TSA Content, and Licensor may appoint one or more representatives to monitor and exercise
such control on Licensor's behalf. Such monitoring shall in no way lessen or limit Licensee's obligation to use the TSA Content only as set
forth herein. No other, further or different license is granted or implied and no assignment of any right or interest is made or intended
herein. In particular, no license is granted to sublicense or otherwise permit any third party to use the TSA Content. All derivative works
created from the TSA Content shall be the exclusive property of Licensor.
(e) Nothing contained herein shall prevent or restrict Licensor or third parties licensed by Licensor from using the Marks or the TSA
Content to offer, sell, furnish or deliver goods or services via the Internet, including to any Customer, consumer, business or other entity
situated in Japan, so long as the Japan portion of such sales is a minor portion of the subject enterprise's overall sales volume, and the
targeting of any consumer or business or other entities located in Japan is not a principal or primary objective of any such enterprise.
(f) Licensee shall use the Sportsauthority.co.jp Site to target only Customers within the Territory. Licensee shall primarily use the
Japanese language in all of the Sportsauthority.co.jp Site's Web pages, and use only communications systems and servers located within the
Territory to host and mirror the Sportsauthority.co.jp Site. E−Commerce Orders may be delivered to Customers only within the Territory.
(g) Licensee and Licensor shall negotiate and cooperate in good faith to establish hyperlinks between the Sportsauthority.co.jp Site
and Licensor's existing Internet e−commerce enterprise located at the URL http://www.sportsauthority.com.
(h) Any copyright which may exist or be created in any TSA Content provided by Licensor hereunder including, without limitation,
any sketch, design, drawing, print, advertisement, sign, jingle, musical composition, packaging, label, tag or the like designed or approved
by Licensor, shall be the exclusive property of Licensor. Licensee shall not, at any time, do or suffer to be done any act or thing which may
adversely affect any rights of Licensor in such TSA Content, including, without limitation, disclosing such information or filing any
application in Licensee's name to record any claims to copyrights in TSA Content, and Licensee shall do all things reasonably required by
Licensor to preserve and protect such rights, including, without limitation, placing Licensor's copyright notice on all TSA Content and any
derivative works.
(i) Prohibitions. The Sportsauthority.co.jp Site shall not engage in directly or indirectly, permit or be associated (through links or
otherwise) with gambling activities, and shall not depict or be associated with nudity, sexually explicit conduct or pornography, graphic
violence or abusive behavior. Further, Licensee shall not advertise or promote the Sportsauthority.co.jp Site (through links or otherwise) in
any way associated, or thought to be associated, with any illegal, vulgar, obscene, immoral, unsavory or offensive activities, nor cause
material embarrassment to be suffered by Licensor by reason of acts or omissions of Licensee which are illegal, immoral or scandalous.
ARTICLE III
OTHER AMENDMENTS
3.1
The Internet Supplement to Amended and Restated License Agreement is terminated as of the Effective Date.
3.2
All references to "Canada" that appear in the Original Agreement are deleted in their entirety.
3.3
Article 4.1 of the Original Agreement is deleted in its entirety and replaced by the following provision:
4.1
Payments.
(a) Beginning with the Effective Date, during the initial Term and any Renewal Term, and if applicable, after termination of the
Agreement to the extent any amounts are accrued and unpaid, Licensee shall pay the Royalties to Licensor in the manner and at the times
specified below.
(b) The Royalties may be only amended by mutual written agreement of the Parties. Beginning in Fiscal Year 2015, the Royalties
shall be determined through the Parties' good faith negotiations provided that in no event shall the Royalties exceed five tenths of one
percent (.5%) of Gross Sales in a given Fiscal Year. Further, without limiting the foregoing, if at any time during the initial Term and any
Renewal Term, after two (2) consecutive Fiscal Years in which Licensee has suffered an annual net operating loss by a margin greater than
the applicable Royalties due and paid by Licensee for the two (2) subject Fiscal Years, and provided that such loss is due solely to
Licensee's obligation to pay such Royalties, then upon request from Licensee, Licensor agrees to confer and negotiate in good faith with
Licensee regarding a reduction in the Royalties for the purpose of improving Licensee's financial performance in the subsequent Fiscal Year
or Fiscal Years. With any such request, Licensee shall furnish audited financial statements and a pro forma financial analysis based solely
on the business of operating the TSA Stores as permitted hereunder. Licensor may request and Licensee shall furnish any additional
information reasonably necessary to evaluate such request.
3.4
Article 4.8(a) of the Original Agreement is deleted in its entirety and replaced by the following provision:
(a) Term; Renewal Term. Unless this Agreement is otherwise terminated by Licensor as provided in this Agreement, and provided
Licensee is in full compliance with its duties and obligations hereunder, the initial Term of this Agreement shall be extended automatically
at the expiration of the initial Term for a first "Renewal Term" unless Licensee gives Licensor written notice of termination between
February 1, 2014 and July 31, 2014. The first Renewal Term shall commence on February 1, 2015 and continue until January 31, 2025,
unless terminated earlier in accordance with the terms and conditions hereof. Subject to the same conditions, the initial Renewal Term shall
be extended automatically upon its expiration for a second Renewal Term unless written notice of non−renewal is furnished to Licensor
between February 1 and July 31 of the tenth year of the first Renewal Term. The Second Renewal Term shall commence on February 1,
2025 and continue until January 31, 2035, unless terminated earlier in accordance with the terms and conditions hereof. Subject to the same
conditions, the second Renewal Term shall be extended automatically upon its expiration for successive five year Renewal Terms unless
written notice of non−renewal is furnished to Licensor between February 1 and July 31 preceding the final year of the current Renewal
Term. All renewals shall be upon the same terms and conditions as set forth in this Agreement, except as otherwise agreed to in writing by
authorized officers of the Parties. If this Agreement remains in effect in 2040, the Parties agree to negotiate in good faith that year in order
to conclude and execute an updated version of this Agreement, one reasonably adapted to current circumstances, market conditions, and the
like.
3.5
Articles 4.8(e) and 4.8(h) of the Original Agreement are deleted in their entirety.
3.6
Article 4.10(a) of the Original Agreement is deleted in its entirety and replaced by the following provision:
4.10
Notices.
(a)
Any notice or request with respect to this Agreement shall be made personally, by registered mail, by airborne express courier, or
by confirmed facsimile and shall be directed by each Party to the other at its respective address as follows:
If to Licensee, to:
Mega Sports Co., Ltd.
1−36−5, Nihonbashi Kakigara−cho
Chuo−ku, Tokyo 103−0014, JAPAN
Tel: 011−81−3−5644−5716
Fax: 011−81−3−5644−3669
Attention: Chief Operating Officer
With copy to:
AEON Co., Ltd.
1−5−1, Nakase, Mihama−ku
Chiba−shi, Chiba−ken, 261, Japan
Tel: 011 81 (043) 212−6098
Fax: 011 81 (043) 212−6813
Attention: General Manager of International Business Department
If to Licensor, to:
The Sports Authority Michigan, Inc.
TSA Stores, Inc.
1050 W. Hampden Avenue
Englewood, Colorado 80110 U.S.A.
Tel: 1 (303) 863−2205
Fax: 1 (720) 475−2721
Attention: Executive Vice President and General Counsel
3.7
Article IV of the Original Agreement is amended by adding the following new provision:
4.22
Merchandising Assistance. Upon request from Licensee, Licensor shall use commercially reasonable efforts to assist Licensee in obtaining
certain highly desirable (or otherwise unavailable or difficult to obtain in Japan) lines of U.S. merchandise from among those sold in
Licensor's SPORTS AUTHORITY stores in the U.S.A., under comparable terms and conditions as those between Licensor and its
suppliers, taking into consideration conditions in Japan such as the products available in Japan, distribution systems in Japan, competitive
circumstances, any conditions imposed upon the sale of the products in Japan and transportation and other additional charges which must be
added to the cost of the products. Such assistance may include procuring import merchandise bearing trademarks owned by Licensor. To
facilitate such efforts, both Licensor and Licensee shall hold strategic meetings together to decide on the best and appropriate commercial
means to accomplish the intent of this Section 4.22.
3.8
All rights and obligations of Licensee under the Original Agreement are extended and shall apply to Licensee as expressly set forth herein. In any
conflict between the terms of this Amendment and the Original Agreement, the terms of this Amendment shall govern. Except as set forth herein, the
Original Agreement remains in full force and effect and unmodified.
IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed by their duly authorized representatives as of the Effective Date.
TSA STORES, INC.
THE SPORTS AUTHORITY MICHIGAN, INC.
By:
By:
Title:
Title:
MEGA SPORTS CO., LTD.
By:
Title:
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Exhibit 10.33.1
FIRST AMENDMENT TO AMENDED AND RESTATED LICENSE AGREEMENT
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Exhibit 14
The Sports Authority, Inc.
Code of Business Conduct and Ethics
This Code of Business Conduct and Ethics is intended to comply with Section 406 of the Sarbanes−Oxley Act of 2002 and the related NYSE rules. The
Sports Authority, Inc. (the "Company") is firmly committed to conducting business in with the highest ethical standards and in full compliance with all
applicable laws and regulations.
This Code of Business Conduct and Ethics ("Code") sets forth certain business and ethical standards adopted and practiced by the Company. It applies to all
business activities of the Company and its employees, directors and officers and should be treated as a guide in making day−to−day business decisions. It cannot
address every ethical or legal question that may arise during the business day. If you have questions about this Code or about the ethics and legality of a
particular situation, please contact the Company hotline at 1−877−329−0748 or speak with the general counsel.
Employees, officers and directors who experience, observe or suspect any violation of this Code or other illegal or unethical conduct by employees, officers
or directors of the Company should immediately report the situation to a supervisor, the general counsel of the Company or the Company hotline at
1−877−329−0748. If any employee, officer or director of the Company has concerns or complaints regarding questionable accounting or auditing matters of the
Company, then he or she should immediately report the situation to the general counsel of the Company, the Company hotline, or directly to the Audit
Committee of the Board of Directors. If a reporting individual's concerns or complaints require confidentiality, including keeping their identity anonymous, then
this confidentiality will be protected, subject to applicable law, regulation or legal proceedings.
Any employee, director or officer, who in good faith seeks advice, raises a concern or reports misconduct is complying with this Code. The Company will
not tolerate retaliation against that person.
1.
Honest and Ethical Conduct
All employees, officers and directors of the Company should exhibit and promote the highest standards of honest and ethical conduct in all of their dealings
relating to the business of the Company.
2.
Conflicts of Interest
All employees, officers and directors of the Company should be scrupulous in avoiding a conflict of interest between personal and professional
relationships.
A "conflict of interest" exists whenever an individual's private interests interfere or conflict in any way (or even appear to interfere or conflict) with the
interests of the Company as a whole. All employees, officers and directors are required to avoid financial or other outside relationships that might be adverse to
the interests of the Company, produce conflicting loyalties, interfere with effective job performance or involve even the appearance of such adverse interests,
conflict or interference. Conflicts of interest may also arise when an employee, officer or director, or members of his or her family, receives improper personal
benefits as a result of his or her position in the Company, whether received from the Company or a third party.
Following are examples of conflicts of interest.
a.
Loans by the Company to directors or executive officers. Loans from an entity doing business or seeking to do business with the Company
to an employee, officer or director or their respective family members, unless the loan is from an established financial institution in
accordance with its normal lending practices and at interest rates that are generally available to the public.
b.
Any dealing between a vendor or customer and the Company that is not an arm's−length transactions in which the Company's interest is the
sole consideration.
c.
Offering, giving, soliciting or receiving any form of bribe, payoff, unlawful gratuity or kickback from or to any individual or entity. Such
conduct may subject the Company and individuals to criminal penalties.
d.
Gift giving or receiving that creates a conflict of interest or the appearance of a conflict of interest as defined in Company policy. For
instance, accepting a gift of cash or a cash equivalent, other than a gift card in an amount consistent with Company policy.
e.
The U.S. Foreign Corrupt Practices Act prohibits giving anything of value, directly or indirectly, to foreign government officials or foreign
political candidates in order to obtain or retain business. It is strictly prohibited to make illegal payments to government officials of any
country. In addition, the U.S. government has a number of laws and regulations regarding business gratuities, which may be accepted by
U.S. Government personnel. The promise, offer or delivery to an official or employee of the U.S. government of a gift, favor or other
gratuity in violation of these rules would not only violate Company policy but could also be a criminal offense. U.S. law also forbids any
attempt to influence any person's testimony or provide anything of value because of or for any testimony. State and local governments, as
well as foreign governments, may have similar rules. The Company's legal department can provide guidance in this area.
f.
Competing with the Company as defined in Company policy, using Company property or information for personal gain, or usurping any
Company opportunity for personal gain are prohibited conflicts of interest.
g.
All employees, officers and directors should protect the Company's assets and ensure their efficient use. Theft, carelessness and waste have
a direct impact on the Company's profitability. All Company assets should be used for legitimate business purposes.
The above examples are not all−inclusive of potential conflicts of interest. Conflicts of interest may not always be clear−cut, so if you have any questions,
you should consult with higher levels of management or the legal department.
3.
Confidential Information
Information pertaining to general Company business which employees, officers and directors of the Company acquire must be kept confidential until such
time as the information has been made public, except when disclosure is authorized or legally mandated. Whenever feasible, employees, officers and directors
should consult the legal department if they believe they have a legal obligation to disclose confidential information. Confidential information includes all
non−public information that might be of use to competitors of the Company, or harmful to the Company, if disclosed.
4.
Compliance with Laws, Rules and Regulations
All employees, officers and directors of the Company should respect and comply with all of the laws, rules and regulations of the U.S. and the states,
counties, cities, countries and other jurisdictions, in which the Company conducts its business or the laws, rules and regulations of which are applicable to the
Company.
Such legal compliance includes without limitation, compliance with the "insider trading" prohibitions applicable to the Company, and its employees,
officers and directors. Generally, employees, officers, and directors who have access to or knowledge of confidential or non−public information from or about
the Company are not permitted to buy, sell or otherwise trade in the Company's securities, whether or not they are using or relying upon that information. This
restriction extends to sharing or tipping others about such information, especially since the individuals receiving such information might utilize such information
to trade in the Company's securities. Insider trading is both unethical and illegal and will be dealt with decisively. Company employees, officers and directors are
directed to the Company's general counsel if they have questions regarding the applicability of such insider trading prohibitions.
Such legal compliance also includes without limitation, compliance with all antitrust and fair competition laws. In general, employees, officers and directors
are prohibited from entering into agreements with outside parties relating to price fixing, allocation of customers or the boycott of a third party. Moreover, all
employees, officers and directors are prohibited from engaging in unfair competition or deceptive acts and practices in violation of federal or state law.
5.
Books, Records and Accounting
The Company is committed to full, fair and accurate disclosure to investors and in all public communications. The integrity of the Company's books, records
and accounts is essential. All transactions should be recorded to fairly reflect the true nature of the transaction. Transactions should be recorded on a timely basis
in order to permit preparation of financial statements fairly and in accordance with Generally Accepted Accounting Principles.
No false or misleading entries should be made in any way in any of the Company's books, records or accounts for any reason. No unrecorded funds or assets
shall be established or maintained for any purpose. Also, no pool of monies may be established that is not accurately reflected on the Company books, as required
under Generally Accepted Accounting Principles.
No employee, officer, director or other person acting under their direction shall take any action to influence, coerce, manipulate or mislead any independent
public or certified accountant engaged in performing an audit of the Company's financial statements for the purpose of rendering such financial statements
misleading. No employee, officer or director shall make any false or misleading statements to an accountant in connection with any audit or examination of the
Company's financial statements.
6.
Amendment, Modification and Waiver
This Code may be amended, modified or waived by the Board of Directors or the Governance Committee of the Board of Directors and the Board of
Directors or Governance Committee of the Board of Directors may also grant waivers. The date, nature and name of the recipient of any waiver, amendment or
modification granted for executive officers or directors will be immediately disclosed on the Company's website (or, if the Company's most recent Annual Report
on Form 10−K does not indicate the Company's intention to make such disclosures on its website, on a Form 8−K filed by the Company) in compliance with the
provisions of the Securities Exchange Act of 1934, and the rules thereunder and the applicable rules of the New York Stock Exchange.
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Exhibit 14
The Sports Authority, Inc. Code of Business Conduct and Ethics
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Exhibit 21
As of August 4, 2003
Name
State of Incorporation
Gart Bros. Sporting Goods Company
Colorado
Sportmart, Inc.
Oshman's Sporting Goods, Inc.
Oshman Sporting Goods Co., Hawaii
Oshman Sporting Goods Co., Georgia
Oshman Sporting Goods Co., New York
Oshman Sporting Goods Co., Oklahoma
Oshman Sporting Goods Co., Tennessee
Oshman Sporting Goods Co., Louisiana
Oshman Sporting Goods Co., New Jersey
Oshman's Sporting Goods, Inc.—Services
TSA Stores, Inc.
The Sports Authority Florida, Inc.
The Sports Authority Michigan, Inc.
Authority International, Inc.
Delaware
Delaware
Texas
Texas
Texas
Texas
Texas
Texas
Texas
Delaware
Delaware
Florida
Michigan
Delaware
Doing Business As
Gart Sports, Oshman's and
Sportmart
Sportmart
Oshman's
Oshman's
Oshman's
Oshman's
Oshman's
Oshman's
Oshman's
Oshman's
The Sports Authority
The Sports Authority
The Sports Authority
The Sports Authority
As of January 1, 2004
Name
TSA Stores, Inc.
State of Incorporation
Delaware
The Sports Authority Michigan, Inc.
Michigan
TSA Corporate Services, Inc.
TSA Gift Card, Inc.
Colorado
Virginia
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Exhibit 21
Doing Business As
The Sports Authority, Gart
Sports, Oshman's and
Sportmart
The Sports Authority and
Oshman's
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Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in Registration Statement Nos. 333−87013, 333−104321 and 333−111751 of The Sports Authority Inc.
(formerly Gart Sports Company) on Form S−8 and No. 333−87410 on Form S−3 of The Sports Authority Inc. (formerly Gart Sports Company) of our report
dated April 13, 2004 appearing in this Annual Report on Form 10−K of The Sports Authority Inc. (formerly Gart Sports Company) for the year ended
January 31, 2004.
DELOITTE & TOUCHE LLP
Denver, Colorado
April 13, 2004
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INDEPENDENT AUDITORS' CONSENT
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Exhibit 31.1
CERTIFICATIONS
I, John Douglas Morton, Vice−Chairman of the Board and Chief Executive Officer of The Sports Authority, Inc., certify that:
1.
I have reviewed this annual report on Form 10−K of The Sports Authority, Inc.;
2.
Based on my knowledge, this annual report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make
the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this
annual report;
3.
Based on my knowledge, the financial statements, and other financial information included in this annual report, fairly present in all material respects
the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this annual report;
4.
The registrant's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a−15(e) and 15d−15(e)) for the registrant and have:
a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision,
to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within
those entities, particularly during the period in which this annual report is being prepared;
b)
[Paragraph omitted pursuant to SEC Release Nos. 33−8238 and 34−47986]
c)
Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d)
Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most
recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely
to materially affect, the registrant's internal control over financial reporting; and
5.
The registrant's other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the
registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal
control over financial reporting.
Date: April 15, 2004
/s/ JOHN DOUGLAS MORTON
John Douglas Morton
Vice−Chairman of the Board and Chief Executive Officer
The Sports Authority, Inc.
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Exhibit 31.1
CERTIFICATIONS
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Exhibit 31.2
CERTIFICATIONS
I, Thomas T. Hendrickson, Vice Chairman, Chief Financial Officer, Chief Administrative Officer and Treasurer of The Sports Authority, Inc., certify that:
1.
I have reviewed this annual report on Form 10−K of The Sports Authority, Inc.;
2.
Based on my knowledge, this annual report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make
the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this
annual report;
3.
Based on my knowledge, the financial statements, and other financial information included in this annual report, fairly present in all material respects
the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this annual report;
4.
The registrant's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a−15(e) and 15d−15(e)) for the registrant and have:
a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision,
to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within
those entities, particularly during the period in which this annual report is being prepared;
b)
[Paragraph omitted pursuant to SEC Release Nos. 33−8238 and 34−47986]
c)
Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d)
Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most
recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely
to materially affect, the registrant's internal control over financial reporting; and
5.
The registrant's other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the
registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal
control over financial reporting.
Date: April 15, 2004.
/s/ THOMAS T. HENDRICKSON
Thomas T. Hendrickson
Chief Financial Officer, Chief Administrative and Treasurer
The Sports Authority, Inc.
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Exhibit 31.2
CERTIFICATIONS
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Exhibit 32.1
CHIEF EXECUTIVE OFFICER AND CHIEF FINANCIAL OFFICER CERTIFICATION
Each of the undersigned hereby certifies, for the purposes of section 1350 of Chapter 63 of title 18 of the United States Code, as adopted pursuant to
Section 906 of the Sarbanes−Oxley Act of 2002, in his capacity as an officer of The Sports Authority, Inc., that, to his knowledge, the Annual Report of The
Sports Authority, Inc. on Form 10−K for the year ended January 31, 2004, fully complies with the requirements of Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 and that the information contained in such report fairly presents, in all material respects, the financial condition and results of operation of
The Sports Authority, Inc. This written statement is being furnished to the Securities and Exchange Commission as an exhibit to such Form 10−K. A signed
original of this statement has been provided to The Sports Authority, Inc. and will be retained by The Sports Authority, Inc. and furnished to the Securities and
Exchange Commission or its staff upon request.
Dated: April 15, 2004
/s/ JOHN DOUGLAS MORTON
John Douglas Morton
Vice−Chairman of the Board and Chief Executive Officer
The Sports Authority, Inc.
Dated: April 15, 2004
/s/ THOMAS T. HENDRICKSON
Thomas T. Hendrickson
Vice Chairman, Chief Financial Officer,
Chief Administrative Officer and Treasurer
The Sports Authority, Inc.
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Exhibit 32.1
CHIEF EXECUTIVE OFFICER AND CHIEF FINANCIAL OFFICER CERTIFICATION
_______________________________________________
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