AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the
"Agreement") is entered into as of this 7th day of January, 2000,
by and between Rawlings Sporting Goods Company, Inc., a Delaware
corporation (the "Company"), and Stephen M. O'Hara (the
"Executive").
RECITALS
A. Rawlings and the Executive are parties to an Employment
Agreement, dated as of November 2, 1998 (the "Employment
Agreement").
B. On January 7, 2000, the Board of Directors approved the
amendments to the Employment Agreement set for in this Agreement.
NOW, THEREFORE, in consideration of the premises and of
the mutual covenants and agreements set forth herein, the parties
hereto agree that the Employment Agreement is hereby amended and
restated in its entirety as follows:
1. EMPLOYMENT. The Company agrees to employ the Executive and
the Executive agrees to be employed by the Company as its
Chairman and Chief Executive Officer upon the terms and
conditions of this Agreement commencing as of the date first
above written and continuing until terminated in accordance with
Section 11 hereof.
2. EXECUTIVE'S COMPENSATION.
(a) BASE SALARY. For all services rendered by the
Executive to the Company, the Company shall pay the Executive a
salary of $275,000 per year for the Company's fiscal year
ended August 31, 1999. Thereafter, the Executive's
salary shall be reviewed by the Board of Directors
each September during the term of this Agreement and
shall be adjusted as determined by the Board of
Directors of the Company (as adjusted from time to time, the
"Base Salary"). Salary payments shall be subject to withholding
and other applicable taxes and shall be payable in accordance
with the Company's normal payroll practices.
(b) BONUS. Beginning with the fiscal year ended August 31,
1999, the Executive shall be eligible to receive an annual bonus
of up to 75% of the Executive's Base Salary (the "Bonus"). In
determining Executive's right to receive the Bonus, the Company
shall rely equally on objective and subjective factors. The
objective standards which must be achieved shall be determined
annually at the end of the first month of the fiscal year by the
Company and the Executive and shall include, among other things,
the Company's return on investment, return on working capital,
revenue growth, net income growth and other factors mutually
agreeable to Executive and the Company. Executive and the
Company shall use commercially reasonable efforts to agree to
such factors by the end of the first month of the fiscal year of
each year, and a list of such factors shall be attached hereto
and incorporated herein as Exhibit A. The subjective
determination of Executive's right to receive the Bonus shall be
made by the Board of Directors of the Company, taking into
account factors such as the Executive's leadership of the
Company,<PAGE> development of the management of the Company,
development and execution of a strategic plan for the Company,
management of customers and vendors, stockholder relations and
management of the Company's relationships with professional
organizations such as Major League Baseball and the National
Collegiate Athletic Association. On or before December 31 of
each year, the Company shall pay to Executive the amount of any
Bonus due hereunder with respect to the previous fiscal year.
All bonus payments shall be subject to withholding and all other
applicable taxes.
Except as otherwise expressly provided
herein, if Executive voluntarily terminates employment
with the Company, or is terminated by the Company for
Cause (under Section 11), the Executive shall receive
no Bonus for the year in which he leaves the Company.
If the Executive is terminated by the Company because
of what the Company in its sole discretion deems to be
unsatisfactory performance, the Executive shall receive
the pro rata portion of the average Bonus paid to the
Executive during the past two years.
(c) REIMBURSEMENT OF EXPENSES. The Company
shall reimburse the Executive for all ordinary and
necessary expenses incurred and paid by the Executive
in the course of the performance of the Executive's
duties pursuant to this Agreement and consistent with
the Company's policies in effect from time to time with respect
to travel, entertainment and other business expenses, and subject
to the Company's requirements with respect to the manner of
reporting such expenses.
3. BENEFITS.
(a) AUTOMOBILE. The Company shall provide to the Executive
every three years during the term hereof a Company owned or
leased automobile produced by an American manufacturer of year,
make and model selected by the Executive, and the Company shall
pay the expenses related to the use and upkeep thereof and
insurance relating thereto. Initially, the Company shall provide
the Executive with a Lincoln Navigator.
(b) LIFE INSURANCE. Following a medical examination by an
independent physician and upon determination that no medical
condition exists which would make the cost of such policy
commercially unreasonable, the Executive shall obtain a split
dollar policy insuring the life of the Executive, which shall
have death benefits of not less than $2,000,000 (the "Policy").
The Executive or a trust of which he is the settlor, shall be the
owner of the Policy, which shall be collaterally assigned to the
Company. The Company will pay all premium payments due under the
Policy until the earlier to occur of (i) the death of the
Executive, (ii) the Disability of the Executive (as hereinafter
defined), and (iii) the date on which the Executive's service
with the Company is terminated whether under Section 11 or
following a Change in Control. The portion of the premiums in
excess of the normal term rate on a $2,000,000 policy (the
"Excess Split Dollar Premiums") will be considered
(i) compensation to Executive during the first two years of this
Agreement, and (ii) thereafter a loan to the Executive secured by
the Policy. The premiums for the normal term rate will be
treated as ordinary compensation to the Executive. In the event
of the death of the Executive during the term of this
Agreement,<PAGE> the face amount of the Policy less the Excess
Split Dollar Premiums paid by the Company on the Policy shall be
paid to the spouse of the Executive or other beneficiary
designated by the Executive. The Excess Split Dollar Premiums
will be repaid to the Company. At no time will Excess Split
Dollar Premium payments made by the Company exceed the cash
surrender value of the Policy. The Company shall release its
collateral position on the Policy to the Executive when its
obligations to make premium payments hereunder have ceased. The
Executive shall thereafter be responsible for all premium
payments, and the Executive shall reimburse the Company for all
Excess Split Dollar Premium payments previously made by the
Company. Reimbursement to the Company may be made in cash or by
execution and delivery of a promissory note providing for
payments over three months.
(c) CLUB MEMBERSHIP. The Company will pay the initiation
fee and membership dues on behalf of the Executive for one private
city club during the term of this Agreement.
(d) ADDITIONAL BENEFITS. The Executive shall receive
additional benefits such as insurance and hospitalization consistent
with those provided to other Executives in similar industries having
responsibility commensurate to that of the Executive, and such
additional benefits as may be from time to time agreed upon in
writing between the Executive and the Company. The Executive
shall receive four weeks of vacation annually.
4. STOCK OPTIONS.
(a) The Company hereby grants to Executive as of November 2,
1998 (the original date upon which the Executive's employment
commenced) a nonqualified stock option (the "Option") to purchase
250,000 shares of the Company's common stock, par value $.01 per
share (the "Shares"), which Option shall become exercisable so
long as Executive is an employee of the Company as follows: the
Executive may purchase up to 20% of the total number of Shares at
any time after the date hereof and an additional 20% of the total
number of Shares on each of the dates set forth below; provided,
however, that the Option shall become fully exercisable under
Section 8(b) hereof. The exercise price for the Shares under the
Option shall be as set forth below.
STOCK OPTION VESTING DATE EXERCISE PRICE
November 2, 1998 $10.00
November 2, 1999 $11.00
November 2, 2000 $12.00
November 2, 2001 $13.00
November 2, 2002 $14.00
The Option shall expire at 11:59 p.m. Fenton, Missouri
Time on November 1, 2003. The number of Shares with
respect to which the Option may be exercised shall be
cumulative so that if, in any of the aforementioned
periods, the full number of Shares shall not have been
purchased, any such unpurchased Shares shall continue
to be included in the number of Shares with respect to
which the<PAGE> Option shall then be exercisable along
with any other Shares as to which the Option may become
exercisable. The Option shall be exercisable following
the termination of the Executive's employment with the
Company for other than Cause as defined in Section 11
hereof, for a period of three (3) months from the date
of such termination, to the extent the Option was
exercisable as of the date of such termination. The
Option shall be exercisable following the termination
of the Executive's employment with the Company for
Cause as defined in Section 11 hereof, for a period of
forty-eight (48) hours from the date of such
termination, to the extent the Option was exercisable
as of the date of such termination.
(b) Additionally, in the event the Executive purchases
common stock of the Company other than pursuant to the Option, the
Company grants to the Executive an option to purchase two
additional shares of common stock at an exercise price equal to
the price paid by the Executive for each of the first 20,000
shares of common stock of the Company purchased by Executive in
such fiscal year (September 1-August 31), provided however, for
fiscal year 2000 the options described in this section (b) shall
apply to the first 33,075 shares of common stock of the Company
purchased by the Executive. Each such option shall expire at
11:59 p.m. Fenton, Missouri time on the day immediately preceding
the fifth anniversary of the date of grant of such option.
(c) The options described in (a) and (b) above are not
transferable to any third party by the Executive except to a
revocable living trust established by the Executive of which the
Executive is a trustee and the primary beneficiary. The options
may be exercised only to purchase whole shares. No fractional
shares will be issued upon exercise of the options. The options
shall be exercised and payment made to the Company in accordance
with procedures provided by the Compensation Committee of the
Company.
(d) The Company and the Executive acknowledge that the
shares subject to the options in (a) and (b) above have not been
registered under the Securities Act of 1933, as amended, or any
state securities law. The Company will use its best efforts and
take such actions as it deems necessary to file a registration
statement on Form S-8 with the Securities and Exchange Commission
and submit all listing applications to the NASDAQ National Market
System with respect to such Shares.
5. DUTIES. The Executive agrees that so long as he is employed
under this Agreement he will (i) devote his best efforts and his
entire business time to further properly the interests of the
Company; provided, however, that the Executive shall be permitted
to serve on two (2) boards of directors selected by Executive and
such other boards as the Compensation Committee of the Company
shall approve, (ii) at all times be subject to the Company's
direction and control with respect to his activities on behalf of
the Company, (iii) comply with all rules, orders and regulations
of the Company, (iv) truthfully and accurately maintain and
preserve such records and make all reports as the Company may
require, and (v) fully account for all monies and other property
of the Company of which he may from time to time have custody and
deliver the same to the Company whenever and however directed to
do so.
<PAGE>
6. COVENANT NOT TO DISCLOSE CONFIDENTIAL INFORMATION. The
Executive acknowledges that during the course of his employment
with the Company he has or will have access to and knowledge of
certain information and data which the Company considers
confidential and that the release of such information or data to
unauthorized persons would be extremely detrimental to the
Company. As a consequence, the Executive hereby agrees and
acknowledges that he owes a duty to the Company not to disclose,
and agrees that, during or after the term of his employment,
without the prior written consent of the Company he will not
communicate, publish or disclose, to any person anywhere or use
any Confidential Information (as hereinafter defined) for any
purpose other than carrying out his duties as Chairman and Chief
Executive Officer of the Company. The Executive will return to
the Company all Confidential Information in the Executive's
possession or under the Executive's control whenever the Company
shall so request, and in any event will promptly return all such
Confidential Information if the Executive's relationship with the
Company is terminated for any or no reason and will not retain
any copies thereof. For purposes hereof the term "Confidential
Information" shall mean any information or data used by or
belonging or relating to the Company that is not known generally
to the industry in which the Company is or may be engaged,
including without limitation, any and all trade secrets,
proprietary data and information relating to the Company's past,
present or future business and products, price lists, customer
lists, processes, procedures or standards, know-how, manuals,
business strategies, records, drawings, specifications, designs,
financial information, whether or not reduced to writing, or
information or data which the Company advises the Executive
should be treated as Confidential Information.
7. COVENANT NOT TO COMPETE. The Executive acknowledges that
during his employment with the Company he, at the expense of the
Company, will be specially trained in the business of the
Company, will establish favorable relations with the customers,
clients and accounts of the Company and will have access to
Inventions, trade secrets and Confidential Information of the
Company. Therefore, in consideration of such training and
relations and to further protect the Inventions, trade secrets
and Confidential Information of the Company, the Executive agrees
that during the term of his employment by the Company and for a
period of three (3) years from and after the voluntary or
involuntary termination of such employment for any or no reason,
he will not, directly or indirectly, without the express written
consent of the Company except when and as requested to do in and
about the performing of his duties under this Agreement:
(a) own or have any interest in or act as an officer,
director, partner, principal, employee, agent, representative,
consultant or independent contractor of, or in any way assist in, any
business located in or doing business in the United States or in
any other county, territory or possession in which the Company
has engaged in business during the Executive's employ which is
engaged in competition in any manner with any business of the
Company at any time during the time of the Executive's employment
hereunder;
(b) divert or attempt to divert clients, customers
(whether or not such persons have done business with the Company
once or more than once), accounts of the Company, or prospective
clients, customers or accounts which the Company has contacted
within the 2 years immediately preceding Executive's termination; or
<PAGE>
(c) entice or induce or in any manner influence
any person who is or shall be in the employ or service of the
Company to leave such employ or service for the purpose of
engaging in a business which may be in competition with the Company.
Notwithstanding anything herein to the contrary, Executive may
own up to 1% of the outstanding equity securities of stock in any
corporation which is listed upon a national stock exchange or
actively traded in the over-the-counter market.
8. CHANGE IN CONTROL.
(a) The Executive shall be entitled to receive from the
Company Severance Benefits if there is a Change in Control of the
Company and, if within twenty-four calendar months thereafter, the
Executive's service with the Company shall end for any Qualifying
Termination or the Executive terminates his service with the
Company for Good Reason. The Company shall pay to Executive and
provide him with Severance Benefits as follows:
(1) an amount equal to three (3) times the Base
Salary in effect at the Effective Date of Termination;
(2) benefits provided pursuant to Section 3 (a),
(c) and (d) of this Agreement for a period of three
(3) years from the Effective Date of Termination or until
the Executive has obtained similar benefits from another employer.
These benefits shall be provided to the Executive at the same
premium cost, and at the same coverage level, as in effect
as of the Executive's Effective Date of Termination. However,
in the event the premium cost and/or level of
coverage shall change for management executives of the
Company generally, the cost and/or coverage level, likewise,
shall change in a corresponding manner. If and to the extent
these benefits are not or cannot be paid under an existing
policy, plan or program of the Company, the Company shall make
alternative arrangements for the provisions of such benefits at
no greater cost to the Executive. These welfare benefits shall
be discontinued in the event the Executive has available similar
benefits from a subsequent employer, as determined by the
Committee;
(3) an amount equal to the prior year's Bonus;
(4) if the Executive moves more than fifty (50) miles,
within eighteen (18) months from the Effective Date of
Termination, the Company shall pay to the Executive
fifty thousand dollars ($50,000) to cover relocation
expenses, unless such relocation expenses are
covered by a new employer;
(5) the Executive shall have the right to purchase at
fair market value or continue the lease of the automobile provided
to the Executive by the Company subject to the terms of any lease
of the automobile; and
(6) the Company agrees to forgive any indebtedness
owed by the Executive for any Excess Split Dollar Premiums.
<PAGE>
The Severance Benefits provided in 8(a)(1) and (3)
hereof shall be paid in cash to the Executive in a
single lump sum as soon as practical following the
Effective Date of Termination, but in no event
later than thirty (30) days from such date. The
Company shall withhold from any amounts payable
under this Section 8 all federal, state, city or
other taxes as legally shall be required. The
Executive shall not be entitled to receive
Severance Benefits under this Section 8 if
employment with the Company ends due to death,
Disability, or voluntary retirement without Good
Reason under a pension plan maintained by the
Company, due to any other voluntary termination of
employment by the Executive without Good Reason,
or due to termination of the Executive's
employment by the Company for Cause.
(b) Upon a Change in Control, the Option granted in
Section 4(a) hereof shall immediately vest and become exercisable.
(c) Any termination of employment by the Company for
any reason following a Change in Control or by the Executive shall be
communicated by Notice of Termination to the other party. For
purposes of this Agreement, a "Notice of Termination" shall mean
a written notice which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide
a basis for termination of the Executive's employment under the
provision so indicated.
(d) For purposes of this Agreement, the following terms
shall have the following meanings:
(1) "Beneficial Ownership" shall mean the ownership of
securities as determined in accordance with Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(2) "Cause" solely with respect to Section 8 of this
Agreement shall mean any of the following acts by the Executive:
(i) an intentional act of fraud, embezzlement or
theft in connection with his duties or in the course of
his employment with the Company;
(ii) intentional wrongful damage to property of
the Company;
(iii) intentional wrongful disclosure of
secret processes or of confidential information of the
Company; or
(iv) intentional violation of the Company's
code of conduct or ethics, as in effect immediately
prior to a Change in Control.
(3) "Change in Control" of the Company shall be
deemed to have occurred as of the first day any one or
more of the following conditions is<PAGE> satisfied,
except that, if a Change in Control occurs and if
the Executive's employment with the Company
is terminated prior to the date on which the Change in Control
occurs, and if it is reasonably demonstrated by the Executive
that such termination of employment (i) was at the request of a
third party who has taken steps reasonably calculated to effect a
Change in Control or (ii) otherwise arose in connection with or
anticipation of a Change in Control, then for all purposes of
this Agreement the Change in Control shall be deemed to have
occurred on the date immediately prior to the date of such
termination of employment:
(i) The acquisition by any Person (other than a
trustee or other fiduciary holding securities under an
executive benefit plan of the Company, or a corporation
owned solely, directly or indirectly, by the Company
or by the stockholders of the Company in substantially
the same proportions as their ownership of stock of the
Company 90 days prior to such acquisition, or an entity
the ownership by which would not constitute a Change of
Control under (iii) below), of Beneficial Ownership of
securities of the Company representing thirty-three
percent (33%) or more of the combined voting power of
the then outstanding securities of the Company
entitled to vote generally in the election of directors
of the Company (the "Voting Stock"); provided, however, that
an acquisition of thirty-three percent (33%) or more of
the Voting Stock directly from the Company shall not
constitute a Change in Control; or
(ii) A change in the composition of the Board of
the Company during any period of two (2) consecutive years
(not including any period prior to the date hereof) such
that individuals who at the beginning of such period
constitute the Board, cease for any reason to constitute
a majority thereof; provided, however, that any new
Director, who is elected by the Company's stockholders
and who was approved by a vote of a majority of the members of
the Board in office who were Directors at the beginning of the
two consecutive year period shall not be considered for
purposes of determining a Change in Control hereunder; or
(iii) Approval by the stockholders of the
Company of: (A) a plan of complete liquidation of the
Company; or (B) an agreement for the sale or disposition
of all or substantially all of the Company's assets
(except as otherwise provided in (C)); or (C) a
merger, consolidation, or reorganization of the Company (a
"Corporate Transaction") with or involving any other
corporation, OTHER THAN a Corporate Transaction that
would result in (x) the owners of more than sixty-seven
percent (67%) of the Voting Stock continuing to
have (either by such stock remaining outstanding or
by being converted into common stock of another entity or
entities) more than sixty-seven percent (67%) of the Voting
Stock immediately after such Corporate Transaction of
either (A) the Company or (B) an entity or all entities,
if more than one, which own(s) more than sixty-seven
percent (67%) of the Voting Stock or which has (have)<PAGE>
acquired all or part of the assets of the Company by sale,
transfer, or Corporate Transaction; (y) no Person
(excluding any corporation resulting from such Corporate
Transaction or any Executive benefit plan (or related trust)
of the Company or such corporation resulting from such
Corporate Transaction) beneficially owning, directly or
indirectly, twenty percent (20%) or more of,
respectively, the then outstanding shares of common stock
of the corporation resulting from such Corporate Transaction
or the combined voting power of the then outstanding voting
securities of such corporation except to the
extent that such ownership existed prior to the Corporate
Transaction; and (z) at least a majority of the members of the
board of directors of the corporation resulting from such
Corporate Transaction being members of the Board at the time
of the execution of the initial agreement, or of the action
of the Board, providing for such Corporation Transaction;
(iv) The determination by a majority of the Board
that, because of the occurrence, threat or imminence of an
event with consequences similar to the foregoing, the
Executive is entitled to the protection of this Section 8.
However, in no event shall a Change in Control be deemed to have
occurred, if the Executive is part of a purchasing group which
consummates the Change in Control transaction. The Executive
shall be deemed "part of a purchasing group" for purposes of the
preceding sentence if the Executive is an equity participant in
the purchasing company or group (except for: (i) passive
ownership of less than three percent (3%) of the stock of the
purchasing company; or (ii) ownership of equity participation in
the purchasing company or group which is otherwise not
significant, as determined prior to the Change in Control by a
majority of the Company's non-employee continuing directors).
(4) "Code" means the Internal Revenue Code of 1986,
as amended.
(5) "Committee" means the Compensation Committee
of the Board of Directors of Rawlings Sporting Goods Company, Inc.
(6) "Disability" means permanent and total disability,
within the meaning of Section 22(e)(3) of the Code, as determined
by the Committee in the exercise of good faith and reasonable
judgment, upon receipt of and in reliance on sufficient competent
medical advice from one or more individuals, selected by the
Committee, who are qualified to give professional medical advice.
(7) "Effective Date of Termination" means the date
on which a Qualifying Termination occurs which triggers the
payment of Severance Benefits hereunder.
<PAGE>
(8) "Good Reason" means, without the Executive's
express written consent, the occurrence after a Change in
Control of the Company of any one or more of the following:
(i) The assignment of the Executive to duties
materially inconsistent with the Executive's authorities,
duties, responsibilities, and status (including offices,
titles, and reporting requirements) as Chairman and
Chief Executive Officer of the Company, or a reduction
or alteration in the nature or status of the Executive's
authorities, duties, or responsibilities from those
in effect as of ninety (90) days prior to the Change in
Control, other than an insubstantial and inadvertent act
that is remedied by the Company or the entity succeeding
to the Company's responsibilities after the Change in
Control (such "Successor" is referred to herein also as the
"Company") promptly after receipt of notice thereof given
by the Executive and other than any such alteration primarily
attributable to the fact that the Company may no longer be a
public company;
(ii) The relocation of the Executive to a worksite
more than thirty-five (35) miles from the office at which
the Executive was based as of the date hereof, except for
required travel on the business of the Company to an
extent substantially consistent with the Executive's
present business obligations;
(iii) A reduction by the Company in the
Executive's Base Salary as in effect on the date
immediately preceding a Change in Control;
(iv) The failure of the Company to continue in
effect any of the Company's benefit or compensation plans,
or retirement plans, policies, practices, or arrangements
in which the Executive participates, or the failure by the
Company to continue the Executive's participation
in such plans on substantially the same basis,
both in terms of the amount of benefits provided and the
level of the Executive's participation relative to other
participants, as existed immediately prior to the Change in
Control of the Company;
(v) The failure of the Company to obtain a
satisfactory agreement from any Successor to the Company
to assume and agree to perform the obligations under
Section 8 of this Agreement; or
(vi) Any purported termination by the Company
of the Executive's employment that is not effected
pursuant to a Notice of Termination. The Executive's
determination of Good Reason shall be conclusive,
if made in good faith. The Executive's right to terminate
employment for Good Reason shall not be affected by the
Executive's incapacity due to physical or mental illness.
The Executive's continued<PAGE> employment shall not
constitute consent to, or a waiver of rights with
respect to, any circumstance constituting Good Reason.
(9) "Person" shall have the meaning ascribed to such
term in Section 3(a)(9) of the Exchange Act as used in
Sections 13(d) and 14(d) thereof, including a "group" as
defined in Section 13(d).
(10) "Qualifying Termination" means any of the following
events, the occurrence of which triggers the payment of Severance
Benefits hereunder:
(i) A termination of the Executive's employment
with the Company for reasons other than death, Disability,
normal retirement (as defined under any pension plan
maintained by the Company), any other voluntary termination of
employment by the Executive without Good Reason, or
termination of the Executive's employment by the
Company for Cause;
(ii) A termination of the Executive's employment
with the Company, by the Executive, for Good Reason;
(iii) The failure or refusal of a Successor to
assume the Company's obligations under Section 8 of this
Agreement; or
(iv) The breach by the Company of any of the
provisions of Section 8 of this Agreement.
(e) SUCCESSORS. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation, or
otherwise) of all or substantially all of the business and/or
assets of the Company or of any division or subsidiary thereof to
expressly assume and agree to perform Section 8 of 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.
Failure of the Company to obtain such assumption and agreement
prior to the effectiveness of any such succession shall be a
breach of Section 8 of this Agreement and shall entitle the
Executive to compensation from the Company in the same amount and
on the same terms as he would be entitled hereunder if terminated
voluntarily for Good Reason, except that for the purposes of
implementing the foregoing, the date on which any such succession
becomes effective shall be deemed the Effective Date of
Termination.
Section 8 of this Agreement shall inure to the benefit
of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors,
heirs, distributees, devisees, and legatees. If the
Executive should die while any amount would still be payable
to him hereunder had he continued to live, all such amounts,
unless otherwise provided herein, shall be paid in
accordance with the terms of Section 8 of this Agreement, to
the Executive's devisee, legatee, or other designee, or if
there is no such designee, to the Executive's estate.
<PAGE>
(f) BENEFICIARIES. The Executive may designate one or more
persons or entities as the primary and/or contingent
beneficiaries of any Severance Benefits, other than as provided
in Section 4(c), to be made under Section 8 of this Agreement.
Such designation must be in the form of a signed writing
acceptable to the Committee. The Executive may make or change
such designation at any time.
9. SPECIFIC PERFORMANCE. Recognizing that irreparable damage
will result to the Company in the event of the breach or
threatened breach of any of the foregoing covenants and
assurances by the Executive contained in Sections 6 or 7 hereof,
and that the Company's remedies at law for any such breach or
threatened breach will be inadequate, the Company and its
successors and assigns, in addition to such other remedies which
may be available to them, shall be entitled to an injunction,
including a mandatory injunction, to be issued by any court of
competent jurisdiction ordering compliance with this Agreement or
enjoining and restraining the Executive, and each and every
person, firm or company acting in concert or participation with
him, from the continuation of such breach and, in addition
thereto, he shall pay to the Company all ascertainable damages,
including costs and reasonable attorneys' fees sustained by the
Company by reason of the breach or threatened breach of said
covenants and assurances. The obligations of the Executive and
the rights of the Company, its successors and assigns under
Sections 6, 7, 9, 10, 12, 16, 18 and 19 of this Agreement shall
survive the termination of this Agreement. The covenants and
obligations of the Executive set forth in Sections 6 and 7 hereof
are in addition to and not in lieu of or exclusive of any other
obligations and duties of the Executive to the Company, whether
express or implied in fact or in law.
10. POTENTIAL UNENFORCEABILITY OF ANY PROVISION. If a final
judicial determination is made that any provision of this
Agreement is an unenforceable restriction against the Executive,
the provisions hereof shall be rendered void only to the extent
that such judicial determination finds such provisions
unenforceable, and such unenforceable provisions shall
automatically be reconstituted and become a part of this
Agreement, effective as of the date first written above, to the
maximum extent that is lawfully enforceable. A judicial
determination that any provision of this Agreement is
unenforceable shall in no instance render the entire Agreement
unenforceable, but rather the Agreement will continue in full
force and effect absent any unenforceable provision to the
maximum extent permitted by law.
11. TERMINATION.
(a) This Agreement shall terminate immediately upon
the death, Disability or adjudication of legal incompetence of the
Executive, or upon the Company's ceasing to carry on its business
or becoming bankrupt.
(b) This Agreement may be terminated by either the Company
or the Executive upon 60 days notice at any time with or without
Cause and for any or no reason. Nothing in this Agreement shall
be deemed or construed to require the Company to employ, or to
continue to employ, the Executive for any specified period of
time and, regardless of the manner or duration of the Executive's
compensation, nothing contained herein shall create employment
for a definite term. The Executive acknowledges that no
representative of the Company has any authority to make any
agreement contrary to the foregoing.
<PAGE>
(c) In the event this Agreement is terminated, the parties'
obligations under this Agreement shall terminate immediately
(except as otherwise provided herein), and neither the Executive
nor his estate, heirs, successors or assigns shall be entitled to
any further compensation hereunder. If the Company terminates
the Executive's employment, other than for Cause (as defined
below), at a time when the Executive is fully willing and able to
perform his duties as an employee of the Company or if the
Executive voluntarily terminates his employment with the Company
because the Company has assigned the Executive to duties
materially inconsistent with the Executive's authorities, duties,
responsibilities, and status (including offices, titles, and
reporting requirements) as Chairman and Chief Executive Officer
of the Company, or has reduced or alterated in nature or status
the Executive's authorities, duties, or responsibilities, other
than an insubstantial and inadvertent act that is remedied by the
Company, or the Company has reduced Executive's Base Salary and
in no other circumstances during the term hereof (e.g., the
Executive's death or disability or voluntary termination for any
reason other than hereinbefore set forth); the Company shall be
required to pay Executive an amount equal to his Base Salary for
twenty-four (24) months at the rate then in effect pursuant to
Section 2 above and Executive shall continue to receive for a
twenty-four (24) month period the medical benefits Executive was
receiving at the time of termination under Section 3(e) hereof.
Notwithstanding the foregoing or anything herein to the contrary,
in the event the Executive is receiving Severance Benefits
provided in Section 8 hereof, the Executive shall NOT also
receive the payments described in this Section 11(c). For
purposes of this Section 11, "Cause" shall mean the occurrence of
any of the following events:
(1) Performance by the Executive of illegal or
fraudulent acts, criminal conduct or willful misconduct,
or gross negligence relating to the activities of the Company;
(2) Willful or grossly negligent failure by the
Executive to perform his duties in a manner which he knows,
or has reason to know, to be in the Company's best interests;
(3) Willful and bad faith refusal by the Executive
to carry out reasonable instructions of the Board of
Directors of the Company not inconsistent with the
provisions of this Agreement;
(4) Violation by the Executive of the covenants
and agreements contained in Section 7 hereof;
(5) Any other material breach of the Executive's
obligations hereunder which are incurable or which he
fails to cure promptly after receiving written notice thereof; or
(6) The Company ceases operations due to a voluntary or
involuntary discontinuance of its business operations.
<PAGE>
12. WAIVER OF BREACH. Failure of the Company to demand strict
compliance with any of the terms, covenants or conditions hereof
shall not be deemed a waiver of the term, covenant or condition,
nor shall any waiver or relinquishment by the Company of any
right or power hereunder at any one time or more times be deemed
a waiver or relinquishment of the right or power at any other
time or times.
13. NO CONFLICTS. The Executive represents and warrants to the
Company that neither the execution nor delivery of this
Agreement, nor the performance of the Executive's obligations
hereunder will conflict with, or result in a breach of, any term,
condition, or provision of, or constitute a default under, any
obligation, contract, agreement, covenant or instrument to which
the Executive is a party or under which the Executive is bound,
including without limitation, the breach by the Executive of a
fiduciary duty to any former employers.
14. ENTIRE AGREEMENT; AMENDMENT. This Agreement cancels and
supersedes all previous agreements relating to the subject matter
of this Agreement, written or oral, between the parties hereto
and contains the entire understanding of the parties hereto and
shall not be amended, modified or supplemented in any manner
whatsoever except as otherwise provided herein or in writing
signed by each of the parties hereto.
15. CAPTIONS. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall in
no way restrict or otherwise modify any of the terms or
provisions hereof.
16. GOVERNING LAW. This Agreement and all rights and
obligations of the parties hereunder shall be governed by, and
construed and interpreted in accordance with, the laws of the
State of Missouri applicable to agreements made and to be
performed entirely within the State, including all matters of
enforcement, validity and performance.
17. NOTICE. All notices, requests, demands and other
communications hereunder shall be deemed duly given if delivered
by hand or if mailed by certified or registered mail with postage
prepaid as follows:
If to the Company:
Rawlings Sporting Goods Company, Inc.
P.O. Box 22000
St. Louis, Missouri 63126
Attn: Corporate Secretary
If to the Executive:
Stephen M. O'Hara
945 Delvin Drive
Town and Country, Missouri 63131
<PAGE>
With a copy to:
Phillip Jameson
GW & Wade
621 Walnut Street
Wellesley, Massachusetts 02181
or to any other address as either party may provide to the other
in writing.
18. ASSIGNMENT. This Agreement is personal and not assignable
by the Executive but it may be assigned by the Company without
notice to or consent of the Executive to, and shall thereafter be
binding upon and enforceable by any person which shall acquire or
succeed to substantially all of the business or assets of the
Company (and such person shall be deemed included in the
definition of the "Company" for all purposes of this Agreement)
but is not otherwise assignable by the Company.
19. ARBITRATION. Except with respect to disputes or
controversies arising out of Sections 6 and 7 hereof, any dispute
between any of the parties hereto or claim by a party against
another party arising out of or in relation to this Agreement or
in relation to any alleged breach thereof shall be finally
determined by arbitration in accordance with the rules then in
force of the American Arbitration Association. The arbitration
proceedings shall take place in St. Louis, Missouri, or such
other location as the parties in dispute hereafter may agree
upon; and such proceedings shall be governed by the laws of the
State of Missouri as such laws are applied to agreements between
residents of such State entered into and to be performed entirely
within that State.
The parties shall agree upon one arbitrator, who shall
be an individual skilled in the legal and business aspects of the
subject matter of this Agreement and of the dispute. If the
parties cannot agree upon one arbitrator, each party in dispute
shall select one arbitrator and the arbitrators so selected shall
select a third arbitrator. In the event the arbitrators cannot
agree upon the selection of a third arbitrator, the third
arbitrator shall be appointed by the American Arbitration
Association at the request of any of the parties in dispute. The
arbitrators shall, if possible, be individuals skilled in the
legal and business aspects of the subject matter of this
Agreement and of the dispute.
The decision rendered by the arbitrator or arbitrators
shall be accompanied by a written opinion in support thereof.
The decision shall be final and binding upon the parties in
dispute without right of appeal. Judgment upon the decision may
be entered into in any court having jurisdiction thereof, or
application may be made to that court for a judicial acceptance
of the decision and an order of enforcement. Costs of the
arbitration shall be assessed by the arbitrator or arbitrators
against any or all of the parties in dispute, and shall be paid
promptly by the party or parties so assessed.
IN WITNESS WHEREOF, the Company has caused this
Agreement to be duly executed in duplicate, and the Executive has
hereunto set his hand, on the day and year first above written.
[signature page to follow]
<PAGE>
RAWLINGS SPORTING GOODS
COMPANY, INC.
By: /s/ Mike Luetkemeyer
Name: Mike Luetkemeyer
Title: CFO
/s/ Stephen M. O'Hara
Stephen M. O'Hara
<PAGE>
