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Indiana
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0-20184
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35-1537210
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(State
or Other Jurisdiction of Incorporation)
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(Commission
File Number)
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(IRS
Employer Identification No.)
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3308
North Mitthoeffer Road, Indianapolis, Indiana
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46235
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(Address
of Principal Executive Offices)
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(Zip
Code)
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¨
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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¨
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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¨
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Term
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The
term of Mr. Wilhelm’s employment agreement commences on March 30, 2009 and
extends to December 30, 2009. The term is subject to automatic renewal for
additional 1-year periods unless the Company or Mr. Wilhelm
gives notice of non-renewal at least 180 days before the next extension
date.
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Base
Salary; Bonus Participation
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Mr.
Wilhelm’s base salary is $300,000. Mr. Wilhelm is eligible to
participate in the annual and long-term incentive bonus compensation
programs and employee benefit plans available to other
executives.
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Rights
Upon Non-Renewal of Employment Agreement, Coupled with Termination (not
due to “cause”)
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In
this event Mr. Wilhelm will be entitled to the following severance
benefits: (i) base salary for one year; (ii) health insurance for one
year; and (iii) the current year bonus based on days of service during the
year and actual performance for the year.
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Rights
Upon Termination by the Company for “Cause” or by Mr. Wilhelm without
“Good Reason”
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In
this event Mr. Wilhelm will be entitled to the following: (i) Mr. Wilhelm
will have 35 days after notice to attempt to cure any cause; (ii) whether
cause has occurred will be determined by a majority of the Board of
Directors; (iii) embezzlement and theft are confirmed as constituting
conduct that causes demonstrable harm to the Company, and are thereby a
basis for cause; and (iv) any failure to perform material duties must
continue for 30 days in order to support a finding of
cause.
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Rights
Upon Termination by the Company without “Cause” or by Mr. Wilhelm with
“Good Reason” (not during the 30 days before or 2 years after a change in
control)
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A
“good reason” for Mr. Wilhelm to terminate employment includes (i) a
reduction in base salary or bonus opportunities that does not affect all
executives; (ii) a transfer out of the geographic area; and (iii) a
substantial reduction in authority, duties or responsibilities, or the
imposition of duties and responsibilities inconsistent with Mr. Wilhelm’s
position, if these developments occur during the 30 days before or 2 years
after a change in control. Also, the occurrence of a material
breach by the Company constitutes “good reason.” The Company
has the right to receive notice of such claimed “good reason” to terminate
as well as an opportunity to cure the problem.
In
the event of a termination without cause or a resignation for good
reason, Mr. Wilhelm is entitled to receive a lump sum payment
equal to his base salary within 30 days following such termination,
continued health benefits for 1 year, and an amount equal to a
pro-rated portion of any earned annual bonus Mr. Wilhelm would have
received had he remained employed through the entire year payable when
such bonuses are generally paid to other Company executives but no later
than two and one half months after the end of the year in which the bonus
was earned.
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Rights
Upon Termination by the Company without “Cause” or by
Mr. Wilhelm with “Good Reason” (during the 30 days before or 2
years after a change in control)
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In
the event of a termination without cause or a resignation with good
reason relating to a change in control, Mr. Wilhelm will be
entitled to receive a lump sum payment equal to 2.5 times the sum of (i)
base salary, plus (ii) target annual bonus for the termination year, plus
(iii) the value of any other bonus that he could have earned during the
termination year. Mr. Wilhelm will also be entitled to
continued health coverage for 2 years.
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Definition
of Change in Control
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A
“change in control” is defined generally to cover transactions in which
substantially all the assets are disposed of or in which a person or group
other than the Company’s original named founders own more than 35% of the
total voting power of the Company. The definition also includes
certain reorganizations affecting voting control and certain changes in
the composition of the Board of Directors.
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Parachute
Taxes
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In
the event Mr. Wilhelm will be subject to the excise tax imposed by Section
4999 of the Internal Revenue Code of 1986, as amended, then Mr. Wilhelm
will continue to be entitled to receive additional payments from the
Company.
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Non-Competition
Provisions
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Mr.
Wilhelm will be bound to observe certain non-competition covenants for 12
months following (i) termination without cause or resignation for good
reason prior to a change in control, or (ii) resignation without good
reason following a change in control. After a change in
control, the restrictive period for a termination without cause or a
resignation for good reason is 24 months.
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(d)
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Exhibits
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Exhibit
Number
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Description
of Exhibit
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10.1
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Employment
Agreement of Edward Wilhelm, dated as of March 30,
2009
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The
Finish Line, Inc.
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Date:
April 14, 2009
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By:
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/s/
Gary D. Cohen
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Gary
D. Cohen
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Executive
Vice President and General
Counsel
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Exhibit
Number
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Description
of Exhibit
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Location
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10.1
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Employment
Agreement of Edward Wilhelm, dated as of March 30, 2009
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Attached
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