fl_8k1128ex101.htm


    Exhibit
10.1

     

    
 

      Retirement
Agreement

       

      


       

      This
Retirement Agreement (this “Agreement”) is entered into
between Alan H. Cohen (“Executive”) and The Finish
Line, Inc. (the “Company”).

       

      RECITALS

       

       

      
        	
                 
      

              	
                A.

              	
                Executive
      has made the decision to retire from the Company effective as of the close
      of business on November 30, 2008.

              


      

       

      
        	
                 
      

              	
                B.

              	
                The
      Company has agreed to accept Executive’s retirement from the
      Company.

              


      

       

      NOW
THEREFORE, in recognition of Executive’s service with the Company, and in
consideration of the mutual covenants, promises, and obligations contained in
this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which is mutually acknowledged, the parties agree as
follows:

       

      AGREEMENT

       

       

      
        	
                1.

              	
                Definitions.

              


      

       

      
        	
                 
      

              	
                (a)

              	
                Throughout
      this Agreement, the term “the Company” shall encompass the following: (i)
      the Company, as well as any division thereof, parent, subsidiary,
      affiliated entity, or related entity; and (ii) any current or former
      officer, director, trustee, agent, employee, shareholder, representative,
      insurer, or employee benefit or welfare program or plan (including
      administrators, trustees, fiduciaries, and insurers of such program or
      plan) of an entity referenced in or encompassed by Subparagraph
      1(a)(i).

              


      

       

      
        	
                 
      

              	
                (b)

              	
                Throughout
      this Agreement, the term “Retirement Date” shall mean the close of
      business on November 30, 2008, or such earlier date as Executive’s
      employment terminates pursuant to Paragraph
2.

              


      

       

      
        	
                2.

              	
                Employment.  The Company
      agrees that Executive will continue in the employ of the Company until the
      close of business on November 30, 2008, on which date Executive’s
      employment will terminate, and Executive agrees that Executive will not
      terminate Executive’s employment with the Company until the close of
      business on November 30, 2008; provided, however, such
      employment shall cease upon Executive’s death prior to such
      date.

              


      

       

      
        	
                3.

              	
                Retirement
      Payments and Other Consideration.  As part of
      the retirement package, if Executive signs this Agreement and this
      Agreement is not revoked by Executive, the Company shall provide Executive
      with the following, all in consideration of the terms and conditions and
      releases contained in this
Agreement:

              


      

       


      
        
           


        

        
           

          
            

          

        

        
           


        

      


      
        	 	
                (a)

              	
                On
      the first payroll date after the Retirement Date, the Company agrees to
      pay Executive unpaid salary through the Retirement Date plus accrued
      vacation through the Retirement
Date.

              


      

       

      
        	
                 
      

              	
                (b)

              	
                The
      Company agrees to pay Executive a retirement payment equal to $100,000
      (the “Retirement
      Payment”).  The Retirement Payment shall be made to
      Executive on January 5, 2009.

              


      

       

      
        	
                 
      

              	
                (c)

              	
                Executive
      is a participant in the Finish Line Executive Officer Bonus Program for
      Fiscal Year 2009 (the “EBOP”).  Notwithstanding
      anything to the contrary contained in the EBOP, the Company agrees to pay
      Executive a retirement payment equal to the product of (i) the bonus
      percentage of base salary that would have been earned under the EBOP based
      on performance as if Executive was employed by the Company as CEO during
      the entire performance period set forth in the EBOP, multiplied by (ii)
      the sum of (1) the base salary actually paid to Executive through the
      Retirement Date plus (2) the Retirement Payment (the “EBOP
      Payment”).  The EBOP Payment shall be made to Executive
      on the date the payments under the EBOP are made to other participants
      generally (which date shall be no later than December 31,
      2009).

              


      

       

      
        	
                 
      

              	
                (d)

              	
                The
      Company acknowledges that each of Executive and Executive’s spouse are
      permitted to participate in the Company’s health and dental insurance plan
      and comparable vision plan (collectively, the “Medical Plan”) beginning
      on the Retirement Date pursuant to the terms and conditions contained in
      the Medical Plan relating to founders.  The Medical Plan shall
      permit participation of each of Executive and Executive’s spouse until he
      or she is entitled to participate in Medicare and, thereafter, shall
      permit the provision of Medicare supplemental insurance to Executive and
      Executive’s spouse.

              


      

       

      
        	
                 
      

              	
                (e)

              	
                The
      Company acknowledges that the Company has agreed to the “retirement” of
      Executive under the alternate retirement provisions of the Company’s
      policy on retirement as of the Retirement Date.  As such,
      Executive is deemed retired under the award agreements between the Company
      and Executive entered into in connection with the 2002 Stock Incentive
      Plan of The Finish Line, Inc. (as amended and restated July 21, 2005)
      beginning on the Retirement Date and, as a result, all awards of stock
      options and incentive stock shall vest on the Retirement
    Date.

              


      

       

      
        	
                 
      

              	
                (f)

              	
                No
      payment or other consideration under this Paragraph 3 shall be made until
      after the effective date of this Agreement (as determined pursuant to this
      Agreement).

              


      

       

      In paying
the amount specified in this Paragraph 3, The Company makes no representation as
to the tax consequences or liability arising from said payment including,
without limitation, under Section 409A of the Internal Revenue Code of 1986, as
amended.  Moreover, the parties understand and agree that any tax
consequences and/or liability arising from the payment to

       


      
        
           


        

        
          2

          
            

          

        

        
           


        

      


      Executive
shall be the sole responsibility of Executive.  To this extent,
Executive acknowledges and agrees that Executive will pay any and all income tax
which may be determined to be due in connection with the payment described in
this Paragraph 3.

       

      The
payments and obligations assumed by the Company in this Paragraph 3 reflect
consideration provided to Executive over and above anything of value to which
Executive already is entitled, and will be subject to all applicable taxes,
withholdings, and deductions.  The Company may deduct from any payment
to Executive any applicable withholding.  Executive acknowledges and
agrees that no other sums or amounts are or will be due or owing to him and
expressly waives any rights or claims to additional sums, amounts, privileges,
or benefits not expressly provided for in this Paragraph 3, whether written,
oral, express or implied.

       

      
        	
                4.

              	
                General
      Release and Waiver.  In
      consideration for the payment reflected in Paragraph 3, Executive (for
      Executive and Executive’s agents, assigns, heirs, executors, and
      administrators) hereby releases and discharges the Company from any claim,
      demand, action, or cause of action, known or unknown, which arose at any
      time from the beginning of time to the date Executive executes this
      Agreement, and waives all claims relating to, arising out of, or in any
      way connected with Executive’s employment with the Company including,
      without limitation, any claim, demand, action, cause of action, including
      money damages and claims for attorneys’ fees, based on but not limited to:
      (a) the Age Discrimination in Employment Act of 1967, as amended (“ADEA”),
      29 U.S.C. § 621, et
      seq; (b) the Americans with Disabilities Act of 1990, 42 U.S.C.
      § 12101, et seq.; (c) the
      Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701, et seq.; (d) the
      Family and Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq.; (e) the
      Civil Rights Act of 1866 and 1964, as amended, 42 U.S.C. § 1981; (f)
      Executive Retirement Security Act, 29 U.S.C. § 1001, et seq.; (g) Title
      VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e),
      et seq.; (h) the
      Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq.; (i) the
      Worker Adjustment and Retaining Notification Act, 29 U.S.C. § 2101, et seq.; (j) the
      Indiana Civil Rights Law, Ind. Code § 22-9-1-1, et seq.; (k) the
      Indiana wage payment statute, Ind. Code § 22-2-4-1, et seq.; and any
      Indiana wage law; (l) any existing or potential entitlement under any the
      Company program or plan, including wages or other paid leave; (m) any
      existing or potential agreement, contract, representation, policy,
      procedure, or statement (whether any of the foregoing are express or
      implied, oral or written); (n) claims arising under any other federal,
      state and local fair employment practices law, disability benefits law,
      and any other employee or labor relations statute, executive order, law or
      ordinance, and any duty or other employment-related obligation, claims
      arising from any other type of statute, executive order, law or ordinance,
      claims arising from contract or public policy, as well as tort, tortious
      cause of conduct, breach of contract, intentional infliction of emotional
      distress, negligence, discrimination, harassment, and retaliation,
      together with all claims for monetary and equitable relief, punitive and
      compensatory relief and attorneys’ fees and costs; (o) the Indiana
      Constitution; and/or (p) the United States
  Constitution.

              


      

       

      Executive
understands and agrees that Executive is releasing the Company from any and all
claims by which Executive is giving up the opportunity to recover any
compensation, damages, or any other form of relief in any proceeding brought by
Executive or on

       


      
        
           


        

        
          3

          
            

          

        

        
           


        

      


      Executive’s
behalf.  Notwithstanding the foregoing, this Agreement is not intended
to operate as a waiver of any retirement or pension benefits that are vested,
the eligibility and entitlement to which shall be governed by the terms of the
applicable plan.  Nor shall this Agreement operate to waive or bar any
claim or right which -- by express or unequivocal terms of law -- may not under
any circumstances be waived or barred.  Moreover, this Agreement shall
not operate to waive rights, causes of action or claims under the ADEA if those
rights, causes of action or claims arise after the date Executive signs this
Agreement.  Nor shall this Agreement preclude Executive from
challenging the validity of this Agreement under the ADEA.

       

      
        	
                5.

              	
                Mutual
      Disclaimer.  This
      Agreement is entered into to provide Executive with a retirement package
      and to terminate the parties’ relationship on an amicable basis and shall
      not be construed as an admission of liability by either party. 
      Accordingly, Executive states under penalties of perjury that - at the
      time Executive executes this Agreement - Executive is not aware of any
      facts or incidents of wrongdoing, liability, or discrimination by the
      Company from the beginning of time up to the date Executive signs the
      Agreement.  The parties further understand that the retirement
      package creates no precedent for the Company in dealing with any future
      separations.

              


      

       

      
        	
                6.

              	
                Covenant
      Not to Sue.  Except for
      those claims, causes of action or rights explicitly excluded from release
      in Paragraph 4 above, Executive agrees that Executive will never file or
      accept anything of value from a lawsuit concerning any claim, issue, or
      matter relating to or arising out of employment with the Company, the
      cessation of employment, or the compensation or benefits payable in
      connection with employment or termination of employment.  Should
      Executive violate any aspect of this Paragraph, Executive agrees: (a) that
      the lawsuit is null and void, and must be summarily withdrawn and/or
      dismissed; (b) to pay all costs, expenses, and damages incurred by the
      Company in responding to or as a result of any lawsuit brought by
      Executive that breaches this Agreement, including, without limitation,
      reasonable attorneys’ fees; (c) to pay all costs and expenses incurred by
      the Company in seeking enforcement of this Agreement, including reasonable
      attorneys’ fees; and (d) to return the amount paid pursuant to Paragraph 3
      – save $500 – within fourteen (14) days of written demand by the
      Company.  In the event this reimbursement provision is
      triggered, Executive agrees that the remaining provisions of this
      Agreement shall remain in full force and
effect.

              


      

       

      
        	
                7.

              	
                Confidentiality
      Agreement.  Executive agrees that as a result of
      Executive’s position with the Company Executive had access to sensitive,
      private, and/or confidential information.  Executive agrees not
      to use or disclose (directly or indirectly) confidential, sensitive, or
      proprietary information concerning the Company obtained by Executive
      during Executive’s employment with the Company. For purposes of this
      Agreement, “proprietary information” includes, without limitation, all
      materials and information (whether written or not) about the Company’s
      current, prior, or prospective services or business activities, network,
      products, processes, plans, system designs, system applications,
      customers, suppliers, affiliates, personnel, finances, purchasing, sales,
      marketing and markets, accounting, business contracts, agreements,
      licenses, costs, pricing, profits, improvements, and other business
      aspects of the Company (including,
but

              


      

       


      
        
           


        

        
          4

          
            

          

        

        
           


        

      


      not
limited to, information concerning, relating to, or arising out of relationships
or agreements with customers, suppliers, independent sales agents, lenders, or
other business affiliates), which are not generally known and accessible to the
public at large or which provide the Company with a competitive
advantage.  Executive hereby agrees that: (a) Executive has kept and
will keep all such information confidential; and (b) Executive will not use or
disclose any such information to anyone without first obtaining express
authorization to do so from the undersigned representative of the
Company.  Notwithstanding the foregoing, nothing in this Agreement
shall be intended to limit Executive’s ability to provide information to legal
counsel for the Company or pursuant to a court order.  Moreover, this
Paragraph shall not encompass or apply to information which is in the public
domain, which becomes part of the public domain through no act, omission, or
fault of Executive, or which was in Executive’s possession prior to Executive’s
employment with the Company.  The Company does not intend to limit
Executive in any way from seeking employment or conducting business so long as
Executive does not use or disclose the proprietary information covered by this
Paragraph and so long as Executive does not violate any other provision
contained within this Agreement.

       

      
        	
                8.

              	
                Non-competition.  Beginning
      on the Retirement Date and ending on the date one (1) year after the
      Retirement Date, Executive will not directly or indirectly, own, manage,
      operate, control or participate in the ownership, management, operation or
      control of, or be connected as an officer, employee, partner, director or
      otherwise with, or have any financial interest in, any business which
      competes, or that is planning to compete, with the business of the Company
      or any other business in which the Company is engaged immediately prior to
      the Retirement Date or engage in any business that competes with the
      Company anywhere in the United States of America.  The parties
      expressly agree that the terms of this limited non-competition provision
      under this Paragraph are reasonable, enforceable, and necessary to protect
      the Company’s interests, and are valid and enforceable.  In the
      unlikely event, however, that a court of competent jurisdiction determines
      that any portion of this limited non-competition provision is
      unenforceable, the parties agree that the remainder of the limited
      non-competition provision shall remain valid and enforceable to the
      maximum extent possible.  The foregoing shall not prohibit
      Executive from owning up to one percent (1%) of the issued and outstanding
      stock of any other publicly traded company.  Executive agrees
      that it would be difficult to measure damages to the Company from any
      breach of the covenants contained in this Paragraph, but that such damages
      from any breach would be great, incalculable and irremediable, and that
      damages would be an inadequate remedy.  Accordingly, Executive
      agrees that upon a breach of any of the covenants contained in this
      Paragraph the Company may have specific performance of the terms of this
      Agreement in any court permitted by this Agreement.  The parties
      agree, however, that specific performance and the other remedies described
      herein shall not be the exclusive remedies, and the Company may enforce
      any other remedy or remedies available to it either in law or in equity
      including, but not limited to, temporary, preliminary, and/or permanent
      injunctive relief.

              


      

       

      
        	
                9.

              	
                Successors.  This
      Agreement shall apply to Executive, as well as to his heirs, executors,
      administrators, and agents.  This Agreement also shall apply to,
      and inure to the benefit of 

              


      

       


      
        
           


        

        
          5

          
            

          

        

        
           


        

      


      the
Company, the predecessors, successors, and assigns of the Company and each past,
present, or future employee, agent, representative, insurer, trustee, officer,
or director of the Company.

       

      
        	
                10.

              	
                Severability.  The parties
      explicitly acknowledge and agree that the provisions of this Agreement are
      both reasonable and enforceable.  However, the provisions of
      this Agreement are severable, and the invalidity of any one or more
      provisions shall not affect or limit the enforceability of the remaining
      provisions.  Should any provision be held unenforceable for any
      reason, then such provision shall be enforced to the maximum extent
      permitted by law.

              


      

       

      
        	
                11.

              	
                Applicable
      Law and Jurisdiction.  This
      Agreement shall be interpreted, enforced, and governed under the laws of
      Indiana.  Moreover, while the parties do not contemplate any
      future disputes, Executive agrees that any action or claim regarding this
      Agreement or otherwise brought against the Company by or on behalf of
      Executive, Executive’s agents, assigns, heirs, administrators, or
      executors that relate to Executive’s employment or the termination thereof
      shall be maintained in Indiana.  If brought in state court, the
      action shall be filed in Marion County; if brought in federal court, the
      action shall be filed in the Southern District of Indiana, Indianapolis
      Division.  By signing this Agreement, Executive expressly
      consents to personal jurisdiction in Indiana.  Both parties
      waive the right to a jury trial.

              


      

       

      
        	
                12.

              	
                Nonwaiver.  The waiver
      by the Company of a breach of any provision of this Agreement by Executive
      shall not operate or be construed as a waiver of any subsequent breach by
      Executive.

              


      

       

      
        	
                13.

              	
                Indemnification.  Executive
      shall be indemnified by the Company against claims arising in connection
      with Executive’s status as an employee, officer, director or agent of the
      Company in accordance with the Company’s indemnity policies and programs
      for its senior executives, subject to applicable
  law.

              


      

       

      
        	
                14.

              	
                Knowledge
      and Understanding.  Executive
      acknowledges that, in accordance with the ADEA,
  Executive:

              


      

       

      
        	
                 
      

              	
                (a)

              	
                has
      been, and is hereby, advised to consult with an attorney prior to
      executing this Agreement and has had the opportunity to do
    so;

              


      

       

      
        	
                 
      

              	
                (b)

              	
                has
      been given a period of twenty-one (21) days within which to consider this
      Agreement, which allows Executive to make a knowing, voluntary, and fully
      informed choice about whether to sign this
  Agreement;

              


      

       

      
        	
                 
      

              	
                (c)

              	
                has
      availed Executive’s of all opportunities Executive deems necessary to make
      a voluntary, knowing, and fully informed decision;
  and

              


      

       

      
        	
                 
      

              	
                (d)

              	
                is
      fully aware of Executive’s rights, and has carefully read and fully
      understands all provisions of this Agreement before
    signing.

              


      

       


      
        
           


        

        
          6

          
            

          

        

        
           


        

      


      
        	
                15.

              	
                Effective
      Date.  This
      Agreement may only be accepted during the twenty-one (21) day period after
      Executive receives this Agreement.  In the event Executive
      executes this Agreement within the twenty-one (21) days following his
      receipt of this Agreement, Executive shall have an additional period of
      seven (7) days to revoke this Agreement.  Any revocation shall
      be in writing and delivered via facsimile (facsimile number (317)
      894-6340) to the attention of General Counsel.  This Agreement
      shall not become effective, therefore, and none of the payments set forth
      in this Agreement shall become due until Executive has executed the
      Agreement and the seven-day revocation period has expired without
      revocation being exercised.

              


      

       

      
        	
                16.

              	
                Complete
      Agreement.  This
      Agreement sets forth the complete agreement between the parties relating
      to the subjects herein.  Executive acknowledges and agrees that,
      in executing this Agreement, Executive does not rely and has not relied
      upon any representations or statements not set forth herein made by the
      Company with regard to the subject matter, basis, or effect of this
      Agreement or otherwise.  Notwithstanding the foregoing, nothing in this
      Agreement is intended to or shall limit, supersede, nullify, or affect any
      other duty or responsibility Executive may have or owe to the Company by
      virtue of any separate agreement or
obligation.

              


      

       

      [Signature
page immediately follows.]

       


       

    


    
      
         


      

      
        7

        
          

        

      

      
         


      

    


    BY
SIGNING THIS RELEASE, I STATE THAT:  I HAVE READ IT; I UNDERSTAND IT
AND KNOW THAT I AM GIVING UP IMPORTANT RIGHTS; I AGREE TO ALL THE TERMS
CONTAINED WITHIN THIS AGREEMENT; I AM AWARE OF MY RIGHT TO CONSULT WITH AN
ATTORNEY BEFORE SIGNING IT AND HAVE HAD THE OPPORTUNITY TO DO SO; I HAVE SIGNED
IT KNOWINGLY AND VOLUNTARILY.

     

    


    
    

     

    
      	  AGREED TO BY:	 	 	 	 
	 	 	 	The
      Finish Line, Inc.  	 
	 	 	 	 	 
	 	 	 	 	 
	 /s/ Alan H.
      Cohen	 	
              By: 

            	 /s/ Bill
      Kirkendall	 
	  Alan H.
      Cohen	 	 	 	 
	 	 	 	
              Printed:

            	
               Bill Kirkendall

            	 
	 	 	 	 	 	 
	 	 	 	
              Its: 

            	 	 
	 	 	 	 	 	 
	 Dated:   	 11/28/08	 	
              Dated:

            	 11/26/08	 


    

     

     

     

    


     

                                                                              

                                                          

     

                                                                               

     

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