fl_8k1231ex101.htm


    Exhibit
10.1


     

    AMENDED
AND RESTATED

    EMPLOYMENT
AGREEMENT

     

     

    THIS
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”) is made and
entered into as of December 31, 2008 by and between The Finish Line, Inc. (the
“Company”) and Gary D.
Cohen (“Executive”).

     

    WHEREAS,
Executive is currently employed by the Company and is a party to that certain
Employment Agreement (the “Original Agreement”) between
the Company and Executive dated October 30, 2006 (the “Effective Date”);
and

     

    WHEREAS,
the Company and Executive desire to amend and restate the Original Agreement as
set forth herein;

     

    NOW,
THEREFORE, in consideration of the premises and mutual covenants contained
herein and for other good and valuable consideration, the receipt of which is
mutually acknowledged, the Company and Executive agree as follows:

     

    1.      Employment; Term. The
Company hereby agrees to continue to employ Executive, and Executive hereby
accepts such employment with the Company, in each case, on the terms and subject
to the conditions hereinafter set forth. Subject to the provisions of Section 7
of this Agreement, Executive shall be employed by the Company for a three-year
period commencing on the Effective Date and ending on the third anniversary of
the Effective Date (as such period may be extended pursuant to the terms hereof,
the “Employment Term”) on the terms and
subject to the conditions set forth in this Agreement; provided, however, that
commencing with the third anniversary of the Effective Date and on each
anniversary thereafter (each an “Extension Date”), the Employment Term
shall be automatically extended for an additional one-year period, unless the
Company or Executive provides the other party hereto with written notice at
least 180 days before the next Extension Date that the Employment Term shall not
be so extended (“Non-Renewal
Notice”).

     

    2.      Position.

     

    (a)                 While
employed by the Company hereunder, Executive shall serve as the Company’s
Executive Vice President, General Counsel and Secretary. In such position,
Executive shall have such duties and authority as shall be determined from time
to time by the Company’s Chief Executive Officer (the “CEO”) and the board of directors
of the Company (the “Board”).

     

    (b)                 While
employed by the Company hereunder, Executive will devote his full business time
and best efforts to the performance of Executive’s duties hereunder and will not
engage in any other business, profession or occupation for compensation or
otherwise which would conflict or interfere with the rendition of such services
to the Company either directly or indirectly, without the prior written consent
of the Board or the CEO.

     

    (c)                 Executive’s
principal place of employment shall be at the Company’s corporate headquarters
in Indianapolis, Indiana.

     

    3.      Base Salary. As
compensation for services rendered to the Company, the Company shall initially
pay Executive a base salary at the annual rate of $318,000.00. Executive shall
be entitled to such increases in Executive’s base salary, if any, as may be
determined from time to time in 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    the sole
discretion of the Board. Executive’s annual base salary, as in effect from time
to time, is hereinafter referred to as the “Base Salary.”

     

    4.      Bonus. In addition to
the Base Salary, the Executive shall be eligible to participate in such annual
and long-term incentive bonus compensation programs or arrangements established
from time to time for executives of the Company.

     

    5.      Employee Benefits.
While employed by the Company hereunder, Executive shall be entitled to
participate in the Company’s employee benefit plans as in effect from time to
time, on the same basis as those benefits are generally made available to other
peer executives of the Company.

     

    6.      Business Expenses.
While employed by the Company hereunder, reasonable business expenses (including
travel expenses) incurred by Executive in the performance of Executive’s duties
hereunder shall be reimbursed by the Company in accordance with Company
policies.

     

    7.      Termination.
Executive’s employment hereunder may be terminated by either party at any time
and for any or no reason; provided that Executive will be required to give the
Company advance written notice of any resignation of Executive’s employment (as
set forth in this Section 7). Notwithstanding any other provision of this
Agreement, the provisions of this Section 7 shall exclusively govern Executive’s
rights upon termination of employment with the Company and its
affiliates.

     

    (a)                 By the Company For Cause or
By Executive Resignation without Good Reason.

     

    (i)           Executive’s
employment hereunder may be terminated by the Company for Cause (as defined
below) at any time upon delivery of advance written notice to Executive and, if
in the reasonable determination of the Company the acts or omissions of
Executive providing the basis for termination for Cause as set forth in Section
7(a)(ii) are curable, after Executive’s failure to cure during a period of 35
days following the date of the delivery of such written notice. Any
determination of a Cause by the Company pursuant to the items contained in
Sections 7(a)(ii)(A), (B) and (D) may only be made by a majority of the Board.
Executive’s employment hereunder shall terminate automatically upon Executive’s
resignation without Good Reason (as defined in Section 7(c)); provided that
Executive will be required to give the Company at least 30 days advance written
notice of a resignation without Good Reason.

     

    (ii)           For
purposes of this Agreement, “Cause” shall mean (A) the
willful and continued failure by Executive to perform his material duties with
respect to the Company or its affiliates for a period of more than 30 days; (B)
the willful or intentional engaging by Executive in conduct within the scope of
his employment that causes material and demonstrable injury, monetarily or
otherwise, to the Company including, without limitation, embezzlement or theft;
(C) Executive’s conviction for, or a plea of nolo contendere to, the
commission of a felony involving moral turpitude; or (D) a material breach of
Executive’s covenants set forth in Section 8 and 9 of this Agreement that causes
a material and demonstrable injury, monetarily or otherwise, to the
Company.

     

    (iii)           If
Executive’s employment is terminated by the Company for Cause, or if Executive
resigns without Good Reason (except under the circumstances described in Section
7(e) or as provided in Section 7(d)(iii)), Executive shall be entitled to
receive:

     

    (A)                 the
Base Salary through the date of termination (including payment for any accrued
but unused vacation time);

     

    
      
        
        

      

      
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    (B)                 any
earned but unpaid portion of Executive’s annual performance bonus (if any) for
the year preceding the year in which such termination occurs;

     

    (C)                 reimbursement
for any unreimbursed business expenses properly incurred by Executive in
accordance with Company policy prior to the date of Executive’s termination;
and

     

    (D)                 such
employee benefits, if any, as to which Executive may be entitled under the
employee benefit plans of the Company according to their terms (the amounts
described in clauses (A) through (D) hereof, reduced by any amounts owed by
Executive to the Company, being referred to as the “Accrued Rights”).

     

    Following
such termination of Executive’s employment by the Company for Cause or
resignation without Good Reason by Executive, except as set forth in this
Section 7(a)(iii) or in Section 7(e) or Section 7(d), Executive shall have no
further rights to any compensation or any other benefits under this
Agreement.

     

    (b)                 Disability or
Death.

     

    (i)           Executive’s
employment hereunder shall terminate upon Executive’s death and may be
terminated by the Company if Executive becomes (in the good faith judgment of
the Board) physically or mentally incapacitated and is therefore unable for a
period of three (3) consecutive months or for an aggregate of six (6) months in
any twelve (12) consecutive month period to perform Executive’s duties (such
incapacity is hereinafter referred to as “Disability”).

     

    (ii)           Upon
termination of Executive’s employment hereunder for either Disability or death,
Executive or Executive’s estate (as the case may be) shall be entitled to
receive the Accrued Rights.

     

    Following
Executive’s termination of employment due to death or Disability, except as set
forth in this Section 7(b)(ii), Executive shall have no further rights to any
compensation or any other benefits under this Agreement.

     

    (c)                 By the Company Without
Cause, Resignation of Executive with Good Reason or Non-Renewal of
Agreement.

     

    (i)           Executive’s
employment hereunder may be terminated by the Company at any time without Cause.
Executive’s employment hereunder may be terminated by Executive for Good Reason
(as defined below).

     

    (ii)          For
purposes of this Agreement, “Good Reason” shall mean if, other
than for Cause, any of the following has occurred: (A) any reduction in the Base
Salary or Executive’s annual bonus opportunity (except for across the board
reductions for all similarly situated executives of the Company); (B) a transfer
of Executive’s primary workplace by more than thirty-five (35) miles from its
location as of the Effective Date; (C) a material breach by the Company of this
Agreement; or (D) if such termination of employment occurs within 30 days prior
to or 2 years following a Change in Control (as defined in Section 7(d)), any of
(1) a substantial reduction in Executive’s authority, duties or
responsibilities, or (2) the assignment of any duties or responsibilities
inconsistent with Executive’s position with the Company; provided, however, that, in each case,
Good Reason shall cease to exist for an event to the extent that (x) Executive
shall have consented, in advance, to such event, (y) 90 days shall 

     

    
      
        
        

      

      
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    elapsed
following the initial existence of such event without the Company receiving
notice of Good Reason for such event, or (z) Executive has provided the Company
with a notice specifying the event within 90 days of the initial existence of
such event and the Company has failed to remedy the event within 30 days after
receipt of such notice from Executive.

     

    (iii)           Except
as set forth in Section 7(d), if Executive’s employment is terminated by the
Company without Cause (other than by reason of death or Disability) or if
Executive resigns for Good Reason, in either case, other than within the period
that begins 30 days prior to a Change in Control and ends 2 years following a
Change in Control, Executive shall be entitled to receive:

     

    (A)                 the
Accrued Rights; and

     

    (B)                 subject
to (I) Executive’s continued compliance with the provisions of Sections 8 and 9
hereof and (II) Executive’s execution and non-revocation of a general release in
favor of the Company and its affiliates in a form reasonably acceptable to the
Company:

     

    (1)           a
lump sum cash payment equal to the Base Salary, payable, subject to Section
7(g), within 30 days following the date of such termination of employment (the
“Termination Date”); and

     

    (2)           continued
provision of group health benefits to Executive and his dependents for one
year following the
Termination Date in accordance with the terms thereof and with the same cost as
if Executive remained employed during such period; and

     

    (3)           if
Executive was eligible to receive one or more cash bonuses for the calendar year
during which Executive’s employment is terminated (the “Termination Year”), an amount equal to the
greater of (y) a pro-rated portion (based on the number of days in the
Termination Year during which Executive was employed) of the annual bonus and
any other bonus Executive would have received for Termination Year had he
remained employed through the entire year (based on the Company’s actual results
for the Termination Year) or (z) the average annual bonus actually paid to
Executive over the three full fiscal years prior to the Termination Date,
payable, subject to Section 7(g), when bonuses are generally paid to the
Company’s executives for the Termination Year but no later than two and one half
months after the end of the year in which the bonus was earned.

     

    (iv)           Except
as set forth in Section 7(d), if the Company provides Executive with a written
Non-Renewal Notice and in connection therewith, notifies Executive that his
employment shall terminate without Cause at the end of the Employment Term,
Section 7(c)(iii) shall not apply and Executive shall be entitled to receive, if
Executive does not resign, die or suffer a Disability prior to the end of the
Employment term or if Executive is not terminated for Cause prior to the end of
the Employment Term:

     

    (A)                 the
Accrued Rights; and

     

    (B)                 subject
to (I) Executive’s continued compliance with the provisions of Sections 8 and 9
hereof and (II) Executive’s execution and non-revocation of a general release of
employment related claims in favor of the Company and its affiliates in a form
reasonably acceptable to the Company:

     

    
      
        
        

      

      
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    (1)           a
lump sum cash payment equal to the Base Salary, payable, subject to Section
7(g), within 30 days following the Termination Date;

     

    (2)           continued
provision of group health benefits to Executive and his dependents for one year
following the Termination Date in accordance with the terms thereof and with the
same cost as if Executive remained employed during such period; and

     

    (3)           if
Executive was eligible to receive one or more cash bonuses for the calendar year
during which Executive’s employment is terminated (the “Termination Year”), an amount equal to a
pro-rated portion (based on the number of days in the Termination Year during
which Executive was employed) of the annual bonus and any other bonus Executive
would have received for Termination Year had he remained employed through the
entire year (based on the Company’s actual results for the Termination Year),
payable, subject to Section 7(g), when bonuses are generally paid to the
Company’s executives for the Termination Year but no later than two and one half
months after the end of the year in which the bonus was earned.

     

    Following
Executive’s termination of employment by the Company without Cause (other than
by reason of Executive’s death or Disability) or by Executive’s resignation for
Good Reason, except as set forth in this Section 7(c)(iii), Section 7(c)(iv) or
in Section 7(d), Executive shall have no further rights to any compensation or
any other benefits under this Agreement.

     

    (d)                 Change in
Control.

     

    (i)           For
purposes of this Agreement, “Change in Control” shall mean the
consummation of one or more of the following:

     

    (A)                 the
sale, exchange, lease or other disposition, in one or a series of related
transactions, of all or substantially all of the assets of the Company to any
“person” or “group” (as such terms are used in the Securities Exchange Act of
1934, as amended);

     

    (B)                 any
person or group, other than Alan Cohen, David Klapper or Larry Sablosky (each a
“Founder”), is or
becomes the beneficial owner, directly or indirectly, of more than 35% of the
total voting power of the voting stock of the Company (or any entity which
controls the Company or which is a successor to all or substantially all of the
assets of the Company), including by way of merger, consolidation, tender or
exchange offer or otherwise;

     

    (C)                 a
merger, consolidation or similar reorganization of the Company with or into
another entity, if the shareholders of the common stock of the Company
immediately prior to such transaction do not own a majority of the voting power
of the voting stock of the surviving company or its parent immediately after the
transaction in substantially the same proportions as immediately prior to such
transaction; or

     

    (D)                 during
any 12-month period, individuals who at the beginning of such period constituted
the Board (together with any new directors whose election by the Board (whether
through the filling of a vacancy or otherwise) or whose nomination for election
by the shareholders of the Company was approved by a vote of a majority of the
directors of the Company then still in office, who were either directors at the
beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
board of directors then in office.

     

    
      
        
        

      

      
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    (ii)           In
the event of a Change in Control (determined without regard to subclause (A) of
the definition set forth in Section 7(d)(i)), notwithstanding any provision in
any equity compensation plan maintained by the Company or any award agreement
between the Company and Executive, all stock options and awards of restricted
stock granted to Executive, which are outstanding and have not otherwise vested
shall be deemed vested immediately prior to the consummation of the Change in
Control (determined without regard to subclause (A) of the definition set forth
in Section 7(d)(i)). For purposes of this Section 7(d)(ii), the terms “stock
option” and “restricted stock” should be read to include all other similar
equity instruments.

     

    (iii)           If
Executive’s employment is terminated by the Company without Cause (other than by
reason of death or Disability) or if Executive resigns for Good Reason, in
either case, during the period that begins 30 days prior to a Change in Control
(as defined below) and ends 2 years following a Change in Control, Executive
shall be entitled to receive:

     

    (A)                 the
Accrued Rights; and

     

    (B)                 subject
to (I) Executive’s continued compliance with the provisions of Sections 8 and 9
hereof and (II) Executive’s execution and non-revocation of a general release of
employment related claims in favor of the Company and its affiliates in a form
reasonably acceptable to the Company:

     

    (1)           a
lump sum cash payment equal to 2.5 times the sum of (i) the Base Salary, plus
(ii) Executive’s target annual bonus for Termination Year, plus (iii) the value
of any other bonus the executive could have earned during the year of
termination pursuant to the Company’s then existing bonus programs, payable,
subject to Section 7(g), within 30 days following the Termination Date;
and

     

    (2)           continued
provision of group health benefits to Executive and his dependents for two years
following the Termination Date in accordance with the terms thereof and with the
same cost as if Executive remained employed during such period.

     

    Following
Executive’s termination of employment by the Company without Cause (other than
by reason of Executive’s death or Disability) or by Executive’s resignation for
Good Reason, except as set forth in this Section 7(d)(iii), Section 7(c)(iii),
or Section 7(c)(iv), Executive shall have no further rights to any compensation
or any other benefits under this Agreement.

     

    (e)                 By Executive without Good
Reason Following a Change in Control. If Executive resigns without Good
Reason during the 30-day period that begins on the first anniversary of a Change
in Control, Executive shall be entitled to receive:

     

    (i)           the
Accrued Rights; and

     

    (ii)           subject
to (I) Executive’s continued compliance with the provisions of Sections 8 and 9
hereof and (II) Executive’s execution and non-revocation of a general release in
favor of the Company and its affiliates in a form reasonably acceptable to the
Company, a lump sum cash payment equal to the Base Salary, payable, subject to
Section 7(g), within 30 days following the Termination Date.

     

    (f)                 Parachute
Taxes.

     

    (i)           If
any payments, rights or benefits (whether pursuant to the terms of this
Agreement or any other plan, arrangement or agreement of Executive with the
Company or any person 

     

    
      
        
        

      

      
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    affiliated
with the Company) (“Covered Payments”) received or to be
received by Executive will be subject to the tax (the “Excise Tax”) imposed by Section 4999
of the Internal Revenue Code of 1986, as amended (the “Code”) (or any similar tax
that may hereafter be imposed), then, except as set forth in Section 7(f)(ii),
the Company shall pay to Executive an amount in addition to the Covered Payments
(“Gross-Up Payment”) as calculated below.
The Gross-Up Payment shall be in an amount such that, after deduction of any
Excise Tax on the Covered Payments and any federal, state and local income and
employment tax and Excise Tax on the Gross-Up Payment, but before deduction for
any federal, state or local income and employment tax on the Covered Payments,
the net amount retained by the Executive shall be equal to the Covered
Payments.

     

    (ii)           Notwithstanding
anything in this Agreement to the contrary, if the Covered Payments do not
exceed 110% of Safe Harbor Amount (as defined below), then the portion of the
Covered Payments that would be treated as “parachute payments” under Section
280G of the Code (“Covered Parachute Payments”) shall be reduced so
that the Covered Parachute Payments, in the aggregate, are reduced to the Safe
Harbor Amount. For purposes of this Agreement, the term “Safe Harbor Amount” means the largest
portion of the Covered Payments that would result in no portion of the Covered
Payments being subject to the Excise Tax. In the event that it is determined
that the amount of any Covered Payments will be reduced in accordance with this
Section 7(f), Executive shall have the right to designate which of the Covered
Payments shall be reduced and to what extent, provided that Executive may not so
elect to the extent that, in the determination of counsel to the Company, such
election would cause Executive to be subject to the Excise Tax.

     

    (iii)           The
determination of (A) whether an event described in Section 280G(b)(2)(A)(i) of
the Code has occurred, (B) the amount of any Gross-Up Payment, (C) the value of
any Covered Parachute Payments and the Safe Harbor Amount, (D) whether any
reduction in the Covered Payments is required under Section 7(f)(ii), and (E)
the amount of any such reduction, shall be made initially by an independent
accounting firm selected by the Board as constituted prior to any Change in
Control (the “Accountants”). For purposes of
making the calculations required by this Section 7(f), the Accountants may make
reasonable assumptions and approximations concerning applicable taxes and may
rely on reasonable, good faith interpretations concerning the application of the
Code, and other applicable legal authority. The Company and Executive shall
furnish to the Accountants such information and documents as the Accountants may
reasonably request in order to make a determination under this Section 7(f). The
Company shall bear and be solely responsible for all costs the Accountants may
reasonably incur in connection with any calculations contemplated by this
Section 7(f).

     

    (iv)           Executive
shall promptly notify the Company in writing of any claim by any taxing
authority that, if successful, would require the payment by the Company of a
Gross-Up Payment; provided, however, that failure by Executive to give such
notice promptly shall not result in a waiver or forfeiture of any of Executive’s
rights under this Section 7(f), except to the extent of actual damages suffered
by the Company as a result of such failure. If the Company notifies Executive in
writing within 15 days after receiving such notice that it desires to contest
such claim (and demonstrates to the reasonable satisfaction of Executive its
ability to pay any resulting Gross-Up Payment), Executive shall:

     

    
      
        
        

      

      
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    (A)                 give
the Company any information reasonably requested by the Company relating to such
claim;

     

    (B)                 take
such action in connection with contesting such claim as the Company shall
reasonably request in writing from time to time, including, without limitation,
accepting legal representation with respect to such claim by an attorney
selected by the Company that is reasonably acceptable to Executive;

     

    (C)                 cooperate
with the Company in good faith in order effectively to contest such claim;
and

     

    (D)                 permit
the Company to participate in any proceedings relating to such
claim;

     

    provided,
however, that the Company’s actions do not unreasonably interfere with or
prejudice Executive’s disputes with the taxing authority as to other issues; and
provided, further, that the Company shall bear and pay on an after-tax and
as-incurred basis, all attorneys fees, costs and expenses (including additional
interest, penalties and additions to tax) incurred in connection with such
contest and shall indemnify and hold Executive harmless, on an after-tax and
as-incurred basis, for all resulting taxes (including, without limitation,
income and excise taxes), interest, penalties and additions to tax.

     

    (v)           Notwithstanding
anything herein to the contrary, any payment required under this Section 7(f)
shall be made by the end of Executive’s taxable year next following the
Company’s taxable year in which Executive remits the payment.  In
addition, any right to reimbursement of expenses incurred due to a tax audit or
litigation addressing the existence or amount of a tax liability, whether
Federal, state, local, or foreign, shall be made by the end of Executive’s
taxable year following Executive’s taxable year in which the taxes that are the
subject of the audit or litigation are remitted to the taxing authority, or
where as a result of such audit or litigation no taxes are remitted, the end of
Executive’s taxable year following Executive’s taxable year in which the audit
is completed or there is a final and nonappealable settlement or other
resolution of the litigation.  This Section 7(f)(v) shall be
interpreted consistent with Treas. Reg. § 409A-3(i)(1)(v).

     

    (g)                 Effect of Section 409A of
the Code. Notwithstanding anything to the contrary in this Agreement, if
the Company determines (i) that on the date Executive’s employment with the
Company terminates or at such other time that the Company determines to be
relevant, Executive is a “specified employee” (as such term is defined under
Section 409A) of the Company and (ii) that any payments to be provided to
Executive pursuant to this Agreement are or may become subject to the additional
tax under Section 409A(a)(1)(B) of the Code or any other taxes or penalties
imposed under Section 409A of the Code (“Section 409A Taxes”) if provided at the
time otherwise required under this Agreement then (A) such payments shall be
delayed until the date that is six months after date of Executive’s “separation
from service” (as such term is defined under Section 409A of the Code) with the
Company, or such shorter period that, as determined by the Company, is
sufficient to avoid the imposition of Section 409A Taxes (the “Payment Delay Period”) and (B) such payments
shall be increased by an amount equal to interest on such payments for the
Payment Delay Period at a rate equal to the prime rate in effect as of the date
the payment was first due plus one point (for this purpose, the prime rate will
be based on the rate published from time to time in The Wall Street
Journal).

     

    
      
        
        

      

      
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    (h)                 Notice of
Termination. Any termination of employment by the Company for Cause shall
be communicated by written Notice of Termination to Executive in accordance with
Section 11(h) hereof. In addition, any termination of employment by Executive
for Good Reason shall be communicated by written Notice of Termination to the
Company in accordance with Section 11(h) hereof. For purposes of this Agreement,
a “Notice of Termination” shall mean a
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 employment under the provision so
indicated.

     

    (i)                 Board/Committee
Resignation. Upon termination of Executive’s employment for any reason,
Executive agrees that Executive shall automatically be deemed to have resigned,
as of the date of such termination, from the Board (and any committees thereof)
and the board of directors or similar governing body (and any committees
thereof) of any of the Company’s affiliates, and any position in which Executive
is acting on behalf of or as a representative of the Company (such as a trustee
or administrative committee member with respect to a tax-qualified retirement
plan).

     

    8.      Non-Competition;
Non-Solicitation.

     

    (a)                 Executive
acknowledges and recognizes the highly competitive nature of the businesses of
the Company and its affiliates and accordingly agrees as follows:

     

    (i)           During
the Restricted Period (as defined below), Executive will not, whether on
Executive’s own behalf or on behalf of or in conjunction with any person, firm,
partnership, joint venture, association, corporation or other business
organization, entity or enterprise whatsoever (“Person”), directly or
indirectly:

     

    (A)                 engage,
in a competitive capacity, in any business that competes with the Company’s
business in the athletic specialty and/or sporting goods retail industry (a
“Competitive Business”) in the United
States;

     

    (B)                 in
a competitive capacity, enter the employ of, or render any services to, or enter
into any contractual agreement or relationship with any Person (or any division
or controlled or controlling affiliate of any Person) that engages in a
Competitive Business;

     

    (C)                 acquire
a financial interest in, or otherwise become actively involved with, any
Competitive Business, directly or indirectly, as an individual, partner,
shareholder, officer, director, principal, agent, trustee or consultant or
transfer any business to, or in any other way facilitate any other Person’s
ability to engage in a Competitive Business; or

     

    (D)                 interfere
with, or attempt to interfere with, business relationships (whether formed
before, on or after the date of this Agreement) between the Company or any of
its affiliates and its customers, suppliers, partners, investors or
vendors.

     

    (ii)           Notwithstanding
anything to the contrary in this Agreement, Executive may, directly or
indirectly own, solely as an investment, securities of any Person engaged in a
Competitive Business that are publicly traded on a national or regional stock
exchange or on the over-the-counter market if Executive (i) is not a controlling
Person of, or a member of a group that controls, such Person and (ii) does not,
directly or indirectly, own 5% or more of any class of securities of such
Person.

     

    
      
        
        

      

      
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    (iii)           During
the Restricted Period, Executive shall not, whether on Executive’s own behalf or
on behalf of or in conjunction with any Person, directly or
indirectly:

     

    (A)                 solicit
or encourage any employee of the Company or its affiliates to leave the
employment of the Company or its affiliates; or

     

    (B)                 hire
any such employee who was employed by the Company or its affiliates as of the
date of Executive’s termination of employment with the Company or who left the
employment of the Company or its affiliates coincident with, or within one year
prior to or after, the termination of Executive’s employment with the
Company.

     

    (b)                 It
is expressly understood and agreed that although Executive and the Company
consider the restrictions contained in this Section 8 to be reasonable, if a
final judicial determination is made by a court of competent jurisdiction that
the time or territory or any other restriction contained in this Agreement is an
unenforceable restriction against Executive, the provisions of this Agreement
shall not be rendered void but shall be deemed amended to apply as to such
maximum time and territory and to such maximum extent as such court may
judicially determine or indicate to be enforceable. Alternatively, if any court
of competent jurisdiction finds that any restriction contained in this Agreement
is unenforceable, and such restriction cannot be amended so as to make it
enforceable, such finding shall not affect the enforceability of any of the
other restrictions contained herein.

     

    (c)                 For
purposes of this Agreement, “Restricted Period” shall mean the period
commencing on the Effective Date and ending (i) 12 months following the
Termination Date if Executive’s employment with the Company terminates under the
circumstances described in Section 7(c) or Section 7(e), (ii) 24 months
following the Termination Date if Executive’s employment with the Company
terminates under the circumstances described in Section 7(d)(iii), or (iii) upon
the date Executive ceases to be employed by the Company for any other
reason.

     

    9.      Confidentiality;
Intellectual Property.

     

    (a)                 Confidentiality.

     

    (i)           Executive
will not at any time (whether during or after Executive’s employment with the
Company) (x) retain or use for the benefit, purposes or account of Executive or
any other Person (other than the Company); or (y) disclose, divulge, reveal,
communicate, share, transfer or provide access to any Person outside the Company
(other than its professional advisers who are bound by confidentiality
obligations), any non-public, proprietary or confidential information —including
without limitation trade secrets, know-how, research and development, software,
databases, inventions, processes, formulae, technology, designs and other
intellectual property, information concerning finances, investments, profits,
pricing, costs, products, services, vendors, customers, clients, partners,
investors, personnel, compensation, recruiting, training, advertising, sales,
marketing, promotions, store site selection, new store openings, government and
regulatory activities and approvals — concerning the past, current or future
business, activities and operations of the Company, its subsidiaries or
affiliates and/or any third party that has disclosed or provided any of same to
the Company on a confidential basis (“Confidential Information”) without the
prior written authorization of the Board.

     

    (ii)           “Confidential Information” shall not include
any information that is (a) generally known to the industry or the public other
than as a result of Executive’s breach of this 

     

    
      
        
        

      

      
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    covenant;
(b) made legitimately available to Executive without a confidentiality
restriction by a third party without breach of any confidentiality obligation of
that third party; or (c) required by law to be disclosed; provided that
Executive shall give prompt written notice to the Company of such requirement,
disclose no more information than is so required, and cooperate with any
attempts by the Company to obtain a protective order or similar
treatment.

     

    (iii)           Except
as required by law, Executive shall not disclose to anyone, other than
Executive’s immediate family and legal or financial advisors, the existence or
contents of this Agreement; provided that Executive may disclose to any
prospective future employer the provisions of Sections 8 and 9 of this Agreement
provided they agree to maintain the confidentiality of such terms.

     

    (iv)           Upon
termination of Executive’s employment with the Company for any reason, Executive
shall (x) cease and not thereafter commence use of any Confidential Information
or intellectual property (including without limitation, any patent, invention,
copyright, trade secret, trademark, trade name, logo, domain name or other
source indicator) owned or used by the Company, its subsidiaries or affiliates;
(y) immediately destroy, delete, or return to the Company, at the Company’s
option, all originals and copies in any form or medium (including memoranda,
books, papers, plans, computer files, letters and other data) in Executive’s
possession or control (including any of the foregoing stored or located in
Executive’s office, home, laptop or other computer, whether or not Company
property) that contain Confidential Information or otherwise relate to the
business of the Company, its affiliates and subsidiaries, except that Executive
may retain only those portions of any personal notes, notebooks and diaries that
do not contain any Confidential Information; and (z) notify and fully cooperate
with the Company regarding the delivery or destruction of any other Confidential
Information of which Executive is or becomes aware.

     

    (b)                 The
provisions of this Section 9 shall survive the termination of Executive’s
employment for any reason.

     

    10.                 Specific Performance.
Executive acknowledges and agrees that the Company’s remedies at law for a
breach or threatened breach of any of the provisions of Section 8 or Section 9
would be inadequate and the Company would suffer irreparable damages as a result
of such breach or threatened breach. In recognition of this fact, Executive
agrees that, in the event of such a breach or threatened breach, in addition to
any remedies at law, the Company shall be entitled to obtain equitable relief in
the form of specific performance, temporary restraining order, temporary or
permanent injunction or any other equitable remedy that may then be
available.

     

    11.                 Miscellaneous.

     

    (a)                 Governing Law;
Jurisdiction. This Agreement shall be governed by and construed in
accordance with the laws of the State of Indiana, without regard to conflicts of
laws principles thereof. Any and all disputes between the parties which may
arise pursuant to this Agreement will be heard and determined before an
appropriate federal court in the Southern District of Indiana, or, if not
maintainable therein, then in an appropriate Indiana state court in Marion
County, Indiana. The parties acknowledge that such courts have jurisdiction to
interpret and enforce the provisions of this Agreement, and the parties consent
to, and waive any and all objections that they may have as to, personal
jurisdiction and/or venue in such courts.

     

    
      
        
        

      

      
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    (b)                 Entire
Agreement/Amendments. This Agreement contains the entire understanding of
the parties with respect to the employment of Executive by the Company. There
are no restrictions, agreements, promises, warranties, covenants or undertakings
between the parties with respect to the subject matter herein other than those
expressly set forth herein. This Agreement may not be altered, modified, or
amended except by written instrument signed by the parties hereto.

     

    (c)                 No Waiver. The
failure of a party to insist upon strict adherence to any term of this Agreement
on any occasion shall not be considered a waiver of such party’s rights or
deprive such party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.

     

    (d)                 Severability. In the
event that any one or more of the provisions of this Agreement shall be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions of this Agreement shall not be
affected thereby.

     

    (e)                 Assignment. This
Agreement, and all of Executive’s rights and duties hereunder, shall not be
assignable or delegable by Executive. Any purported assignment or delegation by
Executive in violation of the foregoing shall be null and void ab initio and of no force or
effect. This Agreement may be assigned by the Company to a Person that is an
affiliate or a successor in interest to any portion of the business operations
of the Company. Upon such assignment, the rights and obligations of the Company
hereunder shall become the rights and obligations of such affiliate or successor
Person.

     

    (f)                 Set Off; No
Mitigation. The Company’s obligation to pay Executive the amounts
provided and to make the arrangements provided hereunder shall be subject to
set-off, counterclaim or recoupment of amounts owed by Executive to the Company
or its affiliates; provided, however, that in no event shall Executive be
obligated to seek other employment or take any other action by way of mitigation
of the amounts payable to Executive under Section 7 of this
Agreement.

     

    (g)                 Successors; Binding
Agreement. This Agreement shall inure to the benefit of and be binding
upon personal or legal representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees.

     

    (h)                 Notice. For the
purpose of this Agreement, notices and all other communications provided for in
the Agreement shall be in writing and shall be deemed to have been duly given
when delivered by hand or overnight courier or three days after it has been
mailed by United States registered mail, return receipt requested, postage
prepaid, addressed to the respective addresses set forth below in this
Agreement, or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notice of change of address
shall be effective only upon receipt.

     

    If to the
Company:

    The
Finish Line, Inc.

    3308 N.
Mitthoeffer Road

    Indianapolis,
Indiana 46235

    Attention:
Chairperson of the Compensation and Stock Option Committee

     

    If to
Executive:

     

    To the
most recent address of Executive set forth in the personnel records of the
Company.

     

    
      
        
        

      

      
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    (i)                 Prior Agreements.
This Agreement supersedes all prior agreements and understandings (including
verbal agreements) between Executive and the Company and/or its affiliates
regarding the terms and conditions of Executive’s employment with the Company
and/or its affiliates including, without limitation, the Original
Agreement.

     

    (j)                 Cooperation.
Executive shall provide Executive’s reasonable cooperation in connection with
any action or proceeding (or any appeal from any action or proceeding), which
relates to events occurring during Executive’s employment hereunder. This
provision shall survive any termination of this Agreement.

     

    (k)                 Withholding Taxes.
The Company may withhold from any amounts payable under this Agreement such
Federal, state and local taxes as may be required to be withheld pursuant to any
applicable law or regulation.

     

    (l)                 Counterparts. This
Agreement may be signed in counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument.

     

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    IN
WITNESS WHEREOF, the parties hereto have duly executed this Amended and Restated
Employment Agreement as of the day and year first above written.

     

    


    
      
        	
                THE
      FINISH LINE, INC.

              	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	
                By:

              	/s/
      Glenn S. Lyon	 
      	/s/
      Gary D. Cohen
	 
      	
                Glenn
      S. Lyon, Chief Executive Officer

              	 
      	
                Gary
      D. Cohen

              


      

    

    
 

     

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