EXHIBIT 10.52
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release ("Agreement") is dated for
reference as of February 14, 2005, by and between XXXXXXX XXXXX ("Employee") and
CALLAWAY GOLF COMPANY (the "Company"), a Delaware corporation, with respect to
the following:
A. Employee was employed by the Company pursuant to an Executive
Officer Employment Agreement entered into effective November 6, 2002, as amended
March 1, 2003 and September 15, 2003 (collectively the "Employment Agreement").
Pursuant to Section 8(a) of the Employment Agreement, the Company notified
Employee on November 8, 2004 that his employment with the Company would end on
December 31, 2004 ("Separation Date").
B. The Company and Employee desire to enter into this Agreement
pursuant to Section 8(e) of the Employment Agreement to establish additional
terms relating to Employee's separation from the Company.
NOW, THEREFORE, the parties agree as follows:
1. Severance Pursuant to Section 8(a) of Employment Agreement.
(a) Pursuant to Section 8(a) of the Employment Agreement, and
except as modified below, effective January 1, 2005, Employee shall be entitled
to receive Special Severance and Incentive Payments, as defined in and in
accordance with Sections 19 and 20 of the Employment Agreement. Employee shall
also be entitled to the immediate vesting of all unvested stock options and
shall be provided with a stock option statement within seven (7) days of the
Effective Date of this Agreement.
(b) Employee acknowledges that Company has paid all amounts owed
for paid time off ("PTO") and that Special Severance and Incentive Payments
started on January 1, 2005.
2. Additional Severance. Pursuant to Section 8(e) of the Employment
Agreement, and in consideration for the release of claims set forth in Section
3, Employee's commitment to Section 4, and Employee's execution of this
Agreement, the Company further agrees to provide Employee with the following
additional severance ("Additional Severance"):
(a) The Company shall pay a lump sum payment of $150,000, less
applicable withholding taxes, for Employee to relocate to France.
(b) Employee will be permitted to keep the cell phone and laptop
computer provided to him by the Company while employed for his personal use.
(c) The Company will provide Employee with twelve (12) months of
executive level outplacement services with Xxx Xxxxx Xxxxxxxx at any
international location at a cost not to exceed $15,000.
(d) Employee will be provided with tax preparation assistance for
the year 2005 by a nationally recognized accounting firm selected by the Company
at a cost not to exceed $15,000. Callaway Golf will arrange to make payments
directly to the recognized accounting firm selected.
(e) On or before December 31, 2005, Employee may order at no
charge five sets of golf clubs obtained for the personal use of Employee and his
family pursuant to the Officer Product Use Policy.
(f) Health Insurance Reimbursement. Company shall pay a lump sum
of $12,000 to Employee to reimburse Employee for payment of French private
health insurance premiums in lieu of payment of COBRA insurance premiums set
forth above.
(g) Subject to any requirements imposed by the Company's life
insurance provider, Company shall continue to provide, and shall pay premiums
for, life insurance for Employee in the amount previously provided to Employee
until June 30, 2005.
(h) The value of the Additional Severance provided to Employee as
set forth above will be reflected on Employee's W-2 for the year 2005.
3. Settlement and Release of Claims - General Release. In consideration
for the Additional Severance set forth in Section 2 above, and the Company's
execution of this Agreement, Employee agrees as follows:
(a) Release. Employee hereby irrevocably and unconditionally
releases and forever discharges the Company, its predecessors, successors,
subsidiaries, affiliates and benefit plans, and each and every past, present and
future officer, director, employee, representative and attorney of the Company,
their predecessors, successors, subsidiaries, affiliates and benefit plans, and
their successors and assigns (collectively referred to herein as the
"Releasees"), from any, every, and all charges, complaints, claims, causes of
action, and lawsuits of any kind whatsoever, including, to the extent permitted
under the law, all claims which Employee has against the Releasees, or any of
them, arising from or in any way related to circumstances or events arising out
of Employee's employment by the Company, including, but not limited to,
harassment, discrimination, retaliation, failure to progressively discipline
Employee, termination of employment, violation of state and/or federal and/or
French wage and hour laws, violations of any notice requirement, violations of
the California Labor Code, or breach of any employment agreement, together with
any and all other claims Employee now has or may have against the Releasees
through and including the Separation Date under the laws of California, the
United States, France or Europe, or any of them. EMPLOYEE ALSO SPECIFICALLY
AGREES AND ACKNOWLEDGES THAT EMPLOYEE IS WAIVING ANY RIGHT TO RECOVERY AGAINST
RELEASEES BASED ON STATE OR FEDERAL OR INTERNATIONAL AGE, SEX, PREGNANCY, RACE,
COLOR, NATIONAL ORIGIN, MARITAL STATUS, RELIGION, VETERAN STATUS, DISABILITY,
SEXUAL ORIENTATION, MEDICAL CONDITION OR OTHER ANTI-DISCRIMINATION LAWS,
INCLUDING, WITHOUT LIMITATION, TITLE VII, THE AMERICANS WITH DISABILITIES ACT,
THE CALIFORNIA FAIR HOUSING AND EMPLOYMENT ACT, THE AGE DISCRIMINATION IN
EMPLOYMENT ACT OF 1967, THE FAMILY MEDICAL RIGHTS ACT, THE CALIFORNIA FAMILY
RIGHTS ACT OR BASED ON THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OR THE WORKER
ADJUSTMENT AND RETRAINING NOTIFICATION ACT, ALL AS AMENDED, WHETHER SUCH CLAIM
BE BASED UPON AN ACTION FILED BY EMPLOYEE OR A GOVERNMENTAL AGENCY.
(b) Age Discrimination. Employee understands that rights or claims
under the Age Discrimination in Employment Act of 1967 (29 U.S.C. Section 621,
et seq.) that may arise after the date this Agreement is executed are not
waived. Nothing in this Agreement shall be construed to prohibit the Employee
from exercising his/her right to file a charge with the Equal Employment
Opportunity Commission or from participating in any investigation or proceeding
conducted by the Equal Employment Opportunity Commission. Employee understands
and agrees that if he/she files such a charge, the Company or its designee has
the right to raise defenses that (i) the charge is barred by this Agreement,
(ii) Employee has rescinded the Agreement, and/or (iii) the Company is entitled
to a return of the Additional Severance set forth in Section 2 above by way of
restitution, recoupment, or setoff.
(c) Employee acknowledges and the Company agrees that the general
release set forth above is not intended to affect Employee's right to indemnity
and defense from the Company pursuant to the Company's by-laws, Delaware law and
California law.
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(d) Unknown Claims. Employee also waives all rights under section
1542 of the Civil Code of the State of California. Section 1542 provides as
follows:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have
materially affected his settlement with the debtor.
4. Cooperation. In consideration for the Additional Severance set forth
in Section 2 and the Company's execution of this Agreement, Employee agrees that
for a period of one (1) year (through December 31, 2005) from the Separation
Date, should any issues arise pertaining to matters in which Employee had
knowledge or was involved during Employee's employment for which the Company
needs assistance, Employee agrees to cooperate, in a timely manner, with the
Company's reasonable requests for assistance. Company agrees to reimburse
Employee for out of pocket expenses incurred as part of his efforts to comply
with the Company's requests under this Section. Should Company require more than
ten (10) hours of Employee's time within the year, Company agrees to also
reimburse Employee at a reasonable hourly rate for consulting services.
5. The Company's Proprietary Information and Inventions. Employee
acknowledges and understands that Sections 12 and 13 of the Employment Agreement
extend beyond the terms of Employee's employment with the Company. Employee
agrees to comply with such terms. Employee understands that his failure to
adhere to Sections 12 and 13 of the Employment Agreement shall be a material
breach of this Agreement, as well as the Employment Agreement, and that all
Special Severance and Additional Severance will be forfeited in the event of
such a breach.
Employee specifically understands and agrees that Employee shall not
disclose confidential information regarding the Company's current or planned
future research and development efforts, nor shall Employee disclose
confidential information regarding the administration of the Company's business
and its policies. In the event that Employee is contacted by any person or
agency adverse to the Company, or on any matter that could reasonably considered
to be adverse to the Company's interests, Employee agrees to immediately contact
the Legal Department of Callaway Golf and to permit the Company to participate
in any interview or meeting involving Employee to the extent permitted by law.
6. Return of Company Property. Except as set forth above, Employee
acknowledges that he has returned all Company-owned property to the Company,
including, but not limited to, Employee's badge; the Employee Handbook;
employee, customer, supplier and price lists; and all notebooks, documents,
records, computer files and the like pertaining to the Company's current or
anticipated future business or other proprietary information currently in
Employee's possession.
7. No Admission of Liability. This Agreement affects the resolution and
release of claims that are denied and contested, and this Agreement shall not be
construed as an admission by a party of any liability of any kind to the other
party.
8. Knowing and Voluntary Agreement. Employee has carefully read and
fully understands all of the provisions of this Agreement. Employee knowingly
and voluntarily agrees to all the terms in this Agreement. Employee knowingly
and voluntarily intends to be legally bound by this Agreement.
9. Separate Terms. Each term, condition, covenant or provision of this
Agreement shall be viewed as separate and distinct, and in the event that any
such term, covenant or provision shall be held by a court of competent
jurisdiction to be invalid, the remaining provisions shall continue in full
force and effect.
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10. Binding Effect. This Agreement shall be binding upon and benefit the
parties hereto and their respective heirs, personal representatives, successors
and assigns.
11. Governing Law. This Agreement shall be interpreted and enforced in
accordance with the internal laws of the State of California and without regard
to conflict of law principles.
12. IRREVOCABLE ARBITRATION OF DISPUTES.
(a) EMPLOYEE AND THE COMPANY AGREE THAT ANY DISPUTE, CONTROVERSY
OR CLAIM ARISING HEREUNDER OR IN ANY WAY RELATED TO THIS AGREEMENT, ITS
INTERPRETATION, ENFORCEABILITY, OR APPLICABILITY, OR RELATING TO EMPLOYEE'S
EMPLOYMENT, OR THE TERMINATION THEREOF, THAT CANNOT BE RESOLVED BY MUTUAL
AGREEMENT OF THE PARTIES SHALL BE SUBMITTED TO BINDING ARBITRATION. THIS
INCLUDES, BUT IS NOT LIMITED TO, ALLEGED VIOLATIONS OF FEDERAL, STATE AND/OR
LOCAL STATUTES, CLAIMS BASED ON ANY PURPORTED BREACH OF DUTY ARISING IN CONTRACT
OR TORT, INCLUDING BREACH OF CONTRACT, BREACH OF THE COVENANT OF GOOD FAITH AND
FAIR DEALING, VIOLATION OF PUBLIC POLICY, VIOLATION OF ANY STATUTORY,
CONTRACTUAL OR COMMON LAW RIGHTS, BUT EXCLUDING WORKERS' COMPENSATION,
UNEMPLOYMENT MATTERS, OR ANY MATTER FALLING WITHIN THE JURISDICTION OF THE STATE
LABOR COMMISSIONER. THE PARTIES AGREE THAT ARBITRATION IS THE PARTIES' ONLY
RECOURSE FOR SUCH CLAIMS AND HEREBY WAIVE THE RIGHT TO PURSUE SUCH CLAIMS IN ANY
OTHER FORUM, UNLESS OTHERWISE PROVIDED BY LAW. ANY COURT ACTION INVOLVING A
DISPUTE WHICH IS NOT SUBJECT TO ARBITRATION SHALL BE STAYED PENDING ARBITRATION
OF ARBITRABLE DISPUTES.
(b) EMPLOYEE AND THE COMPANY AGREE THAT THE ARBITRATOR SHALL HAVE
THE AUTHORITY TO ISSUE PROVISIONAL RELIEF. EMPLOYEE AND THE COMPANY FURTHER
AGREE THAT EACH HAS THE RIGHT, PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE
SECTION 1281.8, TO APPLY TO A COURT FOR A PROVISIONAL REMEDY IN CONNECTION WITH
AN ARBITRABLE DISPUTE SO AS TO PREVENT THE ARBITRATION FROM BEING RENDERED
INEFFECTIVE.
(c) ANY DEMAND FOR ARBITRATION SHALL BE IN WRITING AND MUST BE
COMMUNICATED TO THE OTHER PARTY PRIOR TO THE EXPIRATION OF THE APPLICABLE
STATUTE OF LIMITATIONS.
(d) THE ARBITRATION SHALL BE CONDUCTED PURSUANT TO THE PROCEDURAL
RULES STATED IN THE NATIONAL RULES FOR RESOLUTION OF EMPLOYMENT DISPUTES OF THE
AMERICAN ARBITRATION ASSOCIATION ("AAA"). THE ARBITRATION SHALL BE CONDUCTED IN
SAN DIEGO BY A FORMER OR RETIRED JUDGE OR ATTORNEY WITH AT LEAST 10 YEARS
EXPERIENCE IN EMPLOYMENT-RELATED DISPUTES, OR A NON-ATTORNEY WITH LIKE
EXPERIENCE IN THE AREA OF DISPUTE, WHO SHALL HAVE THE POWER TO HEAR MOTIONS,
CONTROL DISCOVERY, CONDUCT HEARINGS AND OTHERWISE DO ALL THAT IS NECESSARY TO
RESOLVE THE MATTER. THE PARTIES MUST MUTUALLY AGREE ON THE ARBITRATOR. IF THE
PARTIES CANNOT AGREE ON THE ARBITRATOR AFTER THEIR BEST EFFORTS, AN ARBITRATOR
FROM THE AMERICAN ARBITRATION ASSOCIATION WILL BE SELECTED PURSUANT TO THE
AMERICAN ARBITRATION ASSOCIATION NATIONAL RULES FOR RESOLUTION OF EMPLOYMENT
DISPUTES. THE COMPANY SHALL PAY THE COSTS OF THE ARBITRATOR'S FEES.
(e) THE ARBITRATION WILL BE DECIDED UPON A WRITTEN DECISION OF THE
ARBITRATOR STATING THE ESSENTIAL FINDINGS AND CONCLUSIONS UPON WHICH THE AWARD
IS BASED. THE ARBITRATOR SHALL HAVE THE AUTHORITY TO AWARD DAMAGES, IF ANY, TO
THE EXTENT THAT THEY ARE AVAILABLE UNDER APPLICABLE LAW(S). THE ARBITRATION
AWARD SHALL BE FINAL AND BINDING, AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT
HAVING COMPETENT JURISDICTION. EITHER PARTY MAY SEEK REVIEW PURSUANT TO
CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1286, ET SEQ.
(f) IT IS EXPRESSLY UNDERSTOOD THAT THE PARTIES HAVE CHOSEN
ARBITRATION TO AVOID THE BURDENS, COSTS AND PUBLICITY OF A COURT PROCEEDING, AND
THE ARBITRATOR IS EXPECTED TO HANDLE ALL ASPECTS OF THE MATTER, INCLUDING
DISCOVERY AND ANY HEARINGS, IN SUCH A WAY AS TO MINIMIZE THE EXPENSE, TIME,
BURDEN AND PUBLICITY OF THE PROCESS, WHILE ASSURING A FAIR AND
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JUST RESULT. IN PARTICULAR, THE PARTIES EXPECT THAT THE ARBITRATOR WILL LIMIT
DISCOVERY BY CONTROLLING THE AMOUNT OF DISCOVERY THAT MAY BE TAKEN (E.G., THE
NUMBER OF DEPOSITIONS OR INTERROGATORIES) AND BY RESTRICTING THE SCOPE OF
DISCOVERY ONLY TO THOSE MATTERS CLEARLY RELEVANT TO THE DISPUTE. HOWEVER, AT A
MINIMUM, EACH PARTY WILL BE ENTITLED TO AT LEAST ONE DEPOSITION AND SHALL HAVE
ACCESS TO ESSENTIAL DOCUMENTS AND WITNESSES AS DETERMINED BY THE ARBITRATOR.
(G) THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE EXPIRATION OR
TERMINATION OF THE AGREEMENT, AND SHALL BE BINDING UPON THE PARTIES.
THE PARTIES HAVE READ SECTION 12 AND IRREVOCABLY AGREE TO ARBITRATE ANY DISPUTE
IDENTIFIED ABOVE.
/s/ PH (EMPLOYEE) /s/ WCB (COMPANY)
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13. Advice of Counsel. The Company advises Employee to discuss this
Agreement with an attorney before executing it, and Employee acknowledges that
Employee has either done so or has knowingly and voluntarily waived Employee's
right to do so. Employee further acknowledges that the Company will provide
Employee twenty-one (21) days within which to review and consider this Agreement
before signing it. Should Employee decide not to use the full twenty-one (21)
days, then Employee knowingly and voluntarily waives any claims that Employee
was not given that period of time or did not use the entire twenty-one (21) days
to consult an attorney or consider this Agreement.
14. Right to Revoke. The parties acknowledge and agree that Employee may
revoke this Agreement for up to seven (7) calendar days following Employee's
execution of this Agreement and that it shall not become effective or
enforceable until the revocation period has expired. The parties further
acknowledge and agree that such revocation must be in writing addressed to
Xxxxxxx X. Xxxxx, Senior Vice President and General Counsel, Callaway Golf
Company, 0000 Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxx 00000, and received no later
than midnight on the seventh day following the execution of this Agreement by
Employee. If Employee revokes this Agreement under this section, it shall not be
effective or enforceable.
15. Effective Date. If Employee does not revoke this Agreement in the
timeframe specified in Section 14 above, the Agreement shall become effective at
12:00 a.m. on the eighth day after it is fully executed by the parties.
16. Counterparts/Facsimile Signatures. This Agreement may be executed in
one or more counterparts which, when fully executed by the parties, shall be
treated as one agreement. Facsimile signatures shall be treated as original
signatures.
17. Substantial Cause.
(a) Employee understands that the Company retains its right to terminate
this Agreement at any time for substantial cause. "Substantial cause" shall
mean, for purposes of this Agreement, a material breach of this Agreement or the
Employment Agreement.
(b) In the event that Company determines that there is Substantial Cause
to terminate this Agreement, it will notify Employee of the grounds for the
Company's decision, and permit Employee to respond within ten (10) days before
the termination becomes effective. If Employee disagrees with Company's
decision, Employee shall have the right, as set forth in section 12, above, to
demand arbitration. In the event that Employee does so, Company shall continue
regularly depositing sums that would otherwise be payable to Employee with the
arbitrator, or in such fashion as the arbitrator directs, pending resolution of
the arbitration.
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(c) The parties further agree, that with respect to section 20 of the
Employment Agreement, which provides the conditions under which Employee is
entitled to receive Incentive Payments, that if Employee elects to pursue
employment that shall otherwise fall within section 20, but gives the Company
advance notice of such employment and a description of the steps to be taken by
Employee and the commitment of his new employer to protect the Company's
confidential information and other proprietary interests, then the Company may
elect to waive the conditions in section 20 or to otherwise suggest additional
steps to protect the Company's interests. In the event that the parties cannot
agree, then the Company agrees to submit that issue to a single arbitrator for
an expedited determination (within 21 days) as to whether its decision is a
reasonable exercise of its business judgment. In the meantime, the Company will
regularly deposit in escrow or as the arbitrator directs the sums that would
otherwise be payable to Employee while the dispute is pending. In the event that
the arbitrator decides that the Company has not exercised reasonable business
judgment, all funds in escrow shall be immediately released to Employee and the
Company shall resume Incentive Payments to Employee. If the matter is resolved
in favor of the Company, then those funds held in escrow shall be immediately
released to Company and Company shall have no further obligation to make
Incentive Payments to Employee. The parties affirmatively agree that the
arbitrator cannot substitute his or her judgment for that of the Company, but
that the standard shall be whether the Company has exercised reasonable business
judgment in light of all of the circumstances, including the reasonable measures
to be taken by Employee and his new employer to protect the Company's
confidential information and trade secrets.
(d) The prevailing party in any dispute under this Section shall be
entitled to reasonable attorneys' fees and costs.
18. Payroll Deductions/Taxes. Employee agrees that the Company may
continue to deduct from Employee's Special Severance and Incentive Payments, as
stated in Section 1, any amounts due for product purchases, including, but not
limited to club and store purchases, outstanding benefit contributions, payroll
advances, and any other deduction previously authorized by Employee. Employee
also agrees to pay all taxes and other required government withholding and
hereby authorizes the Company to deduct said taxes and withholding from
Employee's Special Severance and Incentive Payments or any other payment
pursuant to this Agreement, in equal increments, until it is paid in full.
Within fourteen (14) days of the request for same, Employee agrees to pay the
Company for any taxes not withheld from his Special Severance and Incentive
Payments. Said deductions will be made in increments on regular Company pay
dates or on such other schedule agreed to between Company and Employee. Company
shall provide a detailed accounting for any and all tax withholding made from
Employee's payments. Employee has elected to receive payment via wire transfer
on a quarterly schedule with the first payment to be paid on the next regular
payday following the Effective Date; on May 15, 2005; on August 15, 2005; and on
November 15, 2005. Employee has also elected to receive such payment in Euros at
a fixed rate of $1.30 dollars per Euro. Employee's payment election is
documented in his counsel's correspondence dated February 10, 2005, ratified by
Employee's signature to this Agreement.
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19. Entire Agreement. This Agreement and the Employment Agreement
constitute the entire agreement between the parties with respect to the subject
matter hereof and may not be modified or amended, except by written agreement
signed by all parties. This Agreement and the Employment Agreement shall be
deemed to be consistent with each other, and this Agreement shall be deemed to
be "another instrument in writing executed by the parties," pursuant to Section
15 of the Employment Agreement. The Employee Invention and Confidentiality
Agreement and the Information Security Policy and Agreement signed by Employee
while employed shall remain in effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
dates set forth below, to be effective as of the date first written above.
Employee Company
CALLAWAY GOLF COMPANY,
a Delaware Corporation
/s/ Xxxxxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx Xxxxx Xxxxxxx X. Xxxxx
Chairman, CEO
Dated: 02/15/05 Dated: 02/24/05
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