EXECUTIVE EMPLOYMENT AGREEMENT BETWEEN MR. BARNEY ADAMS AND ADAMS GOLF
EXHIBIT 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
BETWEEN XX. XXXXXX XXXXX
AND XXXXX GOLF
THIS EMPLOYMENT AGREEMENT (the “Agreement”) shall be effective on the 1st day of January, 2009 (the
“Effective Date”), by and between Xxxxx Golf, Inc. and its subsidiaries with its principal place of
business at 0000 Xxxx Xxxxx Xxxxxxx, Xxxxx, Xxxxx (collectively, the “Company”), and Xx. Xxxxxx
Xxxxx (the “Chairman”).
W I T N E S E T H:
WHEREAS, the Company desires to employ the Chairman in the capacity of non-executive Chairman
of the Board of Directors;
WHEREAS, the Chairman desires and is willing to accept employment with the Company on the
terms and subject to the conditions set forth below;
NOW, THEREFORE, in consideration of the promises and mutual covenants contained herein, the
parties agree as follows:
1. EMPLOYMENT AND DUTIES.
During the term of this Agreement the Company shall employ the Chairman as its Chairman of the
Board of Directors. The Chairman’s duties shall be those reasonably expected of a non-executive
Chairman of the Board of Directors in a similarly capitalized corporation. Additionally, the
Chairman shall participate in Public Relations efforts and consult on Research and Design as
directed by the Chief Executive Officer and the Board of Directors. The Chairman shall devote his
knowledge, skills, professional time, attention and energies to the Public Relations and Research
and Design of Products for the Company in order to perform faithfully, competently and diligently
any duty assigned to him by the Chief Executive Officer. Notwithstanding the foregoing, it is
understood and agreed between the parties that the Chairman shall have no authority or duties over
operational or executive matters other than as a voting member of the Board of Directors as
provided in the by-laws of the Company. Pursuant to his duties hereunder, the Chairman will create
and promote the Company’s goodwill among its customers, employees, suppliers, and other parties
with whom it has business relationships.
2. TERM.
The term of this Agreement shall commence on the Effective Date (January 1, 2009) and shall
continue in effect through December 31, 2011 (the “Term”), unless earlier terminated
pursuant to the provisions set forth in Section 5 of this Agreement. The Chairman’s termination or
resignation pursuant to Section 5 of this Agreement shall not, in any way, prejudice the Chairman’s
rights under this Agreement or as provided by Texas law.
3. PLACE OF EMPLOYMENT.
The place of employment shall be at the Company’s principal office currently located in Plano,
Texas; provided, however, that the Company may from time to time reasonably require the Chairman to
travel temporarily to other locations on Company business.
4. COMPENSATION.
In consideration of all of the services to be rendered by the Chairman to the Company hereunder,
the Company hereby agrees to pay the Chairman, and the Chairman hereby agrees to accept from the
Company, the following compensation:
(a) Annual Base Salary. Each calendar year of this Agreement, the Company shall pay
the Chairman One Hundred Twenty Thousand ($120,000) dollars, which shall be paid in equal
installments in accordance with the Company’s general salary payment policies, but no less
frequently than monthly (“Annual Base Salary”).
(b) Employee Benefit Plans.
(i) General. During the Term of this Agreement, the Chairman, and his
“dependents” as that term may be defined under any applicable employee benefit plan
of the Company, shall be entitled to participate in and receive benefits under any
and all employee benefit plans and programs that are from time to time generally
made available to executive employees of the Company.
(ii) Health Insurance. During the Term of this Agreement, the Company shall
provide the Chairman, at the Company’s expense, with any health insurance plan
provided to qualifying employees of the Company (identified as of the Effective Date
as the “Xxxxx Golf Ltd. Employee Medical Benefit Plan”), including any enhanced
health insurance plan benefits that may be provided to qualifying executive
employees of the Company (identified as of the Effective Date as “Exec-U-Care”).
(c) Expenses. Each calendar year of this Agreement, the Chairman shall be entitled
to reimbursement, in an amount not to exceed Ten Thousand ($10,000) dollars, for automobile
related expenses (lease, gas, insurance) incurred by the Chairman in connection with the
fulfillment of his duties herein, provided the Chairman has complied with all policies and
procedures relating to the reimbursement of such expenses as may from time to time be
established by the
Company including, but not limited to, the providing of all supporting backup to such
expenses as is required by the Internal Revenue Service.
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(d) Promotional Items. During the Term of this Agreement, the Chairman shall be
entitled to provide Company products, at the Company’s expense (not to exceed a maximum of
Six Thousand Five Hundred ($6,500) dollars annually), to customers, vendors, or suppliers as
the Chairman in his sole discretion determines, provided that the Chairman’s objective is to
enhance the business and goodwill of the Company.
5. TERMINATION OF AGREEMENT.
This Agreement (other than the provisions as applicable of Section 12, which shall survive such
termination) may be terminated as provided herein:
(a) Termination by the Company for “Cause”. For purposes hereof, the Company shall
have “Cause” to terminate the Chairman’s employment hereunder in any of the following
events:
(i) the deliberate and intentional breach of any material provision of this
Agreement, which breach the Chairman shall have failed to reasonably cure within
thirty (30) days after the Chairman’s receipt of written notice from the Company
specifying the specific nature of the Chairman’s breach; or
(ii) the deliberate and intentional engaging by the Chairman in gross misconduct
that is materially and demonstrably harmful to the best interests, monetary or
otherwise, of the Company; or
(iii) a conviction of the Chairman for a felony involving moral turpitude, fraud or
deceit.
(b) Resignation by the Chairman Without “Good Reason”. The Chairman may resign from
his employment with the Company for any reason upon sixty (60) days prior written notice to
the Company. For purposes of this Agreement, a resignation by the Chairman shall be for
“Good Reason” only upon the occurrence of one or more of the events described in subsection
5(d).
(c) Termination by the Company Without “Cause”. For purposes hereof, if the Company
terminates the Chairman’s employment for any reason other than those listed in subsection
5(a), then such termination shall be without “Cause.”
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(d) Resignation by the Chairman for “Good Reason”. The Chairman’s employment under
this Agreement shall be deemed to have been terminated other than for Cause and for “Good
Reason” (as herein so used), if the Chairman tenders his resignation within:
(i) thirty (30) days of the occurrence of any material breach by the Company of any
of the terms of, or the failure to perform any covenant or agreement contained in
this Agreement, which breach or failure to perform shall not have been cured by the
Company within thirty (30) days after the Company’s receipt from the Chairman of
written notice specifying in reasonable details the nature of the Company’s breach
or failure to perform; or
(ii) thirty (30) days of the occurrence of any substantial reduction in title,
position, reporting requirements, responsibilities, or duties of the Chairman, which
occurrence shall not have been cured by the Company within thirty (30) days after
the Company’s receipt from the Chairman of written notice specifying in reasonable
details the nature of such occurrence; or
(iii) thirty (30) days of the occurrence of any reduction in the Annual Base Salary;
or
(iv) thirty (30) days of the Company’s failure to obtain the full assumption in
writing of this Agreement by any successor (whether direct or indirect, by purchase,
merger, consolidation, or otherwise) of the Company’s business and/or assets not
less than five (5) days prior to any sale, merger, consolidation, or other
disposition of the Company’s business or assets; or
(v) delivery by the Company to the Chairman of written notice of the Company’s
approval for the Chairman to tender his resignation with Good Reason.
(e) Termination on Death. In the event of the Chairman’s death, this Agreement will
be deemed to have terminated on the date of his death.
(f) Termination on Disability. If the Chairman becomes unable to perform his duties
as described herein due to injury, illness, or disability (physical or mental) during one
(1) consecutive period of one hundred twenty (120) days, which incapacity is, in the
Company’s judgment, prejudicial to the Company’s best interests, then the Company or the
Chairman may terminate this Agreement. If the Chairman is incapacitated, then his legally
designated representative may terminate this Agreement.
(g) Termination by Mutual Written Agreement. This Agreement and the Chairman’s
employment with the Company may be terminated at any time by the mutual written agreement of
the Chairman and the Company.
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6. SEVERANCE.
Upon the termination of this Agreement, the Company agrees to make severance payments as follows:
(a) Termination by the Company for “Cause”. If the Company terminates this
Agreement for “Cause” pursuant to subsection 5(a), then the Chairman shall not be entitled
to any severance pay. However, in such event the Company shall pay to the Chairman his
accrued but unpaid Annual Base Salary and any amount due (and not previously paid) to the
Chairman under subsection 4(c) for reasonable expenses incurred by the Chairman in the
performance of his duties hereunder.
(b) Resignation by the Chairman Without “Good Reason”. If the Chairman terminates
this Agreement without “Good Reason” pursuant to subsection 5(b), then the Chairman shall
not be entitled to any severance pay. However, in such event the Company shall pay to the
Chairman his accrued but unpaid Annual Base Salary and any amount due (and not previously
paid) to the Chairman under subsection 4(c) for reasonable expenses incurred by the Chairman
in the performance of his duties hereunder.
(c) Termination by the Company Without “Cause” or Resignation by the Chairman for “Good
Reason”. If the Company terminates this Agreement without “Cause” pursuant to
subsection 5(c) or if the Chairman resigns for “Good Reason” pursuant to subsection 5(d),
then the Company will pay the Chairman the following compensation and benefits:
(i) Severance Payment. A lump sum payment (the “Severance Payment”) in
cash equal to one year’s Annual Base Salary at the then current rate in effect
immediately prior to the Chairman’s termination or resignation. The Company shall
make the Severance Payment beginning six (6) months after termination or
resignation, and in twenty-four (24) semi-monthly installments to coincide with the
Company’s salaried payroll schedule. Additionally, in such event the Company shall
pay to the Chairman his accrued but unpaid Annual Base Salary as of the date of the
termination or resignation, and any amount due (and not previously paid) to the
Chairman under subsection 4(c) for reasonable expenses incurred by the Chairman in
the performance of his duties hereunder.
(ii) Employee Benefit Plans, Including Without Limitation, Health
Insurance. Upon the Chairman’s termination or resignation, the Company shall
provide any benefit due to the Chairman in accordance with the terms and conditions
of each Company-sponsored employee benefit plan in which the Chairman, and any of
his dependants, participated prior to the date of his termination or resignation.
Additionally, the Company shall provide health care plan benefits to the Chairman
and his eligible dependents in accordance with the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended (“COBRA”).
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The Company agrees that for a one year period following the date of the Chairman’s
termination or resignation, the Company shall pay the COBRA premiums for all of the
Chairman’s health insurance continuation coverage,
provided that the Chairman elects such continuation coverage within sixty (60) days
of his termination or resignation. Thereafter, if the Chairman is eligible and
wishes to continue his COBRA coverage, the Chairman shall be solely responsible for
payment of the entire COBRA premium during any applicable COBRA continuation period.
On a benefit by benefit basis, the Chairman may give written notice to the Company
of his decision to decline election of continuation coverage, and then the Company
shall pay to the Chairman a lump sum cash payment in an amount equal to the present
value (using an 8% annual discount rate) of the projected cost to the Company of
providing such benefit during a one year continuation period from the date of the
Chairman’s termination or resignation. The aggregate amount of cash to which the
Chairman is entitled pursuant to the preceding sentence shall be payable to the
Chairman within sixty (60) days after the date of the termination or resignation of
Chairman’s employment hereunder.
(iii) Unpaid Annual Base Salary and Expenses. The Company shall pay to
the Chairman any accrued but unpaid Annual Base Salary and any amount due (and not
previously paid) to the Chairman under subsection 4(c) for reasonable expenses
incurred by the Chairman in the performance of his duties hereunder.
The Chairman’s subsequent death or disability shall in no way affect or limit the Company’s
obligations under this Section.
(d) Termination on Death. If this Agreement terminates pursuant to the death of the
Chairman under subsection 5(e), then the Company shall pay to the Chairman’s wife, if she
has not predeceased him and if she is married to the Chairman on the date of his death, a
lump sum payment (the “Widow Payment”) in cash equal to one year of the Chairman’s Annual
Base Salary at the then current rate in effect at the time of the Chairman’s death, payable
in twelve (12) equal monthly installments following the Chairman’s date of death. If the
Chairman is not married at the time of his death or if the Chairman’s wife has predeceased
the Chairman, then the Company shall make the Widow Payment to the Chairman’s estate.
Additionally, in the event of the Chairman’s death, the Company shall pay to the Chairman’s
wife, or his estate if she has predeceased him or is not married to him on the date of his
death, the Chairman’s accrued but unpaid Annual Base Salary and any amount due (and not
previously paid) to the Chairman under subsection 4(c) for reasonable expenses incurred by
the Chairman in the performance of his duties hereunder.
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(e) Termination on Disability. If the Company, the Chairman or the Chairman’s
legally designated representative terminates this Agreement by reason of disability pursuant
to subsection 5(f), then the Company shall pay to the Chairman the difference between (i)
the Chairman’s Annual Base Salary at the then current rate in
effect at the time of the Chairman’s disability, calculated on a monthly basis, and (ii) any
disability compensation received by the Chairman (the “Disability Payments”). The Company’s
obligation to make the Disability Payments described herein shall commence on the date this
Agreement is terminated by reason of disability pursuant to subsection 5(f) and shall end on
the first year anniversary of such date (the “Disability Payment Period”).
(f) Death While on Disability. If this Agreement is terminated by reason of
disability pursuant to subsection 5(f) and the Chairman dies during the Disability Payment
Period, the Company shall make the Widow Payment described in subsection 6(d) in lieu of
making additional Disability Payments, provided that the Chairman’s wife has not predeceased
him and she is married to the Chairman on the date of his death. If the Chairman is not
married at the time of his death or if the Chairman’s wife has predeceased the Chairman,
then the Company shall make the Widow Payment and any Disability Payments that have accrued
but remain unpaid at the time of the Chairman’s death to the Chairman’s estate.
(g) Termination by Mutual Written Agreement. In the event that the Chairman and the
Company shall terminate the Chairman’s employment by mutual written agreement, the Company
shall pay such compensation and provide such benefits, if any, as the parties may mutually
agree upon in writing.
| 7. | COVENANTS AS TO CONFIDENTIAL INFORMATION AND COMPETITIVE CONDUCT. |
The Chairman acknowledges and agrees as follows: (i) this Section 7 is necessary for the protection
of the legitimate business interests of the Company, (ii) the restrictions contained in this
Section 7 with regard to geographical scope, length of term and types of restricted activities are
reasonable, (iii) the Chairman has received adequate and valuable new consideration as set forth
herein for entering into this Agreement, and (iv) the Chairman’s expertise and capabilities are
such that this obligation and the enforcement of it by injunction or otherwise will not adversely
affect the Chairman’s ability to earn a livelihood.
(a) Confidentiality of Information and Nondisclosure. The Chairman
acknowledges and agrees that his employment by the Company under this Agreement necessarily
involves proprietary information pertaining to the business of the Company and its related
entities. Accordingly, the Chairman agrees that at all times during the terms of this
Agreement and at all times thereafter, he will not, directly or indirectly, without the
express written approval of the Company, unless directed by applicable legal authority
having jurisdiction over the Chairman, disclose to or use, or knowingly permit to be so
disclosed or used, for the benefit of himself, any person, corporation or other entity other
than the Company, except as required in the course of his employment:
(i) any information concerning any financial matters, customer relationships,
competitive status, supplier matters, internal organizational matters, current or
future plans, or other business affairs of or relating to the Company or its
subsidiaries,
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(ii) any management, operational, trade, technical or other secrets or any
other proprietary information or other data of the Company or its subsidiaries,
(iii) any other information related to the Company or its related entities that
the Chairman should reasonably believe will be damaging to the Company or its
related entities and which has not been published and is not generally known outside
of the Company.
The Chairman acknowledges that all of the foregoing constitutes confidential and/or
proprietary information of the Company, which is the exclusive property of the Company.
Excluded from this confidential and/or proprietary information of the Company shall be (i)
information known by or generally available to the public through no breach by the Chairman
of this Agreement and which the public may use without any direct or indirect obligation to
the Company and (ii) information that documentary evidence demonstrates was independently
developed by the Chairman.
(b) Restrictive Covenant. During the term of, and for a period of one (1) year
(the “Restrictive Period”) after the termination of the Chairman’s employment other than by
the Company without Cause or by the Chairman with Good Reason, the Chairman shall not
render, directly or indirectly, services to (as an employee, consultant, independent
contractor or in any other capacity) any person, firm, corporation, association or other
entity which conducts the same or similar business as the Company or its subsidiaries at the
date of the Chairman’s termination of employment within the states in which the Company or
any of its subsidiaries is then doing business at the date of the Chairman’s termination of
employment hereunder without the prior written consent of the Chief Executive Officer which
may be withheld at his sole discretion. In the event that this Agreement expires after
termination and is not renewed by the parties, the Restrictive Period shall not extend
beyond the termination of employment unless the Company pays the Chairman an additional
amount equal to one year’s Annual Base Salary, in which case it shall extend for a period of
one (1) year. The Chairman further agrees that at no time during the Restrictive Period will
the Chairman attempt to directly or indirectly solicit or hire employees of the Company or
its subsidiaries or induce any of them to terminate their employment with the Company or any
of the subsidiaries.
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(c) Company Remedies. The Chairman acknowledges and agrees that any breach of
this Agreement by him will result in immediate and irreparable harm to the Company and that
the Company cannot be reasonably or adequately compensated by damages in an action at law.
In the event of a breach by the
Chairman of the provisions of this Section 7 as determined by an Arbitrator, the
Company shall be entitled to, to the extent permitted by law, immediately to cease paying or
providing the Chairman or his dependents any compensation or benefits provided pursuant to
Sections 4 or 6 of this Agreement as liquidated damages, and also to obtain immediate
injunctive relief restraining the Chairman from conduct in breach of the covenants contained
in this Section 7. Nothing herein shall be construed as prohibiting the Company from
pursuing any other remedies available to it for such breach, including the recovery of
damages from the Chairman under the provisions of Section 12.
8. AGREEMENT SURVIVES MERGER OR DISSOLUTION.
This Agreement shall not be terminated by the Company’s voluntary or involuntary dissolution or by
any merger in which the Company is not the surviving or resulting corporation, or on any transfer
of all or substantially all of the Company’s assets. In the event of any such merger or transfer of
assets, the provisions of this Agreement shall be binding on and inure to the benefit of the
surviving business entity or the business entity to which such assets shall be transferred and to
the Chairman and his heirs.
9. OWNERSHIP OF INTANGIBLES.
In relation to the Company’s products, namely, standard golf clubs (including woods, irons, and
putters), golf bags, and golf apparel, any processes, inventions, patents, copyrights, trademarks,
and other intangible rights that may be conceived or developed by the Chairman, either alone or
with others, during the term of Chairman’s employment, whether or not conceived or developed during
Chairman’s working hours, and with respect to which the equipment, supplies, facilities, or trade
secret information of the Company was used, or that relate at the time of conception or reduction
to practice of the invention to the business of the Company or to the Company’s actual or
demonstrably anticipated research and development, or that result from any work performed by
Chairman for the Company, shall be the sole property of the Company. Chairman shall execute all
documents, including patent applications and assignments, required by the Company to establish the
Company’s rights under this Section.
10. INDEMNIFICATION BY THE COMPANY.
The Company shall, to the maximum extent permitted by law, indemnify and hold the Chairman harmless
against expenses, including reasonable attorneys’ fees, judgments, fines, settlements, and other
amounts actually and reasonably incurred in connection with any proceeding arising by reason of the
Chairman’s employment by the Company. The Company shall advance to the Chairman any expense
incurred in defending any such proceeding to the maximum extent permitted by law.
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| 11. | DISCLOSURE OF CUSTOMER INFORMATION AND SOLICITAITON OF OTHER EMPLOYEES PROHIBITED. |
In the course of his employment, the Chairman will have access to confidential records and data
pertaining to the Company’s customers and to the relationship between these customers and the
Company’s account executives. Such information is considered secret and is disclosed to the
Chairman in confidence. During his employment by the Company and for one (1) year after termination
of that employment, the Chairman shall not directly or indirectly disclose or use any such
information, except as required in the course of his employment by the Company. Nothing in this
Section shall apply to gifts, meals, and entertainment if the Chairman’s objective is to enhance
the business and goodwill of the Company.
12. ARBITRATION.
In the event of any controversy, dispute, or claim arising out of, or relating to, any of the
provisions of this Agreement, the parties hereby agree that the matter or dispute shall be
submitted to arbitration according to the National Rules for the Resolution of Employment Disputes
of the American Arbitration Association. The arbitration shall be conducted in Dallas, Texas. The
matter shall be decided by a single arbitrator selected according to such rules. The cost of
arbitration shall be borne as the arbitrator determines. Each party shall bear its own respective
attorneys’ fees during the arbitration, but the arbitrator may award all or part of the reasonable
attorney’s fees incurred to the prevailing party. The results of the arbitration shall be binding
upon both sides and no appeal shall be available therefrom. Notwithstanding this section, the
Company may seek a temporary restraining order and a temporary injunction with regard to the
enforcement of the provisions of Section 7 prior to or during the pendency of any such arbitration.
13. WAIVER OF BREACH.
Failure of any party to protest a breach by any other party or waiver by any party of a breach
shall not operate as or be construed as a waiver of rights or remedies as to that breach and a
waiver by any party of a breach shall not operate as or be construed as a waiver of rights or
remedies as to any subsequent breach by any other party.
14. NON-RELIANCE.
Each party to this Agreement represents, warrants and acknowledges that in entering into this
Agreement that it has not relied upon any act, representation, or warranty by any other party
thereto, or by any of their representatives or attorneys, except as may be expressly contained in
this Agreement. Each party further represents and warrants that he/it has thoroughly discussed all
aspects of this Agreement with his/its attorneys, that he/it has had a reasonable time to review
this Agreement, that he/it fully understands the provisions of this Agreement and the effect
thereof and that he/it is entering into this Agreement voluntarily and of his/its own free will.
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15. CONSTRUCTION OF AGREEMENT.
Wherever the context shall so require, all words herein in the male gender shall be deemed to
include the female or neuter gender, all singular words shall include the plural, and all plural
words shall include the singular.
16. TEXAS LAW TO APPLY.
This Agreement shall be construed under and in accordance with the laws of the State of Texas, and
all obligations of the parties created hereunder to be performed in Dallas County, Texas.
17. SEVERABILITY.
If any one or more of the provisions contained in this Agreement for any reason are held to be
invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision thereof and this Agreement shall be construed as if such
invalid, illegal, or unenforceable provision had never been contained herein.
18. HEADINGS.
The headings used in this Agreement are used for administrative purposes only and do not constitute
substantive matters to be considered in construing the terms of this Agreement.
19. ENTIRE AGREEMENT AND INTEGRATION.
This Agreement constitutes the entire agreement among the parties hereto relating to the subject
matter hereof, and supersedes all prior agreements and understandings, whether oral or written,
with respect to the same. No modification, alteration, amendment, or rescission of or supplement
to this Agreement shall be valid or effective unless the same is in writing and signed by all
parties hereto.
20. NOTICES.
Any parties’ address for notice may be changed by written notice delivered to the other party in
accordance with this paragraph. Any notice by certified mail shall be deemed delivered upon actual
receipt. Any notice or communication required or permitted hereunder shall be in writing and
personally delivered or mailed by certified mail, return receipt requested, or delivered by an
overnight express courier, addressed to the Company or the Chairman, as the case may be, at the
addresses set forth below:
If to the Company:
|
Xxxxx Golf, Inc. | |
| 0000 Xxxx Xxxxx Xxxxxxx | ||
| Xxxxx, Xxxxx 00000 | ||
| Attn: President | ||
If to the Chairman:
|
Xx. Xxxxxx Xxxxx | |
| 0000 Xxx Xxxxx | ||
| Xxxxxx, Xxxxx 00000 |
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21. PARTIES BOUND.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, legal representatives, successors, and assigns where
permitted by this Agreement.
22. COUNTERPARTS.
This Agreement may be executed in any number of counterparts and each of such counterparts shall
for all purposes be deemed to be an original.
Executed by the parties on the date written below.
| THE COMPANY: | XXXXX GOLF, INC. | |||
Date:
January 12, 2009
|
By: | /s/ Xxxxxx Xxxxxx | ||
| Xxxxxx Xxxxxx | ||||
| Its: Chief Executive Officer and President | ||||
THE CHAIRMAN: |
||||
Date: January 12, 2009 |
/s/ Xxxxxx Xxxxx | |||
| Xxxxxx Xxxxx | ||||
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