CONFIDENTIAL TREATMENT REQUESTED CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE COMMISSION
REDACTED
COPY
CONFIDENTIAL
TREATMENT REQUESTED
CONFIDENTIAL
PORTIONS OF THIS
DOCUMENT
HAVE BEEN REDACTED
AND
HAVE BEEN SEPARATELY
FILED
WITH THE COMMISSION
CONFIDENTIAL
TREATMENT
1
EXECUTIVE
EMPLOYMENT
AGREEMENT
THIS
AGREEMENT (the
"Agreement") entered into as of the date signed by the parties below by and
between Xxxxx Golf, Inc. and its subsidiaries with its principal place of
business at 0000 Xxxx Xxxxx Xxxxxxx, Xxxxx, Xxxxx (the "Company") and Xx. Xxxxxx
Xxxxxx (the "Executive");
RECITALS
WHEREAS, the
Executive is and has been employed by the Company for the past three years as
its Chief Executive Officer;
WHEREAS, the
Company’s Board of Directors desires assurance of the continued association and
services of the Executive in order to retain his experience, skills, abilities,
background, and knowledge, and is therefore willing to engage his services on
the terms and subject to the conditions set forth below;
WHEREAS, the
Executive desires and is willing to continue employment with the Company
on the terms
and subject to the conditions set forth below;
NOW
THEREFORE, in
consideration of the premises and mutual covenants contained herein, the parties
agree as follows:
AGREEMENT
| 1. | POSITION AND DUTIES |
During
the term of this Agreement, the Company shall employ the Executive as Chief
Executive Officer. The Executive’s duties shall be those which shall be
prescribed by the Board of Directors from time to time which shall be those
reasonably expected of a chief executive officer of a similarly capitalized
corporation and those performed by his predecessor. The Executive shall use his
best efforts to promote the best interest of the Company. The Executive shall
devote his knowledge, skill and, exclusively (other than as set forth below),
all of his professional time, attention and energies (reasonable absences for
vacations and illness excepted), to the business of the Company in order to
perform such assigned duties faithfully, competently and diligently.
Notwithstanding the foregoing, it is understood and agreed between the parties
that the Executive may (i) engage in charitable and community activities, (ii)
manage personal investments and affairs and (iii) serve on the boards of
directors of a reasonable number of other corporations or the boards of a
reasonable number of trade associations, so long as such activities and
investments do not interfere or conflict with the Executive's performance of his
responsibilities and obligations to the Company.
CONFIDENTIAL
TREATMENT
2
| 2. | TERM OF EMPLOYMENT |
The
Company agrees to employ the Executive and the Executive agrees to serve the
Company pursuant to the terms and conditions of this Agreement for a term of
three (3) years, commencing on January 1, 2005 and expiring on December 31,
2007, unless earlier terminated pursuant to this Agreement. Notwithstanding any
contrary clause in this Agreement, the Executive shall serve at the pleasure of
the Board of Directors and may be terminated at any time in accordance with the
provisions of this Agreement. The Executive’s termination shall not, in any way,
prejudice the Executive’s rights under this Agreement.
| 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 require
the Executive to travel temporarily to other locations on Company business.
| 4. | COMPENSATION |
The
Executive shall receive, for all services rendered to the Company as an
employee, the following compensation.
| (a) |
Salary.
The Executive shall be paid an Annual Base Salary in the amount of Four
Hundred Thousand ($400,000) dollars or such greater amount as may be
determined by the Board of Directors. The Executive's Annual Base Salary
shall be payable in equal installments in accordance with the Company's
general salary payment policies, but no less frequently than monthly.
|
| (b) | Incentive Compensation. Each calendar year, the Executive shall be eligible for two bonuses. The first bonus is to be paid at the end of the first half of the calendar year but no later than July 20 and the second bonus is to be paid at the end of the second half of the year but no later than January 20 of the following year. Each bonus shall be contingent upon the Company achieving its internal financial goals for the applicable half of the calendar year as stated by the Board of Directors, The amount of each bonus shall depend on whether the Company has achieved annual sales of [* *****] dollars in the period of the bonus. If the Company’s annual sales are under [*****] dollars, the bonus amount shall be One Hundred Twenty Five thousand ($125,000) dollars. If the Company’s annual sales are over [*****] dollars, the bonus amount shall be Two Hundred Thousand ($200,000) dollars. |
[******] Confidential
Material redacted and filed separately with the Commission.
CONFIDENTIAL
TREATMENT
3
Example:
Year 1 the Company achieves [*****] in annual sales by the end of December and
also achieves its internal financial goals for both halves of the year. The
Executive’s first half of the year bonus shall be $125,000 and the second half
of the year bonus shall be $200,000. Year 2 the Company achieves it’s internal
financial goals for both halves of the year but by the end of December only
achieves [* ****] in
sales. The Executive’s first half of the year bonus for year 2 is $200,000 and
second half of the year bonus is $125,000.
|
(c) |
Equity
Participation.
|
|
(1) |
Not
later than the end of January of each calendar year of this Agreement, the
Executive shall be granted one percent (1%) of
the Company’s fully diluted stock in stock options at an option strike
price of one cent ($.01) per share. These stock options are to retain the
Executive and shall vest one year after the date of grant;
|
|
(2) |
At
any time during the term of this agreement, if a majority of the capital
stock of the Company is to be sold or transferred to an unaffiliated
entity or substantially all of the assets of the Company are to be sold or
transferred to an unaffiliated entity, all of the Executive’s potential
stock options shall be granted and vested no later than the calendar day
immediately preceding the sale or closing date of the sale or transfer
transaction. |
| (d) | Long Term Incentive Payment . The Executive shall be eligible for a one time long term incentive payment at the conclusion of this three (3) year Agreement contingent upon the Company achieving a minimum cumulative EBITDA of [*****] dollars during the three (3) year term of this Agreement along the following payment structure: (For purposes of calculating EBITDA under this section, any insurance proceeds received by the Company and/or recovery of money and/or assets due to the theft of Company money by any employee(s) prior to the time this Agreement is executed shall not be used in calculating EBITDA.) |
|
(1) |
If
the Company achieves a cumulative EBITDA of [*****] dollars, the Executive
shall be granted a one time long term incentive payment of Seven Hundred
Fifty Thousand ($750,000) dollars. |
|
(2) |
Additionally,
for every dollar in EBITDA that the Company achieves over [*****] dollars
but under [*****] dollars, the payment shall increase by sixteen and
7/1000 ($.167) cents capped at One Million ($1,000,000) dollars.
|
|
(3) |
Additionally,
for every dollar in EBITDA that the Company achieves over [*****] dollars,
the payment shall increase by five ($.05)
cents. |
| (e) | Employee Benefit Plans. The Executive and his "dependents," as that term may be defined under the applicable employee benefit plan(s) of the Company, shall be included in all plans, programs and policies which provide benefits for Company employees and their dependents on a basis commensurate with the Executive's position and authorities, duties, powers and responsibilities. |
[******] Confidential
Material redacted and filed separately with the Commission.
CONFIDENTIAL
TREATMENT
4
| (f) | Expenses. The Executive is authorized to incur and shall be reimbursed by the Company for any and all reasonable and necessary business related expenses including, but not limited to, a company car, a local country club membership, expenses for auto, business travel, entertainment, gifts and similar matters. The company car and local country club membership are subject to the compensation committee’s approval, which shall not be unreasonably withheld. |
| 5. | ABSENCES |
The
Executive shall be entitled to vacations in accordance with the Company's
vacation policy in effect from time to time and to absences because of illness
or other incapacity and shall also be entitled to such other absences as are
granted to the Company's other senior executive officers or as are approved by
the Board of Directors, which approval shall not be unreasonably withheld.
| 6. | TERMINATION |
The
Executive's employment with the Company may be terminated only as follows:
| (a) |
By
the Company Without Cause.
The Company may at any time terminate the Executive's employment without
Cause upon sixty-(60) days prior written notice to the Executive.
|
| (b) |
By
the Executive Without Good Reason.
The Executive may at any time terminate his employment for any reason upon
sixty-(60) days written notice to the Company.
|
| (c) |
By
the Company For Cause.
The
Company may terminate the Executive’s employment for Cause. In such event,
the Company shall give the Executive prompt written notice (in addition to
any notice that may be required below) specifying in reasonable detail the
basis for such termination. For purposes of this Agreement, "Cause" shall
mean any of the following conduct by the Executive:
|
| (1) |
The
deliberate and intentional breach of any material provision of this
Agreement, which breach the Executive shall have failed to cure within
thirty (30) days after the Executive's receipt of written
notice from the Company specifying the specific nature of the Executive's
breach; or |
CONFIDENTIAL
TREATMENT
5
| (2) |
The
deliberate and intentional engaging by the Executive in gross misconduct
that is materially and demonstrably harmful to the best interests,
monetary or otherwise, of the Company; or |
| (3) | Conviction of a felony or conviction of any crime involving moral turpitude, fraud or deceit. |
| (d) |
By
the Executive for Good Reason.
The Executive may terminate his employment for Good Reason upon providing
thirty (30) days written notice to the Company after the Executive
reasonably becomes aware of the circumstances giving rise to such Good
Reason. For purposes of this Agreement, "Good Reason" means any of the
following conduct of the Company, unless the Executive shall have
consented thereto in writing: |
| (1) | Material breach of any material provision of this Agreement by the Company, which breach shall not have been cured by the Company within thirty (30) days after Company’s receipt from the Executive or his agent of written notice specifying in reasonable detail the nature of the Company's breach; or |
| (2) | The assignment to the Executive of any duties inconsistent in any material respect with the Executive's position including, but not limited to any diminution of the Executive's status and reporting requirements) authority, duties, powers or responsibilities, excluding for this purpose any isolated, insubstantial and inadvertent action respecting the Executive not taken in bad faith and which is remedied by the Company within thirty (30) days after receipt of written notice from the Executive to the Company; or |
| (3) |
The
failure of the Company to obtain the assumption in writing of its
obligations to perform this Agreement by any successor not less than five
days prior to a merger, consolidation or sale as contemplated in Section
10; or |
| (4) |
A
reduction in the Executive's total compensation. For purposes of this
subsection, a reduction in the overall level of compensation of the
Executive resulting from the failure to achieve corporate, business unit
and/or individual performance goals established for purposes of incentive
compensation for any year or other period shall not constitute a reduction
in the overall level of compensation of the
Executive. |
| (5) |
The
relocation of the Company’s principal office to a site more than 75 miles
from Plano, Texas. |
CONFIDENTIAL
TREATMENT
6
| (e) |
Disability. In
the event that the Executive shall be unable to perform his duties
hereunder on a full time basis for a period of sixty (60) consecutive
calendar days by reason of incapacity due to illness, accident, physical
or mental disability or otherwise, then the Company may, at
its discretion,
terminate the Executive's employment if the Executive, within ten (10)
days after receipt of written notice of termination is given (which may
occur before or after the end of the entire 60 day period), shall not have
returned to the performance of all of his duties on a full-time basis.
|
| (f) |
Death.
The Executive's employment shall terminate upon his death.
|
| (g) |
Mutual
Written Agreement.
This
Agreement and the Executive's employment with the Company may be
terminated at any time by the mutual written agreement of the Executive
and the Company. |
| 7. |
COMPENSATION
IN THE EVENT OF TERMINATION |
In the
event that the Executive's employment terminates prior to the expiration of this
Agreement, the Company shall pay the Executive compensation and provide the
Executive and his eligible dependents with benefits as follows:
| (a) |
Termination
By Company Without Cause or Termination By Executive For Good
Reason. In
the event that the Executive's employment is terminated by (i) the Company
without Cause or (ii) the Executive for Good Reason, then the Company
shall continue to pay or provide, as applicable, in accordance with the
Company's normal payroll practices unless otherwise specified, the
following compensation and benefits to the Executive:
|
| (1) |
The
Annual Base Salary of the Executive for a period of one (1) year after
expiration of the notice period or termination, whichever is later;
|
| (2) |
The
retention stock options (the stock options to retain the Executive as
opposed to the stock options based on Company performance) for which the
Executive was potentially eligible in the calendar year of termination
will be pro-rated for the months of service in the calendar year and will
be granted and fully vested as of the date of
termination; |
| (3) |
A
payment equal in amount to both semi-annual bonuses for which the
Executive was potentially eligible in the calendar year in which the
Executive was terminated. This payment will be made within 15 days of
termination. The payment shall be calculated based on the potential
semi-annual bonuses tied to the annual sales in effect at the time of
termination and shall be paid irrespective of whether the Company achieved
or was on track to achieve its internal financial goals for the calendar
year and/or whether a semi-annual bonus had already been paid to the
Executive in the calendar year of termination.
|
CONFIDENTIAL
TREATMENT
7
| (4) |
The
long term incentive payment for which the Executive was potentially
eligible. This payment will be made within 15 days of termination. The
payment shall be calculated as if the Company had achieved a minimum
cumulative EBITDA of [* *****] Confidential Material redacted
and filed separately with the Commission****] dollars irrespective of
whether the Company had achieved it or was on track to achieve it.
Additionally, if on the date of termination, the Company has achieved more
than [*****] dollars of cumulative EBITDA, then the executive shall also
receive five ($.05) cents for every EBITDA dollar achieved over [*****]
dollars. |
| (5) | Continuing coverage for all purposes (including eligibility, coverage, vesting and benefit accruals, as applicable), for the salary continuation period described in subsection (a)(l) above, to the extent not prohibited by law, for the Executive and his eligible dependents under all of the employee benefit plans in effect and applicable to Executive and his eligible dependents as of the date of his termination. In the event that the Executive and/or his eligible dependents, because of the Executive's terminated status, cannot be covered or fully covered under any or all of such plans, the Company shall continue to provide the Executive and/or his eligible dependents with the same level of such benefits and coverage in effect prior to termination, payable from the general assets of the Company if necessary. Notwithstanding the foregoing, the Executive may elect (by giving written notice to the Company prior to the termination of his employment hereunder), on a benefit by benefit basis to receive in lieu of continuing coverage, cash 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 for such continuation period. The aggregate amount of cash to which the Executive is entitled pursuant to the preceding sentence shall be payable by the Company to the Executive within sixty (60) days after the date of the termination of Executive's employment hereunder; |
The
Executive's subsequent death or disability shall in no way affect or limit the
Company's obligations under this Section.
| (b) |
Termination
By the Company For Cause.
In
the event that the Company shall terminate the Executive's employment for
Cause, this Agreement shall terminate and the obligations of the parties
shall be as set forth in Section 8 of this Agreement.
|
| (c) |
Termination
By The Executive Without Good Reason. In
the event that the Executive shall terminate employment hereunder other
than for Good Reason, this Agreement shall forthwith terminate and the
obligations of the parties shall be as set forth in Section 8 of this
Agreement. |
[******] Confidential
Material redacted and filed separately with the Commission.
CONFIDENTIAL
TREATMENT
8
| (d) |
Disability. In
the event that the Company elects to terminate the Executive's employment
pursuant to Section 6(e), the Executive shall continue to receive, from
the date of such termination for a period of one year, one hundred percent
(100%) of the Annual Base Salary, in accordance with the payroll practices
of the Company for senior executive officers, reduced, however, by the
amount of any proceeds from Social Security and disability insurance
policies provided by and at the expense of the Company. Additionally, the
Executive shall receive a payment equal to both potential semi-annual
bonuses in effect at the time for which the Executive was potentially
eligible irrespective of whether company achieved its internal financial
goals or was on track to achieve its internal financial
goals. |
| (e) |
Death.
In
the event of the death of the Executive during the term of this Agreement,
(i) the Annual Base Salary to which the Executive is entitled shall be
paid, in twelve (12) equal monthly installments following the date of
death, to the last beneficiary designated by the Executive under the
Company's group life insurance policy maintained by the Company or such
other written designation expressly provided to the Company for the
purposes hereof or, failing either such designation, to his estate. The
parties expressly understand that this payment of salary shall be in
addition to any insurance payments paid to Executive’s survivors and/or
estate under any insurance policies. |
| (f) |
Mutual
Written Consent. In
the event that the Executive and the Company shall terminate the
Executive'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. |
| (g) |
By
the Executive due to Company failure to set internal financial goals or
adopt stock option plan. In
the event that the Company fails to set internal financial goals or adopt
a stock option plan and the Executive elects to terminate his employment
under this Agreement, the Company shall (1) pay the Executive's accrued
salary and any other accrued benefits through the effective date of
termination; (2) reimburse the Executive for expenses already actually
incurred through the effective date of termination; (3) pay or otherwise
provide for any benefits, payments or continuation or conversion rights in
accordance with the provisions of any employee benefit plan of which the
Executive or any of his dependents is or was a participant or as otherwise
required by law; (4) pay the Executive and his beneficiaries any
compensation and/or provide the Executive or his eligible dependents any
benefits due through the effective date of termination.
|
| (h) |
The
Executive shall not be required to mitigate the amount of any payment
provided for in this Section by seeking employment or otherwise.
|
CONFIDENTIAL
TREATMENT
9
|
8.
|
EFFECT
OF EXPIRATION OF AGREEMENT OR TERMINATION OF EXECUTIVE’S
EMPLOYMENT |
Upon the
expiration of this Agreement by its terms or the termination of the Executive's
employment by the Company for Cause or the Executive Without Good Reason,
neither the Company nor the Executive shall have any remaining duties or
obligations except that:
| (a) | The Company shall: |
| (1) | Pay the Executive's accrued salary and any other accrued benefits through the effective date of such expiration or termination; |
| (2) | Reimburse the Executive for expenses already actually incurred through the effective date of such expiration or termination; |
| (3) | Pay or otherwise provide for any benefits, payments or continuation or conversion rights in accordance with the provisions of any employee benefit plan of which the Executive or any of his dependents is or was a participant or as otherwise required by law; |
| (4) | Pay the Executive and his beneficiaries any compensation and/or provide the Executive or his eligible dependents any benefits due through the effective date of such expiration; and |
| (5) | Continue to remain bound by the terms of Section 12 hereof. |
| (b) | The Executive shall remain bound by the terms of Section 9,11 and 13. |
| 9. |
COVENANTS
AS TO CONFIDENTIAL INFORMATION AND COMPETITIVE
CONDUCT |
The
Executive acknowledges and agrees as follows: (i) this Section 9 is necessary
for the protection of the legitimate business interests of the Company, (ii) the
restrictions contained in this Section 9 with regard to geographical scope,
length of term and types of restricted activities are Reasonable; and (iii) the
Executive has received adequate and valuable new consideration for entering into
this Agreement.
| (a) |
Confidentiality
of Information and Nondisclosure.
The
Executive 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
Executive 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 Executive, 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: |
CONFIDENTIAL
TREATMENT
10
| (1) |
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, |
| (2) |
Any
management, operational, trade, technical or other secrets or any other
proprietary information or other data of the Company or its subsidiaries,
|
| (3) |
Any
other information related to the Company or its related entities that the
Executive 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
Executive 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 Executive 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 Executive.
| (b) | Restrictive Covenant. During the term of, and for a period of one (1) year (the "Restrictive Period") after the termination of the Executive's employment other than by the Company Without Cause or by the Executive With Good Reason, the Executive shall not render, directly or indirectly, services to (as an employee, consultant, 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 Executive'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 Executive's termination of employment hereunder without the prior written consent of the Board of Directors which may be withheld at its 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.. In the event the Executive violates any of the provisions contained in this Section, the Restrictive Period shall be increased by the period of time in which the Executive was in violation as determined by an Arbitrator or Court of competent jurisdiction. The Executive further agrees that at no time during the Restrictive period will the Executive 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. |
CONFIDENTIAL
TREATMENT
11
| (c) | Company Remedies. The Executive 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 Executive of the provisions of this Section 9 as determined by an Arbitrator or a Court of competent jurisdiction, the Company shall be entitled, to the extent permitted by law, immediately to cease paying or providing the Executive or his dependents any compensation or benefits provided pursuant to Section 4, Section 6 or Section 7 of this Agreement as liquidated damages, and also to obtain immediate injunctive relief restraining the Executive from conduct in breach of the covenants contained in this Section 9. 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 Executive. |
| 10. | 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 Executive and his heirs.
| 11. | OWNERSHIP OF INTANGIBLES |
All
processes, inventions, patents, copyrights, trademarks, and other intangible
rights that may be conceived or developed by Executive, either alone or with
others, during the term of Executive's employment, whether or not conceived or
developed during Executive'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 Executive for the Company, shall be the sole property of the
Company. Executive shall execute all documents, including patent applications
and assignments, required by the Company to establish the Company's rights under
this Section.
| 12. | INDEMNIFICATION BY THE COMPANY |
The
Company shall, to the maximum extent permitted by law, indemnify and hold the
Executive harmless against expenses, including reasonable attorney's fees
judgements, fines, settlements, and other amounts actually and reasonably
incurred in connection with any proceeding arising by reason of the Executive's
employment by the Company. The Company shall advance to the Executive any
expense incurred in defending any such proceeding to the maximum extent
permitted by law.
CONFIDENTIAL
TREATMENT
12
|
13. |
DISCLOSURE
OF CUSTOMER INFORMATION AND SOLICITATION OF OTHER EMPLOYEES PROHIBITED
|
In the
course of his employment, the Executive 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 Executive in confidence. During his
employment by the Company and for one (1) year after termination of that
employment, the Executive shall not directly or indirectly disclose or use any
such information, except as required in the course of his employment by the
Company.
| 14. | RESOLUTION OF DIFFERENCES OVER BREACHES OF AGREEMENT |
Except as
otherwise provided herein, in the event of any controversy, dispute or claim
arising out of, or relating to, this Agreement, or the breach thereof, or
arising out of any other matter relating to the Executive’s employment with the
Company, the parties may seek recourse only for temporary or preliminary
injunctive relief to the courts having jurisdiction thereof and if any relief
other than injunctive relief is sought, the Company and the Executive agree that
such underlying controversy, dispute or claim shall be settled by arbitration
conducted in accordance with this Section 14 and the Commercial Arbitration
Rules of thc American Arbitration Association ("AAA"). The matter shall be heard
and decided, and awards rendered by a panel of three (3) arbitrators (the"
Arbitration Panel"). the Company and the Executive shall each select one
arbitrator from the AAA National Panel of Commercial Arbitrators (the
"Commercial Panel") and AAA shall select a third arbitrator from the Commercial
Panel. The award rendered by the Arbitration Panel shall be final and binding as
between the parties hereto and their heirs, executors, administrators,
successors and assigns, and judgment on the award may be entered by any court
having jurisdiction thereof. Except as provided in Section 12 hereof, each party
shall bear sole responsibility for all expenses and costs incurred by such party
in connection with the resolution of any controversy, dispute or claim in
accordance with this Section 14; provided, however, the Executive may recover
his costs and attorneys’ fees in recovering compensation, stock and/or benefits
to which he is entitled under this Agreement.
| 15. | WAIVER |
The
waiver by a party hereto of any breach by the other party hereto of any
provision of this Agreement shall not operate or be construed as a waiver of any
other or subsequent breach by a party hereto.
CONFIDENTIAL
TREATMENT
13
| 16. | 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 it has thoroughly discussed all aspects of
this Agreement with his or 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.
| 17. | CONSTRUCTION OF AGREEMENT |
| (a) | Governing Law. This Agreement shall be governed by and construed under the laws of the state of Texas. |
| (b) | Severability. In the event that anyone or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired thereby. |
| (c) |
Headings.
The descriptive headings of the several paragraphs of this Agreement are
inserted for convenience or reference only and shall not constitute a part
of this Agreement. |
| 18. |
ENTIRE
AGREEMENT AND INTEGRATION |
This
Agreement contains the entire agreement between the parties and supersedes all
prior oral and written agreements, understandings, commitments, and practices
between the parties, including all prior employment agreements, whether or not
fully performed by the Executive before the date of this Agreement. No
amendments to this Agreement may be made except by a writing signed by both
parties.
| 19. | NOTICES |
Any
notice to the Company required or permitted under this Agreement shall be given
In writing to the Company, either by personal service or by registered or
certified mail, postage prepaid, addressed to the legal department of the
Company at its then principal place of business. Any such notice to the
Executive shall be given in a like manner and, if mailed, shall be addressed to
his home address then shown in the Company's files. For the purpose of
determining compliance with any time limit in this Agreement, a notice shall be
deemed to have been duly given (a) on the date of service, if served personally
on the party to whom notice is to be given, or (b) on the third business day
after mailing, if mailed to the party to whom the notice is to be given in the
manner provided in this section.
CONFIDENTIAL
TREATMENT
14
| 20. |
SEVERABILITY
|
If any
provision of this Agreement is held invalid or unenforceable, the remainder of
this Agreement shall nevertheless remain in full force and effect. If any
provision is held invalid or unenforceable with respect to particular
circumstances, it shall nevertheless remain in full force and effect in all
other circumstances.
| 21. | EXECUTION |
Executed
by the parties on February 19, 2005.
| The Company | |||
| /s/ Xxxxx X. Xxxxx | |||
|
|
|||
| By: Xxxxx X. Xxxxx | |||
| Chairman of the Board of Directors of Xxxxx Golf, Inc. |
| The Executive | |||
| /s/ Xxxxxx X. Xxxxxx | |||
|
|
|||
| By: Xxxxxx X. Xxxxxx III | |||
| Chief Executive Officer of Xxxxx Golf, Inc |
CONFIDENTIAL
TREATMENT
15
