ASHWORTH/MEYER AGREEMENT
Exhibit 10(g)
XXXXXXXX/XXXXX AGREEMENT
This XXXXXXXX/XXXXX COMPENSATION AGREEMENT (this “Agreement”), dated as of August 6, 2008 (the
“Effective Date”), is entered into by and between Xxxxxxxx, Inc., a Delaware corporation (the
“Company”), and Xxxxx X. Xxxxx (“Xxxxx”).
RECITALS
A. As approved by the Board of Directors of the Company (the “Board”) and until further action
of the Board, Xxxxx will cease to be the Company’s Chairman of the Board and will instead serve as
Chairman of the Special Committee of the Board (the “Special Committee”) and as a member of the
Compensation and Human Resources Committee of the Board (the “Compensation Committee”).
B. The Company and Xxxxx are entering into this Agreement with respect to various terms and
conditions in connection with the foregoing.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and promises contained in this
Agreement and for other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
1. Service as Chairman of Special Committee; Compensation. Xxxxx will serve as Chairman of
the Special Committee; provided that the Board may remove him from such position at any time in its
discretion. Xxxxx’x compensation for such service shall be as set forth in the term sheet attached
as Exhibit A.
2. Compensation for Prior Service as Chairman of the Board.
(a) Unvested Options from 100,000 Share Option Grant. Xxxxx will continue to vest on the last
25% of the 100,000 share option grant previously made to him, based upon his future service as
Chairman of the Special Committee.
(b) Incentive Compensation. Xxxxx will in the future receive, in the form of restricted
stock, an amount equal to one-third (1/3) of any incentive bonus amount approved by the
Compensation Committee for Xxxxx Xxxxxxxx for Fiscal Year 2008, prorated for the portion of Fiscal
Year 2008 during which Xxxxx served as Chairman of the Board. Assuming Xxxxx continues service as
a Director until the relevant vesting date, the restrictions will lapse on the earlier of (i) a
change in control of the Company, or (ii) the one-year anniversary of the restricted stock award.
3. Miscellaneous.
(a) No Third-Party Beneficiaries; Binding Effect. Except as provided herein, this Agreement
shall not confer any rights or remedies upon any person other than the parties and their respective
successors and permitted assigns. Subject to Section 3(c), this Agreement shall be binding
upon the Company and Xxxxx and upon their respective heirs, administrators,
representatives, executors, successors and assigns.
(b) Entire Agreement. This Agreement (and the documents referred to in this Agreement)
constitute the entire agreement between the parties hereto and supersede any prior understandings,
agreements, or representations by or between the parties, written or oral, to the extent they are
related in any way to the subject matter hereof.
(c) Assignment. This Agreement and the rights and duties hereunder are personal to Xxxxx and
shall not be assigned, delegated, transferred, pledged or sold by Xxxxx without the prior written
consent of the Company.
(d) Counterparts. This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original but all of which together will constitute one and the same instrument.
Delivery of an executed counterpart of a signature page to this Agreement by facsimile shall be
effective as delivery of a manually executed counterpart of this Agreement.
(e) Notices. Any notice, consent, payment, demand, or communication required or permitted to
be given by any provision of this Agreement shall be in writing and shall be
(1) delivered personally to the party to whom the same is directed or (2) sent registered or
certified mail, return receipt requested, postage prepaid, or by nationally recognized overnight
courier addressed, as follows:
If to Xxxxx:
|
Xxxxx X. Xxxxx | |
| c/o Knightspoint Partners LLC | ||
| 1325 Avenue of the Xxxxxxxx, 00xx Xxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
If to the Company:
|
Xxxxxxxx, Inc. | |
| 0000 Xxxxx Xxxxxx Xxxx | ||
| Xxxxxxxx, Xxxxxxxxxx 00000 | ||
| Attention: Corporate Secretary |
or to such other address as any such party may from time to time specify by notice to the other
party. Any such notice shall be deemed to be delivered, given and received for all purposes as of:
(i) the date so delivered, if delivered personally or (ii) on the date of receipt or refusal
indicated on the return receipt, if sent by registered or certified mail, return receipt requested,
postage and charges prepaid or by nationally recognized overnight courier.
(f) Governing Law. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of California without giving effect to any choice or conflict of law
provision or rule (whether of the State of California or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of California.
(g) Amendments and Waivers. No amendment of any provision of this Agreement shall be valid
unless the same shall be in writing and signed by the parties. No waiver by any party of any
default, misrepresentation or breach of warranty or covenant of this Agreement, whether intentional
or not, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach
of warranty or covenant of this Agreement or affect in any way any rights arising by virtue of any
prior or subsequent such occurrence.
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(h) Severability. Any term or provision of this Agreement that is invalid or unenforceable in
any situation in any jurisdiction shall not affect the validity or enforceability of the remaining
terms and provisions of this Agreement or the validity or enforceability of the offending term or
provision in any other situation or in any other jurisdiction.
(i) Construction. The language of this Agreement shall be interpreted simply and in
accordance with its plain meaning. The parties have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption
or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any
of the provisions of this Agreement. The section headings contained in this Agreement are inserted
for convenience only and shall not affect in any way the meaning or interpretation of this
Agreement.
(j) Arbitration. The Company and Xxxxx agree that any dispute regarding the application,
interpretation or breach of this Agreement (including, but not limited to, any alleged
misrepresentation made herein) will be subject to final and binding arbitration before
JAMS/Endispute of San Diego County, California pursuant to the then existing JAMS rules applicable
to any such dispute. Any resolution, opinion or order of JAMS/Endispute may be entered as a
judgment of a court of competent jurisdiction. This Agreement shall be admissible in any
proceeding to enforce its terms.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
| XXXXXXXX, INC. |
||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | CEO | |||
| XXXXX X. XXXXX |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Xxxxx X. Xxxxx | ||||
EXHIBIT A
TERM SHEET
(a) Xxxxx will receive the normal additional compensation for serving as Chairman of
the Special Committee — $5,000 cash award per year, plus 5,000 options to be granted two
business days after the Company’s next earnings release, vesting quarterly over 12 months,
but with vesting credit commencing on the Effective Date of the Xxxxxxxx/Xxxxx Agreement.
(b) Xxxxx will receive $2,000 per day (in addition to reimbursement of normal
out-of-pocket expenses) for each day that Xxxxx travels while working on Special Committee
business matters.
(c) Xxxxx will be entitled to receive a minimum of $150,000 and/or 10,000 shares of
Company common stock (with established potential increases to each of such amounts) upon
the accomplishment of strategic milestones for the Company while Xxxxx is Chairman of the
Special Committee, all as previously determined and approved by the Board on August 6,
2008. In the event that Xxxxx is involuntarily removed as Chairman of the Special
Committee, Xxxxx will nonetheless be entitled to such compensation in certain circumstances
as previously determined and approved by the Board on August 6, 2008, if such strategic
milestones are accomplished prior to the later of (i) the one-year anniversary of Xxxxx’x
initial election as Chairman of the Special Committee, and (ii) six months after
the date of Xxxxx’x involuntary removal as Chairman of the Special Committee.
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