EMPLOYMENT AGREEMENT
AGREEMENT (the "Agreement") by and between AMF Bowling, Inc., a Delaware
corporation (the "Company"), and Xxxxxxx X. Xxxx (the "Executive"), dated as of
August 4, 1999 (the "Effective Date").
1. Employment Period. The Company shall employ the Executive, and the
Executive agrees to, and shall, serve the Company, on the terms and conditions
set forth in this Agreement, for the period commencing on the Effective Date
and, subject to the provisions of Section 6 of this Agreement, ending on the
third anniversary of the Effective Date (the "Employment Period"); provided,
however, that on the scheduled end of the Employment Period, and on each
anniversary of such date, the Employment Period shall automatically be extended
for a one-year period unless the Company or the Executive gives notice to the
other at least 180 days before an extension is to take effect that they do not
desire the Employment Period to be extended.
2. Position and Duties. (a) Position. During the Employment Period, the
Executive shall be an Executive Vice President and the Chief Financial Officer
of the Company with such duties, authority and responsibilities as are
reasonably assigned to him by the President or Board of Directors of the Company
(the "Board") consistent with his position as Executive Vice President and
Chief Financial Officer. Such duties and responsibilities may, at the request of
the President or Board, include serving as an officer or director of certain
subsidiaries of the Company.
(b) Duties. During the Employment Period, excluding any periods of vacation
and sick leave to which the Executive is entitled, the Executive shall devote
his full attention and time during normal business hours to the business and
affairs of the Company. The Executive shall perform his services primarily at
the Company's headquarters, wherever the Board may from time to time designate
them to be, but in any case, within a 30-mile radius of the Company's current
corporate headquarters in Richmond, Virginia. To the extent necessary to
discharge the responsibilities reasonably assigned to the Executive under
this Agreement, the Executive shall use his reasonable best efforts to carry
out such responsibilities faithfully and efficiently. It shall not be considered
a violation of the foregoing for the Executive to (i) serve on civic or
charitable boards or committees, (ii) deliver lectures, fulfill speaking
engagements or teach at educational institutions and (iii) manage personal
investments, so long as such activities do not compete with and are not provided
to or for any entity that competes with or intends to compete with the Company
or any of its subsidiaries and do not interfere significantly with the
performance of the Executive's responsibilities under this Agreement.
3. Compensation. (a) Base Salary. During the Employment Period, the
Executive shall receive from the Company an annual base salary ("Annual Base
Salary") of $360,000, payable in equal installments at intervals not less
frequent than monthly. The Executive's Annual Base Salary may be increased
by the Board which shall review it annually in January of each year. The
Executive's Annual Base Salary shall not be reduced below $360,000,
and the term Annual Base Salary as utilized in this Agreement shall refer to
Annual Base Salary as so increased.
(b) Annual Bonus. In addition to the Annual Base Salary, for each
calendar year or portion thereof ending during the Employment Period, the
Executive shall be eligible to earn an annual bonus from the Company (the
annual bonus from time to time in effect for the then current year is referred
to as the "Annual Bonus") in an amount equal to 60 percent of the Executive's
Annual Base Salary. The Annual Bonus shall be based on financial, operational
and other objectives (the "Objectives") set by the Chief Executive Officer. The
Annual Bonus shall be reduced pro rata for any year during the Employment Period
that is not a full year (based on the actual number of days of such year
included in the Employment Period). The Objectives shall be determined by the
Chief Executive Officer of the Company (provided, that the Executive may
consult with the Chief Executive Officer prior to his determination), and set
forth in writing each year prior to the end of the first quarter of the year
to which such Objectives apply. Each Annual Bonus shall be paid no later
than 30 days after the Company's audited consolidated financial statements
with respect to the year for which the Annual Bonus is awarded are available,
but in no event later than March 31 of the following year. Nothing herein shall
prevent the Compensation Committee of the Board from awarding the Executive any
additional discretionary bonus that it may deem appropriate.
(c) Other Benefits. During the Employment Period: (i) the Executive shall
be entitled to participate in all incentive, savings and retirement plans,
practices, policies and programs of the Company to the same extent as generally
applicable to other senior executives; and (ii) the Executive and/or the
Executive's family, as the case may be, shall be eligible for participation in,
and shall receive all benefits under, all welfare benefit plans, practices,
policies and programs provided by the Company (including, to the extent
provided, without limitation, medical, prescription, dental, disability,
salary continuance, employee life insurance, group life insurance, accidental
death and travel accident insurance plans and programs) to the same extent as
provided generally to senior executives of the Company; provided, however, that
nothing in this Agreement shall impose on the Company any obligation to offer
to the Executive participation in any stock, stock option, bonus or other
incentive award, plan, practice, policy or program other than the awards made
pursuant to Sections 3(b), 4 or 5 hereof. The Executive shall be entitled to
retain for his own personal use any frequent flyer miles and similar travel
awards obtained with respect to the Executive's travel.
(d) Expenses. The Executive shall be entitled to receive prompt
reimbursement for all reasonable travel and other expenses incurred by the
Executive in carrying out the Executive's duties under this Agreement, provided
that the Executive complies with the policies, practices and procedures of the
Company for submission of expense reports, receipts or similar documentation
of such expenses. The Executive will be reimbursed up to $4,000 for his legal
fees incurred in connection with the negotiation, execution and delivery of
this Agreement.
(e) Vacation. The Executive shall be entitled to four weeks of paid
vacation for each full year during the Employment Period and a pro rata
portion thereof during each partial year during the Employment Period; provided,
however, that the Executive shall be
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entitled to four weeks of paid vacation for the year ending December 31, 1999.
Up to an aggregate of two weeks of unused vacation may be carried forward to the
next year during the Employment Period and used therein and any unused vacation
in excess of two weeks shall lapse.
4. Restricted Stock. (a) Restricted Stock Grant. Concurrently with the
execution of this Agreement, the Company is granting to the Executive 100,000
restricted shares of the Company's common stock, par value $.01 per share
("Common Stock"), at a cost of $1,000 to the Executive (the shares of Common
Stock so granted being referred to as the "Restricted Stock"). The Restricted
Stock is granted pursuant to the Company's 1998 Stock Incentive Plan, as amended
(the "Plan") and shall, except as otherwise provided herein or in the Restricted
Stock Grant Agreement, be governed by the terms of the Plan. Any Restricted
Stock granted to Employee pursuant to this Agreement shall be subject to the
terms of the Stockholders Agreement, dated as of April 30, 1996, between the
Company and certain of its stockholders, as amended from time to time (the
"Stockholders Agreement"). This Agreement, to the extent applicable, shall be a
"Restricted Stock Agreement" as defined in the Plan.
(b) Vesting. The Restricted Stock shall vest in installments according to
the following schedule:
Term of Employment
Since the Effective Date Vested Percentage
------------------------ -----------------
At least 1 year,
but less than 2 years 33-1/3 percent
At least 2 years,
but less than 3 years 66-2/3 percent
3 years, or more 100 percent
In the event of a Change in Control (as defined in Section 7(d) hereof), any
unvested Restricted Stock shall immediately vest.
(c) Restrictions on Restricted Stock. Until Restricted Stock has vested, it
may not be sold, transferred, assigned or pledged. Shares of Restricted Stock
shall be evidenced by stock certificates bearing appropriate legends referring
to the applicable terms, conditions and restrictions. Stock certificates
representing the Restricted Stock will be registered in the name of the
Executive as of the date of this Agreement, but such certificates will be held
by the Company until the shares vest, and the Company may require that the
Executive deliver a stock power, endorsed in blank, relating to the shares of
Restricted Stock. At such time as Restricted Stock vests, a certificate
representing such shares (less any shares retained to satisfy the Executive's
tax withholding obligations) will be delivered to the Executive (or in the event
of the Executive's death, to the executor or administrator of the estate), as
soon as practicable. To the extent that Restricted Stock has vested, it shall be
transferable and not subject to forfeiture upon termination of employment or
otherwise.
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(d) Dividends and Voting. From and after the date of issuance of Restricted
Stock, the Executive will have, with respect to the Restricted Stock, all of the
rights of a holder of Common Stock, including the right to receive any dividends
or distributions paid on the Company's Common Stock and right to vote the shares
of Restricted Stock.
(e) Termination of Employment. In the event of a termination of the
Executive's employment by the Company without Cause (other than Disability) or
by the Executive for Good Reason: (i) the portion of the Restricted Stock that
would have vested during the one-year period following the Date of Termination
shall immediately vest; and (ii) the portion of the Restricted Stock not vested
as of the Date of Termination shall be forfeited on the Date of Termination. In
the event of the Executive's death or Disability, or termination of the
Executive's employment, other than by the Company without Cause or by the
Executive for Good Reason, the Executive (or the Executive's estate or legal
representative) shall forfeit the portion of the Restricted Stock not vested as
of the Date of Termination. In the event of the Executive's termination of
employment for Cause, the Executive shall forfeit the unvested portion of the
Restricted Stock on the Date of Termination.
(f) Income Tax Withholding. The Executive shall be required to make
arrangements satisfactory to the Company to satisfy any applicable federal,
state or local withholding tax liability arising with respect to the Restricted
Stock. Such arrangements may be satisfied by either making a cash payment to the
Company of the required amount or by having the Company retain Restricted Stock
having a value equal to the amount of the Executive's withholding obligation
from the shares of Restricted Stock otherwise deliverable to Executive upon the
vesting of such Restricted Stock. If the Executive fails to satisfy his
withholding obligation in a time and manner satisfactory to the Company, the
Company may withhold all required amounts from the Executive's compensation or
other amounts payable under this Agreement.
(g) Effect on Other Benefits. Income recognized by the Executive as a
result of the grant or vesting of Restricted Stock or the receipt of dividends
on Restricted Stock will not be included in any formula for calculating benefits
under this Agreement or any benefit plan of the Company.
5. Option. (a) Option Grant. Concurrently with the executive of this
Agreement, the Company is granting to the Executive an option (the "Option") to
purchase 150,000 shares of the Company's common stock, at an exercise price per
share equal to "fair market value" on the date of grant, as defined in the Plan.
The Executive may make payment on the exercise of the vested portion of the
Option by certified or bank check or such other instrument as the Company may
accept or by "cashless exercise" procedures established by the Company. Unless
sooner exercised or forfeited as provided in this Agreement, the Option shall
expire on the tenth anniversary of the date of this Agreement. The Option is
granted pursuant to the Plan and shall, except as otherwise expressly provided
herein or in the Stock Option Agreement, be governed by the terms of the Plan.
This Agreement, to the extent applicable, shall be an "Option Agreement" as
defined in the Plan. Any shares of Common Stock delivered to the Employee upon
exercise of the Options shall be subject to the terms of the Stockholders
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Agreement. The Executive hereby acknowledges receipt of a copy of the Plan and
the Stockholders Agreement and agrees to be bound by all the terms and
provisions thereof.
(b) Vesting. The Option shall vest and become exercisable in installments
according to the following schedule:
Term of Employment
Since the Effective Date Vested Percentage
------------------------ -----------------
At least 1 year,
but less than 2 years 20 percent
At least 2 year,
but less than 3 years 40 percent
At least 3 years,
but less than 4 years 60 percent
At least 4 years,
but less than 5 years 80 percent
5 years, or more 100 percent
In the event of a Change in Control (as defined in Section 7(d) hereof), any
outstanding and unvested portion of the Option shall immediately vest and become
exercisable.
(c) Treatment of Option Upon Termination of Employment. In the event of a
termination of the Executive's employment by the Company without Cause (other
than Disability) or by the Executive for Good Reason: (i) the portion of the
Option that would have vested during the two-year period following the Date of
Termination shall immediately vest and become exercisable; (ii) the portion of
the Option vested as of the Date of Termination, including that portion vested
pursuant to clause (i) above, shall be exercisable for the 90-day period
following the Date of Termination; and (iii) the portion of the Option not
vested as of the Date of Termination, shall be forfeited on the Date of
Termination. In the event of the Executive's death or Disability, or termination
of the Executive's employment, other than by the Company without Cause or by the
Executive for Good Reason, the Executive (or the Executive's estate or legal
representative): (i) shall forfeit the portion of the Option not vested as of
the Date of Termination; and (ii) shall have 90 days following the Date of
Termination to exercise the vested portion of the Option, if such termination of
employment is for any reason other than the Executive's death (in which event
the exercise period shall be one year) or for Cause. In the event of the
Executive's termination of employment for Cause, the Executive shall forfeit the
unexercised portion of the Option (whether vested or unvested) on the Date of
Termination. The vested portion of the Option not exercised within the specified
periods of time shall be forfeited by the Executive or the Executive's estate or
legal representative.
6. Termination of Employment. (a) Death or Disability. The Executive's
employment under this Agreement shall terminate automatically in the event of
the Executive's death. The Company shall be entitled to terminate the
Executive's employment in the event of the Executive's Disability. "Disability"
means that the Executive has been unable, for a period
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of (i) 120 consecutive days or (ii) an aggregate of 180 days in a period of 365
consecutive days, to perform, with or without reasonable accommodation to the
Executive, his essential duties under this Agreement, as a result of physical or
mental illness or injury. A termination of the Executive's employment by the
Company for Disability shall be communicated to the Executive by written notice,
and shall be effective on the 30th day after receipt of such notice by the
Executive (the "Disability Effective Date"), unless the Executive returns to
full-time performance of his duties in accordance with the provisions of Section
2(b) hereof before the Disability Effective Date. In the event of a dispute as
to whether the Executive has suffered a Disability, the final determination
shall be made by a licensed physician selected by the Board and acceptable to
Executive in the Executive's reasonable judgment.
(b) Good Reason. The Executive's employment may be terminated by the
Executive for Good Reason within 90 days following the Executive's actual
knowledge of an event constituting Good Reason. For purposes of this Agreement,
"Good Reason" shall mean, without Executive's written consent: (i) any material
diminution in the Executive's title, authority, duties or responsibilities
inconsistent with his position as the Chief Financial Officer of the Company
(other than as a result of the Executive's physical or mental incapacity); (ii)
any removal of the Executive from the positions set forth in Section 2(a)
hereof; (iii) any reduction in the Executive's Annual Base Salary; (iv) the
Company's requiring the Executive to be based at any office or location other
than as provided in Section 2(b) hereof; or (v) the Company's failure to comply
with its material obligations under this Agreement. The Executive shall provide
the Company with written notice of any of the events set forth in subsections
(i) or (v) of this Section 6(b) and the Company shall have 15 days to cure. The
Executive may not terminate employment for Good Reason as a result of any such
event specified in subsections (i) or (v) of this Section 6(b) if the Company
effectuates such cure within the 15-day period.
(c) Termination by the Company. The Company may terminate the Executive's
employment at any time during the Employment Period with or without Cause. A
termination of the Executive's employment at the end of the Employment Period by
the Company providing the notice described in Section 1 hereof, as the same may
be extended from time to time as provided in Section 1 hereof, shall be deemed
to be a termination of the Executive's employment by the Company without Cause.
For purposes of this Agreement "Cause" means: (i) commission of any act of fraud
or gross negligence by the Executive in the course of his employment hereunder
which, in the case of gross negligence, has a materially adverse effect on the
business or financial condition of the Company; (ii) willful material
misrepresentation at any time by the Executive to the Company; (iii) voluntary
termination of employment by the Executive; (iv) the Executive's willful failure
or refusal to comply with any of his material obligations under this Agreement
or to comply with a reasonable and lawful instruction of the Board, which in
each case continues for a period of 15 days after the Executive's receipt of a
written notice from the Board identifying the objectionable action or inaction
by the Executive; (v) any conviction of, or plea of guilty or nolo contendere
to, any felony, whether of the United States or any state thereof or any similar
foreign law to which the Executive may be subject; (vi) any willful or grossly
negligent failure substantially to comply with any written rules, regulations,
policies or procedures of the Company furnished to the Executive which, if not
complied with, would reasonably be expected to have a material adverse
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effect on the business or financial condition of the Company; or (vii) any
willful failure to comply with the Company's policies regarding xxxxxxx xxxxxxx.
(d) Date of Termination. The "Date of Termination" means the date of the
Executive's death, the Disability Effective Date, or the date on which the
termination of the Executive's employment by the Company, or by the Executive,
is effective, as the case may be.
7. Obligations of the Company Upon Termination. (a) By the Company without
Cause (Other than for Death or Disability) or by the Executive for Good Reason.
If the Company terminates the Executive's employment without Cause (other than
due to the Executive's death or Disability), or the Executive terminates his
employment for Good Reason, the Company shall: (i) pay to the Executive the
Accrued Obligations (defined below) and the Annual Bonus for the fiscal year
during which the Date of Termination occurs, both in a lump sum within 10 days
following the Date of Termination; (ii) continue payments of the Executive's
Annual Base Salary for a period of 12 months; and (iii) continue the Benefits
(defined below) for a period of 12 months. "Accrued Obligations" shall mean the
sum of: (i) any portion of the Executive's Annual Base Salary through the Date
of Termination that has not yet been paid; (ii) any compensation previously
deferred by the Executive (together with any accrued interest or earnings
thereon) that has not yet been paid; and (iii) any accrued but unpaid vacation
pay. "Benefits" shall be benefits for the Executive and/or the Executive's
family at least as favorable as those that would have been provided under
Section 3(c)(ii) of this Agreement if the Executive's employment had continued
until 12 months following the Date of Termination; provided, however, that
during any period when the Executive is eligible to receive such benefits under
another employee-provided plan, the benefits provided by the Company under this
subparagraph may be made secondary to those provided under such other plan. For
purposes of determining eligibility (but not the time of commencement of
benefits) of the Executive for retiree benefits under this subparagraph, the
Executive shall be deemed to have retired on the 12-month anniversary of the
Date of Termination. Thereafter, the Company shall have no further obligations
under this Agreement.
(b) Death or Disability. If the Executive's employment is terminated by
reason of the Executive's death or Disability, the Company shall: (i) pay the
Accrued Obligations to the Executive or the Executive's estate or legal
representative, as applicable, in a lump sum in cash within 10 days after the
Date of Termination; (ii) pay to the Executive or the Executive's estate or
legal representative on or before the date that such amounts would have been
payable but for the death or Disability of the Executive, an amount equal to the
pro-rata (based on the number of days employed) Annual Bonus for the year in
which the Date of Termination occurs, provided that the Objectives are achieved
for such year; and (iii) continue the Benefits, to the extent applicable, until
the first anniversary of the Executive's Date of Termination. Thereafter, the
Company shall have no further obligations under this Agreement.
(c) By the Company for Cause or by the Executive without Good Reason. If
the Company terminates the Executive's employment for Cause or if the Executive
terminates his employment without Good Reason, the Company shall pay the
Executive in a lump sum the
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Accrued Obligations not later than 30 days after the Date of Termination.
Thereafter, the Company shall have no further obligations under this Agreement.
(d) Effect on Employment of the Executive of a Change in Control and
Certain Stock or Asset Purchasers. In the event of a Change in Control of the
Company or if all or substantially all of the stock or assets of the Company are
sold or otherwise disposed of to a person or entity not affiliated with the
Company, the Executive shall have the right to resign during the Employment
Period, as an officer, director and employee of the Company within nine months
following such occurrence if a "Triggering Event" occurs, and be entitled to
receive, commencing on the date of such termination, the same payments and other
benefits to which the Executive would have been entitled had the Company
terminated the Executive's employment without Cause. "Triggering Event" shall
mean a material and adverse alteration in the Executive's duties, authority,
responsibilities, title or compensation following a Change in Control. "Change
in Control" shall have the meaning given in the Plan, except that for the
purposes of this Agreement, the sale of the Company's operations of bowling
centers shall be deemed a "Change in Control".
8. Full Settlement. The Company's obligations to make the payments provided
for in, and otherwise to perform its obligations under, this Agreement shall not
be affected by any set-off, counterclaim, recoupment, defense or other claim,
right or action that the Company may have against the Executive or others. In no
event shall the Executive be obligated to seek other employment or take any
other action by way of mitigation of the amounts payable to the Executive under
any of the provisions of this Agreement and, except as specifically provided in
Section 7(a)(iii), such amounts shall not be reduced, regardless of whether the
Executive obtains other employment.
9. Confidential Information. The Executive shall hold in a fiduciary
capacity for the benefit of the Company all secret or confidential information,
knowledge or data relating to the Company or its subsidiaries that the Executive
obtains during the Executive's employment by the Company and that is not public
knowledge or does not become (other than as a result of the Executive's
violation of this Section 9) ("Confidential Information"). The Executive shall
not communicate, divulge or disseminate Confidential Information at any time
during or after the Executive's employment with the Company, except with the
prior written consent of the Company or as otherwise required by law.
10. Noncompetition; Nonsolicitation. (a) Unless the Executive's employment
is terminated by the Company without Cause, during the Employment Period and
during the two-year period thereafter (the "Restriction Period"), the Executive
shall not directly or indirectly participate in or permit his name directly or
indirectly to be used by or become associated with (including as an advisor,
representative, agent, promoter, independent contractor, provider of personal
services or otherwise) any person, corporation, partnership, firm, association
or other enterprise or entity that is, or intends to be, engaged in any business
which is in competition with the "business" of the Company or any of its
subsidiaries in any country in which the Company or any of its subsidiaries
operate, compete or are engaged in such business or at such time have an
intention so to operate, compete or become engaged in such business (a
"Competitor"). For
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purposes of this Agreement, "business" shall mean bowling centers, movie
theaters and the sale of products relating to bowling. For purposes of this
Agreement, the term "participate" includes any direct or indirect interest,
whether as an officer, director, employee, partner, sole proprietor, trustee,
beneficiary, agent, representative, independent contractor, consultant, advisor,
provider of personal services, creditor, owner (other than by ownership of less
than five percent of the stock of a publicly-held corporation whose stock is
traded on a national securities exchange or in the over-the-counter market).
(b) During the Restriction Period, the Executive shall not, directly or
indirectly, encourage or solicit, or assist any other person or firm in
encouraging or soliciting, any person that from the beginning of the two-year
period preceding such termination of the Executive's employment through the date
of any solicitation or other such action is or was engaged in a business
relationship with the Company or any of its subsidiaries to terminate its
relationship with the Company or any of its subsidiaries or to engage in a
business relationship with a Competitor.
(c) During the Restriction Period, the Executive will not, except with the
prior written consent of the Company, directly or indirectly, induce any
employee of the Company or any of its subsidiaries or Affiliates to terminate
employment with such entity and will not, directly or indirectly, offer
employment or cause employment to be offered, to any person who is or was
employed by the Company or any subsidiary unless such person shall have ceased
to be employed by such entity for a period of at least one year.
(d) Promptly following the expiration of the Employment Period, the
Executive shall return to the Company all property of the Company and its
subsidiaries, and all copies thereof in the Executive's possession or under his
control, including, without limitation, all Confidential Information in whatever
media such Confidential Information is maintained.
(e) The Executive acknowledges and agrees that: (i) the Restriction Period
and the covenants and obligations of the Executive in Sections 9 and 10 are fair
and reasonable and the result of negotiation, relate to special, unique and
extraordinary matters, and a violation of any of the terms of such covenants and
obligations will cause the Company and its subsidiaries irreparable injury for
which adequate remedies are not available at law; and (ii) the Company shall be
entitled to an injunction, restraining order or such other equitable relief as
a court of competent jurisdiction may deem necessary or appropriate to restrain
the Executive from violating of any such covenants and obligations. Such
injunctive remedies shall be cumulative and in addition to any other rights and
remedies the Company may have at law or in equity. If a court holds that such
restrictions are unreasonable under circumstances then existing, the parties
hereto agree that the maximum period, scope, or geographical area legally
permissible under such circumstances will be substituted for the period, scope
or area stated herein.
11. Successors. (a) This Agreement is personal to the Executive and,
without the prior written consent of the Company, shall not be assignable
by the Executive otherwise than by will or the laws of descent and distribution.
This Agreement shall inure to the benefit of and be enforceable by the
Executive's legal representatives.
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(b) This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns.
12. Miscellaneous. (a) This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, without reference to
principles of conflict of laws. The captions of this Agreement are not part
of the provisions hereof and shall have no force or effect. This Agreement may
not be amended or modified except by a written agreement executed by the parties
hereto or their respective successors and legal representatives.
(b) All notices and other communications under this Agreement shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive:
Xxxxxxx X. Xxxx
000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
If to the Company:
AMF Bowling, Inc.
0000 XXX Xxxxx
Xxxxxxxx, XX 00000
Attention: Chief Executive Officer
or to such other address as either party furnishes to the other in writing in
accordance with this Section 12(b). Notices and communications shall be
effective when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement.
(d) Notwithstanding any other provision of this Agreement, the Company may
withhold from amounts payable under this Agreement all Federal, state, local and
foreign taxes that are required to be withheld by applicable laws or
regulations. No later than any date as of which an amount first becomes
includible in the gross income of the Executive for federal income tax purposes
with respect to any stock option or Restricted Stock grant, the Executive shall
pay to the Company, as appropriate, or make arrangements reasonably satisfactory
to the Company, as appropriate, regarding the payment of, all federal, state,
local and foreign taxes that are required by applicable laws and regulations to
be withheld with respect to such amount. If the Executive desires to use
unrestricted, unencumbered stock to pay any required withholding taxes, the
Company will cooperate with the Executive in that regard.
(e) The Executive's or the Company's failure to insist upon strict
compliance with any provision of, or to assert any right under, this Agreement
shall not be deemed to be a waiver of such provision or right or any other
provision of or right under this Agreement.
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(f) The Executive and the Company each acknowledge that this Agreement
(together with the terms of the Plan, Option Agreement, Restricted Stock Grant
Agreement and Stockholders Agreement) constitute the entire agreement between
the Company and the Executive with regard to the subject matter hereof, and
supersedes all other agreements and understandings, both written and oral, among
the parties concerning the subject matter hereof. The Executive hereby
represents and warrants that he is not a party to any agreement or understanding
which would prohibit him from entering into this Agreement and accepting
employment with the Company or otherwise fulfilling his obligations hereunder.
IN WITNESS WHEREOF, the Executive has hereunto set his hand and, pursuant
to the authorization of its Boards of Directors, the Company has caused this
Agreement to be executed in its name on its behalf, all as of the day and year
first above written.
AMF BOWLING, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title:President and Chief Executive Officer
/s/ Xxxxxxx X. Xxxx
-------------------
Xxxxxxx X. Xxxx
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