ASHWORTH/KOENEKE AGREEMENT
Exhibit 10(f)
XXXXXXXX/XXXXXXX AGREEMENT
This XXXXXXXX/XXXXXXX 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
Xxxxxxx X. Xxxxxxx (“Xxxxxxx”).
RECITALS
A. As approved by the Board of Directors of the Company (the “Board”) and until further action
of the Board, Xxxxxxx will serve as Chairman of the Board and will no longer serve on the
Compensation and Human Resources Committee of the Board.
B. The Company and Xxxxxxx 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 the Board; Compensation. Xxxxxxx will serve as Chairman of the
Board; provided that the Board may remove him from such position at any time in its discretion.
Xxxxxxx’x compensation for such service shall be as follows:
(a) Restricted Stock Grant. Pursuant to the Company’s Second Amended and Restated 2000 Equity
Incentive Plan, Xxxxxxx is hereby granted 33,333 shares of restricted common stock of the Company
(the “Restricted Stock”). The restrictions on all shares of the Restricted Stock shall lapse on
the first anniversary of the Effective Date, assuming continued service by Xxxxxxx as Chairman of
the Board for that one-year period. In the event that Xxxxxxx is involuntarily removed as Chairman
of the Board prior to the one-year anniversary of his initial election as Chairman, the
restrictions on all shares of the Restricted Stock shall lapse on the first anniversary of the
Effective Date if Xxxxxxx continues to serve as a Director of the Company for that one-year period.
The restrictions on all shares of the Restricted Stock shall automatically and immediately lapse
in the event of a change of control of the Company. Except as provided above in the context of a
change in control, if Xxxxxxx ceases to be a Director of the Company during the one-year period
after the Effective Date, the restrictions on 8,333 shares of the Restricted Stock shall, at
Xxxxxxx’x option, immediately lapse for each full 3-month period Xxxxxxx served as a Director
during such one-year period, and all remaining shares of the Restricted Stock subject to
restrictions may, at the Company’s option, be repurchased by the Company for the aggregate sum of
Ten Dollars ($10.00). For the avoidance of doubt, it is understood that the actual and potential
restricted stock grants made pursuant to Sections 1(a), 1(b) and 1(c) of this Agreement shall be
the only supplemental compensation (beyond grants and other compensation paid generally to Board
members) to which Xxxxxxx will be entitled for service as Chairman of the Board until the first
anniversary of his election as Chairman of the Board.
(b) Incentive Compensation. Xxxxxxx 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 Xxxxxxx served as Chairman of the Board. Assuming Xxxxxxx
continues to serve as a Director until the relevant vesting date, the restrictions will lapse on
the earlier of (i) a change of control of the Company, or (ii) the one-year anniversary of the
restricted stock award.
(c) Restricted Stock Eligibility. In his capacity as Chairman of the Board, Xxxxxxx will be
eligible to receive restricted stock in an amount to be agreed in the future as part of an
incentive plan for Fiscal Year 2009, the metrics of which shall be determined by the Compensation
Committee.
(d) Unvested Options from 5,000 Share Option Grant. Xxxxxxx will continue to vest on the last
25% of the 5,000 share option grant previously made to him (as compensation for serving as Chairman
of the Special Committee), based upon his future service as Chairman of the Board.
2. 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 Xxxxxxx 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 Xxxxxxx
and shall not be assigned, delegated, transferred, pledged or sold by Xxxxxxx 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 Xxxxxxx:
|
Xxxxxxx X. Xxxxxxx | |
| c/o Knightspoint Partners LLC | ||
| 1325 Avenue of the Xxxxxxxx, 00xx Xxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 |
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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.
(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 Xxxxxxx 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 | |||
| XXXXXXX X. XXXXXXX |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Xxxxxxx X. Xxxxxxx | ||||
Signature Page
to
Compensation Agreement (Xxxxxxx)
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Compensation Agreement (Xxxxxxx)
