January 15, 1999
Xx. Xxxxxxx X. Xxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxx xxx Xxx, XX 00000
Dear Xx. Xxxx:
This letter ("this Amendment") confirms the following amendments to that
certain severance agreement dated November 6, 1998 (the "Agreement") between you
and Coastcast Corporation ("Coastcast"):
1. SEVERANCE PAYMENT. Paragraph 2 of the Agreement is deleted and
superseded in its entirety by this Paragraph 1. In lieu of the severance
payments previously contemplated by Paragraph 2(a) of the Agreement, Coastcast
will pay to you upon execution of this Amendment the gross sum of $425,000, less
deductions and withholdings from such gross sum for applicable federal, state,
and local income and employment taxes, FICA, etc.
2. NO RETIREMENT BENEFITS. Paragraph 3 of the Agreement is deleted and
superseded in its entirety by this Paragraph 2 in consideration of the release
of claims by Coastcast pursuant to Paragraph 5 of this Amendment and the other
promises and agreements of Coastcast under this Amendment. You hereby
acknowledge and agree that any and all rights you might otherwise have under or
in respect of the Coastcast Supplemental Executive Retirement Plan (the "SERP")
have been released by you pursuant to Paragraph 10 of the Agreement and any and
all rights you might otherwise have to retirement benefits under Paragraph 3 of
the Agreement have been released by you pursuant to Paragraph 4 of this
Amendment.
3. YOUR REPRESENTATIONS. To induce Coastcast to execute and deliver this
Amendment and to induce Coastcast to release claims against you pursuant to
Paragraph 5 of this Amendment, you hereby represent and warrant to Coastcast
that:
(a) You have never received, directly or indirectly, any personal
remuneration in connection with or as a result of the delivery of any golf
clubheads manufactured by Coastcast or any golf clubs including clubheads
manufactured by Coastcast to any person or entity.
(b) You have never received, directly or indirectly, any personal
remuneration in connection with or as a result of any loans by Coastcast to
Green Golf Finishing, Inc.
Xx. Xxxxxxx X. Xxxx
January 15, 1999
Page 2
(c) You have never received, directly or indirectly, any personal
remuneration in connection with or as a result of the SERP or purchase of life
insurance in connection with the SERP.
As used in this Paragraph 3, the term "personal remuneration" does not
include remuneration paid or benefits provided to you by Coastcast in connection
with your employment with Coastcast and does not include $3,000 which you have
disclosed was paid to you by The Xxxxxxxx Company for attending three meetings
of the advisory board of that firm in the fall of 1996 and January 1998. You
hereby acknowledge that, in entering into this Amendment, Coastcast is relying
on, and that the obligations of Coastcast under this Amendment and the
effectiveness of the release of claims by Coastcast pursuant to Paragraph 5 of
this Amendment are all conditioned on, the truthfulness of the foregoing
representations and warranties.
4. RELEASE OF COASTCAS. Except as provided below in this Paragraph 4,
you hereby forever release and discharge Coastcast, all of its respective
subsidiaries, and all of their successors, affiliates, assigns, employees,
former employees, attorneys, agents, officers, directors, and shareholders
from any and all causes of actions, judgments, liens, indebtedness, damages,
losses, claims, liabilities, and demands of every kind and character, known
or unknown, suspected, or unsuspected, absolute or contingent, which existed
immediately prior to the execution of this Amendment, including, but not
limited to, claims arising out of or in any manner relating to (i) your
employment with Coastcast and/or termination of such employment; (ii) any
restrictions on the right of Coastcast or any of the released parties to
terminate employees; (iii) any common law claims or actions; (iv) any
statements made by any of the released parties; (v) the SERP; (vi) the
failure of Coastcast to make the payment contemplated by Paragraph 2(a) of
the Agreement to you on January 6, 1999; or (vii) any federal, state, or
governmental statute, regulation, or ordinance, including, without
limitation, Title VII of the Civil Rights Act of 1964 and the Civil Rights
Act of 1991, the Americans with Disabilities Act, the Employee Retirement
Income Security Act of 1974, the Age Discrimination in Employment Act, the
California Fair Employment and Housing Act, and claims with any division of
the California Department of Industrial Relations or Department of Fair
Employment and Housing. You hereby waive any and all rights you may have
under California Civil Code Section 1542 (or any analogous state law or
federal law or regulation) which provides:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement with the
debtor.
Xx. Xxxxxxx X. Xxxx
January 15, 1999
Page 3
The foregoing release does not apply to any of the obligations of Coastcast
under the Agreement as amended by this Amendment, your employee stock option
agreement(s), the Coastcast retirement savings plan (which is not the SERP), any
rights which you may have under directors and officers liability insurance
policies maintained by Coastcast, or the indemnification agreement between you
and Coastcast which was executed in 1995 (the "Indemnification Agreement").
5. RELEASE OF YOU. Except as provided below in this Paragraph 5,
Coastcast hereby forever releases and discharges you and your heirs, successors
and assigns from any and all causes of actions, judgments, liens, indebtedness,
damages, losses, claims, liabilities, and demands of every kind and character,
known or unknown, suspected, or unsuspected, absolute or contingent, which
existed immediately prior to the execution of this Amendment, including, but not
limited to, claims arising out of or in any manner relating to (i) your
employment with Coastcast; (ii) the SERP; (iii) purchase of life insurance in
connection with the SERP; (iv) loans by Coastcast to Green Golf Finishing, Inc.;
(v) delivery of golf clubs including clubheads manufactured by Coastcast to any
person or entity; (vi) your position as an officer, director and employee of
Coastcast; or (vii) claims arising out of or resulting from misappropriation of
funds or property, fraud, gross negligence, or wilful misconduct, provided that
your representations and warranties in Paragraph 3 above are truthful.
Coastcast hereby waives any and all rights it may have under California Civil
Code Section 1542 (or any analogous state law or federal law or regulation)
which provides as set forth in paragraph 4 above.
The foregoing release does not apply to any of your representations and
warranties or other obligations under the Agreement as amended by this
Amendment, your employee stock option agreements(s), the Coastcast retirement
savings plan, or the Indemnification Agreement.
6. ENTIRE AGREEMENT. It is understood and agreed that the Agreement as
amended by this Amendment is fully integrated, represents the entire
understanding of the parties with respect to the subject matter, and there are
no other agreements, representations, promises, or negotiations which have not
been expressly set forth herein with respect to the subject of the Agreement as
amended by this Amendment. Nothing contained herein shall constitute or imply
any admission of liability or wrongdoing by any party. The Agreement as amended
by this Amendment can be further amended, modified, or terminated only by an
instrument in writing executed by you and the chief executive officer of
Coastcast.
7. AGREEMENT REMAINS IN EFFECT. The Agreement, as amended by this
Amendment, shall remain in full force and effect without any other change.
Xx. Xxxxxxx X. Xxxx
January 15, 1999
Page 4
Please confirm your agreement to the foregoing by dating and signing this
amendment where indicated below and returning a signed copy to Coastcast.
Sincerely,
COASTCAST CORPORATION
By: /s/ Xxxx X. Xxxxxxx
--------------------------
Xxxx X. Xxxxxxx
Chairman and Chief Executive Officer
Agreed this 15th day of January 1999.
/s/ Xxxxxxx X. Xxxx
------------------------------
Xxxxxxx X. Xxxx
APPROVAL OF COUNSEL:
XXXXX, XXXXXX & XXXXXXXXX
Attorneys for Xxxxxxx X. Xxxx
By:____________________________
R. Xxxxx Xxxxx, Partner
JEFFER, MANGELS, XXXXXX & MARMARO, LLP
Attorneys for Coastcast Corporation
By: /s/ Xxxxxx X. Xxxx
-----------------------------
Xxxxxx X. Xxxx, Partner
