Exhibit 10.36
Agreement
This Agreement is between AMF Bowling Worldwide, Inc. (the "Company") and
Xxxxxxx Xxxxx ("Executive") and is effective November 12, 1999. The Company and
Executive agree as follows:
1. Duties. Executive will serve the Company as Senior Vice President,
Marketing and perform the duties and responsibilities assigned to him by the
President and Chief Executive Officer of the Company (the "CEO"). The duties may
include serving as a director or officer of any affiliate of the Company.
Executive will perform his duties primarily at the Company's headquarters,
wherever the CEO may from time to time designate the headquarters to be (but in
any case within a 30 mile radius of the Company's current headquarters in
Richmond, Virginia) and such other temporary locations as the CEO may
reasonably request. Executive will devote his full attention and time to the
business and affairs of the Company and use his best efforts to carry out his
responsibilities with the highest degree of professionalism. Executive will
abide by all guidelines and policies pertaining to the business and affairs of
the Company as may be approved from time to time by the CEO (the "Guidelines").
Without violating his duties to the Company, Executive may manage his personal
investments, so long as his activities do not compete with and are not provided
to or for any entity that competes with the Company and do not interfere with
his responsibilities as an officer and employee of the Company. The term
"Company" includes the Company and its affiliates.
2. Compensation and Benefits. (a) Base Salary. Executive's base
compensation will be $200,000 annually ("Base Salary"). The Company will pay the
Base Salary monthly or at such other intervals, not less frequently than
monthly, as it pays the base salaries of other executives. The CEO may increase
the Base Salary annually. The term Base Salary will refer to the Base Salary as
increased.
(b) Annual Bonus. Executive will also be entitled to Annual Incentive
Compensation ("Bonus") under the Company's Annual Incentive Compensation Plan as
adopted by the CEO, in his sole discretion, each year (the "Plan").
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Executive will be entitled to a Bonus annually in an amount up to 50% of Base
Salary. The Bonus will be based on performance against objectives set forth in
the Plan.
(c) Vacation. During calendar year 1999, Executive will be entitled to two
(2) weeks vacation. After calendar year 1999, Executive will be entitled to four
(4) weeks annual vacation during his employment. Vacation will be subject to the
Guidelines.
(d) Relocation. Executive will be entitled to reimbursement of relocation
expenses for his move from Lexington, Kentucky to Richmond, Virginia and other
benefits in accordance with the Guidelines applicable to senior executives
generally.
(e) Options. The Company will grant Executive 100,000 options to purchase
shares of the common stock of AMF Bowling, Inc. pursuant to the AMF Bowling,
Inc. 1998 Stock Incentive Plan, the form of option agreement appended hereto as
Exhibit A and the Guidelines. Executive will also be entitled to participate in
any incentive stock option program from time to time made available to other
executives of the Company.
3. Termination of Employment. (a) Employment at Will. Executive's
employment is "at will". The Company may terminate Executive's employment at any
time with or without cause. Executive may terminate his employment at any time
with or without cause.
(b) Death or Disability. Executive's employment will terminate
automatically upon his death. The Company may terminate Executive's employment
because of Executive's Disability. "Disability" means that Executive has been
unable for a period of (i) 90 consecutive days or (ii) an aggregate of 180 days
in a period of 365 consecutive days to perform fully his duties as a result of
physical or mental illness or injury. The Company may terminate Executive's
employment for Disability by written notice to Executive. The termination will
be effective on the 30th day after receipt of notice by Executive (the
"Disability Date"), unless Executive returns to full-time performance of his
duties before the Disability Date. In the event of a dispute as to whether
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Executive has suffered a Disability, the final determination will be made by a
licensed physician selected by the CEO.
(c) Termination Date. "Termination Date" means the date of Executive's
death, the Disability Date or the date on which the termination of Executive's
employment by the Company or Executive is effective, as the case may be.
4. Company's Obligation Upon Termination. (a) Termination Without Cause or
with Good Reason. If Executive terminates his employment for Good Reason (herein
defined) or the Company terminates Executive's employment (other than due to
Executive's death or Disability or with cause), the Company will pay Executive:
(i) in one lump sum Executive's accrued but unpaid Base Salary (the
"Accrued Salary"), which will equal the sum of (1) any portion of Base Salary
through the Termination Date that has not yet been paid and (2) any accrued but
unpaid vacation pay under the Guidelines;
(ii) subject to Executive satisfying the condition precedent set forth in
Section 5, severance pay in the amount of his Base Salary on the Termination
Date payable, less applicable withholding and deductions, in twelve equal
monthly installments beginning one month after the Termination Date
("Severance"); and
(iii) an "Allocable Bonus Amount" for the year in which Executive's
employment is terminated equal to the amount of Bonus, if any, to which the
Executive may have become entitled (if he was employed for the entire year)
based on the Company's then current Plan for Executive) multiplied by a
fraction, (x) the numerator of which is the number of days in year which
Executive was employed and (y) the denominator of which is 365. The Allocable
Bonus Amount will be paid only at the time and subject to the terms and
conditions of the Plan.
(b) Good Reason means, without Executive's written consent. (i) any
material and permanent diminution in Executive's title, authority, duties or
responsibilities inconsistent with his position as the Senior Vice President,
Marketing of the Company or a material segment of the Company's business (other
than as a result of Executive's physical or mental disability or other
incapacity); (ii) any removal of Executive from the position set forth in
Section 1; (iii) any reduction in Executive's Base Salary; (iv) the Company's
requiring Executive to be based permanently at any office or location other than
as
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provided in Section 1; or (v) the Company's failure to comply with its material
obligations under this Agreement. Executive will provide the Company with
written notice of any of the events set forth in subsections (i) through (v)
above and the Company will have 30 days to cure. Executive may not terminate
employment for Good Reason as a result of any reason specified in subsections
(i) through (v) if the Company effectuates a cure within the 30-day period.
(c) Termination Due to Death or Disability. Upon Executive's death during
his employment or if the Company terminates Executive's employment due to
Disability, the Company will pay Executive his Accrued Salary in one lump sum
and his Allocable Bonus Amount, if any, at such time and under such terms and
conditions as may then be applicable. Executive will not be entitled to
Severance.
(d) Voluntary Resignation. If Executive resigns his employment for other
than Good Reason, the Company will pay Executive his Accrued Salary in one lump
sum. Executive will not be entitled to Severance or his Allocable Bonus.
(e) Termination for Cause. The Company may terminate Executive's employment
at any time for cause if the CEO determines that Executive has (i) committed any
act of fraud or gross negligence in the course of his employment, which in the
case of gross negligence, has a material adverse effect on the business or
financial condition of the Company, (ii) willfully or deliberately failed to
perform the duties of his position, other than on account of his Disability,
(iii) intentionally refused to cause the Company to adhere to any material
provision of the operating budget or business plan adopted by the CEO or to any
lawful and material direction or instruction of the CEO, (iv) been convicted or
plead guilty (or nolo contendere) to any felony under the laws of the United
States or any state thereof or any foreign country to which Executive may be
subject, (v) engaged in gross misconduct, such as theft or embezzlement, or a
crime involving moral turpitude, which crime reflects poorly on the image or
reputation of the Company, (vi) made a material misrepresentation at any time to
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the Company, or (vii) breached any of his obligations hereunder or failed to
comply with a reasonable and lawful instruction of the CEO, which continues for
a period of 5 days after Executive's receipt of written notice from the CEO
identifying the objectionable action or infraction by Executive. If there is a
termination for cause, the Company will deliver to Executive a written notice
specifying the cause and the effective Termination Date. Upon termination for
cause, Executive will not be entitled to Severance or an Allocable Bonus Amount.
5. Executive's Obligation Upon Termination. (a) Release. As a condition
precedent to Executive's entitlement to Severance, Executive will release the
Company and its officers, directors, and employees of and from any Claims
(herein defined). The release will be in form and substance reasonably
acceptable to the Company's counsel. Claims means all claims, causes of action,
obligations, damages, losses or liabilities, known or unknown, both at law and
in equity (including all claims of employment discrimination, unjust or improper
dismissal, retaliation, back pay or future employment opportunities) (which
relate to employment, separation from employment) and refusal to offer future
employment by or with the Company by or on behalf of Executive that Executive
may have or ever will have. The release contemplated in this Section will not
release the Company from its obligations under this Agreement or any obligation
under its Charter or By Laws to indemnify Executive as an officer or director of
the Company.
(b) Confidentiality. During and for a period of two (2) years after the
Termination Date, except as required by law, Executive will not divulge any
secret or confidential information, knowledge or data relating to the Company or
its affiliates that is not public knowledge ("Confidential Information").
(c) Disparaging Remarks. During and for a period of two (2) years after the
Termination Date, except as required by law, Executive will not at any time make
any disparaging, derogatory, negative or similar remarks, comments or
statements, in writing or otherwise, about or in any way in reference to the
Company, its products or services or its officers, directors, employees or
affiliates.
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(d) Competition. (i) During his employment and the one year period
following any termination of his employment with the Company (the "Restricted
Period"), Executive will 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, independent contractor, provider of
personal services or otherwise) any person, corporation, partnership,
association or entity that is, or intends to be, engaged in any business which
is in competition with the Business (herein defined) of the Company in any
country in which the Company operates, competes or is engaged in the Business or
at such time intends so to operate, compete or become engaged in such business
("Competitor").
(ii) During the Restricted Period, Executive will not directly or
indirectly encourage (or solicit or assist any other person or firm in
encouraging or soliciting) any person, who was engaged in a business
relationship with the Company during the one year period preceding his or her
termination of employment with the Company, to engage in a business relationship
with a Competitor.
(iii) During the Restricted Period, Executive will not directly or
indirectly induce any employee of the Company to terminate his or her employment
and will not directly or indirectly either individually or as owner, agent,
employee, consultant or other wise, employ offer employment or cause employment
to be offered to any person (including employment as an independent contractor)
who is or was employed by the Company unless such person will have ceased to
be so employed for a period of at least 12 months.
(iv) Promptly following Executive's termination of employment, Executive
will return to the Company all property of the Company in Executive's possession
or under his control, including all Confidential Information in whatever media
it is maintained.
(v) The term "Business" means the business of owning or operating bowling
based entertainment centers, golf driving, putting or practice facilities or
theaters, or manufacturing, distributing or selling bowling products and
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accessories. The term "Competitor" will exclude any business participating
principally in the restaurant or food and beverage industry.
(vi) Executive agrees that the Restricted Period and the covenants and
obligations of Executive with respect to non-competition, non-solicitation,
confidentiality, the property of the Company and the restricted territories (1)
are fair and reasonable and the result of negotiation and (2) relate to special,
unique and extraordinary matters and that a violation of any of their terms will
cause the Company irreparable injury for which adequate remedies are not
available at law. Therefore, Executive agrees that the Company will 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 Executive
from committing any violation of the covenants and obligations. These remedies
are cumulative and are in addition to any other rights and remedies the Company
may have at law or in equity. If at the time of enforcement, a court holds that
any restrictions are unreasonable under circumstances then existing, the parties
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.
6. Miscellaneous. (a) Assignment. This Agreement is personal to Executive
and may not be assigned by Executive otherwise than by will or the laws of
descent and distribution.
(b) Prior Agreements. This Agreement supercedes the offer of employment
contained in the October 1, 1999 letter from the CEO to Executive. There are no
representations or promises concerning the employment of Executive other than as
set forth in this Agreement.
(c) Applicable Law. The laws of Virginia will govern this Agreement.
(d) Amendment. This Agreement may not be amended or modified except by a
written agreement executed by the parties.
(e) Notices. All notices and other communications will be in writing and
will be given by hand delivery to the other party or by registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
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If to Executive:
Xxxxxxx Xxxxxxxx Xxxxx
000 Xxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
If to the Company:
AMF Bowling Worldwide, Inc.
0000 XXX Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
The invalidity or unenforceability of any provision of this Agreement will
not affect the validity or enforceability of any other provision of this
Agreement.
Witness the following signatures:
/s/ Xxxxxxx Xxxxxxxx Xxxxx
--------------------------------
Xxxxxxx Xxxxxxxx Xxxxx
AMF Bowling Worldwide, Inc.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
