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EXHIBIT 10.62
EMPLOYMENT AGREEMENT
BY AND BETWEEN
BRASSIE GOLF CORPORATION
AND
XXXXXXXX X. XXXXXXX
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into to be
effective September 2, 1997, by and between BRASSIE GOLF CORPORATION, a Delaware
corporation (the "Company"), and XXXXXXXX X. XXXXXXX ("Employee").
WHEREAS, the Company and Employee desire to enter into this Agreement to
assure the Company of the services of Employee and to set forth the respective
rights and duties of the parties hereto; and
WHEREAS, the Company (a) is presently in the business of golf course
ownership and management and providing other golf-related services and (b)
intends to invest its available resources in one or more new business ventures
(such activities, present and future, being hereinafter referred to as the
"Business").
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
terms and conditions set forth herein, the Company and Employee agree as
follows:
ARTICLE I
EMPLOYMENT
1.1 EMPLOYMENT AND TITLE. The Company hereby employs Employee, and Employee
hereby accepts such employment, as Chief Operating Officer and Chief Financial
Officer of the Company, all upon the terms and conditions set forth herein.
1.2 SERVICES. During the Term (as hereinafter defined) hereof, Employee
agrees to perform diligently and in good faith the duties of Chief Operating
Officer and Chief Financial Officer of the Company under the direction of the
President of the Company (the "President"), the Board of Directors of the
Company (the "Board of Directors") or the Executive Committee of the Board of
Directors (the "Executive Committee"). Employee agrees to devote his best
efforts and substantially all of his full business time, energies and abilities
to the services to be performed hereunder and for the exclusive benefit of the
Company. Employee shall be vested with such authority as is generally
commensurate with the position of Chief Operating Officer and Chief Financial
Officer of the Company, as further outlined below.
1.3 LOCATION. The principal place of employment and the location of
Employee's principal office shall be in Tampa, Florida; provided, however,
Employee shall, when requested by the President, temporarily perform, outside of
Tampa, Florida, such services as are reasonably required for the proper
execution of his duties under this Agreement.
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1.4 REPRESENTATIONS. Each party represents and warrants to the other that
he/',it has full power and authority to enter into and perform this Agreement
and that his/its execution and performance of this Agreement shall not
constitute a default under or breach of any of the terms of any agreement to
which he/it is a party or under which he/it is bound. Each party represents that
no consent or approval of any third party is required for his/its execution,
delivery and performance of this Agreement or that all consents or approvals of
any third party required for his/its execution, delivery and performance of this
Agreement have been obtained.
1.5 SOLE DISCRETION. As the term "sole discretion" is used in this
Agreement, unless otherwise defined, it will be interpreted as the exercise of
reasonable discretion applying normal business practices to a contractual
relationship between a company and its chief operating officer and chief
financial officer.
ARTICLE II
TERM
2.1 TERM. The term of Employee's employment hereunder (the "Term") shall
commence as of the date hereof (the "Commencement Date") with respect to
Employee's duties as Chief Operating Officer and as of November _____, 1997 with
respect to Employee's duties as Chief Financial Officer and shall continue
through the third anniversary of the Commencement Date (the "Scheduled
Termination Date") unless earlier terminated pursuant to the provisions of this
Agreement.
2.2 RENEWAL. This Agreement shall be renewed for successive one year terms
unless either party hereto provides written notice of non-renewal at least
thirty (30) days prior to the Scheduled Termination Date of each such term.
Notwithstanding the foregoing, each renewal hereof shall constitute a separate
and distinct agreement. If notice of non-renewal is given by either party, all
terms of this Agreement shall remain in full force and effect until the earlier
of the following (i) a new employment agreement is entered into by the parties,
or (ii) employment is terminated under the terms and conditions in Article VII
hereof.
ARTICLE III
COMPENSATION
3.1 BASE SALARY. As compensation for the services to be rendered by
Employee, the Company shall pay Employee, during the Term of this Agreement, an
annual base salary equal to One Hundred Seventy-five Thousand and 00/100 Dollars
($175,000.00), which base salary shall accrue monthly (prorated for periods less
than a month) and shall be paid in equal bimonthly installments, in arrears. The
base salary will be reviewed annually, or more frequently, as appropriate, by
the Board of Directors or the Compensation Committee of the Board of Directors,
as the case may be, in its sole discretion, provided that the annual base salary
shall not be decreased below One Hundred Seventy-five Thousand and 00/100
Dollars ($175,000.00).
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3.2 INCENTIVE COMPENSATION. The Company shall pay Employee, during the Term
of this Agreement, an annual performance/incentive bonus which shall be
calculated as follows:
Fiscal Year
EBIT Bonus
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$0 - 1,000,000 Five Percent (5%) of Base Salary
$1,000,001 to $3,000,000 Fifteen Percent (15%) of Base Salary
$3,000,001 to $5,000,000 Thirty Percent (30%) of Base Salary
In excess of $5,000,001 Fifty Percent (50%) of Base Salary
3.3 BENEFITS. Employee shall be entitled, during the Term hereof, to the
same medical, hospital, dental and life insurance coverage and benefits as are
available to the Company's most senior executive officers on the Commencement
Date.
3.4 WITHHOLDING. Any and all amounts payable under this Agreement,
including, without limitation, amounts payable under this Article III and
Article VII, are subject to withholding for such federal, state and local taxes
as the Company, in its reasonable judgment, determines to be required pursuant
to any applicable law, rule or regulation.
ARTICLE IV
WORKING FACILITIES, EXPENSES AND INSURANCE
4.1 WORKING FACILITIES AND EXPENSES. Employee shall be furnished with an
office at the principal executive offices of the Company, or at such other
location as agreed to by Employee and the Company, and other working facilities
and secretarial and other assistance suitable to his position and reasonably
required for the performance of his duties hereunder. The Company shall
reimburse Employee for all of Employee's reasonable expenses incurred while
employed and performing his duties under and in accordance with the terms and
conditions of this Agreement, subject to Employee's full and appropriate
documentation, including, without limitation, receipts for all such expenses in
the manner required pursuant to Company's policies and procedures and the
Internal Revenue Code of 1986, as amended (the "Code"), and applicable
regulations as are in effect from time to time.
4.2 INSURANCE. The Company may secure in its own name or otherwise, and at
its own expense, life, disability and other insurance covering Employee or
Employee and others, and Employee shall not have any right, title or interest in
or to such insurance other than as expressly provided herein. Employee agrees to
assist the Company in procuring such insurance by submitting to the usual and
customary medical and other examinations to be conducted by such physicians(s)
as the Company or such insurance company may designate and by signing such
applications and other written instruments as may be required by any insurance
company to which application is made for such insurance.
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ARTICLE V
ILLNESS OR INCAPACITY
5.1 RIGHT TO TERMINATE. If, during the Term of this Agreement, Employee
shall be unable to perform in all material respects his duties hereunder for a
period exceeding three (3) consecutive months by reason of illness or
incapacity, this Agreement may be terminated by the Company in its sole
discretion pursuant to Section 7.2 hereof.
5.2 RIGHT TO REPLACE. If Employee's illness or incapacity, whether by
physical or mental cause, renders him unable for a minimum period of thirty (30)
consecutive calendar days to carry out his duties and responsibilities as set
forth herein, the Company shall have the right to designate a person to replace
Employee temporarily in the capacity described in Article I hereof; provided,
however, that if Employee returns to work from such illness or incapacity within
the three (3) month period following his inability due to such illness or
incapacity, he shall be entitled to be reinstated in the capacity described in
Article I hereof with all rights, duties and privileges attendant thereto.
5.3 RIGHTS PRIOR TO TERMINATION. Employee shall be entitled to his full
remuneration and benefits hereunder during such illness or incapacity unless and
until an election is made by the Company to terminate this Agreement in
accordance with the provisions of this Article V.
5.4 DETERMINATION OF ILLNESS OR INCAPACITY. For purposes of this Article V,
the term "illness or incapacity" shall mean Employee's inability to perform his
duties hereunder substantially on a full-time basis due to physical or mental
illness as determined by the Board of Directors in accordance with the Company's
long-term disability insurance policy or, in the event Company does not have a
long-term disability insurance policy in effect, in accordance with the
following procedure: Employee and the Company each shall designate a physician
who shall jointly select a third physician and the three (3) physicians selected
would then determine whether or not any illness or incapacity is such as to
prevent Employee from performing his duties hereunder.
ARTICLE VI
CONFIDENTIALITY
6.1 CONFIDENTIALITY. During the Term of this Agreement and thereafter,
Employee agrees to maintain the confidential nature of the Company's trade
secrets, including, without limitation, development ideas, acquisition
strategies and plans, financial information, records, "know-how", methods of
doing business, customer, supplier and distributor lists and all other
confidential information of the Company. Employee shall not use (other than in
connection with his employment), in any way whatsoever, such trade secrets
except as authorized in writing by the Company. Employee shall, upon the
termination of his employment, deliver to the Company any and all records,
books, documents or any other materials whatsoever (including all copies
thereof) containing such trade secrets, which shall be and remain the property
of the Company.
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6.2 NON-REMOVAL OF RECORDS. All documents, papers, materials, notes, books,
correspondence, drawings and other written and graphic records relating to the
Business of the Company which Employee shall prepare or use, or come into
contact with, shall be and remain the sole property of the Company and,
effective immediately upon the termination of the Employee's employment with the
Company for any reason, shall not be removed from the Company's premises without
the Company's prior written consent.
ARTICLE VII
TERMINATION
7.1 TERMINATION FOR CAUSE. This Agreement and the employment of Employee
may be terminated by the Company "For Cause" in any of the following
circumstances:
(a) Employee has been judicially determined to have committed
any fraud, theft, misappropriation or similar act against
the Company or Employee has willfully abused the Company's
expense account policy; or
(b) Employee is in default in a material respect in the
performance of Employee's obligations, services or duties
hereunder, which shall include, without limitation,
Employee's willfully disregarding the lawful written
instructions of the President, the Chairman of the Executive
Committee or the Board of Directors concerning his
performance of his duties within the scope hereof,
Employee's conduct which is materially inconsistent with the
published policies of the Company, as promulgated from time
to time and which are generally applicable to all senior
executives, or Employee's breach of any other material
provision of this Agreement, provided, however, that
Employee shall be given written notice of such default and a
reasonable opportunity to cure such default; or
(c) Employee is grossly negligent or engages in willful
misconduct in the performance of his duties hereunder; or
(d) Employee has been proven to have engaged in illegal
activities or other wrongful conduct which, individually, or
in the aggregate, have a material adverse effect on the
Company, its reputation, prospects, earnings or financial
condition.
A Termination For Cause under this Section 7.1 shall be effective upon the
date set forth in a written notice of termination delivered to Employee, but
shall not be earlier than the date such written notice is delivered to Employee.
7.2 TERMINATION WITHOUT CAUSE. This Agreement and the employment of the
Employee may be terminated "Without Cause" as follows:
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(a) By mutual agreement of the parties hereto; or
(b) At the election of the Company at any tune after December
31, 1997, by its giving not less than thirty (30) days
written notice to Employee; or
(c) At the election of the Company by its giving not less than
thirty (30) days written notice to Employee in the event of
an illness or incapacity described in Section 5.1; or
(d) At the election of the Employee by his giving not less than
thirty (30) days written notice to the Company; or
(e) Upon the Scheduled Termination Date or on the last day of
any renewal term in the event of non-renewal of this
Agreement; or
(f) Upon Employee's death.
A Termination Without Cause under Section 7.2(b), (c) or (d) hereof shall
be effective upon the date set forth in a written notice of termination
delivered hereunder, which shall be not less than thirty (30) days nor more than
forty-five (45) days after the giving of such notice. A Termination Without
Cause under Section 7.2(a), (e) or (f) hereof shall be automatically effective
upon the date of mutual agreement, or the Scheduled Termination Date or the last
day of any renewal term, or the date of death of the Employee, as the case may
be.
7.3 EFFECT OF TERMINATION FOR CAUSE. If Employee's employment is terminated
For Cause:
(a) Employee shall be entitled to accrued base salary under
Section 3.1 through the date of termination which shall be
paid by the Company within sixty (60) days of the date of
termination;
(b) Employee shall be entitled to reimbursement for expenses
accrued through the date of termination in accordance with
the provisions of Section 4.1 hereof which shall be paid by
the Company within sixty (60) days of the date of
termination; and
(c) Except as provided in Article XI, this Agreement shall
thereupon be of no further force and effect.
7.4 EFFECT OF TERMINATION WITHOUT CAUSE. If Employee's employment is
terminated Without Cause except pursuant to Section 7.2(d) or (e) hereof:
(a) Employee shall be entitled to accrued base salary under
Section 3.1 through the date of termination which shall be
paid by the Company within sixty (60) days of the date of
termination;
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(b) Employee shall be entitled to reimbursement for expenses
accrued through the Scheduled Termination Date in accordance
with the provisions of Section 4.1 hereof which shall be
paid by the Company within sixty (60) days of the date of
termination;
(c) Employee shall be entitled to severance pay in the amount of
Two Hundred Forty Thousand Dollars ($240,000) which shall be
paid by the Company within sixty (60) days of the date of
termination;
(d) Except as provided in Article XI, this Agreement shall
thereupon be of no further force or effect.
Any amounts due from Company pursuant to Section 7.3 and 7.4 above and not
paid to Employee as and when due shall accrue interest at the prime rate of
interest as established from time to time by Chase Manhattan Bank.
ARTICLE VIII
NON-COMPETITION AND NON-INTERFERENCE
8.1 NON-COMPETITION. Employee agrees that during the Term hereof and, in
the case of a Termination For Cause or a Termination Without Cause pursuant to
Section 7.2(d) hereof, for a period of one (1) year thereafter, Employee will
not, directly, indirectly, or as an agent on behalf of or in conjunction with
any person, firm, partnership, corporation or other entity, own, manage,
control, join, or participate in the ownership, management, operation, or
control of, or be financially interested in or advise, lend money to, or be
employed by or provide consulting services to, or be connected in any manner
with any competitive business which is located within the United States of
America; provided, however, that Employee shall be permitted to own up to 5% of
the issued and outstanding shares of capital stock of any corporation which has
a class of equity securities registered under Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended.
8.2 NON-INTERFERENCE. Employee agrees that during the Term hereof and, in
the case of a Termination For Cause or a Termination Without Cause pursuant to
Section 7.2(d) hereof, for a period of one (1) year thereafter, Employee will
not, directly, indirectly or as an agent on behalf of or in conjunction with any
person, firm, partnership, corporation or other entity, induce or entice any
employee of the Company to leave such employment or cause anyone else to do so.
8.3 SEVERABILITY. If any covenant or provision contained in this Article
VIII is determined to be void or unenforceable in whole or in part, it shall not
be deemed to affect or impair the validity of any other covenant or provision.
If, in any arbitral or judicial proceeding, a tribunal shall refuse to enforce
all of the separate covenants deemed included in this Article VIII, then such
unenforceable covenants shall be deemed eliminated from the provisions hereof
for the purpose of such proceedings to the extent necessary to permit the
remaining separate covenants to be enforced in such proceedings.
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ARTICLE IX
REMEDIES
9.1 EQUITABLE REMEDIES. Employee and the Company agree that the services to
be rendered by Employee pursuant to this Agreement, and the rights and interests
granted and the obligations to be performed by Employee to the Company pursuant
to this Agreement, are of a special, unique, extraordinary and intellectual
character, which gives them a peculiar value, the loss of which cannot be
reasonably or adequately compensated in damages in any action at law, and that a
breach by Employee of any of the terms of this Agreement will cause the Company
great and irreparable injury and damage. Employee hereby expressly agrees that
the Company shall be entitled to the remedies of injunction, specific
performance and other equitable relief to prevent a breach of Articles VI and
VIII of this Agreement, both pendente lite and permanently, against Employee, as
such breach would cause irreparable injury to the Company and a remedy at law
would be inadequate and insufficient. Therefore, the Company may, in addition to
pursuing its other remedies, obtain an injunction from any court having
jurisdiction in the matter restraining any further violation.
9.2 RIGHTS AND REMEDIES PRESERVED. Nothing in this Agreement shall limit
any right or remedy the Company or Employee may have under this Agreement or
pursuant to law for any breach of this Agreement by the other party. The rights
granted to the parties herein are cumulative and the election of one shall not
constitute a waiver of such party's right to assert all other legal remedies
available under the circumstances.
ARTICLE X
MISCELLANEOUS
10.1 NO WAIVERS. The failure of either party to enforce any provision of
this Agreement shall not be construed as a waiver of any such provision, nor
prevent such party thereafter from enforcing such provision or any other
provision of this Agreement.
10.2 NOTICES. Any notice to be given to the Company and Employee under the
terms of this Agreement may be delivered personally, by telecopy, telex or other
form of written electronic transmission, or by registered or certified mail,
postage prepaid, and shall be addressed as follows:
IF TO THE COMPANY: Brassie Golf Corporation
One Tampa City Center, Suite 2550
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: President
WITH A COPY TO: Xxxx X. Xxxxxx, Esquire
Annis, Mitchell, Xxxxxx, Xxxxxxx & Xxxxx, P.A.
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
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IF TO EMPLOYEE: Xxxxxxxx X. Xxxxxxx
00000 Xxxxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Either party may hereafter notify the other in writing of any change in address.
Any notice shall be deemed duly given (i) when personally delivered, (ii) when
telecopied, telexed or transmitted by other form of written electronic
transmission (upon confirmation of receipt) or (iii) on the third day after it
is mailed by registered or certified mail, postage prepaid, as provided herein.
10.3 SEVERABILITY. The provisions of this Agreement are severable and if
any provision of this Agreement shall be held to be invalid or otherwise
unenforceable, in whole or in part, the remainder of the provisions, or
enforceable parts thereof, shall not be affected thereby.
10.4 SUCCESSORS AND ASSIGNS. The rights and obligations of the Company
under this Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the Company, including the survivor upon any merger,
consolidation, share exchange or combination of the Company with any other
entity. Employee shall not have the right to assign, delegate or otherwise
transfer any duty or obligation to be performed by him hereunder to any person
or entity.
10.5 ENTIRE AGREEMENT. This Agreement supersedes all prior and
contemporaneous agreements and understandings between the parties hereto, oral
or written, and may not be modified or terminated orally. No modification,
termination or attempted waiver shall be valid unless in writing, signed by the
party against whom such modification, termination or waiver is sought to be
enforced. This Agreement was the subject of negotiation by the parties hereto
and their counsel. The parties agree that no prior drafts of this Agreement
shall be admissible as evidence (whether in any arbitration or court of law) in
any proceeding which involves the interpretation of any provisions of this
Agreement.
10.6 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Florida without reference to
the conflict of law principles thereof.
10.7 SECTION HEADINGS. The section headings contained herein are for the
purposes of convenience only and are not intended to define or limit the
contents of said sections.
10.8 ATTORNEYS FEES. In the event of any litigation arising out of this
Agreement, the prevailing party shall be entitled to recover from the
non-prevailing party reasonable attorneys fees and costs incurred.
10.9 FURTHER ASSURANCES. Each party hereto shall cooperate and shall take
such further action and shall execute and deliver such further documents as may
be reasonably requested by the other party in order to carry out the provisions
and purposes of this Agreement.
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10.10 GENDER. Whenever the pronouns "he" or "his" are used herein they
shall also be deemed to mean "she" or "hers" or "it" or "its" whenever
applicable. Words in the singular shall be read and construed as though in the
plural and words in the plural shall be read and construed as though in the
singular in all cases where they would so apply.
10.11 COUNTERPARTS. This Agreement may be executed in counterparts, all of
which taken together shall be deemed one original.
ARTICLE 1
SURVIVAL
10.12 SURVIVAL. The provisions of Articles VI, VII, VIII, IX and X, of this
Agreement shall survive the termination of this Agreement whether upon, or prior
to, the Scheduled Termination Date hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first above written.
BRASSIE GOLF CORPORATION,
a Delaware corporation
By:
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President
EMPLOYEE
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Xxxxxxxx X. Xxxxxxx
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