EXHIBIT 10.9
AMENDED AND RESTATED
EXECUTIVE OFFICER EMPLOYMENT AGREEMENT
WHEREAS there is a certain Executive Officer Employment Agreement (the
"Employment Agreement") entered into as of September 1, 2000, by and between
Callaway Golf Europe Ltd. ("Callaway Golf Europe"), a United Kingdom corporation
and wholly owned subsidiary of Callaway Golf Company (the "Company"), a Delaware
corporation, and Xxx X. Xxxxxx ("Employee");
WHEREAS the Employment Agreement was assigned to the Company and amended
pursuant to the Assignment Of And First Amendment To Executive Officer
Employment Agreement made effective October 16, 2000;
WHEREAS a new Executive Officer Employment Agreement (the "New Employment
Agreement") to be effective January 1, 2002, was offered by the Company to
Employee, but not accepted by Employee; and
WHEREAS instead of executing the New Employment Agreement the parties wish
to further amend the Employment Agreement, as assigned and amended, by entering
into this Amended And Restated Executive Officer Employment Agreement (the
"Restated Employment Agreement"), which shall supercede and replace the
Employment Agreement, as assigned and amended, in its entirety.
NOW THEREFORE this Restated Employment Agreement is entered into as of
October 1, 2002, by and between the Company and Employee.
1. TERM OF EMPLOYMENT.
(a) The Company hereby employs Employee and Employee hereby accepts
employment pursuant to the terms and provisions of this Restated Employment
Agreement for the period commencing October 1, 2002 and terminating December 31,
2003 (the "Term"), unless Employee's employment pursuant to this Restated
Employment Agreement is earlier terminated as hereinafter provided. Unless
Employee's employment pursuant to this Restated Employment Agreement has been
earlier terminated, at the close of business on December 31, 2003, without
further action or notice on the part of either party, Employee's employment with
the Company shall end and Employee shall cease to be an employee or officer of
the Company without the payment of any further severance, benefits,
compensation, claim or other consideration except as provided herein.
2. SERVICES.
(a) Employee shall serve as Executive Vice President of the Company,
and shall report to the Chief Executive Officer. Employee's duties shall be
those as are assigned to Employee from time to time by the Chief Executive
Officer, provided that such duties and assignments are commensurate with
Employee's training and experience and do not make it unreasonably difficult for
Employee to maintain the principal residence he has established in Encinitas,
California.
(b) Employee shall be required to comply with all policies and
procedures of the Company, as such shall be adopted, modified or otherwise
established by the Company from time to time.
(c) The Company and Employee agree that the services being provided
by Employee for the Company under the terms of this Restated Employment
Agreement are unique and intellectual in character and that Employee and the
Company are entering into this Restated Employment
Agreement so that the Company will have the exclusive benefit of those services
during the term of the Restated Employment Agreement.
3. SERVICES.
(a) Subject to the provisions of subsection 3(b) below, during the
term of this Restated Employment Agreement Employee agrees to devote his or her
full productive time and best efforts to the performance of Employee's duties
hereunder. Employee further agrees, as a condition to the performance by the
Company of each and all of its obligations hereunder, that so long as Employee
is employed by the Company or otherwise receiving compensation or other
consideration from the Company, Employee will not directly or indirectly render
services of any nature to, otherwise become employed by, or otherwise
participate or engage in any other business without the Company's prior written
consent. Employee further agrees to execute such secrecy, non-disclosure,
patent, trademark, copyright and other proprietary rights agreements, if any, as
the Company may from time to time reasonably require.
(b) Nothing contained in subsection 3(a) above shall be deemed to
preclude Employee from having outside personal investments and involvement with
appropriate community activities, or from devoting a reasonable amount of time
to such matters, provided that this shall in no manner interfere with or
derogate from Employee's work for the Company. Moreover, the Company is aware
that Employee will be seeking other employment during the Term of this Restated
Employment Agreement, and will make reasonable accommodations to permit Employee
personal time to conduct such search.
4. COMPENSATION. While employed by the Company pursuant to this Restated
Employment Agreement, the Company agrees to compensate Employee as follows:
(a) The Company agrees to pay Employee a base salary at the rate of
$400,000.00 per year, payable in bi-weekly installments.
(b) The Company shall provide Employee an opportunity to earn an
annual bonus based upon participation in the Company's officer bonus plan as it
may or may not exist from time to time. Employee acknowledges that currently all
bonuses are discretionary, that the current officer bonus plan does not include
any nondiscretionary bonus plan, and that the Company does not currently
contemplate establishing any nondiscretionary bonus plan applicable to Employee.
5. EXPENSES AND BENEFITS. While employed by the Company pursuant to this
Restated Employment Agreement, the Company agrees to provide the following
benefits to Employee:
(a) Reasonable and Necessary Expenses. In addition to the
compensation provided for in Section 4 hereof, the Company shall reimburse
Employee for all reasonable, customary, and necessary expenses incurred in the
performance of Employee's duties hereunder. Employee shall first account for
such expenses by submitting a signed statement itemizing such expenses prepared
in accordance with the policy set by the Company for reimbursement of such
expenses. The amount, nature, and extent of such expenses shall always be
subject to the control, supervision, and direction of the Company and its Chief
Executive Officer.
(b) Vacation. Employee shall receive four (4) weeks paid vacation
for each twelve (12) month period of employment with the Company. The vacation
may be taken any time during the year subject to prior approval by the Company,
such approval not to be unreasonably withheld. Any unused vacation will be
carried forward from year to year. The maximum vacation time Employee
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may accrue shall be three times Employee's annual vacation benefit. The Company
reserves the right to pay Employee for unused, accrued vacation benefits in lieu
of providing time off.
(c) Benefits. The Company shall provide for Employee to:
(i) participate in the Company's health insurance and
disability insurance plans as the same may be modified from time to time;
(ii) receive, if Employee is insurable under usual
underwriting standards, term life insurance coverage on Employee's life, payable
to whomever the Employee directs, in the face amount of $1,000,000.00, provided
that Employee's physical condition does not prevent Employee from qualifying for
such insurance coverage under reasonable terms and conditions;
(iii) participate in the Company's 401(k) pension plan
pursuant to the terms of the plan, as the same may be modified from time to
time;
(iv) participate in the Company's Executive Deferred
Compensation Plan, as the same may be modified from time to time; and
(v) participate in any other benefit plans the Company
provides from time to time to senior executive officers. It is understood that
benefit plans within the meaning of this subsection do not include compensation
or bonus plans.
(d) Estate Planning and Other Perquisites. To the extent the Company
provides tax and estate planning and related services, or any other perquisites
and personal benefits to other senior executive officers generally from time to
time, such services and perquisites shall be made available to Employee on the
same terms and conditions.
(e) Club Membership. Employee shall be provided with access to a
country club in accordance with the Company's country club membership policy, as
modified from time to time. The club membership itself shall belong to and be
the property of the Company, not Employee.
6. TAX INDEMNIFICATION. Employee shall be indemnified by the Company for
certain excise tax obligations, as more specifically set forth in Exhibit A to
this Restated Employment Agreement.
7. NONCOMPETITION.
(a) Other Business. To the fullest extent permitted by law, Employee
agrees that, while employed by the Company or otherwise receiving compensation
or other consideration from the Company, Employee will not, whether as agent,
consultant, holder of a beneficial interest, creditor, or in any other capacity,
engage in any business or venture which engages in competition with the business
of the Company or any of its affiliates, or have any interest in any person,
firm, corporation, or venture which engages in competition with the business of
the Company or any of its affiliates. For purposes of this section, the
ownership of interests in a broadly based mutual fund shall not constitute
ownership of the stocks held by the fund.
(b) Other Employees. Except as may be required in the performance of
his duties hereunder, Employee shall not cause or induce, or attempt to cause or
induce, any person now or hereafter employed by the Company or any of its
affiliates to terminate such employment, nor shall Employee directly or
indirectly employ any person who is now or hereafter employed by the Company or
any of its affiliates for a period of one (1) year from the date Employee ceases
to be employed by the Company.
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(c) Suppliers. While employed by the Company, and for one (1) year
thereafter, Employee shall not cause or induce, or attempt to cause or induce,
any person or firm supplying goods, services or credit to the Company or any of
its affiliates to diminish or cease furnishing such goods, services or credit.
(d) Conflict of Interest. While employed by the Company, Employee
shall not engage in any conduct or enterprise that shall constitute an actual or
apparent conflict of interest with respect to Employee's duties and obligations
to the Company.
(e) Non-Interference. While employed by the Company, and for one (1)
year thereafter, Employee shall not in any way undertake to harm, injure or
disparage the Company, its officers, directors, employees, agents, affiliates,
vendors, products, or customers, or their successors. Employee understands that
it is the policy of the Company that only the Chief Executive Officer, the
Senior Vice President, Global Press and Public Relations, and their specific
designees may speak to the press or media about the Company or its business, and
agrees not to interfere with the Company's press and public relations by
violating this policy.
8. TERMINATION.
(a) Termination At a Party's Convenience. Employee's employment
under this Restated Employment Agreement may be terminated by either party
hereto at its convenience at any time. In the event of a termination for a
party's convenience, Employee shall be entitled to receive (i) any compensation
accrued and unpaid as of the date of termination; and (ii) the immediate vesting
of all unvested stock options held by Employee as of the date of such
termination. In addition to the foregoing, and subject to the provisions of
Section 20, Employee shall be entitled to receive Special Severance equal to (i)
severance payments equal to Employee's then current salary, paid at the same
rate and on the same schedule as in effect at the time of termination, through
December 31, 2003; (ii) the payment of premiums owed for COBRA insurance
benefits through December 31, 2003; and (iii) no other severance.
(b) Termination by the Company for Substantial Cause. Employee's
employment under this Restated Employment Agreement may be terminated
immediately by the Company for substantial cause at any time. In the event of a
termination by the Company for substantial cause, Employee shall be entitled to
receive (i) any compensation accrued and unpaid as of the date of termination;
and (ii) no other severance. "Substantial cause" shall mean for purposes of this
subsection failure by Employee to substantially perform his or her duties,
material breach of this Restated Employment Agreement, or misconduct, including
but not limited to, dishonesty, theft, use or possession of illegal drugs during
work, and/or felony criminal conduct.
(c) Termination by Employee for Substantial Cause. Employee's
employment under this Restated Employment Agreement may be terminated
immediately by Employee for substantial cause at any time. In the event of a
termination by Employee for substantial cause, Employee shall be entitled to
receive (i) any compensation accrued and unpaid as of the date of termination;
and (ii) the immediate vesting of all unvested stock options held by Employee as
of the date of such termination. In addition to the foregoing, and subject to
the provisions of Section 20, Employee shall be entitled to receive Special
Severance equal to (i) severance payments equal to Employee's then current
salary, paid at the same rate and on the same schedule as in effect at the time
of termination, through December 31, 2003; (ii) the payment of premiums owed for
COBRA insurance benefits through December 31, 2003; and (iii) no other
severance. "Substantial cause" shall mean for purposes of this subsection a
material breach of this Restated Employment Agreement by the Company.
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(d) Termination Due to Permanent Disability. Subject to all
applicable laws, Employee's employment under this Restated Employment Agreement
may be terminated immediately by the Company in the event Employee becomes
permanently disabled. Permanent disability shall be defined as Employee's
failure to perform or being unable to perform all or substantially all of
Employee's duties under this Restated Employment Agreement for a continuous
period of more than six (6) months on account of any physical or mental
disability, either as mutually agreed to by the parties or as reflected in the
opinions of three qualified physicians, one of which has been selected by the
Company, one of which has been selected by Employee, and one of which has been
selected by the two other physicians jointly. In the event of a termination by
the Company due to Employee's permanent disability, Employee shall be entitled
to (i) any compensation accrued and unpaid as of the date of termination; (ii)
severance payments equal to Employee's then current salary, paid at the same
rate and on the same schedule as in effect at the time of termination, through
December 31, 2003; (iii) the immediate vesting of outstanding but unvested stock
options held by Employee as of such termination date in a prorated amount based
upon the number of days in the option vesting period that elapsed prior to
Employee's termination; (iv) the payment of premiums owed for COBRA insurance
benefits through December 31, 2003; and (v) no other severance. The Company
shall be entitled to take, as an offset against any amounts due pursuant to
subsections (i) and (ii) above, any amounts received by Employee pursuant to
disability or other insurance, or similar sources, provided by the Company.
(e) Termination Due to Death. Employee's employment under this
Restated Employment Agreement shall be terminated immediately by the Company in
the event of Employee's death. In the event of a termination due to Employee's
death, Employee's estate shall be entitled to (i) any compensation accrued and
unpaid as of the date of death; (ii) severance payments equal to Employee's then
current base salary, paid at the same rate and on the same schedule as in effect
at the time of death, through December 31, 2003, whichever is shorter; (iii) the
immediate vesting of outstanding but unvested stock options held by Employee as
of the date of death in a prorated amount based upon the number of days in the
option vesting period that elapsed prior to Employee's death; and (iv) no other
severance.
(f) Any severance payments shall be subject to usual and customary
employee payroll practices and all applicable withholding requirements. Except
for such severance pay and other amounts specifically provided pursuant to this
Section 8, Employee shall not be entitled to any further compensation, bonus,
damages, restitution, relocation benefits, or other severance benefits upon
termination of employment. The amounts payable to Employee pursuant to this
Section 8 shall not be treated as damages, but as severance compensation to
which Employee is entitled by reason of termination of employment under the
applicable circumstances. The Company shall not be entitled to set off against
the amounts payable to Employee hereunder any amounts earned by Employee in
other employment after termination of his or her employment with the Company
pursuant to this Restated Employment Agreement, or any amounts which might have
been earned by Employee in other employment had Employee sought such other
employment. The provisions of this Section 8 shall not limit Employee's rights
under or pursuant to any other agreement or understanding with the Company
regarding any pension, profit sharing, insurance or other employee benefit plan
of the Company to which Employee is entitled pursuant to the terms of such plan.
(g) Termination by Mutual Agreement of the Parties. Employee's
employment pursuant to this Restated Employment Agreement may be terminated at
any time upon the mutual agreement in writing of the parties. Any such
termination of employment shall have the consequences specified in such
agreement.
9. SURRENDER OF EQUIPMENT, BOOKS AND RECORDS. Employee understands and
agrees that all equipment, books, records, customer lists and documents
connected with the business of the Company and/or its affiliates are the
property of and belong to the Company. Under
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no circumstances shall Employee remove from the Company's facilities any of the
Company's and/or its affiliates' equipment, books, records, documents, lists or
any copies of the same without the Company's permission, nor shall Employee make
any copies of the Company's and/or its affiliates' books, records, documents or
lists for use outside the Company's offices except as specifically authorized by
the Company. Employee shall return to the Company and/or its affiliates all
equipment, books, records, documents and customer lists belonging to the Company
and/or its affiliates upon termination of Employee's employment with the
Company.
10. GENERAL RELATIONSHIP. Employee shall be considered an employee of the
Company within the meaning of all federal, state and local laws and regulations,
including, but not limited to, laws and regulations governing unemployment
insurance, workers' compensation, industrial accident, labor and taxes.
11. TRADE SECRETS AND CONFIDENTIAL INFORMATION.
(a) As used in this Restated Employment Agreement, the term "Trade
Secrets and Confidential Information" means information, whether written or
oral, not generally available to the public, regardless of whether it is
suitable to be patented, copyrighted and/or trademarked, which is received from
the Company and/or its affiliates, either directly or indirectly, including but
not limited to (i) concepts, ideas, plans and strategies involved in the
Company's and/or its affiliates' products, (ii) the processes, formulae and
techniques disclosed by the Company and/or its affiliates to Employee or
observed by Employee, (iii) the designs, inventions and innovations and related
plans, strategies and applications which Employee develops during the term of
this Restated Employment Agreement in connection with the work performed by
Employee for the Company and/or its affiliates; and (iv) third party information
which the Company and/or its affiliates has/have agreed to keep confidential.
(b) Notwithstanding the provisions of subsection 11(a), the term
"Trade Secrets and Confidential Information" does not include (i) information
which, at the time of disclosure or observation, had been previously published
or otherwise publicly disclosed; (ii) information which is published (or
otherwise publicly disclosed) after disclosure or observation, unless such
publication is a breach of this Restated Employment Agreement or is otherwise a
violation of contractual, legal or fiduciary duties owed to the Company, which
violation is known to Employee; or (iii) information which, subsequent to
disclosure or observation, is obtained by Employee from a third person who is
lawfully in possession of such information (which information is not acquired in
violation of any contractual, legal, or fiduciary obligation owed to the Company
with respect to such information, and is known by Employee) and who is not
required to refrain from disclosing such information to others.
(c) While employed by the Company, Employee will have access to and
become familiar with various Trade Secrets and Confidential Information.
Employee acknowledges that the Trade Secrets and Confidential Information are
owned and shall continue to be owned solely by the Company and/or its
affiliates. Employee agrees that Employee will not, at any time, whether during
or subsequent to Employee's employment by the Company and/or its affiliates, use
or disclose Trade Secrets and Confidential Information for any competitive
purpose or divulge the same to any person other than the Company or persons with
respect to whom the Company has given its written consent, unless Employee is
compelled to disclose it by governmental process. In the event Employee believes
that Employee is legally required to disclose any Trade Secrets or Confidential
Information, Employee shall give reasonable notice to the Company prior to
disclosing such information and shall assist the Company in taking such legally
permissible steps as are reasonable and necessary to protect the Trade Secrets
or Confidential Information, including, but not limited to, execution by the
receiving party of a non-disclosure agreement in a form acceptable to the
Company.
(d) The provisions of this Section 11 shall survive the termination
or expiration of this Restated Employment Agreement, and shall be binding upon
Employee in perpetuity.
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12. ASSIGNMENT OF RIGHTS.
(a) As used in this Restated Employment Agreement, "Designs,
Inventions and Innovations," whether or not they have been patented,
trademarked, or copyrighted, include, but are not limited to designs,
inventions, innovations, ideas, improvements, processes, sources of and uses for
materials, apparatus, plans, systems and computer programs relating to the
design, manufacture, use, distribution and management of the Company's and/or
its affiliates' products.
(b) As a material part of the terms and understandings of this
Restated Employment Agreement, Employee agrees to assign to the Company all
Designs, Inventions and Innovations developed, conceived and/or reduced to
practice by Employee, alone or with anyone else, in connection with the work
performed by Employee for the Company during Employee's employment with the
Company, regardless of whether they are suitable to be patented, trademarked
and/or copyrighted.
(c) Employee agrees to disclose in writing to the President and CEO
of the Company any Design, Invention or Innovation relating to the business of
the Company and/or its affiliates, which Employee develops, conceives and/or
reduces to practice in connection with any work performed by Employee for the
Company, either alone or with anyone else, while employed by the Company and/or
within twelve (12) months of the termination of employment. Employee shall
disclose all Designs, Inventions and Innovations to the Company, even if
Employee does not believe that he or she is required under this Restated
Employment Agreement, or pursuant to California Labor Code Section 2870, to
assign his or her interest in such Design, Invention or Innovation to the
Company. If the Company and Employee disagree as to whether or not a Design,
Invention or Innovation is included within the terms of this Restated Employment
Agreement, it will be the responsibility of Employee to prove that it is not
included.
(d) Pursuant to California Labor Code Section 2870, the obligation
to assign as provided in this Restated Employment Agreement does not apply to
any Design, Invention or Innovation to the extent such obligation would conflict
with any state or federal law. The obligation to assign as provided in this
Restated Employment Agreement does not apply to any Design, Invention or
Innovation that Employee developed entirely on Employee's own time without using
the Company's equipment, supplies, facilities or Trade Secrets and Confidential
Information except those Designs, Inventions or Innovations that either:
(i) Relate at the time of conception or reduction to practice
to the Company's and/or its affiliates' business, or actual or demonstrably
anticipated research of the Company and/or its affiliates; or
(ii) Result from any work performed by Employee for the
Company and/or its affiliates.
(e) Employee agrees that any Design, Invention and/or Innovation
which is required under the provisions of this Restated Employment Agreement to
be assigned to the Company shall be the sole and exclusive property of the
Company. Upon the Company's request, at no expense to Employee, Employee shall
execute any and all proper applications for patents, copyrights and/or
trademarks, assignments to the Company, and all other applicable documents, and
will give testimony when and where requested to perfect the title and/or patents
(both within and without the United States) in all Designs, Inventions and
Innovations belonging to the Company.
(f) The provisions of this Section 12 shall survive the termination
or expiration of this Restated Employment Agreement, and shall be binding upon
Employee in perpetuity.
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13. ASSIGNMENT. This Restated Employment Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and the successors and
assigns of the Company. Employee shall have no right to assign his rights,
benefits, duties, obligations or other interests in this Restated Employment
Agreement, it being understood that this Restated Employment Agreement is
personal to Employee.
14. ENTIRE UNDERSTANDING. This Restated Employment Agreement sets forth
the entire understanding of the parties hereto with respect to the subject
matter hereof, and no other representations, warranties or agreements whatsoever
as to that subject matter have been made by Employee or the Company. This
Restated Employment Agreement shall not be modified, amended or terminated
except by another instrument in writing executed by the parties hereto. This
Restated Employment Agreement replaces and supersedes any and all prior
understandings or agreements between Employee and the Company regarding
employment.
15. NOTICES. Any notice, request, demand, or other communication required
or permitted hereunder, shall be deemed properly given when actually received or
within five (5) days of mailing by certified or registered mail, postage
prepaid, to:
Employee: Xxx X. Xxxxxx
____________________________
____________________________
Company: Callaway Golf Company
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. XxXxxxxxx
Senior Executive Vice President, Chief Legal Officer
or to such other address as Employee or the Company may from time to time
furnish, in writing, to the other.
16. IRREVOCABLE ARBITRATION OF DISPUTES.
(A) EMPLOYEE AND THE COMPANY AGREE THAT ANY DISPUTE, CONTROVERSY OR
CLAIM ARISING HEREUNDER OR IN ANY WAY RELATED TO THIS RESTATED EMPLOYMENT
AGREEMENT, ITS INTERPRETATION, ENFORCEABILITY, OR APPLICABILITY, OR RELATING TO
EMPLOYEE'S EMPLOYMENT, OR THE TERMINATION THEREOF, THAT CANNOT BE RESOLVED BY
MUTUAL AGREEMENT OF THE PARTIES SHALL BE SUBMITTED TO BINDING ARBITRATION. THIS
INCLUDES, BUT IS NOT LIMITED TO, ALLEGED VIOLATIONS OF FEDERAL, STATE AND/OR
LOCAL STATUTES, CLAIMS BASED ON ANY PURPORTED BREACH OF DUTY ARISING IN CONTRACT
OR TORT, INCLUDING BREACH OF CONTRACT, BREACH OF THE COVENANT OF GOOD FAITH AND
FAIR DEALING, VIOLATION OF PUBLIC POLICY, VIOLATION OF ANY STATUTORY,
CONTRACTUAL OR COMMON LAW RIGHTS, BUT EXCLUDING WORKERS' COMPENSATION,
UNEMPLOYMENT MATTERS, OR ANY MATTER FALLING WITHIN THE JURISDICTION OF THE STATE
LABOR COMMISSIONER. THE PARTIES AGREE THAT ARBITRATION IS THE PARTIES' ONLY
RECOURSE FOR SUCH CLAIMS AND HEREBY WAIVE THE RIGHT TO PURSUE SUCH CLAIMS IN ANY
OTHER FORUM, UNLESS OTHERWISE PROVIDED BY LAW. ANY COURT ACTION INVOLVING A
DISPUTE WHICH IS NOT SUBJECT TO ARBITRATION SHALL BE STAYED PENDING ARBITRATION
OF ARBITRABLE DISPUTES.
(B) EMPLOYEE AND THE COMPANY AGREE THAT THE ARBITRATOR SHALL HAVE
THE AUTHORITY TO ISSUE PROVISIONAL RELIEF. EMPLOYEE AND THE COMPANY FURTHER
AGREE THAT EACH HAS THE RIGHT, PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE
SECTION 1281.8, TO APPLY TO A COURT FOR A PROVISIONAL REMEDY IN CONNECTION WITH
AN ARBITRABLE DISPUTE SO AS TO PREVENT THE ARBITRATION
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FROM BEING RENDERED INEFFECTIVE.
(C) ANY DEMAND FOR ARBITRATION SHALL BE IN WRITING AND MUST BE
COMMUNICATED TO THE OTHER PARTY PRIOR TO THE EXPIRATION OF THE APPLICABLE
STATUTE OF LIMITATIONS.
(D) THE ARBITRATION SHALL BE CONDUCTED PURSUANT TO THE PROCEDURAL
RULES STATED IN THE NATIONAL RULES FOR RESOLUTION OF EMPLOYMENT DISPUTES OF THE
AMERICAN ARBITRATION ASSOCIATION ("AAA"). THE ARBITRATION SHALL BE CONDUCTED IN
SAN DIEGO BY A FORMER OR RETIRED JUDGE OR ATTORNEY WITH AT LEAST 10 YEARS
EXPERIENCE IN EMPLOYMENT-RELATED DISPUTES, OR A NON-ATTORNEY WITH LIKE
EXPERIENCE IN THE AREA OF DISPUTE, WHO SHALL HAVE THE POWER TO HEAR MOTIONS,
CONTROL DISCOVERY, CONDUCT HEARINGS AND OTHERWISE DO ALL THAT IS NECESSARY TO
RESOLVE THE MATTER. THE PARTIES MUST MUTUALLY AGREE ON THE ARBITRATOR. IF THE
PARTIES CANNOT AGREE ON THE ARBITRATOR AFTER THEIR BEST EFFORTS, AN ARBITRATOR
FROM THE AMERICAN ARBITRATION ASSOCIATION WILL BE SELECTED PURSUANT TO THE
AMERICAN ARBITRATION ASSOCIATION NATIONAL RULES FOR RESOLUTION OF EMPLOYMENT
DISPUTES. THE COMPANY SHALL PAY THE COSTS OF THE ARBITRATOR'S FEES.
(E) THE ARBITRATION WILL BE DECIDED UPON A WRITTEN DECISION OF THE
ARBITRATOR STATING THE ESSENTIAL FINDINGS AND CONCLUSIONS UPON WHICH THE AWARD
IS BASED. THE ARBITRATOR SHALL HAVE THE AUTHORITY TO AWARD DAMAGES, IF ANY, TO
THE EXTENT THAT THEY ARE AVAILABLE UNDER APPLICABLE LAW(S). THE ARBITRATION
AWARD SHALL BE FINAL AND BINDING, AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT
HAVING COMPETENT JURISDICTION. EITHER PARTY MAY SEEK REVIEW PURSUANT TO
CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1286, ET SEQ.
(F) IT IS EXPRESSLY UNDERSTOOD THAT THE PARTIES HAVE CHOSEN
ARBITRATION TO AVOID THE BURDENS, COSTS AND PUBLICITY OF A COURT PROCEEDING, AND
THE ARBITRATOR IS EXPECTED TO HANDLE ALL ASPECTS OF THE MATTER, INCLUDING
DISCOVERY AND ANY HEARINGS, IN SUCH A WAY AS TO MINIMIZE THE EXPENSE, TIME,
BURDEN AND PUBLICITY OF THE PROCESS, WHILE ASSURING A FAIR AND JUST RESULT. THE
ARBITRATOR SHALL ALLOW REASONABLE DISCOVERY AS PROVIDED IN THE CALIFORNIA
ARBITRATION ACT, BUT SHALL CONTROL THE AMOUNT AND SCOPE OF DISCOVERY.
(G) THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE EXPIRATION OR
TERMINATION OF THE RESTATED EMPLOYMENT AGREEMENT, AND SHALL BE BINDING UPON THE
PARTIES.
THE PARTIES HAVE READ SECTION 16 AND IRREVOCABLY AGREE TO ARBITRATE ANY DISPUTE
IDENTIFIED ABOVE.
______ (EMPLOYEE) ______ (COMPANY)
17. MISCELLANEOUS.
(a) Headings. The headings of the several sections and paragraphs of
this Restated Employment Agreement are inserted solely for the convenience of
reference and are not a part of and are not intended to govern, limit or aid in
the construction of any term or provision hereof.
(b) Waiver. Failure of either party at any time to require
performance by the other of any provision of this Restated Employment Agreement
shall in no way affect that party's rights thereafter to enforce the same, nor
shall the waiver by either party of any breach of any provision hereof be held
to be a waiver of any succeeding breach of any provision or a waiver of the
provision itself.
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(c) Applicable Law. This Restated Employment Agreement shall
constitute a contract under the internal laws of the State of California and
shall be governed and construed in accordance with the laws of said state as to
both interpretation and performance.
(d) Severability. In the event any provision or provisions of this
Restated Employment Agreement is or are held invalid, the remaining provisions
of this Restated Employment Agreement shall not be affected thereby.
(e) Advertising Waiver. Employee agrees to permit the Company and/or
its affiliates, and persons or other organizations authorized by the Company
and/or its affiliates, to use, publish and distribute advertising or sales
promotional literature concerning the products of the Company and/or its
affiliates, or the machinery and equipment used in the manufacture thereof, in
which Employee's name and/or pictures of Employee taken in the course of
Employee's provision of services to the Company and/or its affiliates, appear.
Employee hereby waives and releases any claim or right Employee may otherwise
have arising out of such use, publication or distribution. This right shall
continue throughout the time Employee is employed by the Company, and shall
continue thereafter with respect to materials created and in use as of the last
day Employee is employed by the Company.
(f) Counterparts. This Restated Employment Agreement may be executed
in one or more counterparts which, when fully executed by the parties, shall be
treated as one agreement.
18. Release of Claims - General Release.
(a) In consideration for the Company's agreement to employ Employee
pursuant to this Restated Employment Agreement, which provides to Employee
certain benefits as compared with other options available to the Company under
the Employment Agreement, as assigned and amended, Employee hereby irrevocably
and unconditionally releases and forever discharges the Company, its
predecessors, successors, subsidiaries, affiliates and benefit plans, and each
and every past, present and future officer, director, employee, representative
and attorney of the Company, its, predecessors, successors, subsidiaries,
affiliates and benefit plans, and their successors and assigns (collectively
referred to herein as the "Releasees"), from any, every, and all charges,
complaints, claims, causes of action, and lawsuits of any kind whatsoever,
including, to the extent permitted under the law, all claims which Employee has
against the Releasees, or any of them, arising from or in any way related to
circumstances or events arising out of Employee's employment by the Company,
including, but not limited to, harassment, discrimination, retaliation, failure
to progressively discipline Employee, termination of employment, violation of
state and/or federal wage and hour laws, violations of any notice requirement,
violations of the California Labor Code, or breach of any employment agreement,
together with any and all other claims Employee now has against the Releasees,
through the date of execution of this Restated Employment Agreement. EMPLOYEE
ALSO SPECIFICALLY AGREES AND ACKNOWLEDGES THAT EMPLOYEE IS WAIVING ANY RIGHT TO
RECOVERY AGAINST RELEASEES BASED ON STATE OR FEDERAL AGE, SEX, PREGNANCY, RACE,
COLOR, NATIONAL ORIGIN, MARITAL STATUS, RELIGION, VETERAN STATUS, DISABILITY,
SEXUAL ORIENTATION, MEDICAL CONDITION OR OTHER ANTI-DISCRIMINATION LAWS,
INCLUDING, WITHOUT LIMITATION, TITLE VII, THE AMERICANS WITH DISABILITIES ACT,
THE CALIFORNIA FAIR HOUSING AND EMPLOYMENT ACT, THE AGE DISCRIMINATION IN
EMPLOYMENT ACT OF 1967, THE FAMILY MEDICAL RIGHTS ACT, THE CALIFORNIA FAMILY
RIGHTS ACT OR BASED ON THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OR THE WORKER
ADJUSTMENT AND RETRAINING NOTIFICATION ACT, ALL AS AMENDED, WHETHER SUCH CLAIM
BE BASED UPON AN ACTION FILED BY EMPLOYEE OR A GOVERNMENTAL AGENCY.
10
(b) Employee understands that rights or claims under the Age
Discrimination in Employment Act of 1967 (29 U.S.C. Section 621, et seq.) that
may arise after the date this Restated Employment Agreement is executed are not
waived. Nothing in this Restated Employment Agreement shall be construed to
prohibit the Employee from exercising his right to file a charge with the Equal
Employment Opportunity Commission or from participating in any investigation or
proceeding conducted by the Equal Employment Opportunity Commission.
(c) Employee understands and agrees that if Employee files such a
charge, the Company has the right to raise the defense that the charge is barred
by this Restated Employment Agreement.
(d) Although the Company grants no release of claims to Employee
pursuant to this Restated Employment Agreement, the Company acknowledges that as
of the effective date of this Restated Employment Agreement it is not aware of
or contemplating any claim or claims against Employee.
19. SUPERSEDES OLD EMPLOYMENT AGREEMENT. Employee and the Company
recognize that prior to the effective date of this Restated Employment Agreement
they were parties to the Employment Agreement, as assigned and amended. It is
the intent of the parties that as of the effective date of this Restated
Employment Agreement, this Restated Employment Agreement shall replace and
supersede the Employment Agreement entirely, that the Employment Agreement shall
no longer be of any force or effect except as to Sections 7, 12, 13, 15 and 18
thereof, and that to the extent there is any conflict between the Employment
Agreement and this Restated Employment Agreement, this Restated Employment
Agreement shall control and all agreements shall be construed so as to give the
maximum force and effect to the provisions of this Restated Employment
Agreement.
20. CONDITIONS ON SPECIAL SEVERANCE. Notwithstanding anything else to the
contrary, it is expressly understood that any obligation of the Company to pay
Special Severance pursuant to this Restated Employment Agreement shall be
subject to:
(a) Employee's continued compliance with the terms and conditions of
Sections 7(a), 7(b), 7(c), 7(e), 11, 12 and 16;
(b) Employee must not, whether as agent, consultant, holder of a
beneficial interest, creditor, or in any other capacity, engage in any business
which engages in competition with the businesses of the Company or any of its
affiliates, or have any interest in any person, firm, corporation, or venture
which competes with the businesses of the Company or any of its affiliates. For
purposes of this section, the ownership of interests in a broadly based mutual
fund shall not constitute ownership of the stocks held by the fund; and
(c) Employee must not, directly, indirectly, or in any other way,
disparage the Company, its officers or employees, vendors, customers, products
or activities, or otherwise interfere with the Company's press, public and media
relations.
(d) If employment is terminated pursuant to Section 8(a) of the
Restated Employment Agreement, payment of any and all Special Severance pursuant
to this Restated Employment Agreement is expressly conditioned upon Employee's
execution, without subsequent revocation, of a release in the form attached
hereto as Exhibit B, effective as of the date on which employment is terminated.
21. TRADE SECRETS OF OTHERS. It is the understanding of both the Company
and Employee that Employee shall not divulge to the Company any confidential
information of trade
11
secrets belonging to others, including Employee's former employers, nor shall
the Company seek to elicit from Employee any such information. Consistent with
the foregoing, Employee shall not provide to the Company, and the Company shall
not request, any documents or copies of documents containing such information.
IN WITNESS WHEREOF, the parties have caused this Restated Employment
Agreement to be executed effective the date first written above.
EMPLOYEE COMPANY
Callaway Golf Company,
a Delaware corporation
/s/ Xxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------------- -------------------------------
Xxx X. Xxxxxx Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
12
EXHIBIT A
TAX INDEMNIFICATION
Pursuant to Section 6 of Employee's Amended and Restated Executive Officer
Employment Agreement ("Section 6"), the Company agrees to indemnify Employee
with respect to certain excise tax obligations as follows:
1. Definitions. For purposes of Section 6 and this Exhibit A, the
following terms shall have the meanings specified herein:
(a) "Claim" shall mean any written claim (whether in the form of a
tax assessment, proposed tax deficiency or similar written notification) by the
Internal Revenue Service or any state or local tax authority that, if
successful, would result in any Excise Tax or an Underpayment.
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended.
All references herein to any section, subsection or other provision of the Code
shall be deemed to refer to any successor thereto.
(c) "Excise Tax" shall mean (i) any excise tax imposed by Section
4999 of the Code or any comparable federal, state or local tax, and (ii) any
interest and/or penalties incurred with respect to any tax described in 1(c)(i).
(d) Gross-Up Payment shall mean a cash payment as specified in
Section 2.
(e) "Overpayment" and "Underpayment" shall have the meanings
specified in Section 4.
(f) "Payment" shall mean any payment, benefit or distribution
(including, without limitation, cash, the acceleration of the granting, vesting
or exercisability of stock options or other incentive awards, or the accrual or
continuation of any other payments or benefits) granted or paid to or for the
benefit of Employee by the Company or by any person or persons whose actions
result in a Taxable Event (as defined in this Section), or by any person
affiliated with the Company or such person(s), whether paid or payable pursuant
to the terms of this Agreement or otherwise. Notwithstanding the foregoing, a
Payment shall not include any Gross-Up Payment required under Section 6 and this
Exhibit A
(g) "Taxable Event" shall mean any change in control or other event
which triggers the imposition of any Excise Tax on any Payment.
2. In the event that any Payment is determined to be subject to any Excise
Tax, then Employee shall be entitled to receive from the Company a Gross-Up
Payment in an amount such that, after the payment of all income taxes, Excise
Taxes and any other taxes imposed with respect to the Gross-Up Payment (together
with payment of all interest and penalties imposed with respect to any such
taxes), Employee shall retain a net amount of the Gross-Up Payment equal to the
Excise Tax imposed with respect to the Payments.
3. All determinations required to be made under Section 6 and this Exhibit
A, including, without limitation, whether and when a Gross-Up Payment is
required and the amount of such Gross-Up Payment, and the assumptions to be
utilized in arriving at such determinations, shall be made by the accounting
firm of Pricewaterhouse Coopers LLP or, if applicable, its successor as the
Company's independent auditor (the "Accounting Firm"). In the event that the
Accounting Firm is serving as accountant or auditor for the individual, entity
or group effecting the Taxable Event to
13
which a possible Gross-Up Payment is related, another nationally recognized
accounting firm that is mutually acceptable to the Company and Employee shall be
appointed to make the determinations required hereunder (which accounting firm
shall then be referred to as the Accounting Firm hereunder). The Accounting Firm
shall provide detailed supporting calculations to the Company and to Employee
regarding the amount of Excise Tax (if any) which is payable, and the Gross-Up
Payment (if any) required hereunder, with respect to any Payment or Payments,
with such calculations to be provided at such time as may be requested by the
Company but in no event later than fifteen (15) business days following receipt
of a written notice from Employee that there has been a Payment that may be
subject to an Excise Tax. All fees and expenses of the Accounting Firm shall be
borne solely by the Company. Any Gross-Up Payment as determined pursuant to
Section 6 and this Exhibit A shall be paid by the Company to Employee within
five (5) business days after receipt of the Accounting Firm's determination. If
the Accounting Firm determines that no Excise Tax is payable by Employee, the
Accounting Firm shall furnish Employee with a written opinion that failure to
disclose, report or pay the Excise Tax on Employee's federal or other applicable
tax returns will not result in the imposition of a negligence penalty,
understatement penalty or other similar penalty. All determinations by the
Accounting Firm shall be binding upon the Company and Employee in the absence of
clear and indisputable mathematical error. Following receipt of a Gross-Up
Payment as provided herein, Employee shall be obligated to properly and timely
report his Excise Tax liability on the applicable tax returns or reports and to
pay the full amount of Excise Tax with funds provided through such Gross-Up
Payment. Notwithstanding the foregoing, if the Company reasonably determines
that the Employee will be unable or otherwise may fail to make such Excise Tax
payment, the Company may elect to pay the Excise Tax to the Internal Revenue
Service and/or other applicable tax authority on behalf of the Employee, in
which case the Company shall pay the net balance of the Gross-Up Payment (after
deduction of such Excess Tax payment) to the Employee.
4. As a result of uncertainty in the application of Section 4999 of the
Code, it is possible that a Gross-Up Payment will not have been made by the
Company that should have been made (an "Underpayment") or that a Gross-Up
Payment is made that should not have been made (an "Overpayment"). In the event
that Employee is required to make a payment of any Excise Tax, due to an
Underpayment, the Accounting Firm shall determine the amount of Underpayment
that has occurred and any such Underpayment shall be promptly paid by the
Company to Employee in which case Employee shall be obligated to make a timely
payment of the full amount of the applicable Excise Tax to the applicable tax
authority, provided, however, the Company may elect to pay the Excise Tax to the
applicable tax authority on behalf of Employee consistent with the provisions of
Section 3, in which case the Company shall pay the net balance of the
Underpayment (after deduction of such Excise Tax payment) to Employee. In the
event that the Accounting Firm determines that an Overpayment has been made, any
such Overpayment shall be repaid by Employee to the Company within ninety (90)
days after written demand to Employee by the Company, provided, however, that
Employee shall have no obligation to repay any amount of the Overpayment that
has been paid to, and not recovered from, a tax authority, provided further,
however, in such event the Company may direct Employee to prosecute a claim for
a refund of such amount consistent with the principles set forth in Section 5.
5. Employee shall notify the Company in writing of any Claim. Such notice
(a) shall be given as soon as practicable, but in no event later than fifteen
(15) business days, following Employee's receipt of written notice of the Claim
from the applicable tax authority, and (b) shall include a compete and accurate
copy of the tax authority's written Claim or otherwise fully inform the Company
of the nature of the Claim and the date on which any payment of the Claim must
be paid, provided that Employee shall not be required to give notice to the
Company of facts of which the Company is already aware, and provided further
that failure or delay by Employee to give such notice shall not constitute a
breach of Section 6 or this Exhibit A except to the extent that the Company is
prejudiced thereby. Employee shall not pay any portion of a Claim prior to the
earlier of (a) the expiration of thirty (30) days following the date on which
Employee gives the foregoing notice to the
14
Company, (b) the date that any Excise Tax payment under the Claim is due, or (c)
the date the Company notifies Employee that it does not intend to contest the
Claim. If, prior to expiration of such period, the Company notifies Employee in
writing that it desires to contest the Claim, Employee shall:
(a) give the Company any information reasonably requested by the
Company relating to the Claim;
(b) take such action in connection with contesting the Claim as the
Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to the Claim by
an attorney selected and compensated by the Company who is reasonably acceptable
to Employee;
(c) cooperate with the Company in good faith in order to effectively
contest the Claim; and
(d) permit the Company to participate (at its expense) in any and
all proceedings and conferences pertaining to the Claim; provided, however, that
the Company shall bear and pay directly all costs and expenses (including,
without limitation, additional interest and penalties and attorneys' fees)
incurred in connection with any such contest, and shall indemnify and hold
Employee harmless, on an after-tax basis, for any Excise Tax or income tax
(including, without limitation, interest and penalties with respect thereto) and
all costs imposed or incurred in connection with such contests. Without
limitation upon the foregoing provisions of this Section 5, and except as
provided below, the Company shall control all proceedings concerning any such
contest and, at its sole option, may pursue or forego any and all administrative
appeals, proceedings, hearings and conferences with tax authorities pertaining
to the Claim. At the written request of the Company, and upon payment to
Employee of an amount at least equal to the Claim plus any additional amount
necessary to obtain the jurisdiction of the appropriate tribunal and/or court,
Employee shall pay the same and xxx for a refund or otherwise contest the Claim
in any permissible manner as directed by the Company. Employee agrees to
prosecute any contest of a Claim to a determination before any administrative
tribunal, in a court of initial jurisdiction and in one or more appellate
courts, as the Company shall determine, provided, however, that if the Company
requests Employee to pay the Claim and xxx for a refund, the Company shall
indemnify and hold Employee harmless, on an after-tax basis, from any Excise Tax
or income tax (including, without limitation, interest and penalties with
respect thereto) and costs imposed or incurred in connection with such contest
or with respect to any imputed income attributable to any advances or payments
by the Company hereunder. Any extension of the statute of limitations relating
to assessment of any Excise Tax for the taxable year of Employee which is the
subject of a Claim is to be limited solely to the Claim. Furthermore, the
Company's control of a contest as provided hereunder shall be limited to issues
for which a Gross-Up Payment would be payable hereunder, and Employee shall be
entitled to settle or contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other tax authority.
6. If Employee receives a refund from a tax authority of all or any
portion of an Excise Tax paid by or on behalf of Employee with amounts advanced
by the Company pursuant to Section 6 and this Exhibit A, Employee shall promptly
pay to the Company the amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). Employee shall, if so directed
by the Company, file and otherwise prosecute a claim for refund of any Excise
Tax payment made by or on behalf of Employee with amounts advanced by the
Company pursuant to Section 6 and this Exhibit A, with any such refund claim to
be effected in accordance with the principles set forth in Section 5. If a
determination is made that Employee shall not be entitled to any refund and the
Company does not notify Employee in writing of its intent to contest such denial
of refund prior to the expiration of thirty (30) days after such determination,
then Employee shall have no further obligation hereunder to contest such denial
or to repay to the Company the amount involved in such unsuccessful refund
claim. The amount of any advances which are made by the Company in
15
connection with any such refund claim hereunder, to the extent not refunded by
the applicable tax authority to Employee, shall offset, as appropriate
consistent with the purposes of Section 6 and this Exhibit A, the amount of any
Gross-Up Payment required hereunder to be paid by the Company to Employee.
16
EXHIBIT B
RELEASE OF CLAIMS - GENERAL RELEASE
This Release of Claims - General Release ("Release") is effective as of
the date provided for in section 10 below, and is made by and between XXX X.
XXXXXX ("Employee") and CALLAWAY GOLF COMPANY (the "Company"), a Delaware
corporation. It is entered into in light of the fact that effective _________,
Employee's employment with the Company will terminate pursuant to the terms of
the Amended and Restated Executive Officer Employment Agreement entered into
effective October 1, 2002 (the "Restated Employment Agreement").
1. Consideration. In consideration for the Special Severance made
available to Employee pursuant to the Restated Employment Agreement, Employee
agrees to the terms and provisions set forth in this Release.
2. Release.
(a) Employee hereby irrevocably and unconditionally releases and
forever discharges the Company, its predecessors, successors, subsidiaries,
affiliates and benefit plans, and each and every past, present and future
officer, director, employee, representative and attorney of the Company, its,
predecessors, successors, subsidiaries, affiliates and benefit plans, and their
successors and assigns (collectively referred to herein as the "Releasees"),
from any, every, and all charges, complaints, claims, causes of action, and
lawsuits of any kind whatsoever, including, to the extent permitted under the
law, all claims which Employee has against the Releasees, or any of them,
arising from or in any way related to circumstances or events arising out of
Employee's employment by the Company, including, but not limited to, harassment,
discrimination, retaliation, failure to progressively discipline Employee,
termination of employment, violation of state and/or federal wage and hour laws,
violations of any notice requirement, violations of the California Labor Code,
or breach of any employment agreement, together with any and all other claims
Employee now has or may have against the Releasees through and including
Employee's date of termination from the Company. EMPLOYEE ALSO SPECIFICALLY
AGREES AND ACKNOWLEDGES THAT EMPLOYEE IS WAIVING ANY RIGHT TO RECOVERY AGAINST
RELEASEES BASED ON STATE OR FEDERAL AGE, SEX, PREGNANCY, RACE, COLOR, NATIONAL
ORIGIN, MARITAL STATUS, RELIGION, VETERAN STATUS, DISABILITY, SEXUAL
ORIENTATION, MEDICAL CONDITION OR OTHER ANTI-DISCRIMINATION LAWS, INCLUDING,
WITHOUT LIMITATION, TITLE VII, THE AMERICANS WITH DISABILITIES ACT, THE
CALIFORNIA FAIR HOUSING AND EMPLOYMENT ACT, THE AGE DISCRIMINATION IN EMPLOYMENT
ACT OF 1967, THE FAMILY MEDICAL RIGHTS ACT, THE CALIFORNIA FAMILY RIGHTS ACT OR
BASED ON THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OR THE WORKER ADJUSTMENT
AND RETRAINING NOTIFICATION ACT, ALL AS AMENDED, WHETHER SUCH CLAIM BE BASED
UPON AN ACTION FILED BY EMPLOYEE OR A GOVERNMENTAL AGENCY.
(b) Employee understands that rights or claims under the Age
Discrimination in Employment Act of 1967 (29 U.S.C. Section 621, et seq.) that
may arise after the date this Release is executed are not waived. Nothing in
this Release shall be construed to prohibit Employee from exercising Employee's
right to file a charge with the Equal Employment Opportunity Commission or from
participating in any investigation or proceeding conducted by the Equal
Employment Opportunity Commission.
(c) Employee understands and agrees that if Employee files such a
charge, the Company has the right to raise the defense that the charge is barred
by this Release.
17
3. Employee also waives all rights under section 1542 of the Civil Code of
the State of California. Section 1542 provides as follows:
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.
4. Governing Law. This Release shall be construed and enforced in
accordance with the internal laws of the State of California.
5. Binding Effect. This Release shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns.
6. IRREVOCABLE ARBITRATION OF DISPUTES.
(A) EMPLOYEE AND THE COMPANY AGREE THAT ANY DISPUTE, CONTROVERSY OR
CLAIM ARISING HEREUNDER OR IN ANY WAY RELATED TO THIS RELEASE, ITS
INTERPRETATION, ENFORCEABILITY, OR APPLICABILITY, OR RELATING TO EMPLOYEE'S
EMPLOYMENT, OR THE TERMINATION THEREOF, THAT CANNOT BE RESOLVED BY MUTUAL
AGREEMENT OF THE PARTIES SHALL BE SUBMITTED TO BINDING ARBITRATION. THIS
INCLUDES, BUT IS NOT LIMITED TO, ALLEGED VIOLATIONS OF FEDERAL, STATE AND/OR
LOCAL STATUTES, CLAIMS BASED ON ANY PURPORTED BREACH OF DUTY ARISING IN CONTRACT
OR TORT, INCLUDING BREACH OF CONTRACT, BREACH OF THE COVENANT OF GOOD FAITH AND
FAIR DEALING, VIOLATION OF PUBLIC POLICY, VIOLATION OF ANY STATUTORY,
CONTRACTUAL OR COMMON LAW RIGHTS, BUT EXCLUDING WORKERS' COMPENSATION,
UNEMPLOYMENT MATTERS, OR ANY MATTER FALLING WITHIN THE JURISDICTION OF THE STATE
LABOR COMMISSIONER. THE PARTIES AGREE THAT ARBITRATION IS THE PARTIES' ONLY
RECOURSE FOR SUCH CLAIMS AND HEREBY WAIVE THE RIGHT TO PURSUE SUCH CLAIMS IN ANY
OTHER FORUM, UNLESS OTHERWISE PROVIDED BY LAW. ANY COURT ACTION INVOLVING A
DISPUTE WHICH IS NOT SUBJECT TO ARBITRATION SHALL BE STAYED PENDING ARBITRATION
OF ARBITRABLE DISPUTES.
(B) EMPLOYEE AND THE COMPANY AGREE THAT THE ARBITRATOR SHALL HAVE
THE AUTHORITY TO ISSUE PROVISIONAL RELIEF. EMPLOYEE AND THE COMPANY FURTHER
AGREE THAT EACH HAS THE RIGHT, PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE
SECTION 1281.8, TO APPLY TO A COURT FOR A PROVISIONAL REMEDY IN CONNECTION WITH
AN ARBITRABLE DISPUTE SO AS TO PREVENT THE ARBITRATION FROM BEING RENDERED
INEFFECTIVE.
(C) ANY DEMAND FOR ARBITRATION SHALL BE IN WRITING AND MUST BE
COMMUNICATED TO THE OTHER PARTY PRIOR TO THE EXPIRATION OF THE APPLICABLE
STATUTE OF LIMITATIONS.
(D) THE ARBITRATION SHALL BE CONDUCTED PURSUANT TO THE PROCEDURAL
RULES STATED IN THE NATIONAL RULES FOR RESOLUTION OF EMPLOYMENT DISPUTES OF THE
AMERICAN ARBITRATION ASSOCIATION ("AAA"). THE ARBITRATION SHALL BE CONDUCTED IN
SAN DIEGO BY A FORMER OR RETIRED JUDGE OR ATTORNEY WITH AT LEAST 10 YEARS
EXPERIENCE IN EMPLOYMENT-RELATED DISPUTES, OR A NON-ATTORNEY WITH LIKE
EXPERIENCE IN THE AREA OF DISPUTE, WHO SHALL HAVE THE POWER TO HEAR MOTIONS,
CONTROL DISCOVERY, CONDUCT HEARINGS AND OTHERWISE DO ALL THAT IS NECESSARY TO
RESOLVE THE MATTER. THE PARTIES MUST MUTUALLY AGREE ON THE ARBITRATOR. IF THE
PARTIES CANNOT AGREE ON THE ARBITRATOR AFTER THEIR BEST EFFORTS, AN ARBITRATOR
FROM THE AMERICAN ARBITRATION ASSOCIATION WILL BE SELECTED PURSUANT TO THE
AMERICAN ARBITRATION ASSOCIATION NATIONAL RULES FOR RESOLUTION OF EMPLOYMENT
DISPUTES. THE COMPANY SHALL PAY THE COSTS OF THE ARBITRATOR'S FEES.
(G) THE ARBITRATION WILL BE DECIDED UPON A WRITTEN DECISION OF THE
ARBITRATOR
18
STATING THE ESSENTIAL FINDINGS AND CONCLUSIONS UPON WHICH THE AWARD IS BASED.
THE ARBITRATOR SHALL HAVE THE AUTHORITY TO AWARD DAMAGES, IF ANY, TO THE EXTENT
THAT THEY ARE AVAILABLE UNDER APPLICABLE LAW(S). THE ARBITRATION AWARD SHALL BE
FINAL AND BINDING, AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT HAVING
COMPETENT JURISDICTION. EITHER PARTY MAY SEEK REVIEW PURSUANT TO CALIFORNIA CODE
OF CIVIL PROCEDURE SECTION 1286, ET SEQ.
(F) IT IS EXPRESSLY UNDERSTOOD THAT THE PARTIES HAVE CHOSEN
ARBITRATION TO AVOID THE BURDENS, COSTS AND PUBLICITY OF A COURT PROCEEDING, AND
THE ARBITRATOR IS EXPECTED TO HANDLE ALL ASPECTS OF THE MATTER, INCLUDING
DISCOVERY AND ANY HEARINGS, IN SUCH A WAY AS TO MINIMIZE THE EXPENSE, TIME,
BURDEN AND PUBLICITY OF THE PROCESS, WHILE ASSURING A FAIR AND JUST RESULT. IN
PARTICULAR, THE PARTIES EXPECT THAT THE ARBITRATOR WILL LIMIT DISCOVERY BY
CONTROLLING THE AMOUNT OF DISCOVERY THAT MAY BE TAKEN (E.G., THE NUMBER OF
DEPOSITIONS OR INTERROGATORIES) AND BY RESTRICTING THE SCOPE OF DISCOVERY ONLY
TO THOSE MATTERS CLEARLY RELEVANT TO THE DISPUTE. HOWEVER, AT A MINIMUM, EACH
PARTY WILL BE ENTITLED TO AT LEAST ONE DEPOSITION AND SHALL HAVE ACCESS TO
ESSENTIAL DOCUMENTS AND WITNESSES AS DETERMINED BY THE ARBITRATOR.
(G) THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE EXPIRATION OR
TERMINATION OF THE RELEASE, AND SHALL BE BINDING UPON THE PARTIES.
THE PARTIES HAVE READ SECTION 6 AND IRREVOCABLY AGREE TO ARBITRATE ANY DISPUTE
IDENTIFIED ABOVE.
______ (EMPLOYEE) ______ (COMPANY)
7. Counterparts. This Release may be executed in one or more counterparts
which, when fully executed by the parties, shall be treated as one agreement.
8. Advice of Counsel. The Company hereby advises Employee in writing to
discuss this Release with an attorney before executing it. Employee further
acknowledges that the Company will provide Employee twenty-one (21) days within
which to review and consider this Release before signing it. Should Employee
decide not to use the full twenty-one (21) days, then Employee knowingly and
voluntarily waives any claims that he was not in fact given that period of time
or did not use the entire twenty-one (21) days to consult an attorney and/or
consider this Release.
9. Right to Revoke. The parties acknowledge and agree that Employee may
revoke this Release for up to seven (7) calendar days following Employee's
execution of this Release and that it shall not become effective or enforceable
until the revocation period has expired. The parties further acknowledge and
agree that such revocation must be in writing addressed to Xxxxxx X. XxXxxxxxx,
Senior Executive Vice President, Chief Legal Officer, of Callaway Golf Company
(at the address shown below) and received no later than midnight on the seventh
day following the execution of this Release by Employee. If Employee revokes
this Release under this section, it shall not be effective or enforceable, and
Employee will not receive the consideration described in section 1 above.
Xxxxxx X. XxXxxxxxx
Senior Executive Vice President, Chief Legal Officer
Callaway Golf Company
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
19
10. Effective Date. If Employee does not revoke this Release in the
timeframe specified in section 9 above, the Release shall become effective at
12:01 a.m. on the eighth day after it is fully executed by the parties.
11. Severability. In the event any provision or provisions of this Release
is or are held invalid, the remaining provisions of this Release shall not be
affected thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Release on the
dates set forth below, to be effective as of the date first written above.
EMPLOYEE COMPANY
CALLAWAY GOLF COMPANY,
a Delaware corporation
/s/ Xxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------------- -------------------------------
Xxx X. Xxxxxx Xxxxxx X. Xxxxxxx
Chairman of the Board,
President and Chief Executive Officer
Dated: Dated:
------------------------- ----------------------------
