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EXHIBIT 10.66
EMPLOYMENT AGREEMENT
BY AND BETWEEN
BRASSIE GOLF CORPORATION
AND
XXXXXXXX X. XXXX
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
as of December 1, 1997, by and between BRASSIE GOLF CORPORATION, a Delaware
corporation (the "Company"), and XXXXXXXX X. XXXX ("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 President 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 President
of the Company under the direction of the Chairman and Chief Executive Officer
of the Company (the "Chairman and CEO".), 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 President 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 Chairman and CEO, 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 my 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 president.
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") and shall
continue through the fifth 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 an additional
five-year term 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 Two Hundred Fifty Thousand Dollars ($250,000),
which base salary shall accrue monthly (prorated for periods less than a month)
and shall be paid in equal bi-monthly 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 Two Hundred Fifty Thousand Dollars ($250,000.00).
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:
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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, including, without limitation, an indemnification agreement
in the form attached hereto as Exhibit A. Additionally, Employee shall be
entitled to reimbursement for all reasonable moving expenses incurred in
connection with Employee's relocation to Tampa, Florida.
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
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 time 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:
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(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 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 Five Hundred Thousand Dollars ($500,000)
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 con
unction 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
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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.
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:
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IF TO THE COMPANY:
Brassie Golf Corporation
One Tampa City Center, Suite 2550
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Chairman
WITH A COPY TO:
Xxxx X. Xxxxxx, Esquire
Annis, Mitchell, Xxxxxx, Xxxxxxx & Xxxxx, P.A.
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
IF TO EMPLOYEE:
Xxxxxxxx X. Xxxx
00 Xxx Xxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
WITH A COPY TO:
Xxxxxxx X. Xxxxxxxx, Xx., Esquire
Akerman, Senterfitt & Xxxxxx, P.A.
Citrus Center
000 Xxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxx, Xxxxxxx 00000-0000
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
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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.
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 XI
SURVIVAL
11.1 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.
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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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Xxxxxx X. Xxxxxxx, Chairman and
Chief Executive Officer
EMPLOYEE
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Xxxxxxxx X. Xxxx
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