EMPLOYMENT AGREEMENT
Exhibit 10.1
This Employment Agreement (the “Agreement”) is effective as of September 16, 2005 (the
“Effective Date”), and is entered into by and between Xxxxx X. Case (“Case”) and Xxxxxxxx, Inc., a
Delaware corporation (the “Company”).
1. Employment. As of the Effective Date, the Company hereby employs Case to serve in
the capacity of Executive Vice President, Chief Financial Officer and Treasurer (“EVP/CFO “). The
Company’s Board of Directors (the “Board”) and/or the Company’s Chief Executive Officer (the “CEO”)
may provide such additional designations of title to Case as the Board and/or CEO, in its
discretion, may deem appropriate.
Case agrees to perform the executive duties and functions customarily associated with the
offices of EVP/CFO and as specified from time to time by the Board and/or the CEO. Except for
legal holidays, vacations and absences due to temporary illness, Case shall devote his time,
attention and energies to the business of the Company on a full-time basis. Case represents and
warrants to the Company that he is under no restriction, limitation or other prohibition to perform
his duties as described herein.
2. Employment Compensation And Benefits.
a. Base Salary. Case’s initial base salary shall be at the annual rate of
three hundred thousand dollars ($225,000). This salary level shall be reviewed at least
annually by the Board’s Compensation Committee on the basis of Case’s performance and the
Company’s financial success and progress.
b. Annual Bonus and Stock Options. Case will be entitled to receive an option
for a minimum of 20,000 shares fiscal year 2005 granted on the date the agreement is signed
and vesting on the first anniversary of the date of grant. Case will also be eligible to
earn an annual bonus up to a maximum of 50% of Base Salary based on the Company achieving
certain financial targets. The annual bonus will be paid following the close of final
accounting records for the previous fiscal year.
c. Automobile Allowance. The Company shall pay Case an automobile expense
allowance of one thousand dollars ($1,000) per month to defray the cost of business
automobile expense.
d. Vacation. Case shall be entitled to annual vacations in a manner
commensurate with his status as a key executive and in accordance with the Company’s
vacation policies in effect during the term of this Agreement.
e. Expense Reimbursement. The Company shall reimburse Case for all reasonable
amounts actually expended by Case in the course of performing his duties for the Company and
in accordance with any Company-established guidelines where Case tenders receipts or other
documentation reasonably substantiating the amounts as required by the Company.
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f. Other Benefits. Except as otherwise provided in this Agreement, Case shall
be entitled to receive all of the rights, benefits and privileges of an executive officer of
the Company under any retirement, pension, profit-sharing, group medical insurance, group
dental insurance, group-term life insurance, and disability insurance, and other employee
benefit plans which may be now in effect or hereafter adopted.
3. Non-compete. Case agrees that during the term of this Agreement Case will not,
directly or indirectly, own, manage, operate, control, be employed by, participate in, or be
connected in any manner with the ownership, management, operation, or control of any business which
manufactures or sells golf-inspired sportswear which is substantially the same as that of the
Company and which is distributed in the same channels of distribution as the then current channels
of distribution of the Company, provided, however, that if Case’s employment is terminated for
reasons which provide for severance compensation, the non-compete term shall be extended to the
period for which he receives such severance compensation.
4. Termination.
a. At Will. The Company shall employ Case at will, and either Case or the
Company may terminate Case’s employment with the Company at any time and for any reason,
with or without cause.
x. Xxxxxxxxx Payment and Benefits. If Case’s employment is terminated within
two (2) years of the effective date of this Agreement as a result of a Qualifying
Termination, as defined below, and if Case delivers a fully executed release and waiver of
all claims against the Company in the form attached hereto as Exhibit A, then, upon
expiration of any applicable revocation period contained in the Release Agreement, the
Company shall pay or provide Case the following severance payment and benefits:
i. Case shall receive the equivalent of twelve (12) months of his then-current base
salary (the “Severance Payment”), which shall be payable in equal monthly installments
beginning on the first day of the first full month following Case’s Qualifying
Termination and continuing on the first day of each month thereafter until fully paid.
The Severance Payment is in lieu of any severance payment benefits which otherwise may
at that time be available under the Company’s applicable policies; provided,
however, that nothing in this Agreement is intended to modify or supercede the
Agreement re: Change In Control entered into between Case and the Company as of
September 16, 2005, and Case shall be entitled to receive whatever additional severance
pay benefits, if any, for which he may qualify according to the terms of his Agreement
re: Change In Control with the Company.
ii. For the twelve-month period following the Qualifying Termination of his
employment, Case shall be entitled to continue to participate in the following executive
benefit programs which had been made available to him (including his family) before the
Qualifying Termination: group medical insurance, group dental insurance, group-term life
insurance, and disability insurance. The programs shall be continued in the same way
and at the same level as immediately prior to the Qualifying Termination. Case’s
participation in each of such executive benefit programs shall be earlier terminated or
reduced, as applicable, if and to the extent Case receives benefits as a result of
concurrent coverage through another program.
iii. Case’s unvested stock options, as described in Paragraph 2(b) of this
Agreement, shall immediately become fully vested and exercisable. This provision
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only applies to stock options Case has been granted pursuant to this Agreement, and
does not apply to options provided from any other source or Xxxxxxxx.
c. Qualifying Termination. Case’s termination shall be considered a “Qualifying
Termination” unless:
i. Case voluntarily terminates his employment with the Company and its affiliated
companies. Case, however, shall not be considered to have voluntarily
terminated his employment with the Company and its affiliated companies if he elects to
terminate his employment because his overall compensation plan is reduced or adversely
modified in any material respect or his authority or duties are materially changed. For
such purposes, Case’s authority or duties shall be considered to have been “materially
changed” if, without Case’s express and voluntary written consent, there is any
substantial diminution or adverse modification in his title, status, overall position,
or responsibilities.
ii. The termination is on account of Case’s death or Disability. For such
purposes, “Disability” shall mean a physical or mental incapacity as a result of which
Case becomes unable to continue the performance of his responsibilities for the Company
and its affiliated companies for a period of three (3) months.
iii. Case is involuntarily terminated for “Cause.” For this purpose, “Cause” shall
mean:
1. Case’s willful and deliberate refusal to comply with a lawful, instruction
of the CEO or Board of Directors, which refusal is not remedied by Case within a
reasonable period of time after his receipt of written notice from the Company
identifying the refusal, so long as the instruction is consistent with the scope and
responsibilities of Case’s position;
2. Case’s act or acts of personal dishonesty;
3. Case’s conviction of a felony;
4. Case’s violation of the Company’s policies and/or code of conduct;
5. Case’s violation of any confidentiality or non-competition agreement with
the Company or any Affiliate of the Company; or
6. The willful engaging by Case in misconduct which is injurious to the
Company.
d. Return of Materials. In the event of any termination of Case’s employment
for any reason whatsoever, Case shall promptly deliver to the Company all Company property,
including, but not limited to, documents, data, and other information pertaining to
Confidential Information, as defined below. Case shall not take with him any documents or
other information, or any reproduction, summary or excerpt thereof, electronic or otherwise,
containing or pertaining to any Confidential Information.
5. Nondisclosure of Confidential Information. Case acknowledges that during the term
of his employment with the Company, he will have access to and become acquainted with information
of a confidential, proprietary or secret nature which is or may be either applicable to, or related
in any way to, the present or future business of the Company, the research and
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development or investigation of the Company, or the business of any customer of the Company
(“Confidential Information”). For example, Confidential Information includes, but is not limited
to, devices, secret inventions, processes and compilations of information, records, specifications,
designs, plans, proposals, software, codes, marketing and sales programs, financial projections,
cost summaries, pricing formula, and all concepts or ideas, materials or information related to the
business, products or sales of the Company and its customers and vendors. Case shall not disclose
any of Confidential Information, directly or indirectly, or use them in any way, either during the
term of this Agreement or at any time thereafter, except as required in the course of employment
with the Company. Case also agrees to comply with the Company’s policies and regulations, as
established from time to time for the protection of its Confidential Information, including, for
example, executing the Company’s standard confidentiality agreements. This section shall survive
termination of this Agreement.
6. Non-Solicitation. Case agrees that so long as he is employed by the Company and
for a period of two (2) years after termination of his employment for any reason, he shall not (a)
directly or indirectly solicit, induce or attempt to solicit or induce any Company employee to
discontinue his or her employment with the Company; (b) usurp any opportunity of the Company of
which Case became aware during his tenure at the Company or which is made available to him on the
basis of the belief that Case is still employed by the Company; or (c) directly or indirectly
solicit or induce or attempt to influence any person or business that is an account, customer or
client of the Company to restrict or cancel the business of any such account, customer or client
with the Company. This section shall survive termination of this Agreement.
7. Successors.
a. This Agreement is personal to Case, and without the prior written consent of the
Company shall not be assignable by Case other than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable by Case’s
legal representatives.
b. The rights and obligations of the Company under this Agreement shall inure to the
benefit of and shall be binding upon the successors and assigns of the Company.
8. Governing Law. This Agreement is made and entered into in the State of California,
and the internal laws of California shall govern its validity and interpretation in the performance
by the parties hereto of their respective duties and obligations hereunder.
9. Modifications. This Agreement may be amended or modified only by an instrument in
writing executed by all of the parties hereto.
10. Entire Agreement. Except as otherwise set forth herein, this Agreement, together
with the exhibits attached hereto, supersedes any and all prior written or oral agreements between
Case and the Company, and contains the entire understanding of the parties hereto with respect to
the terms and conditions of Case’s employment with the Company; provided, however,
that this Agreement is not intended to supercede the Agreement re: Change In Control between Case
and the Company, which they entered into as of September 16, 2005, or any agreements which Case may
previously have entered into regarding the protection of trade secrets and confidential
information.
11. Dispute Resolution. Case and the Company will utilize a system of binding
arbitration to resolve all disputes that may arise out of the employment context. Both the Company
and Case agree that any claim, dispute, and/or controversy that either Case may
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have against the Company (or its owners, directors, officers, managers, employees, agents, and
parties affiliated with its employee benefit and health plans) or the Company may have against
Case, arising from, related to, or having any relationship or connection whatsoever with Case’s
seeking employment with, employment by, or other association with the Company, shall be submitted
to and determined exclusively by binding arbitration under the Federal Arbitration Act, in
conformity with the procedures of the California Arbitration Act (Cal. Code Civ. Proc. sec 1280 et
seq., including section 1283.05 and all of the Act’s other mandatory and permissive rights to
discovery). Included within the scope of this Agreement are all disputes, whether based on tort,
contract, statute (including, but not limited to, any claims or discrimination and harassment,
whether they be based on the California Fair Employment and Housing Act, Title VII of the Civil
Rights Act of 1964, as amended, or any other state or federal law or regulation), equitable law, or
otherwise. However, nothing herein shall prevent Executive from filing and pursuing proceedings
before the California Department of Fair Employment and Housing, or the United States Equal
Employment Opportunity Commission (although if Case chooses to pursue a claim following the
exhaustion of such administrative remedies, that claim would be subject to the provisions of this
Agreement). In addition to any other requirements imposed by law, the arbitrator selected shall be
a retired California Superior Court Judge and shall be subject to disqualification on the same
grounds as would apply to a judge of such court. To the extent applicable in civil actions in
California courts, the following shall apply and be observed: all rules of pleading (including the
right of demurrer), all rules of evidence, and all rights to resolution of the dispute by means of
motions for summary judgment, judgment on the pleadings, and judgment under Code of Civil Procedure
Section 631.8. Resolution of the dispute shall be based solely upon the law governing the claims
and defenses pleaded, and the arbitrator may not invoke any basis (including but not limited to,
notions of “just cause”) other than such controlling law. The arbitrator shall have the immunity
of a judicial officer from civil liability when acting in the capacity of an arbitrator, which
immunity supplements any other existing immunity. Likewise, all communications during or in
connection with the arbitration proceedings are privileged in accordance with Cal. Civil Code
Section 47(b). As reasonably required to allow full use and benefit of this agreement’s
modification to the Act’s procedures, the arbitrator shall extend the times set by the Act for the
giving of notices and setting of hearings. Awards shall include the arbitrator’s written reasoned
opinion. Notwithstanding the foregoing, the parties acknowledge and agree that this provision
shall not preclude either party from requesting temporary and/or preliminary injunctive relief to
enforce Paragraphs 3, 5 or 6 of this Agreement until such time as an arbitrator can assume
jurisdiction and render a decision over any such claims or requests.
12. Notices. Any notice or communications required or permitted to be given to the
parties hereto shall be delivered personally or be sent by United States registered or certified
mail, postage prepaid and return receipt requested, and addressed or delivered as follows, or at
such other addresses the party addressed may have substituted by notice pursuant to this Section:
| Xxxxxxxx, Inc. | Xxxxx X. Case | |||
| 0000 Xxxxx Xxxxxx Xxxx | 0000 Xx Xxxxxx Xx. | |||
| Xxxxxxxx, Xxxxxxxxxx 00000 | Xxxxxxxxx, XX 00000 | |||
| Attn: President |
13. Captions. The captions of this Agreement are inserted for convenience and do not
constitute a part hereof.
14. Severability. In case any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity,
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illegality or unenforceability shall not affect any other provision of this Agreement, but
this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never
been contained herein and there shall be deemed substituted for such invalid, illegal or
unenforceable provision such other provision as will most nearly accomplish the intent of the
parties to the extent permitted by the applicable law. In case this Agreement, or any one or more
of the provisions hereof, shall be held to be invalid, illegal or unenforceable within any
governmental jurisdiction or subdivision thereof, this Agreement or any such provision thereof
shall not as a consequence thereof be deemed to be invalid, illegal or unenforceable in any other
governmental jurisdiction or subdivision thereof.
15. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which shall together constitute one in the same
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered effective as of the day and year first written above in Carlsbad, California.
| XXXXXXXX, INC. | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxx, Xx. | 10/18/05 | ||||
| Xxxxxxx X. Xxxxxx, Xx. | Date | |||||
| Title: CEO and President | ||||||
| XXXXX X. CASE | ||||||
| By: | /s/ Xxxxx X. Case | 10/18/05 | ||||
| Xxxxx X. Case | Date | |||||
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EXHIBIT A — RELEASE AGREEMENT
I, Xxxxx X. Case, hereby enter into this Release Agreement (this “Agreement”), pursuant to
Paragraph 4(b) of my Employment Agreement with Xxxxxxxx, Inc., a Delaware corporation (the
“Company”), in consideration for which the Company shall make the Severance Payment as described in
my Employment Agreement entered into effective as of September 16, 2005.
1. The date of my Qualifying Termination is , and I have received a final
paycheck for all wages due, including all accrued vacation, through that date. Other than the
Severance Payment as described in my Employment Agreement and whatever additional severance pay
benefits, if any, for which I may qualify according to the terms of my Agreement re: Change in
Control with the Company, the foregoing payments are the only amounts which I am entitled to
receive from the Company, and I hereby waive all other payments or claims for payments.
2. As consideration for the Severance Payment as described in my Employment Agreement, I
hereby release the Company, its successors, affiliates, directors, employees and agents from any
and all claims or lawsuits (including but not limited to any and all claims or demands relating to
salary, wages, bonuses, commissions, stock, stock options, vacation pay, fringe benefits, expense
reimbursements, any and all tort claims, contract claims (express or implied), wrongful termination
claims, public policy claims, whistleblower claims, implied covenant of good faith and fair dealing
claims, retaliation claims, personal injury claims, emotional distress claims, invasion of privacy
claims, defamation claims, fraud claims, attorneys’ fees claims, all claims arising under any
federal, state or other governmental statue, law, regulation or ordinance including, but not
limited to, Title VII of the Civil Rights Act of 1964, as amended, the Americans with Disabilities
Act, the Family and Medical Leave Act, the California Fair Employment & Housing Act, the California
Labor Code, the Age Discrimination in Employment Act of 1967 (“ADEA”), the Older Workers’ Benefit
Protection Act (“OWBPA”)) which I may have based either on my employment, my termination, or any
other event occurring prior to the date of this Agreement. This Release is intended to settle any
and all claims that I may have against the Company. Accordingly, I waive any and all rights
conferred under Section 1542 of the California Civil Code, which provides: “A general release does
not extend to claims which the creditor does not know or suspect to exist in his favor at the time
of executing the release which if known by him must have materially affected his settlement with
the debtor.”
3. I acknowledge and understand my continuing obligation (a) to maintain the confidentiality
of the Company’s trade secrets, confidential and proprietary information and (b) not to solicit the
Company’s customers or employees, as set forth in Paragraphs 3, 5 and 6 of my Employment Agreement.
I also warrant and represent that I have returned all Company materials as required in Paragraph
4(d) of my Employment Agreement.
4. I acknowledge that I fully understand my right to discuss this Agreement with an attorney,
and I have carefully read and fully understand this entire Agreement, and I am entering into this
Agreement voluntarily.
5. I understand that I shall have twenty-one (21) days from the date of receipt of this
Agreement to consider this Agreement, I shall have seven (7) days following the signing of this
Agreement to revoke it in writing, and this Agreement shall not be effective or enforceable until
this revocation period has expired.
| Dated: | XXXXX X. CASE | |||||
| By: | ||||||
| Dated: | XXXXXXXX, INC. | |||||
| By: | ||||||
| Title: | ||||||
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