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EXHIBIT 10.61
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
BY AND BETWEEN
BRASSIE GOLF CORPORATION
AND
XXXXXX X. XXXXXXX
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement") is made
and entered into as of September 3, 1997, by and between BRASSIE GOLF
CORPORATION, a Delaware corporation (the "Company"), AND XXXXXX X. XXXXXXX
("Employee").
WHEREAS, the Company and Employee entered into an Employment Agreement
dated September 3, 1997; and
WHEREAS, the Company and the Employee wish to amend and restate the
Employment Agreement in its entirety.
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 Chairman and Chief Executive Officer of the
Company, all upon the terms and conditions set forth herein.
1.2 SERVICES. During the Term (as hereinafter defined) hereof, Employee
agrees to perform diligently and in good faith the duties of Chairman and Chief
Executive Officer of the Company under the direction of 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 Chairman and Chief Executive Officer
of the Company, as further outlined below.
1.3 LOCATION. The principal place of employment and the location of
Employee's principal offices shall be in Tampa, Florida and New York, New York;
provided, however, Employee shall temporarily perform outside of Tampa, Florida,
and New York, New York, such services as are reasonably required for the proper
execution of his duties under this Agreement.
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1.4 REPRESENTATIONS. Each party represents and warrants to the other that
he/it has full power and authority to enter into and perform this Agreement and
that his/its execution and performance of this Agreement shall not constitute a
default under or breach of any of the terms of any agreement to which he/it is a
party or under which he/it is bound. Each party represents that no consent or
approval of any third party is required for his/its execution, delivery and
performance of this Agreement or that all consents or approvals of any third
party required for his/its execution, delivery and performance of this Agreement
have been obtained.
1.5 SOLE DISCRETION. As the term "sole discretion" is used in this
Agreement, unless otherwise defined, it will be interpreted as the exercise of
reasonable discretion applying normal business practices to a contractual
relationship between a company and its chairman and chief executive officer.
ARTICLE II
TERM
2.1 TERM. The term of Employee's employment hereunder (the "Term") shall
commence as of the date hereof (the "Commencement Date") and shall continue
through the seventh anniversary of the Commencement Date (the "Scheduled
Termination Date") unless earlier terminated pursuant to the provisions of this
Agreement.
2.2 RENEWAL. This Agreement shall be renewed for successive one year terms
unless either party hereto provides written notice of non-renewal at least sixty
(60) 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 Twenty Thousand and 00/100 Dollars
($220,000.00), which base salary shall accrue monthly (prorated for periods less
than a month) and shall be paid in equal bimonthly installments, in arrears. The
base salary will be reviewed annually, or more frequently, as appropriate, by
the Board of Directors or the Compensation Committee of the Board of Directors,
as the case may be, in its sole discretion, provided that the annual base salary
shall not be decreased below Two Hundred Twenty-five Thousand and 00/100 Dollars
($225,000.00).
In addition to the above compensation, the Company shall deliver to
Employee Five Million (5,000,000) shares of common stock of the Company
(referred to as the "Stock") within thirty (30) days after the date of approval
by the Company's shareholders of an increase in the capital
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stock of the Company. In the event that such approval does not occur by March 1,
1999, the Company shall substitute other property (including cash) having a
value equivalent to what the Stock would have been valued at as of March 1,1999.
The Stock shall be subject to forfeiture by Employee in the event Employee's
employment by the Company is terminated for any reason, excluding death,
disability, or retirement, prior to March 1, 1999 ( referred to as the
Forfeiture Period"). In the event of such termination during the Forfeiture
Period, Employee shall immediately deliver to the Company the certificate(s)
representing the Stock, duly endorsed, and bearing all required documentary
stamps, and such other documents as shall be necessary and reasonably required
to conclude the transfer. The Stock shall bear a legend reflecting the
restrictions set forth herein.
3.2 INCENTIVE COMPENSATION. The Company shall pay Employee, during the Term
of this Agreement, an annual performance/incentive bonus which shall be
calculated as follows:
Fiscal Year
EBIT Bonus
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$0 - 1,000,000 Five Percent (5%) of Base Salary
$1,000,001 to $3,000,000 Fifteen Percent (15%) of Base Salary
$3,000,001 to $5,000,000 Thirty Percent (30%) of Base Salary
In excess of $5,000,001 Fifty Percent (50%) of Base Salary
3.3 BENEFITS. Employee shall be entitled, during the Term hereof, to the
same medical, hospital, dental and life insurance coverage and benefits as are
available to the Company's most senior executive officers on the Commencement
Date.
3.4 WITHHOLDING. Any and all amounts payable under this Agreement,
including, without limitation, amounts payable under this Article Ill 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 hereby agrees
to reimburse Employee, subject to the provisions of this Section 4.1, all of the
costs of Employee's maintaining an office in New York, New York, which costs are
currently estimated to be approximately $8,000 per month. The Company shall
promptly 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
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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 tune 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.
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 six (6) 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 sixty (60)
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 six (6) 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.
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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.
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.
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 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
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(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:
(a) By mutual agreement of the parties hereto; or
(b) At the election of the Company by its giving not less than
ninety (90) days written notice to Employee; or
(c) At the election of the Company by its giving not less than
ninety (90) 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
ninety (90) 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 sixty (60) days nor more than
one hundred twenty (120) 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
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hereof which shall be paid by the Company within sixty (60)
days of the date of termination; and
(c) Except as provided in Article XI, this Agreement shall
thereupon be of no further force and effect.
7.4 EFFECT OF TERMINATION WITHOUT CAUSE. If Employee's employment is
terminated Without Cause except pursuant to Section 7.2(d) or (e) hereof:
(a) Employee shall be entitled to accrued base salary under
Section 3.1 through the date of termination which shall be
paid by the Company within sixty (60) days of the date of
termination;
(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 conjunction with
any person, firm, partnership, corporation or other entity, own, manage,
control, join, or participate in the ownership, management, operation, or
control of, or be financially interested in or advise, lend money to, or be
employed by or provide consulting services to, or be connected in any manner
with any competitive business which is located within the United States of
America; provided, however, that Employee shall be permitted to own up to 5% of
the issued and outstanding shares of capital stock of any corporation which has
a class of equity securities registered under Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended.
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8.2 NON-INTERFERENCE. Employee agrees that during the Term hereof and, in
the case of a Termination For Cause or a Termination Without Cause pursuant to
Section 7.2(d) hereof, for a period of one (1) year thereafter, Employee will
not, directly, indirectly or as an agent on behalf of or in conjunction with any
person, firm, partnership, corporation or other entity, induce or entice any
employee of the Company to leave such employment or cause anyone else to do so.
8.3 SEVERABILITY. If any covenant or provision contained in this Article
VIII is determined to be void or unenforceable in whole or in part, it shall not
be deemed to affect or impair the validity of any other covenant or provision.
If, in any arbitral or judicial proceeding, a tribunal shall refuse to enforce
all of the separate covenants deemed included in this Article VIII, then such
unenforceable covenants shall be deemed eliminated from the provisions hereof
for the purpose of such proceedings to the extent necessary to permit the
remaining separate covenants to be enforced in such proceedings.
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 xxx, 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.
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10.2 NOTICES. Any notice to be given to the Company and Employee under the
terms of this Agreement may be delivered personally, by telecopy, telex or other
form of written electronic transmission, or by registered or certified mail,
postage prepaid, and shall be addressed as follows:
IF TO THE COMPANY: Brassie Golf Corporation
One Tampa City Center, Suite 2550
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: President
WITH A COPY TO: Xxxx X. Xxxxxx, Esquire
Annis, Mitchell, Xxxxxx, Xxxxxxx & Xxxxx, P.A.
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
IF TO EMPLOYEE: Xxxxxx X. Xxxxxxx
One Tampa City Center, Suite 2550
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Either party may hereafter notify the other in writing of any change in address.
Any notice shall be deemed duly given (i) when personally delivered, (ii) when
telecopied, telexed or transmitted by other form of written electronic
transmission (upon confirmation of receipt) or (iii) on the third day after it
is mailed by registered or certified mail, postage prepaid, as provided herein.
10.3 SEVERABILITY. The provisions of this Agreement are severable and if
any provision of this Agreement shall be held to be invalid or otherwise
unenforceable, in whole or in part, the remainder of the provisions, or
enforceable parts thereof, shall not be affected thereby.
10.4 SUCCESSORS AND ASSIGNS. The rights and obligations of the Company
under this Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the Company, including the survivor upon any merger,
consolidation, share exchange or combination of the Company with any other
entity. Employee shall not have the right to assign, delegate or otherwise
transfer any duty or obligation to be performed by him hereunder to any person
or entity.
10.5 ENTIRE AGREEMENT. This Agreement supersedes all prior and
contemporaneous agreements and understandings between the parties hereto, oral
or written, and may not be modified or terminated orally. No modification,
termination or attempted waiver shall be valid unless in writing, signed by the
party against whom such modification, termination or waiver is sought to be
enforced. This Agreement was the subject of negotiation by the parties hereto
and their counsel. The parties agree that no prior drafts of this Agreement
shall be admissible as evidence (whether in any arbitration or court of law) in
any proceeding which involves the interpretation of any provisions of this
Agreement.
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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 Agreement as of
the date first above written.
BRASSIE GOLF CORPORATION,
a Delaware corporation
By:
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President
EMPLOYEE
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Xxxxxx X. Xxxxxxx
