Exhibit 10.47
EXECUTIVE OFFICER EMPLOYMENT AGREEMENT
This Executive Officer Employment Agreement ("Agreement") is entered
into as of July 13, 2000, by and between CALLAWAY GOLF COMPANY, a Delaware
corporation (the "Company"), and XXXX HOLIDAY ("Employee").
1. TERM. The Company hereby employs Employee and Employee
hereby accepts employment pursuant to the terms and provisions of this
Agreement for the period commencing August 15, 2000 and terminating December
31, 2002 unless this Agreement is earlier terminated as hereinafter provided.
Unless such employment is earlier terminated, upon the expiration of the term
of this Agreement, Employee's status shall be one of at will employment.
2. SERVICES.
(a) Employee shall serve as Executive Vice President and
Chief Financial Officer of the Company. Employee's duties shall be the usual
and customary duties of the offices in which he or she serves. Employee shall
report to the Chief Executive Officer or such other person as the Chief
Executive Officer shall designate. The Board of Directors and/or the Chief
Executive Officer of the Company may change Employee's title, position and/or
duties at any time.
(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.
3. SERVICES TO BE EXCLUSIVE. During the term hereof, Employee
agrees to devote his or her full productive time and best efforts to the
performance of Employee's duties hereunder pursuant to the supervision and
direction of the Company's Board of Directors and its Chief Executive Officer.
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. Nothing herein contained shall be deemed to
preclude Employee from having outside personal investments and involvement
with appropriate community activities, and 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.
4. COMPENSATION.
(a) The Company agrees to pay Employee a base salary at the
rate of $400,000.00 per year. Employee's base salary shall be reviewed, and
subject to increase but not decrease at the Company's discretion, as of
January 1, 2002.
(b) The Company shall provide Employee an opportunity to
earn an annual bonus based upon participation in the Company's Executive Bonus
Plan as it may or may not exist from time to time. Employee acknowledges that
all bonuses are discretionary, that the current Executive Bonus Plan does not
include any nondiscretionary bonus plan, and that the Company does not
contemplate establishing any nondiscretionary bonus plan applicable to
Employee. For purposes of a bonus for the calendar year 2000, Employee shall
be treated as if he worked for the Company for the entire year.
5. EXPENSES AND BENEFITS.
(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 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. During Employee's employment with the Company
pursuant to this Agreement, 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 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. The Company shall pay the reasonable
cost of initiation associated with Employee gaining privileges at a mutually
agreed upon country club. Employee shall be responsible for all other
expenses and costs associated with such club use, including monthly member
dues and charges. The club membership itself shall belong to and be the
property of the Company, not Employee.
(f) SIGNING BONUS. Company shall pay Employee a one-time
signing bonus of $200,000.00, which is to be paid to Employee on the date
Employee actually commences employment pursuant to this Agreement.
(g) STOCK OPTIONS. Pursuant to a separate stock option
agreement, and subject to the approval of the Stock Option Committee of the
Board of Directors, the Company shall provide to Employee options to purchase
up to 200,000 shares of the Common Stock of the Company in accord with the
following pricing and vesting schedule ("Start Date" means the date on which
Employee actually commences employment with the Company):
SHARES VESTING DATE PRICE
------ ------------ -----------------------------------------
100,000 December 31, 2001 Base Price (the closing price on the NYSE
on Start Date, as reported in the Wall
Street Journal)
100,000 December 31, 2002 Base Price
All shares of stock that are issuable upon the exercise of such options granted
to Employee shall be registered as promptly as possible with the Securities
and Exchange Commission, and shall be approved for listing on the New
York Stock Exchange upon notice of issuance.
(h) RELOCATION EXPENSES. The Company will reimburse
Employee for actual, normal and reasonable expenses incurred in connection
with the relocation of Employee's principal residence to San Diego County,
California, including, but not limited to, the actual, normal and reasonable
costs of moving household goods (both from his old residence to a temporary
residence and from the temporary residence to the new residence); temporary
housing costs; commission and closing costs associated with the sale of
Employee's old residence; carrying costs associated with the old residence,
including all expenses associated with maintaining Employee's old residence
until sold; and closing costs and commissions associated with the acquisition
of a new primary residence. It is understood that Employee's current employer
has advanced to Employee certain amounts to cover all or some of Employee's
relocation expenses, including payment to Employee of a $30,000.00 signing
bonus, and to the extent Employee is required to repay all or some of these
advances (including the signing bonus), such payments shall be reimbursable
pursuant to this section. To the extent any reimbursement of such expenses
pursuant to this section is subject to state or federal taxation imposed upon
Employee, the Company shall pay to Employee an additional amount (the
"Gross-Up Payment") such that after payment of all state and federal taxes on
the reimbursement and the Gross-Up Payment, Employee shall retain an amount
equal to the reimbursement. Employee shall fully and completely cooperate
with the Company with respect to all matters associated with the taxation or
potential taxation of reimbursements made pursuant to this section.
Notwithstanding anything else to the contrary, total reimbursement and
Gross-Up Payments pursuant to this provision shall not exceed $275,000.00.
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 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,
directly or indirectly (whether as agent, consultant, holder of a beneficial
interest, creditor, or in any other capacity), engage in any business or
venture which engages directly or indirectly 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 directly or indirectly 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 or her 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.
(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, or in any
other way exhibit an attitude of hostility toward them. Employee understands
that it is the policy of the Company that only the Chief Executive Officer,
the Vice President of Press, Public and Media 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 THE COMPANY'S CONVENIENCE. Employee's
employment under this Agreement may be terminated by the Company at its
convenience at any time. In the event of a termination by the Company for its
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 Special Severance equal to (i)
severance payments equal to Employee's former base salary at the same rate
and on the same schedule as in effect at the time of termination for a period
of time equal to the greater of the remainder of the term of this Agreement
or twelve (12) months from the date of termination; (ii) the payment of
premiums owed for COBRA insurance benefits for a period of time equal to
twelve (12) months from the date of termination; and (iii) no other severance.
(b) TERMINATION BY THE COMPANY FOR SUBSTANTIAL CAUSE.
Employee's employment under this 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,
breach of this 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 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 Special Severance
equal to (i) severance payments equal to Employee's former base salary at the
same rate and on the same schedule as in effect at the time of termination
for a period of time equal to the greater of the remainder of the term of
this Agreement or twelve (12) months from the date of termination; (ii) the
payment of premiums owed for COBRA insurance benefits for a period of time
equal to twelve (12) months from the date of termination; and (iii) no other
severance. "Substantial cause" shall mean for purposes of this subsection a
material breach of this Agreement by the Company.
(d) TERMINATION DUE TO PERMANENT DISABILITY. Subject to all
applicable laws, Employee's employment under this 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 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 former base salary at the same rate and on the
same schedule as in effect at the time of termination for a period of time
equal the greater of the remainder of the term of this Agreement or twelve
(12) months from the date of termination; (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 for a period of time
equal to twelve (12) months from the date of termination; 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 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
former base salary at the same rate and on the same schedule as in effect at
the time of death for a period of time equal to the greater of the remainder
of the term of this Agreement or
twelve (12) months from the date of death; (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
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 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.
(h) PRE-TERMINATION RIGHTS. The Company shall have the
right, at its option, to require Employee to vacate his or her office or
otherwise remain off the Company's premises and to cease any and all
activities on the Company's behalf without such action constituting a
termination of employment or a breach of this Agreement.
9. RIGHTS UPON A CHANGE IN CONTROL.
(a) If a Change in Control (as defined in Exhibit B hereto)
occurs before the termination of Employee's employment hereunder, then this
Agreement shall be extended (the "Extended Employment Agreement") in the same
form and substance as in effect immediately prior to the Change in Control,
except that the termination date, as specified pursuant to Section 1 of this
Agreement, shall be three (3) years from the effective date of the Change in
Control.
(b) Notwithstanding anything in this Agreement to the
contrary, if upon or at any time within one (1) year following any Change in
Control that occurs during the term of this Agreement there is a Termination
Event (as defined below), Employee shall be treated as if he or she had been
terminated for the convenience of the Company pursuant to Section 8(a), and
Employee shall be entitled to receive the same compensation and other
benefits and entitlements as are described in Section 8(a), as appropriate,
of this Agreement. Furthermore, the provisions of Section 8 shall continue to
apply during the term of the Extended Employment Agreement except that, in
the event of a conflict between Section 8 and the rights of Employee
described in this Section 9, the provisions of this Section 9 shall govern.
(c) A "Termination Event" shall mean the occurrence of any
one or more of the following, and in the absence of the Employee's permanent
disability (defined in Section 8(d)), Employee's death, and any of the
factors enumerated in Section 8(b) providing for termination by the Company
for substantial cause:
(i) the termination or material breach of this
Agreement by the Company;
(ii) a failure by the Company to obtain the
assumption of this Agreement by any successor to the Company or any assignee
of all or substantially all of the Company's assets;
(iii) any material diminishment in the title,
position, duties, responsibilities or status that Employee had with the
Company, as a publicly traded entity, immediately prior to the Change in
Control;
(iv) any reduction, limitation or failure to pay
or provide any of the compensation,
reimbursable expenses, stock options, incentive programs, or other benefits
or perquisites provided to Employee under the terms of this Agreement or any
other agreement or understanding between the Company and Employee, or
pursuant to the Company's policies and past practices as of the date
immediately prior to the Change in Control; or
(v) any requirement that Employee relocate or any
assignment to Employee of duties that would make it unreasonably difficult
for Employee to maintain the principal residence he or she had immediately
prior to the Change in Control.
10. 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 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 office 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.
11. 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.
12. TRADE SECRETS AND CONFIDENTIAL INFORMATION.
(a) As used in this 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 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 12(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 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 12 shall survive the
termination or expiration of this Agreement, and shall be binding upon
Employee in perpetuity.
13. ASSIGNMENT OF RIGHTS.
(a) As used in this 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, marketing, distribution and management of the
Company's and/or its affiliates' products.
(b) As a material part of the terms and understandings of
this 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 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 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 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
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 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 13 shall survive the
termination or expiration of this Agreement, and shall be binding upon
Employee in perpetuity.
14. ASSIGNMENT. This 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 Agreement, it being understood
that this Agreement is personal to Employee.
15. ATTORNEYS' FEES AND COSTS. If any arbitration or other
proceeding is brought for the enforcement of this Agreement, or because of an
alleged dispute or default in connection with any of its provisions, the
successful or prevailing party shall be entitled to recover reasonable
attorneys' fees incurred in such action or proceeding as provided in Section
18(f).
16. ENTIRE UNDERSTANDING. This 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 Agreement shall
not be modified, amended or terminated except by another instrument in writing
executed by the parties hereto. This Agreement replaces and supersedes any and
all prior understandings or agreements between Employee and the Company
regarding employment.
17. 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: Xxxx Holiday
00000 Xxxxxx Xxxx
Xxxxx, Xxxxxxxxxx 00000
Company: Callaway Golf Company
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxx X. XxXxxxxxx
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.
18. 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
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;
PROVIDED, HOWEVER, THAT THE PARTIES SHALL HAVE THE RIGHT TO SEEK PROVISIONAL
RELIEF IN AN ANCILLARY COURT ACTION IN CONNECTION WITH AN ARBITRABLE DISPUTE.
(b) ANY DEMAND FOR ARBITRATION SHALL BE IN WRITING AND MUST
BE COMMUNICATED TO THE OTHER PARTY WITHIN ONE (1) YEAR AFTER THE DISCOVERY OF
THE ALLEGED CLAIM OR CAUSE OF ACTION BY THE AGGRIEVED PARTY, OR, IF LATER,
WITHIN THE TIME PERIOD STATED IN THE APPLICABLE STATUTE OF LIMITATIONS.
(c) 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.
(d) THE ARBITRATION AWARD SHALL BE FINAL AND BINDING, AND
MAY BE ENTERED AS A JUDGMENT IN ANY COURT HAVING COMPETENT JURISDICTION. 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 TO
ONLY THOSE MATTERS CLEARLY RELEVANT TO THE DISPUTE. HOWEVER, AT A MINIMUM,
EACH PARTY WILL BE ENTITLED TO ONE DEPOSITION.
(e) THE PARTIES UNDERSTAND AND AGREE THAT THE ARBITRATOR
HAS NO AUTHORITY TO AWARD PUNITIVE DAMAGES.
(f) THE PREVAILING PARTY SHALL BE ENTITLED TO AN AWARD BY
THE ARBITRATOR OF REASONABLE ATTORNEYS' FEES AND OTHER COSTS REASONABLY
INCURRED IN CONNECTION WITH THE ARBITRATION, INCLUDING WITNESS FEES AND
EXPERT WITNESS FEES, UNLESS THE ARBITRATOR FOR GOOD CAUSE DETERMINES
OTHERWISE.
(g) THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE
EXPIRATION OR TERMINATION OF THE AGREEMENT, AND SHALL BE BINDING UPON THE
PARTIES.
THE PARTIES HAVE READ PARAGRAPH 18 AND IRREVOCABLY AGREE TO ARBITRATE ANY
DISPUTE IDENTIFIED ABOVE.
______ (EMPLOYEE) ______ (COMPANY)
19. MISCELLANEOUS.
(a) HEADINGS. The headings of the several sections and
paragraphs of this 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 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.
(c) APPLICABLE LAW. This 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 Agreement is or are held invalid, the remaining provisions of this
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.
(f) COUNTERPARTS. This Agreement may be executed in one or
more counterparts which, when fully executed by the parties, shall be treated
as one 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 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), 12, 13 and 18;
(b) Employee must not, directly or indirectly (whether as
agent, consultant, holder of a beneficial interest, creditor, or in any other
capacity), engage in any business which engages directly or indirectly in
competition with the businesses of the Company or any of its affiliates, or
have any interest, direct or indirect, in any person, firm, corporation, or
venture which directly or indirectly 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.
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 or trade 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 Agreement to be
executed effective the date first written above.
EMPLOYEE COMPANY
Callaway Golf Company,
a Delaware corporation
By:
---------------------------- ------------------------------
Xxxx Holiday Xxxxx Yash, President
EXHIBIT A
TAX INDEMNIFICATION
Pursuant to Section 6 of Employee's 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 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 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 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.
EXHIBIT B
CHANGE IN CONTROL
A "Change in Control" means the following and shall be deemed to
occur if any of the following events occurs:
1. Any person, entity or group, within the meaning of Section 13(d)
or 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act") but
excluding the Company and its affiliates and any employee benefit or stock
ownership plan of the Company or its affiliates and also excluding an
underwriter or underwriting syndicate that has acquired the Company's
securities solely in connection with a public offering thereof (such person,
entity or group being referred to herein as a "Person") becomes the
beneficial owner (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 30% or more of either the then outstanding shares of Common
Stock or the combined voting power of the Company's then outstanding
securities entitled to vote generally in the election of directors; or
2. Individuals who, as of the effective date hereof, constitute the
Board of Directors of the Company (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board of Directors of the
Company, provided that any individual who becomes a director after the
effective date hereof whose election, or nomination for election by the
Company's shareholders, is approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered to be a
member of the Incumbent Board unless that individual was nominated or elected
by any Person having the power to exercise, through beneficial ownership,
voting agreement and/or proxy, 20% or more of either the outstanding shares
of Common Stock or the combined voting power of the Company's then
outstanding voting securities entitled to vote generally in the election of
directors, in which case that individual shall not be considered to be a
member of the Incumbent Board unless such individual's election or nomination
for election by the Company's shareholders is approved by a vote of at least
two-thirds of the directors then comprising the Incumbent Board; or
3. Consummation by the Company of the sale or other disposition by
the Company of all or substantially all of the Company's assets or a
reorganization or merger or consolidation of the Company with any other
person, entity or corporation, other than
(a) a reorganization or merger or consolidation that would
result in the voting securities of the Company outstanding immediately prior
thereto (or, in the case of a reorganization or merger or consolidation that
is preceded or accomplished by an acquisition or series of related
acquisitions by any Person, by tender or exchange offer or otherwise, of
voting securities representing 5% or more of the combined voting power of all
securities of the Company, immediately prior to such acquisition or the first
acquisition in such series of acquisitions) continuing to represent, either
by remaining outstanding or by being converted into voting securities of
another entity, more than 50% of the combined voting power of the voting
securities of the Company or such other entity outstanding immediately after
such reorganization or merger or consolidation (or series of related
transactions involving such a reorganization or merger or consolidation), or
(b) a reorganization or merger or consolidation effected to
implement a recapitalization or reincorporation of the Company (or similar
transaction) that does not result in a material change in beneficial
ownership of the voting securities of the Company or its successor; or
4. Approval by the shareholders of the Company or an order by a
court of competent jurisdiction of a plan of liquidation of the Company.
CONTRACT SUMMARY
(REFER TO CONTRACT FOR ACTUAL TERMS AND PROVISIONS)
Term: Through 12/31/02
Title: Executive Vice President and Chief Financial Officer
Compensation: $400,000/year
Bonus: Discretionary (not pro-rated in 2000)
Benefits:
Vacation: Four (4) weeks paid vacation for each
twelve (12) month period of employment.
Insurance: Participate in the Company's health
insurance and disability insurance plans
as the same may be modified from time to
time; $1 million in term life insurance
coverage.
Retirement: Participate in the Company's 401(k)
pension plan; participate in the
Company's Executive Deferred Compensation
Plan.
Other: Participate in any other benefit plans
the Company provides from time to time to
senior executive officers.
Estate Planning: Limited reimbursement of estate planning
and related services (currently $5,000
per year).
Club Membership: The Company shall pay the reasonable cost
of initiation associated with Employee
gaining privileges at a mutually agreed
upon country club. Employee shall be
responsible for all other expenses and
costs associated with such club use,
including monthly member dues and
charges. The club membership itself shall
belong to and be the property of the
Company, not Employee.
Signing Bonus: $200,000.00.
Stock Options: 200,000 shares, vesting 100,000 shares on 12/31/01, and
100,000 on 12/31/02. Priced at closing price on date work is
commenced.
Relocation: Reimbursement for actual and reasonable expenses incurred,
including Gateway signing bonus of $30,000, with tax "gross
up" payment up to a maximum reimbursement, including "gross
up", of $275,000.00.
Severance:
Termination at the Company's Convenience:
Basic Severance: (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.
Special Severance: Subject to the provisions of
Section 20 (non-compete), (i)
base salary for the greater of
the remainder of the term of
this Agreement or twelve (12)
months; (ii) the payment of
premiums owed for COBRA
insurance benefits for a
period of time equal to twelve
(12) months from the date of
termination; and (iii) no other
severance.
Termination by the Company for Substantial Cause:
Basic Severance: (i) any compensation accrued and
unpaid as of the date of
termination.
Special Severance: None.
Termination By Employee for Substantial Cause:
Basic Severance: (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.
Special Severance: Subject to the
provisions of Section 20
(non-compete), (i) base salary
for the greater of the remainder
of the term of this Agreement or
twelve (12) months; (ii) the
payment of premiums owed for
COBRA insurance benefits for a
period of time equal to twelve
(12) months from the date of
termination; and (iii) no other
severance.
Termination Due to Permanent Disability:
Basic Severance: (i) any compensation accrued and
unpaid as of the date of
termination; (ii) base salary
for the greater of the remainder
of the term of this Agreement or
twelve (12) months; (iii) the
prorated vesting of unvested
stock options held by Employee
as of the date of such
termination; (iv)
the payment of premiums owed
for COBRA insurance benefits
for a period of time equal to
twelve (12) months from the
date of termination; and (v)
no other severance.
Special Severance: None.
Termination Due to Death:
Basic Severance: (i) any compensation accrued
and unpaid as of the date of
termination; (ii) base salary
for the greater of the
remainder of the term of this
Agreement or twelve (12) months;
(iii) the prorated vesting of
unvested stock options held by
Employee as of the date of such
termination; and (iv) no other
severance.
Special Severance: None.
Change In Control Rights, Including "Parachute Tax" Indemnification
Confidentiality/Trade Secrets Protection
Arbitration of Disputes
SEE CONTRACT FOR DETAILS, TERMS AND CONDITIONS.
