Exhibit 10.41
EMPLOYMENT RETENTION AGREEMENT
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This Agreement is among AMF Bowling Worldwide, Inc. ("Worldwide"), AMF
Bowling Products, Inc. ("Products"), AMF Bowling Centers, Inc. ("US BCO"), AMF
Bowling Centers (Aust) International Inc. ("BCO Australia") and AMF Worldwide
Bowling Centers Holdings Inc. ("International BCO") (collectively, the
"Company") and ("Employee") and is effective November 9, 2000. The Company and
Employee agree as follows:
1. Purpose. The Company is in the business of (A) manufacturing and
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selling bowling equipment and (B) owning and operating bowling centers in the
United States and abroad. The Company has experienced difficulties in its
operations in recent years and has publicly announced that it will consider
options to restructure the outstanding debt of Worldwide (the "Restructuring").
Employee is a key member of the Company's management and has knowledge and
skills that are critical to the success of the Company and the proposed
Restructuring. The Company desires to retain Employee and obtain a commitment
from Employee to continue with the Company during the Restructuring.
Accordingly, the Company has offered Employee the benefits in this Agreement in
consideration of Employee's promises herein.
2. Employment. Subject to the terms and conditions of this Agreement,
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Employee agrees to continue in employment with the Company from the effective
date of this Agreement, as set forth above, to June 1, 2001 or, if later, the
"Consummation of the Restructuring" (as defined below); provided, however, that
the Employee shall in any event have the protections afforded under section 6.
Employee will perform the duties and responsibilities assigned to Employee by
the President and Chief Executive Officer of AMF Bowling Worldwide, Inc. (the
"CEO"). Employee will devote full attention, energy and time to the business and
Restructuring of the Company.
3. Base Salary. Employee's base salary will continue at its present rate,
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subject to increase as part of Employee's annual review or in the discretion of
the Company ("Base Salary"). The Company will pay the Base Salary monthly or at
such other intervals as it pays the base salaries of other employees. Effective
as of the date of any increase, the Base Salary as increased will be the new
Base Salary for all purposes of this Agreement and will not thereafter be
reduced.
4. Incentive Compensation. Employee will be entitled to receive the
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following incentive compensation:
(A) A retention bonus in an amount equal to ##% of Employee's
annualized Base Salary (the "Retention Bonus"). The Retention Bonus will be
payable in a single lump sum within ten (10) days following Consummation of the
Restructuring. However, if Consummation of the Restructuring does not occur by
June 1, 2001, ##% of the Retention Bonus will be paid to Employee in a single
lump sum on such date, and the remaining 50% of the Retention Bonus will be paid
in a single lump sum within
fifteen (15) days following Consummation of the Restructuring. Except as
provided in sections 6(A) and (C) below, Employee will not be entitled to
receive any payment of the Retention Bonus unless Employee is employed by the
Company on the date the Retention Bonus is paid.
(B) Employee will remain eligible to receive the incentive
compensation to which Employee is eligible under the 2000 Incentive Compensation
Plan. The CEO will establish a threshold under the 2000 Incentive Compensation
Plan to receive any incentive compensation based on consolidated EBITDA that
will apply to each employee in accordance with the terms of the AMF Bowling
Worldwide, Inc. Employee Bonus, Severance and Retention Program as approved by
the Board of Directors of Worldwide on November 9, 2000 (the "Retention
Program").
(C) Pursuant to the Retention Program, Employee will also be paid a
cash bonus in lieu of stock option grants in 2000 in an amount equal to ##% of
Employee's annualized Base Salary ("Option Bonus"). The Option Bonus will be
paid on March 31, 2001, subject only to Employee being employed by the Company
on that date except as provided in sections 6(A) and (C) below.
(D) For purposes of this Agreement, the term "Consummation of the
Restructuring" shall mean:
(i) the date a Plan of Reorganization of, or involving,
Worldwide, in accordance with Title 11 of the U.S. Code (S) 101 et. seq., that
has been confirmed by an order of a court of competent jurisdiction, becomes
effective in accordance with its terms, or
(ii) the effective date specified in any restructuring agreement
involving Worldwide that is not subject to judicial approval. For purposes of
this definition, "Worldwide" shall mean Worldwide and all of its direct and
indirect subsidiary corporations that file petitions for relief under the U.S.
Bankruptcy Code.
5. Termination of Employment. The Company may terminate Employee's
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employment at any time, with or without Cause (as defined below). Employee's
employment will terminate automatically upon Employee's death. The Company may
terminate Employee's employment because of Employee's Disability. "Disability"
means that Employee has been unable for a period of (a) ninety (90) consecutive
days or (b) an aggregate of 180 days in a period of 365 consecutive days, to
perform fully Employee's duties as a result of physical or mental illness or
injury. The Company may terminate Employee's employment for Disability by
written notice to Employee. The termination will be effective on the 30th day
after receipt of notice by Employee (the "Disability Date"), unless Employee
returns to full-time performance of Employee's duties before the Disability
Date. In the event of a dispute as to whether Employee has suffered a
Disability, a licensed physician selected by the Company will make the final
determination. For purposes of this Agreement, the term "Termination Date" will
mean the date of Employee's death, the Disability Date, or the date on which the
termination
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of Employee's employment either by the Company or by the Employee is effective,
as the case may be.
6. Company's Obligations Upon Termination.
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(A) Termination Without Cause or with Good Reason. If prior to the
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first anniversary of the Consummation of the Restructuring, either
(i) Employee terminates employment for Good Reason (as defined
in section 6(B) below): or
(ii) the Company terminates Employee's employment other than for
Cause. In either case, the Company will pay Employee the following amounts:
(a) Employee's accrued but unpaid Base Salary through the
Termination Date and any accrued but unpaid vacation pay through the Termination
Date (the "Accrued Salary"). The Accrued Salary shall be paid in a single lump
sum within fifteen (15) days following the Termination Date.
(b) Subject to Employee meeting the requirements of section
7 below, severance pay in an amount equal to twelve (12) months of Employee's
Base Salary ("Severance"). Severance shall be paid in a single lump sum within
fifteen (15) days following the Termination Date.
(c) If not previously paid, the Retention Bonus and Option
Bonus at such time as they would otherwise be payable under this Agreement.
(B) "Good Reason" means, without Employee's written consent:
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(i) any reduction in Employee's Base Salary;
(ii) the Company's requiring Employee to be based permanently in
a city or county other than the city or county at which Employee is based
immediately before executing this Agreement; or
(iii) the Company's failure to comply with any of its other
material obligations under this Agreement. Employee will provide the Company
with written notice of any of the reasons set forth in subsections (i) through
(iii). Such notice will specifically describe the reason or reasons that provide
Employee with Good Reason to terminate employment. The Company will have thirty
(30) days to cure the reasons described in Employee's notice. Employee may not
terminate employment for Good Reason as a result of any reason specified in
subsections (i) through (iii) if the Company reasonably cures the reason or
reasons within the thirty (30)-day period following receipt of Employee's
written notice.
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(C) Termination Due to Death or Disability. If the Employee dies or
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if the Company terminates Employee's employment due to Disability, the Company
will pay Employee or Employee's estate or legal representative, as applicable,
(i) Employee's Accrued Salary in a lump sum within fifteen
(15) days of the Termination Date, and
(ii) Employee's Retention Bonus and Option Bonus at such time
as they would otherwise be payable under this Agreement. Employee will not be
entitled to Severance.
(D) Voluntary Resignation. If Employee resigns from employment for
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other than Good Reason, the Company will pay the Employee Accrued Salary in a
single lump sum within fifteen (15) days of Employee's Termination Date.
Employee will not be entitled to Severance, the Retention Bonus or Option Bonus.
(E) Termination for Cause. The Company may terminate Employee's
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employment at any time for Cause if the CEO determines that Employee has:
(i) committed any act of fraud or gross negligence in the
course of Employee's employment,
(ii) willfully or deliberately failed to perform the material
duties of Employee's position, other than on account of a Disability,
(iii) intentionally refused to cause the Company to adhere to
any material provision of the operating budget or business plan adopted by CEO
or to any lawful and material direction or instruction of the CEO,
(iv) been convicted or pled guilty (or nolo contendere) to any
felony under the laws of the United States or any state thereof or any foreign
country to which Employee may be subject,
(v) engaged in gross misconduct, such as theft or
embezzlement, or a crime involving moral turpitude, which crime reflects poorly
on the image or reputation of the Company,
(vi) made a material misrepresentation at any time to the
Company, or
(vii) breached any of Employee's obligations hereunder or failed
to comply with a reasonable and lawful instruction of the CEO, which continues
for a period of five (5) days after Employee's receipt of written notice from
the CEO identifying the objectionable action or infraction by Employee. If there
is a termination for Cause, the Company will deliver to Employee a written
notice specifying the cause and the effective Termination Date. Upon termination
for cause, Employee will not be entitled to Severance, the Retention Bonus or
Option Bonus.
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(F) Termination Following One Year Anniversary of Consummation of the
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Restructuring. Notwithstanding any other provision in this Agreement, in the
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event the Employee's Termination Date follows the one (1) year anniversary of
the Consummation of the Restructuring, the Employee shall be provided severance
benefits in accordance with the provisions of the Company's general severance
policy, as in effect on the date hereof, had the Employee been covered under
such plan at the level commensurate with the Employee's position as of the
Termination Date. Other than with respect to benefits to which the Employee has
become entitled before such date, no Severance shall be payable under this
Agreement following the date which is one year from the Consummation of the
Restructuring.
7. Employee's Obligation Upon Termination.
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(A) Release. As a condition precedent to Employee's entitlement to
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receive Severance, Employee will release the Company and its officers, directors
and employees of and from any "Claims" (as defined in such release). The release
will be in the form attached hereto as Exhibit "A". The release contemplated in
this section will not release the Company from its obligations under this
Agreement or any obligation under its Charter or By Laws to indemnify Employee
as an officer or director of the Company.
(B) Confidentiality. During employment and following the Termination
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Date, except as required by law, Employee will not divulge any secret or
confidential information, knowledge or data relating to the Company or its
affiliates that is not public knowledge ("Confidential Information").
(C) Disparaging Remarks. During employment and for a period of two
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(2) years after the Termination Date, except as required by law, Employee will
not at any time make any disparaging, derogatory, negative or similar remarks,
comments or statements, in writing or otherwise, about or in any way in
reference to the Company, its products or services or its officers, directors,
employees or affiliates.
(D) Competition. During employment and the one (1) year period
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following any termination of employment with the Company (the "Restricted
Period"), Employee will not directly or indirectly participate in or permit his
or her name directly or indirectly to be used by or become associated with
(including as an advisor, representative, agent, independent contractor,
provider or personal services or otherwise) any person, corporation,
partnership, association or entity that is, or intends to be, engaged in any
business which is in competition with the Business (herein defined) of the
Company in any country in which the Company operates, competes or is engaged in
the Business or at such time intends so to operate, compete or become engaged in
such business ("Competitor").
(i) During the Restricted Period, Employee will not directly or
indirectly encourage (or solicit or assist any other person or firm in
encouraging or soliciting) any person, who was engaged in a business
relationship with the Company
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during the one year period preceding his or her termination of employment with
the Company, to engage in a business relationship with a Competitor.
(ii) During the Restricted Period, Employee will not directly or
indirectly induce any employee of the Company to terminate his or her employment
and will not directly or indirectly either individually or as owner, agent,
employee, consultant or otherwise, employ, offer employment or cause employment
to be offered to any person (including employment as an independent contractor)
who is or was employed by the Company unless such person will have ceased to be
so employed for a period of at least twelve (12) months.
(iii) Promptly following Employee's termination of employment,
Employee will return to the Company all property of the Company in Employee's
possession or under his or her control, including all Confidential Information
in whatever media it is maintained.
(iv) The term "Business" means the business of owning or
operating bowling centers, or manufacturing, distributing or selling bowling
equipment, products and accessories.
(v) Employee agrees that the Restricted Period and the covenants
and obligations of Employee with respect to non-competition, non-solicitation,
confidentiality, the property of the Company and the restricted territories (1)
are fair and reasonable and the result of negotiation and (2) relate to special,
unique and extraordinary matters and that a violation of any of their terms will
cause the Company irreparable injury for which adequate remedies are not
available at law. Therefore, Employee agrees that the Company will be entitled
to an injunction, restraining order or such other equitable relief as a court of
competent jurisdiction may deem necessary or appropriate to restrain Employee
from committing any violation of the covenants and obligations. These remedies
are cumulative and are in addition to any other rights and remedies the Company
may have at law or in equity. If at the time of enforcement, a court holds that
any restrictions are unreasonable under circumstances then existing, the parties
agree that the maximum period, scope, or geographical area legally permissible
under such circumstances will be substituted for the period, scope or area
stated herein.
8. No Personal Liability. No member of the Board of Directors of the
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Company or officer or employee of the Company shall be personally liable in the
event the Company is unable to make any payments under this Agreement due to a
lack of funding or financing, legal prohibition (including statutory or judicial
limitations) or failure to obtain any required consent.
9. Entire Agreement. This Agreement constitutes the entire understanding
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and agreement of the parties hereto regarding the subject matter hereof. This
Agreement supersedes all prior negotiations, discussions, correspondence,
communications, understandings and agreements between the parties relating to
the
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subject matter of this Agreement. Except as provided in section 6(F) of this
Agreement, receipt of Severance under this Agreement precludes the Employee's
receipt of severance benefits under the AMF Enhanced Severance Plan or any other
severance plan maintained by the Company.
10. Miscellaneous. This Agreement is personal to Employee and may not be
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assigned by Employee otherwise than by will or the laws of descent and
distribution. The Agreement shall be construed in accordance with the laws of
the Commonwealth of Virginia (without regard to the conflict of laws provisions
of any jurisdiction). The invalidity or unenforceability of any provision of
this Agreement will not affect the validity or enforceability of any other
provision of this Agreement. All amounts payable under this Agreement will be
paid in cash, subject to required income and payroll tax withholdings. All
notices and other communications will be in writing and will be given by hand
delivery to the other party or by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Employee:
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If to the Company:
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AMF Bowling Worldwide, Inc.
0000 XXX Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
IN WITNESS WHEREOF, the parties have executed this agreement as of the
first date set forth above.
By: _____________________________
Employee's Name
AMF Bowling Worldwide, Inc.
By: __________________________
Xxxxxxx X. Xxxx
Title: Executive President
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AMF Bowling Products, Inc.
By: __________________________
Xxxxxxx X. Xxxx
Title: Executive Vice President
AMF Bowling Centers, Inc.
By: __________________________
Xxxxxxx X. Xxxx
Title: President
AMF Bowling Centers (Aust) International Inc.
By: __________________________
Xxxxxxx X. Xxxx
Title: President
AMF Worldwide Bowling Centers Holdings Inc.
By: __________________________
Xxxxxxx X. Xxxx
Title: President
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EXHIBIT "A"
RELEASE OF ALL CLAIMS
This Release of All Claims (the "Release") is entered into by and
between ________________ ("Employee") and AMF Bowling Worldwide, Inc., AMF
Bowling Products, Inc., AMF Bowling Centers, Inc., AMF Bowling Centers (AUST)
International Inc. and AMF Worldwide Bowling Centers Holdings Inc.
(collectively, the "Companies"), effective as of date set forth on the signature
page hereto.
In consideration of the payments required to be made to Employee
pursuant to Section 6(a) the Employment Retention Agreement effective November
9, 2000 between Employee and the Companies (the "Retention Agreement") in the
event of termination of his or her employment with the Companies under the
circumstances described in Section 6 of the Retention Agreement, Employee and
the Companies agree as follows:
(1) Release and Waiver of Claims
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Employee, on behalf of himself or herself and his or her family, heirs,
executors, administrators, legal representatives and assigns (collectively
referred to in this Release as "Employee"), hereby unconditionally and
forever releases, discharges and waives any and all claims of any nature
whatsoever, whether legal, equitable or otherwise, which Employee may have
against the Companies, their subsidiaries and affiliates (including,
without limitation, their direct and indirect parent companies) and their
employees, officers, directors, stockholders, representatives and agents,
and any person or entity which may succeed to the rights and liabilities of
any such entities or persons by assignment or otherwise (collectively
referred to in this Release as the "Companies"), arising as a result of
events occurring at any time on or before the date of termination of
Employee's employment with the Companies (the "Termination Date"), other
than claims made with respect to any payments due to Employee pursuant to
Section 6(a) of the Retention Agreement. This Release is a release of all
claims of any nature whatsoever by Employee against the Companies, other
than with respect to any payments due to Employee pursuant to Section 6(a)
of the Retention Agreement or any other severance plan or policy in which
the Employee participates, and includes, other than as herein provided, any
and all claims, causes of action, obligations, damages, losses or
liabilities, whether known or unknown, both at law and in equity, including
those caused by, arising from or related to Employee's employment
relationship with the Companies, or separation or severance from
employment, including, without limitation, any and all alleged
discrimination or acts of discrimination which occurred or may have
occurred on or before the Termination Date based upon race, color, sex,
creed, national origin, age, disability or any other violation of any Equal
Employment Opportunity Law, ordinance, rule, regulation or order,
including, but not limited to, Title VII of
the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the
Age Discrimination in Employment Act, as amended (as further described in
Section 2 below); the Americans with Disabilities Act; claims under the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"); the
Family and Medical Leave Act of 1993 ("FMLA"); state workers' compensation
laws; or any other federal, state or local laws or regulations regarding
employment discrimination, employment or termination of employment. This
includes claims for wrongful discharge, fraud, or misrepresentation under
any statute, rule, regulation or under the common law.
Employee understands and knowingly agrees to this Release because it is his
or her intent in executing this Release to forever discharge the Companies
from any and all causes of action, foreseen or unforeseen, that may have
existed on or prior to the Termination Date, except for any payments due to
Employee pursuant to Section 6(a) of the Retention Agreement.
Notwithstanding anything in this Release to the contrary, Employee will
retain the right, after the Termination Date, to be indemnified from
liability to the extent required by the Companies' Charter and By-Laws and
applicable law for authorized actions taken in good faith as an employee,
officer and/or director, of the Companies, as the case may be.
Notwithstanding the foregoing, Employee does not release, discharge or
waive any rights to receive any wages due and owing, any benefits in
accordance with the provisions of any Company employee benefit plan in
which Employee participates, reimbursement for Company-related business
expenses incurred by Employee on or prior to the Termination Date and any
conversion rights under a Company-sponsored group term life insurance plan
in which Employee participates.
(2) Release and Waiver of Claims Under the Age Discrimination in Employment Act
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Employee acknowledges that the Companies have encouraged him or her to
consult with an attorney of his or her choosing, and through this Release
encourages him or her to consult with his or her attorney with respect to
possible claims under the Age Discrimination in Employment Act of 1967, as
amended ("ADEA"), as well as under the other federal, state and local laws
within the scope of Section 1 above, and that Employee acknowledges that he
or she understands that the ADEA is a federal statute that prohibits
discrimination on the basis of age, in employment, benefits, and benefit
plans. Employee wishes to waive any and all claims under the ADEA, as well
as under all other federal, state and local laws within the scope of
Section 1 above, that he or she may have, as of the Termination Date,
against the Companies and hereby waives such claims. Employee further
understands that by signing this Release he or she is in fact waiving,
releasing and forever giving up any claim under the ADEA, as well as all
other federal, state and local laws within the scope of Section 1 above,
that may have existed on or prior to the Termination Date. Employee
acknowledges that the consideration provided to him or her under the
Retention
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Agreement is in addition to anything of value to which Employee is already
entitled. Employee acknowledges that the Companies have informed him or her
that he or she has at his or her option, twenty-one (21) days in which to
sign this Release, and that by execution hereof he or she hereby knowingly
and voluntarily waives said twenty-one (21) day period. Employee also
understands that he or she has seven (7) days following the date on which
he or she executes this Release within which to revoke it by providing a
written notice of his or her revocation of the Release to the Companies at
[Address]; Attention:__________________________________.
(3) Proceedings
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Employee has not filed, and agrees not to initiate or cause to be initiated
on his or her behalf, any complaint, charge, claim or proceeding against
the Companies before any local, state or federal agency, court or other
body relating to his or her employment or the termination of his or her
employment, other than with respect to the obligations of the Companies to
Employee under Section 6(a) of the Retention Agreement (each individually,
a "Proceeding"), and agrees not to voluntarily participate in any
Proceeding. Employee waives any right he or she may have to benefit in any
manner from any relief (whether monetary or otherwise) arising out of any
Proceeding.
(4) Remedies
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In the event Employee initiates or voluntarily participates in any
Proceeding (other than any Proceeding in which Employee seeks indemnity
from liability to the extent provided in the Companies' Charter and By-Laws
and applicable law for authorized actions taken in good faith as an
employee, officer and/or director of the Companies), or if he or she fails
to abide by any of the terms of this Release, the Companies may, in
addition to any other remedies they may have, reclaim any amounts paid to
him or her under Section 6(a) of the Retention Agreement or terminate any
payments that are subsequently due under Section 6(a) of the Retention
Agreement, without waiving the Release granted herein. Employee
acknowledges and agrees that the remedy at law available to the Companies
for breach of any of his or her obligations under this Release would be
inadequate and that damages flowing from such a breach may not readily be
susceptible to being measured in monetary terms. Accordingly, Employee
acknowledges, consents and agrees that, in addition to any other rights or
remedies which the Companies may have at law, in equity or under this
Release, upon adequate proof of his or her violation of any such provision
of this Release, the Companies will be entitled to immediate injunctive
relief and may obtain a temporary order restraining any threatened or
further breach, without the necessity of proof of actual damage.
Employee understands that by entering into this Release he or she will be
limiting the availability of certain remedies that he or she may have
against the
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Companies and limiting also his or her ability to pursue certain claims
against the Companies.
(5) Severability Clause
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In the event any provision or part of this Release is found to be invalid
or unenforceable, only that particular provision or part so found, and not
the entire Release, will be inoperative.
(6) Non-Admission
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Nothing contained in this Release will be deemed or construed as an
admission of wrongdoing or liability on the part of the Companies.
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(7) Governing Law
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This Release shall be governed by and construed in accordance with federal
law and the laws of the state in which Employee was principally employed by
the Companies as of the Termination Date applicable to releases made and to
be performed in that state.
EMPLOYEE EXPRESSLY ACKNOWLEDGES, REPRESENTS AND WARRANTS THAT HE OR SHE HAS READ
THIS RELEASE CAREFULLY; THAT HE OR SHE FULLY UNDERSTANDS THE TERMS, CONDITIONS
AND SIGNIFICANCE OF THIS RELEASE; THAT THE COMPANIES HAVE ADVISED AND URGED HIM
OR HER TO CONSULT WITH HIS OR HER ATTORNEY CONCERNING THIS RELEASE; THAT HE OR
SHE HAS BEEN REPRESENTED BY COUNSEL AND HAS HAD A FULL OPPORTUNITY TO REVIEW
THIS RELEASE WITH HIS OR HER ATTORNEY AND HAS DONE SO; THAT HE OR SHE HAS HAD
AMPLE OPPORTUNITY TO NEGOTIATE THROUGH HIS OR HER ATTORNEY; AND THAT HE OR SHE
HAS EXECUTED THIS RELEASE VOLUNTARILY, KNOWINGLY AND WITH SUCH ADVICE FROM HIS
OR HER ATTORNEY AS HE OR SHE HAS DEEMED APPROPRIATE.
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IN WITNESS WHEREOF, the parties have executed this RELEASE as of the
date set forth below.
EMPLOYEE
Date: ____________________, _____ ________________________________
Print Name:___________________________
AMF BOWLING WORLDWIDE, INC.
By: ________________________
AMF BOWLING PRODUCTS, INC.
By: ________________________
AMF BOWLING CENTERS, INC.
By: ________________________
AMF BOWLING CENTERS (AUST) INTERNATIONAL, INC.
By: ________________________
AMF BOWLING CENTERS HOLDINGS INC.
By: ________________________
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