XXXXXXXX, INC. AND XXXX X. XXXXXXXX
PERSONAL SERVICES AGREEMENT and
ACKNOWLEDGMENT OF TERMINATION OF EXECUTIVE EMPLOYMENT
THIS AGREEMENT effective June 26, 1997, is made and entered into by
and between XXXXXXXX, INC. (the Company) and XXXX X. XXXXXXXX (Xxxxxxxx).
WHEREAS, the Company and Xxxxxxxx wish to terminate Xxxxxxxx'x
employment by the Company effective June 25, 1997, pursuant to the terms
and conditions of the Executive Employment Agreement between the Company
and Xxxxxxxx dated January 1, 1995, a copy of which is attached hereto as
Exhibit A (the 1995 Agreement); and
WHEREAS, the Company and Xxxxxxxx wish, instead, to enter into a
personal services agreement effective June 26, 1997;
NOW, THEREFORE, the parties hereto acknowledge and agree as follows:
1. Termination and Resignation. Xxxxxxxx and the Company hereby
mutually agree that Xxxxxxxx'x employment as senior executive vice
president is terminated pursuant to the terms and conditions of the
1995 Agreement effective June 25, 1997. Xxxxxxxx hereby resigns as
an officer of the Company effective June 25, 1997.
2. Retention. Xxxxxxxx is hereby retained as a consultant
effective June 26, 1997, pursuant to the terms and conditions set
forth below, which terms and conditions supersede the employment
terms and conditions of the 1995 Agreement.
3. Term. The agreement for Xxxxxxxx'x personal services as a
consultant shall become effective on June 26, 1997, and continue for
a term of five years, provided, however, that either party may
terminate the terms and conditions related to Xxxxxxxx'x personal
services as a consultant at any time upon thirty days' written
notice.
4. Services. Upon reasonable request of the Company's Chief
Executive Officer, Xxxxxxxx shall work with the Company's chief
executive officer and creative staff to visualize and identify
Company direction and evolve brand image, attend PGA & Magic shows
and annual sales meetings, and meet with key customers, provided,
however, that Xxxxxxxx shall not be required to provide such services
for more than 80 days in any 12-month period during the term of this
agreement. To the extent required in order for Xxxxxxxx to provide
the requested services, the Company will provide the hardware and
technical links from Xxxxxxxx'x home office to the Company.
5. Compensation. The Company shall pay Xxxxxxxx $1,000 for each
day he agrees to and does provides services to the Company, as more
fully described below. If Xxxxxxxx is elected or appointed a director
or officer of the Company during the term of this Agreement, Xxxxxxxx
shall serve in such capacity or capacities without further
compensation; but nothing herein shall be construed as requiring the
Company, or anyone else, to cause the election or appointment of
Xxxxxxxx as such director or officer.
6. Health and Hospital Insurance. The Company shall continue to
provide Xxxxxxxx with health and hospital insurance through June 30,
1998, pursuant to the terms of the 1995 Agreement.
7. Life Insurance. The Company shall maintain life insurance in
the amount of $2,000,000, through June 30, 1998, pursuant to the
terms of the 1995 Agreement. Upon expiration of this Agreement, and
at Xxxxxxxx'x election, the ownership of such life insurance shall
be transferable to Xxxxxxxx upon his payment to the Company of one-half of
the then cash value, if any, of such insurance.
8. Stock Options. All options held by Xxxxxxxx shall become
immediately exercisable for a period of five years pursuant to the
terms of the 1995 Agreement.
9. Expenses. Xxxxxxxx is authorized to incur reasonable expenses
for promoting and conducting the business of the Company, including
expenses for entertainment, travel and similar items, provided such
expenses are preapproved by the Company's Chief Executive Officer.
The Company will reimburse Xxxxxxxx for all such expenses upon the
presentation by Xxxxxxxx, from time to time, of an itemized account
of such expenditures.
10. Proprietary Interests of Company. Recognizing and
acknowledging that nothing in this Agreement prevents Xxxxxxxx from
providing services to other companies which are not in direct
competition with the Company, Xxxxxxxx acknowledges and agrees that
all of the terms and conditions of Section 12 of the 1995 Agreement
are applicable, and Xxxxxxxx hereby affirms that he will comply with
such terms and conditions.
11. Goodwill and Reputation of the Company and Xxxxxxxx. Xxxxxxxx
shall at all times conduct himself in such manner as to preserve and
protect the reputation and goodwill of the Company. The Company
shall at all times conduct its affairs in such manner as to preserve
and protect the goodwill and reputation of Xxxxxxxx.
12. Noncompete. The Company and Xxxxxxxx acknowledge and
agree that, effective with the termination of Xxxxxxxx'x
employment, all of the terms and conditions of Section 13 of
the 1995 Agreement are applicable, and the Company and Xxxxxxxx
hereby affirm their compliance with such terms and conditions;
provided, however, (1) upon request by Xxxxxxxx, the Company
shall prepay, up to a maximum of $262,500, in the second year
of the noncompete period the then present value of the payment
due the second year; and (2) upon request by Xxxxxxxx at any
time from and after the second year of the noncompete period,
the Company may consent to prepay, up to a maximum of $262,500
in any year of the noncompete period, the then present value of
any future payments due during the third through tenth years at
a discounted rate of eight percent (8%), such consent not to be
unreasonably withheld. Such prepayments shall not relieve
Xxxxxxxx of his obligations under the noncompete provisions of
the 1995 Agreement. Notwithstanding the foregoing, at any time
after the third anniversary of the date of this Agreement,
Xxxxxxxx may deliver written notice to the Company (the
"Election Notice") that Xxxxxxxx no longer desires to receive
payments under the terms of Section 13 of the 1995 Agreement.
In such event Xxxxxxxx shall elect to (1) reimburse the Company
for any advance annual installments attributable to the
terminated noncompete period or (2) extend the noncompete
period through the date for which Xxxxxxxx received
compensation, based upon the compensation agreed upon under
Section 13 of the 1995 Agreement.
13. No Corporate Opportunity. The Company acknowledges that the
Company's board of directors has been presented with and has waived
any corporate opportunity associated with the development of
Archerfield golf course project in Scotland. The Company also
acknowledges and agrees that Xxxxxxxx'x participation in any manner
in the Archerfield golf course project will not be a violation of the
noncompete provisions described herein.
14. Notices. Any notice required or permitted to be given under
this Agreement shall be sufficient if in writing and delivered in
person or sent by registered or certified mail to Xxxxxxxx'x
residence in the case of Xxxxxxxx or to its principal office in the
case of the Company.
15. Waiver. The waiver of any provision of this Agreement shall
not operate or be construed as a waiver of any other provision of
this Agreement. No waiver shall be valid unless in writing and
executed by the party to be charged therewith.
16. Severability/Modification. In the event that any clause or
provision of this Agreement shall be determined to be invalid,
illegal or unenforceable, such clause or provision may be severed or
modified to the extent necessary, and, as severed and/or modified,
this Agreement shall remain in full force and effect.
17. Assignment. The rights and obligations of the Company under
this Agreement shall inure to the benefit of and shall be binding
upon the successors and assigns of the Company. Xxxxxxxx
acknowledges that the services to be rendered under this Agreement
are unique and personal. Accordingly, Xxxxxxxx may not assign his
rights and obligations under this Agreement.
18. Entire Agreement. This instrument contains the entire
agreement concerning the employment arrangement between the parties
and shall, as of the effective date hereof, supersede all other such
agreements between the parties. It may not be amended except by an
agreement in writing signed by both parties.
19. Governing Law and Jurisdiction. This Agreement shall be
interpreted, construed, and enforced under the laws of the State of
California. The courts and authorities of the State of California
shall have sole jurisdiction and venue over all controversies which
may arise with respect to this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement the date
and year indicated below, effective the date indicated above.
THE COMPANY:
XXXXXXXX, INC.
Date: By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, Chairman
Xxxxxxxx:
Date: /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
EXHIBIT A
Outstanding Options held by Xxxx X. Xxxxxxxx
Options Options Option
Grant Date Type Granted Outstanding Price
12/19/1992 Non Qualified 35,000 35,000 $6.0000
03/06/1993 Non Qualified 110,000 110,000 $8.0000
10/02/1993 Non Qualified 138,236 138,236 $8.5000
10/02/1993 Incentive Stock 11,764 11,764 $8.5000
06/17/1994 Incentive Stock 11,764 11,764 $8.5000
06/17/1994 Non Qualified 28,236 28,236 $8.5000
01/22/1996 Incentive Stock 1 1 $6.5000
01/22/1996 Non Qualified 124,999 124,999 $6.5000
01/22/1996 Incentive Stock 16,665 16,665 $6.0000
01/22/1996 Non Qualified 43,335 43,335 $6.0000
01/22/1996 Incentive Stock 16,666 16,666 $6.0000
01/22/1996 Non Qualified 83,334 83,334 $6.0000
01/22/1996 Non Qualified 100,000 100,000 $6.0000
02/06/1997 Non Qualified 4,922 4,922 $5.7500
