EXECUTIVE EMPLOYMENT AGREEMENT1
EXECUTIVE
EMPLOYMENT
AGREEMENT1
THIS
AGREEMENT
(the
"Agreement") entered into as of the date signed by the parties below by and
between ▇▇▇▇▇ Golf, Inc. and its subsidiaries with its principal place of
business at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ (the "Company") and ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ (the "Executive");
RECITALS
WHEREAS,
the
Executive is and has been employed by the Company for the past six yeas as
its
Chief Executive Officer;
WHEREAS,
the
Company’s Board of Directors desires assurance of the continued association and
services of the Executive in order to retain his experience, skills, abilities,
background, and knowledge, and is therefore willing to engage his services
on
the terms and subject to the conditions set forth below;
WHEREAS,
the
Executive desires and is willing to continue employment with the Company
on the
terms
and subject to the conditions set forth below;
NOW
THEREFORE,
in
consideration of the premises and mutual covenants contained herein, the parties
agree as follows:
AGREEMENT
| 1. |
POSITION
AND DUTIES
|
During
the term of this Agreement, the Company shall employ the Executive as Chief
Executive Officer. The Executive’s duties shall be those, which shall be
prescribed by the Board of Directors from time to time which shall be those
reasonably expected of a chief executive officer of a similarly capitalized
corporation and those performed by his predecessor. The Executive shall use
his
best efforts to promote the best interest of the Company. The Executive shall
devote his knowledge, skill and, exclusively (other than as set forth below),
all of his professional time, attention and energies (reasonable absences for
vacations and illness excepted), to the business of the Company in order to
perform such assigned duties faithfully, competently and diligently.
Notwithstanding the foregoing, it is understood and agreed between the parties
that the Executive may (i) engage in charitable and community activities, (ii)
manage personal investments and affairs and (iii) serve on the boards of
directors of a reasonable number of other corporations or the boards of a
reasonable number of trade associations, so long as such activities and
investments do not interfere or conflict with the Executive's performance of
his
responsibilities and obligations to the Company.
|
1
|
A
portion of this document is confidential and has been omitted in
accordance with Rule 24b-2 under the Securities and Exchange Act
of 1934.
Such omitted confidential material is marked herein as follows:
[*****].
|
| 2. |
TERM
OF EMPLOYMENT
|
The
Company agrees to employ the Executive and the Executive agrees to serve the
Company pursuant to the terms and conditions of this Agreement for a term of
three (3) years, commencing on January 1, 2008 and expiring on December 31,
2010, unless earlier terminated pursuant to this Agreement. Notwithstanding
any
contrary clause in this Agreement, the Executive shall serve at the pleasure
of
the Board of Directors and may be terminated at any time in accordance with
the
provisions of this Agreement. The Executive’s termination shall not, in any way,
prejudice the Executive’s rights under this Agreement.
| 3. |
PLACE
OF EMPLOYMENT
|
The
place
of employment shall be at the Company's principal office currently located
in
Plano, Texas; provided, however, that the Company may from time to time require
the Executive to travel temporarily to other locations on Company
business.
| 4. |
COMPENSATION
|
The
Executive shall receive, for all services rendered to the Company as an
employee, the following compensation.
|
A.
|
Salary.
The Executive shall be paid an annual base salary for each respective
year
as stated below. The Executive's Annual Base Salary shall be payable
in
equal installments in accordance with the Company's general salary
payment
policies, but no less frequently than monthly.
|
2008:
Four-Hundred Twenty-Five Thousand ($425,000) dollars;
2009:
Four-Hundred Fifty Thousand ($450,000) dollars;
2010:
Four-Hundred Seventy-Five Thousand ($475,000) dollars;
2
| B. |
Incentive
Compensation.
|
i.
Each
calendar year, the Executive shall be eligible for two bonuses. The first bonus
is to be paid at the end of the first half of the calendar year but no later
than July 20 and the second bonus is to be paid at the end of the second half
of
the year but no later than January 20 of the following year. Each bonus shall
be
contingent upon the Company achieving certain revenue and EBITDA goals for
the
applicable half of the calendar year as agreed upon and stated in advance by
the
Board of Directors, The amount of each bonus shall be as follows:
|
(a)
|
Thirty
Seven and One-Half (37.5%) percent of Executive’s annual base salary if
the Company achieves its stated, conservative revenue and EBITDA
goals;
|
|
(b)
|
Fifty
(50%) percent of Executive’s annual base salary if the Company achieves
its stated, negotiated target (annual board plan) revenue and EBITDA
goals;
|
|
(c)
|
One
Hundred (100%) percent of Executive’s annual base salary if the Company
achieves revenue and EBITDA goals that are twenty (20%) percent over
its
stated, negotiated revenue and EBITDA
goals;
|
| (d) |
The
Company shall prorate accordingly each of the Executive’s incentive
bonuses each calendar year based on the Company’s revenue and EBITDA
performance above its stated, conservative revenue and EBITDA goals
and
below the performance that would pay the Executive his maximum bi-annual
bonus, as defined in C above.
|
|
ii.
|
When
the Executive receives incentive compensation prior to the Company’s
financial results being verified by the Company’s independent auditors and
the independent auditors determine that the Company’s financial results
are other than the Company determined them to be resulting in a revised
situation wherein the Executive was actually not entitled to receive
his
potential incentive compensation, then the Executive agrees to return
all
unearned incentive compensation
forthwith.
|
|
iii.
|
The
Company’s Board of Directors set the conservative and negotiated revenue
and EBITDA goals for fiscal 2008 at the November 2007 Board meeting.
The
Company’s Board of Directors will establish the conservative (75% of
annual bonus target) and negotiated target (annual board plan) (100
% of
annual bonus target) goals annually for fiscal years 2009 and 2010
at the
last Board meeting of 2008 and 2009,
respectively.
|
|
C.
|
Equity
Participation.
|
|
i.
|
Each
calendar year of this Agreement, the Executive shall be granted
Two-Hundred Thousand (200,000) shares of the Company’s restricted shares
of common stock, One-Hundred Thousand (100,000) shares on the last
trading
day of June and One-Hundred Thousand (100,000) shares on the last
trading
day of December. The Executive shall be solely responsible for all
taxes
associated with these grants.
|
3
|
ii.
|
At
any time during the term of this Agreement, if a majority of the
capital
stock of the Company is to be sold or transferred to an entity not
associated or owned by the Company or its affiliates or substantially
all
of the assets of the Company are to be sold or transferred to an
entity
not associated or owned by the Company or its affiliates, all of
the
Executive’s potential equity grants shall accelerate and take place no
later than the calendar day immediately preceding the sale or closing
date
of the sale or transfer transaction.
|
| D. |
Long
Term Incentive Payment.
The
Executive shall be eligible for a one time, long term incentive payment
at
the conclusion of this three (3) year Agreement contingent upon the
Company achieving certain cumulative EBITDA goals during the contract
period as stated below. The long-term incentive payment, if any,
shall be
made as soon as administratively feasible but not later than February
15,
2011.
|
|
i.
|
If
the Company achieves a cumulative EBITDA of [*****] dollars the Executive
shall be granted an incentive payment of Seven-Hundred Fifty Thousand
($750,000) dollars.
|
|
ii.
|
If
the Company achieves a cumulative EBITDA greater than [*****] dollars
but
less than [*****] dollars the Executive shall be granted an incentive
payment that is prorated accordingly between the two
goals.
|
|
iii.
|
If
the Company achieves a cumulative EBITDA of [*****] dollars the Executive
shall be granted an incentive payment of One-Million Five- Hundred
Thousand ($1,500,000) dollars.
|
|
iv.
|
Additionally,
if the Company achieves a cumulative EBITDA that is greater [*****]
dollars, the Executive shall receive five (5%) percent of all cumulative
EBITDA greater than [*****]
dollars.
|
|
E.
|
Employee
Benefit Plans.
The Executive and his "dependents," as that term may be defined under
the
applicable employee benefit plan(s) of the Company, shall be included
in
all plans, programs and policies which provide benefits for Company
employees and their dependents on a basis commensurate with the
Executive's position and authorities, duties, powers and responsibilities.
|
|
F.
|
Expenses.
The Executive is authorized to incur and shall be reimbursed by the
Company for any and all reasonable and necessary business related
expenses
including, but not limited to, a company car, a local country club
membership expenses for auto, business travel, entertainment, gifts
and
similar matters. The company car and local country club membership
are
subject to the compensation committee’s approval, which shall not be
unreasonably withheld.
|
4
| 5. |
ABSENCES
|
The
Executive shall be entitled to vacations in accordance with the Company's
vacation policy in effect from time to time and to absences because of illness
or other incapacity and shall also be entitled to such other absences as are
granted to the Company's other senior executive officers or as are approved
by
the Board of Directors, which approval shall not be unreasonably withheld.
| 6. |
TERMINATION
|
The
Executive's employment with the Company may be terminated only as follows:
|
A.
|
By
the Company Without Cause.
The Company may at any time terminate the Executive's employment
without
Cause upon sixty-(60) days prior written notice to the Executive.
|
|
B.
|
By
the Executive Without Good Reason.
The Executive may at any time terminate his employment for any reason
upon
thirty-(30) days written notice to the Company.
|
|
C.
|
By
the Company For Cause.
The
Company may terminate the Executive’s employment for Cause. In such event,
the Company shall give the Executive prompt written notice (in addition
to
any notice that may be required below) specifying in reasonable detail
the
basis for such termination. For purposes of this Agreement, "Cause"
shall
mean any of the following conduct by the Executive:
|
|
i.
|
The
deliberate and intentional breach of any material provision of this
Agreement, which breach the Executive shall have failed to cure within
thirty (30) days after the Executive's receipt of written
notice from the Company specifying the specific nature of the Executive's
breach; or
|
|
ii.
|
The
deliberate and intentional engaging by the Executive in gross misconduct
that is materially and demonstrably harmful to the best interests,
monetary or otherwise, of the Company; or
|
|
iii.
|
Conviction
of a felony or conviction of any crime involving moral turpitude,
fraud or
deceit.
|
5
|
D.
|
By
the Executive for Good Reason.
The Executive may terminate his employment for Good Reason upon providing
thirty (30) days written notice to the Company no later than 90 days
after
the Executive reasonably becomes aware of the circumstances giving
rise to
such Good Reason. For purposes of this Agreement, "Good Reason" means
any
of the following conduct of the Company, unless the Executive shall
have
consented thereto in writing:
|
| i. |
Material
breach of any material provision of this Agreement by the Company,
which
breach shall not have been cured by the Company within thirty (30)
days
after Company’s receipt from the Executive or his agent of written notice
specifying in reasonable detail the nature of the Company's breach;
or
|
| ii. |
The
assignment to the Executive of any duties inconsistent in any material
respect with the Executive's position including, but not limited
to any
diminution of the Executive's status and reporting requirements)
authority, duties, powers or responsibilities, excluding for this
purpose
any action respecting the Executive that is remedied by the Company
within
thirty (30) days after receipt of written notice from the Executive
to the
Company; or
|
|
iii.
|
The
failure of the Company to obtain the assumption in writing of its
obligations to perform this Agreement by any successor prior to a
merger,
consolidation or sale as contemplated in Section 10; or
|
|
iv.
|
A
reduction in the Executive's total compensation, excluding for this
purpose any reduction that is remedied by the Company within thirty
(30)
days after receipt of written notice from the Executive to the Company.
For purposes of this subsection, a reduction in the overall level
of
compensation of the Executive resulting from the failure to achieve
corporate, business unit and/or individual performance goals established
for purposes of incentive compensation for any year or other period
shall
not constitute a reduction in the overall level of compensation of
the
Executive.
|
|
v.
|
The
relocation of the Executive’s place of employment to a site more than 75
miles from Plano, Texas.
|
|
vi.
|
If
the Company fails to set internal financial goals or adopt a stock
option
plan
|
|
E.
|
Disability.
In
the event that the Executive shall be unable to perform his duties
hereunder on a full time basis for a period of sixty (60) consecutive
calendar days by reason of incapacity due to illness, accident, physical
or mental disability or otherwise, then the Company may, at
its discretion,
terminate the Executive's employment if the Executive, within ten
(10)
days after receipt of written notice of termination is given (which
may
occur before or after the end of the entire 60 day period), shall
not have
returned to the performance of all of his duties on a full-time basis.
|
6
|
F.
|
Death.
The Executive's employment shall terminate upon his death.
|
|
G.
|
Mutual
Written Agreement.
This
Agreement and the Executive's employment with the Company may be
terminated at any time by the mutual written agreement of the Executive
and the Company.
|
|
7.
|
COMPENSATION
IN THE EVENT OF TERMINATION
|
In
the
event that the Executive's employment terminates prior to the expiration of
this
Agreement, the Company shall pay the Executive compensation and provide the
Executive and his eligible dependents with benefits as follows:
|
A.
|
Termination
By Company Without Cause or Termination By Executive For Good
Reason.
In
the event that the Executive's employment is terminated by (i) the
Company
without Cause or (ii) the Executive for Good Reason, then the Company
shall continue to pay or provide, as applicable and in accordance
with the
Company's normal payroll practices unless otherwise specified, the
below
stated compensation and benefits to the Executive. The Executive's
subsequent death or disability shall in no way affect or limit the
Company's obligations under this Section. The Executive shall not
be
required to mitigate the amount of any payment provided for in this
Section by seeking employment or otherwise.
|
| i. |
The
Annual Base Salary of the Executive for a period of one (1) year
after
expiration of the notice period or termination, whichever is later;
Full
payment of the total amount of such Annual Base Salary for such period
shall be made in a lump sum within fifteen (15) days after Executive’s
termination of employment;
|
|
ii.
|
The
equity participation for the twelve (12) month period following the
date
on which the Executive was terminated will be granted in full as
of the
date of termination;
|
|
iii.
|
A
payment equal in amount to two (2) semi-annual bonuses. This payment
will
be made within 15 days after Executive’s termination of employment. The
payment shall be calculated based on the potential semi-annual bonuses
tied to the annual sales in effect at the time of termination and
shall be
paid irrespective of whether the Company achieved or was on track
to
achieve its internal financial goals for the calendar year and/or
whether
a semi-annual bonus had already been paid to the Executive in the
calendar
year of termination.
|
7
| iv. |
The
long-term incentive payment for which the Executive was potentially
eligible. This payment will be made within 15 days after Executive’s
termination of employment. The payment shall be calculated as if
the
Company had achieved minimum cumulative EBITDA of [*****] dollars
irrespective of whether the Company had achieved it or was on track
to
achieve it. Additionally, if on the date of termination, the Company
has
achieved more than [*****] dollars of cumulative EBITDA, then the
Executive shall also receive five ($.05) cents for every EBITDA dollar
achieved over [*****] dollars.
|
| v. |
Continuing
coverage for all purposes (including eligibility, coverage, vesting
and
benefit accruals, as applicable), for the salary continuation period
described in subsection (a)(i) above, to the extent not prohibited
by law,
for the Executive and his eligible dependents under all of the employee
benefit plans in effect and applicable to Executive and his eligible
dependents as of the date of his termination. In the event that the
Executive and/or his eligible dependents, because of the Executive's
terminated status, cannot be covered or fully covered under any or
all of
such plans, the Company shall continue to provide the Executive and/or
his
eligible dependents with the same level of such benefits and coverage
in
effect prior to termination, payable from the general assets of the
Company if necessary. Notwithstanding the foregoing, the Executive
may
elect (by giving written notice to the Company prior to the termination
of
his employment hereunder), on a benefit by benefit basis to receive
in
lieu of continuing coverage, cash in an amount equal to the present
value
(using an 8% annual discount rate) of the projected cost to the Company
of
providing such benefit for such continuation period. The aggregate
amount
of cash to which the Executive is entitled pursuant to the preceding
sentence shall be payable by the Company to the Executive within
sixty
(60) days after the date of the termination of Executive's employment
hereunder;
|
|
B.
|
Termination
By the Company For Cause.
In
the event that the Company shall terminate the Executive's employment
for
Cause, this Agreement shall terminate and the obligations of the
parties
shall be as set forth in Section 8 of this Agreement.
|
|
C.
|
Termination
By The Executive Without Good Reason.
In
the event that the Executive shall terminate employment hereunder
other
than for Good Reason, this Agreement shall forthwith terminate and
the
obligations of the parties shall be as set forth in Section 8 of
this
Agreement.
|
8
|
D.
|
Disability.
In
the event that the Company elects to terminate the Executive's employment
pursuant to Section 6(e), the Executive shall continue to receive,
from
the date of such termination for a period of one year, one hundred
(100%)
percent of the Annual Base Salary, in accordance with the payroll
practices of the Company for senior executive officers, reduced,
however,
by the amount of any proceeds from Social Security and disability
insurance policies provided by and at the expense of the Company.
Additionally, the Executive shall receive a payment equal to both
potential semi-annual bonuses in effect at the time for which the
Executive was potentially eligible irrespective of whether company
achieved its internal financial goals or was on track to achieve
its
internal financial goals. Full payment shall be made within fifteen
(15)
days after Executive’s termination of
employment;
|
|
E.
|
Death.
In
the event of the death of the Executive during the term of this Agreement,
(i) the Annual Base Salary to which the Executive is entitled shall
be
paid in full, within fifteen (15) days after Executive’s death, to the
last beneficiary designated by the Executive under the Company's
group
life insurance policy maintained by the Company or such other written
designation expressly provided to the Company for the purposes hereof
or,
failing either such designation, to his estate. The parties expressly
understand that this payment of salary shall be in addition to any
insurance payments paid to Executive’s survivors and/or estate under any
insurance policies.
|
|
F.
|
Mutual
Written Consent.
In
the event that the Executive and the Company shall terminate the
Executive's employment by mutual written agreement, the Company shall
pay
such compensation and provide such benefits, if any, as the parties
may
mutually agree upon in writing.
|
|
8.
|
EFFECT
OF EXPIRATION OF AGREEMENT OR TERMINATION OF EXECUTIVE’S
EMPLOYMENT
|
Upon
the
expiration of this Agreement by its terms or the termination of the Executive's
employment by the Company for Cause or the Executive Without Good Reason,
neither the Company nor the Executive shall have any remaining duties or
obligations except that:
|
A.
|
The
Company shall:
|
| i. |
Pay
the Executive's accrued salary and any other accrued benefits through
the
effective date of such expiration or termination;
|
| ii. |
Reimburse
the Executive for expenses already actually incurred through the
effective
date of such expiration or
termination;
|
| iii. |
Pay
or otherwise provide for any benefits, payments or continuation or
conversion rights in accordance with the provisions of any employee
benefit plan of which the Executive or any of his dependents is or
was a
participant or as otherwise required by law;
|
9
| iv. |
Pay
the Executive and his beneficiaries any compensation and/or provide
the
Executive or his eligible dependents any benefits due through the
effective date of such expiration; and
|
| v. |
Continue
to remain bound by the terms of Section 12 hereof.
|
|
B.
|
The
Executive shall remain bound by the terms of Sections 9, 11 and 13.
|
|
9.
|
COVENANTS
AS TO CONFIDENTIAL INFORMATION AND COMPETITIVE
CONDUCT
|
The
Executive acknowledges and agrees as follows: (i) this Section 9 is necessary
for the protection of the legitimate business interests of the Company, (ii)
the
restrictions contained in this Section 9 with regard to geographical scope,
length of term and types of restricted activities are Reasonable; and (iii)
the
Executive has received adequate and valuable new consideration for entering
into
this Agreement.
|
A.
|
Confidentiality
of Information and Nondisclosure.
The
Executive acknowledges and agrees that his employment by the Company
under
this Agreement necessarily involves proprietary information pertaining
to
the business of the Company and its related entities. Accordingly,
the
Executive agrees that at all times during the terms of this Agreement
and
at all times thereafter, he will not, directly or indirectly, without
the
express written approval of the Company, unless directed by applicable
legal authority having jurisdiction over the Executive, disclose
to or
use, or knowingly permit to be so disclosed or used, for the benefit
of
himself, any person, corporation or other entity other than the
Company:
|
| i. |
Any
information concerning any financial matters, customer relationships,
competitive status, supplier matters, internal organizational matters,
current or future plans, or other business affairs of or relating
to the
Company or its subsidiaries,
|
| ii. |
Any
management, operational, trade, technical or other secrets or any
other
proprietary information or other data of the Company or its subsidiaries,
|
| iii. |
Any
other information related to the Company or its related entities
that the
Executive should reasonably believe will be damaging to the Company
or its
related entities and which has not been published and is not generally
known outside of the Company.
|
10
The
Executive acknowledges that all of the foregoing constitutes confidential and/or
proprietary information of the Company, which is the exclusive property of
the
Company. Excluded from this confidential and/or proprietary information of
the
Company shall be (i) information known by or generally available to the public
through no breach by the Executive of this Agreement and which the public may
use without any direct or indirect obligation to the Company and (ii)
information that documentary evidence demonstrates was independently developed
by the Executive.
|
B.
|
Restrictive
Covenant.
During
the term of, and for a period of one (1) year (the "Restrictive Period")
after the termination of the Executive's employment other than by
the
Company Without Cause or by the Executive With Good Reason, the Executive
shall not render, directly or indirectly, services to (as an employee,
consultant, independent contractor or in any other capacity) any
person,
firm, corporation, association or other entity which conducts the
same or
similar business as the Company or its subsidiaries at the date of
the
Executive's termination of employment within the states in which
the
Company or any of its subsidiaries is then doing business at the
date of
the Executive's termination of employment hereunder without the prior
written consent of the Board of Directors which may be withheld at
its
sole discretion. In the event that this Agreement expires after
termination and is not renewed by the parties, the Restrictive Period
shall not extend beyond the termination of employment. In the event
the
Executive violates any of the provisions contained in this Section,
the
Restrictive Period shall be increased by the period of time in which
the
Executive was in violation as determined by an Arbitrator or Court
of
competent jurisdiction. The Executive further agrees that at no time
during the Restrictive period will the Executive attempt to directly
or
indirectly solicit or hire employees of the Company or its subsidiaries
or
induce any of them to terminate their employment with the Company
or any
of the subsidiaries.
|
|
C.
|
Company
Remedies.
The Executive acknowledges and agrees that any breach of this Agreement
by
him will result in immediate and irreparable harm to the Company
and that
the Company cannot be reasonably or adequately compensated by damages
in
an action at law. In the event of a breach by the Executive of the
provisions of this Section 9 as determined by an Arbitrator or a
Court of
competent jurisdiction, the Company shall be entitled, to the extent
permitted by law, immediately to cease paying or providing the Executive
or his dependents any compensation or benefits provided pursuant
to
Section 4, Section 6 or Section 7 of this Agreement as liquidated
damages,
and also to obtain immediate injunctive relief restraining the Executive
from conduct in breach of the covenants contained in this Section
9.
Nothing herein shall be construed as prohibiting the Company from
pursuing
any other remedies available to it for such breach, including the
recovery
of damages from the Executive.
|
11
| 10. |
AGREEMENT
SURVIVES MERGER OR
DISSOLUTION
|
This
Agreement shall not be terminated by the Company's voluntary or involuntary
dissolution or by any merger in which the Company is not the surviving or
resulting corporation, or on any transfer of all or substantially all of the
Company's assets. In the event of any such merger or transfer of assets, the
provisions of this Agreement shall be binding on and inure to the benefit of
the
surviving business entity or the business entity to which such assets shall
be
transferred and to the Executive and his heirs.
| 11. |
OWNERSHIP
OF INTANGIBLES
|
All
processes, inventions, patents, copyrights, trademarks, and other intangible
rights that may be conceived or developed by Executive, either alone or with
others, during the term of Executive's employment, whether or not conceived
or
developed during Executive's working hours, and with respect to which the
equipment, supplies, facilities, or trade secret information of the Company
was
used, or that relate at the time of conception or reduction to practice of
the
invention to the business of the Company or to the Company's actual or
demonstrably anticipated research and development, or that result from any
work
performed by Executive for the Company, shall be the sole property of the
Company. Executive shall execute all documents, including patent applications
and assignments, required by the Company to establish the Company's rights
under
this Section.
| 12. |
INDEMNIFICATION
BY THE COMPANY
|
The
Company shall, to the maximum extent permitted by law, indemnify and hold the
Executive harmless against expenses, including reasonable attorney's fees
judgements, fines, settlements, and other amounts actually and reasonably
incurred in connection with any proceeding arising by reason of the Executive's
employment by the Company. The Company shall advance to the Executive any
expense incurred in defending any such proceeding to the maximum extent
permitted by law.
|
13.
|
DISCLOSURE
OF CUSTOMER INFORMATION AND SOLICITATION OF OTHER EMPLOYEES PROHIBITED
|
In
the
course of his employment, the Executive will have access to confidential records
and data pertaining to the Company's customers and to the relationship between
these customers and the Company's account executives. Such information is
considered secret and is disclosed to the Executive in confidence. During his
employment by the Company and for one (1) year after termination of that
employment, the Executive shall not directly or indirectly disclose or use
any
such information, except as required in the course of his employment by the
Company.
12
| 14. |
RESOLUTION
OF DIFFERENCES OVER BREACHES OF
AGREEMENT
|
Except
as
otherwise provided herein, in the event of any controversy, dispute or claim
arising out of, or relating to, this Agreement, or the breach thereof, or
arising out of any other matter relating to the Executive’s employment with the
Company, the parties may seek recourse only for temporary or preliminary
injunctive relief to the courts having jurisdiction thereof and if any relief
other than injunctive relief is sought, the Company and the Executive agree
that
such underlying controversy, dispute or claim shall be settled by arbitration
conducted in accordance with this Section 14 and the Commercial Arbitration
Rules of thc American Arbitration Association ("AAA"). The matter shall be
heard
and decided, and awards rendered by a panel of three (3) arbitrators (the"
Arbitration Panel"). the Company and the Executive shall each select one
arbitrator from the AAA National Panel of Commercial Arbitrators (the
"Commercial Panel") and AAA shall select a third arbitrator from the Commercial
Panel. The award rendered by the Arbitration Panel shall be final and binding
as
between the parties hereto and their heirs, executors, administrators,
successors and assigns, and judgment on the award may be entered by any court
having jurisdiction thereof. Except as provided in Section 12 hereof, each
party
shall bear sole responsibility for all expenses and costs incurred by such
party
in connection with the resolution of any controversy, dispute or claim in
accordance with this Section 14; provided, however, the Executive may recover
his costs and attorneys’ fees in recovering compensation, stock and/or benefits
to which he is entitled under this Agreement.
| 15. |
WAIVER
|
The
waiver by a party hereto of any breach by the other party hereto of any
provision of this Agreement shall not operate or be construed as a waiver of
any
other or subsequent breach by a party hereto.
| 16. |
NON
RELIANCE
|
Each
party to this Agreement represents, warrants and acknowledges that in entering
into this Agreement that it has not relied upon any act, representation, or
warranty by any other party thereto, or by any of their representatives or
attorneys, except as may be expressly contained in this Agreement. Each party
further represents and warrants that it has thoroughly discussed all aspects
of
this Agreement with his or its attorneys, that he/it has had a reasonable time
to review this Agreement, that he/it fully understands the provisions of this
Agreement and the effect thereof and that he/it is entering into this Agreement
voluntarily and of his/its own free will.
| 17. |
CONSTRUCTION
OF AGREEMENT
|
|
A.
|
Governing
Law.
This
Agreement shall be governed by and construed under the laws of the
state
of Texas.
|
13
|
B.
|
Severability.
In
the event that anyone or more of the provisions of this Agreement
shall be
held to be invalid, illegal or unenforceable, the validity, legality
or
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
|
|
C.
|
Headings.
The descriptive headings of the several paragraphs of this Agreement
are
inserted for convenience or reference only and shall not constitute
a part
of this Agreement.
|
|
D.
|
IRC § 409A.
Company and Executive intend that no payment under this Agreement
shall be
included in Executive’s income under, or be subjected to the additional
taxes imposed by, Section 409A of the Internal Revenue Code of 1986,
as
amended (the “Code”). Company and Executive each acknowledge that it is
their understanding at the time this Agreement is entered into that
none
of the payments of cash or property provided for in this Agreement
constitutes nonqualified deferred compensation subject to Section
409A of
the Code, because all such payments qualify for the “short-term deferral”
rule of Treas. reg. § 1.409A-1(b)(4); provided, however, that the
employee benefit plan continuation coverage provided for in Section
7(a)(5) and the continued payments to be made to Executive or his
beneficiary under Sections 7(d) and (e) may be nonqualified deferred
compensation subject to Section 409A of the Code, but these amounts
are
payable in accordance with a fixed schedule and on account of and
following permissible payment events, and therefore comply with the
requirements of Section 409A of the Code. Company agrees that if
at any
time, based on changes in law, regulations, official Treasury or
IRS
guidance, or facts and circumstances, it determines that a payment
to be
made to or for the benefit of Executive, or to Executive’s beneficiary,
would be nonqualified deferred compensation under Section 409A of
the Code
and would violate Section 409A and be subject to inclusion in income
and
additional taxes under Section 409A on account of a failure to delay
payment of such amount for six months under Section 409A(a)(2)(B)(i)
of
the Code, then Company shall delay making such payment for six (6)
months,
if it determines that such delay shall avoid the imposition of additional
tax under Section 409A of the Code. It shall be a breach of this
Agreement
for Company, on account of this Section 17(d), to initiate or continue
any
delay in any payment otherwise due Executive or his beneficiary,
if
Company has not made a good faith determination, informed by the
advice of
competent Section 409A legal counsel, that the delay or continuation
of
the delay is necessary to avoid a significant risk of the imposition
of
additional tax under Section 409A of the Code; provided, however,
that if
the Company determines that an amount otherwise required to be paid
under
this Agreement will be subject to the same amount of taxes under
Section
409A of the Code, whether or not it is delayed for six months, then
the
Company shall have no right to delay the payment of such amount under
this
Section 17(d).
|
14
| 18. |
ENTIRE
AGREEMENT AND INTEGRATION
|
This
Agreement contains the entire agreement between the parties and supersedes
all
prior oral and written agreements, understandings, commitments, and practices
between the parties, including all prior employment agreements, whether or
not
fully performed by the Executive before the date of this Agreement. No
amendments to this Agreement may be made except by a writing signed by both
parties.
| 19. |
NOTICES
|
Any
notice to the Company required or permitted under this Agreement shall be given
In writing to the Company, either by personal service or by registered or
certified mail, postage prepaid, addressed to the legal department of the
Company at its then principal place of business. Any such notice to the
Executive shall be given in a like manner and, if mailed, shall be addressed
to
his home address then shown in the Company's files. For the purpose of
determining compliance with any time limit in this Agreement, a notice shall
be
deemed to have been duly given (a) on the date of service, if served personally
on the party to whom notice is to be given, or (b) on the third business day
after mailing, if mailed to the party to whom the notice is to be given in
the
manner provided in this section.
|
20.
|
SEVERABILITY
|
If
any
provision of this Agreement is held invalid or unenforceable, the remainder
of
this Agreement shall nevertheless remain in full force and effect. If any
provision is held invalid or unenforceable with respect to particular
circumstances, it shall nevertheless remain in full force and effect in all
other circumstances.
| 21. |
EXECUTION
|
The
Company
Executed on December 31, 2007.
| /S/: ▇▇▇▇▇ ▇. ▇▇▇▇▇ |
By:
▇▇▇▇▇ ▇. ▇▇▇▇▇
Chairman
of the Board of Directors of ▇▇▇▇▇ Golf, Inc.
The
Executive
Executed
on December 31, 2007.
| /S/: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III |
By:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III
Chief
Executive Officer of ▇▇▇▇▇ Golf, Inc.
15