EXHIBIT 10.53
SECOND AMENDED EXECUTIVE OFFICER EMPLOYMENT AGREEMENT
This Second Amended Executive Officer Employment Agreement ("Second
Amended Agreement") is entered into as of June 1, 2002, by and between CALLAWAY
GOLF COMPANY, a Delaware corporation (the "Company"), and RONALD A. DRAPEAU
("Mr. Drapeau").
A. The Company and Mr. Drapeau are parties to that certain Executive
Officer Employment Agreement entered into as of September 1, 2000, as amended
May 15, 2001 (collectively the "Original Agreement").
B. Pursuant to Section 16 of the Original Agreement, the parties desire
to supersede and replace the Original Agreement in the manner set forth herein.
The Original Agreement shall no longer be of any force or effect except as
restated in this Second Amended Agreement. To the extent there is any conflict
between the Original Agreement and this Second Amended Agreement, this Second
Amended Agreement shall control and all agreements shall be construed so as to
give the maximum force and effect to the provisions of this Second Amended
Agreement.
NOW, THEREFORE, in consideration of the foregoing and other
consideration, the value and sufficiency of which are hereby acknowledged, the
Company and Mr. Drapeau hereby agree as follows:
1. TERM. The term of this Second Amended Agreement shall remain the same
as set forth in the Original Agreement, as restated below:
(a) The Company hereby employs Mr. Drapeau and Mr. Drapeau
hereby accepts employment pursuant to the terms and provisions of this Second
Amended Agreement for the period commencing September 1, 2000 and terminating
December 31, 2003 ("Initial Term").
(b) On December 31, 2003, and on each December 31 thereafter
(the "Extension Dates"), the expiration date of this Second Amended Agreement
shall be automatically extended one year, through December 31 of the following
year, so long as (a) this Second Amended Agreement is otherwise in full force
and effect, (b) Mr. Drapeau is still employed by the Company pursuant to this
Second Amended Agreement, (c) Mr. Drapeau is not otherwise in breach of this
Second Amended Agreement, and (d) neither the Company nor Mr. Drapeau has given
notice as provided in Section 1(c) of this Second Amended Agreement.
(c) At any time prior to an Extension Date, either Mr. Drapeau
or the Company may give written notice to the other ("Notice") that the next
automatic extension of the expiration date of this Second Amended Agreement
pursuant to Section 1(b) shall be the final such automatic extension of the
expiration date of this Second Amended Agreement. Thus, if either Mr. Drapeau or
the Company gives Notice on or before December 31, 2003, and all other
conditions for automatic extension of the expiration date of this Second Amended
Agreement pursuant to Section 1(b) exist, then on December 31, 2003, the
expiration date of this Second Amended Agreement shall be extended pursuant to
Section 1(b) from December 31, 2003 to December 31, 2004, with this Second
Amended Agreement expiring on that date (if not earlier terminated pursuant to
its terms) without any further automatic extensions.
(d) Upon expiration of this Second Amended Agreement, Mr.
Drapeau's status shall be one of at will employment.
2. SERVICES.
(a) Mr. Drapeau shall serve as Chairman of the Board, President
and Chief Executive Officer of the Company. Mr. Drapeau's duties shall be the
usual and customary duties of the offices in which Mr. Drapeau serves. Mr.
Drapeau shall report to the Board of Directors of the Company.
(b) Mr. Drapeau 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.
(c) The Company and Mr. Drapeau agree that the services being
provided by Mr. Drapeau for the Company under the terms of this Agreement are
unique and intellectual in character and that Mr. Drapeau and Company are
entering into this Agreement so that the Company will have the exclusive benefit
of those services during the entire term of the Agreement and any extensions of
the Agreement.
3. SERVICES TO BE EXCLUSIVE. During the term hereof, Mr. Drapeau agrees
to devote his full productive time and best efforts to the performance of his
duties hereunder pursuant to the supervision and direction of the Company's
Board of Directors. Mr. Drapeau further agrees, as a condition to the
performance by the Company of each and all of its obligations hereunder, that so
long as Mr. Drapeau is employed by the Company, Mr. Drapeau 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 Board of
Directors' prior written consent. Mr. Drapeau 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 Mr. Drapeau 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 Mr.
Drapeau's work for the Company.
4. COMPENSATION.
(a) The Company agrees to pay Mr. Drapeau a base salary at the
rate of $700,000.00 per year.
(b) The Company shall provide Mr. Drapeau an opportunity to earn
an annual bonus based upon participation in the Company's officer bonus plan as
it may or may not exist from time to time. Mr. Drapeau acknowledges that
currently all bonuses are discretionary, that the current officer bonus plan
does not include any nondiscretionary bonus plan, and that the Company does not
currently contemplate establishing any nondiscretionary bonus plan applicable to
Mr. Drapeau.
5. EXPENSES AND BENEFITS.
(a) Reasonable and Necessary Expenses. In addition to the
compensation provided for in Section 4 hereof, the Company shall reimburse Mr.
Drapeau for all reasonable, customary and necessary expenses incurred in the
performance of Mr. Drapeau's duties hereunder. Mr. Drapeau 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 Board of Directors of
the Company.
(b) Paid Time Off. Mr. Drapeau shall accrue thirty-five (35)
days of paid time off annually. With the exception of the accrual of paid time
off, all other portions of the Paid Time Off Program, as stated in the Company's
Employee Handbook, as may be modified from time to time, shall govern Mr.
Drapeau's paid time off. The Company reserves the right to pay Mr. Drapeau for
unused, accrued paid time off benefits in lieu of providing time off.
(c) Benefits. During Mr. Drapeau's employment with the Company
pursuant to this Second Amended Agreement, the Company shall provide for Mr.
Drapeau to:
(i) participate in the Company's health insurance and
disability insurance plans as the same may be modified from time to time;
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(ii) receive, if Mr. Drapeau is insurable under usual
underwriting standards, term life insurance coverage on Mr. Drapeau's life,
payable to whomever he directs, in an amount equal to $1,000,000.00 in coverage,
provided that Mr. Drapeau's physical condition does not prevent him from
qualifying for such insurance coverage under reasonable terms and conditions;
(iii) participate in the Company's 401(k) retirement
investment plan pursuant to the terms of the plan, as the same may be modified
from time to time; and
(iv) participate in the Company's Executive Deferred
Compensation Plan, as the same may be modified from time to time.
(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 tax and estate planning and related services, or any other
perquisites and personal benefits to other officers generally from time to time,
such services and perquisites shall be made available to Mr. Drapeau on the same
terms and conditions.
(e) Club Membership. Employee shall be provided with access to a
country club in accordance with the Company's country club membership policy, as
modified from time to time. The club membership itself shall belong to and be
the property of the Company, not Employee.
6. TAX INDEMNIFICATION. Mr. Drapeau shall be indemnified by the Company
for certain excise tax obligations, as more specifically set forth in Exhibit A
to this Second Amended Agreement.
7. BUSINESS ISSUES.
(a) Other Business. To the fullest extent permitted by law, Mr.
Drapeau agrees that, while employed by the Company, Mr. Drapeau will not,
directly or indirectly (whether as employee, agent, consultant, holder of a
beneficial interest, creditor, or in any other capacity), engage in any business
or venture which conflicts with Mr. Drapeau's duties under this Second Amended
Agreement, including services that are 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 duties hereunder, Mr. Drapeau 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. This obligation shall
remain in effect while Mr. Drapeau is employed by the Company and for a period
of one (1) year thereafter.
(c) Suppliers. While employed by the Company, and for one (1)
year thereafter, Mr. Drapeau 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, Mr.
Drapeau shall not engage in any conduct or enterprise that shall constitute an
actual or apparent conflict of interest with respect to Mr. Drapeau's duties and
obligations to the Company.
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(e) Non-Interference. While employed by the Company, and for one
(1) year thereafter, Mr. Drapeau 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. Mr. Drapeau understands
that it is the policy of the Company that only the Chief Executive Officer, the
Senior Vice President of Global Press and Public 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. Mr. Drapeau's
employment under this Second Amended 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, Mr. Drapeau 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 Mr. Drapeau as of the date of such
termination. In addition to the foregoing and subject to the provisions of
Section 19, Mr. Drapeau shall be entitled to Special Severance as described in
Section 19 and any other benefit provided in this Second Amended Agreement.
(b) Termination by the Company for Substantial Cause. Mr.
Drapeau's employment under this Second Amended 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, Mr. Drapeau 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 Mr. Drapeau to substantially perform his
duties, material breach of this Second Amended 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 Mr. Drapeau for Substantial Cause. Mr.
Drapeau's employment under this Second Amended Agreement may be terminated
immediately by Mr. Drapeau for substantial cause at any time. In the event of a
termination by Mr. Drapeau for substantial cause, Mr. Drapeau 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 Mr. Drapeau as of the date of such termination. In addition to the foregoing,
and subject to the provisions of Section 19, Mr. Drapeau shall be entitled to
Special Severance as described in Section 19 and any other benefit provided in
this Second Amended Agreement. "Substantial cause" shall mean for purposes of
this subsection a material reduction in Mr. Drapeau's authority or
responsibilities (including, but not limited to, any failure to nominate Mr.
Drapeau as a member of the Board of Directors of the Company at any election of
Directors during the term of this Agreement), or a material breach of this
Second Amended Agreement by the Company.
(d) Termination Due to Permanent Disability. Subject to all
applicable laws, Mr. Drapeau's employment under this Second Amended Agreement
may be terminated immediately by the Company in the event Mr. Drapeau becomes
permanently disabled. Permanent disability shall be defined as Mr. Drapeau's
failure to perform or being unable to perform all or substantially all of Mr.
Drapeau's duties under this Second Amended 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 Mr. Drapeau, and one of which has been selected by
the two other physicians jointly. In the event of a termination by the Company
due to Mr. Drapeau's permanent disability, Mr. Drapeau shall be entitled to (i)
any compensation accrued and unpaid as of the date of termination; (ii)
severance payments equal to Mr. Drapeau's then current base salary at the same
rate and on the same schedule as in effect at the time of termination for a
period of twenty-four (24) months from the date of termination; (iii) the
immediate vesting of outstanding but unvested stock options held by Mr. Drapeau
as of such termination date in a prorated amount based upon the number of days
in the option vesting period that elapsed prior to Mr. Drapeau's termination;
(iv) the payment of premiums owed for COBRA insurance benefits for a period of
time equal to the maximum time allowable under COBRA (currently eighteen (18)
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months), but not to exceed twenty-four (24) months under any circumstances; 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 Mr. Drapeau pursuant to disability or other insurance, or similar
sources, provided by the Company.
(e) Termination Due to Death. Mr. Drapeau's employment under
this Second Amended Agreement shall be terminated immediately by the Company in
the event of Mr. Drapeau's death. In the event of a termination due to Mr.
Drapeau's death, Mr. Drapeau's estate shall be entitled to (i) any compensation
accrued and unpaid as of the date of death; (ii) severance payments equal to Mr.
Drapeau's then current 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 Initial Term of this Agreement (through December 31, 2003) or
six (6) months from the date of death; (iii) the immediate vesting of
outstanding but unvested stock options held by Mr. Drapeau 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 Mr. Drapeau's death; and (iv) no other severance.
(f) Termination By Mutual Agreement of the Parties. Mr.
Drapeau's employment pursuant to this Second Amended 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.
(g) Pre-Termination Rights. The Company shall have the right, at
its option, to require Mr. Drapeau to vacate his 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 Second Amended 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 Mr. Drapeau's employment hereunder, then this
Second Amended Agreement shall be automatically renewed (the "Renewed Employment
Agreement") in the same form and substance as in effect immediately prior to the
Change in Control for an initial term of three (3) years commencing with the
date the Change in Control was effective (the "Renewal Term"), with further
extensions as provided in Section 1 of this Agreement.
(b) Notwithstanding anything in this Second Amended 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 Second Amended Agreement there is a
Termination Event (as defined below), Mr. Drapeau shall be treated as if he had
been terminated for the convenience of the Company pursuant to Section 8(a).
Furthermore, the provisions of Section 8 shall continue to apply during the term
of the Renewed Employment Agreement except that, in the event of a conflict
between Section 8 and the rights of Mr. Drapeau 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 Mr. Drapeau's permanent
disability (defined in Section 8(d)), Mr. Drapeau's death, or 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 Second
Amended Agreement by the Company;
(ii) a failure by the Company to obtain the assumption
of this Second Amended Agreement by any successor to the Company or any assignee
of all or substantially all of the Company's assets;
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(iii) any material diminishment in the title, position,
duties, responsibilities or status that Mr. Drapeau 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 Mr. Drapeau under the
terms of this Second Amended Agreement or any other agreement or understanding
between the Company and Mr. Drapeau, 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 Mr. Drapeau relocate or any
assignment to Mr. Drapeau of duties that would make it unreasonably difficult
for Mr. Drapeau to maintain the principal residence he had immediately prior to
the Change in Control.
10. SURRENDER OF EQUIPMENT, BOOKS AND RECORDS. Mr. Drapeau 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 Mr. Drapeau
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 Mr. Drapeau 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. Mr. Drapeau
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 Mr. Drapeau's employment with the Company.
11. GENERAL RELATIONSHIP. Mr. Drapeau 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 Second Amended 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 Mr. Drapeau or
observed by Mr. Drapeau, (iii) the designs, inventions and innovations and
related plans, strategies and applications which Mr. Drapeau develops during the
term of this Second Amended Agreement in connection with the work performed by
Mr. Drapeau 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 Second Amended Agreement or is otherwise a
violation of contractual, legal or fiduciary duties owed to the Company, which
violation is known to Mr. Drapeau; or (iii) information which, subsequent to
disclosure or observation, is obtained by Mr. Drapeau 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 Mr. Drapeau) and who is not
required to refrain from disclosing such information to others.
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(c) While employed by the Company, Mr. Drapeau will have access
to and become familiar with various Trade Secrets and Confidential Information.
Mr. Drapeau acknowledges that the Trade Secrets and Confidential Information are
owned and shall continue to be owned solely by the Company and/or its
affiliates. Mr. Drapeau agrees that he will not, at any time, whether during or
subsequent to his 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 Mr. Drapeau is
compelled to disclose it by governmental process. In the event Mr. Drapeau
believes that he is legally required to disclose any Trade Secrets or
Confidential Information, Mr. Drapeau 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 Second Amended Agreement, and shall be binding
upon Mr. Drapeau in perpetuity.
13. ASSIGNMENT OF RIGHTS.
(a) As used in this Second Amended 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
Second Amended Agreement, Mr. Drapeau agrees to assign to the Company all
Designs, Inventions and Innovations developed, conceived and/or reduced to
practice by Mr. Drapeau, alone or with anyone else, in connection with the work
performed by Mr. Drapeau for the Company during Mr. Drapeau's employment with
the Company, regardless of whether they are suitable to be patented, trademarked
and/or copyrighted.
(c) Mr. Drapeau agrees to disclose in writing to the Board of
Directors of the Company any Design, Invention or Innovation relating to the
business of the Company and/or its affiliates, which Mr. Drapeau develops,
conceives and/or reduces to practice in connection with any work performed by
Mr. Drapeau 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.
Mr. Drapeau shall disclose all Designs, Inventions and Innovations to the
Company, even if Mr. Drapeau does not believe that he is required under this
Second Amended Agreement, or pursuant to California Labor Code Section 2870, to
assign his interest in such Design, Invention or Innovation to the Company. If
the Company and Mr. Drapeau disagree as to whether or not a Design, Invention or
Innovation is included within the terms of this Second Amended Agreement, it
will be the responsibility of Mr. Drapeau to prove that it is not included.
(d) Pursuant to California Labor Code Section 2870, the
obligation to assign as provided in this Second Amended 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 Second Amended Agreement does not apply to any Design, Invention or
Innovation that Mr. Drapeau developed entirely on Mr. Drapeau'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 Mr. Drapeau for
the Company and/or its affiliates.
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(e) Mr. Drapeau agrees that any Design, Invention and/or
Innovation which is required under the provisions of this Second Amended
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 Mr. Drapeau, Mr.
Drapeau 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 Second Amended Agreement, and shall be binding
upon Mr. Drapeau in perpetuity.
14. ASSIGNMENT. This Second Amended Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and the successors and assigns
of the Company. Mr. Drapeau shall have no right to assign his rights, benefits,
duties, obligations or other interests in this Second Amended Agreement, it
being understood that this Second Amended Agreement is personal to Mr. Drapeau.
15. ENTIRE UNDERSTANDING. This Second Amended 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 Mr. Drapeau or the Company. This Second
Amended Agreement shall not be modified, amended or terminated except by another
instrument in writing executed by the parties hereto. This Second Amended
Agreement replaces and supersedes any and all prior understandings or agreements
between Mr. Drapeau and the Company regarding employment.
16. 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 Mr. Drapeau at the address currently on file with the
Company, and to the Company at:
Company: Callaway Golf Company
2180 Rutherford Road
Carlsbad, California 92008
Attn: Steven C. McCracken
Senior Executive Vice President, Chief Legal Officer
or to such other address as Mr. Drapeau or the Company may from time to time
furnish, in writing, to the other.
17. IRREVOCABLE ARBITRATION OF DISPUTES.
(a) MR. DRAPEAU AND THE COMPANY AGREE THAT ANY DISPUTE,
CONTROVERSY OR CLAIM ARISING HEREUNDER OR IN ANY WAY RELATED TO THIS SECOND
AMENDED AGREEMENT, ITS INTERPRETATION, ENFORCEABILITY, OR APPLICABILITY, OR
RELATING TO MR. DRAPEAU'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.
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(b) MR. DRAPEAU AND THE COMPANY AGREE THAT THE ARBITRATOR SHALL
HAVE THE AUTHORITY TO ISSUE PROVISIONAL RELIEF. MR. DRAPEAU AND THE COMPANY
FURTHER AGREE THAT EACH HAS THE RIGHT, PURSUANT TO CALIFORNIA CODE OF CIVIL
PROCEDURE SECTION 1281.8, TO APPLY TO A COURT FOR A PROVISIONAL REMEDY IN
CONNECTION WITH AN ARBITRABLE DISPUTE SO AS TO PREVENT THE ARBITRATION FROM
BEING RENDERED INEFFECTIVE.
(c) ANY DEMAND FOR ARBITRATION SHALL BE IN WRITING AND MUST BE
COMMUNICATED TO THE OTHER PARTY PRIOR TO THE EXPIRATION OF THE APPLICABLE
STATUTE OF LIMITATIONS.
(d) 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. THE COMPANY SHALL PAY THE COSTS OF THE ARBITRATOR'S FEES.
(e) THE ARBITRATION WILL BE DECIDED UPON A WRITTEN DECISION OF
THE ARBITRATOR STATING THE ESSENTIAL FINDINGS AND CONCLUSIONS UPON WHICH THE
AWARD IS BASED. THE ARBITRATOR SHALL HAVE THE AUTHORITY TO AWARD DAMAGES, IF
ANY, TO THE EXTENT THAT THEY ARE AVAILABLE UNDER APPLICABLE LAW(S). THE
ARBITRATION AWARD SHALL BE FINAL AND BINDING, AND MAY BE ENTERED AS A JUDGMENT
IN ANY COURT HAVING COMPETENT JURISDICTION. EITHER PARTY MAY SEEK REVIEW
PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1286, ET SEQ.
(f) 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. THE
ARBITRATOR SHALL ALLOW REASONABLE DISCOVERY AS PROVIDED IN THE CALIFORNIA
ARBITRATION ACT, BUT SHALL CONTROL THE AMOUNT AND SCOPE OF DISCOVERY.
(g) THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE EXPIRATION
OR TERMINATION OF THE SECOND AMENDED AGREEMENT, AND SHALL BE BINDING UPON THE
PARTIES.
THE PARTIES HAVE READ SECTION 17 AND IRREVOCABLY AGREE TO ARBITRATE ANY DISPUTE
IDENTIFIED ABOVE.
______ (MR. DRAPEAU) ______ (COMPANY)
18. MISCELLANEOUS.
(a) Headings. The headings of the several sections and
paragraphs of this Second Amended 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 Second Amended Agreement shall
in no way affect that party's rights thereafter to
9
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 Second Amended 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 Second Amended Agreement is or are held invalid, the remaining provisions
of this Second Amended Agreement shall not be affected thereby.
(e) Advertising Waiver. Mr. Drapeau 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 Mr. Drapeau's name and/or pictures of Mr. Drapeau taken in the course of
his provision of services to the Company and/or its affiliates, appear. Mr.
Drapeau hereby waives and releases any claim or right he may otherwise have
arising out of such use, publication or distribution.
(f) Counterparts. This Second Amended Agreement may be executed
in one or more counterparts which, when fully executed by the parties, shall be
treated as one agreement.
19. SPECIAL SEVERANCE.
(a) Amount. Special Severance shall consist of (i) severance
payments equal to one-half of Mr. Drapeau's then current base salary at the same
rate and on the same payment schedule as in effect at the time of termination
for a period equal to the greater of twenty-four (24) months from the date of
termination or the remainder of any Renewal Term; (ii) the payment of premiums
owed for COBRA insurance benefits for a period of time equal to the maximum time
allowable under COBRA (currently eighteen (18) months), but not to exceed
twenty-four (24) months under any circumstances; and (iii) no other severance.
(b) Conditions on Receiving 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 Second Amended Agreement
shall be subject to: (i) Mr. Drapeau's continued compliance with the terms and
conditions of Sections 7(b), 7(c), 7(e), 12, 13 and 17; and (ii) Mr. Drapeau
shall 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.
20. INCENTIVE PAYMENTS.
(a) Terms and Conditions. Subject to the requirements set forth
in this Section, Mr. Drapeau shall be eligible for Incentive Payments in the
event that Mr. Drapeau is terminated at the Company's convenience pursuant to
Sections 8(a) or 9(b), or terminates employment for substantial cause pursuant
to Section 8(c). Incentive Payments shall be equal to one-half of Mr. Drapeau's
then-current base salary at the rate and on the same payment schedule in effect
at the time of termination for a period equal to the greater of twenty-four (24)
months from the date of termination or the remainder of any Renewal Term.
Incentive Payments shall be conditioned upon Mr. Drapeau choosing not to engage
(whether as an owner, employee, agent, consultant, or in any other capacity) in
any business or venture that competes with the business of the Company or any of
its affiliates. If Mr. Drapeau chooses to engage in such activities, then the
Company shall have no obligation to make Incentive Payments for the period of
time during which Mr. Drapeau chooses to do so.
(b) Sole Consideration. Mr. Drapeau and the Company agree and
acknowledge that the sole and exclusive consideration for the Incentive Payments
is Mr. Drapeau's agreement as described
10
in subparagraph (a) above. In the event that subparagraph (a) is deemed
unenforceable or invalid for any reason, then the Company will have no
obligation to make Incentive Payments for the period of time during which it has
been deemed unenforceable or invalid. The obligations and duties of this Section
20 shall be separate and distinct from the other obligations and duties set
forth in this Second Amended Agreement, and any finding of invalidity or
unenforceability of this Section 20 shall have no effect upon the validity or
invalidity of the other provisions of this Second Amended Agreement.
21. TREATMENT OF SPECIAL SEVERANCE AND INCENTIVE PAYMENTS. Any Special
Severance and Incentive Payments shall be subject to usual and customary
employee payroll practices and all applicable withholding requirements. Except
for the amounts specifically provided pursuant to Sections 8, 19 and 20, Mr.
Drapeau 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 Mr. Drapeau pursuant to these Sections
shall not be treated as damages, but as compensation to which Mr. Drapeau may be
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 Mr. Drapeau pursuant to Sections 8, 19 and 20 any amounts earned by
Mr. Drapeau in other employment after termination of his employment with the
Company pursuant to this Second Amended Agreement, or any amounts which might
have been earned by Mr. Drapeau in other employment had Mr. Drapeau sought such
other employment. The provisions of Sections 8, 19 and 20 shall not limit Mr.
Drapeau'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 Mr. Drapeau is entitled pursuant to the
terms of such plan.
IN WITNESS WHEREOF, the parties have caused this Second Amended
Agreement to be executed effective the date first written above.
MR. DRAPEAU COMPANY
Callaway Golf Company,
a Delaware corporation
By:
- ----------------------------------- -------------------------------------
Ronald A. Drapeau Steven C. McCracken
Senior Executive Vice President,
Chief Legal Officer
11
EXHIBIT A
TAX INDEMNIFICATION
Pursuant to Section 6 of Mr. Drapeau's Second Amended Agreement
("Section 6"), the Company agrees to indemnify Mr. Drapeau 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 Mr. Drapeau 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 Second Amended 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 Mr. Drapeau 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), Mr. Drapeau 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 Company's
current accounting firm as its 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 Mr. Drapeau 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
12
Mr. Drapeau 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 Mr. Drapeau 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 Mr.
Drapeau 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 Mr. Drapeau, the Accounting Firm shall furnish Mr. Drapeau with a written
opinion that failure to disclose, report or pay the Excise Tax on Mr. Drapeau'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 Mr.
Drapeau in the absence of clear and indisputable mathematical error. Following
receipt of a Gross-Up Payment as provided herein, Mr. Drapeau 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 Mr. Drapeau 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 Mr.
Drapeau, in which case the Company shall pay the net balance of the Gross-Up
Payment (after deduction of such Excess Tax payment) to Mr. Drapeau.
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 Mr. Drapeau 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 Mr. Drapeau in which case Mr. Drapeau 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 Mr. Drapeau 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 Mr. Drapeau. In
the event that the Accounting Firm determines that an Overpayment has been made,
any such Overpayment shall be repaid by Mr. Drapeau to the Company within ninety
(90) days after written demand to Mr. Drapeau by the Company, provided, however,
that Mr. Drapeau 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 Mr. Drapeau to prosecute
a claim for a refund of such amount consistent with the principles set forth in
Section 5.
5. Mr. Drapeau 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 Mr. Drapeau'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 Mr. Drapeau 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 Mr. Drapeau 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. Mr. Drapeau 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 Mr. Drapeau 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 Mr. Drapeau that it does not intend to contest the Claim. If,
prior to expiration of such period, the Company notifies Mr. Drapeau in writing
that it desires to contest the Claim, Mr. Drapeau shall:
(a) give the Company any information reasonably requested by the
Company relating to the Claim;
13
(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 Mr. Drapeau;
(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 Mr.
Drapeau 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 Mr.
Drapeau 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,
Mr. Drapeau shall pay the same and sue for a refund or otherwise contest the
Claim in any permissible manner as directed by the Company. Mr. Drapeau 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 Mr. Drapeau to pay the Claim and sue for a refund, the Company shall
indemnify and hold Mr. Drapeau 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 Mr. Drapeau 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 Mr. Drapeau 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 Mr. Drapeau receives a refund from a tax authority of all or any
portion of an Excise Tax paid by or on behalf of Mr. Drapeau with amounts
advanced by the Company pursuant to Section 6 and this Exhibit A, Mr. Drapeau
shall promptly pay to the Company the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto). Mr. Drapeau
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 Mr. Drapeau 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 Mr. Drapeau shall not be entitled
to any refund and the Company does not notify Mr. Drapeau in writing of its
intent to contest such denial of refund prior to the expiration of thirty (30)
days after such determination, then Mr. Drapeau 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 Mr. Drapeau, 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
Mr. Drapeau.
14
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.
15