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EXHIBIT 10.47
FIRST AMENDMENT TO
EXECUTIVE OFFICER EMPLOYMENT AGREEMENT
This First Amendment to Executive Officer Employment Agreement ("First
Amendment") is effective as of November 13, 2000 by and between CALLAWAY GOLF
COMPANY, a Delaware corporation (the "Company") and CHARLES J. YASH ("Mr.
Yash").
A. The Company and Mr. Yash are parties to a certain Executive Officer
Employment Agreement entered into as of January 1, 2000 (the "Agreement").
B. In light of various changed circumstances, the Company and Mr. Yash
desire to amend the Agreement, pursuant to Section 16 of the Agreement, in the
manner set forth herein.
NOW, THEREFORE, in consideration of the foregoing and other consideration,
the value and sufficiency of which are hereby acknowledged, the Company and Mr.
Callaway hereby agree as follows:
1. Section 1 of the Agreement is hereby amended to read as follows:
1. TERM.
(a) The Company hereby employs Mr. Yash and Mr. Yash hereby
accepts employment pursuant to the terms and provisions of this Agreement
for the period commencing November 13, 2000 and terminating December 31,
2003 (the "Initial Term"), unless this Agreement is earlier terminated as
hereinafter provided.
(b) On December 31, 2003, and on each December 31 thereafter
(the "Extension Dates"), the expiration date of this Agreement shall be
automatically extended one (1) year, through December 31 of the following
year, so long as (a) this Agreement is otherwise still in full force and
effect, (b) Mr. Yash is still employed by the Company pursuant to this
Agreement, (c) Mr. Yash is not otherwise in breach of this Agreement, and
(d) neither the Company nor Mr. Yash has given notice as provided in
Section 1(c) of this Agreement.
(c) At any time prior to an Extension Date, either Mr. Yash
or the Company may give written notice to the other ("Notice") that the
next automatic extension of the expiration date of this Agreement pursuant
to Section 1(b) shall be the final such automatic extension of the
expiration date of this Agreement. Thus, if either Mr. Yash or the Company
gives Notice on or before December 31, 2003, and all other conditions for
automatic extension of the expiration date of this Agreement pursuant to
Section 1(b) exist, then on December 31, 2003, the expiration date of this
Agreement shall be extended pursuant to Section 1(b) from December 31, 2003
to December 31, 2004, with this Agreement expiring on that date (if not
earlier terminated pursuant to its terms) without any further automatic
extensions.
(d) Upon expiration of this Agreement, Mr. Yash's status
shall be one of at will employment.
2. Section 2 of the Agreement is hereby amended to read as follows:
2. SERVICES.
(a) Mr. Yash shall serve as Senior Executive Vice President,
Growth in Golf, of the Company. Mr. Yash's duties shall be the usual and
customary duties of the offices in which Mr. Yash serves. At the
discretion of the Board of Directors, Mr.
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Yash shall report to Ely Callaway so long as he is the Chief Executive
Officer; to Mr. Callaway's successor as Chief Executive Officer; or to the
President of the Company. Consistent with the foregoing, the Board of
Directors and/or the Chief Executive Officer of the Company may change Mr.
Yash's title, position and/or duties at any time.
(b) Mr. Yash 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. Yash agree that the services being
provided by Mr. Yash for the Company under the terms of this Agreement are
unique and intellectual in character and that Mr. Yash and the 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.
(d) The Company agrees to propose to the Board of Directors
of the Company that Mr. Yash be elected to the position of Vice Chairman of
the Board. It is understood, however, that whether Mr. Yash is elected to
that position or, if so elected, remains in that position, will be at the
complete discretion of the Board, and the Board's failure to elect Mr. Yash
to be Vice Chairman of the Board, or the Board's later removal of that
title from Mr. Yash, shall not constitute a breach of this Agreement.
3. Section 3 of the Agreement is hereby amended to read as follows:
3. SERVICES TO BE EXCLUSIVE. During the term hereof, Mr. Yash
agrees to devote his full productive time and best efforts to the
performance of Mr. Yash's duties hereunder pursuant to the supervision and
direction of the Company's Chief Executive Officer and, as applicable,
Board of Directors. Mr. Yash further agrees, as a condition to the
performance by the Company of each and all of its obligations hereunder,
that so long as Mr. Yash is employed by the Company or otherwise receiving
compensation or other consideration from the Company, Mr. Yash will not
directly or indirectly render services of any nature to, otherwise become
employed by, or otherwise participate or engage in any other business
without the Company's prior written consent. Mr. Yash 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. Yash 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. Yash's work for the Company.
4. Section 4(a) of the Agreement is hereby amended to read as follows:
(a) The Company agrees to pay Mr. Yash a base salary at the
rate of $700,000.00 per year.
5. Section 5(e) of the Agreement is hereby deleted in its entirety.
6. Section 5(f) of the Agreement is hereby renumbered as Section 5(e) and
amended to read as follows:
(e) Stock Options. Pursuant to a separate written stock
option agreement and subject to the approval of the Stock Option Committee
(Employee Plans) of the Board of Directors of the Company, in January 2001
Mr. Yash shall be granted options to purchase at least 50,000 shares of the
Common Stock of the Company. The options shall vest as stated in the stock
option agreement, provided Mr. Yash is then
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currently employed by the Company and not in breach of this Agreement. The
option price per share shall be the NYSE closing price of Callaway Golf
Common Stock on the date of the grant. The options will contain such
reasonable restrictions as determined by the Stock Option Committee
(Employee Plans), including without limitation, cancellation of options or
forfeiture of gain upon exercise if Mr. Yash discloses the Company's
confidential information or competes with the business of the Company.
Thereafter, Mr. Yash shall be considered for new stock option grants from
time to time, consistent with the treatment of other senior officers.
7. Section 8 of the Agreement is hereby amended to read as follows:
8. TERMINATION.
(a) Termination at the Company's Convenience. Mr. Yash's
employment under this Agreement may be terminated by the Company at its
convenience at any time. In the event of a termination by the Company for
its convenience, Mr. Yash 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. Yash as of the date of
such termination. In addition to the foregoing, and subject to the
provisions of Section 20, Mr. Yash shall be entitled to Special Severance
equal to (i) severance payments equal to Mr. Yash'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 time equal to twenty-four (24) months from
the date of termination; (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; (iii) the benefits specified in
Section 5(d) (Estate Planning and Other Perquisites) for a period of time
equal to twenty-four (24) months from the date of severance; and (iv) no
other severance.
(b) Termination by the Company for Substantial Cause. Mr.
Yash's employment under this Agreement may be terminated immediately by the
Company for substantial cause at any time. In the event of a termination
by the Company for substantial cause, Mr. Yash 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. Yash to substantially perform his or her
duties, breach of this Agreement, or misconduct, including but not limited
to, dishonesty, theft, use or possession of illegal drugs during work,
and/or felony criminal conduct.
(c) Termination by Mr. Yash for Substantial Cause. Mr. Yash's
employment under this Agreement may be terminated immediately by Mr. Yash
for substantial cause at any time. In the event of a termination by Mr.
Yash for substantial cause, Mr. Yash 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. Yash as of the
date of such termination. In addition to the foregoing, and subject to the
provisions of Section 20, Mr. Yash shall be entitled to Special Severance
equal to (i) severance payments equal to Mr. Yash'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 time equal to twenty-four (24) months from
the date of termination; (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; (iii) the benefits specified in
Section 5(d) (Estate Planning and Other Perquisites) for a period of time
equal to twenty-four (24) months from the date of severance; and (iv) no
other severance. "Substantial cause" shall mean for purposes of this
subsection a material breach of this Agreement by the Company.
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(d) Termination Due to Permanent Disability. Subject to all
applicable laws, Mr. Yash's employment under this Agreement may be
terminated immediately by the Company in the event Mr. Yash becomes
permanently disabled. Permanent disability shall be defined as Mr. Yash's
failure to perform or being unable to perform all or substantially all of
Mr. Yash's duties under this Agreement for a continuous period of more than
six (6) months on account of any physical or mental disability, either as
mutually agreed to by the parties or as reflected in the opinions of three
qualified physicians, one of which has been selected by the Company, one of
which has been selected by Mr. Yash, 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. Yash's permanent disability, Mr. Yash shall be entitled
to (i) any compensation accrued and unpaid as of the date of termination;
(ii) severance payments equal to Mr. Yash'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 time equal to twenty-four (24) months from the date of
termination; (iii) the immediate vesting of outstanding but unvested stock
options held by Mr. Yash 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. Yash'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) 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. Yash pursuant to disability or other insurance, or similar
sources, provided by the Company.
(e) Termination Due to Death. Mr. Yash's employment under
this Agreement shall be terminated immediately by the Company in the event
of Mr. Yash's death. In the event of a termination due to Mr. Yash's
death, Mr. Yash's estate shall be entitled to (i) any compensation accrued
and unpaid as of the date of death; (ii) severance payments equal to Mr.
Yash'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 term of this Agreement or six (6) months from the
date of death; (iii) the immediate vesting of outstanding but unvested
stock options held by Mr. Yash 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. Yash's death; and (iv) no other severance.
(f) Any severance payments shall be subject to usual and
customary employee payroll practices and all applicable withholding
requirements. Except for such severance pay and other amounts specifically
provided pursuant to this Section 8, Mr. Yash 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. Yash pursuant to this Section 8 shall not be treated as
damages, but as severance compensation to which Mr. Yash is entitled by
reason of termination of employment under the applicable circumstances. The
Company shall not be entitled to set off against the amounts payable to Mr.
Yash hereunder any amounts earned by Mr. Yash in other employment after
termination of his or her employment with the Company pursuant to this
Agreement, or any amounts which might have been earned by Mr. Yash in other
employment had Mr. Yash sought such other employment. The provisions of
this Section 8 shall not limit Mr. Yash'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. Yash is entitled pursuant to the terms of such plan.
(g) Termination By Mutual Agreement of the Parties. Mr.
Yash's employment pursuant to this Agreement may be terminated at any time
upon the mutual agreement in writing of the parties. Any such termination
of employment shall have the
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consequences specified in such agreement.
(h) Pre-Termination Rights. The Company shall have the right,
at its option, to require Mr. Yash to vacate his or her office or otherwise
remain off the Company's premises and to cease any and all activities on
the Company's behalf without such action constituting a termination of
employment or a breach of this Agreement.
8. This First Amendment is subject to the approval of the Compensation and
Management Succession Committee of the Board of Directors of the Company. But
for the amendments contained herein, and any other written amendments properly
executed by the parties, the Agreement shall otherwise remain unchanged.
IN WITNESS WHEREOF, the Company and Mr. Yash have caused this First
Amendment to be executed effective as of the date set forth above.
MR. YASH COMPANY
Callaway Golf Company,
a Delaware corporation
By:
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Charles J. Yash Ely Callaway, Chairman & Chief Executive Officer
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