Agreement with Mr. Weil

 

October 24, 2007

Mr. Allan Fletcher
c/o Ashworth, Inc.
2765 Loker Avenue West
Carlsbad
, CA 92010

Re: Employment at Ashworth, Inc.

Dear Mr. Fletcher:

In accordance with our recent discussions, we are pleased to confirm our offer to you of a position with Ashworth, Inc. (the “Company”) upon the following terms and conditions:

1. Position; Reporting; Commencement: Your position shall be Chief Executive Officer or any equivalent title and you shall report to the Board of Directors. You will commence employment effective October 24, 2007. You will be required to observe the Company’s personnel and business policies and procedures.

2. Base Salary; Reviews: You will receive an annual salary of $1.00, less applicable withholding and deductions, which is payable on the first day of each year.

3. Bonus: You will have an opportunity to receive an annual bonus that will be determined by the Company’s Compensation and Human Resource Committee. The Compensation and Human Resource Committee will determine the bonus amount based on achievement of Company and individual objectives as set out within the Company’s annual business plan developed by senior management of the Company and approved by the Board of Directors. Your target bonus for fiscal year 2008 based on full achievement of the 2008 business plan objectives will be $500,000 but can be more or less depending on performance. In order to be eligible for the bonus program you must be employed with Ashworth, Inc. through the end of each fiscal year.

4. Business Expenses; Miscellaneous Expenses; Auto Allowance: You will receive reimbursement for normal, ordinary and reasonable business expenses (including business class airfare for yourself) upon your submission of receipts substantiating the expenses claimed in accordance with Company policy. In addition, in light of the distance you will be traveling from home to accept employment with the Company, you will receive reimbursement of up to $40,000 per year for discretional out-of-pocket expenses that might not otherwise be covered by Company policy. You will also receive an auto allowance of $1,000 per month, paid bi-weekly less applicable withholding.

5. Stock Options: The Company will grant you 100,000 non-qualified options to purchase shares of the Company’s common stock at an exercise price equal to the closing share price the day of the Compensation and Human Resources Committee’s grant, which is expected to be the first day of your employment. The options will vest over a two-year period, i.e., 50,000 will vest on the one-year anniversary of the grant and 50,000 will vest on the two-year anniversary of the grant. The option vesting will be accelerated upon the Company’s termination of your employment either without cause, as defined below, or as a result of a change in control. The foregoing options will be exercisable for a period of time from the vesting date until the earlier of (a) one year after termination of your employment for any reason, or (b) ten years after the date of grant.

6. Residential Expenses: You will receive reimbursement for reasonable residential expenses, in lieu of moving expenses, during the term of this Agreement. This amount will include reasonable housing and all other reasonable expenses incurred to enable you to be housed near the Company’s headquarters in premises suitable to your status as Chief Executive Officer of the Company.

7. Country Club Membership: You will be reimbursed by the Company for your purchase of a membership in a country club of your choice in the Southern California area, up to a maximum of $50,000 (which amount need not repaid to the Company upon employment termination). In addition, during the term of this Agreement, you will be reimbursed by the Company for regular and normal membership dues paid by you to such country club up to $1,000 per month.

8. Confidentiality; Use of Licensed Software; Non-Competition; Solicitation of Employees; Return of Property; Termination: You acknowledge that, in the course of your employment with the Company, you will have access to Confidential Information concerning the organization and functioning of the business of the Company, and that such information is a valuable trade secret and the sole property of the Company. Accordingly, except as required by law, legal process, or in connection with any litigation between the parties hereto with respect to matters arising out of this agreement, you agree that you will not, at any time during your employment with the Company or after such employment, whether such employment is terminated as a result of your resignation or discharge, disclose or furnish any such information to any person other than an employee or director of the Company, in the course and scope of your employment, and you will make no use of any such information for your personal benefit.

For the purposes of this Agreement, information shall not be deemed to be “Confidential Information” to the extent that the information (i) is in the public domain, or hereafter becomes generally known or available through no action or omission on your part; (ii) is furnished (other than by you) to any person by the Company or an affiliate, as applicable, other than to a subsidiary of or other company related to the Company, without restriction on disclosure; (iii) becomes known to you from a source other than the Company or an affiliate without a breach of this Agreement or any other agreement with the Company or an affiliate and without any restriction on disclosure; or (iv) is your general knowledge or skill acquired prior to your employment with the Company.

You agree that while employed by the Company and until and for a period of one year following the date of voluntary or involuntary termination, you will not, directly or indirectly, provide services, whether as an employee, consultant, director, independent contractor, agent, owner or partner, to any person or entity that competes or is planning to compete with the Company; provided, however, that (i) your passive investment of up to five percent (5%) of the outstanding voting securities or similar equity interest in a publicly held entity and (ii) your provision of services to the Fletcher Group shall not be deemed a breach of this Agreement.

You agree that during the period of your employment and for a period of two years from the date of voluntary or involuntary termination, you will not directly or indirectly (a) solicit, induce, or attempt to influence any person or business that is an account, customer or client of the Company or any subsidiary to restrict or cancel the business of any such account, customer or client with the Company or any subsidiary, or (b) solicit on your behalf, or on behalf of a third party, any then-current employee or sales representative of the Company or any subsidiary or affiliate, to leave his or her employment with or sales representation of the Company or any subsidiary or affiliate; provided, however, that nothing herein shall be deemed to prohibit a general employment solicitation directed at the public.

You further agree that in the event of such termination, whether voluntary or involuntary, you will not remove from the offices of the Company any personal property that does not rightfully and legally belong to you and that you will return on the date of your said termination, to an authorized representative of the Company, any and all property belonging to the Company. You also agree that you will provide passwords on request for personal computer files.

9. At-Will Employment: You understand and agree that you are being employed for an unspecified term and that this is an “at-will” employment relationship. This means that either you or the Company may terminate your employment at will at any time with or without cause or notice. This at-will aspect of your employment, which includes only the right of the Company to terminate you to the exclusion of any transfer, demotion and/or reassignment, which will be deemed termination without cause for the purpose hereof if you resign as a result, may not be modified, amended or rescinded except by an individual written agreement signed by both you and the Company’s Chairman of the Board. This letter sets forth the entire agreement between the parties and there are no prior or contemporaneous representations, promises or conditions, whether oral or written, to the contrary. Without limiting the foregoing and for the avoidance of doubt, in the event of any termination, whether voluntary or involuntary, or with or without cause, you will not be entitled to any payments or benefits, including without limitation any severance payment, other than the acceleration of the stock options granted pursuant to paragraph 5 hereof under the specific circumstances described in paragraph 5 hereof.

For the purpose of this agreement, “cause” shall mean:

 

1.

 

Willful and deliberate refusal to comply with a lawful instruction of the Board of Directors, which refusal is not remedied by you within a reasonable period of time after receipt of written notice from the Company identifying the refusal, so long as the instruction is consistent with the scope and responsibilities of your position;

 

 

2.

 

Your act or acts of personal dishonesty;

 

 

3.

 

Your conviction of a felony;

 

 

4.

 

Your violation of the Company’s policies and/or code of conduct;

 

 

5.

 

Your violation of any confidentiality or non-competition agreement with the Company or any affiliate of the Company; or

 

 

6.

 

The willful engaging by you in misconduct which is injurious to the Company.

This offer of employment is contingent upon the satisfactory completion of a background check. The Company reserves the right to withdraw an offer of employment, or to terminate employment, at any time based on information arising from the background check.

If you are in agreement with the terms of this letter, please sign and return one copy to the Human Resource Department and retain one copy for your files to confirm the terms of your employment. If you have any questions, please contact me at your earliest convenience.

Sincerely,

/s/ David M. Meyer
David M. Meyer
Chairman of the Board

Accepted and agreed to this
24th day of October, 2007:

/s/ Allan Fletcher
Allan Fletcher

 

 

 

 

November 27, 2006

Mr. Peter M. Weil
53 Bonad Road
West
Newton, MA 02465

Re: Employment at Ashworth, Inc.

Dear Mr. Weil:

In accordance with our recent discussions, we are pleased to confirm our offer to you of a position with Ashworth, Inc. (the “Company”) upon the following terms and conditions:

1.

 

Position; Reporting; Commencement: The initial position title shall be Chief Executive Officer and you shall report to the Board of Directors. You commenced employment effective October 30, 2006. You will be required to observe the Company’s personnel and business policies and procedures. In the event of any conflict, the terms of this letter will control.

 

2.

 

Base Salary; Reviews: You will receive a bi-weekly salary of $15,384.62 less applicable withholding and deductions, which is payable every other Friday. Employees are given annual performance reviews on or about May of each year.

 

3.

 

Bonus: You have an opportunity to receive an annual bonus equal to 50 % of your annual base salary if the Company meets the plan. The bonus will have upside potential based on the matrix approved by the Compensation and Human Resource Committee. The Compensation and Human Resource Committee will determine the bonus amount based on the operating performance versus the performance metrics. In order to be eligible for the bonus program you must be employed with Ashworth, Inc. through the end of each fiscal year. However, in the event that you shall become disabled during the term of this Agreement for a continuous period up to ninety days, or upon termination of your employment as a result of your death, the Company shall pay a pro rata share of the annual bonus in the year in which you were disabled or died. For the purpose of this Agreement, disability shall mean mental or physical illness or condition rendering you incapable of performing your normal duties with the Company.

 

4.

 

Business Expenses, Clothing Allowance, Auto Allowance. You will receive reimbursement for normal, ordinary and reasonable business expenses upon your submission of receipts substantiating the expenses claimed in accordance with Company policy. You will receive a Clothing Allowance in accordance with Company policy. You will receive an annual auto allowance of $1,250 per month, paid bi-weekly less applicable withholding.

 

5.

 

Stock Options: The Company has granted you 100,000 options to purchase shares of the Company’s common stock at an exercise price equal to the closing share price the day of the Compensation Committee’s grant (11/1/06). The options will vest over a two-year period, i.e. 50,000 vesting on the one-year anniversary of the grant (11/1/07) and 50,000 vesting on the two-year anniversary of the grant (11/1/08). The option vesting will be accelerated upon termination either without cause, as defined below, or as a result of a change in control. Options will be exercisable for a period of time from the vesting date as defined by the Company’s Stock Option Plan. You have an opportunity, subject to the Board of Director’s discretion, to receive additional stock options each year during the annual review process.

The unvested portion (2,500 shares) of the non-employee director options that you were granted on June 1, 2006 will be canceled, and you are no longer eligible to receive non-employee director annual options. In addition the unvested portion (12,100 shares) of the options that you were granted in conjunction with your consulting agreement on September 12, 2006 will be canceled.

6.

 

Savings Plan: You will be eligible to participate in the Company’s 401(k) Plan at the first entry date following the completion of six months continuous employment with the Company. Under the current provisions, you will be eligible as of July 1, 2007.

 

7.

 

Insurance Benefits: The Company will provide you with coverage under its group medical, dental and life insurance policies as more specifically described in the group insurance materials which will be provided to you. The cost of the medical and dental coverage will be shared between you and the Company, depending on your plan and coverage elections. Under the current provisions, you will be eligible as of December 1, 2006. In addition, you will be eligible for Ashworth’s Exec-U-Care health benefits. This benefit reimburses you and your eligible dependents for medical expenses not covered by your group major health plan or by any other group health plan. The Company reserves the right to change, modify or eliminate such benefits or coverages in its discretion.

 

8.

 

Residential Expenses: You will receive reimbursement for reasonable residential expenses, in lieu of moving expenses, until such time as the C&HR Committee or the Board takes further action. This amount will include housing and all reasonable expenses incurred (to be grossed up for taxes if applicable).

 

9.

 

Severance: If the Company terminates your employment without cause, the Company agrees to pay you a severance package equal to twelve months of your then current base salary. Payment may be delayed six months if required by IRC§409A.

 

10.

 

Confidentiality; Use of Licensed Software; Solicitation of Employees; Return of Property; Termination: You acknowledge that, in the course of your employment with the Company, you will have access to confidential information concerning the organization and functioning of the business of the Company, and that such information is a valuable trade secret and the sole property of the Company. Accordingly, except

as required by law, legal process, or in connection with any litigation between the parties hereto with respect to matters arising out of this agreement, you agree that you will not, at any time during your employment with the Company or after such employment, whether such employment is terminated as a result of your resignation or discharge, disclose or furnish any such information to any person other than an employee or director of the Company, in the course and scope of your employment and you will make no use of any such information for your personal benefit.

The Company licenses the use of computer software from a variety of outside companies and, unless authorized by the software developer, does not have the right to reproduce it. You may use software only
in accordance with the license agreement, whether on local area networks or on multiple machines. If you make, acquire or use unauthorized copies of such computer software, you shall be disciplined as appropriate under the circumstances. Such discipline may include termination.

You agree that for a period of two years from the date of voluntary or involuntary termination, you will not solicit on your behalf, or on behalf of a third party, any then current employee of the Company, to leave his or her employment with the Company for employment or consulting with another employer.

You further agree that in the event of such termination, whether voluntary or involuntary, you will not remove from the offices of the Company any personal property that does not rightfully and legally belong to you and that you will return on the date of your said termination, to an authorized representative of the Company, any and all property belonging to the Company. You also agree that you will provide passwords on request for personal computer files.

11.

 

At-Will Employment. You understand and agree that you are being employed for an unspecified term and that this is an “at-will” employment relationship. This means that either you or the Company may terminate your employment at will at any time with or without cause or notice. This at-will aspect of your employment, which includes the right of the Company to transfer, discipline, demote and/or reassign, may not be modified, amended or rescinded except by an individual written agreement signed by both you and the Company’s Chairman of the Board. This letter sets forth the entire agreement between the parties and there are no prior or contemporaneous representations, promises or conditions, whether oral or written, to the contrary.

For the purpose of this agreement, “Cause” shall mean:

 

1.

 

Willful and deliberate refusal to comply with a lawful, instruction of the Board of Directors, which refusal is not remedied by you within a reasonable period of time after receipt of written notice from the Company identifying the refusal, so long as the instruction is consistent with the scope and responsibilities of your position;

 

 

2.

 

Your act or acts of personal dishonesty;

 

 

3.

 

Your conviction of a felony;

 

 

4.

 

Your violation of the Company’s policies and/or code of conduct;

 

 

5.

 

Your violation of any confidentiality or non-competition agreement with the Company or any Affiliate of the Company; or

 

 

6.

 

The willful engaging by you in misconduct which is injurious to the Company.

This offer of employment is contingent upon the satisfactory completion of a background check, verifying that the information provided by you on your application and resume is accurate and correct. The Company reserves the right to withdraw an offer of employment, or to terminate employment, at any time based on information arising from the background check.

If you are in agreement with the terms of this letter, please sign and return one copy to the Human Resource Department and retain one copy for your files to confirm the terms of your employment. If you have any questions, please contact me at your earliest convenience.

Sincerely,

/s/ James B. Hayes
James B. Hayes
Chairman of the Board

ACCEPTED AND AGREED TO THIS
27th DAY OF November 2006

/s/ Peter M. Weil
Peter M. Weil

 

 

PETER WEIL AGREEMENT

     THIS AGREEMENT, dated as of September 12, 2006, is between ASHWORTH, INC., a Delaware corporation and its successors or assignees (“Ashworth”) and PETER M. WEIL, an individual (“Mr. Weil”).

     1. ENGAGEMENT OF SERVICES. Ashworth is engaging the services, advice, expertise and counsel of Mr. Weil on subjects of corporate management and operations and decision-making within the Office of the Chairman. Subject to the terms of this Agreement, Mr. Weil will, to the best of his ability, render these duties which, during the term of this Agreement, will essentially require Mr. Weil’s full-time attention. All assignments to Mr. Weil must be approved by mutual agreement of Mr. Weil and either the Chairman of the Ashworth Board or the Ashworth Board of Directors (the “Board”) itself, and the scope of Mr. Weil’s authority and services with respect to such assignments will be similarly determined by mutual agreement. Mr. Weil agrees to serve as a member of Ashworth’s Office of the Chairman, which reports directly to the Chairman of the Board of Directors of the Company. Mr. Weil’s engagement hereunder is at will, and nothing in this Agreement shall confer any right with respect to the continuation of Mr. Weil’s engagement by Ashworth. Ashworth will make its employees, facilities and equipment reasonably available to Mr. Weil in order for him to perform his duties under this Agreement. Mr. Weil may not subcontract or otherwise delegate his obligations under this Agreement without Ashworth’s prior written consent.

     2. COMPENSATION. In view of the time commitments associated with his duties under this Agreement as well as his continuing duties a Director on the Board, and until further action of the Board, Mr. Weil shall be compensated for all services under this Agreement and as a Director for the duration of service under this Agreement with an aggregate cash retainer of $30,000 per month (or pro rata portion of each month, as relevant), payable at the end of each month of service. In this regard and during the term of this Agreement, Mr. Weil shall not receive a separate cash retainer or per Board Meeting fees for his continuing service as a Director of the Board.

     As additional compensation, Ashworth hereby grants to Mr. Weil a non-qualified stock option grant covering 25,000 shares of Ashworth’s common stock, with an exercise price equal to 100% of fair market value of the common stock on the date of grant. The foregoing option shall vest over a three-month period on a daily basis (inclusive of week-ends and holidays). Vesting shall cease upon termination of this Agreement, for any reason, and the option shall remain exercisable for a period of five (5) years after the date of grant. The foregoing option grant, and any future grants made pursuant to this Section 2, are in addition to, and not in lieu of, any and all stock option grants to Mr. Weil for his continuing service on the Board.

     If this Agreement is not terminated earlier, a comparable stock option grant covering 25,000 shares of common stock shall be made on each three-month anniversary of the Effective Date with comparable terms and conditions.

     Mr. Weil will promptly be reimbursed for reasonable out-of-pocket expenses incurred in connection with the performance of services under this Agreement provided Mr. Weil submits

 


 

verification of such expenses as Ashworth may reasonably require. Upon termination of this Agreement for any reason, Mr. Weil will be paid fees and expenses earned or accrued through the date of termination.

     3. INDEPENDENT CONTRACTOR RELATIONSHIP. Mr. Weil’s relationship with Ashworth will be that of an independent contractor and nothing in this Agreement should be construed to create a partnership, joint venture, or employer-employee relationship. Mr. Weil will not be entitled to any of the benefits that Ashworth may make available to its employees, such as group insurance, profit-sharing or retirement benefits. Mr. Weil will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state or local tax authority with respect to his performance of services and receipt of fees under this Agreement. Ashworth will regularly report amounts paid to Mr. Weil by filing Form 1099-MISC with the Internal Revenue Service as required by law. Because Mr. Weil is an independent contractor, Ashworth will not withhold or make payments for social security; make unemployment insurance or disability insurance contributions; or obtain worker’s compensation insurance on Mr. Weil’s behalf. Mr. Weil agrees to accept exclusive liability for complying with all applicable state and federal laws governing self-employed individuals, including obligations such as payment of taxes, social security, disability and other contributions based on fees paid to Mr. Weil , his agents or employees under this Agreement. Mr. Weil hereby agrees to indemnify and defend Ashworth against any and all such taxes or contributions, including penalties and interest.

     4. TRADE SECRETS — INTELLECTUAL PROPERTY RIGHTS.

          4.1 Proprietary Information. Mr. Weil agrees that, at all times during the term of this Agreement and at all times thereafter, he will take all steps necessary to hold all Proprietary Information (as defined below) in the strictest trust and confidence, will not directly or indirectly use any Proprietary Information in any manner or for any purpose not expressly set forth in this Agreement, will not directly or indirectly disclose any Proprietary Information to any third party, and will not exhibit, demonstrate, or otherwise display Proprietary Information without first obtaining the express prior written consent of the Chairman of the Board. “Proprietary Information” means any knowledge, data or other information of or relating to the Company not lawfully in the public domain, including, without limitation, the following:

          (a) trade secrets, inventions, mask works, ideas, processes, formulas, source and object codes, data, programs, other works of authorship, know-how, improvements, discoveries, developments, prototypes, experimental work, computer programs, designs, and techniques (hereinafter collectively referred to as “Inventions”);

          (b) information regarding development, plans for research, current products, new products, marketing and selling, business or strategic plans, strategies, budgets, licenses, unpublished financial statements, prices and costs, other financial information, suppliers and customers; and

          (c) information regarding employees, other consultants and licensees or licensors of Ashworth, as well as the skills and compensation of such persons.

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          4.2 Third Party Information. Mr. Weil understands that Ashworth may receive from third parties confidential or proprietary information (“Third Party Information”) subject to a duty on Ashworth’s part to maintain the confidentiality of such information and use it only for certain limited purposes. Mr. Weil agrees to hold Third Party Information in confidence and not to directly or indirectly disclose to anyone (other than Ashworth personnel or authorized representatives who need to know such information in connection with their work for Ashworth) or to use, directly or indirectly, except in connection with Mr. Weil’s services for Ashworth, Third Party Information unless expressly authorized in writing by the Chairman of the Board.

          4.3 No Conflict of Interest. Mr. Weil agrees during the term of this Agreement not to accept work or enter into a contract or accept an obligation, inconsistent or incompatible with Mr. Weil’s obligations under this Agreement or the scope of his duties rendered for Ashworth. Mr. Weil warrants that to the best of his knowledge that there is no existing contract or duty on Mr. Weil’s part that may conflict with the terms of this Agreement. Mr. Weil further agrees not to disclose to Ashworth, or bring onto Ashworth’s premises, or induce Ashworth to use any confidential information that belongs to anyone other than Ashworth or Mr. Weil.

          4.4 Disclosure of Work Product. As used in this Agreement, the term “Work Product” means any Invention, whether or not patentable, and all related know-how, designs, mask works, trademarks, formulae, processes, manufacturing techniques, trade secrets, ideas, artwork, prototypes, software or other copyrightable or patentable works. Mr. Weil agrees to disclose promptly in writing to Ashworth, or any person designated by Ashworth, all Work Product that is solely or jointly conceived, made, reduced to practice, or learned by Mr. Weil in the course of any work performed for Ashworth (“Ashworth Work Product”). Mr. Weil represents that any Work Product relating to Ashworth’s business or any project that Mr. Weil has made, conceived or reduced to practice at the time of signing this Agreement (“Prior Work Product”) has been disclosed in writing to Ashworth and attached to this Agreement as Exhibit A. If disclosure of any such Prior Work Product would cause Mr. Weil to violate any prior confidentiality agreement, Mr. Weil understands that he is not to list such Prior Work Product in Exhibit A but he will disclose a cursory name for each such invention, a listing of the party(ies) to whom it belongs, and the fact that full disclosure as to such Prior Work Product has not been made for that reason. A space is provided in Exhibit A for such purpose.

          4.5 Ownership of Work Product. Mr. Weil agrees that any and all Inventions conceived, written, created or first reduced to practice in the performance of work under and related to this Agreement shall be the sole and exclusive property of Ashworth.

          4.6 Assignment of Ashworth Work Product. Mr. Weil irrevocably assigns to Ashworth all right, title and interest worldwide in and to the Ashworth Work Product and all applicable intellectual property rights related to the Ashworth Work Product, including without limitation, copyrights, trademarks, trade secrets, patents, moral rights, contract and licensing rights (the “Proprietary Rights”). Except as set forth below, Mr. Weil retains no rights to use the Ashworth Work Product and agrees not to challenge the validity of Ashworth’s ownership in the Ashworth Work Product.

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          4.7 Waiver or Assignment of Other Rights. If Mr. Weil has any rights to the Ashworth Work Product that cannot be assigned to Ashworth, Mr. Weil unconditionally and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against Ashworth with respect to such rights, and agrees, at Ashworth’s request and expense, to consent to and join in any action to enforce such rights. If Mr. Weil has any right to the Ashworth Work Product that cannot be assigned to Ashworth or waived by Mr. Weil, Mr. Weil unconditionally and irrevocably grants to Ashworth during the term of such rights, an exclusive, irrevocable, perpetual, worldwide, fully paid and royalty-free license, with rights to sublicense through multiple levels of sublicensees, to reproduce, create derivative works of, distribute, publicly perform and publicly display by all means now known or later developed, such rights.

          4.8 Assistance. Mr. Weil agrees to cooperate with Ashworth or its designee(s), both during and after the term of this Agreement, in the procurement and maintenance of Ashworth’s rights in Ashworth Work Product and to execute, when requested, any other documents deemed necessary by Ashworth to carry out the purpose of this Agreement. Mr. Weil agrees to promptly execute upon Ashworth’s request a signed transfer of copyright to Ashworth in the form attached to this Agreement as Exhibit B for all Ashworth Work Product subject to copyright protection, including, without limitation, computer programs, notes, sketches, drawings and reports.

          4.9 Enforcement of Proprietary Rights. Mr. Weil will assist Ashworth in every proper way to obtain, and from time to time enforce, United States and foreign Proprietary Rights relating to Ashworth Work Product in any and all countries. To that end Mr. Weil will execute, verify and deliver such documents and perform such other acts (including appearances as a witness) as Ashworth may reasonably request for use in applying for, obtaining, perfecting, evidencing, sustaining and enforcing such Proprietary Rights and the assignment thereof. In addition, Mr. Weil will execute, verify and deliver assignments of such Proprietary Rights to Ashworth or its designee. Mr. Weil’s obligation to assist Ashworth with respect to Proprietary Rights relating to such Ashworth Work Product in any and all countries shall continue beyond the termination of this Agreement, but Ashworth shall compensate Mr. Weil at a reasonable rate after such termination for the time actually spent by Mr. Weil at Ashworth’s request on such assistance.

          4.10 Execution of Documents. In the event Ashworth is unable for any reason, after reasonable effort, to secure Mr. Weil’s signature on any document needed in connection with the actions specified in the preceding Sections 4.8 and 4.9, Mr. Weil hereby irrevocably designates and appoints Ashworth and its duly authorized officers and agents as his agent and attorney-in-fact, which appointment is coupled with an interest, to act for and on his behalf to execute, verify and file any such documents and to do all other lawfully permitted acts to further the purposes of the preceding paragraph with the same legal force and effect as if executed by Mr. Weil. Mr. Weil hereby waives and quitclaims to Ashworth any and all claims, of any nature whatsoever, that Mr. Weil now or may hereafter have for infringement of any Proprietary Rights assigned or attempted to be assigned hereunder to Ashworth.

     5. MR. WEIL’S REPRESENTATIONS AND WARRANTIES. Mr. Weil hereby represents and warrants to Ashworth that:

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          (a) the Ashworth Work Product will be an original work of Mr. Weil and any third parties will have executed assignment of rights reasonably acceptable to Ashworth;

          (b) neither the Ashworth Work Product nor any element thereof will infringe the Intellectual Property Rights of any third party;

          (c) neither the Ashworth Work Product nor any element thereof will be subject to any restrictions or to any mortgages, liens, pledges, security interests, encumbrances or encroachments;

          (d) Mr. Weil will not grant, directly or indirectly, any rights or interest whatsoever in the Ashworth Work Product to third parties;

          (e) Mr. Weil has full right and power to enter into and perform this Agreement without the consent of any third party; and

          (f) Mr. Weil will take all reasonably necessary precautions to prevent injury to any persons (including employees of Ashworth) or damage to property (including Ashworth’s property) during the term of this Agreement.

     6. INDEMNIFICATION. Mr. Weil will indemnify and hold harmless Ashworth, its officers, directors, employees, sublicensees, customers and agents from any and all claims, losses, liabilities, damages, expenses and costs (including actual attorneys’ fees and court costs) that result from a breach or alleged breach of any representation or warranty of Mr. Weil (a “Claim”) set forth in Section 5 of this Agreement, provided that Ashworth gives Mr. Weil written notice of any such Claim and Mr. Weil has the right to participate in the defense of any such Claim at his expense. Notwithstanding this right of participation, Ashworth retains the sole and exclusive right to select legal counsel for itself. From the date of written notice from Ashworth to Mr. Weil of any such Claim, Ashworth shall have the right to withhold from any payments due Mr. Weil under this Agreement the amount of any defense costs, plus additional reasonable amounts as security for Mr. Weil’s obligations under this Section 6.

     7. TERMINATION.

          7.1 Termination by Ashworth. Ashworth may terminate this Agreement at its convenience and without any breach by Mr. Weil upon written notice to Mr. Weil. Ashworth may also terminate this Agreement immediately in its sole discretion upon Mr. Weil’s material breach of Section 4 or any other section of this Agreement.

          7.2 Termination by Mr. Weil. Mr. Weil may terminate this Agreement at any time upon written notice to Ashworth. Mr. Weil may also terminate this Agreement immediately in his sole discretion upon Ashworth’s material breach of this Agreement.

          7.3 Return of Ashworth Property. Upon termination of the Agreement for any reason, Mr. Weil will deliver to Ashworth any and all drawings, notes, computer source or object code, memoranda, specifications, devices, formulas, and documents, together with all copies thereof, and any other material containing or disclosing any Ashworth Work Product, Third Party Information or Proprietary Information of Ashworth. Mr. Weil further agrees that

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any property situated on Ashworth’s premises and owned by Ashworth, including disks and other storage media, filing cabinets or other work areas, is subject to inspection by Ashworth personnel at any time with or without notice.

     8. GENERAL PROVISIONS.

          8.1 Governing Law. This Agreement will be governed and construed in accordance with the laws of the State of California as applied to transactions taking place wholly within California between California residents, without giving effect to principles of conflict of laws. Mr. Weil hereby expressly and irrevocably consents to the personal jurisdiction of the state and federal courts located in San Diego County or Orange County, California for any lawsuit filed arising from or related to this Agreement and any suit arising from this Agreement shall be brought in those courts.

          8.2 Severability. In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. Moreover, if any one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear.

          8.3 No Assignment. This Agreement may not be assigned by Mr. Weil without Ashworth’s prior written consent, and any such attempted assignment shall be void and of no effect.

          8.4 Notices. All notices, requests and other communications under this Agreement must be in writing, and must be mailed by registered or certified mail, postage prepaid and return receipt requested, or delivered by hand to the party to whom such notice is required or permitted to be given. If mailed, any such notice will be considered to have been given three (3) business days after it was mailed, as evidenced by the postmark. If delivered by hand, any such notice will be considered to have been given when received by the party to whom notice is given, as evidenced by written and dated receipt of the receiving party. The mailing address for notice to either party will be the address shown on the signature page of this Agreement. Either party may change its mailing address by notice as provided by this section.

          8.5 Legal Fees. If any dispute arises between the parties with respect to the matters covered by this Agreement which leads to a proceeding to resolve such dispute, the prevailing party in such proceeding shall be entitled to receive its actual attorneys’ fees, expert witness fees and out-of-pocket costs incurred in connection with such proceeding, in addition to any other relief it may be awarded.

          8.6 Injunctive Relief. Mr. Weil agrees that any breach of this Agreement will result in irreparable and continuing damage to Ashworth for which there may be no adequate remedy at law, and the Ashworth is therefore entitled to seek injunctive relief in addition to such other and further relief as may be appropriate. All applicable actions may be taken by the

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Ashworth without bond and without prejudice to any other rights and remedies that the Ashworth may have for a breach of this Agreement. The failure of the Ashworth to promptly institute legal action upon any breach of this Agreement shall not constitute a waiver of that or any other breach hereof.

          8.7 Survival. The following provisions shall survive termination of this Agreement: Section 4, Section 5, Section 6 and Section 8.

          8.8 Export. Mr. Weil agrees not to export, directly or indirectly, any U.S. source technical data acquired from Ashworth or any products utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.

          8.9 Waiver. No waiver by Ashworth or Mr. Weil of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No waiver by Ashworth or Mr. Weil of any right under this Agreement shall be construed as a waiver of any other right. Neither Ashworth nor Mr. Weil shall be required to give notice to enforce strict adherence to all terms of this Agreement.

          8.10 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between us. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by the party to be charged. The terms of this Agreement will govern all duties undertaken by Mr. Weil for Ashworth.

          8.11 Counterparts. Facsimile transmission of any signed original of this Agreement will be deemed the same as delivery of an original. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and each of which together shall be deemed one and the same instrument.

[The remainder of this page is intentionally left blank.]

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     IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representative as of the 12th day of September, 2006.

 

 

 

 

 

 

 

 

 

ASHWORTH, INC.

 

 

 

 

 

 

 

 

 

 

 

By:

 

/s/ James B. Hayes

 

 

 

 

 

 

 

 

 

 

 

Name: James B. Hayes

 

 

 

 

Title: Chairman of the Board

 

 

 

 

 

 

 

 

 

PETER M. WEIL
 

 

 

/s/ Peter M. Weil  

 

 

Peter M. Weil 

 

 

 

 

 

For copyright registration purposes only, Mr. Weil needs to provide the following information:

 

 

 

 

 

Address:

 

 

 

Date of Birth:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Nationality or Domicile:

 

 

 

 

 

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EXHIBIT A

PRIOR WORK PRODUCT DISCLOSURE

     1. Except as listed in Section 2 below, the following is a complete list of all Prior Work Product that have been made or conceived or first reduced to practice by Mr. Weil alone or jointly with others prior to the date of this Agreement:

 

 

 

 

 

 

 

þ

 

No inventions or improvements.

 

 

 

 

 

 

 

o

 

See below:

 

 

 

 

 

 

 

 

 

          List other work product here:

 

 

 

 

 

 

 

o

 

Additional sheets attached.

     2. Due to a prior confidentiality agreement, Mr. Weil cannot complete the disclosure under Section 1 above with respect to inventions or improvements generally listed below, the proprietary rights and duty of confidentiality with respect to which Mr. Weil owes to the following party(ies):

 

 

 

 

 

 

 

 

 

Invention or Improvement

 

Party(ies)

 

 

Relationship

 

 

 

 

 

 

 

 

 

 

1.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

3.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

o

 

Additional sheets attached.

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EXHIBIT B

ASSIGNMENT OF COPYRIGHT

     For good and valuable consideration which has been received, the undersigned sells, assigns and transfers to Ashworth, and its successors and assigns, the copyright in and to the following work, which was created by the following indicated author(s):

 

 

 

 

 

Title:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Author(s):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Copyright Office Identification No. (if any):

 

 

 

 

 

 

 

 

and all of the right, title and interest of the undersigned, vested and contingent, therein and thereto.

           Executed this ___ day of                     , 20___.

 

 

 

 

 

 

 

 

 

Signature:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Printed Name:

 

 

 

 

 

 

 

 

 

 

 

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