PART III
EXHIBIT 6.2
EMPLOYMENT AGREEMENT
BY AND BETWEEN THE COMPANY
AND XXXXXX X. XxXXXXX
DATED
AUGUST 5, 1997
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), effective as of
the 5th day of August 1997, by and between FULL TILT SPORTS,
INC., a Colorado corporation with its principal place of business
located at 0000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx,
Xxxxxxxx 00000 (hereinafter referred to as "Company" or
"Employer") and Xxxxxx X. XxXxxxx (hereinafter referred to as the
"Employee").
The Company hereby employs the Employee and the Employee
hereby accepts employment on the terms and conditions hereinafter
set forth.
1. Term. Subject to the provisions for termination
hereinafter provided, the initial term of this Agreement shall
commence on September 1, 1997 and terminate on August 31, 1998,
and shall continue thereafter on a year to year basis unless
terminated by the Company by delivery of written notice to the
Employee not later than thirty (90) days prior to the date for
termination as indicated in said notice.
2. Compensation and Performance Review
(a) For all services rendered by the Employee under
this Agreement, commencing September 1, 1997, the Company shall
be obligated to pay the Employee a salary of $30,000 per annum,
payable in accordance with the Employer's regular payroll
procedure.
(b) Following the first anniversary of this Agreement
(namely, on September 1, 1998, or as soon thereafter as
practicable), and following each anniversary, if any, thereafter,
the Company shall grant the Employee a performance and salary
review for the purposes of gauging the performance of the
Employee for the preceding year and adjusting the salary of the
Employee hereunder looking to the results of such review and the
Company's financial progress, among other things, as guides in
such adjustments; provided, however, compensation payable to the
Employee pursuant to this provision shall in no event be reduced
from that fixed by Subparagraph (a) in this Section 2.
3. Duties. Employee is engaged as the Vice President
of the Company. In such capacities, Employee shall exercise
detailed supervision over the operations of the Company subject,
however, to control by the Board of Directors. The Employee
shall perform all duties incident to the title of Vice President
and such other duties as from time to time may be assigned to him
by the Board of Directors.
4. Best Efforts of Employee. The Employee shall
devote his full time efforts to the business of the Company and
to all of the duties that may be required by the terms of this
Agreement to the reasonable satisfaction of the Company. The
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Employee shall at all times faithfully, with diligence and to the
best of his ability, experience and talents, perform all the
duties that may be required of and from him pursuant to the
express and implicit terms hereof to the reasonable satisfaction
of the Company. Such services shall be rendered at such other
place or places as the Company shall in good faith require or as
the interest, needs, business or opportunity of the Company shall
require. The Employee agrees not to engage in any employment or
consulting work or any trade or business for his account or for
or on behalf of any other person, firm or corporation, unless the
Employee obtains prior written consent from the Board of
Directors of the Company.
5. Working Facilities. The Employee shall be
furnished with all such facilities and services suitable to his
position and adequate for the performance of his duties.
6. Expenses. The Employee is authorized to incur
reasonable expenses for promoting the business of the Company,
including his out-of-pocket expenses for entertainment, travel
and similar items. The Company shall reimburse the Employee for
all such expenses on the presentation by the Employee, from time
to time, of an itemized account of such expenditures in
accordance with the guidelines set forth by the Internal Revenue
Service for travel and entertainment.
7. Vacation. The Employee shall be entitled each year
to a vacation of a reasonable amount during which time his
compensation shall be paid in full.
8. Disability.
(a) Should the Employee, by reason of illness or
incapacity, be unable to perform his job for a period of up to
and including a maximum of 3 months, the compensation payable to
him for and during such period under this Agreement shall be
unabated. The Board of Directors shall have the right to
determine the incapacity of the Employee for the purposes of this
provision, and any such determination shall be evidenced by its
written opinion delivered to the Employee. Such written opinion
shall specify with particularity the reasons supporting such
opinion and be manually signed by at least a majority of the
Board.
(b) The Employee's compensation thereafter shall be
reduced to zero. The Employee shall receive full compensation
upon his return to employment and regular discharge of his full
duties hereunder. Should the Employee be absent from his
employment for whatever cause for a continuous period of more
than 365 calendar days, the Company may terminate this Agreement
and all obligations of the Company hereunder shall cease upon
such termination.
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9. Termination.
(a) The Company may terminate this Agreement with
cause at any time under immediate notice to the Employee thereof,
and such notice having been given, this Agreement shall
terminate in accordance therewith. For the purpose of this
section, "cause" shall be defined as meaning such conduct by the
Employee which constitutes in fact and/or law a breach of
fiduciary duty or felonious conduct having the effect, in the
opinion of the Board of Directors, of materially adversely
affecting the Company and/or its reputation.
(b) The Company may terminate this Agreement without
cause by giving 90 days written notice to the Employee, and such
notice having been given, this Agreement shall terminate in
accordance therewith.
(c) The Employee may terminate this Agreement without
cause by giving 90 days written notice to the Company, and such
notice having been given, this Agreement shall terminate in
accordance therewith.
(d) In the event of termination herein, the Employee
shall be entitled to receive compensation based upon his prorated
salary, up and until the date of termination. After the date of
termination, the Employee shall not be entitled to receive
additional compensation of any kind or nature from the Employer
and all benefit and incentive programs then in place shall
terminate.
10. Confidentiality. The Employee shall not divulge
to others any information he may obtain during the course of his
employment relating to the business of the Company without first
obtaining written permission of the Company.
11. Notices. All notices, demands, elections,
opinions or requests (however characterized or described)
required or authorized hereunder shall be deemed given
sufficiently if in writing and sent by registered or certified
mail, return receipt requested and postage prepaid, or by tested
telex, telegram or cable to, in the case of the Company:
Full Tilt Sports, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
and in the case of the Employee:
Xx. Xxxxxx X. XxXxxxx
0000 Xxxxxxx Xxxxxx
X.X. Xxx Xxxxx Xxxxxxx, Xxxxxxxx 00000
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12. Assignment of Agreement. No party may assign or
otherwise transfer this Agreement or any of its rights or
obligations hereunder without the prior written consent to such
assignment or transfer by the other party hereto; and all the
provisions of this Agreement shall be binding upon the respective
employees, delegates, successors, heirs and assigns of the
parties.
13. Survival of Representations, Warranties and
Covenants. This Agreement and the representations, warranties,
covenants and other agreements (however characterized or
described) by both parties hereto and contained herein or made
pursuant to the provisions hereof shall survive the execution and
delivery of this Agreement and any inspection or investigation
made at any time with respect to any thereof until any and all
monies, payments, obligations and liabilities which either party
hereto shall have made, incurred or become liable for pursuant to
the terms of this Agreement shall have been paid in full.
14. Further Instruments. The parties shall execute
and deliver any and all such other instruments and shall take any
and all such other actions as may be reasonably necessary to
carry the intent of this Agreement into full force and effect.
15. Severability. If any provisions of this Agreement
shall be held, declared or pronounced void, voidable, invalid,
unenforceable or inoperative for any reason by any court of
competent jurisdiction, government authority or otherwise, such
holding, declaration or pronouncement shall not affect adversely
any other provision of this Agreement, which shall otherwise
remain in full force and effect and be enforced in accordance
with its terms and the effect of such holding, declaration or
pronouncement shall be limited to the territory or jurisdiction
in which made.
16. Waiver. All the rights and remedies of either
party under this Agreement are cumulative and not exclusive of
any other rights and remedies provided by law. No delay or
failure on the part of either party in the exercise of any right
or remedy arising from a breach of this Agreement shall operate
as a waiver of any subsequent right or remedy arising from a
subsequent breach of this Agreement. The consent of any party
where required hereunder to any act of occurrence shall not be
deemed to be a consent to any other act of occurrence.
17. General Provisions. This Agreement shall be construed and
enforced in accordance with, and governed by, the laws of the
State of Colorado. Except as otherwise expressly stated herein,
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time is of the essence in performing hereunder. This Agreement
embodies the entire agreement and understanding between the
parties and supersedes all prior agreements and understanding
relating to the subject matter hereof, and this Agreement may not
be modified or amended or any term of provision hereof waived or
discharged except in writing signed by the party against whom
such amendment, modification, waiver of discharge is sought to be
enforced. The headings of this Agreement are for convenience in
reference only and shall not limit or otherwise affect the
meaning thereof. The Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all
of which taken together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement
on the day and year first above written.
THE COMPANY: THE EMPLOYEE:
FULL TILT SPORTS, INC.
By:
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxxx X. XxXxxxx
___________________________ __________________________
Xxxxx X. Xxxxxxx, President Xxxxxx X. XxXxxxx
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