EXHIBIT 10.12
KEY EMPLOYEE TERMINATION AGREEMENT
FOR XXXXX XXX
KEY EMPLOYEE TERMINATION AGREEMENT
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This Key Employee Termination Agreement made as of the 3rd day of August,
1996 by and between RYKA Inc., a Delaware corporation ("RYKA") and Xxxxx Xxx, an
individual resident of the Commonwealth of Massachusetts ("Xxx").
W I T N E S S E T H:
WHEREAS, Xxx is presently employed by RYKA pursuant to a Key Employee
Agreement ("Employment Agreement") dated on or about August 1, 1995 as a founder
and spokesperson and is a member of RYKA's board of directors ("Board") and the
special committee ("Special Committee") evaluating the proposed merger of RYKA
and KPR Sports International, Inc. ("KPR"); and
WHEREAS, RYKA and Xxx have reached an understanding pursuant to which Xxx'x
employment would be terminated and Xxx would become a consultant to RYKA, all
upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. Termination of Employment - Effective as of August 3, 1996, Xxx'x
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Employment Agreement is hereby terminated and neither party shall have any
further obligation to comply with any of the terms and conditions set forth
in the Employment Agreement, except as hereinafter specifically set forth.
The parties acknowledge that this is a termination pursuant to Section
2.2(d) of the Employment Agreement; provided however, that notwithstanding
anything contained in such section of the Employment Agreement, there shall
be no obligation to pay any of the sums mentioned therein, such obligation
being replaced by the consideration referred to in this Agreement.
2. Resignation as Director - Effective immediately, Xxx hereby resigns as a
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director of the Board, as a member of the Special Committee and, to the
extent applicable, as an officer of RYKA.
3. Releases - A. For and in consideration of the agreements and covenants
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hereinafter set forth, Xxx hereby releases and discharges RYKA, its
affiliates, parents, successors, predecessors, subsidiaries, assigns,
employees, officers and directors (hereinafter collectively referred to as
"Company") from all claims and/or causes of action, known or unknown, which
Xxx may have or claim to have against the Company arising from or during
her employment or as a result of the
termination of her employment or arising as a result of her relationship
with the Company pursuant to the Employment Agreement or as a result of the
termination of such Employment Agreement and Xxx further agrees not to
institute suit against the Company on any such claim or cause of action.
This release includes but is not limited to the claims arising under
federal, state or local laws prohibiting employment discrimination based
upon age, race, sex, religion, national origin or any other impermissible
characteristic, including, but not limited to, any and all claims arising
under the Age Discrimination and Employment Act and Title VII of the Civil
Rights Act of 1964, on claims growing out of any legal restrictions,
expressed or implied, or the Company's rights to terminate the employment
of its employees. Xxx further acknowledges that notwithstanding anything
contained in this agreement to the contrary, Xxx shall continue to be bound
by Exhibit "C" (Proprietary Information and Inventions Agreement) to the
Employment Agreement. Notwithstanding anything contained herein to the
contrary, this release shall not be deemed to release RYKA from any claim
for indemnification that Xxx have arising from any suit brought against her
by any third party as a result of her acting as an officer, director or
employee of RYKA.
B. For and in consideration of the agreements and covenants
hereinafter set forth, RYKA hereby releases Xxx, her heirs, executors,
administrators and assigns from any claims and/or causes of action, known
or unknown, which RYKA may have or claim to have against Xxx arising from
or during her employment by RYKA, or otherwise arising from her
relationship with RYKA.
4. Consultant Arrangement
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A. RYKA hereby engages Xxx to act as a consultant and endorser of RYKA
products for a term of three (3) years commencing on August 3, 1996 and
terminating on August 2, 1999. In this capacity, Xxx shall be available to
RYKA to perform those functions as RYKA may reasonably request in
connection with the endorsement and the promotion of RYKA products. During
the term of this Agreement,and subject to the last sentence of this
paragraph A, Xxx grants to RYKA the right to use her name and likeness in
connection with the promotion of RYKA products. In addition, Xxx shall be
available to RYKA 1) twenty (20) days during each year of this agreement
and, 2) in addition thereto, shall appear on RYKA's behalf at the annual
NSGA, SGMA and IDEA shows; provided however, Xxx shall not be required to
"be available" to RYKA more than three consecutive business days, nor more
than five business days in any two week period and provided further, RYKA
shall give Xxx reasonable notice (for which the parties' agree one week is
reasonable) of any engagements which require
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her to travel overnight.
B. In consideration of this Agreement and for the services to be rendered
by Xxx hereunder, RYKA shall pay Xxx an annual consultant's fee during the
first year of this Agreement of Sixty Thousand ($60,000.00) Dollars and
Fifty Thousand ($50,000.00) Dollars during each of the second and third
years of this agreement. Such compensation shall be paid in twelve (12)
equal monthly installments, in advance, on the first day of each month
during the term of this Agreement.
C. RYKA shall reimburse Xxx for all reasonable business expenses incurred
by Xxx in connection with the performance of her duties hereunder and for
which Xxx submits acceptable supporting documentation. Xxx may request RYKA
to book any "major" travel expenses for her such as hotels and airlines.
D. During the term of this agreement, Xxx shall make available to RYKA for
promotional purposes her name and picture on RYKA materials, product or
point of purchase display.
E. It is expressly agreed that Xxx is an independent contractor in the
performance of her services hereunder and shall be responsible for payment
of all federal, state and local taxes related to the performance of her
services hereunder.
X. Xxx shall be permitted to engage in any other business during the time
hereof and to perform services for any third party or for its own benefit;
provided, however, that Xxx agrees that during the term of this agreement
she shall not consult with any other parties in the "athletic footwear"
industry or considering entering the athletic footwear industry.
X. Xxx acknowledges that the restrictions contained in Exhibit "C" of her
Employment agreement shall remain in full force and effect and continue to
be applicable hereafter. Xxx further acknowledges that her obligations
thereunder shall survive the expiration or termination of this agreement.
Xxx acknowledges that a remedy of law for any breach or threatened breach
of the provisions of this section would be inadequate and Xxx, therefore,
agrees that RYKA shall be entitled to such injunctive relief in case of any
such breach or threatened breach. In addition, RYKA would be entitled to
an award of attorneys fees and court costs in connection with such matter.
H. During the first year of this Agreement, RYKA shall maintain Xxx'x
health insurance, life insurance and disability insurance as Xxx was
receiving as an employee of RYKA immediately prior hereto. Thereafter, RYKA
shall have no
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obligation to provide Xxx with such benefits.
I. RYKA shall at all times maintain complete and absolute control over the
marketing of its product, the sources of materials and labor, outlets of
distribution, pricing, and any and all aspects , elements or conditions for
the production, sale, marketing or promotion of RYKA. RYKA agrees that
during the term of this Agreement if
1) RYKA should change the name of its women's athletic
shoes and market them under a name other than RYKA; or
2) RYKA should modify its marketing program in such a way
so that it is derogatory or insulting to women in any
way; or
3) RYKA markets its products in mass merchandise outlets
such as K-Mart, Target Stores or similar distributors;
or
4) its marketing program ceases to have as an important
element the encouragement of women's well being; or
5) any promotional material including proposed name,
picture or image represents Xxx in unflattering light,
or is inconsistent with Xxx'x image and beliefs as a
supporter of women's well being, independence and
rights
then and in such event, Xxx shall not be required to perform any more
services hereunder and Xxx shall receive sixty thousand dollars
($60,000.00) less any payments she has already received pursuant to the
terms of this Agreement in full and final settlement of any amounts owed to
her hereunder.
J. In the event that RYKA shall fail to make the monthly payments due to
Xxx pursuant to paragraph 4B hereof, within fifteen days of receipt of
written notice that such payment has not been made, then and in that event,
Xxx shall have no further obligation to perform pursuant to paragraph 4A
hereof, however, RYKA shall continue to have the obligation to Xxx set
forth in paragraph 4B above.
5. Existing Stock Options - The parties acknowledge that Xxx presently has
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395,000 vested stock options and 625,000 unvested stock options. The
parties agree that those unvested stock options shall immediately vest and
shall be exercisable
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through the life of the option and at a strike price as set forth on
Exhibit "A" attached hereto and made a part hereof.
6. Restrictions - The parties confirm that any contractual restrictions on
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Xxx'x ability to sell her stock or exercise her options as contained in
paragraph 7 of the Employment Agreement are hereby terminated and declared
to be null and void and of no effect. This shall not relieve Xxx from
complying with any applicable securities laws in the disposition of her
stock. RYKA shall furnish the transfer agent and any broker designated by
Xxx with, as soon as reasonably possible, but in no event later than August
19, 1996 provided that the requesting broker submits appropriate
documentation no later than August 15,1996, a letter confirming that all
restrictions appearing on Xxx'x RYKA stock certificates referencing
contractual restrictions may be removed and opining as to Xxx'x right to
sell a certain number of shares under Rule 144. As soon as legally
permitted thereafter, RYKA shall provide the transfer agent an opinion
letter of counsel removing legends restricting the resale of shares under
the Securities Act of 1933.
7. Additional Stock Options - In addition to Xxx'x existing stock options, Xxx
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is hereby granted three year options, which shall vest immediately, to
purchase an additional 500,000 shares of RYKA's common stock at an exercise
price per share of forty two cents ($0.42) per share. The parties
acknowledge that the price and number of shares set forth herein are based
upon the capitalization of RYKA as it exists on the date hereof and should
the capitalization of RYKA be changed (i.e., a split or reverse split), the
price and number of shares shall be adjusted accordingly.
With respect to Xxx'x existing stock options and the additional stock
options to be issued to Xxx hereunder, RYKA shall use its best efforts to
maintain Form S-8 Registration covering such options.
8. Arbitration - Any dispute concerning this Agreement, including, but not
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limited to, its existence, validity, interpretation, performance or non-
performance, arising before or after termination or expiration of this
Agreement, shall be settled by a single arbitrator in Philadelphia,
Pennsylvania in accordance with the expedited procedures of the Commercial
Rules then in effect of the American Arbitration Association. Judgment upon
any award may be entered in the highest court, state or federal, having
jurisdiction. The cost of such arbitration shall be borne equally between
the parties thereto unless otherwise determined by such arbitration panel.
9. Rights and Obligations - This Agreement and the rights and obligations of
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the parties hereto shall bind and inure to the
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benefit of any successor or successors of RYKA by reorganization, merger or
consolidation and any assignee of all or substantially all of its business
and properties, but, except as to any such successor or assignee of RYKA,
neither this Agreement nor any rights or benefits hereunder may be assigned
by RYKA or by Xxx except by operation of law or by further written
agreement of the parties hereto.
10. Interpretation - It is the intent of the parties in case of anyone or more
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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 effect 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.
11. Notices - Any notice which RYKA is required to or may desire to give Xxx
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shall be given by registered or certified mail, return receipt requested,
addressed to Xxx at Xxx'x address of record with RYKA, or at such other
place as Xxx may from time to time designate in writing, with a copy to
Xxxxxx X. Xxxxxxxx, Esquire, Xxxx Xxxxxx & Xxxxx L.L.P., 000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000. Any notice which Xxx is required or
may desire to give to RYKA hereunder shall be given by registered or
certified mail, return receipt requested, addressed to RYKA at its
principal office, or at such other office as RYKA may from time to time
designate in writing with a copy to Xxxxx X. Xxxxxx, Esquire, Xxxxx Xxxxx
Xxxxxx & Xxxxxxxxx, The Bellevue, Sixth Floor, 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000.
12. Waivers - No waiver of any right under this Agreement shall be deemed
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effective unless contained in a writing signed by the party charged with
such waiver, and no waiver of any right arising from any reach or failure
to perform shall be deemed to be a waiver of any future such right or of
any other right arising under this Agreement.
13. Complete Agreement - This Agreement contains the entire agreement of the
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parties and may not be modified, except in writing, executed by all of the
parties hereto.
14. Headings - The headings of the Sections contained in this Agreement are
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inserted for convenience and reference only and in no way define, limit,
extend or describe the scope of this Agreement.
15. Counterparts - This Agreement may be signed in two (2) counterparts, each
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of which shall be deemed an original and both of which shall together
constitute one (1) Agreement.
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16. Governing Law - This Agreement shall be governed and construed in
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accordance with the laws of the Commonwealth of Pennsylvania.
17. Confidentiality - The parties agree to maintain the confidentiality of the
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terms of this Agreement and further agrees that such terms cannot be
disclosed to any third party except to their respective professional
advisors and/or in connection with any litigation arising hereunder or in
connection with any public filing or disclosure required by
law to be made by RYKA.
18. Press Release - The parties agree to issue the press release attached
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hereto as Exhibit "B".
IN WITNESS WHEREOF, RYKA has caused this Agreement to be executed and Xxx
has placed her hand and seal hereto the date and year first above written.
RYKA INC.
[SIGNATURE ILLEGIBLE] BY: /s/ Xxxxxx X. Xxxx
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ATTEST
DATE: 8/26/96
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[SIGNATURE ILLEGIBLE] /s/ Xxxxx Xxx
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WITNESS XXXXX XXX
DATE: 8/13/96
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Xxxxx Xxx
Stock Options
Number of Strike Date
Plan Year Shares Price Granted Expiration
NP 250,000 $0.66 12/01/94 11/30/99
1993 150,000 $0.65 12/15/93 12/14/03
1993 100,000 $0.65 01/10/94 1/09/04
1993 20,000 $1.06 7/12/94 7/11/99
1993 500,000 $0.47 7/31/95 7/30/00
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1,020,000
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EXHIBIT "A"
FOR RELEASE AT _________________ CONTACT: XXXXXX X. XXXX
, 1996 Vice President
and Chief
Financial Officer
610-337-2200
or
XXXXX XXX
000-000-0000
RYKA AND XXXXX XXX ENTER INTO A NEW AGREEMENT
RYKA, INC. AND XXXXX XXX HAVE ENTERED INTO A NEW THREE YEAR ENDORSEMENT AND
CONSULTING AGREEMENT. UNDER THE NEW AGREEMENT, XXXXX XXX WILL NO LONGER SERVE AS
A MEMBER OF THE BOARD OF DIRECTORS AND AS A MEMBER OF THE SPECIAL COMMITTEE
EVALUATING THE PROPOSED MERGER BETWEEN RYKA AND KPR SPORTS INTERNATIONAL, INC.,
A CORPORATION WHOLLY-OWNED BY XXXXXXX XXXXX, CHAIRMAN AND CHIEF EXECUTIVE
OFFICER OF RYKA. XX. XXX WILL CONTINUE TO BE INVOLVED WITH THE COMPANY'S
VARIOUS PROMOTIONAL ACTIVITIES, ATTENDING TRADE SHOWS AND EVENTS AND ENDORSING
RYKA ACTIVITIES, XX. XXX WILL ALSO DEVELOP HER OWN BUSINESS ENTERPRISE INVOLVING
THE CONTINUING PROMOTION OF WOMEN'S WELL-BEING.
"IN 1987, AS A COMPANY FOUNDER, XXXXX XXX WAS A LEADER IN THE SPORTING
GOODS INDUSTRY FOCUSING ATTENTION OF THE WOMEN'S MARKET BY ESTABLISHING THE
FIRST AND ONLY ATHLETIC FOOTWEAR COMPANY EXCLUSIVELY FOR WOMEN. HER CONTINUED
CONTRIBUTION TO OUR COMPANY IS GREATLY VALUED BY OUR MANAGEMENT AND CUSTOMERS,"
STATED XXXXXXX XXXXX, CHAIRMAN AND CHIEF EXECUTIVE OFFICER.
ON JULY 8TH RYKA ANNOUNCED A PROPOSED MERGER WITH KPR. SUBJECT TO BOARD OF
DIRECTORS APPROVAL OF THE TRANSACTION BY THE SHAREHOLDERS OF RYKA AT A SPECIAL
MEETING, THE TRANSACTION IS EXPECTED TO BE CONSUMMATED IN DECEMBER, 1996.
RYKA IS A MANUFACTURER OF WOMEN'S HIGH PERFORMANCE ATHLETIC FOOTWEAR. KPR,
IN ADDITION TO SELLING OFF PRICE MERCHANDISE, ALSO MANUFACTURES AND SELLS RUGGED
OUTDOOR FOOTWEAR UNDER THE TRADENAME "YUKON", ATHLETIC FOOTWEAR UNDER THE
TRADENAME "APEX" AND LICENSES PRODUCTS FOR SALE UNDER THE TRADENAME "APEX".
RYKA IS A PUBLIC COMPANY TRADED ON THE OTC BULLETIN BOARD.
EXHIBIT "B"
