1
EXHIBIT 10.58
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of the 1st day of
February, 1998, by and between GARGOYLES, INC., a Washington corporation (the
"Company"), and XXX XXXXXXXXXXX ("Employee"). In consideration of the mutual
covenants and conditions set forth herein, the parties agree as follows:
1. Employment. Subject to the terms and conditions contained in this
Agreement, the Company hereby employs Employee, and Employee hereby accepts
employment with the Company.
2. Duties and Reporting Relationship. During the Term of Employment, as
defined below, Employee shall be employed in the capacity of Chief Executive
Officer and Chief Financial Officer, or in such equivalent executive capacity as
the Company shall direct, from time to time, during the term hereof. In such
capacity, Employee shall devote his working time and attention to the overall
management and operation of the Company, under the direction of the Executive
Committee of the Board of Directors of the Company. Employee acknowledges and
agrees that as Chief Executive Officer and Chief Financial Officer the hours
which he is required to work will vary considerably and may sometimes be more
than 40 hours per week. Employee further acknowledges and agrees that such work
in excess of 40 hours per week is a regular and normal part of the
responsibilities for which he is compensated, and does not in any way constitute
overtime for which he is entitled to receive additional compensation.
3. Term. Unless sooner terminated in accordance with this Agreement,
the Employee's term of employment shall become effective as of the first date
written above and shall continue until February 1, 1999 (the "Term of
Employment").
4. Base Salary. For all services rendered by Employee under this
Agreement, the Company shall pay Employee a Base Salary at an annual rate of
$225,000, payable in twice monthly installments in accordance with the Company's
usual payroll policies and procedures.
5. Benefits.
5.1 Expenses. The Company shall reimburse Employee for all
reasonable and necessary business expenses incurred and advanced by him in
carrying out his duties under this Agreement promptly following presentation of
receipts and other supporting information.
5.2 Options. Effective as of the date of this Agreement, Employee
shall be granted an incentive stock option under the Gargoyles, Inc. 1995 Stock
Incentive Compensation Plan (the "Plan"), a copy of which is attached hereto as
Exhibit B, under which Employee will have the opportunity, in accordance with
the terms of the Plan to purchase 150,000 shares of Gargoyles Common Stock at an
exercise price equal to the
2
Fair Market Value (as such term is defined in the Plan) of such stock as of the
effective date of the grant, such option to be for a term of ten years and to
vest according to the following schedule:
Date On and After Which Portion of Total Option Which
Option is Exercisable is Exercisable
May 1, 1998 25%
Quarterly thereafter An additional 25%
5.3 Bonus. If Employee is employed by the Company on January 31,
1999, then on such date the Company shall pay to Employee a bonus of $150,000.
5.4 Company Benefits. Employee shall be entitled to participate
fully in all the Company's employee benefits plans established for full-time
employees of the Company, including without limitation all health, medical,
dental, retirement, life and disability insurance plans established by the
Company in accordance with the terms of such plans. Employee shall be entitled
to participate in any pension and retirement plans, stock option or ownership
plans, and other fringe benefit plans, perquisites and programs as are or may be
made available from time to time to executives or other salaried employees of
the Company to the extent Employee is eligible under the terms of such plans.
5.5 Vacation; Sick Leave. Employee will be entitled to vacation
and sick leave in accordance with policies of the Company, as amended from time
to time, generally applicable to executive employees of the Company.
6. Termination.
6.1 Termination for Cause. This Agreement and Employee's
employment by the Company may be terminated for Cause. For purposes of this
Agreement, "Cause" shall mean: (i) Employee shall be found by the Board of
Directors of the Company to be guilty of fraud or other acts of willful
misconduct in connection with his employment hereunder which have a material
adverse effect on the Company, (ii) conviction of Employee for commitment of a
felony; (iii) any violation of law by Employee which has a material adverse
effect on the Company; (iv) habitual use of narcotics or alcohol which impairs
Employee's performance of his duties under this Agreement; (v) theft or
embezzlement by Employee from the Company; (vi) a material breach of Employee's
obligations under section 7 hereof; or (vii) unexcused habitual absence from
work for reasons unrelated to illness, family crisis or disability.
6.2 Termination Upon Death or Disability. This Agreement and
Employee's employment hereunder shall terminate upon the death or disability of
Employee. The
3
date of Employee's death or disability also is referred to herein as the
"Termination Date". For purposes of this Agreement, "Disabled" shall mean that
the Employee is unable to perform his duties under this Agreement as Chief
Executive Officer and Chief Financial Officer of the Company by reason of any
medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a period of
not less than 30 days. Determination of whether Employee is Disabled shall be
made in good faith by a physician reasonably acceptable to Employee and the
Board of Directors of the Company.
6.3 Employee's Voluntary Resignation. Should Employee wish to
resign from his position with the Company during the Employment Period (his
"Voluntary Resignation"), he shall give thirty (30) days written notice to the
Company and specify the date as of which his resignation is to become effective.
The date specified in such written notice is also referred to herein as the
"Termination Date." Failure to provide such notice shall entitle the Company to
fix the Termination Date as of the last business day on which Employee reported
for work at the principal offices of the Company.
6.4 Compensation and Benefits Upon Termination.
(a) If the employment of the Employee is terminated for
Cause, Death, Disability or by his Voluntary Resignation, the Employee shall not
be entitled to any compensation or other benefits hereunder for any period after
the Termination Date.
(b) The Company shall have the right to terminate this
Agreement for any reason at any time prior to January 31, 1999, by delivery of
written notice to Employee of such termination (also a "Termination Date"). If
prior to January 31, 1999, the employment of Employee is terminated by the
Company for any reason other than for Cause, or due to Employee's Death,
Disability or Voluntary Resignation, then the Company shall pay to Employee a
termination fee of $150,000.
7. Intellectual Property; Nondisclosure of Confidential Information.
7.1 Definitions.
(a) Confidential Information. For purposes of this
Agreement, Confidential Information shall mean all the Company's proprietary
information which derives independent economic value from its secrecy from other
persons, companies, or business entities who could obtain economic value from
its disclosure to them or use by them. Confidential Information also includes,
without limitation, research data, trade or business know-how or business plans,
inventions, devices, patterns, compilations, programs, methods, techniques, or
processes which are disclosed or made available by the Company to Employee, or
devised by Employee during his employ by the Company. Examples of Confidential
Information include, without limitation: all information specifically identified
as proposed installations, products or product lines, information systems, or
other projects, the Company's supplier and customer lists and all customer
information and the Company's existing and proposed business and
4
marketing plans and policies, whether written or oral, and whether designated
individually as Confidential Information or not. Confidential Information does
not include information that: (i) is a matter of public knowledge at the time
Employee first learned of the information; (ii) later becomes a matter of public
knowledge after Employee learns of it, other than becoming public knowledge by
reason of a breach by Employee of the obligations of confidentiality set out in
this Agreement, (iii) Employee acquired during previous employment prior to the
effective date of this Agreement, or (iv) which Employee is required to disclose
pursuant to legal or administrative process.
(b) Invention. For purposes of this Agreement, Invention
shall mean all new inventions, discoveries, creations and works of authorship,
and any improvements to existing inventions, whether patentable or not, and all
software relating to any inventions, discoveries or improvements, which Employee
conceives, makes, develops, or reduces to practice, whether alone or with any
other person, company or business entity, (i) while Employee is working for the
Company in any capacity under this Agreement which relates to any questions or
problems for which the Company has requested Employee's services, (ii) that are
based in any way on Confidential Information received by Employee from the
Company or developed or made by Employee during his employ at the Company, or
(iii) with the aid of any equipment, supplies, facilities or employees of the
Company or on the Company's time.
7.2 Non Disclosure of Confidential Information. Employee agrees
not to disclose or to use any Confidential Information, either during or after
employment by the Company, except as required by the performance of duties
within the scope of Employee's employment. Employee agrees to apply his best
efforts to otherwise prevent unauthorized disclosure or use of any Confidential
Information, and to immediately inform an officer of the Company if any improper
disclosure or use does occur.
7.3 Employee Invention Materials and Invention Disclosure.
(a) Employee shall, at all times of employment and/or
thereafter, immediately and fully disclose to the Company all information
regarding each Invention conceived, made, developed, or perfected during
Employee's employment by the Company, for the purpose of determining the
Company's and Employee's rights to each Invention. Employee's duty of immediate
and complete disclosure under this section continues throughout Employee's
employment with the Company. Each Invention which Employee is required to
disclose to the Company under this section becomes confidential information at
the moment the Employee's duty to disclose under this section arises, regardless
of whether or not Employee actually discloses the Invention to the Company.
(b) Employee agrees to keep, preserve in good condition and
make available to the Company complete and up-to-date records, including
sketches, drawings, notebooks and other documents relating to the Invention,
including documents stored in electronically readable form, and documented
source code where
5
applicable, as well as prototypes, and other evidence of the reduction to
practice of the Invention or the conception and occurrence and dates of the
Invention ("Invention Materials"). Employee acknowledges that all such Invention
Materials are the property of the Company.
7.4 Employee Invention Assignment and Continued Employee
Assistance.
(a) Employee hereby assigns to the Company all of Employee's
rights in each Invention which (i) is developed using the Company's equipment,
supplies, facilities, or information supplied by the Company to Employee; or
(ii) which relates directly to the business of the Company, or to the Company's
actual or demonstrably anticipated research or development; or (iii) which has
resulted from any work performed by the Employee for the Company, whether or not
on the Company's time. See attached Exhibit A for a description of Employee
Inventions which by law are not subject to the assignment requirement of this
section.
(b) Without limiting the generality of the assignment
provisions in the preceding paragraph, all creative works authored by Employee
during Employee's employment with the Company, at the request of the Company,
are "works for hire" as that term is defined by the federal Copyright Act, as
enacted or hereafter amended. The copyright to such works is owned exclusively
by the Company, and Employee has no ownership rights in, or control over, such
works. Employee shall be entitled to request and receive authorship credit in
such works, and to have it displayed as is typical in the industry to which the
work applies.
7.5 Employee Cooperation. Employee further agrees that Employee
will, at no charge to the Company, and at no expense to Employee, during and
after Employee's employment, cooperate with the Company in any or all of the
following: (i) prosecution of US and foreign copyright registration applications
for any works of authorship by Employee which the Company chooses to file; (ii)
prosecution of US and foreign patent applications, including all continuation,
divisional, continuation-in-part, reissue, reexamination, patent term extension
applications and the like and related petitions, and including all foreign,
regional or international counterparts of such applications for each assignable
Invention and improvements thereon which the Company chooses to file; and (iii)
enforcement of any patents or copyright registrations issuing from such
applications, or trade secret rights therein, including executing, verifying,
acknowledging and delivering to the Company all such papers, and performing all
such actions, as the Company shall from time to time reasonably request related
to such enforcement or prosecution or recordation actions by the Company, such
papers including without limitation patent and copyright registrations
applications and assignment documents therefor, declarations, petitions, and
instruments of transfer.
7.6 Company's Right to File. In addition, it is understood that
the Company shall have the right to file for patents, copyrights, or any other
state or federal statutory intellectual property rights in assignable
Inventions, in Employee's name, or the
6
Company's name, or in the name of the Company's nominee, at the Company's sole
option.
7.7 Warranty of Originality and Preservation of Third Party
Confidences.
(a) Employee undertakes not to disclose to the Company or
its other employees any information which Employee is under an obligation to any
third party to keep confidential. Employee represents and warrants that any
information disclosed by Employee to the Company is not confidential and/or
proprietary to Employee and/or to any third party.
(b) Employee warrants that, to the best of Employee's
knowledge, all works of authorship or Inventions created by Employee under this
Agreement are original, created by Employee, and will not infringe any trade
secret, patent, copyright, or other proprietary rights of third parties.
Employee represents and warrants that he is under no obligation or restriction,
and further, that Employee will not assume any such obligation or restriction,
which would in any way interfere or be inconsistent with, or present a conflict
of interest concerning, the services furnished by Employee under this Agreement.
8. Enforcement. Employee agrees that damages for breach of his
obligations under or related to section 7 of this Agreement may be difficult to
determine and may be inadequate to remedy the harm that may be caused thereby,
and therefore consents that such obligations may be enforced by injunctive
relief and other appropriate remedies without necessity of bond or other
security. Such injunctive relief shall be in addition to and not in place of any
other remedies available at law or equity. Employee acknowledges that the
restraints imposed by this Agreement are necessary for the protection of the
business and goodwill of the Company, are not greater than are necessary to
protect said business and goodwill and that he is capable of gainful employment
without breaching this Agreement. However, should any court or tribunal decline
to enforce any provision of this Agreement as written, the parties hereby agree
that this Agreement shall, to the extent applicable to that circumstance before
such court, be deemed to be modified to restrict Employee's competition with the
Company to the maximum extent of time, scope and geography which the courts
shall find enforceable, and such provisions shall be so enforced.
9. Entire Agreement. The provisions contained herein constitute the
entire agreement between the parties with respect to the subject matter hereof
and supersede any and all prior agreements, understandings and communications
between the parties, oral or written, with respect to such subject matter.
10. Modification. Any waiver, alteration, amendment or modification of
any provisions of this Agreement shall not be valid unless in writing and signed
by all the parties hereto.
7
11. Assignment. This Agreement is personal to Employee and Employee may
not assign any of his rights or delegate any of his duties hereunder.
12. Notices. All notices and other communications called for or required
by this Agreement shall be in writing and shall be addressed to the parties at
their respective addresses stated below or to such other address as a party may
subsequently specify in writing and shall be given by (i) hand delivery, (ii) US
certified or first-class registered mail, return receipt requested and postage
prepaid, (iii) overnight receipted courier, or (iv) telephonically confirmed
facsimile transmission. Notices given in accordance with this paragraph shall be
effective upon receipt or when receipt is refused.
To the Company: Gargoyles, Inc.
0000 Xxxxx 000xx Xxxxxx
Xxxx, Xxxxxxxxxx 00000
Attn: Chairman of the Board
Tel: 000-000-0000, Ext. 3400
Fax: 000-000-0000
To Employee: Xxx Xxxxxxxxxxx
000 000xx XX
Xxxxx Xxxx Xxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
13. Governing Law. This Agreement, including all matters of
construction, validity and performance, shall be governed by and construed and
enforced in accordance with the laws of the state of Washington without regard
to its conflict of law provisions which might otherwise require the application
of the law of any other jurisdiction. Employee expressly consents to
jurisdiction of the courts of the state of Washington and to venue in King
County, Washington.
14. Headings. The headings in this Agreement are inserted for
convenience of reference only and shall not be a part of or control or affect
the meaning of this Agreement.
15. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and as so executed
shall constitute one agreement.
16. Severability. Unless otherwise provided herein, if any provision of
this Agreement shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
8
17. Succession. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their perspective successors, assigns, heirs,
devisee, estates and legal representatives.
IN WITNESS WHEREOF, the parties hereto have executed this Employment Agreement
as of the date first above mentioned.
GARGOYLES, INC.,
a Washington corporation
/s/ XXXXXX X. XXXXX
-----------------------------------------
By: Xxxxxx X. Xxxxx, Chairman of the
Board of Directors of Gargoyles, Inc.
/s/ XXX XXXXXXXXXXX
-----------------------------------------
XXX XXXXXXXXXXX
