Exhibit 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of October 2, 2000, by
and between GARGOYLES, INC., a Washington corporation (the "Company"), and
Xxxxxxx X. Xxxx ("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
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Agreement, the Company hereby employs Employee, and Employee hereby accepts
employment with the Company.
2. Duties. During the Term of Employment, as defined below, Employee shall be
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employed in the capacity of Vice President, Operations, or in such other
management capacity as the Company shall direct, from time to time. Employee
acknowledges and agrees that as Vice President, Operations the hours which
Employee 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 Employee is compensated, and does not in any way
constitute overtime for which Employee is entitled to receive additional
compensation.
3. Term. This agreement is for no definite time term. Employee is an at-will
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employee, and the Company shall have the right to terminate the employment of
Employee at any time with cause, as described in Section 6.1 hereof, or without
cause or advance notice so long as the Company pays Employee the severance
provided under Section 6.4(a) hereof upon the termination of Employee's
Employment with the Company.
4. Base Salary. For all services rendered by Employee under this Agreement,
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the Company shall pay Employee an annual Base Salary, payable in twice monthly
installments in accordance with the Company's usual payroll policies and
procedures. This Base Salary shall be reviewed from time to time in accordance
with the Company's general salary and performance review procedures in place
from time to time. As of the date of this Agreement, Employee's annual Base
Salary is $130,000.
5. Benefits.
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5.1 Expenses. The Company shall reimburse Employee for all reasonable and
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necessary business expenses incurred and advanced by Employee in carrying out
Employee's duties under this Agreement, subject to receipt of supporting
documentation, and in accordance with the Company's expense reimbursement
policies in effect from time to time.
5.2 Bonus. Employee shall be entitled to participate in any bonus program
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established by the Company from time to time for members of management of the
Company at Employee's level.
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5.3 Other Company Benefits. Employee shall be entitled to participate
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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 management or other salaried employees of
the Company to the extent Employee is eligible under the terms of such plans.
5.4 Vacation; Sick Leave. Employee will be entitled to vacation and sick
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leave in accordance with policies of the Company, as amended from time to time,
generally applicable to employees of the Company.
6. Termination.
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6.1 Termination for Cause. This Agreement and Employee's employment by
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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 (including,
but not limited to, harassment, sexual or otherwise, of another person) in
connection with Employee's employment hereunder, (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) use of narcotics or alcohol which
impairs Employee's performance of Employee's 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
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employment hereunder shall terminate upon the death or disability of Employee.
The 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 Employee's duties under this Agreement 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
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his/her position with the Company during the Employment Period ("Voluntary
Resignation"), Employee shall give thirty (30) days written notice to the
Company and specify the date as of which his/her 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.
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6.4 Company's Right to Terminate Agreement; Severance Upon Termination.
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(a) The Company shall have the right to terminate this Agreement and
Employee's employment at its will and without cause at any time by delivery of
written notice to Employee of such termination (also a "Termination Date"). On
the Termination Date, the Company shall become obligated to pay Employee
severance in an amount equal to three (3) months of Employee's annual Base
Salary in effect as of the Termination Date (the "Severance Amount"). The
Severance Amount payable to Employee shall be paid in equal monthly installments
over the number of months of Employee's Base Salary which comprise the Severance
Amount. All other employee-related benefits, including Employee's participation
in any management bonus program, shall terminate as of the Termination Date.
(b) If the employment of the Employee is terminated for Cause, Death,
Disability or by his/her Voluntary Resignation, the Employee shall not be
entitled to any compensation or other benefits hereunder for any period after
the Termination Date.
7. Intellectual Property; Nondisclosure of Confidential Information.
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7.1 Definitions.
(a) Confidential Information. For purposes of this Agreement,
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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/her 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 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 or by a breach of another employee
of the Company of such other employee's obligations to the Company, (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
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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,
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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/her 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
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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/her best
efforts to otherwise prevent unauthorized disclosure or use of any Confidential
Information, and to immediately inform an executive officer of the Company if
any improper disclosure or use does occur.
7.3 Employee Invention Materials and Invention Disclosure.
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(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 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.
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(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.
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(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
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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
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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 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.
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(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/she 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
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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 Employee's
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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
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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
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provisions of this Agreement shall not be valid unless in writing and signed by
all the parties hereto.
11. Assignment. This Agreement is personal to Employee and Employee may not
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assign any of his/her rights or delegate any of his/her duties hereunder.
12. Notices. All notices and other communications called for or required by
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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: General Counsel
Tel: 000-000-0000
Fax: 000-000-0000
To Employee: Xxxxxxx X. Xxxx
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000 0/xx/ Xxxxxx
Xxxxxxxx, XX 00000
Tel: (425) 922,7307
Fax:
13. Governing Law. This Agreement, including all matters of construction,
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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
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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
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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
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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.
17. Succession. This Agreement shall be binding upon and inure to the benefit
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of the parties hereto and their perspective successors, assigns, heirs, devisee,
estates and legal representatives.
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IN WITNESS WHEREOF, the parties hereto have executed this Employment Agreement
as of the date first above mentioned.
GARGOYLES, INC.,
a Washington corporation
/s/ Xxxxxxx X. Xxxx
__________________________________________________
By: Xxxxxxx X. Xxxx, Ex. VP and General Counsel
/s/ Xxxxxxx X. Xxxx
__________________________________________________
XXXXXXX X. XXXX
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