EXHIBIT 10EEEE
KEY EMPLOYEE AGREEMENT
To: Xxxxxx X. XxXxxxxxxxx
00000 Xxx Xxx Xxxx
Xxxxxxx Xxxxxx, XX 00000
The undersigned, RYKA, INC., a Delaware corporation (the
"Company"), with its principal place of business located at 000
X. Xxxxxxxxx Xxxx, Xxxx xx Xxxxxxx, Xxxxxxxxxxxx 00000, hereby
agrees with you as follows:
1. Position and Responsibilities.
1.1 You shall serve as President of the Company, (or in
such other executive capacity as shall be designated by the Board
of Directors or Executive Committee of the Company and reasonably
acceptable to you) and shall perform the duties customarily
associated with such capacity from time to time.
1.2 You will, to the best of your ability, devote your full
time and your best efforts to the performance of your duties
hereunder and the business and affairs of the Company. After
receipt of notice of termination of your employment hereunder,
you shall continue to be available to the Company on a part-time
basis at reasonable and customary hourly rates to assist in any
necessary transition, provided that this will not unreasonably
interfere with your obligations to any new employer.
1.3 You will duly and faithfully perform and observe any
and all rules and regulations which the Company may now or shall
hereafter reasonably establish governing your conduct as an
executive employee and the conduct of its business.
2. Term of Employment.
2.1 The initial term of this Agreement shall be for the
period of years set forth on Exhibit A annexed hereto commencing
with the date hereof. Thereafter, this Agreement shall be
automatically renewed for successive periods of one (1) year,
unless you or the Company shall give the other party not less
than four (4) months prior written notice of non-renewal. Your
employment with the Company may be terminated as provided in
Sections 2.2 or 2.3.
2.2 The Company shall have the right to terminate your
employment at any time under this Agreement prior to the stated
term in any of the following ways:
(a) on thirty (30) days prior written notice to you upon
your disability (disability shall be defined as your
inability to perform duties under this Agreement for an
aggregate of ninety (90) days out of any one hundred
eighty (180) day period due to mental or physical
disability);
(b) immediately without prior notice to you by the Company
for "Cause", as hereinafter defined, provided, however,
that prior to any such termination for Cause;
(c) immediately without prior notice to you, upon your
death or in the event of the liquidation or
reorganization of the Company under the federal
Bankruptcy Code or any state insolvency or bankruptcy
law;
(d) at any time without Cause, provided the Company shall
be obligated to pay to you upon notice of termination,
as severance pay, a lump sum amount in cash equal to
one-half of your current annual Base Salary less any
amounts you may owe to the Company.
2.3 "Cause" for the purpose of Section 2 of this Agreement
shall mean: (i) the falseness or material inaccuracy of any of
your warranties or representations herein; (ii) your willful
failure or refusal to comply with explicit directives of the
Board of Directors or Executive Committee or to render the
services required herein; (iii) fraud or embezzlement involving
assets of the Company, its customers, suppliers or affiliates or
other misappropriation of the Company's assets or funds; (iv)
your conviction of a criminal felony offense; (v) the willful
breach or habitual neglect of your obligations under this
Agreement or your duties as an employee of the Company; (vi)
habitual use of drugs or alcohol. The existence of Cause for
termination of your employment by the Company shall be subject,
upon the written election by you or the Company, to binding
arbitration as provided in Section 9 hereof. The cost of
arbitration, exclusive of the cost of each party's legal
representation (which, except as hereinafter otherwise provided,
shall be borne by the party incurring the expense), shall be
borne by the instigating party; provided, however, that the
arbitrators' award may require either party to reimburse the
other for the reasonable cost of legal representation in the
arbitration proceedings.
Further, any dispute, controversy, or claim arising out of,
in connection with, or in relation to this definition of "Cause"
shall be settled by arbitration as provided in Section 9 hereof.
Any award or determination shall be final, binding, and
2
conclusive upon the parties, and a judgment rendered may be
entered in any court having jurisdiction thereof.
If your employment is terminated by the Company for any
other reason, all obligations of the Company (except with respect
to amounts and obligations accrued to you prior to the date of
termination) shall cease.
3. Compensation.
You shall receive the compensation and benefits set forth on
Exhibit A attached hereto ("Compensation") for all services to be
rendered by you hereunder and for your transfer of property
rights, if any, pursuant to an agreement relating to proprietary
information and inventions of even date herewith attached hereto
as Exhibit C between you and the Company (the "Proprietary
Information and Inventions Agreement").
4. Other Activities During Employment.
4.1 Except for any outside employments and directorships
currently held by you as listed on Exhibit B attached hereto, and
except with the prior written consent of a disinterested majority
of the Company's Board of Directors, you will not, during the
term of this Agreement, undertake or engage in any other
employment, occupation or business enterprise other than one in
which you are an inactive investor.
4.2 You hereby agree that, except as disclosed on Exhibit B
attached hereto, during your employment hereunder, you will not,
directly or indirectly, engage (i) individually, (ii) as an
officer, (iii) as a director, (iv) as an employee, (v) as a
consultant, (vi) as an advisor, (vii) as an agent (whether a
salesperson or otherwise), (viii) as a broker, or (ix) as a
partner, co-venturer, stockholder, or other proprietor owning
directly or indirectly more than five percent (5%) interest in
any firm, corporation, partnership, trust, association, or other
organization which is engaged in the planning, research,
development, production, manufacture, marketing, sales, or
distribution of athletic footwear, sportswear, related products,
equipment, or services or any other line of business engaged in
or under demonstrable development by the Company (such firm,
corporation, partnership, trust, association, or other
organization being hereinafter referred to as a "Prohibited
Enterprise"). Except as may be shown on Exhibit B attached
hereto, you hereby represent that you are not engaged in any of
the foregoing capacities (i) through (ix) in any Prohibited
Enterprise.
3
5. Former Employers.
5.1 You represent and warrant that your employment by the
Company will not conflict with and will not be constrained by any
prior or current employment, consulting agreement or relationship
whether oral or written. You represent and warrant that you do
not possess confidential information arising out of any such
employment, consulting agreement or relationship which, in your
best judgment, would be utilized in connection with your
employment by the Company in the absence of Section 5.2.
5.2 If, in spite of the second sentence of Section 5.1, you
should find that confidential information belonging to any other
person or entity might be usable in connection with the Company's
business, you will not intentionally disclose to the Company or
use on behalf of the Company any confidential information
belonging to any of your former employers; but during your
employment by the Company you will use in the performance of your
duties all information which is generally known and used by
persons with training and experience comparable to your own all
information which is common knowledge in the industry or
otherwise legally in the public domain.
6. Proprietary Information and Inventions.
You agree to execute, deliver and be bound by the provisions
of the Proprietary Information and Inventions Agreement attached
hereto as Exhibit C.
7. Post-Employment Activities.
7.1 For a period of one (1) year after the termination of
your employment with the Company of this Agreement, absent the
Board of Directors' prior written approval, you will not directly
or indirectly engage in activities similar to those described in
Section 4.2, nor render services similar or reasonably related
to those which you shall have rendered hereunder to, any person
or entity whether now existing or hereafter established which
directly competes with (or proposes or plans to compete with) the
Company ("Direct Competitor") in the women's athletic footwear in
the sporting goods category except that you may be employed by an
athletic shoe manufacturer, so long as you are not directly
responsible for the women's athletic footwear line of business.
Nor shall you entice, induce or encourage any of the Company's
other employees to engage in any activity which, were it done by
you, would violate any provision of the Proprietary Information
and nor shall you entice, induce or encourage any of the
Company's other employees to engage in any activity which, were
it done by you, would violate any provision of the Proprietary
4
Information and Inventions Agreement or this Section 7. As used
in this Agreement, the term "any line of business engaged in or
under demonstrable development by the Company" shall be applied
as at the date of termination of your employment, or, if later,
as at the date of termination of any post-employment
consultation.
7.2 For a period of two (2) years after the termination of
your employment with the Company, the provisions of Section 4.2
shall be applicable to you and you shall comply therewith.
8. Remedies.
Your obligations under the Proprietary Information and
Inventions Agreement and the provisions of Sections 4.2, 7, 8, 9
and 11 of this Agreement (as modified by Section 14, if
applicable) shall survive the expiration or termination of your
employment (whether through your resignation or otherwise) with
the Company. You acknowledge that a remedy at law for any breach
or threatened breach by you of the provisions of the Proprietary
Information and Inventions Agreement or Section 4 or 7 hereof
would be inadequate and you therefore agree that the Company
shall be entitled to such injunctive relief in case of any such
breach or threatened breach.
9. Arbitration.
Any dispute concerning this Agreement including, but not
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.
10. Assignment.
This Agreement and the rights and obligations of the parties
hereto shall bind and inure to the benefit of any successor or
successors of the Company 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 the Company, neither this Agreement nor any rights or
benefits hereunder may be assigned by the Company or by you,
5
except by operation of law or by a further written agreement by
the parties hereto.
11. Interpretation.
IT IS THE INTENT OF THE PARTIES THAT 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, IT IS THE INTENT OF THE PARTIES THAT if any one or more
of the provisions contained in this Agreement is or becomes or is
deemed invalid, illegal or unenforceable or in case any shall for
any reason be held to be excessively broad as to duration,
geographical scope, activity or subject, such provision shall be
construed by amending, limiting and/or reducing it to conform to
applicable laws so as to be valid and enforceable or, if it
cannot be so amended without materially altering the intention of
the parties, it shall be stricken and the remainder of this
Agreement shall remain in full force and effect.
12. Notices.
Any notice which the Company is required to or may desire to
give you shall be given by registered or certified mail, return
receipt requested, addressed to you at your address of record
with the Company, or at such other place as you may from time to
time designate in writing. Any notice which you are required or
may desire to give to the Company hereunder shall be given by
registered or certified mail, return receipt requested, addressed
to the Company at its principal office, or at such other office
as the Company 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.
13. Waivers.
No waiver of any right under this Agreement shall be deemed
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.
6
14. Complete Agreement; Amendments.
The foregoing, including Exhibits A, B and C attached
hereto, is the entire agreement of the parties with respect to
the subject matter hereof, superseding any previous oral or
written communications, representations, understandings, or
agreements with the Company or any officer or representative
thereof. This Agreement may be amended or modified or certain
provisions waived only by a written instrument signed by the
parties hereto, upon authorization of the Company's Board of
Directors.
15. Headings.
The headings of the Sections contained in this Agreement are
inserted for convenience and reference only and in no way define,
limit, extend or describe the scope of this Agreement, the intent
of any provisions hereof, and shall not be deemed to constitute a
part hereof nor to affect the meaning of this Agreement in any
way.
16. Counterparts.
This Agreement may be signed in two counterparts, each of
which shall be deemed an original and both of which shall
together constitute one agreement.
17. Governing Law.
This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania. If
you are in agreement with the foregoing, please sign your name
below and also at the bottom of the Proprietary Information and
Inventions Agreement, whereupon both Agreements shall become
binding in accordance with their terms. Please then return this
Agreement to the Company. (You may retain for your records the
accompanying counterpart of this Agreement enclosed herewith).
Very truly yours,
RYKA INC.
By: Xxxxxxx X. Xxxxx
------------------------------
Accepted and Agreed:
Xxxxxx X. XxXxxxxxxxx
-----------------------
Xxxxxx X. XxXxxxxxxxx
7
EXHIBIT "A"
EMPLOYMENT TERM, COMPENSATION AND BENEFITS
OF
XXXXXX X. XxXXXXXXXXX
PRESIDENT
1. Term.
The term of this Agreement to which this Exhibit "A" is
annexed and incorporated shall be for five (5) years and ninety-
eight (98) days, commencing September 25, 1995 and terminating
December 31, 2000, unless renewed in accordance with Section 2.1
of the agreement or terminated prior thereto in accordance with
Section 2.2 or 2.3 of the Agreement.
2. Compensation.
a. Base Salary. During the Term of this Agreement you
shall receive an annual Base Salary of One Hundred Sixty-
five Thousand ($165,000.00) Dollars; provided however, that
commencing in calendar year 1997, you shall receive annual
increases of five thousand (5,000.00) over your prior year's
base salary.
b. Bonus. Any bonus, if any, shall be determined by the
Board of Directors in its sole and absolute discretion. No
later than December 31, 1995, the Company and you shall
agree upon a performance bonus plan which is acceptable to
both parties.
c. All Base Salary shall be payable twice monthly.
3. Vacation.
You shall be paid for and be entitled to all legal and
religious holidays, and such other vacation in accordance with
Company policy. All vacation time shall be earned on a quarterly
basis. You shall arrange for vacations in advance at such time
or times as shall be mutually agreeable to you and the Company.
You shall be entitled to carry forward into the subsequent year
up to one (1) week of unused vacation time. You may not receive
pay in lieu of vacation.
A - 1
4. Insurance and Benefits.
You shall be eligible for participation in any health or
other group insurance plan which may be established by the
Company or which the Company is required to maintain by law. You
shall also be entitled to participate in any employee benefit
program which the Company may establish for its key employees or
for its employees generally, including, but in no way limited to,
bonuses and stock purchase or option plans. The Company shall
provide comprehensive health insurance for you and your
dependents as provided to other similar executive employees of
the Company at a cost to the Company not to exceed Five Thousand
($5,000.00) Dollars per year.
5. Expenses.
The Company shall reimburse you promptly for all reasonable
and ordinary business and out-of-pocket expenses incurred by you
in connection with the Company's business and in the scope of
your employment hereunder, as approved by the Company, including,
without limitation, reasonable and necessary travel, lodging,
entertainment and meals incurred by you during the term of this
Agreement, provided the expenses are incurred in furtherance of
the Company's business and at the request of the Company. You
agree to keep and maintain records of the aforesaid expenses as
may be requested by the Company and to account to the Company for
the expenses prior to reimbursement.
6. Stock Options and Incentives.
6.1 Upon execution of this Agreement, you will be granted
five (5) year options to purchase 250,000 shares of the
Company's Common Stock at an exercise price per share equal
to the fair market value of the underlying Common Stock on
the date of the grant, of which 50,000 shares shall vest on
each of the first, second, third, fourth and fifth yearly
anniversaries of the date of your Employment Agreement.
6.2 In addition, upon execution of this Agreement, you will
be granted five (5) year options to purchase a total of
250,000 shares of the Company's Common Stock at an exercise
price per share equal to the fair market value of the
underlying Common Stock on the date of the grant which shall
vest fully as follows:
(a) Commencing with the twelve (12) month period
ending December 31, 1996 and continuing for each
of the next four (4) twelve (12) month periods
thereafter, options for 50,000 shares shall vest
for each such twelve (12) month period based upon
performance goals ("Goals") determined by the
Company's Board of Directors no later than
December 31, 1995.
A - 2
6.3 In the event the Goals involve sales or net income, all
determinations as to sales and net income shall be made by
the Company's regularly retained certified public accountant
whose determinations shall be final and binding upon all
parties hereto.
6.4 Notwithstanding anything contained herein to the
contrary, any stock options granted to you shall be subject
to 1) prior Board approval as required; and 2) an amendment
of the Company's certificate of incorporation to permit the
authorization of such additional shares underlying the stock
options. You acknowledge that, at the present time, the
Company does not have the authorized number of shares
necessary to support such stock options.
7. Relocation and Interim Housing Allowance
The Company will reimburse you for the cost of moving from
California to Pennsylvania including moving costs for you and
your family, closing costs on the sale of your existing home and
the acquisition of your new home. The total cost shall not
exceed $45,000.00. In addition, the Company shall pay your
interim housing costs through March 31, 1996, not to exceed one
thousand five hundred (1,500.00) per month.
8. Automobile Allowance
During the term of this Agreement, you shall receive a
monthly automobile allowance of five hundred (500.00).
A - 3
EXHIBIT B
OUTSIDE EMPLOYMENTS AND DIRECTORSHIPS
OF
XXXXXX X. XxXXXXXXXXX
NONE
B - 1
EXHIBIT C
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PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
-------------------------------------------------------------------------------
To: RYKA, Inc.
000 Xxxxx Xxxxxxxxx Xxxx
Xxxx xx Xxxxxxx, XX 00000
The undersigned, in consideration of and as a condition of
my employment or continued employment by you and/or by companies
which you own, control, or are affiliated with or their
successors in business (collectively, the "Company"), hereby
agrees as follows:
1. Confidentiality.
I agree to keep confidential, except as the Company may
otherwise consent in writing, and, except for the Company's
benefit, not to disclose or make any use of at any time either
during or subsequent to my employment, any Inventions (as
hereinafter defined), trade secrets and confidential information,
knowledge, data or other information of the Company relating to
products, processes, know-how, techniques, methods, designs,
formulas, test data, customer lists, business plans, marketing
plans and strategies, pricing strategies, or other subject matter
pertaining to any business of the Company or any of its
affiliates, which I may produce, obtain, or otherwise acquire
during the course of my employment, except as herein provided. I
further agree not to deliver, reproduce or in any way allow any
such trade secrets, confidential information, knowledge, data or
other information, or any documentation relating thereto, to be
delivered to or used by any third parties without specific
direction or consent of a duly authorized representative of the
Company.
2. Conflicting Employment; Return of Confidential Material.
I agree that during my employment with the Company I will
not engage in any other employment, occupation, consulting or
other activity relating to the business in which the Company is
now or may hereafter become engaged, or which would otherwise
conflict with my obligations to the Company. In the event my
employment with the Company terminates for any reason whatsoever,
C - 1
I agree to promptly surrender and deliver to the Company all
records, materials, equipment, drawings, computer disks,
documents and data of which I may obtain or produce during the
course of my employment, and I will not take with me any
description containing or pertaining to any confidential
information, knowledge or data of the Company which I may produce
or obtain during the course of my employment.
3. Assignment of Inventions.
3.1 I hereby acknowledge and agree that the Company is the
owner of all Inventions. In order to protect the Company's
rights to such Inventions, by executing this Agreement I hereby
irrevocably assign to the Company all my right, title and
interest in and to all Inventions to the Company.
3.2 For purposes of this Agreement, "Inventions" shall mean
all discoveries, processes, designs, methods, techniques,
technologies, devices, or improvements in any of the foregoing or
other ideas, whether or not patentable or copyrightable and
whether or not reduced to practice, made or conceived by me
(whether solely or jointly with others) during the period of my
employment with the Company which relate in any manner to the
actual or demonstrably anticipated business, work, or research
and development of the Company, or result from or are suggested
by any task assigned to me or any work performed by me for or on
behalf of the Company.
3.3 Any discovery, process, design, method, technique,
technology, device, or improvement in any of the foregoing or
other ideas, whether or not patentable or copyrightable and
whether or not reduced to practice, made or conceived by me
(whether solely or jointly with others) which I develop entirely
on my own time not using any of the Company's equipment,
supplies, facilities, or trade secret information ("Personal
Invention") is excluded from this Agreement provided such
Personal Invention (i) does not relate to the actual or
demonstrably anticipated business, research and development of
the Company, and (ii) does not result, directly or indirectly,
from any work performed by me for or on behalf of the Company.
4. Disclosure of Inventions.
I agree that in connection with any Invention, I will
promptly disclose such Invention to the Board of Directors or the
Executive Committee of the Company in order to permit the Company
to enforce its property rights to such Invention in accordance
with this Agreement. My disclosure shall be received in
confidence by the Company.
C - 2
5. Patents and Copyrights; Execution of Documents.
5.1 Upon request, I agree to assist the Company or its
nominee (at its expense) during and at any time subsequent to my
employment in every reasonable way to obtain for its own benefit
patents and copyrights for Inventions in any and all countries.
Such patents and copyrights shall be and remain the sole and
exclusive property of the Company or its nominee. I agree to
perform such lawful acts as the Company deems to be necessary to
allow it to exercise all right, title and interest in and to such
patents and copyrights.
5.2 In connection with this Agreement, I agree to execute,
acknowledge and deliver to the Company or its nominee upon
request and at its expense all documents, including assignments
of title, patent or copyright applications, assignments of such
applications, assignments of patents or copyrights upon issuance,
as the Company may determine necessary or desirable to protect
the Company's or its nominee's interest in Inventions, and/or to
use in obtaining patents or copyrights in any and all countries
and to vest title thereto in the Company or its nominee to any of
the foregoing.
6. Maintenance of Records.
I agree to keep and maintain adequate and current written
records of all Inventions made by me (in the form of notes,
sketches, drawings and other records as may be specified by the
Company), which records shall be available to and remain the sole
property of the Company at all times.
7. Prior Inventions.
It is understood that all Personal Inventions, if any,
whether patented or unpatented, which I made prior to my
employment by the Company, are excluded from this Agreement. To
preclude any possible uncertainty, I have set forth on Schedule A
attached hereto a complete list of all of my prior Personal
Inventions, including numbers of all patents and patent
applications and a brief description of all unpatented Personal
Inventions which are not the property of a previous employer. I
represent and covenant that the list is complete and that, if no
items are on the list, I have no such prior Personal Inventions.
I agree to notify the Company in writing before I make any
disclosure or perform any work on behalf of the Company which
appears to threaten or conflict with proprietary rights I claim
in any Personal Invention. In the event of my failure to give
such notice, I agree that I will make no claim against the
Company with respect to any such Personal Invention.
C - 3
8. Other Obligations.
I acknowledge that the Company from time to time may have
agreements with other persons, companies, entities, the U.S.
Government or agencies thereof, which impose obligations or
restrictions on the Company regarding inventions made during the
course of work thereunder or regarding the confidential nature of
such work. I agree to be bound by all such obligations and
restrictions and to take all action necessary to discharge the
Company's obligations.
9. Trade Secrets of Others.
I represent that my performance of all the terms of this
Agreement and as an employee of the Company does not and will not
breach any agreement to keep confidential proprietary
information, knowledge or data acquired by me in confidence or in
trust prior to my employment with the Company, and I will not
disclose to the Company, or induce the Company to use, any
confidential or proprietary information or material belonging to
any previous employer or others. I agree not to enter into any
agreement either written or oral in conflict herewith.
10. Modification.
I agree that any subsequent change or changes in my
employment duties, salary or compensation or, if applicable, in
any Employment Agreement between the Company and me, shall not
affect the validity or scope of this Agreement.
11. Arbitration.
Any dispute concerning this Agreement including, but not
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.
12. Binding Effect.
This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective legal
representatives and successors.
C - 4
13. Interpretation.
IT IS THE INTENT OF THE PARTIES THAT 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, IT IS THE INTENT OF THE PARTIES THAT if any provision
of this Agreement is or becomes or is deemed invalid, illegal or
unenforceable or in case 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, such provision shall be construed by amending, limiting
and/or reducing it to conform to applicable laws so as to be
valid and enforceable or, if it cannot be so amended without
materially altering the intention of the parties, it shall be
stricken and the remainder of this Agreement shall remain in full
force and effect.
14. Waivers.
No waiver of any right under this Agreement shall be deemed
effective unless contained in a writing signed by the party
charged with such waiver, and no waiver of any right arising from
any breach 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.
15. Entire Agreement; Modification.
This Agreement constitutes the entire agreement between the
parties and supersedes any prior oral or written communications,
representations, understandings or agreements concerning the
subject matter hereof with the Company or any officer or
representative thereof. This Agreement may be amended, modified,
or certain provisions waived only by a written instrument signed
by the parties hereto, upon authorization of the Company's Board
of Directors.
16. Headings.
The headings of the Sections contained in this Agreement are
inserted for convenience and reference only and in no way define,
limit, extend or describe the scope of this Agreement, the intent
of any provisions hereof, and shall not be deemed to constitute a
part hereof nor to affect the meaning of this Agreement in any
way.
C - 5
17. Counterparts.
This Agreement may be signed in two counterparts, each of
which shall be deemed an original and both of which shall
together constitute one agreement.
18. Governing Law.
This Agreement shall be governed and construed in accordance
with the laws of the Commonwealth of Pennsylvania.
19. Notices.
All notices, requests, demands and communications which are
or may be required to be given hereunder shall be deemed given if
and when sent by registered or certified mail, return receipt
requested, postage prepaid, to the following addresses:
If to the Company: RYKA, Inc.
000 Xxxxx Xxxxxxxxx Xxxx
Xxxx xx Xxxxxxx, XX 00000
Attention: President
With a copy to: Xxxxx X. Xxxxxx, Esquire
Xxxxx Xxxxx Xxxxxx & Xxxxxxxxx
The Bellevue, Sixth Floor
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
If to Employee: Xxxxxx X. XxXxxxxxxxx
00000 Xxx Xxx Xxxx
Xxxxxxx Xxxxxx, XX 00000
EMPLOYEE:
Xxxxxx X. XxXxxxxxxxx
--------------------------
XXXXXX X. XxXXXXXXXXX
Accepted and Agreed:
RYKA, INC.
By: Xxxxxxx X. Xxxxx
----------------------
C - 6
SCHEDULE A
LIST OF PRIOR INVENTIONS
OF
XXXXXX X. XxXXXXXXXXX
Title Date Identifying Number or
----- ---- Brief Description
---------------------
NONE
C - 7
