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EXHIBIT 10.36
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of the 10th day of
April, 1997, by and between GARGOYLES ACQUISITION CORPORATION, a Washington
corporation t/b/k/a Sungold Eyewear, Inc. (the "Corporation") and wholly-owned
subsidiary of Gargoyles, Inc., a Washington corporation ("Gargoyles"), and
XXXXXXX XXXXXXX ("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 Corporation hereby employs Employee and Employee hereby accepts employment
with the Corporation.
2. Duties And Reporting Relationship. During the Term of Employment, as defined
below, Employee shall be employed in the capacity of President of the
Corporation, or in such other executive office or capacity as the Corporation
shall direct, from time to time, during the term hereof. In such capacity,
Employee shall devote his working time and attention to manage and direct all
policy-making aspects of the business and affairs of the Corporation, under the
direction of the Chief Executive Officer of the Corporation and the Board of
Directors of the Corporation. Employee acknowledges and agrees that as President
the hours which he is required to work will vary considerably and will 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. Employee's
travel for the Corporation will not, however, materially exceed the amount of
time Employee traveled for his previous employer, Sungold Enterprises, Inc.
Employee also shall perform such executive duties as may be specified for
companies which are controlled by or are under common control with the
Corporation, including without limitation, Gargoyles, H.S.C., Inc., a Washington
corporation d/b/a Hobie Polarized Sunglasses, and the kindling company, a
California corporation d/b/a Timberland Eyewear.
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 the third (3rd) anniversary hereof (the
"Term of Employment"). The Corporation shall have the option to renew the Term
of Employment for additional one-year terms.
4. Base Salary. For all services rendered by Employee under this Agreement, the
Corporation shall pay Employee a Base Salary at an annual rate of Two Hundred
Thousand Dollars ($200,000), payable in twice monthly installments in accordance
with the Corporation's usual payroll policies and procedures. This Base Salary
is
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subject to annual increases by the Board of Directors of the Corporation,
considering all factors relevant to such a decision, but shall not be decreased.
5. Benefits.
5.1 Expenses. The Corporation 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 A,
under which Employee will have the opportunity, in accordance with the terms of
the Plan to purchase 20,000 shares of Gargoyles Common Stock at an exercise
price equal to the Fair Market Value (as such term is defined in the Plan) of
such stock as of the date of 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
Option is Exercisable Which is Exercisable
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December 31, 1997 1/10
Each year of continuous An additional 1/10
service thereafter
provided, however, that the exercisability of such vested shares may be
accelerated in accordance with the following percentages, if the Corporation
achieves the following net operating income goals:
- 25% of the shares shall become exercisable on April 1, 1998, if the
Corporation achieves its net operating income goal for 1997;
- 25% of the shares shall become exercisable on April 1, 1999, if the
Corporation achieves its net operating income goal for 1998;
- 25% of the shares shall become exercisable on April 1, 2000, if this
Corporation achieves its net operating income goal for 1999;
- 25% of the shares shall become exercisable on April 1, 2001, if this
Corporation achieves its net operating income goal for 2000;
For purposes of the accelerated vesting, the Corporation and Employee will
establish net operating income goals for each year on or before December 1st of
the previous year. The net operating income goal for 1997 for the Corporation is
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$___________Million. If the Corporation and Employee are unable to establish net
operating income goals for any particular year, such goals shall be ______%
higher than the net operating income goal for the previous year.
5.3 Company Benefits. Employee shall be entitled to participate fully in
all the Corporation's employee benefits plans established for full-time
employees of the Corporation, including without limitation all health, medical,
retirement, life and disability insurance plans established by the Corporation
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 Corporation to the extent Employee is eligible under the terms of such
plans.
5.4 Flexible Time Off. Employee will be entitled to four (4) weeks of
flexible time off, exclusive of holidays established by the Corporation, to be
administered in accordance with policies of the Corporation, as amended from
time to time, generally applicable to employees of the Corporation.
6. Termination.
6.1 Termination for Cause. Except as set forth below, this Agreement and
Employee's employment by the Corporation may only be terminated for Cause. For
purposes of this Agreement, "Cause" shall mean: (i) Employee shall be found by
the Board of Directors of the Corporation 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 Corporation, (ii) conviction of Employee for
commitment of a felony; (iii) any violation of law by Employee which has a
material adverse effect on the Corporation; (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 Corporation; (vii) a material
breach of Employee's obligations under paragraph 7 hereof which have a material
adverse effect on the Corporation; or (vii) unexcused habitual absence from work
for reasons unrelated to illness, family crisis or disability.
Employee may not be terminated for Cause unless and until he shall have been
given written notice which sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination for Cause pursuant to
this paragraph 6 (the "Termination Notice"). Employee shall be deemed terminated
on the 30th day following his receipt of the Termination Notice (the
"Termination Date") if he shall have failed to cure or correct the circumstances
constituting Cause, or if such circumstances cannot reasonably be cured within a
thirty (30) day period, if Employee shall have failed to actively and diligently
pursue cure of such circumstances.
6.2 Death or Disability.
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(a) This Agreement and the Employee's employment hereunder shall
terminate upon the death of Employee. The date of Employee's death also is
referred to herein as the "Termination Date."
(b) If Employee is Disabled, the Corporation shall have the right
and may elect to terminate the services of the Employee by written notice. The
day after such written notice has been delivered to the Employee is also
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 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 120 days. Determination of
whether Employee is Disabled shall be made in good faith by a physician
reasonably acceptable to the Board of Directors of the Corporation.
6.3 Resignation With Good Reason. Should Employee wish to resign from his
position with the Corporation during the Employment Period with Good Reason, he
shall give thirty (30) days written notice to the Corporation specifying 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 Corporation to fix the
Termination Date as of the last business day on which Employee reported for work
at the principal offices of the Corporation. "Good Reason" shall mean (i)
material breach by the Corporation of its obligations hereunder; (ii) a
significant adverse change in the nature and scope of Employee's position of
employment, (iii) relocation of Employee to a facility or a location more than
25 miles from the Corporation's Farmingdale, New York facility, without the
Employee's express written consent.
6.4 Employee's Voluntary Resignation. Should Employee wish to resign from
his position with the Corporation during the Employment Period without Good
Reason (his "Voluntary Resignation"), he shall give thirty (30) days written
notice to the Corporation 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 Corporation to fix the Termination Date as of the last business day on which
Employee reported for work at the principal offices of the Corporation.
6.5 Compensation and Benefits Upon Termination.
(a) If the employment of the Employee is terminated for Cause 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) If the employment of Employee is terminated other than for Cause
or due to Employee's Voluntary Resignation, Employee shall be entitled to
receive (i) an amount equal to the Base Salary payable for the remaining period
of the Term
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of Employment, less any amounts received by Employee under disability insurance
policies provided by the Corporation or as compensation or benefits from
employment during such time and (ii) all benefits under employee benefit plans
in which Employee was participating immediately prior to the Termination Date
which would have been available to Employee during the Term of Employment,
provided that Employee's continued participation is permitted under the terms
and provisions of such employee benefit plans. If Employee's participation in
any employee benefit plan is not permitted, the Corporation shall arrange to
provide Employee with benefits substantially similar to those which Employee
otherwise would be entitled to receive.
7. Intellectual Property; Nondisclosure of Confidential Information; Covenant
Not To Compete.
7.1 Definitions.
(a) Confidential Information. For purposes of this Agreement,
Confidential Information shall mean all the Corporation'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 Corporation to Employee,
or devised by Employee during his employ by the Corporation. Examples of
Confidential Information include, without limitation: all information
specifically identified as proposed installations, products or product lines,
information systems, or other projects, the Corporations' supplier and customer
lists and all customer information and the Corporation'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 (iii) Employee acquired during
previous employment prior to the effective date of this Agreement.
(b) Conflicting Services. For purposes of this Agreement,
Conflicting Services shall mean product development or marketing of any eyewear,
or other products which compete with products then in production and marketing,
or reasonably anticipated to be in production and marketing, by the Corporation,
any of its affiliates, or by any of their respective exclusive licensees, and
shall in addition mean all services of any type which involve, directly or
indirectly, the use or disclosure of Confidential Information. Conflicting
Services specifically do not include: (i) general product development, marketing
and promotional services, (ii)
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product development, marketing and promotion of sportswear and sporting goods in
general, and (iii) product development, marketing and promotion of eyewear and
sporting goods (except for product development, marketing and promotion by
methods which include, or make use of, Confidential Information) that are not
competitive with products then in production and marketing, or reasonably
anticipated to be in production and marketing by the Corporation or by any of
its affiliates, or by any of their respective exclusive licensees.
(c) Conflicting Territories. For purposes of this Agreement,
Conflicting Territories shall mean, severally or together, each of the states of
the United States, and all foreign countries in which the products of
Corporation and its affiliates are now sold or are hereafter sold.
(d) 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
Corporation in any capacity under this Agreement which relates to any questions
or problems for which the Corporation has requested Employee's services, (ii)
that are based in any way on Confidential Information received by Employee from
the Corporation or developed or made by Employee during his employ at the
Corporation, or (iii) with the aid of any equipment, supplies, facilities or
employees of the Corporation or on the Corporation'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 Corporation, 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 Corporation if any
improper disclosure or use does occur.
7.3 Adherence to Confidentiality. Employee acknowledges his understanding
and recollection that his employment with the Corporation has always been under
terms of the strictest confidentiality which were at least the equivalent of the
confidentiality terms of this Agreement, and acknowledges and states that at no
time during his employment with the Corporation has he departed in any
substantial way from adherence to those terms.
7.4 Conflicting Services. Although certain provisions of this Agreement
allow Employee to engage in Conflicting Services subject to certain terms and
conditions, Employee's common law and contractual duties to maintain and
preserve the secrecy of the Corporation's Confidential Information continue in
perpetuity unabated and unchanged by those provisions.
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7.5 Covenant Not To Compete.
(a) Representation of Employee. Employee represents that, and the
Corporation offers this employment in reliance upon Employee's representation
that, in the event of termination or expiration of Employee's employment for any
cause whatsoever, Employee's experience, education, training and capabilities
are such that he can obtain employment performing activities which are not
Conflicting Services, or which are to be performed outside of Conflicting
Territories, and that the enforcement of this Agreement by way of injunction
will not present Employee from earning a living.
(b) Covenant of Employee; Term. Employee agrees that he will not
directly or indirectly, whether as principal, agent, officer, director,
employee, salesman, or otherwise, alone or in associate with any other person,
firm, corporation or other business corporation, enter into, participate in, or
engage in any Conflicting Services within any Conflicting Territory. Employee
also agrees not to either directly or indirectly solicit for employment or
employ any employee of the Corporation for any party other than the Corporation.
Employee further agrees that he shall not directly or indirectly acquire or own
any shares or other interest in the business of any person, firm, corporation or
other business organization which is engaged in or proposes to become engaged in
any Conflicting Services within any Conflicting Territory (other than for bona
fide non-controlling investment purposes). If Employee's employment with the
Corporation terminates for Cause or because of his Voluntary Resignation, and
provided the Corporation is not in default of its payment and other obligations
to Employee arising under this Agreement, Employee's Covenant Not To Compete
shall be effective for the period of the remainder of the term of the Agreement
and shall be effective and enforceable in and throughout all Conflicting
Territories. Upon the expiration of this Agreement, or if Employee is terminated
for any reason and upon payment by the Corporation of the sum of One Hundred
Thousand Dollars ($100,000) Employee's Covenant Not To Compete shall be
effective for a period of one (1) year from the Termination Date and shall be
effective and enforceable in and throughout all Conflicting Territories.
(c) Enforcement. Employee agrees that as to the geographic areas and
the time periods set forth above for the purpose of the Covenant Not To Compete,
each Conflicting Territory and each time period are divisible and separate so
that in the event the Covenant Not To Compete is held by a court to be invalid
or unenforceable as to any geographic area or for any time period described, the
Covenant Not To Compete shall remain valid and enforceable in all remaining
geographic areas and time periods. Employee agrees that it is his express
intention that, in the event a court reforms this Agreement, the Corporation be
given the broadest protection allowed by law as respects this Agreement and the
Covenant Not To Compete.
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7.6 Employee Invention Materials and Invention Disclosure.
(a) Employee shall, at all times of employment and/or thereafter,
immediately and fully disclose to the Corporation all information regarding each
Invention conceived, made, developed, or perfected during Employee's employment
by the Corporation, for the purpose of determining the Corporation'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 Corporation. Each Invention which Employee is required to disclose to the
Corporation 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 Corporation.
(b) Employee agrees to keep, preserve in good condition and make
available to the Corporation 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 Corporation.
7.7 Employee Invention Assignment and Continued Employee Assistance.
(a) Employee hereby assigns to the Corporation all of Employee's
rights in each Invention which (i) is developed using the Corporation's
equipment, supplies, facilities, or information supplied by the Corporation to
Employee; or (ii) which relates directly to the business of the Corporation, or
to the Corporation's actual or demonstrably anticipated research or development;
or (iii) which has resulted from any work performed by the Employee for the
Corporation, whether or not on the Corporation's time. See attached Exhibit B
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 Corporation, at the request of the Corporation,
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 Corporation, 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.
7.8 Employee Cooperation. Employee further agrees that Employee will, at
no charge to the Corporation, and at no expense to Employee, during and after
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Employee's employment, cooperate with the Corporation 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 Corporation 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 Corporation 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 Corporation all such papers, and
performing all such actions, as the Corporation shall from time to time
reasonably request related to such enforcement or prosecution or recordation
actions by the Corporation, such papers including without limitation patent and
copyright registrations applications and assignment documents therefor,
declarations, petitions, and instruments of transfer.
7.9 Corporation's Right to File. In addition, it is understood that the
Corporation 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 Corporation's name, or in the name of the
Corporation's nominee, at the Corporation's sole option.
7.10 Warranty of Originality and Preservation of Third Party Confidences.
(a) Employee undertakes not to disclose to the Corporation 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 Corporation 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. Dispute Resolution. Any dispute related to the parties' employment
relationship shall be resolved exclusively through binding arbitration in
Seattle, Washington, under the American Arbitration Association's Commercial
Arbitration Rules (the "Arbitration Rules"), except as otherwise provided
herein. The aggrieved party must deliver to the other party a written notice of
his intention to seek arbitration no later than one hundred eighty (180) days
after the event that first gives rise to the dispute. If such notice is not
delivered within such time period,
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the aggrieved party's rights shall be irrevocably waived. The dispute shall be
decided by one arbitrator selected by mutual agreement of the parties, or absent
agreement, in accordance with the Arbitration Rules. The arbitrator's fees and
other expenses of the arbitrator shall be shared equally. The parties shall bear
their own respective costs and attorney's fees. Washington State law shall
govern all substantive aspects of the dispute, and all procedural issues not
covered by the Arbitration Rules. Nothing in this Section 8, however, shall
deprive a court of competent jurisdiction of the authority to apply a temporary
restraining order or preliminary injunction prohibiting a violation of this
Agreement prior to any arbitration proceeding.
9. Enforcement. Employee agrees that damages for breach of his obligations under
or related to paragraph 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 Corporation, 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
Corporation to the maximum extent of time, scope and geography which the courts
shall find enforceable, and such provisions shall be so enforced.
10. 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.
11. 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.
12. Assignment. This Agreement is personal to Employee and Employee may not
assign any of his rights or delegate any of his duties hereunder.
13. 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
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transmission. Notices given in accordance with this paragraph shall be effective
upon receipt or when receipt is refused.
To the Corporation: Sungold Enterprises, Inc.
0000 Xxxxx 000xx Xxxxxx
Xxxx, Xxxxxxxxxx 00000
Xxxxxxx X. Xxxxx, CEO
Tel: 000-000-0000, Ext. 3400
Fax: 000-000-0000
To Employee: Xxxxxxx Xxxxxxx
c/o Xxxxxxx Xxxxxxx
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
14. 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. The Corporation expressly consents to
jurisdiction of the courts of the State of Washington and to venue in King
County, Washington.
15. 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.
16. 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.
17. 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first above mentioned.
GARGOYLES ACQUISITION CORPORATION,
a Washington corporation
By: s/s XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx, VP and CFO
s/s XXXXXXX XXXXXXX
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XXXXXXX XXXXXXX
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