EXHIBIT 10.06
EMPLOYMENT AGREEMENT
l. PARTIES.
The parties to this Agreement are AVID, INC., a California corporation,
hereinafter called "Employer" and XXXXX X. XXXXXXXX, hereinafter called
"Employee."
2. RECITALS.
This Agreement is made with reference to the following facts:
2.01 Employee has been employed by Employer as President, Secretary and
Chief Financial Officer of Employer and Employee is familiar with the business
operations of Employer. Employer is desirous of formalizing the employment of
Employee pursuant to this Agreement.
2.02 Golf Innovations Corp., a Nevada Corporation ("GIC"), is
contemporaneously acquiring all of the shares of Employer, including 10,000
shares owned by Employee.
2.03 The parties desire by this Agreement to provide the terms and
conditions of employment and the benefits to be provided by Employer to
Employee.
3. AGREEMENT.
THE PARTIES AGREE AS FOLLOWS:
3.01 EMPLOYMENT. Employer hereby engages Employee, and Employee hereby
accepts employment from Employer, upon the terms and conditions herein set
forth.
3.02 TERM. The term of this Agreement shall be for a period of five (5)
years, commencing on the effective date of this Agreement and terminating on the
fifth anniversary thereof, subject, however, to prior termination as herein
provided. This Agreement shall be automatically renewed for succeeding terms of
one (1) year each unless either party, at least sixty (60) days prior to the
expiration of any term, gives written notice of intent not to renew this
Agreement.
3.03 SERVICES TO BE RENDERED. Employee is engaged as President to render
services for and on behalf of Employer and agrees to devote Employee's full time
and attention to the business of Employer. Employee shall be primarily
responsible for merchandising, design, market research, sales and production for
Employer.
Employee shall not, without the express written consent of Employer,
directly or indirectly during the term of this Agreement and for a period of two
(2) years thereafter, render services of a business nature to or for any person
or firm for compensation, or engage in any activity competitive with and adverse
to Employer's business in the United States, whether alone, as a partner, or as
an officer, director, employee or shareholder of any other corporation or as a
trustee, fiduciary or other representative of any other entity.
3.04 COMPENSATION. Employer agrees to pay Employee during the term of this
Agreement, and Employee hereby accepts as full compensation for the performance
of services hereunder, the current and deferred compensation and other benefits
set forth on Schedule "A" attached hereto and incorporated herein by this
reference. All current compensation shall be subject to customary withholding
tax and other employment taxes as required with respect to compensation paid by
an employer to an employee.
3.05 EXPENSES. During the period of employment, Employee shall be
reimbursed for reasonable and necessary business expenses in accordance with the
general policy of Employer.
3.06 REIMBURSEMENT OF DISALLOWED COMPENSATION AND EXPENSES. In the event
any compensation paid to Employee, including expenses paid on behalf of
Employee, or any reimbursement of expenses paid to Employee, shall, upon audit
or other examination of the income tax returns of Employer, be determined not to
be an allowable deduction from the gross income of Employer, and such
determination shall be acceded to by Employer, or such determination shall be
rendered final by the appropriate state or federal taxing authority, or a
judgment of a court of competent jurisdiction, and no appeal shall be taken
therefrom, or the applicable period for filing notice of appeal shall have
expired, then in such event, Employee shall repay to Employer the amount of such
disallowed compensation or expenses, or both. Such repayment may not be waived
by Employer.
3.07 VACATION. Employee shall be entitled to a vacation of four (4) weeks
without loss of compensation, or such greater length as may be approved from
time to time by the Employer.
3.08 EMPLOYER'S AUTHORITY. Employee agrees to observe and comply with the
rules and regulations of Employer, either orally or in writing, respecting
performance of Employee's duties and to carry out and to perform orders,
directions and policies stated by Employer to Employee, from time to time,
either orally or in writing.
3.09 ACCOUNTING. True and accurate records of accounts shall be kept in
accordance with good accounting practices and shall be available at any
reasonable time for inspection by Employee.
3.10 OFFICE SPACE AND EQUIPMENT. Employer shall furnish all necessary
office space, equipment and supplies which may be necessary for the successful
performance of Employee's duties hereunder and the conduct of its business.
3.11 TERMINATION. Notwithstanding the term of this Agreement, this
Agreement shall be terminated upon the happening of any of the following events:
(a) Whenever Employer and Employee shall mutually agree to termination
in writing;
(b) Death of Employee;
(c) Employee remains sick or disabled for the period of three (3)
consecutive months;
(d) For cause, which shall be deemed to exist if: (i) Employee willfully
refused to perform services hereunder, (ii) Employee engages in acts of
dishonesty or fraud in connection with his services hereunder; or (iii) Employee
engages in other serious misconduct of such a nature that the continued
employment of Employee may reasonably be expected to adversely affect the
business of properties of Employer. The shareholders of Employer shall have the
sole discretion to determine whether the conditions constituting a termination
for cause have occurred;
(e) Notwithstanding any of the provisions of subparagraphs (a) and (b)
above, upon sixty (60) days' prior written notice by either Employer or Employee
to the other.
Upon termination for any of the foregoing causes, Employee shall be
entitled to receive all compensation accrued but unpaid as of the date of
termination.
3.12 SEVERANCE PAYMENTS. In the event that this Agreement is terminated by
Employer without cause (i.e., other than "for cause," as defined in Section 3.11
above), Employer shall make severance payments to Employee in the amount of
Twelve Thousand Five Hundred and No/100 Dollars ($12,500.00) per month for a
period of six (6) months. In the event that this Agreement is terminated by
Employee, or is terminated by Employer for cause (as defined in Section 3.11
above), Employer shall not be obligated to make any severance payments to
Employee.
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3.13 Employee covenants and agrees that he will not for two (2) years from
the date hereof, use, directly or indirectly, for his own account or for the
account of any third party, without the prior written consent of Employer, any
observations, data, written materials, customer lists, supplier or vendor lists,
records or documents relating to Employer which are of a confidential or
proprietary nature and which Employee may have acquired by virtue of work
performed for Employer.
3.14 All written materials, records and documents made by Employee or
coming into his possession during the term of his employment by and ownership of
shares in Employer concerning the business or affairs of Employer shall be the
sole property of Employer and retained by Employer.
3.15 Employee agrees that any trade secrets, invention, improvement,
patent, patent application, or writing and any program, system or novel
technique (whether or not capable of being trademarked, copyrighted or
patented), conceived, devised, developed or otherwise obtained by him during his
employment by and ownership of shares in Employer relating to the business,
property, methods, suppliers or customers of Employer shall remain the sole
property of Employer.
3.16 Employee covenants and agrees that for a period of two (2) years from
the date hereof, he shall not directly or indirectly solicit, entice or
encourage the employment or resignation of any employee of Employer.
3.17 Employee recognizes, acknowledges and agrees that the Employer's
customer and client lists and other records and information pertaining to
Employer's customers, clients and business, as such lists, records and
information may exist from time to time, as well as the respective customer and
client lists and other records and information pertaining to the customers,
clients and business of Employer, to which Employee has had access as an
employee of Employer, are valuable, special and unique assets which constitute
protectable interests of Employer. Employee covenants and agrees that for a
period of two (2) years from the date hereof, he shall not (i) canvas, solicit
or accept any business in connection with the business of Employer, from any
person or entity who is a customer of Employer, (ii) give any person, firm,
corporation or entity the right to canvas, solicit or accept any business in
connection with the business of Employer, from any person or entity who is a
customer of Employer; or (iii) directly or indirectly, request or advise any
person or entity who is a customer of Employer to withdraw, curtain or cancel
business with Employer. "A customer of Employer" shall be any person or entity
that has purchased goods from Employer in the twelve (12) month period prior to
Employee's termination.
3.18 Employee acknowledges and agrees that the scope, period of
restriction and geographic area of restriction imposed by the provisions of
Section 3 are fair and reasonable and are reasonably required for the protection
of Employer. In the event that any part of these covenants relating to the
scope, geographic area of restriction or the period of restriction shall be
determined by a court of competent jurisdiction to exceed the maximum area or
period of time that such court would deem enforceable under applicable law, the
scope, geographic area of restriction or the period of restriction, as the case
may be, shall be reduced to the maximum scope, area and period that such court
would deem valid and enforceable.
It is understood by and between the parties hereto that the foregoing
covenants by Employee as set forth above are essential elements of this
Agreement and the purchase of the shares of Employer by GIC, and that GIC would
not have encouraged that Employer to have entered into this Agreement unless
Employee agreed to comply with such covenants. Furthermore, Employee covenants
and agrees that in the event of Employee's actual or threatened breach of any of
the provisions of this Agreement, Employer shall be entitled to an injunction
restraining Employee therefrom, as damages at law would not be an adequate
remedy. Nothing herein shall be construed as prohibiting Employer from pursuing
any other available remedies for such breach or threatened breach, including the
recovery of damages from Employee. Employer shall also be entitled to recover
attorney fees from Employee in connection with the enforcement of these
provisions.
3.19 CALIFORNIA LAW. This Agreement is drawn to be effective in and shall
be construed in accordance with the laws of the State of California.
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3.20 AMENDMENT. No amendment or variation of the terms of this Agreement
shall be valid unless made in writing and signed by Employee and a duly
authorized representative of Employer.
3.21 WAIVER. A waiver of any of the terms and conditions hereof shall not
be construed as a general waiver by Employer, and Employer shall be free to
reinstate any such term or condition, with or without notice to Employee.
3.22 BINDING EFFECT. This Agreement shall bind all parties, their
respective heirs, personal representatives, or assigns, but nothing herein shall
be construed as an authorization or right of any party to assign the rights or
obligations stated hereunder.
3.23 EFFECTIVE DATE OF THIS AGREEMENT. The effective date of this
Agreement is January 1, 1999.
EMPLOYER: EMPLOYEE:
AVID SPORTSWEAR, INC.
A CALIFORNIA CORPORATION
By: /s/ Xxxxxxx X. [Xxxxxxxxxx] /s/ Xxxxx X. Xxxxxxxx
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Vice President
By: /s/ Xxxxx X. Xxxxxxx
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Secretary
SCHEDULE A-1
SCHEDULE "A"
SCHEDULE OF COMPENSATION FOR
XXXXX X. XXXXXXXX
1. Current Compensation.
In accordance with Section 3.04 of the Employment Agreement to which this
Schedule attached, Employee shall be paid total compensation, as follows:
a. A base salary per year of $150,000.00, payable at the rate of
$12,500.00 per month commencing the effective date of the Employment Agreement.
b. Employee shall be eligible for annual salary increase in discretion of
Employer.
c. In addition to base salary, Employer may pay to Employee such bonuses
or additional compensation as may be determined reasonable from time to time by
its Shareholders.
2. Other Benefits.
Employer may provide to Employee such health, disability and other
benefits as may be determined from time to time by Employer for its employees.
SCHEDULE A-1
