Exhibit 10.33
EXECUTIVE EMPLOYMENT AGREEMENT
This employment agreement ("Employment Agreement") is as of the 12th
day of July, 2001 (the "Effective Date"), by and between AVID SPORTSWEAR & GOLF
CORP., a Nevada corporation ("the "Company"), and XXXXX X. XXXXXXX (the
"Executive").
1. SERVICES AGREEMENT. Subject to the terms and conditions set forth in this
Agreement, the Company agrees to engage Xxxxx X. Xxxxxxx to perform the function
of President and Chief Executive Officer in accordance with the terms and
conditions set forth in this Employment Agreement.
2. TERM. The term of engagement under this Employment Agreement shall be for
three (3) years, beginning July 12, 2001 ending June 25, 2004 (the "Employment
Period"), unless terminated earlier as provided herein. This Agreement will be
automatically renewed for additional twelve (12) month periods unless either the
Executive or the Company provides advanced written notice, given at least ninety
(90) days prior to the end of the then-existing Employment Period, of its intent
not to renew. Any twelve (12) month renewal shall be considered part of the
Employment Period.
3. SERVICES OF THE EXECUTIVE. It is expressly understood by the parties that
throughout the Engagement Period the Executive shall faithfully perform such
services for the business and affairs of the Company as are consistent with the
duties and responsibilities of the Company's President and Chief Executive
Officer (the "Services"). The Executive shall be the President and Chief
Executive Officer ("CEO"). As part of the services, the Company shall assign the
Executive such duties and responsibilities as are into materially consistent
with the title and position of President and CEO and that may be properly
assigned to the Executive from time to time by the Board of Directors of the
Company (the "Board"). Commencing on September 25, 2001, the Executive shall be
entitled to be appointed to the Company's Board and shall be entitled to be
nominated to the Board for each year of the Employment Period.
The Executive shall report to the Board in his performance of the Services.
It is expressly understood by the parties that the Executive shall devote his
best efforts and full business time and attention to the performance of the
Services; provided, however, that the Executive may, to the extent such
participation or service does not materially interfere with the performance of
the Services, (i) participate in charitable, civic, political, social, trade, or
other non-profit organizations; (ii) with the consent of the board, produce and
retain rights in and proceeds from books, speeches, seminars, articles and
papers; and (iii) with the consent of the Board, serve as a non-management
director of business corporations (or in a like capacity in other for-profit
organizations).
4. PLACE OF PERFORMANCE. The Executive shall perform the Services at the
executive offices of the Company located at a mutually agreed upon location by
the Executive and the Company. If the Executive is required to relocate his
permanent place of residence in Pittsburgh, Pennsylvania, the Company shall pay
or reimburse the Executive for all moving and relocation expenses, including all
home sale/purchase expenses incurred by the Executive and his family to
establish a personal residence at the new location, plus traveling and temporary
living expenses for him and his family.
5. SALARIES.
5.1 BASE SALARY. During the period from the Effective Date through
September 25, 2001) the Company shall pay to the Executive the
salary equal to an annual rate of one hundred twenty five thousand
dollars ($125,000.00). After September 25, 2001, the Company shall
pay to the Executive an annual salary (the "Base Salary"), which
initially shall be at the rate per year totaling two hundred fifty
thousand dollars ($250,000.00).
In view of the fact that the Base Salary is likely to be below
market while the Company is in its early stages of development, the
parties agree to an annual review at the first anniversary date of
this Employment Agreement (July 12, 2002) and to adjust the Base
Salary to a market competitive level. Except as otherwise agreed in
writing by the Executive, the Base Salary shall not be reduced from
the annual salary of two hundred fifty thousand dollars
($250,000.00). The Base Salary shall be payable in equal twenty-four
semi-monthly installments or in such other installments as shall be
consistent with the Company's payroll procedures.
On each anniversary date of this Employment Agreement, the Company
shall give Executive, on an annual basis, a minimum increase to
salary of five percent (5%) but the salary increase(s) may be above
that minimum level of increase.
5.2 BONUS.
a. INITIAL BONUS. Upon execution of this Employment Agreement the
Company shall award the Executive an initial signing bonus as
described herein:
i. 1.250 million shares of stock @ $.01 per share (which is
included in Section 5.5) vested immediately;
ii. twenty five thousand dollars ($25,000.00) to be paid in cash
upon signing of new business equaling or greater than one
million dollars ($1,000,000.00) of new revenue.
b. ANNUAL PERFORMANCE BONUS. The Executive shall be eligible for an
annual performance bonus based on the bonus plan for senior
management in a plan established by the CEO and the Board of
Directors for each fiscal year. One aspect of the Bonus Plan is
the establishment of bonus awards associated with meeting
projected and optimum goals each year (the "Projected and Optimum
Goals"). The Projected and Optimum Goals for each year shall be
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set by the CEO and the Board of Directors. Annual bonuses should
be targeted at approximately forty percent (40%) or more of
Executive annual salary, and will be limited to a maximum of one
hundred percent (100%) of annual salary.
c. ADDITIONAL BONUS. Additional bonuses (including stock bonuses)
may be distributed upon resolution by the Board of Directors
based on Company performance and the Executive's role in that
performance.
5.3 BENEFITS.
5.3.1 For the period of this Employment Agreement, the Company
shall provide the Executive with benefits normally endowed
upon a senior executive. Said benefits are to include, but
not be limited to, the following: health insurance, life
insurance, supplemental life insurance with a minimum of two
million dollars coverage, D&O insurance, short term and long
term disability coverage, 401(k) participation, company
vehicle or allowance expenses, cell phone and company credit
card. Nothing contained in this Agreement shall prevent the
Company, at any time or from time to time, from effecting
increases to the benefits.
5.3.2 RELOCATION. If the Executive is required to relocate his
permanent place of residence, the Company shall pay or
reimburse the Executive for all moving and relocation
expenses, home sale/purchase expenses incurred by the
Executive and his family to establish a personal residence at
the new location including travel costs and temporary living
expenses.
5.4 PAID TIME OFF/VACATION/HOLIDAYS: The Company shall compensate
Executive for twenty (20) working days a year plus all legal
holidays as paid time off.
5.5 EQUITY PARTICIPATION. It is recognized that the Executive's efforts
associated with the Company will produce the most critical results
during the first year of the Employment Period, and that the greater
value of the services will occur during that first year. The parties
further acknowledge that the initial Base Salary for the services
during the first year of the Employment Period is substantially less
that the true value of the services expected to be rendered by the
Executive hereunder. Accordingly, the Company and the Executive have
agreed that the Executive shall be immediately granted and fully
vested in 7.2 million shares of stock in the Company (the "Executive
Stock") as part of his compensation hereunder. The Company and the
Executive have agreed that for the term of this Employment
Agreement, the Executive shall be granted and fully vested in five
percent (5.0%) of the Company's total shares of issued stock which
is on a non-dilution basis. This 5% ownership percentage by the
Executive applies to all current and future issuances of shares of
stock in the Company for the term of this Employment Agreement. As
part of his compensation hereunder the Executive's total shares of
stock ownership will be adjusted according to the 5.0% level
immediately upon issuance of future shares of stock (includes both
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preferred and common stock). The Company may issue fully vested
shares of stock, stock options or warrants. These must be delivered
to the Executive within thirty (30) days of the issuance of new
shares, or as otherwise as mutually agreeable to the Executive.
The parties intend that the Executive Stock shall be fully vested
and unrestricted in nature, if such is permitted by applicable laws
and regulations, but acknowledge that there may need to be legally
required restrictions on the Executive Stock in order to comply with
such applicable laws and regulations. The Executive agrees to comply
strictly with all legally required restrictions. The Executive shall
provide and deliver to the Company all information, certifications,
and other documentation as may be requested by the Company as part
of the Company's compliance with any applicable laws and regulations
relating to the issuance an/or registration of any of the Company's
stock, including but not limited to the Executive Stock.
5.5.1 REGISTRATION.
5.5.1(a) DEMAND REGISTRATION. At any time after the date
hereof, and subject to the other provisions of this Section, the
Executive shall have the right to exercise by making a written
request to the Company, to demand that the Company effect the
registration of any registrable securities in accordance with the
provisions of the Securities Act of 1933, as amended (the "Act").
Any provisions herein to the contrary notwithstanding, the right to
demand registration pursuant to this section shall be limited to one
registration demand per calendar year. A right to demand
registration hereunder shall be deemed to have been exercised and
all of the Company's demand registration obligations hereunder for
such calendar year shall be deemed to be fully satisfied when the
registration statement filed on account of such exercise has been
declared effective by the Securities and Exchange Commission. If any
other executive of the Company exercises his or her right, if any,
to demand that the Company effect the registration of any
registrable securities, then the Executive shall have the right to
register an equivalent number of registrable securities
5.5.1(b) PIGGYBACK REGISTRATION. If the Company at any time
proposes to register any of its securities under the Act or pursuant
to the Securities and Exchange Act of 1934, as amended, collectively
referred to as the ("Securities Acts"), whether or not for sake for
its own account, it will each such time give prompt written notice
to the Executive of its intention to do so (the "Registration
Notice"). Upon the written request of the Executive, made within
fifteen (15) business days after the receipt of the Registration
Notice, the Company shall use its best efforts to effect the
registration under the Securities Acts of such amount of the
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Executive's common stock as the Executive requests, by inclusion of
the Executive Stock in the registration statement that relates to
the securities which the Company proposes to register, PROVIDED that
if, at any time after giving the Registration Notice and prior to
the effective date of registration statement filed in connection
with such registration the Company shall determine for any reason
either not to register or to delay registration of such securities,
the Company may, at its election, give written notice of such
determination to the Executive (the "Refusal Notice") and thereupon,
(i) in the case of a determination to register, shall be relieved of
its obligation to register the Executive's common stock in
connection with such terminated registration (but not from its
obligation to pay the Registration Expenses, as defined herein, in
connection therewith), and (ii) in the case of a determination to
delay registering shall be permitted to delay registering the
Executive's common stock, for the same period as the delay in
registering such other securities.
5.5.1 ( c) REGISTRATION EXPENSES. The Company shall pay all
Registration Expenses (as defined herein) in connection with each
registration of the Executive's common stock pursuant to this
section. For the purposes hereof, the phrase "Registration Expenses"
shall include all expenses incident to the Company's performance of
or compliance with, this section, including without limitation, (i)
all registration, filing and NASD fees, (ii) all fees and expenses
of complying with securities or blue sky laws, (iii) all printing
expenses, (iv) the fees and disbursements of counsel for the Company
and of its independent public accountants, including the expenses of
any special audits or "cold comfort" letters required by or incident
to such performance and compliance, (v) the fees and disbursements
of any one counsel and any one accountant retained by the Executive,
(vi) premiums and other costs of policies of insurance against
liabilities arising out of the public offering of the Executive's
Stock being registered if the Company desires such insurance, and
(vii) any fees and disbursements of underwriters customarily paid by
issuers or sellers of securities, but excluding underwriting
discounts and commissions and transfer taxes, if any.
6. EXPENSES. The Executive is expected and is authorized to incur expenses in
the performance of the Services hereunder, including the costs of customer
entertainment, travel, use of personal vehicle expense and maintenance costs
using the IRS per mile allowance, along with similar business expenses incurred
in the performance of the Services. The Company shall reimburse the Executive
for all such expenses incurred by the Executive within fifteen (15) days of
presentation of an expense report together with receipts for such expenses.
7. TERMINATION OF ENGAGEMENT
7.1 TERMINATION. The Executive's engagement by the Company during the
Employment Agreement Period will continue until the Executive's death,
disability, and resignation or until the termination of the Executive's
engagement hereunder in accordance with the terms of the Employment
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Agreement. Upon termination of the Executive's engagement hereunder, this
Employment Agreement shall become null and void as of the date specified in
the Termination Notice, except as otherwise provided in this Employment
Agreement.
7.2 TERMINATION FOR CAUSE. The Company may terminate either
Executive's engagement under this Employment Agreement for "Cause", as
defined herein below, by providing a Notice of Termination (as that term is
defined hereinafter) to the Executive and in accordance with Section 7.4.
For purposes of this Employment Agreement, Cause shall be limited to any
of the following:
i. The conviction of the Executive, or a plea of nolo contendere by the
Executive to, a felony that materially damages the Company or its
reputation.
ii. The intentional fraud by the Executive, or willful misappropriation
by the Executive of funds or property belonging to or claimed by the
Company and exceeding $5,000.00 in an aggregate amount;
iii. Except in case involving the mental or physical incapacity or
disability of the Executive, willful misconduct by the Executive in
connection with the performance of his duties, or the Executive's
willful failure to perform the Services in the best interest of the
Company (including, without limitation, willful material breach by
the Executive in his performance of the services but not minor
violations of rules and policies of the Company).
Notwithstanding the above however, prior to its termination of the
engagement of the Executive for Cause, the Board shall provide written
notice (the "Notice of Breach") to the Executive of the alleged willful
misconduct or failure to perform and must include specific corrective
actions and solutions in sufficient detail to know what outcomes must be
achieved. The Notice of Breach shall specify in detail the Cause upon
which the Company is basing its decision to send the Notice of Breach and
expected corrections to not be in breach. The Executive shall have thirty
(30) days after receipt by the Executive to correct or cure, or to
commence and continue to diligently pursue the correction or curing of
such Notice of Breach. The Executive shall have the opportunity to appear
before the Board to discuss such written notice during such thirty (30)
day period. In the event that the Company determines, in its reasonable
discretion, that the Executive, during such thirty (30) day period, has
not corrected or cured, or has not commenced and is not diligently
pursuing a cure, of the breach or breaches described in the Notice of
Breach, the Company may elect to terminate this Employment Agreement by
sending the Executive a Notice of Termination.
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7.3 TERMINATION UPON DISABILITY. If the Board of Directors determines
in good faith that the Executive has a Disability as defined in this
Section 7.3, the Company may terminate the Executive 's engagement under
this Employment Agreement by notifying the Executive thereof at least
thirty (30) days before the Date of Termination, as defined herein. For
purposes of this Employment Agreement, "Disability" means the inability of
the Executive to substantially perform the services by reason of any
medically determined physical or mental impairment that is or will be a
permanent condition or is a condition that will continue for at least six
(6) consecutive months. If there is any dispute between the parties as to
the Executive's Disability, the Company and the Executive shall mutually
select three independent physicians to examine the Executive. The
determination by quorum of physicians as to the Executive's Disability
shall bind the parties hereto. The Executive will be covered by long term
disability insurance coverage and long term disability payments must begin
to constitute and establish the decision of Executive disability.
Short-term disability payments will not constitute disability.
7.4 TERMINATION BY THE EXECUTIVE. The Executive may terminate its
engagement under this Agreement at any time for Good Reason by giving
thirty (30) days prior written notice thereof to the Company. For purpose
of this Employment Agreement ("Good Reason") means any of the following:
i. the occurrence of a material breach of any provision of this
Employment Agreement by the Company;
ii. a reduction or material modification in the scope of authority
authority or other responsibilities of the Executive that is
inconsistent with his title or position, as reasonably determined
by the Executive;
iii. the removal of the Executive from his position as President and
and CEO of the Company, parent company or it's parent company
successors, without mutual agreement;
iv. the approval of a plan by the Board of Directors of the Company
involving the dissolution of the Company that is not rescinded
within thirty (30) days after its approval;
v. the involuntary or voluntary filing for bankruptcy of the Company
that is not dismissed within ninety (90) days after the date of
filing;
vi. information being withheld from Executive, actions by the
Chairman or other Board members or other executives which is
deemed by the Executive to be materially harmful to the
shareholders of the organization or potentially harmful to the
personal assets and/or reputation of the Executive;
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Notwithstanding the above, however, prior to the termination of the
Executive 's engagement hereunder by the Executive for Good Reason under
Subsections (i), (ii), (iii), (iv), (v) and (vi) above, the Executive
shall send written notice (the "Executive's Notice of Breach") to the
Company of the alleged breach of action by the Company that the Executive
believes constitutes Good Reason. The Executive 's Notice of Breach shall
specify in detail the Good Reason upon which the Executive is basing his
decision to terminate the Executive 's engagement hereunder. The Company
shall have thirty (30) days after receipt by the Company to correct or
cure, or to commence and continue to diligently pursue the correction or
curing of, such Good Reason. In the event that the Executive determines,
in his reasonable discretion, that the Company, during such thirty day
period, has not corrected or cured, has not commenced and is not
diligently pursuing a cure, of the Good Reason described in the
Executive's Notice of Breach, the Executive may elect to terminate the
Executive's engagement by sending the Company a Notice of Termination.
7.5 NOTICE OF TERMINATION. For the purposes of this Employment
Agreement, "Date of Termination" means (i) if the Executive's engagement
is terminated by the Executive's death, the date of the Executive death;
(ii) if the Executive 's engagement is terminated because of the
Executive's Disability, thirty (30) days after the date of the Notice of
Termination, provided that the Executive shall not have returned to the
performance of the Executive's duties on a full time basis during such
thirty day period; or (iii) if the Executive 's engagement is terminated
by the Company or by the Executive for any reason, the date specified in
the Notice of Termination which date shall not be one that is prior to the
end of any applicable cure period. Termination of the Executive 's
engagement shall take effect on the Date of Termination and this
Employment Agreement shall become null and void as of the Date of
Termination, except for those provisions as to which this Employment
Agreement expressly provides for survivorship.
7.6 DEATH. If the Executive's employment is terminated during the
Employment Period as a result of the Executive's death, the Company shall
pay to the Executive the then current Base salary through the third full
calendar month following the Date of Termination, including expenses and
benefits. In addition, if the Date of Termination is six (6) months or
more after the beginning of the then agreement year, and if the Company
meets or exceeds the Company's goals and projections that authorize the
awarding of an annual performance bonus (i.e., Projected and Optimum
Goals) for such fiscal year, then the Executive shall be eligible to
receive part of any bonus (the "Partial Bonus") that the Executive would
have received at the end of such fiscal year, prorated for a partial year
based upon the Date of Termination. The payments contemplated by this
section shall be paid at the time they are due and the Company shall have
no further obligations to the Executive under this Employment Agreement.
The Executive shall have no obligation to repay any of the Executive Stock
upon the termination of the Executive 's engagement under this section.
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7.7 DISABILITY. If the Company terminates the Executive's employment
during the Employment Period because of the Executive's Disability, the
Company shall pay the Executive the then current Base Salary through the
third full calendar month following the Date of Termination, and all other
unpaid amounts, if any, to which the Executive is entitled as of the Date
of Termination such as expenses, the costs of benefits, and a partial
bonus, if applicable. The payments contemplated by this section shall be
paid at the time they are due, and the Company shall have no further
obligations to the Executive under this Agreement. The Executive shall
have no obligation to repay any of the Executive Stock upon the
termination of the Executive 's engagement under this section. Long term
disability payments paid shall have no bearing on the Base Salary payment
by the Company.
7.8 BY THE COMPANY WITH CAUSE OR BY THE EXECUTIVE WITHOUT GOOD
REASON. If the Company terminates the Executive's engagement during the
Employment Period for cause or if the Executive voluntarily terminates the
Executive's engagement during the Employment Period other than for Good
Reason, the Company shall pay the Executive the then current Base Salary
through the calendar month following the Date of Termination and all other
unpaid amounts, if any, which the Executive is entitled as of the Date of
Termination, such as expenses and the costs of benefits. The payments
contemplated in this section shall be paid at the time such payments are
due.
7.9 BY THE COMPANY WITHOUT CAUSE OR BY THE EXECUTIVE FOR GOOD
REASON. If the Company terminates the Executive 's engagement during the
Employment Period other than for Cause, Death or Disability or the
Executive terminates its engagement during the Employment Period for Good
Reason, the Executive shall be entitled to: (i) payment of the Executive's
then current Base Salary through the Date of Termination and all other
unpaid amounts, if any, to which the Executive is entitled to as of the
Date of Termination in connection with the costs of any benefits pursuant
to Section 5.3 at the time such payments are due; (ii) a severance payment
equal to an amount of one year's then Base Salary payable no later than
thirty (30) days after termination; and (iii) a partial bonus, as
applicable. Such severance payments shall be considered "preferred"
Company obligations carrying with it the rights, assurances and all other
non-recourse obligations. The Executive shall have no obligation to repay
any of the Executive Stock upon termination of the Executive's engagement
under this section.
8. Change of Control.
8.1 EFFECT OF CHANGE OF CONTROL. In the event of a Change of Control (as
defined below), the Executive will be entitled to (1) accelerated
vesting of any stock pursuant to any stock options granted and
restricted stock issued to the Executive by the Company, such that
vesting occurs on the date of Change of Control, except where the same
may be prohibited by applicable law or regulations or by the stock
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issuance plan, and to (2) severance provided for in section 7.9 unless
the parties agree to new mutually acceptable terms of employment. The
parties shall include this acceleration provision in any stock
issuance plan where legally permitted by applicable laws or
regulations.
8.2 DEFINITION OF CHANGE OF CONTROL.
For the purposes of this Agreement, "Change of Control" shall
mean:
a. the sale of all, or substantially all of the assets of the
Company to a third party,
b. a merger, acquisition or other transaction in which the
Company is the surviving corporation that results in any
party (other than any Affiliate of the Company as defined
below) acquiring beneficial ownership of 51% or more of the
combined voting power of all classes of stock of the
Company;
c. a merger, consolidation or reorganization of the Company
with one or more other persons or entities where the
Company is not the surviving entity and such transaction
results in a change of beneficial ownership as described in
the preceding clause (b).
For purposes of the foregoing, the term "Affiliate" shall
mean, with respect to any entity, any person or other entity
that, directly or indirectly, controls, is controlled by, or
is under common control with, such entity, where the term
"control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and
policies of an entity, whether through the ownership of voting
securities, by contract, or otherwise.
9. OWNERSHIP OF INTELLECTUAL PROPERTY.
9.1 THE BUSINESS.
The parties acknowledge that the Company is engaged in the
development, marketing and sale of certain proprietary information,
processes and related products in multi-faceted areas with a
specialization in the golf sportswear industry.
9.2 The Intellectual Xxxxxxxx.Xx connection with this Employment Agreement
and the performance of the Services provided by the Executive, the
Executive acknowledges that there may exist now or may exist in the
future trade secrets, confidential information, technical information,
know-how, inventions, patents, discoveries (whether or not
patentable), copyrights, trademarks, service marks, techniques, data,
systems, methods, processes, improvements, developments, enhancements
and modifications, whether oral or written, or in recorded form,
tangible or intangible, and other proprietary rights conceived,
developed, designed or otherwise created, modified improved by the
Executive, in whole or in part, or which the Executive or the
Executive may receive, produce, obtain, or learn about, in whole or in
part, in connection with the performance of the Services or relating
in any way or manner to, or arising out of, the business and
operations of the Company during the Employment Period (collectively,
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the "Intellectual Property"). The Executive agrees that all rights,
title and interest in and to the Intellectual Property shall belong to
the Company. The Executive shall make prompt and complete disclosure
from time to time to the Company of all Intellectual Property
developed by the Executive or the Executive, either solely or in
conjunction with others.
9.3 Assignment of Rights to Intellectual Property. The Executive hereby
assigns to the Company any and all right, title and interest that
either the Executive individually or, as the employee of the Company,
or both have now or may have in the future in and to the Intellectual
Property. The Executive agrees to execute any instruments and to do
all things reasonably requested by the Company, both during and after
the Employment Period, to vest the Company with all ownership rights
in the Intellectual Property. If any Intellectual Property can be
protected by copyrights, patents, trademarks, or service marks, then
such copyright, patent, trademark, or service xxxx, as may be
applicable, shall be owned solely, completely and exclusively by the
Company, and the Executive shall execute such assignments and other
documents and provide such assistance as the Company may reasonably
request in order to protect the Company's ownership of the
Intellectual Property.
10. ENFORCEMENT. The Company and the Executive have entered into this Employment
Agreement with good faith efforts by all parties to execute its obligation
accordingly. Should the Executive find it is necessary to obtain legal counsel
to cause enforcement of this Employment Agreement by the Company, all costs and
fees incurred by the Executive associated with this enforcement shall be payable
by the Company in addition to the costs incurred by the Company.
11. NOTICES. All notices, demands, requests or other communications required or
permitted to be given or made hereunder shall be in writing and shall be either
hand delivered or shall be mailed by first class registered or certified mail
postage prepaid to the respective addresses of the parties.
12. REPRESENTATIONS.
12.1 REPRESENTATIONS OF THE COMPANY. The Company represents that it
is a corporation validly organized under the laws of the State of Nevada
and duly qualified to conduct business in Florida, that it possesses the
capacity to validly execute and perform all the terms of this Employment
Agreement; that this Employment Agreement has been duly executed and
delivered by the Company and constitutes the valid and binding obligations
of the Company; that the execution, delivery and performance of this
Employment Agreement by the Company will not violate any provision of any
contract or other agreement to which the Company is a party or which
purports to be binding upon the Company, that no further approvals of or
consents from any governmental or regulatory authorities, or its
stockholders, are required in connection with the execution, delivery or
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performance of this Employment Agreement; and that to the best of the
Company's knowledge, there are no actions or proceedings pending or
threatened against the Company before any court, administrative agency or
other authority which might reasonably be expected to result in a material
adverse change in the business or financial condition of the Company or the
Company's ability to perform the obligations contained in this Employment
Agreement.
12.2 Representations of the Executive. The Executive agrees to execute
any proper oath or verify any proper document required to carry out
the terms of this Employment Agreement. The Executive further
represents that he possesses the capacity to validly execute and
perform all the terms of this Employment Agreement; that this
Employment Agreement has been duly executed and delivered by the
Executive and constitutes the valid and binding obligations of the
Executive; that the execution, delivery and performance of this
Employment Agreement by the Executive will not violate any provisions
of any contract or other agreement, including but not limited to a
non-compete, non-disclosure agreement, to which the Executive is a
party or which purports to be binding upon the Executive; to the best
of the Executive's knowledge, there are no actions or proceedings
pending or threatened against the Executive before any court,
administrative agency or other authority which might reasonably be
expected to affect the Executive's ability to perform the obligations
contained in this Employment Agreement.
13. SEVERABILITY. The invalidity or unenforceability of any one or more
provisions of this Employment Agreement shall not affect the validity or
enforceability of the other provisions of this Employment Agreement, which shall
remain in full force and effect.
14. ASSIGNMENT. The rights and obligations of the parties to this Employment
Agreement shall not be assignable or delegable, except that the rights and
obligations of the Company hereunder are fully assignable and delegable in
connection with any subsequent merger, consolidation sale of all or
substantially all of the assets of the Company or similar reorganization of a
successor corporation. Notwithstanding anything herein to the contrary, the
sale, transfer, or conveyance of more than forty percent (40%) of the ownership
interest in the Company to a third party shall be deemed to be an assignment
hereunder and may not be undertaken without the prior written consent of the
Executive, which consent shall be in the Executive `s sole and absolute
discretion.
15. INDEMNIFICATION. The Company hereby indemnifies and holds harmless the
Executive for any prior, known or unknown events and or actions resulting in
personal liability, responsibility or damages before the date of the execution
of this Employment Agreement. As an employee, the Executive shall be indemnified
against all liabilities, damages, fines, costs, legal expenses and expenses by
the Company in accordance with the indemnification provisions of the Company's
Articles of Incorporation as in effect on the date hereof, and otherwise to the
fullest extent to which employees, officers and directors of a corporation
organized under the laws of Nevada may be indemnified pursuant to the Nevada
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General Corporation Law as the same as amended from time to time (or any
subsequent statute of similar tenor and effect), subject to the terms and
conditions of such statute.
16. BINDING EFFECT SURVIVAL. Subject to any provisions hereof restricting
assignment, this Employment Agreement shall be binding upon the parties hereto
and shall fully inure to the benefit of the parties and their respective heirs,
devisees, executors, administrators, legal representatives, successors and
assigns. Notwithstanding anything to the contrary contained herein, the
provisions of this Employment Agreement shall survive the Employment Termination
Date for a period of two (2) years, except for the provisions relating to
Confidential Information which shall survive for five (5) years after the Date
of Termination.
17. AMENDMENT: WAIVER. This Employment Agreement shall not be amended, altered
or modified except by an instrument tin writing duly executed by the parties
hereto. Neither the waiver by either of the parties hereto of a breach of or a
default under any of the provisions of this Employment Agreement, nor the
failure of either of the parties, one or more occasions, to enforce any of the
provisions of this Employment Agreement or to exercise any right or privilege
hereunder, shall thereafter be construed as a waiver of any subsequent breach or
default of a similar nature or as a waiver of any such provisions, rights or
privileges hereunder.
18. HEADINGS. Section and subsection heading contained in this Employment
Agreement are inserted for the convenience of reference only, shall not be
deemed to be a part of this Employment Agreement for any purpose, and shall not
in any way define or affect the meaning, construction or scope of any of the
provisions hereof.
19. GOVERNING LAW. This Employment Agreement, the right and obligations of the
parties hereto, and any claims or disputes relating thereto, shall be governed
by and construed in accordance with the laws of the State of Nevada. Any legal
action filed in relation to this Employment Agreement and the performance of the
parties hereunder shall be filed in the appropriate state court or the U.S.
District Court having jurisdiction over the Company, the parties hereto waiving
any other venue to which they may be entitled by virtue of domicile or
otherwise.
20. ENTIRE AGREEMENT. This Employment Agreement, the exhibits and any agreements
entered into in connection with Executive 's equity participation constitutes
the entire agreement between the parties respecting the engagement of the
Executive, there being no representations, warranties or commitments except as
set forth herein.
21. COUNTERPARTS. This Employment Agreement may be executed in two or more
counterparts, each of which shall be an original and all of which shall be
deemed to constitute one and the same instrument.
22. PROTECTION FROM PERSONAL LIABILITY ACCRUING FROM PAST EVENTS AND ACTIONS.
The Company agrees to protect, indemnify and defend the Executive from any and
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all threats and legal actions against the corporation and or the Executive
personally which may impact the personal and family assets, personal and family
interests and all other potential economic harm to the Executive stemming from
any and or all actions, events, deeds or encumbrances, agreements, rights,
potential real or real liabilities known or unknown arising from or in or any
way related to the time prior to the Effective Date of this Agreement. The
Company shall be responsible for all legal costs, related expenses, defense
counsel and support and all other losses and costs occurring to the Executive
from such past actions, events, obligations, and any and or all liabilities
based upon past events prior to the Effective Date of acknowledgement of this
Employment Agreement.
IN WITNESS WHEREOF, the undersigned have duly executed this Employment
Agreement, or have caused this Employment Agreement to be duly executed on their
behalf effective as of the day and year first hereinabove written.
ACKNOWLEDGED AND AGREED:
AVID SPORTSWEAR & GOLF CORP
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Printed Name: Xxxx Xxxxxxxxxx
Title: Chairman of the Board Date:
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Printed Name: Xxxxx X. Xxxxxxx Date:
