EXHIBIT 10(D)
EMPLOYMENT AGREEMENT
This employment agreement is effective as of April 16, 2000 between Essxsport
Corporation ("Employer") and Uli Gag, ("Employee").
RECITALS
1. Employer desires assurance of the continued association and services
of Employee in order to retain his experience, abilities, and knowledge, and is
therefore willing to engage his services on the terms and conditions set forth
below.
2. Employee desires to be in the employ of Employer and is willing to do
so on the terms and conditions set forth below.
THEREFORE, in consideration of the above recitals and of the mutual
promises and conditions in this agreement, it is agreed as follows:
1. TERM OF EMPLOYMENT
Subject to earlier termination as provided in this agreement, Employee
shall be employed for a term beginning April 16, 2000 ending April 16, 2003.
2. PLACE OF EMPLOYMENT
Unless the parties agree otherwise in writing during the employment term
Employee shall perform the services he is required to perform under this
agreement at Employer's offices, currently located at 0000 Xxxxxxxx Xxxx, Xxx
Xxxxxx, XX 00000; provided, however, that Employer may from time to time require
Employee to travel temporarily to other locations on Employer's business.
3. EMPLOYEE'S DUTIES AND RESPONSIBILITIES
Employer shall employ Employee as Manager of the Production Facilities or
in such other capacity or capacities as Employer's board of directors may from
time to time prescribe. Employee shall be vested, with full power and authority
to manage and conduct all the business of Employer, subject to the directions
and policies of Employer and its board of directors as they may be, from time to
time, stated either orally or in writing. Employee shall not, however, take any
of the following actions on behalf of Employer without the express written
approval of the board of directors:
(1) Borrowing or obtaining credit in any amount or executing any guaranty;
(2) Expending funds for capital equipment;
(3) Selling or transferring capital assets;
(4) Executing any contract or making any commitment for the purchase or
sale of Employer's products or facilities;
(5) Executing any lease of real or personal property;
(6) Exercising any discretionary authority or control over the management
of any employee welfare or pension benefit plan or over the disposition of the
assets of any such plan;
(7) Hiring or firing any employee.
4. PRECLUSION FROM OUTSIDE BUSINESS ACTIVITIES
During his employment, Employee shall devote his full business time,
energy, and ability exclusively to the business and interests of Employer, and
shall not, without Employer's prior written consent, render to others services
of any kind for compensation, or engage in any other business activity that
would materially interfere with the performance of his duties under this
agreement. Employee represents to Employer that he has no other outstanding
commitments inconsistent with any of the terms of this agreement or the services
to be rendered under it.
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5. COVENANT NOT TO COMPETE
During the employment term, and for a period of one year thereafter,
Employee shall not, directly or indirectly, whether as partner, employee,
creditor, shareholder, or otherwise, promote, participate, or engage in any
activity or other business competitive with Employer's business. In addition,
Employee, while employed, shall not take any action without Employer's prior
written consent to establish or become employed by a competing business on
termination of employment by Employer. Employee's failure to comply with the
provisions of the preceding sentence shall give Employer the right (in addition
to all other remedies Employer may have) to terminate any benefits or
compensation to which Employee may be otherwise entitled following termination
of this agreement.
6. BASE SALARY
During the term of this agreement, Employer agrees to pay Employee a Base
Salary of Three Thousand ($3,000) per month, payable as current salary, in
monthly installments subject to all applicable withholdings and deductions.
7. INCENTIVE COMPENSATION
Employee to receive a $5,000.00 bonus when the Company reaches $500,000.00
in sales the first fiscal year, and $10,000.00 when the Company reaches
$1,000,000.00 in sales the first fiscal year. Bonuses for following years will
be reviewed on an annual basis.
8. ADDITIONAL BENEFITS
During the employment term, Employee shall be entitled to receive all other
benefits of employment generally available to Employer's other Employees and
managerial employees when and as he becomes eligible for them. Employer reserves
the right to modify, suspend or discontinue any and all of the above benefit
plans, policies, and practices at any time without notice to or recourse by
Employee, so long as such action is taken generally with respect to other
similarly situated persons and does not single out Employee.
9. VACATION
Employee shall be entitled to two weeks, and after one year, three weeks
paid vacation in accordance with Employer's policies and practices in effect
with respect to Employer's other Employee and managerial employees.
10. EXPENSE REIMBURSEMENT
During the employment term, subject to prior approval by the Employer, to
the extent that such expenditures satisfy the criteria under the Internal
Revenue Code for deductibility by Employer (whether or not fully deductible) for
federal income tax purposes as ordinary and necessary business expenses,
Employer shall reimburse Employee promptly for reasonable business expenses.
11. EXCESSIVE COMPENSATION DETERMINATION
If any part of the salary or other compensation paid by Employer to Employee, or
of any amount paid by employer for travel or entertainment expenses incurred by
Employee, is finally determined not to be allowable as a federal or state income
tax deduction to Employer, the part disallowed shall be repaid to Employer by
Employee.
12. EMPLOYERS RIGHT TO INTANGIBLES
All processes, inventions, patents, copyrights, trademarks, and other
intangible rights that may be conceived or developed by Employee, either alone
or with others, during the term of Employee's employment, whether or not
conceived or developed during Employee's working hours, and with respect to
which the equipment, supplies, facilities, or trade secret information of
Employer was used, or that relate at the time of conception or reduction to
practice of the invention to the business of the Employer or to Employer's
actual or demonstrably anticipated research and development, or that result from
any work performed by Employee for Employer, shall be the sole property of
Employer. Employee shall disclose to Employer all inventions conceived during
the term of employment and for one year thereafter, whether or not the property
of Employer under the terms of the preceding sentence, provided that such
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disclosure shall be received by Employer in confidence. Employee shall execute
all documents, including patent applications and assignments, required by
Employer to establish Employer's rights under this Section.
13. INVOLUNTARY TERMINATION
Employer may terminate this agreement without cause, upon the payment of
the salary due, less taxes, withholding and applicable benefits upon prior
written notice to Employee.
14. TERMINATION CLAUSE
Employer may terminate this agreement at any time without notice if
Employee commits any material act of dishonesty, discloses confidential
information, is guilty of gross carelessness or misconduct, or unjustifiably
neglects his duties under this Agreement, or acts in any way that has a direct,
substantial, and adverse effect on Employer's reputation.
15. TERMINATION ON RESIGNATION
Employee may terminate this agreement by giving Employer three months'
prior written notice of resignation.
16. EMPLOYER RIGHT TO ASSIGN
In the event of a merger in which Employer is not the surviving entity, or
of a sale of all or substantially all of Employer's assets, Employer may, at its
sole option (1) assign this agreement and all rights and obligations under it to
any business entity that succeeds to all or substantially all of the Employer's
business through that merger or sale of assets, or (2) on at least thirty days
prior written notice to Employee, terminate this agreement effective on the date
of the merger or sale of assets.
17. AGREEMENT SURVIVES TRANSFER SALE OR MERGER
This agreement shall not be terminated by Employer's voluntary or
involuntary dissolution or by any merger in which Employer is not the surviving
or resulting corporation, or on any transfer of all or substantially all of
Employer's assets. In the event of any such merger or transfer of assets, the
provisions of this agreement shall be binding on and inure to the benefit of the
surviving business entity or the business entity to which such assets shall be
transferred.
18. RIGHTS AND OBLIGATIONS AFTER TERMINATION
If Employee gives notice of termination of this agreement under Section 15,
or if it becomes known that this agreement will otherwise terminate in
accordance with its provisions, Employer may, in its sole discretion and subject
to its other obligations under this agreement, relieve Employee of his duties
under this agreement and assign Employee other reasonable duties and
responsibilities to be performed until the termination becomes effective.
19. UNFAIR COMPETITION
Because of his employment by Employer, Employee will have access to trade
secrets and confidential information about Employer, its products, its
customers, and its methods of doing business. In consideration of his access to
this information, Employee agrees that for a period of one year after
termination of his employment, he will not, directly or indirectly, compete with
Employer in the field of track and field vaulting mats and accessories in the
United States. Employee understands and agrees that direct competition means
design, development, production, promotion, or sale of products or services
competitive with those of Employer. Indirect competition means, employment by
any competitor or third party providing products competing with Employer's
products, for which Employee will perform the same or similar function as he
performs for Employer.
20. DISCLOSURE OF CUSTOMER INFORMATION AND SOLICITATION OF OTHER EMPLOYEES
In the course of his employment, Employee will have access to confidential
records and data pertaining to Employer's customers and to the relationship
between these customers and Employer. Such information is considered secret and
is disclosed to Employee in confidence. During his employment by Employer and
for one year after termination of that employment, Employee shall not directly
or indirectly disclose or use any such information except as required in the
course of his employment by Employer. In addition, during for one year after
termination of his employment, Employee shall not induce or attempt to induce
any account Employee of Employer to discontinue representing Employer for the
purpose of representing and competitor of Employer.
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21. INTEGRATION
This agreement contains the entire agreement between the parties and
supersedes all prior oral and written agreements, understandings, commitments,
and practices between them, including all prior employment agreements, whether
or not fully performed by Employee before the date of this agreement. No oral
modifications, express or implied, may alter or vary the terms of this
agreement. No amendments to this agreement may be made except by a writing
signed by both parties. No employee or supervisor of the employee is authorized
to alter or vary the terms of this agreement except by written agreement by the
chief Employee officer. Any representations contrary to this agreement, express
or implied, written or oral, are hereby disclaimed.
22. CHOICE OF LAW
The formation, construction, and performance of this agreement shall be
construed in accordance with the laws of California.
23. NOTICES
Any notice to Employer required or permitted under this agreement shall be
given in writing to Employer, either by personal service or by registered or
certified mail, postage prepaid, addressed to Xxxxx Xxxxxxxx, 0000 Xxxxxxxx Xx.,
Xxxxxx, XX 00000 [the president of Employer] Any such notice to Employee shall
be given in a like manner and, if mailed, shall be addressed to Employee at
00000 Xxxxxxxxx Xx., Xxxxxx, XX 00000, his home address. For the purpose of
determining compliance with any time limit in this agreement, a notice shall be
deemed to have been duly given (a) on the date of service, if served personally
on the party to whom notice is to be given, or (b) on the second business day
after mailing, if mailed to the party to whom the notice is to be given in the
manner provided in this section.
24. SEVERABILITY
If any provision of this agreement is held invalid or unenforceable, the
remainder of this agreement shall nevertheless remain in full force and effect.
If any provision is held invalid or unenforceable with respect to particular
circumstances, it shall nevertheless remain in full force and effect in all
other circumstances.
Executed by the parties as of the day and year first above written.
Essxsport Corporation (Employer)
By s/s Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx, President
Uli Gag (Employee)
By s/s Uli Gag
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