EXHIBIT 10.2
SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
SEPARATION AND RELEASE
THIS SECOND AMENDMENT TO EMPLOYMENT AGREEMENT, SEPARATION AND RELEASE (this
"Agreement") is made as of July 27, 1999, by and between SUNGOLD EYEWEAR, INC.,
a Washington corporation (the "Corporation"), and XXXXXXX XXXXXXX ("Employee").
RECITALS
A. The Corporation and Employee are parties to that certain Employment
Agreement dated as of April 10, 1997 as amended by that certain Amendment to
Employment Agreement dated April 22, 1998 (the "Employment Agreement");
B. Subject to the terms and conditions set forth herein, the Corporation and
Employee desire to further amend and terminate the Employment Agreement.
C. Capitalized terms used but not otherwise defined herein shall have the
meanings ascribed to them in the Employment Agreement.
AGREEMENT
1. TERMINATION OF EMPLOYMENT RELATIONSHIP.
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The Employment Agreement shall terminate on July 27, 1999, and effective
as of the close of business on July 27, 1999, the employment relationship
between the Corporation and Employee shall terminate (the "Termination Date").
2. AMENDMENT TO ROYALTY AGREEMENT; TERMINATION AND RELEASE.
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Together with the execution of this Agreement, the Corporation and
Employee, as an officer and authorized signatory of Sungold Enterprises, Ltd.,
will enter into and execute that certain Amendment to Royalty Agreement,
Termination and Release of even date herewith, a copy of which is attached
hereto as Exhibit A.
3. SEVERANCE BENEFITS.
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3.1 Severance Pay.
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On July 27, 1999, the Corporation shall pay to Employee, by wire
transfer to an account as Employee shall direct, the sum of $92,855.41, which
represents the unpaid portion of Employee's Base Salary under the Employment
Agreement for the remaining Term of Employment (the "Severance Payment") less
normal and authorized payroll withholdings and deductions.
3.2 FTO.
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The Corporation shall pay to Employee, together with his Severance
Payment, $11,298.39 for Employee's earned but unused Flexible Time Off benefits
through April 10, 2000 less normal and authorized payroll withholdings and
deductions.. Employee understands and acknowledges that he will accrue no
further Flexible Time Off from and after the Termination Date.
3.3 COBRA.
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Employee acknowledges and understands that since the Corporation's
health and disability insurance policies maintained for the benefit of its
employees, including Employee, are group policies, Employee will be unable to
continue to participate in such policies. Employee may elect to continue his
family medical, dental and vision coverages, however, by paying for COBRA
continuation coverage for up to 18 months after the Termination Date or until
Employee is entitled to Medicare, or until Employee is covered under other
plans with no pre-existing exclusion. The Corporation shall pay to Employee
together with his Severance Payment $5,808.60, which amount is equal to
Employee's COBRA payment from the Termination Date through April 30, 2000 to
continue Employee's family medical, dental and vision coverage through April
30, 2000. The Corporation shall provide Employee with information regarding
COBRA continuation coverage. Employee understands and acknowledges, however,
that it is his responsibility to take any actions and to submit any documents
as may be required to continue COBRA coverage after the Termination Date.
3.4 Expenses.
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The Corporation shall reimburse Employee for any reasonable expenses
incurred by Employee on behalf of the Corporation, subject to the receipt by
the Corporation of all supporting documentation. Employee understands that
Employee is not authorized to incur expenses or to make commitments on behalf
of the Corporation after the Termination Date.
4. STOCK OPTIONS.
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As of the Termination Date, Employee is fully vested in options to
purchase 20,000 shares of Gargoyles, Inc. common stock at an exercise price of
$8.00 per share. Employee understands that the vested options will continue to
be governed by the Gargoyles, Inc. 1995 Stock Incentive Compensation Plan, as
Amended and Restated on July 22, 1996, and that in accordance with the terms of
such plan Employee's right to exercise the vested options expires on October
19, 1999.
5. COMPLETE RELEASE OF CLAIMS.
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By signing this Agreement, the Corporation and the Employee each agree not
to start any lawsuits, charges, or other legal action against the other
relating to Employee's employment with the Corporation or the benefits that
employee received or should have received from the Corporation. In addition,
the Corporation and Employee, each for itself or himself and for their
respective heirs, representatives, executors, and successors, waive any rights
or claims each may have against the other, or, in the case of Employee, any
employee benefit plans sponsored by the Corporation in which employee
participates, and all of the Corporation's or Employee's respective affiliated
and related entities, owners, shareholders, officers, directors, trustees,
heirs, administrators, executors, agents, employees, employees' spouses,
insurers, either past or present, and all of their successors, agents or
assigns (collectively "Releasees"). The Corporation and Employee each hereby
release the Releasees from any and all claims, actions, causes of action,
obligations, costs, expenses, damages, losses, debts, and demands, including
attorneys' fees and costs actually incurred (collectively "Claims") of whatever
kind, in law or in equity, known or unknown, suspected or unsuspected, which
arose prior to the Termination Date.
This release includes, but is not limited to: (i) any Claims under any
local, state or federal laws regulating employment, including without
limitation, the Civil Rights Acts, the Age Discrimination and Employment Act,
the Americans with Disabilities Act, and the Workers' Adjustment and Retraining
Notification Act; (ii) Claims under the Employee Retirement Income Security
Act; (iii) Claims under any local, state or federal wage and hour laws; or (iv)
Claims alleging any legal restriction on the Corporation's right to terminate
their employees, or personal injury claims, including without limitation
wrongful termination, discrimination, harassment, breach of contract,
defamation, tortuous interference with business expectancy, black listing, or
infliction of emotional distress, whether arising under statute or common law.
6. COOPERATION WITH COMPANY.
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Until April 10, 2000, Employee will fully cooperate with, and from time to
time make himself available at the Corporation's request to consult with, the
Corporation on matters in which Employee was involved on behalf of the
Corporation. Nothing in this Section 6, however, shall prevent Employee from
taking on other employment.
7. SURVIVAL OF PROVISIONS OF EMPLOYMENT AGREEMENT.
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Employee understands that as of the Termination Date, the Employment
Agreement is terminated and is amended by this Agreement, and that Employee
shall have no further rights or obligations under the Employment Agreement
except for the terms set forth in Sections 7 through 9 of the Employment
Agreement (as amended by the Amendment to Employment Agreement dated April 22,
1998) relating to "Intellectual Property; Nondisclosure of Confidential
Information; Dispute Resolution, and Enforcement", which shall remain in effect
following the Termination Date in accordance with their terms.
8. SUCCESSORS
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This Agreement shall be binding upon the parties hereto and their
respective heirs, representatives, executors, administrators, successors and
assigns, and shall inure to the benefit of each and all of the Releasees, and
to their heirs, representatives, executors, administrators, successors and
assigns.
9. GENERAL PROVISIONS
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9.1 Governing Law.
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This Agreement shall in all respects be interpreted, enforced and
governed under the laws of the state of Washington. The language of all parts
of this Agreement shall in all cases by construed as a whole, according to its
fair meaning, and not strictly for or against either party.
9.2 Invalidity.
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If any of the provisions of this Agreement are held to be illegal or
invalid, the remaining provisions shall not be affected thereby, and the
illegal or invalid provision shall be deemed not to be a part of this
Agreement.
9.3 Entire Agreement.
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Except for the provisions of the Employment Agreement which survive
the Termination Date, this Agreement represents and contains the entire
understanding between the Corporation and Employee in connection with
Employee's separation from the Corporation.
10. NON-ADMISSION OF LIABILITY.
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This Agreement shall not be construed in any way as an admission by either
the Corporation or Employee of any liability or wrongdoing whatsoever on the
part of either party.
11. PRESS RELEASES.
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The Corporation shall not issue a press release or make any public
announcement that relates to or references Employee without Employee first
having the opportunity to review and provide comments to the release. Employee
acknowledges that memoranda circulated by the Corporation to its employees and
the employees of its subsidiaries are not the type of press release or public
announcement that are the subject of this section 11.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
SUNGOLD EYEWEAR, INC.
a Washington corporation
/s/ Xxx Xxxxxxxxxxx
By -------------------------------
Xxx Xxxxxxxxxxx, CEO and CFO
/s/ Xxxxxxx Xxxxxxx
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XXXXXXX XXXXXXX
