Exhibit 10.34
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 Chief Operating 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 Chief Operating Officer (the
"SERVICES"). The Executive shall be the Executive Vice President and Chief
Operating Officer ("COO"). 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 Executive Vice President and COO and that may be
properly assigned to the Executive from time to time by the Chief Executive
Officer of the Company (the "CEO") or 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 CEO 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
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the Executive and the Company. If the Executive is required to relocate his
permanent place of residence in McLean, Virginia, 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.
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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.
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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 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.
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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
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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 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.
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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
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use its best efforts to effect the registration under the Securities
Acts of such amount of the 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
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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
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engagement hereunder in accordance with the terms of the Employment
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 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 COO 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.
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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
issuance plan, and to (2) severance provided for in section 7.9 unless
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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.
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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.
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9.1 THE BUSINESS.
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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 PROPERTY. In 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
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operations of the Company during the Employment Period (collectively,
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.
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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
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stockholders, are required in connection with the execution, delivery or
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
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organized under the laws of Nevada may be indemnified pursuant to the Nevada
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.
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22. PROTECTION FROM PERSONAL LIABILITY ACCRUING FROM PAST EVENTS AND ACTIONS.
The Company agrees to protect, indemnify and defend the Executive from any and
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
---------------------------------
Printed Name: Xxxx Xxxxxxxxxx
Title: Chairman of the Board Date:
----------------------------------
Printed Name: Xxxxx X. Xxxxxxx Date:
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