EXHIBIT 10.11
SERENGETI EYEWEAR, INC.
0000 00xx XXXXX XXXXXX XXXX
XXXXXXXX, XXXXXXX 00000
January 1, 1999
Xx. Xxxxxxx Xxxxxx
00000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Dear Xx. Xxxxxx:
Upon the terms and subject to the conditions set forth below, this letter shall
constitute the agreement pursuant to which Serengeti Eyewear, Inc. ("Serengeti')
agrees to employ you as Vice President of National (U.S.) Sales/Premium
Division.
1. Term of Employment.
1.1 Term. Serengeti hereby employs you, and you hereby accept employment
with Serengeti, for a period to commence on January 1, 1999 and to
terminate on the third anniversary of such date unless sooner
terminated in accordance with the provisions of Section 7 hereof
("Initial Term").
1.2 Definition. As used herein, "Employment Term" means the entire period
of your employment by Serengeti hereunder, whether for the period
provided above, or whether extended, or sooner terminated in accordance
with the provisions of Section 7 hereof.
2. Duties
2.1 Description of Duties. In your capacity as Vice President of National
(U.S.) Sales/Premium Division, you shall perform such customary duties
and exercise such authority, consistent with your position, as may from
time to time be given to you by the President and Chief Executive
Officer. You shall have the responsibility for national sales of
premium brand sunglasses.
2.2 Devotion of Entire Time. During the Employment Term, you agree that you
will loyally and conscientiously devote your entire productive time,
efforts, ability and attention to the duties of your office and to
promotion of the interests of Serengeti, and that you will not engage
in any other business duties or pursuing whatsoever. Notwithstanding
any of the foregoing, you will not be prohibited from making passive
personal investments or being involved in the private business affairs
or your immediate family to the extent that such activities do not
interfere with the performance of your duties hereunder and are not in
any way competitive with the business of Serengeti.
3. Compensation
3.1 Annual Salary. During the Initial Term, you will be compensated at the
rate of $130,000 per annum, on an annualized basis, for the period
January 1, 1999 through December 31, 1999, ("Base Salary"). Base salary
shall be payable in accordance with the customary payroll policies of
Serengeti provided, however, that if, pursuant to Section 7 hereof,
your employment is terminated, you will receive the appropriate pro
rata portion of your annual Base Salary for the period during which you
were actually employed by Serengeti.
The Base Salary shall be increased annually commencing January 1, 2000
during the Initial Term and any renewal terms, effective on January 1
of each year, by an amount equal to the increase, if any, in the index
currently known as the "Consumer Price Index, All Items, South, All
Urban Consumer," published by the Bureau of Labor Statistics of the
United States Department of Labor, or any successor index thereto,
appropriately adjusted (the "CPI"). In the event that the CPI is
converted to a different standard reference base or otherwise revised,
the determination of the CPI Adjustment shall be made with the use of
such conversion factor, formula or table for converting CPI as may be
published by the Bureau of Labor Statistics or, if said Bureau shall
not publish the same, then with the use of such conversion factor,
formula or table as may be published by Commerce Clearing House, Inc.,
or any other nationally recognized publisher of similar statistical
information. If the CPI ceases to be published on a monthly basis, then
the shortest period for which the CPI is published shall be used in
determining the numerator of the fraction. If the CPI ceases to be
published, and there is no successor thereto, such other index as
Serengeti may reasonably determine to be appropriate shall be used. The
amount of the increase shall be determined by multiplying the Base
Salary in effect by a fraction, the numerator of which shall be (a) the
CPI for the month immediately preceding the first day of the Year with
respect to which such annual adjustment is to be made (the "Base CPI")
minus (b) the CPI for the same month in the immediately preceding Year,
and the denominator of which shall be the Base CPI (the "CPI
Adjustment").
3.2 Reimbursement for Business Expenses. Serengeti will reimburse you, upon
presentation of proper expense statements or such other supporting
information as Serengeti may reasonably require, for your reasonable
and necessary business expenses including, without limitation,
telephone, travel and entertainment expenses) incurred or paid by you
in connection with the performance of your duties hereunder. Serengeti
will provide you with a notebook computer and cellular telephone which
will remain the property of Serengeti and be used solely for the
business of Serengeti.
3.3 Miscellaneous. You will also be provided with a total car allowance of
$500 per month payable monthly thorough payroll. You will work at
Serengeti's offices in Sarasota, Florida.
3.4 Incentive Compensation. Bonuses for the Initial Term and any renewal
will be based on the Management Incentive Plan then in effect.
4. Fringe Benefits. You shall be entitled to participate on the same basis
and subject to the same qualifications as all other regular full time
employees of Serengeti in any fringe benefit plans Serengeti makes
available from time to time for all its employees, including those
benefits available, if any, under any vacation, retirement, disability,
medical insurance and life insurance plans as the same may be placed
into effect from time to time. In addition, you shall be entitled to
participate in such other benefit plans, if any, as Serengeti makes
generally available from time to time to members of its executive
staff.
5. Confidentiality.
5.1 Trade Secrets. You and Serengeti acknowledge and agree that during the
Employment Term and in the course of the discharge of your duties
hereunder, you will have access to and become acquainted with
information concerning the operation of Serengeti, including, without
limitation, the names and addresses of and other information pertaining
to Serengeti's customers, clients, suppliers and employees and other
business associates and other valuable information regularly used in
Serengeti's business and not generally known to other, giving
Serengeti's competitive advantage in the sunglass business. You
acknowledge and agree that it is Serengeti's policy to maintain such
information as secret and confidential, whether relating to Serengeti's
business as heretofore or hereafter conducted, or relating to
Serengeti's customers, clients, suppliers, employees and other business
associates (all such information being referred to hereinafter as
"Confidential Information"). You acknowledge and agree that all
Confidential Information is owned by Serengeti and constitutes
Serengeti's trade secrets.
5.2 Non-Disclosure. You specifically agree that you shall not use, publish,
disseminate, misappropriate or otherwise disclose any Confidential
Information, whether directly or indirectly, either during the term of
this Agreement or at any other time thereafter, except as is required
by law or in the course of your employment hereunder. This provision
shall not apply to Confidential Information which becomes generally
known to the public by means other than your breach of this Section.
5.3 Unfair Competition. You acknowledge and agree that the sale,
unauthorized use or disclosure of any Confidential Information obtained
by you during the course of your employment under this Agreement,
including but not limited to (a) information concerning Serengeti's
current, future or proposed work, services, or products, (b) the facts
that any such work, services or products are planned, under
consideration, or in production, as well as, (c) any descriptions
thereof, constitute unfair competition. You promise and agree not to
engage in any unfair competition with Serengeti, either during the term
of this Agreement or at any other time thereafter.
5.4 Precautions; Return of Materials. You agree to take all reasonable
precautions to protect the integrity of all Confidential Information,
including all documents and other material entrusted to you containing
or embodying Confidential Information. You further agree that all
files, records, documents, drawings, lists, specifications, products
and similar items relating to Serengeti's business, whether prepared by
you or by others, are and shall remain exclusively the property of
Serengeti, and that upon the expiration or termination of your
employment hereunder you shall return to Serengeti all such material
and all copies thereof in your possession or control.
5.5 Copyrightable and Patentable Materials. You agree that during the
Employment Term you will take any and all business developments,
opportunities and potentially profitable situations relating to
Serengeti's business to the Directors for exploitation by Serengeti.
You agree promptly to disclose to Serengeti (and only to Serengeti) any
and all knowledge possessed or acquired by you by any means whatsoever
during the Employment Term which relates in any way to any materials,
inventions, discoveries, developments, concepts, ideas or innovations,
whether copyrightable or patentable or not, relating to the business of
Serengeti. For the compensation and benefits received hereunder, you
hereby assign and agree to assign to Serengeti your entire right, title
and interest in and to any of the aforedescribed materials, inventions,
discoveries, developments, concepts, ideas or innovations. All such
materials, inventions, discoveries, developments, concepts, ideas and
innovations shall be the property of Serengeti, and you shall, without
further compensation, do all things necessary to enable Serengeti to
perfect title in such materials, inventions, discoveries, concepts,
ideas and innovations and to obtain and maintain effective patent or
copyright protection in the Unites States and foreign countries
thereon, including, without limitation, rendering assistance and
executing necessary documents.
6. Competitive Activities.
6.1 Non-Competition. During the Employment Term and for a period of one (1)
year after the expiration of earlier termination thereof for whatever
reason, you shall not within the United States:
a. Consult with, be employed by, render services to, or engage in any
business activity with (whether as owner, controller, employee,
employer, consultant, partner, officer, director, agent or otherwise)
any business or business entity competing in any way with the business
of Serengeti;
b. Without the prior written consent of the President and Chief Executive
Officer personally solicit or cause to be solicited or authorize,
directly or indirectly, for or on behalf of yourself or any third
party, any business competitive with Serengeti, which employs you
hereunder, from others who are or were at any time within 12 months
prior to the expiration or termination of your employment hereunder
customers, clients, or other business associates of Serengeti.
6.2 Solicitation of Employees and Others. You acknowledge and agree that
Serengeti's directors, officers and employees possess special knowledge
of Serengeti's operation and are vitally important to the continued
success of Serengeti's business. You shall not, without the prior
written consent of the President and Chief Executive Officer, directly
or indirectly seek to persuade any director, officer or employee of
Serengeti either to discontinue his or her position with Serengeti or
to become employed or engaged in any activity competitive with the
activities of Serengeti to which your services under this Agreement are
related.
6.3 Injunctive Relief. You acknowledge and agreed that your services to be
provided hereunder are special and unique and that were you to breach
any provision of Sections 5 or 6 of this Agreement, the damages to
Serengeti would be irreparable and any other rights or remedies which
Serengeti may possess or to which it may be entitled, Serengeti shall
be entitled to enjoin any such breach in any court of competent
jurisdiction.
6.4 Scope. If any court determines that any of the covenants set forth
herein, or any part or parts thereof, is unenforceable because of the
duration of geographic scope of such provision, such court shall have
the power to reduce the duration or scope of such provision, as the
case may be, and, in its reduced form, such provision shall then be
enforceable and shall be enforced.
7. Termination
7.1 By Agreement or Death. Prior to the end of the Initial Term and during
the Employment Term, your employment hereunder may be terminated: (a)
by written agreement between you and Serengeti; and (b) in the event of
your death.
7.2 Termination for Cause. Serengeti reserves the right to terminate this
Agreement for "cause" as defined below. As used in this Agreement, the
term "cause" shall mean (i) the commission by you of any act which
would constitute a felony under state or federal law, or the equivalent
under foreign law, if prosecuted; (ii) the commission by you of any act
of moral turpitude which, in the sole reasonable opinion of Serengeti,
negatively impacts on your ability to perform your duties hereunder;
(iii) the material breach by you of the provisions of this Agreement;
(iv) your failure or refusal to perform material obligations under this
Agreement, or other acts or omissions constituting neglect or
dereliction of duties hereunder; (v) fraud, dishonesty or other acts or
omissions by you that amount to a willful breach of your fiduciary duty
to Serengeti; or (vi) the happening of any other event which, under the
provisions of any laws applicable to Serengeti or its activities,
disqualifies you form acting in any or all capacities provided for
herein. Serengeti may, at its option, terminate this Agreement for the
reasons states in this Section 7 by giving written notice of
termination to you without prejudice to any other remedy to which
Serengeti may be entitled either by law, in equity, or under this
Agreement.
7.3 Upon such termination under this Agreement under this Section 7, you
shall resign from all positions you may then hold with Serengeti of any
of its affiliates and deliver to Serengeti all documents or copies
thereof in your possession relating to Serengeti and its business.
7.4. Severance Pay. Whether and to which extent you are entitled to
severance pay upon termination of your employment with Serengeti will
be determined according to Serengeti's severance policies, if any, at
the time of such termination. The foregoing notwithstanding, in the
event your employment terminates during the Initial Term only, by
reason of a change of control of Serengeti, you will be entitled to an
amount equal to one year's salary at the then current Base Salary. For
purposes hereof, the term "change of control" shall mean any merger,
consolidation or reorganization of Serengeti with or into another
person or entity, any sale of the assets of Serengeti or any
acquisition of Serengeti's voting securities, with the result, in each
instance, that less than 51% of the combined voting power of the then
outstanding voting securities of Serengeti or the surviving entity
immediately after each such transaction is held in the aggregate by
persons or entities who were holders of voting securities of Serengeti
immediately prior to any such transactions.
8. Miscellaneous
8.1 Notices. Notices hereunder shall be in writing and shall be delivered
by hand or sent by registered to certified mail, return receipt
requested, if to you, at the address set forth above, and if to
Serengeti Eyewear, Inc., 0000 00xx Xxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxx
00000, or at such other address as to which notice has been given in
the manner herein provided.
8.2 Entire Agreement. This Agreement sets forth your and Serengeti's
complete understanding with respect to the matters set forth herein.
This Agreement may be modified or amended only by an agreement in
writing signed by the parties hereto and may be assigned by Serengeti
only in connection with the transfer of all or substantially all of the
business and assets of Serengeti.
8.3 Severability. If any term, provision, covenant, or condition of this
Agreement, or the application thereof to any person, place or
circumstance, shall be held by a court of competent jurisdiction to be
invalid, unenforceable, or void, the remainder of this Agreement and
such term, provision, covenant, or condition as applied to other
persons, places and circumstances shall remain in full force and
effect.
8.4 Heading. The headings and captions of this Agreement are provided for
convenience only and are intended to have no effect in construing or
interpreting this Agreement.
8.5 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida without giving effect
to the conflict of laws principles thereunder.
If the foregoing accurately reflects your understandings of our agreement and is
acceptable to you, please sign the enclosed copy of this letter and return it to
the undersigned.
Very truly yours,
SERENGETI EYEWEAR, INC.
By: /s/ Xxxxxxx Xxxxxx
----------------------------
Xxxxxxx Xxxxxx, President
Accepted and Agreed:
By: /s/ Xxxxxxx Xxxxxx
--------------------------
Xxxxxxx Xxxxxx
