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EXHIBIT 10.14
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into by and
among XXXXXXX XXXXXXXXX, an individual residing in the State of New York (the
"Employee"), and, SPORTS IMPRINTS, INC., an Ohio corporation (the "Corporation";
the Employee and the Corporation being collectively referred to as the "Parties"
and generically as a "Party").
PREAMBLE:
WHEREAS, the Corporation is engaged in the design, manufacture and
sale of sports apparel; and
WHEREAS, the Employee has been involved with the Corporation as an
employee thereof for a significant time; and
WHEREAS, the Parties desire to memorialize all of the provisions
pursuant to which the Employee is employed by the Corporation in order to more
clearly define their respective rights and obligations:
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements hereby exchanged, as well as of the sum of Ten ($10.00) Dollars and
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the Parties, intending to be legally bound, hereby
acknowledge that the following terms govern their current and anticipated legal
relationships:
WITNESSETH:
ARTICLE ONE
TERM, RENEWALS, TERMINATION
1.1 Term.
This Agreement shall be in effect for a term of three years following
the date hereof or until December 31, 1995, whichever shall be later.
1.2 Renewals.
This Agreement shall, notwithstanding the provisions of Section 1.1,
be renewed automatically, after expiration of the original term, on a year to
year basis, unless the Party wishing not to renew this Agreement provides the
other Party with written notice of its election not to renew ("Termination
Election
Please Initial: Corporation: /s/ JL Employee: /s/ SH
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Notice") on or before the 90th day prior to termination of the then current
term.
1.3 Earlier Termination.
The Corporation shall have the right to terminate this Agreement prior
to the expiration of its Term, or of any renewals thereof:
(a) For Cause: The Corporation may terminate the Employee's
employment under this Agreement at any time for cause. Such termination shall
be evidenced by written notice thereof to the Employee, which notice shall
specify the cause for termination. For purposes hereof, the term "cause" shall
mean the inability of the Employee, through sickness or other incapacity, to
perform his duties under this Agreement for a period in excess of six months;
dishonestly; theft; conviction of a crime; and, a material breach of this
Agreement. The term "cause" shall also include the failure of the Employee, for
any reason, within ten days after receipt of a written notice thereof from the
Corporation, to correct, cease or otherwise alter any insubordination, failure
to comply with reasonable instructions or other intentional action or omission
to act which the Corporation reasonably believes does or may materially or
adversely affect its business or operations.
(b) Termination Due to Discontinuance of Business: In the event that
the Corporation discontinues operating its business without continuation through
a successor entity, this Agreement shall terminate as of the last day of the
month on which the Corporation ceases operation with the same force and effect
as if such last day of the month were originally set as the termination date
hereof.
(c) Termination Due to Death: This Agreement shall terminate
immediately on the death of the Employee.
(d) Termination Due to Disability: This Agreement shall terminate
immediately on the medical determination of permanent disability of the Employee
to perform under this Agreement.
1.4 Final Settlement.
Upon termination of this Agreement and payment to the Employee of all
amounts due him hereunder, the Employee or his representative shall execute and
deliver to the Corporation on a form prepared by the Corporation a receipt for
such sums, and, shall forthwith tender to the Corporation all records, recipes,
Please Initial: Corporation: /s/ JL Employee: /s/ SH
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manuals, procedures, lists of providers, etc., as may be desired by the
Corporation for the continued conduct of its restaurant business.
ARTICLE TWO
SCOPE OF EMPLOYMENT
2.1 Retention.
The Corporation has hired the Employee and the Employee has accepted
such employment, in accordance with the terms, provisions and conditions of this
Agreement.
2.2 General Description of Duties.
The Employee shall perform all duties requested by the Corporation
consistent with the position of an executive officer of the Corporation.
2.3 Status.
The Employee shall during his entire tenure as a full time employee of
the Corporation serve as one of its executive officers. The employee currently
serves as the Corporation's chief executive officer.
2.4 Exclusivity.
The Employee shall be required to devote full business time to the
business of the Company and its affiliates, and, may engage in any other
business activities only long as such activities are not directly, indirectly or
incidentally competitive with the business of the Corporation or its affiliates
and in no manner interfere or curtail his ability to perform the duties required
hereby.
ARTICLE THREE
COMPENSATION
3.1 Compensation.
In consideration for the Employee's services to the Corporation, the
Employee shall be entitled to:
(a) An annual base salary of $100,000; and
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(b) An annual bonus equal to 9% of the Corporation's calendar year
pre-tax earnings (the "Basic Bonus"), subject to non-refundable, monthly draws
in anticipation thereof in a sum equal to $4,100.
3.2 Entire Compensation.
The compensation herein provided shall constitute full payment for the
services of the employee rendered to the Corporation and the Employee shall not
receive any additional compensation for extraordinary services, unless, prior to
their rendition, the Corporation agrees to additional compensation in writing.
The Employee expressly waives, discharges and releases the Corporation from any
claims for additional compensation for extraordinary services unless such
compensation is specifically provided for, in writing, prior to their rendition.
3.3 Termination of Compensation.
Except as provided in this Agreement to the contrary, compensation
provided to the Employee pursuant to this Article Three shall cease immediately
after the death or permanent disability of the Employee, provided that any
payment accrued before the employee's death or permanent disability shall be
made to the Employee, or, if the Employee is deceased, to the Employee's
Personal Representative for distribution in accordance with the directions,
testamentary or otherwise, of the Employee.
ARTICLE FOUR
SPECIAL COVENANTS OF THE EMPLOYEE
4.1 Confidentiality.
The Employee acknowledges that, in and as a result of his employment
hereunder, he will be developing for the Corporation, making use of, acquiring
and/or adding to, confidential information of special and unique nature and
value relating to such matters as the Corporation's trade secrets, systems,
procedures, manuals, confidential reports, and lists of clients, financial
sources, advertisers and suppliers; consequently, as material inducement to the
entry into this Agreement by the Corporation, the Employee hereby covenants and
agrees that all confidential information so developed shall be the property of
the Corporation, and he shall assure that legible written copies of all such
information are provided to the Corporation prior to his disassociation
therefrom. In the event of a breach or threatened breach by the Employee of any
of the
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provisions of this Section 4.1, the Corporation, in addition to and not in
limitation of any other rights, remedies or damages available to the
Corporation, whether at law or in equity, shall be entitled to a permanent
injunction in order to prevent or to restrain any such breach by the Employee,
or by the Employee's partners, agents, representatives, servants, employers,
employees, affiliates and/or any and all persons directly or indirectly acting
for or with him.
4.2 Competition.
The Employee acknowledges that the services to be rendered hereunder
are of a special and unusual character which have a unique value to the
Corporation, and that the loss thereof cannot adequately be compensated by
damages in an action at law; consequently, in view of the unique value to the
Corporation of the services of the Employee for which the Corporation has
contracted hereunder, and because of the confidential information to be obtained
by or disclosed to the Employee, as hereinabove set forth, and as a material
inducement to the Corporation's entry into this Agreement, the Employee
covenants and agrees that, provided that the Corporation has not theretofore
breached its obligations under this Agreement:
(a) During the term of the Employee's employment and for a period of
two years after its termination, the Employee shall not, directly or indirectly,
solicit business from, divert business from, or attempt to convert to other
methods of using the same or similar services as provided by the Corporation,
any client, account or business contact of the Corporation with which the
Employee has had any contact as a result of his employment by the Corporation
hereunder or otherwise;
(b) During the Employee's employment hereunder and for a period of
two years after he ceases to be employed by the Corporation, the Employee shall
not, directly or indirectly, solicit for employment or employ any employee of
the Corporation or its affiliates.
4.3 Special Remedies.
In view of the irreparable harm and damage which would undoubtedly
occur to the Corporation as a result of a breach by the Employee of the
covenants or agreements contained in this Article Four, and in view of the lack
of an adequate remedy at law to protect the Corporation's interests, the
Employee hereby consents to the issuance of a permanent injunction enjoining him
from any violations of the covenants set forth in Section 4.1 hereof.
Please Initial: Corporation: /s/ JL Employee: /s/ SH
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4.4 Cumulative Remedies.
The Employee hereby irrevocably agrees that the remedies described in
Section 4.3 hereof shall be in addition to, and not in limitation of, any of the
rights or remedies to which the Corporation is or may be entitled to, whether at
law or in equity, under or pursuant to this Agreement.
4.5 Acknowledgment of Reasonableness.
The Employee hereby represents, warrants and acknowledges that he has
carefully read and considered the provisions of this Article Four and, having
done so, agrees that the restrictions set forth herein are fair and reasonable
and are reasonably required for the protection of the interests of the
Corporation, its officers, directors and other employees; consequently, in the
event that any of the above-described restrictions shall be held unenforceable
by any court of competent jurisdiction, the Employee hereby covenants, agrees
and directs such court to substitute a reasonable judicially enforceable
limitation in place of any limitation deemed unenforceable and, the Employee
hereby covenants and agrees that if so modified, the covenants contained in this
Article Four shall be as fully enforceable as if they had been set forth herein
directly by the Parties. In determining the nature of this limitation, the
Employee hereby acknowledges, covenants and agrees that it is the intent of the
Parties that a court adjudicating a dispute arising hereunder recognize that the
Parties desire that this covenant not to compete be imposed and maintained to
the greatest extent possible.
ARTICLE FIVE
MISCELLANEOUS
5.1 Notices.
All notices, demands or other communications hereunder shall be in
writing, and unless otherwise provided, shall be deemed to have been duly given
on the first business day after mailing by the United States registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
To the Employee:
Xxxxxxx Xxxxxxxxx
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Please Initial: Corporation: /s/ JL Employee: /s/ SH
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To the Corporation:
SPORTS IMPRINTS, INC.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
or to such other address or to such other person as any party shall designate
to the other for such purpose in the manner hereinafter set forth.
5.2 Amendment.
No modification, waiver, amendment, discharge or change of this
Agreement shall be valid unless the same is in writing and signed by the Party
against which the enforcement of said modification, waiver, amendment, discharge
or change is sought.
5.3 Merger.
This instrument contains all of the understandings and agreements of
the Parties with respect to the subject matter discussed herein. All prior
agreements whether written or oral, are merged herein and shall be of no force
or effect.
5.4 Survival.
The several representations, warranties and covenants of the Parties
contained herein shall survive the execution hereof and shall be effective
regardless of any investigation that may have been made or may be made by or on
behalf of any Party.
5.5 Severability.
If any provision or any portion of any provision of this Agreement, or
the application of such provision or any portion thereof to any person or
circumstance shall be held invalid or unenforceable, the remaining portions of
such provision and the remaining provisions of this Agreement or the application
of such provision or portion of such provision as is held invalid or
unenforceable to persons or circumstances other than those to which it is held
invalid or unenforceable, shall not be effected thereby.
5.6 Governing Law and Venue.
This Agreement shall be construed in accordance with the laws of the
State of New York and any proceeding arising between the Parties in any matter
pertaining or related to this Agreement shall, to the extent permitted by law,
be held in the City and State of New York.
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5.7 Litigation.
In any action between the Parties to enforce any of the terms of this
Agreement or any other matter arising from this Agreement, the prevailing Party
shall be entitled to recover its costs and expenses, including reasonable
attorneys' fees up to and including all negotiations, trials and appeals,
whether or not litigation is initiated.
5.8 Benefit of Agreement.
This Agreement may be assigned only by the Corporation, the Employee's
duties being of a personal nature, however, the Employee may assign his rights
to compensation under this Agreement provided that any such assignment is
subject to defenses available against the Employee for non-performance or
improper performance under this Agreement. Subject to the restrictions on
transferability and assignment contained herein, the terms and provisions of
this Agreement shall be binding upon and inure to the benefit of the Parties,
their successors, assigns, personal representative, estate, heirs and legatees.
5.9 Captions.
The captions in this Agreement are for convenience and reference only
and in no way define, describe, extend or limit the scope of this Agreement or
the intent of any provisions hereof.
5.10 Number and Gender.
All pronouns and any variations thereof shall be deemed to refer to
the masculine, feminine, neuter, singular or plural, as the identity of the
Party or Parties, or their personal representatives, successors and assigns may
require.
5.11 Further Assurances.
The Parties hereby agree to do, execute, acknowledge and deliver or
cause to be done, executed or acknowledged or delivered and to perform all such
acts and deliver all such deeds, assignments, transfers, conveyances, powers of
attorney, assurances, recipes, records and other documents, as may, from time to
time, be required herein to effect the intent and purposes of this Agreement.
5.12 Status.
Nothing in this Agreement shall be construed or shall constitute a
partnership, joint venture, agency, or lessor-lessee relationship; but rather,
the relationship established hereby is that of employer-employee.
Please Initial: Corporation: /s/ JL Employee: /s/ SH
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5.13 Counterparts.
This Agreement may be executed in any number of counterparts. All
executed counterparts shall constitute one Agreement notwithstanding that all
signatories are not signatories to the original or the same counterpart.
9.15 Copyright.
This Agreement is the property of Houston, Xxxxx & Houston, P.A., a
Florida professional corporation. The use hereof by the Parties is authorized
hereby solely for purposes of this transaction and, the use of this form of
agreement or of any derivation thereof without Houston, Xxxxx & Houston, P.A.'s
prior written permission is prohibited.
IN WITNESS WHEREOF, the Parties have executed this Agreement,
effective as of the 16 day of November, 1992.
Signed, Sealed & Delivered
In Our Presence
Sports Imprints, Inc.
/s/ Xxxxxx Xxxxxxxxxx
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By: /s/ Xxxxxxx Xxxxxx
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President
(CORPORATE SEAL) Attest: /s/ Xxxxxxx Xxxxxx
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Secretary
EMPLOYEE
/s/ Xxxxxx Xxxxxxxxxx
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/s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx
Please Initial: Corporation: /s/ JL Employee: /s/ SH
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