EXHIBIT 10.16
KEY EMPLOYEE AGREEMENT
To: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
The undersigned, Ryka Inc., a Delaware corporation (the "Company"), with
its principal place of business located at ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, hereby agrees with you as follows:
1. Position and Responsibilities.
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1.1 You shall serve as President of the Company, (or in such other
executive capacity as shall be designated by the Board of Directors or Executive
Committee of the Company and reasonably acceptable to you) and shall perform the
duties customarily associated with such capacity from time to time. In
particular, you will have primary responsibility over worldwide product design,
development, marketing, promotions and advertising. You shall report to the
Chief Executive Officer. It is anticipated that the Company will change its name
to Global Sports, Inc. ("Global") and will create a wholly owned subsidiary
called Ryka Inc. ("Subsidiary"). At such time, your contract will be assumed by
the Subsidiary, you will become president thereof and cease to be President of
the Company. All of your duties set forth herein will apply to such Subsidiary
and not the Company and all obligations of the Company herein shall be performed
by the Subsidiary, except that any provisions relating to stock options shall
refer to Global. In addition, it is expected that the Subsidiary will open a
branch office in the Portland, Oregon area in July, 1997. You will be in charge
of that office. It is presently expected that you will hire up to five people in
that office in design, marketing and possibly product development.
1.2 You will devote your full time and your best efforts to the
performance of your duties hereunder and the business and affairs of the
Company. You agree to perform such executive duties as may be assigned to you
by or on authority of the Company's Board of Directors or Executive Committee
from time to time.
1.3 You will duly, punctually, and faithfully perform and observe any and
all rules and regulations which the Company may or shall hereafter reasonably
establish governing your conduct as an employee and the conduct of its business.
2. Term of Employment.
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2.1 The initial term of this Agreement shall be for the period of years
set forth on Exhibit A annexed hereto commencing with the date hereof.
Thereafter, this Agreement shall be automatically renewed for successive periods
of one (1) year, unless you or the Company shall give the other party not less
than four (4) months prior written notice of non-renewal. Your employment with
the Company may be terminated as provided in Sections 2.2 or 2.3.
2.2 The Company shall have the right to terminate your employment at any
time under this Agreement prior to the stated term in any of the following ways:
(a) on thirty (30) days prior written notice to you upon your disability
(disability shall be defined as your inability to perform duties under
this Agreement for an aggregate of ninety (90) days out of any one
hundred eighty (180) day period due to mental or physical disability);
(b) immediately without prior notice to you by the Company for "Cause", as
hereinafter defined;
(c) immediately without prior notice to you or in the event of the
liquidation or reorganization of the Company under the federal
Bankruptcy Code or any state insolvency or bankruptcy law;
(d) at any time without Cause;
(e) immediately upon your death.
2.3 "Cause" for the purpose of Section 2 of this Agreement shall mean: (i)
the falseness or material inaccuracy of any of your warranties or
representations herein; (ii) your willful failure or refusal to comply with
explicit directives of the Board of Directors or Executive Committee or to
render the services required herein; (iii) fraud or embezzlement involving
assets of the Company, its customers, suppliers or affiliates or other
misappropriation of the Company's assets or funds; (iv) your conviction of a
criminal felony offense; (v) the willful breach or habitual neglect of your
obligations under this Agreement or your duties as an employee of the Company;
(vi) habitual use of drugs. The existence of Cause for termination of your
employment by the Company shall be subject, upon the written election by you or
the Company, to binding arbitration as provided in Section 9 hereof. The cost
of arbitration, exclusive of the cost of each party's legal representation
(which, except as hereinafter otherwise provided, shall be borne by the party
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incurring the expense), shall be borne by the instigating party; provided,
however, that the arbitrators' award may require either party to reimburse the
other for the reasonable cost of legal representation in the arbitration
proceedings.
Further, any dispute, controversy, or claim arising out of, in connection
with, or in relation to this definition of "Cause" shall be settled by
arbitration as provided in Section 9 hereof. Any award or determination shall
be final, binding, and conclusive upon the parties, and a judgment rendered may
be entered in any court having jurisdiction thereof.
2.4 In the event of the termination of your employment, you shall be
entitled to the following:
(a) If your employment is terminated because of your death or
disability, (i) all obligations of the Company hereunder shall cease,
except with respect to amounts and obligations accrued to you through the
thirtieth day after which your death or disability has occurred, and (ii)
you shall retain your vested options and any stock options that you would
otherwise be entitled to receive within one year of the effective date of
your termination and forfeit any unvested options due to vest later than
one year from the date of your termination. You may exercise your vested
options and those additional options due to vest within one year for a
period of one year from the date of the termination of your employment; and
(b) If your employment is terminated for "Cause" you shall not be
entitled to any further compensation or benefits, effective as of the date
of termination. In addition, you shall retain your vested options and
forfeit any unvested options. You may exercise your vested options for a
period of one year from the date of the termination of your employment; and
(c) If your employment is terminated without "Cause",the Company shall
be obligated to pay to you, as severance pay, an amount equal to six months
of your then current annual Base Salary, such sum to be payable monthly
over a six month period from the date of termination. In addition, the
Company will continue to make pay your medical insurance premiums for that
six month period. (the "Severance Payments").
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3. Compensation.
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You shall receive the compensation and benefits set forth on Exhibit A
attached hereto ("Compensation") for all services to be rendered by you
hereunder and for your transfer of property rights, if any, pursuant to an
agreement relating to proprietary information and inventions of even date
herewith attached hereto as Exhibit C between you and the Company (the
"Proprietary Information and Inventions Agreement").
4. Other Activities During Employment.
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4.1 Except for any outside directorships currently held by you as listed
on Exhibit B attached hereto, and except with the prior written consent of a
disinterested majority of the Company's Board of Directors, which consent will
not be unreasonably withheld, you will not, during the term of this Agreement,
undertake or engage in any other employment, occupation or business enterprise
other than one in which you are an inactive investor.
4.2 You hereby agree that, except as disclosed on Exhibit B attached
hereto, during your employment hereunder, you will not, directly or indirectly,
engage (i) individually, (ii) as an officer, (iii) as a director, (iv) as an
employee, (v) as a consultant, (vi) as an advisor, (vii) as an agent (whether a
salesperson or otherwise), (viii) as a broker, or (ix) as a partner, co-
venturer, stockholder, or other proprietor owning directly or indirectly more
than five percent (5%) interest in any firm, corporation, partnership, trust,
association, or other organization which is engaged in the planning, research,
development, production, manufacture, marketing, sales, or distribution of
women's athletic footwear and clothing and related products and services or any
other line of business engaged in or under demonstrable development by the
Company (such firm, corporation, partnership, trust, association, or other
organization being hereinafter referred to as a "Prohibited Enterprise").
Except as may be shown on Exhibit B attached hereto, you hereby represent that
you are not engaged in any of the foregoing capacities (i) through (ix) in any
Prohibited Enterprise.
5. Former Employers.
----------------
5.1 You represent and warrant that your employment by the Company will not
conflict with and will not be constrained by any prior or current employment,
consulting agreement or relationship whether oral or written. You represent and
warrant that you do not possess confidential information arising out of any such
employment, consulting agreement or relationship which, in your
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best judgment, would be utilized in connection with your employment by the
Company in the absence of Section 5.2.
5.2 If, in spite of the second sentence of Section 5.1, you should find
that confidential information belonging to any other person or entity might be
usable in connection with the Company's business, you will not intentionally
disclose to the Company or use on behalf of the Company any confidential
information belonging to any of your former employers; but during your
employment by the Company you will use in the performance of your duties all
information which is generally known and used by persons with training and
experience comparable to your own all information which is common knowledge in
the industry or otherwise legally in the public domain.
6. Proprietary Information and Inventions.
--------------------------------------
You agree to execute, deliver and be bound by the provisions of the
Proprietary Information and Inventions Agreement attached hereto as Exhibit C.
7. Post-Employment Activities.
--------------------------
7.1 Except as hereinafter provide, for a period of one (1) year after the
termination or expiration, for any reason, of your employment with the Company
hereunder, absent the Board of Directors' prior written approval, you will not
directly or indirectly engage in activities similar to those described in
Section 4.2, nor render services similar or reasonably related to those which
you shall have rendered hereunder to, any person or entity whether now existing
or hereafter established which directly or indirectly competes with (or proposes
or plans to compete with) the Company ("Direct Competitor") in the sale of
women's athletic footwear, apparel and related products and services. Nor shall
you entice, induce or encourage any of the Company's other employees to engage
in any activity which, were it done by you, would violate any provision of the
Proprietary Information and nor shall you entice, induce or encourage any of the
Company's other employees to engage in any activity which, were it done by you,
would violate any provision of the Proprietary Information and Inventions
Agreement or this Section 7. As used in this Agreement, the term "any line of
business engaged in or under demonstrable development by the Company" shall be
applied as at the date of termination of your employment, or, if later, as at
the date of termination of any post-employment consultation.
7.2 No provision of this Agreement shall be construed to preclude you from
performing the same services which the Company hereby retains you to perform for
any person or entity which is not a Direct Competitor of the Company upon the
expiration or
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termination of your employment (or any post-employment consultation) so long as
you do not thereby violate any term of this Agreement or the Proprietary
Information and Inventions Agreement.
7.3 Notwithstanding anything contained herein to the contrary, in the
event that you voluntarily resign from the Company and are not terminated for
Cause, we will advise you within sixty days of the effective date of your
termination whether we will enforce the prohibition set forth above in Section
7.1 against your being involved with a Direct Competitor. if we elect to enforce
such prohibitions, we will pay you your salary for a period of six (6) months
from the date of our notification to you.
Further, you receive an offer from a Direct Competitor which you
desire to accept, you may advise the Company of the position, including all
reasonable details and the Company shall decide within fourteen days of receipt
of your notice whether they intend to enforce the prohibition.
8. Remedies.
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Your obligations under the Proprietary Information and Inventions Agreement
and the provisions of Sections 4.2, 7, 8, 9 and 11 of this Agreement (as
modified by Section 14, if applicable) shall survive the expiration or
termination of your employment (whether through your resignation or otherwise)
with the Company. You acknowledge that a remedy at law for any reach or
threatened breach by you of the provisions of the Proprietary Information and
Inventions Agreement or Section 4 or 7 hereof would be inadequate and you
therefore agree that the Company shall be entitled to such injunctive relief in
case of any such breach or threatened breach.
9. Arbitration.
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Any dispute concerning this Agreement including, but not limited to, its
existence, validity, interpretation, performance or non-performance, arising
before or after termination or expiration of this Agreement, shall be settled by
a single arbitrator in Philadelphia, Pennsylvania, in accordance with the
expedited procedures of the commercial rules then in effect of the American
Arbitration Association. Judgment upon any award may be entered in the highest
court, state or federal, having jurisdiction. The cost of such arbitration
shall be borne equally between the parties thereto unless otherwise determined
by such arbitration panel.
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10. Assignment.
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This Agreement and the rights and obligations of the parties hereto shall
bind and inure to the benefit of any successor or successors of the Company by
reorganization, merger or consolidation and any assignee of all or substantially
all of its business and properties, but, except as to any such successor or
assignee of the Company, neither this Agreement nor any rights or benefits
hereunder may be assigned by the Company or by you, except by operation of law
or by a further written agreement by the parties hereto.
11. Interpretation.
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IT IS THE INTENT OF THE PARTIES THAT in case any one or more of the
provisions contained in this Agreement shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect the other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein. MOREOVER, IT IS THE INTENT OF THE
PARTIES THAT if any one or more of the provisions contained in this Agreement is
or becomes or is deemed invalid, illegal or unenforceable or in case any shall
for any reason be held to be excessively broad as to duration, geographical
scope, activity or subject, such provision shall be construed by amending,
limiting and/or reducing it to conform to applicable laws so as to be valid and
enforceable or, if it cannot be so amended without materially altering the
intention of the parties, it shall be stricken and the remainder of this
Agreement shall remain in full force and effect.
12. Notices.
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Any notice which the Company is required to or may desire to give you shall
be given by registered or certified mail, return receipt requested, addressed to
you at your address of record with the Company, or at such other place as you
may from time to time designate in writing. Any notice which you are required
or may desire to give to the Company hereunder shall be given by registered or
certified mail, return receipt requested, or by recognized overnight courier,
addressed to the Company at its principal office, or at such other office as the
Company may from time to time designate in writing with a copy to ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Esquire, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, The Bellevue, Sixth Floor, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
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13. Waivers.
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No waiver of any right under this Agreement shall be deemed effective
unless contained in a writing signed by the party charged with such waiver, and
no waiver of any right arising from any reach or failure to perform shall be
deemed to be a waiver of any future such right or of any other right arising
under this Agreement.
14. Complete Agreement; Amendments.
------------------------------
The foregoing, including Exhibits A, B and C attached hereto, is the entire
agreement of the parties with respect to the subject matter hereof, superseding
any previous oral or written communications, representations, understandings, or
agreements with the Company or any officer or representative thereof. This
Agreement may be amended or modified or certain provisions waived only by a
written instrument signed by the parties hereto, upon authorization of the
Company's Board of Directors.
15. Headings.
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The headings of the Sections contained in this Agreement are inserted for
convenience and reference only and in no way define, limit, extend or describe
the scope of this Agreement, the intent of any provisions hereof, and shall not
be deemed to constitute a part hereof nor to affect the meaning of this
Agreement in any way.
16. Counterparts.
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This Agreement may be signed in two counterparts, each of which shall be
deemed an original and both of which shall together constitute one agreement.
17. Governing Law.
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This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Pennsylvania. If you are in agreement with the
foregoing, please sign your name below and also at the bottom of the Proprietary
Information and Inventions Agreement, whereupon both Agreements shall become
binding in accordance with their terms. Please then return this Agreement to
the Company. (You may retain for your records the accompanying counterpart of
this Agreement enclosed herewith).
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18. Definition of "Company".
-----------------------
Whenever, the word "Company" is used in this Agreement, it shall be deemed
to include the Company, its affiliates and subsidiaries.
Very truly yours,
RYKA INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
________________________________
Accepted and Agreed:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
_______________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
4/11/97 - DATE
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EXHIBIT "A"
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EMPLOYMENT TERM, COMPENSATION AND BENEFITS
OF
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
PRESIDENT - RYKA INC.
1. Term.
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The term of this Agreement to which this Exhibit "A" is annexed and
incorporated shall be for five (5) years, commencing April 1, 1997, unless
renewed in accordance with Section 2.1 of the agreement or terminated prior
thereto in accordance with Section 2.2 or 2.3 of the Agreement.
2. Compensation.
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a. Base Salary. Your initial annual Base Salary shall be one hundred and
------------
fifty thousand ($150,000.00) dollars. After the first year of your
employment agreement, the Board of Directors, in its sole and absolute
discretion, may increase your annual Base Salary.
b. Management Incentive Compensation Program ("MIP").
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The Company has established an MIP in which you shall be entitled to
receive five per cent of the total funds available for distribution to the
participants ("MIP Bonus Pool"). The MIP contains certain minimum company
guidelines and we will agree upon certain personal guidelines which must be
satisfied in order for the MIP to become effective.
c. Bonus based upon gross sales of the Company.
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You shall be entitled to receive a bonus equal to one half of one per cent
of the Company's gross annual sales in excess of $25,000,000.00 provided
that the gross profit on such sales exceeds 30%. Such determination of
gross profit shall be made by the Company's regularly retained certified
public accountant whose decision shall be final and binding upon both
parties. Any bonus due hereunder shall be paid within 120 days of the end
of the Company's fiscal year at issue. It is the intent of the parties that
this bonus be based only upon the sale of the Ryka division at such time as
it becomes a subsidiary of the Company and it is not intended to include
the sales of the parent Company at that time. amended 9/5/97 - see attached
d. All Base Salary shall be payable in accordance with the Company's
payroll policies.
A - 1
3. Vacation.
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You shall be paid for and be entitled to all legal and religious holidays,
and three (3) weeks paid vacation per annum commencing in the first year of
this Agreement. All vacation time shall be earned on a quarterly basis. You
shall arrange for vacations in advance at such time or times as shall be
mutually agreeable to you and the Company. You shall be entitled to carry
forward into the subsequent year up to one (1) week of unused vacation
time. You may not receive pay in lieu of vacation except in the event of
termination without Cause.
4. Insurance and Benefits.
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You shall be eligible for participation in any health, other group
insurance plans or other benefits which may be established by the Company
for its senior executives as a group or which the Company is required to
maintain by law. You shall also be entitled to participate in any group
employee benefit program which the Company may establish for its senior
executives or for its employees generally, including, but in no way limited
to, bonuses and stock purchase or option plans. The Company shall provide
comprehensive health insurance for you and your dependents as provided to
other similar executive employees of the Company.
5. Expenses
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The Company shall reimburse you promptly for all reasonable and ordinary
business and out-of-pocket expenses incurred by you in connection with the
Company's business and in the scope of your employment hereunder, as
approved by the Company, including, without limitation, reasonable and
necessary travel, lodging, entertainment and meals incurred by you during
the term of this Agreement, provided the expenses are incurred in
furtherance of the Company's business and at the request of the Company.
You agree to keep and maintain records of the aforesaid expenses as may be
requested by the Company and to account to the Company for the expenses
prior to reimbursement.
6. Stock Options
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6.1 The Company has announced its intention to merge with KPR Sports
International, Inc., a Pennsylvania corporation ("KPR"), pending certain
required approvals. As part of the
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merger, the Company will reverse split its outstanding common stock, twenty
for one. You will be granted five year options to purchase thirty thousand
(30,000) post merger shares of Ryka common stock at an exercise price equal
to the lesser of the fair market value of the underlying common stock on
the Effective Date or $8.00, of which 6,000 shares shall vest on each of
the first, second third fourth, and fifth anniversary dates of this
Agreement.
6.2 In the event that the merger with Ryka is definitively abandoned by the
Company, you shall receive stock options to purchase 600,000 shares of Ryka
common stock based upon pre merger pricing. The options would vest in the
same manner as set forth in Section 6.1 above and the exercise price would
be the lesser of $0.40 per share or the fair market value of the underlying
common stock on the Effective Date.
6.3 Should your employment be terminated with or without cause, you shall
retain your vested options and forfeit any unvested options. You may
exercise your vested options for a period of one year from the date of
termination of your employment.
6.4 In addition to the stock options referenced in Section 6.1 above, the
Board of Directors may grant you, in its sole discretion, additional stock
options, based upon your performance and the performance of the Company.
7. Portland, Oregon Office -Relocation and Interim Housing
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The Company will open a small office in Portland, Oregon metropolitan area
in July, 1997. You will be in charge of that office. The Company will
reimburse your vendors for the actual cost of moving from Colorado to the
Portland, Oregon area, up to a maximum of $10,000.00. Until that time, you
will provide your services at the Company's main office in King of Prussia,
Pennsylvania. The Company will provide you with reasonable interim housing
(i.e. a studio apartment) as well as travel expenses during this period.
8. Automobile Allowance
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Commencing January 1, 1998, you shall receive an automobile allowance of
$400,00 per month. (amended 9/5/97 - see attached)
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EXHIBIT B
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OUTSIDE EMPLOYMENTS AND DIRECTORSHIPS
OF
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
NONE
B - 1
EXHIBIT C
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________________________________________________________________________________
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
________________________________________________________________________________
To: Ryka Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The undersigned, in consideration of and as a condition of my employment or
continued employment by you and/or by companies which you own, control, or are
affiliated with or their successors in business (collectively, the "Company"),
hereby agrees as follows:
1. Confidentiality.
---------------
I agree to keep confidential, except as the Company may otherwise consent
in writing, and, except for the Company's benefit, not to disclose or make any
use of at any time either during or subsequent to my employment, any Inventions
(as hereinafter defined), trade secrets and confidential information, knowledge,
data or other information of the Company relating to products, processes, know-
how, techniques, methods, designs, formulas, test data, customer lists, business
plans, marketing plans and strategies, pricing strategies, or other subject
matter pertaining to any business of the Company or any of its affiliates, which
I may produce, obtain, or otherwise acquire during the course of my employment,
except as herein provided. I further agree not to deliver, reproduce or in any
way allow any such trade secrets, confidential information, knowledge, data or
other information, or any documentation relating thereto, to be delivered to or
used by any third parties without specific direction or consent of a duly
authorized representative of the Company.
2. Conflicting Employment; Return of Confidential Material.
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I agree that during my employment with the Company I will not engage in any
other employment, occupation, consulting or other activity relating to the
business in which the Company is now or may hereafter become engaged, or which
would otherwise conflict with my obligations to the Company. In the event my
employment with the Company terminates for any reason whatsoever,
C - 1
I agree to promptly surrender and deliver to the Company all records, materials,
equipment, drawings, computer disks, documents and data of which I may obtain or
produce during the course of my employment, and I will not take with me any
description containing or pertaining to any confidential information, knowledge
or data of the Company which I may produce or obtain during the course of my
employment.
3. Assignment of Inventions.
------------------------
3.1 I hereby acknowledge and agree that the Company is the owner of all
Inventions. In order to protect the Company's rights to such Inventions, by
executing this Agreement I hereby irrevocably assign to the Company all my
right, title and interest in and to all Inventions to the Company.
3.2 For purposes of this Agreement, "Inventions" shall mean all
discoveries, processes, designs, methods, techniques, technologies, devices, or
improvements in any of the foregoing or other ideas, whether or not patentable
or copyrightable and whether or not reduced to practice, made or conceived by me
(whether solely or jointly with others) during the period of my employment with
the Company which relate in any manner to the actual or demonstrably anticipated
business, work, or research and development of the Company, or result from or
are suggested by any task assigned to me or any work performed by me for or on
behalf of the Company.
3.3 Any discovery, process, design, method, technique, technology, device,
or improvement in any of the foregoing or other ideas, whether or not patentable
or copyrightable and whether or not reduced to practice, made or conceived by me
(whether solely or jointly with others) which I develop entirely on my own time
not using any of the Company's equipment, supplies, facilities, or trade secret
information ("Personal Invention") is excluded from this Agreement provided such
Personal Invention (i) does not relate to the actual or demonstrably anticipated
business, research and development of the Company, and (ii) does not result,
directly or indirectly, from any work performed by me for or on behalf of the
Company.
4. Disclosure of Inventions.
------------------------
I agree that in connection with any Invention, I will promptly disclose
such Invention to the Board of Directors or the Executive Committee of the
Company in order to permit the Company to enforce its property rights to such
Invention in accordance with this Agreement. My disclosure shall be received in
confidence by the Company.
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5. Patents and Copyrights; Execution of Documents.
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5.1 Upon request, I agree to assist the Company or its nominee (at its
expense) during and at any time subsequent to my employment in every reasonable
way to obtain for its own benefit patents and copyrights for Inventions in any
and all countries. Such patents and copyrights shall be and remain the sole and
exclusive property of the Company or its nominee. I agree to perform such
lawful acts as the Company deems to be necessary to allow it to exercise all
right, title and interest in and to such patents and copyrights.
5.2 In connection with this Agreement, I agree to execute, acknowledge and
deliver to the Company or its nominee upon request and at its expense all
documents, including assignments of title, patent or copyright applications,
assignments of such applications, assignments of patents or copyrights upon
issuance, as the Company may determine necessary or desirable to protect the
Company's or its nominee's interest in Inventions, and/or to use in obtaining
patents or copyrights in any and all countries and to vest title thereto in the
Company or its nominee to any of the foregoing.
6. Maintenance of Records.
----------------------
I agree to keep and maintain adequate and current written records of all
Inventions made by me (in the form of notes, sketches, drawings and other
records as may be specified by the Company), which records shall be available to
and remain the sole property of the Company at all times.
7. Prior Inventions.
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It is understood that all Personal Inventions, if any, whether patented or
unpatented, which I made prior to my employment by the Company, are excluded
from this Agreement. To preclude any possible uncertainty, I have set forth on
Schedule A attached hereto a complete list of all of my prior Personal
Inventions, including numbers of all patents and patent applications and a brief
description of all unpatented Personal Inventions which are not the property of
a previous employer. I represent and covenant that the list is complete and
that, if no items are on the list, I have no such prior Personal Inventions. I
agree to notify the Company in writing before I make any disclosure or perform
any work on behalf of the Company which appears to threaten or conflict with
proprietary rights I claim in any Personal Invention. In the event of my
failure to give such notice, I agree that I will make no claim against the
Company with respect to any such Personal Invention.
C - 3
8. Other Obligations.
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I acknowledge that the Company from time to time may have agreements with
other persons, companies, entities, the U.S. Government or agencies thereof,
which impose obligations or restrictions on the Company regarding inventions
made during the course of work thereunder or regarding the confidential nature
of such work. I agree to be bound by all such obligations and restrictions and
to take all action necessary to discharge the Company's obligations.
9. Trade Secrets of Others.
-----------------------
I represent that my performance of all the terms of this Agreement and as
an employee of the Company does not and will not breach any agreement to keep
confidential proprietary information, knowledge or data acquired by me in
confidence or in trust prior to my employment with the Company, and I will not
disclose to the Company, or induce the Company to use, any confidential or
proprietary information or material belonging to any previous employer or
others. I agree not to enter into any agreement either written or oral in
conflict herewith.
10. Modification.
------------
I agree that any subsequent change or changes in my employment duties,
salary or compensation or, if applicable, in any Employment Agreement between
the Company and me, shall not affect the validity or scope of this Agreement.
11. Arbitration.
-----------
Any dispute concerning this Agreement including, but not limited to, its
existence, validity, interpretation, performance or non-performance, arising
before or after termination or expiration of this Agreement, shall be settled by
a single arbitrator in Philadelphia, Pennsylvania, in accordance with the
expedited procedures of the commercial rules then in effect of the American
Arbitration Association. Judgment upon any award may be entered in the highest
court, state or federal, having jurisdiction. The cost of such arbitration
shall be borne equally between the parties thereto unless otherwise determined
by such arbitration panel.
12. Binding Effect.
--------------
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective legal representatives and successors.
C - 4
13. Interpretation.
--------------
IT IS THE INTENT OF THE PARTIES THAT in case any one or more of the
provisions contained in this Agreement shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect the other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein. MOREOVER, IT IS THE INTENT OF THE
PARTIES THAT if any provision of this Agreement is or becomes or is deemed
invalid, illegal or unenforceable or in case any one or more of the provisions
contained in this Agreement shall for any reason be held to be excessively broad
as to duration, geographical scope, activity or subject, such provision shall be
construed by amending, limiting and/or reducing it to conform to applicable laws
so as to be valid and enforceable or, if it cannot be so amended without
materially altering the intention of the parties, it shall be stricken and the
remainder of this Agreement shall remain in full force and effect.
14. Waivers.
-------
No waiver of any right under this Agreement shall be deemed effective
unless contained in a writing signed by the party charged with such waiver, and
no waiver of any right arising from any breach or failure to perform shall be
deemed to be a waiver of any future such right or of any other right arising
under this Agreement.
15. Entire Agreement; Modification.
------------------------------
This Agreement constitutes the entire agreement between the parties and
supersedes any prior oral or written communications, representations,
understandings or agreements concerning the subject matter hereof with the
Company or any officer or representative thereof. This Agreement may be
amended, modified, or certain provisions waived only by a written instrument
signed by the parties hereto, upon authorization of the Company's Board of
Directors.
16. Headings.
--------
The headings of the Sections contained in this Agreement are inserted for
convenience and reference only and in no way define, limit, extend or describe
the scope of this Agreement, the intent of any provisions hereof, and shall not
be deemed to constitute a part hereof nor to affect the meaning of this
Agreement in any way.
C - 5
17. Counterparts.
------------
This Agreement may be signed in two counterparts, each of which shall be
deemed an original and both of which shall together constitute one agreement.
18. Governing Law.
-------------
This Agreement shall be governed and construed in accordance with the laws
of the Commonwealth of Pennsylvania.
19. Notices.
-------
All notices, requests, demands and communications which are or may be
required to be given hereunder shall be deemed given if and when sent by
registered or certified mail, return receipt requested, postage prepaid, to the
following addresses:
If to the Company: RYKA INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, C.E.O.
---------
With a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
The Bellevue, Sixth Floor
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Employee: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
EMPLOYEE:
4/11/97 /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
_________________ --------------------------------
DATE ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Accepted and Agreed:
RYKA INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ 4/11/97
By:________________________ ___________
DATE
C - 6
SCHEDULE A
----------
LIST OF PRIOR INVENTIONS
OF
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title Date Identifying Number or
----- ---- Brief Description
---------------------
NONE
C - 7
FROM THE C.E.O.
▇▇▇▇▇▇▇ ▇▇▇▇▇
YUKON APEX RYKA KPR SPORTS
--------------------------------------------------------------------------------
TO: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
DATE: September 5, 1997
This is to conform our conversation of last week concerning the bonus program
for both you and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
Currently, your bonus is structured so that you receive 1/2% of Ryka sales over
$25 million and Patrice's contract calls for her to receive her bonus for Ryka
sales over $30 million. We have agreed to amend both your's and Patrice's bonus
structure to take affect $3 million less than final sales figures for 1998.
Therefore, if sales are $24 million, your bonuses will take affect at $21
million, if sales are $21 million, your bonuses will take affect at $18 million.
With regards to your car allowance, you will be provided $600 per month, to be
paid directly to you, and all expenses for the car will be yours, effective
January 1, 1998.
Please sign below denoting your agreement to the above mentioned, and fax back
to me. We will amend both your's and Patrice's contract immediately upon receipt
of your signed acceptance.
Accepted by:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
