EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
September 22, 1995, by and between GRIP TECHNOLOGIES, INC., a California
corporation ("Company"), and PAUL J. HERBER, an individual ("Employee").
RECITALS
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A. The Company desires to employ Employee upon the terms and subject to
the conditions contained in this Agreement.
B. Employee desires to be hired and employed by the Company upon the terms
and subject to the conditions contained in this Agreement.
TERMS AND CONDITIONS
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NOW, THEREFORE, the parties hereto agree as follows:
1. Employment. The Company hereby employs Employee, and Employee hereby
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agrees to be employed by the Company, as the Vice President-OEM Sales on the
terms and subject to the conditions set forth herein. Employee shall perform
such duties for the Company as may be assigned to him from time to time by the
executive officers or Board of Directors of the Company. Employee agrees to
devote all of his working time and effort to the performance of his duties
hereunder during normal business hours, except for that portion of Employee's
time and effort that may be reasonably required by his contracts with Star Grip
and La Jolla Clubs, but in no event more than five (5) hours per work week and
in the event of any conflict regarding time demands, the Company shall have
first priority. Employee further agrees to perform his duties hereunder in an
efficient, faithful, loyal and business like manner and to conduct himself at
all times during the term of this Agreement in a manner which does not damage or
otherwise adversely reflect upon the business reputation or integrity of the
Company.
2. Term and Termination.
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2.1 Term. The term of this Agreement shall commence as of the date
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hereof and, subject to the earlier termination as provided in Section 2.2
hereof, shall expire at the close of business on September 22, 2000 ("Expiration
Date").
2.2 Termination. Notwithstanding the Expiration Date set forth in
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Section 2.1 hereof, the employment of Employee shall terminated upon the
occurrence of any of the following events, to be effective as of the date
hereinafter specified, and term of this Agreement shall thereupon terminate,
subject to the executory duties and obligations contained herein but in no event
shall the Company be obligated to pay or provide Employee any compensation or
other benefits beyond the date of termination:
(a) The Company may, at any time, immediately terminate Employee for
"just cause". For purposes hereof, "just cause" includes, but is not limited
to, misconduct, dishonesty, extended absences, violation of Company policies and
procedures, violation of any laws regarding or related to sexual harassment or
discrimination in connection with his work or another employee of the Company,
improper disclosure of Confidential Information (as that term is defined in
Section 8 below), or any material and continuing failure of Employee to perform
his duties under this Agreement (except as a result of death or Total
Disability). Any termination for "just cause" shall become effective
immediately upon written notice from the Company to Employee describing, in
reasonable detail, the events or circumstances allegedly constituting "just
cause".
(b) The death of Employee shall immediately terminate his employment
with the Company and this Agreement.
(c) The "Total Disability" of Employee shall terminate his employment
with the Company. For purposes of this Agreement, a condition of "Total
Disability" shall exist if Employee is unable or unwilling to perform his duties
hereunder, or it is determined by a medical doctor retained by the Company that
he would be unable to perform his duties hereunder, for a period of at least
three (3) consecutive months by reason of any medically determinable physical or
mental impairment. The termination shall be effective as of the date it is first
determined that Employee has suffered a total disability.
2.3 Severance Pay. Notwithstanding the term of this Agreement
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described in Section 2.1 above, in the event Employee's employment is terminated
by the Company prior to the Expiration Date for any reason other than for those
reasons described in Section 2.2 above, then the Company shall pay Employee
severance pay of $21,250 if the termination is within the first three (3) years
of the term, $28,333 if the termination is during the fourth year of the term,
and $35,417 if the termination is during the fifth year of the term, and all
rights of Employee under this Agreement, including any rights to additional
compensation or benefit, shall immediately terminate.
2.4 Terminable At Will Employment at Expiration of Term. The parties
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hereto agree that if this Agreement is not extended or superceded, in either
case by another written instrument, and Employee continues his employment with
the Company beyond the Expiration Date, then, from and after the Expiration Date
the employment of
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Employee shall be terminable at will at any time, with or without reason or
cause, irrespective of Employee's longevity, upon the giving of sixty (60) days
prior written notice to the other party.
2.5 No Additional Rights Conferred. Except as expressly provided in
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this Agreement, nothing contained herein or in any other agreement concurrently
or subsequently entered into between the Company and Employee, such as Stock
Option Agreement(s), shall confer upon Employee any right with respect to the
continuation of his employment by the Company or interfere in any way with the
right of the Company to terminate his employment at any time or to increase or
decrease the compensation or other perquisites payable to Employee. The
inclusion of this Section 2.5 in this Agreement is not a promise, inducement,
covenant or representation by the Company that it has agreed or will agree at
any time in the future to enter into any other or additional agreements with
Employee with respect to any matter.
3. Compensation.
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3.1 Base Salary. As compensation for his employment hereunder,
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Employee shall receive from the Company a base salary of $85,000 per annum. The
base salary shall be paid semi-monthly in accordance with the Company's usual
payroll practices. The amount actually paid to Employee shall be the base salary
less all applicable federal and state withholding taxes, F.I.C.A., unemployment
and disability premiums or payment and all other applicable payroll taxes.
3.2 Discretionary Bonuses. Employee will be eligible to receive
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discretionary bonuses, if and when determined and declared by the Company. The
inclusion of this provision in this Agreement shall not be deemed to be, nor be
construed as being, a commitment by the Company to pay Employee any bonus, or a
bonus of any specified amount, nor does it preclude the Company from paying
bonuses to some executive, management or other employees and not to others or to
Employee, as the Company, in its sole and absolute discretion, determines.
4. Additional Employment Benefits.
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4.1 Major Medical Health Program. Employee shall be entitled to
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participate in any major medical-health program or other group medical insurance
program in which the Company is enrolled at any time, or from time to time,
subject to the terms of the program or plan and any applicable waiting
probationary period and any pre-existing conditions.
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4.2 Other Employment Benefits. Employee shall be entitled to such
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other and further employment benefits and prerequisites as may be made available
from time to time by the Company to other employees of the Company with similar
jobs and responsibilities.
5. Reimbursement for Expenses. The Company shall reimburse Employee for
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his ordinary and necessary business expenses incurred with respect to the
business of the Company in accordance with policies and procedures adopted by
the Company from time to time. Under no circumstance will Employee be entitled
to reimbursement of any expense unless and until he submits complete and
accurate substantiation of that expense, together with a detailed explanation of
the nature and purpose of the expense and the person or persons involved.
6. Employees Manual. To the extent the Company has or at any time
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hereafter adopts an Employees Manual, or modifies its Employees Manual from time
to time, the provisions of the Employees Manual, as so modified, are
incorporated herein and made a part of this Agreement and Employee hereby agrees
to be bound by and to comply with all of the terms, conditions, rules and
regulations set forth therein.
7. Tax Compliance Matters. The parties hereto agree that it shall be the
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responsibility of Employee to keep all appropriate records with respect to any
business related expenses incurred by Employee in connection with the
performance of his duties hereunder including the automobile allowance. It shall
be further understood and agreed that the Company, to the extent required by
applicable law, will report the payment or providing of any benefits or
perquisites to Employee in accordance with applicable laws and regulations and,
if required, will make appropriate payroll deductions with respect thereto. It
will be Employee's sole responsibility to report such benefits and perquisites,
to the extent applicable, as income. To the extent that Employee has not
accounted to the Company for any benefits or perquisites to enable the Company
to determine whether or not reporting or payroll deductions are appropriate, and
the Company later determines that reporting or deduction was appropriate, then
Employee agrees to indemnify and hold the Company harmless from and with respect
to any liability which the Company incurs in connection therewith, including,
without limitation, the tax-affected amount of the deduction and all penalties
and interest with respect thereto.
8. Covenant of Nondisclosure and Non-use. Employee understands and
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acknowledges that he will be advised by the Company from time to time of certain
matters, and will be provided access to certain documents and information, which
are trade secrets or which the Company deems to be proprietary and confidential
("Confidential Information"), whether heretofore or hereafter obtained by
Employee while providing services to the Company, and whether or not Employee
assists the Company in the development of any such Confidential Information.
Employee agrees to maintain the
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confidentiality of any Confidential Information provided to him in connection
with the performance of his duties under this Agreement; provided, however, such
obligation shall terminate upon the occurrence of any of the following: (a)
where such information now or hereafter becomes part of the public domain, and
Employee has not obtained or learned such information as a result of
"misappropriation" or "improper means", as those terms are defined in California
Civil Code Section 3426.1; (b) such information is already in the possession of
Employee at the time of the disclosure so long as it was acquired otherwise than
by "misappropriation" or "improper means"; (c) such information hereafter comes
into the possession of Employee from a third party without breach of this
covenant; or (d) such information is independently developed by Employee without
otherwise violating this Agreement. Notwithstanding any of the foregoing, under
no circumstance will Employee use or disclose any ideas, concepts, themes,
inventions, designs, improvements and discoveries conceived, developed or
written by him pursuant to this Agreement or in connection with this Agreement;
all rights to which shall belong to the Company.
8.1 Return of Materials. Employee further agrees that at the
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termination of this Agreement, he will not take, without the prior written
consent of the Company, tangible manifestations of the Confidential Information
on any memoranda, notes (whether or not prepared by Employee during the course
of his engagement by the Company), extracts, summaries, plats, sketches, plans,
data, lists, manuals, schedules, forms, programs, tapes, disks or other
documents, papers, media or records of any kind relating to or used in the
Company's business, or any reproductions thereof.
8.2 Unfair Competition. Any violation of this Section 8 shall be
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deemed to be unfair competition, in addition to any other rights or remedies
which the Company may have against Employee.
9. Nonsolicitation of Customers, Etc. The Company recognizes that
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Employee may sell Star Grips to the customers listed on Exhibit A. Nonetheless,
Employee will not influence or attempt to influence any of Company's customers,
suppliers, vendors, lessees or any others having business with the Company,
either directly or indirectly, to divert their business to any other person,
firm or business similar to or in competition with the Company.
10. Organizing Competitive Business. Employee agrees that during the term
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of this Agreement, Employee will not undertake the planning or organization of
any business activity similar to or competitive with the business of the
Company. Employee further agrees that he will not, for a period of two (2)
years following the termination of this Agreement, either directly or
indirectly, solicit any of the Company's employees to work for or with Employee,
or its affiliates, or any other corporation, entity or individual, in a business
similar to or competitive with the Company or to work for a competitor of the
Company.
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11. Notices. All notices, requests, demands and other communications
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required or contemplated hereunder shall be in writing, shall be personally
delivered or sent by registered or certified mail, postage prepaid, return
receipt requested, and shall be deemed to have been given upon the earlier of
(a) the date of personal delivery to the person to receive such notice at the
address indicated below or (b) if mailed to the person to receive such notice at
the address indicated below, four (4) business days after the date of posting by
the United States Post Office as evidenced by the execution of the return
receipt. The parties addresses, for all purposes hereof, are as follows:
Company: Grip Technologies, Inc.
1681 McGaw
Irvine, California 92714
Employee: Paul J. Herber
20668 White Birch Drive
Vista, California 92803
Notice of change of address shall be given by written notice but shall not be
deemed effective until it has been given in the manner detailed in this Section.
12. Applicable Law; Venue. This Agreement shall be governed by,
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interpreted under, and construed and enforced in accordance with the internal
laws, and not the laws pertaining to conflicts or choice of laws, of the State
of California applicable to agreements made and to be performed wholly within
the State of California. The sole forum for resolving disputes arising under or
relating to this Agreement shall be the Municipal and Superior Courts for the
County of Orange, California, or the Federal District Court for the Central
District of California and all related appellate courts, and the parties hereby
consent to the jurisdiction of such courts and agree that venue shall be in
Orange County, California.
13. Attorneys' Fees and Litigation Costs. If any suit, legal proceeding
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or other action is brought for the enforcement of this Agreement, or because of
an alleged dispute, breach, default or misrepresentation in connection with any
of the provisions of this Agreement, the successful or prevailing party shall be
entitled to recover its or his reasonable attorneys' fees and other costs
incurred in such proceeding or action, in addition to any other relief to which
it or he may be entitled.
14. Waivers. No waiver of any breach or default hereunder, or of any
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condition precedent to the performance of any obligation hereunder, shall be
considered valid unless in writing and signed by the parties giving such waiver
or against whom such waive is to be enforced, and no such waiver shall be deemed
a waiver of any subsequent breach or default of the same or similar nature.
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15. Partial Invalidity and Severability. If any provision of this
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Agreement shall be held or deemed to be, or shall, in fact, be inoperative or
unenforceable as applied in any particular case because if conflicts with any
other provision or provisions hereof or any constitution or statute or rule of
public policy, or for any other reason, such circumstances shall not have the
effect of rendering the provision in question inoperative or unenforceable in
any other case or circumstance, or of rendering any other provision or
provisions herein contained invalid, inoperative or unenforceable to any extent
whatsoever. The invalidity of any one or more phrases, sentences, clauses,
sections or subsections of this Agreement shall not affect the remaining
portions thereof.
16. Interpretation. The parties hereto acknowledge and agree that each
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has been given the opportunity to independently review this Agreement with legal
counsel, and has the requisite experience and sophistication to understand,
interpret and agree to the particular language of the provisions hereof. In the
event of any ambiguity in or dispute regarding the interpretation of this
Agreement, or any provision hereof, the interpretation of this Agreement shall
not be resolved by any rule providing for interpretation against the party who
causes the uncertainty to exist or against the party who is the draftsman of
this Agreement.
17. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
18. Entire Agreement; Amendment. This Agreement contains the entire
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understanding between the parties hereto with respect to the subject matter
hereof and supersedes any and all prior or contemporaneous written or oral
negotiations or agreements between them regarding the subject matter hereof. No
addition, modification or amendment of or to any term or provision of this
Agreement, or to this Agreement as a whole, shall be effective unless set forth
in writing and signed by all the parties hereto.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above mentioned.
GRIP TECHNOLOGIES, INC., a
California corporation
By:
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Sam G. Lindsay PAUL J. HERBER
President
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