Document/Exhibit Description Pages Size
1: 10-K Annual Report for the Fiscal Year Ended 12/31/96 46 286K
2: EX-10.44 Amendment No. 1 to Employment Agreement 1 8K
3: EX-10.45 Amendment No. 1 to Employment Agreement 1 8K
4: EX-10.46 Employment Agreement Dated June 10, 1996 13 28K
5: EX-10.47 Employment Agreement Dated November 7, 1996 15 31K
6: EX-21.1 Subsidiaries of the Registrant. 1 5K
7: EX-23.1 Consent of Kpmg Peat Marwick LLP 1 6K
8: EX-27 Financial Data Schedule 1 8K
EX-10.47 — Employment Agreement Dated November 7, 1996
Exhibit Table of Contents
EXHIBIT 10.47
EMPLOYMENT AGREEMENT
I
PARTIES
This Employment Agreement (the "Agreement") is made on November 7, 1996 by
and between GT BICYCLES, INC. (hereinafter "Employer"), and CHARLES CIMITILE
(hereinafter "Employee").
II
RECITALS
2.1 Employer is engaged in the business of manufacturing, distributing and
marketing bicycles, and related parts and accessories in the specialty
Independent Bicycle Dealer (IBD) market.
2.2 Employer desires to retain the services of Employee and Employee
desires to be so engaged under the terms of this Agreement.
2.3 In consideration of the mutual promises, covenants and conditions
contained herein, the parties hereto agree as follows:
III
AGREEMENT
3.1 POSITION: Employer hereby hires Employee as Vice President of Finance
and Chief Financial Officer. The Employee's duties and responsibilities will be
as are usual and customary for
Charles Cimitile
Employment Agreement
Page 2
a CFO of a company similar in size and operations to the Employer. In addition
to the foregoing, the Employee shall be included on the Senior Management Team
and shall report directly to the CEO during the entire term as defined below.
Employee shall do and perform all services and acts necessary or advisable to
carry out Employee's duties subject always to the direct supervision and
control of the Board of Directors of Employer.
3.2 TIME AND EFFORT: Employee shall devote his entire productive time,
attention, knowledge and skill to the business and interests of Employer.
Employer shall be entitled to all the benefits and profits arising from or
incident to any and all services performed by Employee pursuant to this
Agreement.
3.3 TERM: The term ("Term") of this Agreement shall commence on
approximately December 1, 1996 and shall continue for an initial period of
three (3) years and shall thereafter automatically renew from year to year,
unless sooner terminated as provided herein.
3.4 NOTICE PROVISION: In the event Employer elects not to renew this
agreement either at the conclusion of the initial three-year period or at the
conclusion of any subsequent one-year term, written notice shall be required to
be given by Employer to Employee six months in advance of the expiration term
of this agreement with the exception in that Employer terminates Employee due
to cause. Reciprocal notice to be provided by Employee to Employer, same terms
as described above.
Charles Cimitile
Employment Agreement
Page 3
IV
COMPENSATION
4.1 MINIMUM COMPENSATION: Employer agrees to pay Employee and Employee
agrees to accept as compensation for the services and obligations set forth
herein as a Minimum Compensation the sum of $ 175,000 per annum, which sum
shall be paid to Employee by Employer in equal semi-monthly installments to be
tendered to Employee on the first and fifteenth day of each month, or at such
other intervals as may be mutually agreed by Employer and Employee. The
minimum compensation will be increased annually on the Employee's anniversary
date by at least the increase in the applicable CPI Index (for or closest to
Orange County) for the previous year.
4.2 ADDITIONAL ANNUAL COMPENSATION: Employer may, but is not obligated
to, pay Employee as Additional Annual Compensation, during each calendar year
ending during the Term of this Agreement, such sums as may annually be
determined by the Board of Directors, including bonus, regular and annual
cost-of-living increases. It is expected that employee's additional annual
compensation (AKA "bonus") will approximately be 75% of annual minimum
compensation based on achieving Employer's yearly earnings forecasts.
Charles Cimitile
Employment Agreement
Page 4
4.3 EQUITY PARTICIPATION: Upon commencement of employment or grant date,
Stock Options representing 60,000 shares will be granted. The exercise price
shall be equal to market value on the grant date and the vesting period will be
four years.
V
EMPLOYEE BENEFITS
5.1 EMPLOYER POLICY: Employee shall be eligible for all employee benefits
adopted by Employer during the Term of his Agreement, as set forth in the
Employee Manual of Employer, including profit sharing and Employee Stock
Purchase program.
5.2 BUSINESS EXPENSES: Employer will reimburse Employee for all
reasonable business expenses incurred by Employee in the performance of
Employee's duties provided that:
(a) Employee furnishes to Employer adequate records and other
documentary evidence required to substantiate such expenditures as proper
business expenses and Employee receives proper approval.
5.3 VACATION: Employee shall be eligible for 20 business days vacation
annually.
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Employment Agreement
Page 5
VI
TERMINATION
6.1 This Agreement may only be terminated for cause or death or legal
incapacity of employee.
6.2 FOR CAUSE: If Employee willfully breaches or habitually neglects the
duties to be performed by Employee under this Agreement, Employer may, at its
option, immediately terminate this Agreement for cause.
6.2.1 "Cause" means that the Employee shall have, in the judgment
of the Chairman of the Board of Directors, the Chief Executive Officer or a
majority of the Board of Directors of the Company: (i) committed a felony, or
committed an act of fraud, embezzlement or theft in connection with his duties
with the Company or in the course of employment with the Company; (ii) willfully
caused significant damage to property of the Company; (iii) been convicted of a
criminal offense (consisting of a misdemeanor involving acts of dishonesty or
moral turpitude, or a felony); (iv) engaged in the habitual and disabling use of
alcohol or drugs; (v) been absent from work for excessive periods of time
(vacation and illness excepted); (vi) breached one or more of the covenants
under this Agreement in any material respect including, without limitation,
Sections 7, 8 and 9 hereof; (vii) willfully disobeyed reasonable and lawful
directives of the Chairman of the
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Employment Agreement
Page 6
Board of Directors, the Board of Directors of the Company or the Chief
Executive Officer; or (viii) committed an act of gross negligence or willful
malfeasance.
6.3 OTHER TERMINATION: This Agreement shall terminate upon:
(a) The death or legal incapacity of Employee;
VII
NONDISCLOSURE OF INFORMATION CONCERNING BUSINESS
Employee shall not at any time, whether during or subsequent to the term of
Employee's employment, unless specifically consented to in writing by Employer,
either directly or indirectly use, divulge, disclose or communicate to any
person, firm, or corporation, in any manner whatsoever, any confidential
information concerning any matters affecting or relating to the business of
Employer, including, but not limited to the names, buying habits, or practices
of any of its customers, its marketing methods and related data, the names of
any of its vendors or suppliers, costs of materials, the prices it obtains or
has obtained or at which it sells or has sold its products or services,
manufacturing and sales costs, lists or other written records used in Employer's
business, compensation paid to employees and other terms of employment, or any
other confidential information of, about, or concerning the business of
Employer, its manner of operation, or other
Charles Cimitile
Employment Agreement
Page 7
confidential data of any kind, nature, or description, except (i) while
employed by Employer, in the business of and for the benefit of the Employer
or, (ii) when required to do so by a court of competent jurisdiction, by any
governmental agency having supervisory authority over the business of the
Employer or by any administrative or legislative body having similar authority
over the Employer or Employee. The parties hereby stipulate that as between
them, the foregoing matters are important, material, confidential, and
proprietary and affect the successful conduct of Employer's business and its
goodwill, and that any breach of any term of this paragraph is a material
breach of this Agreement. For purposes of this Agreement, "confidential
information" shall mean information not generally available to the public
(other than by Employee's breach of the terms hereof).
VIII
PROPRIETARY INTEREST AND BOOKS AND RECORDS
8.1 INVENTIONS: All inventions, improvements, ideas and disclosures
(whether or not patentable) conceived or reduced to practice (actually or
constructively) by Employee during the term of this Agreement which are directly
or indirectly related to Employer's business shall be the property of Employer.
Employee shall execute and deliver to Employer, at Employer's expense, all
Charles Cimitile
Employment Agreement
Page 8
instruments of assignment necessary to vest title to such intangible rights in
Employer, and, if requested, to execute all applications for issuance of
Letters Patent in the United States or abroad and assignments thereof.
8.2 EXCLUSIONS: This Article does not apply to any invention which
qualifies fully under the provisions of California Labor Code Section 2870, the
provisions of which are as follows:
"Any provision in an employment agreement which provides that an
employee shall assign or offer to assign any of his or her rights in
an invention to his or her employer shall not apply to an invention
for which no equipment, supplies, facility, or trade secret
information of the employer was used and which was developed entirely
on the employee's own time, and (a) which does not relate (1) to the
business of the employer or (2) to the employer's actual or
demonstrably anticipated research or development, or (b) which does
not result from any work performed by the employee for the employer.
Any provision which purports to apply to such an invention is to that
extent against the public policy of this state and is to that extent
void and unenforceable."
8.3 BOOKS AND RECORDS: All equipment, notebooks, documents, memoranda,
reports, files, samples, books, correspondence, lists, and all other written and
graphic records affecting or relating to the business of Employer which Employee
shall prepare, use, construct, observe, possess, or control shall be and remain
the sole and exclusive property of Employer.
Charles Cimitile
Employment Agreement
Page 9
In the event of termination of employment for any reason whatsoever,
whether voluntary or involuntary, Employee shall promptly deliver to Employer
all equipment, notebooks, documents, memoranda, reports, files, samples, books,
correspondence, lists, or other written or graphic records relating to the
business of Employer which are or have been in the possession of under the
control of Employee.
IX
COMPETITION
9.1 COMPETING BUSINESS:
(a) During the term of this Agreement, Employee shall not directly
or indirectly own an interest in, operate, join, control, or participate in, or
serve as an officer, director, employee of, or an independent contractor or
consultant to any proprietorship, corporation, partnership, or other entity
producing, designing, providing, soliciting orders for, selling, distributing,
or marketing products, goods, equipment, or services which directly or
indirectly compete with the products, goods, equipment and services of Employer;
provided, however, that nothing herein shall be construed to prohibit Employee
from investing in any publicly-traded or privately-held company so long as
Employee's beneficial ownership of any class of such company's securities does
Charles Cimitile
Employment Agreement
Page 10
not exceed 3.0% of all such securities. Employee is to disclose ownership of
competing business interests to Employer, if any.
(b) During the one (1) year period following termination of this
Agreement, for any reason, Employee shall not undertake any activity competitive
with the business of Employer, whether as an officer, director, employee,
independent contractor, consultant, partner, shareholder, or principal of any
corporation, partnership, proprietorship, or other entity if the loyal and
complete fulfillment of the duties of the competitive activity would require
Employee to reveal or otherwise use, any confidential business information or
trade secrets of Employer to which Employee had access.
9.2 BUSINESS PLANNING: During the term of this Agreement, Employee shall
not undertake planning for, or, organization of any business activity
competitive with the business of Employer, or combine or conspire with other
employees or representatives of Employer for the purpose of organizing any
business activity competitive with the business of Employer.
9.3 SOLICITATION OF EMPLOYEES: During the term of this Agreement and for
a one (1) year period following termination of this Agreement, for any reason,
Employee shall not directly or indirectly, or by action in concert with others,
induce or influence, or seek to induce or influence, any employee, agent,
Charles Cimitile
Employment Agreement
Page 11
independent contractor, or other business affiliate of Employer to terminate
his relationship with Employer.
9.4 SOLICITATION OF INDEPENDENT BICYCLE DEALER (IBD) CUSTOMER ACCOUNTS:
During the term of this Agreement, and for a six-month period following
termination of this Agreement, for any reason, Employee shall not, directly or
indirectly, for himself or any other person, firm or corporation, divert, take
away, call on, or solicit, any of the IBD customer accounts of Employer or its
affiliates, subsidiaries or licensees, including, but not limited to, those IBD
customer accounts which Employee called upon, solicited, or became acquainted
with while engaged as an employee of Employer.
X
REMEDIES
10.1 SCOPE OF COVENANTS: Each of the covenants of Employee contained in
this Agreement shall be construed as a separate and independent covenant
covering the respective subject matter of the covenant in each of the separate
counties and states in the United States in which Employer transacts business.
To the extent that any covenant shall be determined to be judicially
unenforceable in any one or more county or state, that covenant shall not be
Charles Cimitile
Employment Agreement
Page 12
affected with respect to every other county and state, each covenant being
construed as severable and independent.
10.2 INJUNCTIVE RELIEF: Employee acknowledges that should he violate any
of the covenants contained in this Agreement, it will be difficult to determine
the resulting damages to Employer and, in addition to any other remedies it may
have, Employer shall be entitled to temporary and permanent injunctive relief
without the necessity of proving actual damages.
XI
NOTICE
All notices, requests, demands and other communication required or
permitted to be given under the terms of this Agreement shall be in writing and
shall be deemed to have been duly given if delivered personally, given by
prepaid telegram or mailed first class, postage prepaid or by registered or
certified mail as follows:
If to Employer: GT BICYCLES, INC.
3100 W. Segerstrom Avenue
Santa Ana, CA 92704
If to Employee: CHARLES CIMITILE
10564 Maple Chase Drive
Boca Raton, FL 33498
(or current address to be
supplied by Employee)
Charles Cimitile
Employment Agreement
Page 13
XII
MISCELLANEOUS
12.1 DELEGATION OF DUTIES: Employee may not delegate the services and
obligations he is required to perform under this Agreement. The parties agree
that as between them, the services to be performed hereunder are personal and
any attempt by Employee to delegate his duties hereunder shall be null and void.
12.2 AMENDMENT: This Agreement may be modified or amended only by and to
the extent of the written agreement of Employer and Employee.
12.3 SUCCESSORS: This Agreement shall be binding upon and shall insure to
the benefit of the successors and assigns of the parties to the extent this
Agreement is assignable.
12.4 ENTIRE AGREEMENT: This Agreement contains the entire agreement of the
parties hereto and supersedes any prior written or oral agreement between them
relating to the subject matter contained herein.
12.5 GOVERNING LAW: This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
If any legal action is necessary to enforce the terms and conditions of
this Agreement, Employer and Employee agree that the
Charles Cimitile
Employment Agreement
Page 14
Superior Court of California, County of Orange, shall be the sole venue and
jurisdiction for the bringing of such action.
12.6 SECTION HEADINGS: The various section headings are inserted for
convenience of reference only and shall not affect the meaning or interpretation
of this Agreement or any section thereof.
12.7 SEVERABILITY: If any term, provision, covenant or condition of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the provisions hereof shall remain in full force
and effect and shall in no way be affected, impaired or invalidated.
12.8 ATTORNEY FEES: If any legal action is necessary to enforce the terms
and conditions of this Agreement, the prevailing party shall be entitled to
recover all costs of suit and reasonable attorney fees as determined by the
court.
12.9 COUNTERPARTS: This Agreement may be executed in one or more
counterparts which, taken together, shall constitute one agreement.
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Employment Agreement
Page 15
XIII
EXECUTION
The parties hereto have executed this Agreement, which shall be effective
as of the date first mentioned above.
EMPLOYER:
GT BICYCLES, INC.
By: __________________________________
Michael Haynes, President
EMPLOYEE:
___________________________________
Charles Cimitile
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘10-K’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 3/28/97 |
| For Period End: | | 12/31/96 | | | | | | | NTN 10K |
| | 12/1/96 | | 2 |
| | 11/7/96 | | 1 |
| List all Filings |
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