Exhibit 10.2
6
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of November 18, 2005, between
Xxxx X. Xxxxxxx Company (the "Company") and Xxxxxxx X. Xxxxxxxxx
("Employee").
In consideration of the Company's employment of Employee and the mutual
terms and conditions set forth below, the Company and Employee, intending to be
legally bound, hereby agree as follows:
Section 1. Employment. Subject to the terms and conditions contained
herein, the Company hereby employs Employee as President of its Xxxxxxx Printed
Products unit (the "Division") and charges Employee with the performance of such
duties as the Company may designate from time to time. Employee hereby accepts
such employment and agrees to devote his full business time, attention, skill
and effort exclusively to the performance of his duties hereunder. While
employed by the Company, Employee shall not engage in any activities or render
any services of a business or commercial nature for anyone other than the
Company that would directly or indirectly conflict with the Company's business
or that would in any way affect Employee's work performance.
Section 2. Compensation.
2.1 Salary and Bonus. For the services rendered by Employee hereunder,
the Company shall pay Employee a salary as may be fixed from time to time,
payable in accordance with the Company's normal practice. Employee shall also
participate in the Company's Senior Management Incentive Plan.
2.2 Stock Incentives. Employee shall be eligible for long-term stock
incentives as fixed from time to time by the Governance Committee.
2.3 Certain Additional Benefits. Employee may participate in any other
incentive programs of the Company, to the extent Employee may be eligible in
accordance with the terms thereof as fixed by the Company in its sole discretion
from time to time. Employee shall be entitled to paid vacation in accordance
with the general policies of the Company and such other employee benefits (such
as group health and life insurance) as the Company in its sole discretion may
establish from time to time.
Section 3. Term of Employment.
3.1 Duration. This Agreement shall become effective upon execution.
Unless and until terminated under Section 3.2 below, Employee's employment shall
continue in full force and effect as provided herein.
3.2 Termination of Employment.
(a) Voluntary Termination. Either the Company or Employee may terminate
Employee's employment at any time by giving the other party at least fifteen
(15) days' prior written notice of the date of termination.
(b) Termination by Company for Good Cause. The Company may terminate
Employee's employment at any time, without the necessity of notice of any kind,
for Good Cause. For the purposes of this Agreement, Good Cause shall exist if
the Company reasonably determines that any of the following events has occurred:
(i) Employee's breach of any provision of this Agreement; (ii) Employee's
conviction of a crime or commission of an act of dishonesty or moral turpitude;
(iii) the gross or willful misconduct or negligence by Employee in the
performance of his responsibilities hereunder; or (iv) any act or event that is
identified as cause for termination of employment according to the Company's
personnel manual as amended in the sole discretion of the Company from time to
time.
(c) Involuntary Termination by Company. In the event of any involuntary
termination of employment of Employee by the Company, other than termination for
Good Cause, Employee shall be entitled to receive, in a lump sum within ten
business days after the effective date of such termination, an amount equal to
the base salary (less applicable withholding taxes) to which Employee would have
been entitled for the next twelve months. Any reduction in Employee's base
compensation or a material reduction or adverse change in his duties and
responsibilities, or any change in his work which involves a relocation of his
principal place of employment by more than 50 miles, shall be treated as a
termination of employment by the Company under this paragraph unless (i)
Employee consents in writing to such reduction or change, or (ii) the Company
can demonstrate by clear and convincing evidence that such reduction or change
was based primarily on Employee's failure to reasonably perform his duties and
responsibilities under the circumstances and, further, that such reduction or
change was made only after the Company had provided Employee with written notice
of such failure and a reasonable period of time to correct such failure.
(d) Termination after Change in Control. In the event that, at any time
within two years after a Change in Control of the Company or the Division shall
have occurred, Employee's employment is terminated by the Company or the
Division or its successor for any reason other than for Good Cause, then (i) the
Company or its successor shall pay to Employee, in a lump sum at the time of
such termination, an amount equal to three times his base salary at such time
(less applicable withholding taxes) and (ii) the covenant not to compete of
Employee contained in Section 7.2 hereof shall no longer be applicable. For
purposes of this Agreement, a Change in Control shall be deemed to have occurred
(i) upon the sale by the Company of all or substantially all of its assets or
the assets of the Division, the consolidation of the Company or the Division
with another person, or the merger of the Company or the Division with any
person as a result of which merger the Company or the Division is not the
surviving entity, or (ii) if beneficial ownership of more than 50% of the common
stock of the Company is held by any person or entity. "Beneficial Ownership"
shall have the meaning provided in Rule 13d-3 under the Securities Exchange Act
of 1934.
Section 4. Confidentiality.
4.1 Responsibility and Trust. The Company and Employee mutually agree
and acknowledge that Employee shall occupy a position of responsibility and
trust and, by virtue of such position, the Company may entrust Employee with
highly sensitive confidential, restricted and proprietary information concerning
various Trade Secrets and Confidential Information as defined below.
4.2 Definitions. For the purposes of this Agreement, the following
definitions shall apply:
(a) "Trade Secret" shall mean the whole or any portion or phase of any
scientific or technical information, design, process, procedure, formula or
improvement that is secret or of value and that the Company and/or the Division
has taken measures to prevent from becoming available to unauthorized persons.
2
To the fullest extent consistent with the foregoing and otherwise lawful, Trade
Secrets shall include, without limitation, the specialized information and
technology developed by the Company and/or the Division to develop and/or
publish software products, including source code.
(b) "Confidential Information" shall mean the whole or any portion or
phase of any data or information, other than Trade Secrets, that is material to
the Company or the Division and not generally known by the public. To the
fullest extent consistent with the foregoing and otherwise lawful, Confidential
Information of the Company or the Division shall include, without limitation,
(i) its respective sales records, profit and performance reports, pricing
manuals, sales manuals, training manuals, selling and pricing procedures, and
financing methods; (ii) the identities of its respective customers, their
special demands, and their current and anticipated requirements for its
respective products; (iii) the capabilities and specifications of its respective
products, product development, product formulas, functionality or application of
products; (iv) its respective business plans and financial statements and
projections; and (v) the special products, programs and services the Company or
the Division may offer or provide from time to time to its customers.
4.3 Nondisclosure of Trade Secrets. Employee shall not, without the
prior written consent of the Company, during Employee's employment with the
Company and for so long thereafter as the information or data remain Trade
Secrets, use or disclose, or permit any unauthorized person to use, disclose, or
gain access to, any Trade Secrets of the Company the Division.
4.4 Nondisclosure of Confidential Information. Employee shall not,
without the prior written consent of the Company, during Employee's employment
with the Company and for a period of two years thereafter, use or disclose, or
permit any unauthorized person to use, disclose or gain access to, any
Confidential Information to which the Employee obtained access by virtue of
Employee's employment with the Company.
Section 5. Company's Ownership of Work Product.
5.1 Work Product. Employee acknowledges and agrees that the Company
shall own all of his Work Product. For purposes of this Agreement, "Work
Product" shall mean all intellectual property rights, including all Trade
Secrets, U.S. and international copyrights, patentable inventions, discoveries
and improvements, and other intellectual property rights, in any programming,
documentation, technology or other work that relates to the business and
interests of the Company or the Division that Employee conceives, develops or
delivers to the Company or the Division at any time during the term of his
employment. All Work Product shall be considered work made for hire (as that
term is defined in the United States Copyright Act, 17 U.S.C., Section 101) by
Employee and owned by the Company. All work produced during Employee's
employment with the Company shall be the Company's property unless otherwise
agreed to in writing in advance by the Company.
5.2 Assignment of Work Product. If any of the Work Product may not, by
operation of law, be considered work made for hire by Employee for the Company
or if ownership of all right, title and interest of the intellectual property
rights therein shall not otherwise vest exclusively in the Company, Employee
agrees to assign, without further consideration, the ownership of all U.S. and
international copyrights, patentable inventions and other intellectual property
rights therein to the Company. The Company shall have the right to obtain and
hold in its own name copyrights, registrations, and any other protection
available in the foregoing. Employee agrees to perform, upon the reasonable
request of the Company, during or after his employment, such further acts as may
be necessary or desirable to transfer, perfect, and/or defend the Company's
ownership of the Work Product. Employee agrees upon request to execute any
3
documents of assignment and conveyance; obtain and aid in the enforcement of
copyrights and patents with respect to the Work Product in any country; provide
testimony in connection with any proceeding affecting the right, title or
interest of the Company in any Work Product; and perform any other acts deemed
necessary or desirable to carry out the purposes of this Agreement. The Company
agrees to reimburse all reasonable out-of-pocket expenses incurred in connection
with the foregoing.
Section 6. Materials and Equipment.
6.1 Company Materials. Employee agrees that all files, memoranda,
notes, records, price lists, customer lists, drawings, manuals or other
documents, whether made or compiled by Employee or furnished to Employee from
any source by virtue of Employee's employment with the Company, are the sole
property of the Company. Upon the request of the Company and, in any event,
within five business days of the termination of Employee's employment with the
Company, Employee shall deliver to the Company all such documents and materials.
6.2 Equipment. Employee acknowledges that during the course of his
employment with the Company Employee may be assigned valuable equipment provided
for business use. Upon the request of the Company and, in any event, within five
business days of the termination of Employee's employment with the Company,
Employee shall deliver to the Company all such equipment in good condition.
Employee further agrees that Employee shall be personally responsible for the
cost of replacing any equipment that is lost, stolen or damaged as a result of
Employee's negligence or recklessness in the use, care or transportation of such
equipment.
Section 7. Restraints on Post-Termination Activities.
7.1 Factual Background. The Company will invest considerable time,
effort and capital in enhancing the value and desirability of Employee's skills
and services. Both this investment by the Company and Employee's compensation
hereunder reflect the Company's expectation of receiving a considerable return
from the exclusive use of Employee's expertise in the future, free of any danger
that competitors of the Company or the Division may usurp Employee's special
abilities prematurely. In addition, by virtue of Employee's employment with the
Company in a position of confidence and trust, Employee may obtain access from
time to time to Trade Secrets and Confidential Information, which could prove
difficult to isolate from Employee's business activities and to protect from
possible misuse in the event that Employee's employment with the Company has
ended.
7.2 Covenant Not to Compete. For a period of two years after
termination of Employee's employment for any reason, Employee shall not compete
with the Company or the Division, either directly or indirectly, on Employee's
own behalf or in the service of or on behalf of others who compete with the
Company or the Division, by performing any of the same or substantially similar
duties Employee performed for the Company or the Division during the last 12
months of Employee's employment with the Company or the Division.
7.3 Covenant Not to Solicit. Employee shall not, for a period of two
years after termination of Employee's employment for any reason, either directly
or indirectly, on Employee's own behalf or in the service of or on behalf of
others, take any action to solicit, divert, contact or call upon any person or
entity for the purpose of or with a view toward providing, rendering or
performing, through Employee or others, services similar to those provided to
such person or entity by the Company or the Division during the last 12 months
of Employee's employment by the Company.
4
7.4. Covenant Not to Interfere with Personnel Relations. Employee shall
not, during Employee's employment with the Company and for a period of two years
thereafter, directly or indirectly solicit, entice, encourage or persuade any
employee of the Company or the Division to leave the services of the Company or
the Division for any reason.
Section 8. Arbitration. If a legally cognizable dispute arises out of
or relates to this Agreement or the breach, termination or validity thereof, or
the compensation, promotion, demotion, discipline, discharge or terms and
conditions of employment of the Employee, if said dispute cannot be resolved
through direct discussions, the parties voluntarily agree to settle the dispute
by binding arbitration before the American Arbitration Association ("AAA") in
Atlanta, Georgia. The arbitration shall proceed in accordance with the
Employment Dispute Resolution Rules of the AAA in effect on the date of the
demand for arbitration, and judgment upon the award rendered by the arbitrator
may be entered in any court having jurisdiction thereof; provided, however, that
this Section shall not generally apply to claims or disputes involving the
breach or alleged breach by Employee of any of the covenants or obligations set
forth in Sections 4 and/or 7 of this Agreement, except that disputes involving
the unauthorized use or disclosure of Trade Secrets or Confidential Information,
or involving or concerning unfair competition or the noncompete provisions of
this Agreement, may, at the Company's discretion, be settled by any court having
jurisdiction thereof or decided by arbitration pursuant to this section.
Disputes subject to binding arbitration pursuant to this section include all
tort and contract claims as well as claims brought under all applicable federal,
state or local statutes, laws, regulations or ordinances including, but not
limited to, Title VII of the Civil Rights Act of 1964, as amended; the Family
and Medical Leave Act; the Americans with Disabilities Act; the Rehabilitation
Act of 1973, as amended; the Fair Labor Standards Act of 1938, as amended; the
Age Discrimination in Employment Act, as amended; the Equal Pay Act; and the
Employee Retirement Income Security Act of 1974. Disputes subject to binding
arbitration pursuant to this section also include claims against the Division or
any other Company subsidiaries, affiliated and successor companies, agents and
employees. Each party shall pay for its own fees and expenses of arbitration
except that the cost of the arbitrator and any filing fee exceeding the
applicable filing fee in federal court shall be paid by the Company; provided,
however, that all reasonable costs and fees necessarily incurred by any party
are subject to reimbursement from the other party at the discretion of the
arbitrator. This arbitration provision shall not apply to any claim arising in a
state that bars or prohibits the arbitration of such claims.
Section 9. Severability and Survival. Employee agrees that the
covenants contained in this Agreement shall be construed independent of one
another, distinct from the remaining terms and conditions of this Agreement, and
severable from every other contract and course of business between the Company
and Employee. Employee agrees that the covenants contained in this Agreement
shall survive any termination of employment, with or without cause, at the
instigation or upon the initiative of either party. Employee further
acknowledges and agrees that determining damages in the event of Employee's
breach of any covenant contained in this Agreement would be difficult, if at all
possible. Employee therefore agrees that the Company (in addition to any other
remedy or right which the Company might have) shall have the right to have a
court of competent jurisdiction enjoin Employee from committing any such breach.
Employee hereby waives any defense in such a case that the Company has, or will
then have, an adequate remedy by law.
Section 10. Notice. All notices provided for herein shall be made in
writing and shall be deemed to be given when (i) delivered in person, or (ii)
deposited in United States Mail, first-class with proper postage prepaid and
addressed as appears below the parties' signatures herein, or (iii) sent to
Employee (if Employee is still employed by the Company) through the Company's
inter-office delivery service.
5
Section 11. Miscellaneous. This Agreement shall inure to the benefit
of, and be binding upon, the Company, its successors and assigns, and the
Employee, Employee's executor, administrator, heirs and personal
representatives. This Agreement comprises the entire agreement between the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements, undertakings, covenants or conditions with respect thereto. No
amendment, waiver or delay in enforcing any provision of this Agreement shall be
enforceable unless it is in writing and signed by Employee and the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
XXXX X. XXXXXXX COMPANY s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxxx
By: s/ Xxxxxxx X. Xxxx Address: 0000 Xxxxxxxxx Xxxxxx
-----------------------------------
Xxxxxxx, XX 00000
Title: President
Address: 0000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
(CORPORATE SEAL)
Attest: s/ Xxxx X. Xxxxxxx
--------------------------------------------
Corporate Secretary
6
