Exhibit 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into effective
as of the 1st day of May 2003 by and between Xxxxx Business
Forms, Inc. ("Ennis" or "Company"), a Texas Company, and Xxxxx X.
Xxxxxxx ("Employee").
WHEREAS, Ennis desires to continue to have the benefits of
Employee's knowledge and experience as a full-time senior
executive without distraction by employment-related uncertainties
and considers such employment a vital element to protecting and
enhancing the best interests of Xxxxx, and its subsidiaries and
shareholders, and Employee desires to continue to be employed
full time with Xxxxx; and
WHEREAS, Xxxxx and Employee desire to enter into an
agreement reflecting the terms under which Employee will be
employed by Xxxxx for a minimum three (3) year period commencing
on the Effective Date (subject to the provision of Sections 5, 6
and 7 below);
NOW, THEREFORE, in consideration of the mutual covenants set
forth herein and other good and valuable consideration, the
parties agree as follows:
1. Term. Xxxxx hereby agrees to employ Employee for a
minimum three-year period commencing on May 1, 2003 (the
"Effective Date") and ending on the third anniversary thereof,
unless sooner terminated as provided in Sections 5 and 6 or
unless extended by the mutual consent of the parties prior to the
end of the term. The term of Employee's employment with Xxxxx
herein shall be automatically extended at each anniversary date
for an additional one-year period beyond the initial minimum
three-year period or, if sooner, until the earlier of Employee's
attainment of age 65 or when Employee begins to receive
distribution of benefits from a retirement plan sponsored by
Xxxxx, unless either party hereto delivers to the other party a
written notice of its or his election to terminate such
employment as of any such third-year anniversary not less than 60
days prior to any anniversary date.
2. Duties. Employee shall serve as the Chairman & Chief
Executive Officer of Xxxxx, shall exercise the authority and
assume the responsibilities of a chief executive officer of a
Company of the size and nature of Xxxxx, and shall assume such
other duties as the Board of Directors of Xxxxx may prescribe
consistent with duties of a chief executive officer of a company
of such size as Xxxxx including without limitation such positions
and duties with Xxxxx' subsidiaries as assigned by the Board of
Directors of Xxxxx. Employee agrees to devote substantially all
his full time, attention and best efforts to the performance of
his duties. The Company may from time to time designate Employee
as an officer of any current or future subsidiary and, in such
event, shall use its best efforts to fairly allocate Employee's
compensation among itself and such subsidiary or subsidiaries
either through multiple direct payroll checks to Employee or by
inter-Company reimbursements, in any case consistent with any
applicable regulations or regulatory policies.
3. Compensation. Xxxxx shall compensate Employee for the
services rendered under this Agreement as follows:
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(a) A base annual salary determined by the Board of
Directors of Xxxxx consistent with its practices for executive
officers of Xxxxx, but not less than $600,000 per year, payable
in equal bi-weekly installments (less applicable withholding) in
accordance with the customary payroll practices of Xxxxx for the
payment of executive officers.
(b) If Employee's base annual salary is increased at
any time, it shall not thereafter be decreased during the term of
this Agreement, unless such decrease is the result of a general
reduction affecting the base salaries of substantially all other
executive officers of Xxxxx.
(c) Such bonuses under the Executive Annual Incentive
Plan or subsequent plan, if any, as shall be determined by the
Board of Directors of Xxxxx consistent with its practices for
executive officers of Xxxxx.
(d) The Board of Directors may from time to time grant
stock options or other forms of long-term incentive compensation
arrangements to the Employee. The privilege to participate in
these grants is at the discretion of the Board of Directors and
the stipulations regarding the granting of these awards and their
exercise by the Employee will be defined in the Long-Term
Incentive Plan or in other plans or actions of the Board of
Directors.
(e) Employee shall be entitled to reimbursement of
reasonable out of pocket expenses relating to Xxxxx business in
accordance with policies in effect for executive officers
generally.
(f) Employee shall not be entitled to directors fees
for his service on any Board of Directors for Xxxxx or any of its
subsidiaries.
4. Employee Benefits.
(a) Employee shall be entitled to full participation,
on a basis commensurate with his position with Xxxxx, in all
plans of life, accident, medical payment, health and disability
insurance, stock option, restricted stock, stock ownership,
retirement, pension, supplemental life and retirement plans,
nonqualified deferred compensation plan, perquisites and other
employee benefit and pension plans which generally are made
available to executive officers of Xxxxx or its principal
subsidiaries, except for such plans which the Board of Directors,
in its sole discretion, shall adopt for select employees to
compensate them for special or extenuating circumstances. If
Employee becomes totally disabled, in the determination of the
Board of Directors, the Company will continue to pay the
installments of Employee's base annual salary, as described in
Section 3(a) hereof, in effect at the time of disability, for a
period of six (6) months after the occurrence of the event of
disability.
(b) Employee shall be entitled to an annual vacation
leave at full pay as may be provided for by Xxxxx' vacation
policies applicable to executive officers, but in any event such
paid
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vacation shall not be less than four weeks in the aggregate.
Employee may carry over no more than one week of accrued vacation
to the next year.
(c) Employee shall be entitled to an annual car
allowance of $10,000.
(d) Nothing in this Agreement shall limit in any way
Employee's participation in any other benefit plans or
arrangements as are from time to time approved by Xxxxx.
5. Termination by Xxxxx. Except for a termination
pursuant to Section 1, upon the expiration of the scheduled
initial or any other term of this Agreement, Employee's
employment hereunder may be terminated by Xxxxx without any
breach of this Agreement only under the following circumstances:
(a) Death, Total Disability or Retirement. Employee's
employment shall terminate upon his death or retirement. If, as
a result of his incapacity resulting from physical or mental
illness or disease which is likely to be permanent, Employee
shall have been unable to perform his duties hereunder for a
period of more than 120 consecutive days during any twelve-month
period, Xxxxx may terminate his employment hereunder. The Board
of Directors will determine if the Employee's termination is due
to total and permanent disability, according to any long-term
disability plan then in effect for senior executives of Xxxxx and
otherwise in good faith consistent with generally prevailing
practices of employers.
(b) Cause. Xxxxx may terminate Employee's employment
hereunder for cause, which for purposes of this Agreement shall
be defined to mean (i) the willful and continued failure by
Employee to follow the reasonable instructions of the Board of
Directors of Xxxxx which is not cured within ten (10) days of
receipt by Employee of written notice from the Company specifying
such failure, (ii) the willful commission by Employee of acts
that are dishonest or inconsistent with local normal standards
and demonstrably and materially injurious to Xxxxx or its
subsidiaries, monetarily or otherwise, (iii) the commission by
Employee of a felonious act, (iv) ongoing alcohol/drug addiction
and a failure by Employee to successfully complete a recovery
program, (v) intentional wrongful disclosure of confidential
information of the Company, (vi) intentional wrongful engagement
in any competitive activity, or (vii) gross neglect of his duties
by Employee which is not cured within ten (10) days of employee's
receipt of written notice from the Company specifying such
failure, or in the event the failure is not curable within the
ten (10)-day period, Employee shall have a longer period of up to
thirty (30) days to cure the failure so long as he is diligently
pursuing a cure.
(c) Termination Without Cause. The termination of
Employee's employment by Xxxxx for any reasons other than those
specified above shall be deemed to be a Termination Without
Cause. No breach or default by Employee shall be deemed to have
occurred hereunder unless written notice thereof shall have been
given by Xxxxx to Employee.
6. Termination by Employee. Employee shall be entitled to
terminate his employment (i) in the event a Change of Control (as
defined in Section 7(c) below) occurs after
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the Effective Date, (ii) for Good Reason or (iii) pursuant to the
provisions contained in Section 1 hereof. Termination for "Good
Reason" is defined as Employee's resignation except in connection
with his termination pursuant to Section 5, caused by and within
ninety (90) days of the following:
(a) Without the express written consent of Employee,
any duties that are assigned which are materially inconsistent
with Employee's position, duties and status with Xxxxx as
contemplated by this Agreement;
(b) Any action by Xxxxx which results in a material
diminution in the position, duties or status of Employee with
Xxxxx as contemplated by this Agreement or any transfer or
proposed transfer of Employee for any extended period to a
location outside Dallas County, Texas without his consent, except
for strategic reallocations of the personnel reporting to
Employee;
(c) The base annual salary of Employee, as the same
may hereafter be increased from time to time, is reduced;
(d) Without limiting the generality or effect of the
foregoing, Xxxxx fails to materially comply with any of its
obligations hereunder; or
(e) Termination by Employee of his employment with
Xxxxx pursuant to clause (i) or (ii) of the first sentence of
this Section 6 shall be deemed to be termination of Employee's
employment by Xxxxx without cause.
7. Severance Payment after Change of Control.
(a) If a Change of Control (as defined in subsection
(c) below) shall occur, in addition to any compensation due to
Employee pursuant to Section 3(b) above, Employee shall be
entitled to the lump sum severance payment provided in subsection
(b) below upon any termination (including voluntary termination)
of his employment within 90 days prior to and two (2) years after
then Change of Control, unless such termination is the result of
action taken by Xxxxx for cause as defined in Section 5 above.
(b) The lump sum severance payment payable to Employee
under subsection (a) above shall be equal to the lesser of (i)
2.99 times the Employee's "Base Amount" as defined in Section
280G of the Internal Revenue Code of 1986, as amended, and a
severance bonus equivalent to 2.99 times the bonus earned or paid
for the previous fiscal year pursuant to Section 3 (a) and 3 (b),
and, (ii) the maximum amount of severance payment which is
permitted to be deducted as compensation expense by the Company
and to be received by the Employee without liability for the
assessment of an excise tax on such payment under the applicable
provisions of the Internal Revenue Code. In the event of any
disagreement between the parties regarding the determination of
the amount indicated by clause (i) or (ii) above, the legal
opinion of Xxxxx' outside general counsel shall be deemed
conclusive. This severance payment shall be made
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immediately and shall not be discounted by reason of the fact
that the time of payment is accelerated in advance of the
ordinary course of payments under this Agreement.
(c) If a Change of Control (as defined in Subsection
(d) below) shall occur, Employee shall have immediate vesting of
all stock options and other long-term incentive awards granted to
Employee and full vesting in all other employee benefit plans and
compensation plans.
(d) For the purposes of this Agreement, a "Change of
Control" of Xxxxx shall be deemed to have taken place if one or
more of the following occurs:
(i) Any person or entity other, as that term is
used in Section 13(d) and 14(d)(2) of the Securities Exchange Act
of 1934, (other than a qualified benefit plan of Xxxxx or an
affiliate of Xxxxx) becomes or is discovered to be a beneficial
owner (as defined in Rule 13d-3 under the Exchange Act as in
effect on the date hereof) directly or indirectly of securities
of Xxxxx representing 30% or more of the combined voting power of
Xxxxx' then outstanding securities (unless such person is known
by Employee to be already such beneficial owner on the date of
this Agreement);
(ii) Individuals who, as of the Effective Date
hereof, constitute the Board of Directors of Ennis cease for any
reason to constitute at least a majority of the respective Board
of Directors, unless any such change is approved by a unanimous
vote of the respective Board of Directors in office immediately
prior to such cessation;
(iii) The Company or any of its affiliates shall
(in a single transaction or a series or related transactions)
issue shares, sell or purchase assets, engage in a merger or
engage in any other transaction immediately after which
securities of the Company representing 50% or more of the
combined voting power of the then outstanding securities of the
Company shall be ultimately owned by person(s) who shall not have
owned such securities prior to such transaction or who shall be a
party to such transaction;
(iv) The Company and its affiliates shall sell or
dispose of (in a single transaction or series of related
transactions) business operations which generated a majority of
the consolidated revenues (determined on the basis of Xxxxx' four
most recently completed fiscal quarters for which reports have
been filed under the Exchange Act) of Xxxxx and its subsidiaries
immediately prior thereto;
(v) The Company's Board of Directors shall
approve the distribution to the Company's shareholders of all or
substantially all of Xxxxx' net assets or shall approve the
dissolution of the Company;
(vi) Any other transaction or series of related
transactions occur which have substantially the effect of the
transactions specified in any of the preceding clauses in this
sentence; or
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(vii) Employee is terminated by the Company
without cause within the period of 90 days before an occurrence
of or anticipation of a Change of Control as defined in Section
7(c) or the execution of a contract intended to effect a Change
of Control.
(e) If Employee's employment is not terminated during
the two year period provided for in Section 7(a), then the rights
and obligations of the parties for the balance of the term of
this Agreement shall be governed by this Agreement exclusive of
the provisions contained in this Section 7 except Section 7 shall
continue and become applicable for the term of this Agreement if
a subsequent Change of Control occurs.
8. Other Severance Benefits.
(a) Notwithstanding the minimum term provided for in
Section 1 of this Agreement, either the Company or Employee may
terminate this Agreement at any time upon 30 days notice to the
other party, subject to the rights of Employee to any payment due
under this Agreement in that circumstance. If at any time during
the term of this Agreement, Employee is Terminated Without Cause,
then Employee shall be entitled to be paid a Severance Payment
equal to (i) two times (2x) employee's Base Annual salary rate
and (ii) a Severance Bonus equivalent to two times (2x) the bonus
earned or paid for the previous fiscal year pursuant to Section 3
(a) and 3 (b). For Termination With Cause, the Employee shall be
entitled to be paid a severance payment equal to one times (1x)
employee's Highest Base Annual salary during the term of this
Agreement.
(b) If at any time during the term of this Agreement,
Employee is Terminated Without Cause, or Employee is terminated
in the event of a Change of Control as defined in Section 7, or
Employee resigns for Good Reason as defined in Section 6 of this
Agreement, then Employee shall be entitled to continuation of
basic employee group benefits, as defined in Section 4(a),
provided by Xxxxx to Employee for the lesser of one year after
termination or until the Employee secures new employment without
remuneration to Xxxxx.
(c) If at any time during the term of this Agreement,
Employee is Terminated Without Cause, or Employee is terminated
in the event of a Change of Control as defined in Section 7, or
Employee resigns for Good Reason as defined in Section 6 of this
Agreement, Xxxxx shall promptly (and in any event within five
business days after a request by the Employee therefore) either
pay or reimburse the Employee for the costs and expenses of any
executive outplacement firm selected by the Employee; provided,
however, that Xxxxx' liability hereunder shall be limited to the
first $20,000 of such expenses incurred by the Employee. The
Employee shall provide Xxxxx with reasonable documentation of the
incurrence of such outplacement costs and expenses.
(d) The Employee's outstanding stock options and other
long-term incentive awards shall vest according to the terms of
the Long-Term Incentive Plan.
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9. Timing of Payment. Unless otherwise provided in this
Agreement, any severance or other payment payable to Employee
under this Agreement shall be paid within thirty (30) days after
the event causing such payment or at such other date as the
parties agree.
10. Other Benefits. The provisions of Section 7 and 8
shall not affect Employee's participation in, or termination of
distributions and vested rights under, any pension, profit
sharing, insurance, performance unit plan or other employee
benefit plan of Xxxxx to which Employee is entitled pursuant to
the terms of such plans except for the acceleration of vested
benefits in certain employee benefits pursuance to Section 7(c)
and the provisions pursuant to Section 8(b) and Section 8(d).
11. No Duty to Mitigate Damages. In the event of
termination of this Agreement by Employee after a Change of
Control as defined in Section 7 above, or as a result of the
breach by Xxxxx of any of its obligations hereunder, or in the
event of the termination of Employee's employment by Xxxxx in
breach of this Agreement, or as a result of Employee's
Termination Without Cause, or resignation for Good Reason,
Employee shall not be required to seek other employment in order
to mitigate his damages hereunder, and no compensation employee
does earn after any termination shall be considered to mitigate
damages Employee has incurred or to reduce any payment Xxxxx is
obligated to make to Employee pursuant to this Agreement.
12. No Right to Set Off. Xxxxx shall not be entitled to
set off against the amount payable to Employee any amounts earned
by Employee from other employment after termination of his
employment with Xxxxx or any amounts which might have been earned
by Employee in other employment had he sought such other
employment. The amounts payable to Employee under this Agreement
shall not be treated as damages but as severance compensation to
which Employee is entitled by reason of termination of this
employment in the circumstances contemplated by this Agreement.
13. Non-Compete and Non-Disclosure of Information.
(a) For so long as Employee is employed by Xxxxx and
continuing after the termination of such employment for two
years:
(i) Employee will not accept a position as an
officer, director, employee, agent, consultant, representative of
any other business forms company with its principal office or a
branch in any country in which any subsidiary of Xxxxx operates
and will not make or fail to dispose of any stock in any business
then in competition with Xxxxx or any of its subsidiaries in any
metropolitan market in which Ennis, or any of its subsidiaries,
are then conducting business in Texas except investments equal to
less than 2% of the outstanding stock of any class issued by any
publicly traded company.
(ii) Additionally, Employee will not, directly or
indirectly, either as an officer, director, employee, consultant,
independent contractor, agent or representative, for Employee's
own benefit or for the benefit of any other person or entity,
solicit, divert or take
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away any employees, agents, representatives, customers or
suppliers of the Company of any prospective employees, agents,
representatives, customers or suppliers of the Company with whom
the Company has discussed (in person, by telephone or in writing)
possible business relationship during the twelve (12) month
period prior to the end of the period of Employee's employment;
or
(iii) Except in the performance of Employee's
obligations to Xxxxx or one of its subsidiaries, Employee shall
not, directly or indirectly, use or permit the use of any
confidential or other proprietary information of a special unique
nature and value to Xxxxx or one of its subsidiaries (the
"Confidential Information"), including, but not limited to, trade
secrets, systems, procedures, manuals, confidential reports,
customer lists, sales or distribution methods, patentable
information and data as well as financial information concerning
Xxxxx or one of its subsidiaries, and information with respect to
the nature and type of other services rendered by Xxxxx or one of
its subsidiaries, which Confidential Information has been used by
Xxxxx or one of its subsidiaries to date or during the term of
this Agreement and has been made known (whether or not with the
knowledge and permission of Xxxxx, and whether or not developed,
devised or otherwise created in whole or in part by the efforts
of Employee) to Employee by reason of his activities on behalf of
Xxxxx or one of its subsidiaries. Employee shall not reveal,
divulge or make known any Confidential Information to any
individual partnership, firm, Company or other business
organization whatsoever except in performance of Employee's
obligations to Xxxxx or with the express permission of the Board
of Directors of Xxxxx or as otherwise required by operation of
law.
(b) Employee confirms that all Confidential
Information is the exclusive property of Xxxxx. All business
records, papers and documents kept or made by Employee relating
to the business of Xxxxx shall be and remains the property of
Xxxxx and shall remain in the possession of Xxxxx during the term
and at all times thereafter. Upon the termination of his
employment with Xxxxx or upon the request of Xxxxx at any time,
Employee shall promptly deliver to Xxxxx, and shall retain no
copies of, any written materials, records and documents made by
Employee or coming into his possession concerning the business or
affairs of Xxxxx.
(c) Without intending to limit the remedies available
to Xxxxx, Employee acknowledges that a breach of any of the
covenants contained in this Section 13 may result in material
irreparable injury to Xxxxx or one of its subsidiaries for which
there is not adequate remedy at law, that it may not be possible
to measure damages for such injuries precisely, and that in the
event of such a breach or threat thereof, may be entitled to
obtain a temporary restraining order and/or a preliminary or
permanent injunction restraining Employee from engaging in
activities prohibited by this Section 13 or such other relief as
may be required to specifically enforce any of the covenants in
such Section. Employee by execution hereof agrees to submit to
the jurisdiction of the State of Texas.
14. Arbitration. Any dispute or controversy arising under
or in connection with this Agreement shall be settled exclusively
by arbitration in Dallas County, Texas in accordance with the
rules of the American Arbitration Association then in effect.
Judgment may be entered on
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the arbitrator's award in any court having jurisdiction. Each
party shall bear his or its own costs of arbitration, but if
Employee is the prevailing party in such arbitration, he shall be
entitled to recover from Xxxxx as part of any award entered his
reasonable expenses for attorneys' fees and disbursements.
15. Notices. All notices, requests, demands and other
communication called for or contemplated hereunder shall be in
writing and shall be deemed to have been duly given when
delivered personally or when mailed by United States certified or
registered mail, postage prepaid, addressed to the parties, their
successors in interest or assignees at the following addresses or
such other addresses as the parties may designate by notice in
the manner aforesaid:
If to Ennis: Xxxxx Business Forms, Inc.
0000 X. Xxxxxxx
XxXxxx, XX 00000
Attention: Chairman, Compensation
Committee Of the Board of Directors
If to Employee: Xxxxx Business Forms, Inc.
0000 X. Xxxxxxx
XxXxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
16. Law Governing. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas
without giving effect to any principle of conflict-of-laws that
would require the application of the law of any other
jurisdiction.
17. Validity. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the
validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
18. Entire Agreement. This Agreement constitutes the
entire understanding between the parties with respect to the
subject matter hereof, superseding all negotiations, prior
discussions and preliminary agreements, and further superseding
any and all employment arrangements between Employee and Xxxxx or
any of Xxxxx' subsidiaries, affiliates or other related entities.
This Agreement may not be amended except in a writing executed by
the parties hereto.
19. Effect on Successors in Interest. This Agreement shall
inure to the benefit of and be binding upon the heirs,
administrators, executors and successors of each of the parties
hereto.
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20. Effectiveness. This Agreement shall be effective upon
the Effective Date.
21. Survival of Section. The provisions of Section 13 of this
Agreement shall survive the termination of this Agreement for the
period provided for therein.
22. Servability. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under present or future laws
effective during the term hereof, the legality, validity and
enforceability of the remaining provisions of this Agreement
shall not be affected hereby, and in lieu of such illegal,
invalid or unenforceable provision, there shall be added
automatically as a part of this Agreement a provision as similar
in terms to such illegal, invalid or unenforceable provision as
may be legal, valid and enforceable.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first above written.
XXXXX BUSINESS FORMS, INC. EMPLOYEE
BY: /s/ Xxxxxxx X. Xxxxxxxxx BY: /s/ Xxxxx X. Xxxxxxx
------------------------- --------------------
Chairman Xxxxx X. Xxxxxxx
Compensation Committee
Of the Board of Directors
/s/ Xxxxxx Xxxxxx
-----------------------
Witness
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