EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into as of this
13th day of July, 1999, by and between COMMEMORATIVE BRANDS, INC. and any
successors thereto (collectively referred to as the "Company") and Xxxxx X.
Xxxxx ("Executive").
The parties hereby agree as follows:
1. EMPLOYMENT. Executive will serve the Company in an executive capacity as
President and Chief Executive Officer and shall report to the Board of
Directors of the Company and will perform, faithfully and diligently, the
services and functions performed and will carry out the functions of his
office and furnish his best advice, information, judgment and knowledge with
respect to the business of the Company and its subsidiaries, if any. If
Executive is elected to the Board of Directors of the Company, Executive
agrees to serve on the board of directors of the Company during the term of
this Agreement. Executive agrees to perform such duties as hereinabove
described and to devote full-time attention and energy to the business of the
Company. Executive will not, during the term of employment under this
Agreement, engage in any other business activity if such business activity
would materially impair Executive's ability to carry out his duties under
this Agreement.
2. TERM. The period of the Executive's employment under this Agreement (the
"Employment Term") shall commence on August 2, 1999 (the "Commencement Date")
and shall terminate on August 1, 2001, unless sooner terminated in accordance
with this Agreement. Notwithstanding the aforementioned termination date, the
termination date of this Agreement (and the Employment Term) shall be
automatically extended in a constant fashion so that the Employment Term
shall always have two years remaining unless either party provides written
notice to the other party (the "Termination Notice") of its or his intent to
terminate at the end of the Employment Term. At the time of the delivery of
the Termination Notice, the termination date shall then be fixed on the date
that is two years from the date of such notice, and shall not be subject to
further extension. Unless this Agreement is terminated in the manner as
aforesaid, this Agreement and the Employment Term shall be extended as
aforesaid without any further action of the parties, on the same terms and
conditions as set forth herein, including without limitation the extension
provision to provide for a constant two year remaining Employment Term.
3. PLACE OF EMPLOYMENT. The Executive's principal place of employment shall
be in Austin, Texas, unless moved with the written consent of the Executive.
4. COMPENSATION AND OTHER BENEFITS.
4.1 SALARY. The minimum salary compensation to be paid by
the Company to Executive and which Executive agrees to accept from the
Company for services performed and to
EMPLOYMENT AGREEMENT Page 1
be performed by Executive hereunder shall be an annual gross amount, before
applicable withholding and other payroll deductions, of $300,000 payable in
equal bi-weekly installments of $11,538.46, subject to such increases as the
Board of Directors of the Company may, in its sole discretion, from time to
time determine. The salary and/or any increase from time to time, shall be
deemed a minimum salary which, once established, cannot be reduced during the
Employment Term.
4.2 BONUS. For each full or partial fiscal year of the
Company during the Employment Term and, if applicable, the Balance of the
Employment Term (as defined in Section 7.5), the Company shall pay to the
Executive a bonus ("Bonus") in an amount of up to $200,000 based upon targets
or standards (E.G. EBITDA, sales) as shall be determined by the Board of
Directors, in each case, within three months of the commencement of each
fiscal year. All Bonuses actually earned by the Executive and payable to the
Executive (or his estate or other legal representative as provided below) for
any full or partial fiscal year pursuant to this Section 4.2 shall be paid by
the Company within 120 days following the end of such fiscal year. For each
full or partial fiscal year during the Employment Term and if applicable, the
Balance of the Employment Term, the Company may pay to the Executive a
Discretionary Bonus ("Discretionary Bonus") based on other factors at the
discretion of the compensation committee of the Board of Directors in an
amount of up to $100,000. If the Company achieves $30,000,000 of Consolidated
EBITDA (as hereinafter defined) within three years of the effective date of
this Agreement, the Executive shall be paid a long-term incentive bonus of
$1,000,000 ("Long-Term Bonus") in the form of Series "B" preferred stock of
the Company having a face value of $1,000,000 on the date of issuance. The
preferred stock shall be issued to Executive within ninety (90) days
following the achievement of $30,000,000 Consolidated EBITDA by the Company,
provided that the Company achieves $30,000,000 Consolidated EBITDA within
three (3) years of the date of this Agreement. To the extent that the
above-referenced grant of preferred stock is a taxable event under Federal,
State, FICA/Medicare, unemployment law or any other tax law, such taxes will
be paid by the Company or if paid by Executive, shall be reimbursed to the
Executive by the Company upon its receipt of satisfactory evidence of such
payment having been made. For purposes hereof, Consolidated EBITDA shall have
the meaning set forth in the Company's Revolving Credit, Term Loan and Gold
Consignment Agreement dated as of December 16, 1996, as heretofore amended
and as may hereafter be amended from time to time (to the extent the
definition of Consolidated EBITDA is thereby amended with the consent of the
Executive, which consent shall not be unreasonably withheld by the Executive)
which current definition is attached hereto as Exhibit A.
4.3 STOCK OPTIONS. At the commencement of the term of this
Agreement, the Executive shall receive an initial grant of stock options
pursuant to the terms of the Company's qualified incentive stock option plan,
a copy of which is attached hereto as Exhibit B, equivalent to 3% of the
issued and outstanding shares of the common stock of the Company on a fully
diluted basis on the date hereof. All of the stock options initially granted
pursuant to this Section 4.3 shall
EMPLOYMENT AGREEMENT Page 2
be divested if the Executive's employment hereunder is terminated by the
Company or by the Executive for any reason whatsoever prior to the first
anniversary of this Agreement and one half of all of the stock options
granted pursuant to this Section 4.3 shall be divested if the Executive's
employment hereunder is terminated by the Company or by the Executive for any
reason whatsoever between the first and second anniversary of this Agreement.
After the second anniversary of this Agreement, none of the stock options
granted pursuant to this Section 4.3 may be divested if the Executive's
employment hereunder is terminated by the Company or by the Executive.
If the Company attains the stated Consolidated EBITDA
target within the stated time frames in the chart below, the following
additional qualified incentive stock options for common stock will be granted
to the Executive pursuant to the terms of the Company's incentive stock
option plan, based upon the issued and outstanding shares of the common stock
of the Company on a fully diluted basis at the date hereof:
Consolidated Yr End
EBITDA Aug OPTIONS
------ --- -------
$26.5 M FY 2000 0.5%
$28.0 M FY 2001 0.5%
$32.5 M FY 2002 0.5%
$35.0 M FY 2003 0.5%
$37.5 M FY 2003 0.5%
$40.0 M FY 2003 0.5%
Such additional incentive stock options shall vest when earned. These
additional incentive stock options are subject to a "look-back" period of one
year, so that if the Company meets the Consolidated EBITDA goal in any year
listed, the Executive shall be entitled to stock options for that year and
for the prior year if the Consolidated EBITDA goal for the prior year was not
achieved; provided however that each "look-back" period shall apply for only
one year. For example, If Consolidated EBITDA for fiscal year 2000 is less
than $26.5M, then Executive will receive no stock options at the end of
fiscal year 2000. However, if Consolidated EBITDA for fiscal year 2001 is
$28.0M or more while Consolidated EBITDA for fiscal year 2000 was less than
$26.5M, then Executive will receive stock options equal to 1% of the issued
and outstanding common stock of the Company at the end of fiscal year 2001.
If Consolidated EBITDA for fiscal year 2000 is less than $26.5M and
Consolidated EBITDA for fiscal year 2001 is less than $28.0M, but
Consolidated EBITDA for fiscal year 2002 is $32.5M or more, then Executive
will receive stock options equal to 1% of the issued and outstanding common
stock of the Company at the end of fiscal year 2002. Executive may receive a
maximum of 3% of the issued and outstanding Common Stock of the Company under
this Section 4.3 if the requisite goals are met, but cannot exceed an
aggregate of 3% of the issued and outstanding common stock of the Company
under this Section 4.3. Further, Executive would only receive options equal
to 2% of the issued and outstanding common stock of the Company if
Consolidated EBITDA for the Company in fiscal year 2003 equals or exceeds $40M
EMPLOYMENT AGREEMENT Page 3
but Consolidated EBITDA for the Company was less than $26.5M in fiscal year
2000, $28.0M in fiscal year 2001 and $32.5M in fiscal year 2002.
4.4 HEALTH BENEFITS, CAR ALLOWANCE, COUNTRY CLUB & LIFE
INSURANCE. The Company will provide health benefits to Executive and his
family at least equal to the current health benefits now provided to other
executives of the Company. Additionally, the Company shall pay for the
Executive's country club membership initiation fee(s) and monthly/annual dues
in a country club of his selection located in the Austin, Texas area, a car
allowance of up to $750 a month and will provide $500,000 of life insurance
paid for by the Company.
4.5 BENEFITS. Executive shall be entitled to participate in
such other employee benefit programs, plans and policies as are maintained by
the Company and as may be established for the employees of the Company from
time to time on the same basis as other executive employees are entitled
thereto. It is understood that the establishment, termination or change in
any such other executive employee benefit programs, plans or policies shall
be at the instance of the Company in the exercise of its sole discretion,
from time to time, and any such termination or change in such other program,
plan or policy will not affect this Agreement (except as provided herein) so
long as Executive is treated on the same basis as other executive employees
participating in such other program, plan or policy, as the case may be. Upon
termination of employment under this Agreement, without regard to the manner
in which the termination was brought about, Executive's rights in such other
employee benefit program, plans or policies covered by this Section 4.5 shall
be governed solely by the terms of the program, plan or policy itself and not
this Agreement. However, Executive's compensation as provided in Sections
4.1, 4.2, 4.3, 4.4, 4.6 and 4.7 of this Agreement shall be governed by this
Agreement. Executive shall be entitled to an annual paid vacation in
accordance with the Company's personnel policy for his years of service
completed as an employee of the Company; provided, however, he shall always
be entitled to a minimum of four weeks per year. The Executive shall also be
entitled to participate in all other benefits provided to executives of the
Company.
4.6 RELOCATION. The Company shall reimburse Executive for
the following costs of relocating to the Austin, Texas area:
(i) The closing costs of selling Executive's existing residence
in Plano, Texas;
(ii) Packing and moving expenses;
(iii) Temporary and Interim Housing (including temporary housing
for Executive and his family until suitable housing is
obtained in Austin, Texas and interim housing [E.G. an
apartment or condominium] for Executive in Austin, Texas
while the Executive's primary residence in Plano, Texas
remains unsold and Executive's family continues to reside in
Plano, Texas; and
EMPLOYMENT AGREEMENT Page 4
(iv) The expenses of locating housing in Austin, Texas (E.G. the
reasonable costs associated with a reasonable number of
house hunting trips for Executive and his spouse in the
Austin, Texas area); and
(v) Up to $25,000 of seller's real estate brokerage commissions
and up to $30,000 of points on financing for the purchase of
new housing for the Executive in the Austin, Texas area.
4.7 DIRECTORS' AND OFFICERS' INSURANCE. The Company will
carry Directors' and Officers' liability insurance in the form and to the
extent determined by the Board of Directors to in the best interests of the
Company and its officers and directors from time to time. In the event the
Company fails to carry any such insurance or fails to carry it in an amount
and with a carrier reasonably similar to the insurance in place as of the
date hereof, it shall indemnify and hold harmless Executive from any claims
which would have been covered by such insurance. In addition, Company will
indemnify Executive to the maximum extent permitted by Delaware law.
5. WORKING FACILITIES. During the term of his employment under this
Agreement, Executive shall be furnished with a private office, stenographic
and secretarial services, cell phone, pager, lap top, voice mail, email and
such other facilities and services as are commensurate with his position with
the Company and adequate for the performance of his duties under this
Agreement.
6. EXPENSES. During the term of his employment under this Agreement,
Executive is authorized to incur reasonable out-of-pocket expenses for the
discharge of his duties hereunder and the promotion of business of the
Company, including expenses for entertainment, travel and related items. The
Company shall reimburse Executive for all such expenses upon presentation by
Executive from time to time of itemized accounts of expenditures incurred in
accordance with customary Company policies.
7. TERMINATION. Executive's employment under this Agreement may be terminated
other than pursuant to a Termination Notice pursuant to Section 2
hereinabove, by either Company or Executive upon the following terms and
conditions.
7.1 TERMINATION BY COMPANY FOR SUBSTANTIAL CAUSE. If any of
the following events or circumstances occur, the Company may terminate
Executive's employment under this Agreement at any time during or at the end
of the initial or any extended term of this Agreement for any of the
following causes (each a "Substantial Cause"). The Company may at any time by
written notice to the Executive terminate the Term of the Executive's
employment hereunder for Substantial Cause ("Substantial Cause Notice") and
the Executive shall have no right to receive any compensation or benefit
hereunder on and after the effective date of such Substantial Cause Notice
except as provided in this Agreement. For purposes hereof, the term
"Substantial Cause" shall mean: (a) a conviction of the Executive for any
crime constituting a felony in the jurisdiction in which committed, or for
any other criminal act against the Company or the Subsidiaries involving
EMPLOYMENT AGREEMENT Page 5
dishonesty or willful misconduct intended to injure the Company or the
Subsidiaries (whether or not a felony and whether or not criminal proceedings
are initiated); or (b) failure or refusal of the Executive in any material
respect to follow the lawful and proper directives of the Board of Directors
and such failure or refusal continues uncured for a period of twenty (20)
days after written notice thereof, specifying the nature of such failure or
refusal and requesting that it be cured, is given by the Company to the
Executive; or (c) any willful or intentional act of the Executive committed
for the purpose, or having the reasonably foreseeable effect, of injuring the
Company, the Subsidiaries or their business or reputation or of improperly or
unlawfully converting for the Executive's own personal benefit any property
of the Company or the Subsidiaries. For purposes hereof, any act or failure
to act of the Executive shall not be considered "willful" or "intentional"
unless done or omitted to be done by the Executive in bad faith and without a
reasonable belief that the Executive's action or omission was in the best
interests of the Company; provided however, that no termination of the
Executive's employment shall be for Substantial Cause until (i) there shall
have been delivered to the Executive a copy of a written Substantial Cause
Notice setting forth that the Executive was guilty of the conduct set forth
above, specifying the particulars thereof in detail and (ii) the Executive
shall have been provided an opportunity to be heard by the Board (with the
assistance of the Executive's counsel if the Executive so desires). Any
termination of Executive for Substantial Cause must be approved by a majority
of the entire Board of Directors. In the event that Executive is terminated
based on a conviction as provided in this Section 7.1 and that conviction is
not final, then Executive shall be placed on an unpaid leave of absence until
such time as the conviction has become final or has been overturned. If the
conviction does not become final (e.g. it is dismissed or overturned) then,
Executive shall be treated as having been terminated without Substantial
Cause and the Company will immediately pay in one lump sum the Termination
Payments and Termination Benefits or, in lieu thereof, at Executive's
election, if the position of President and Chief Executive Officer is vacant
rehire Executive.
Upon payment by the Company to Executive of all salary payable,
accrued and unused vacation, and any accrued bonus to the date of such
termination, the Company shall have no further liability to Executive for
compensation in accordance herewith, and Executive will not be entitled to
receive any Termination Payments or Termination Benefits (as such terms are
defined below) except aforesaid vacation and any accrued bonus.
7.2 TERMINATION BY COMPANY WITHOUT SUBSTANTIAL CAUSE. In
the event of the termination of Executive's employment under this Agreement
by the Company at any time during or at the end of the initial or any
extended term of this Agreement without Substantial Cause as defined in
Paragraph 7.1 above, Executive will be entitled to receive his salary for the
Balance of the Employment Term, plus the aggregate of the Bonus actually
earned by the Executive through the date of termination, plus the Long-Term
Bonus and any stock options actually earned through the date of termination
("Termination Payments"), less legally required withholdings. In addition to
the Termination Payments, the Company will provide Executive and covered
family members with health benefits for 24 months beginning on the date that
Executive's health coverage ceases due to his termination, accrued but unused
vacation, and any accrued bonus ("Termination
EMPLOYMENT AGREEMENT Page 6
Benefits"). Health care benefits shall cease upon Executive and covered
family members becoming covered under a new employer's health coverage plan
at no cost to Executive and with no applicable pre-existing condition
limitation. The combination of the Termination Payments and the Termination
Benefits constitute the sole amount to which Executive is entitled if
termination is without Substantial Cause. The Company's obligation to make
the Termination Payments and provide the Termination Benefits and otherwise
to perform its obligations under this Agreement shall not be affected by any
setoff, counterclaim, recoupment, defense or other claim, right or action
which it may have against the Executive or others.
7.3 TERMINATION BY EXECUTIVE WITHOUT GOOD REASON. Executive
may terminate his employment under this Agreement without Good Reason as
defined in Paragraph 7.4 below upon the giving of 90 days written notice of
termination. In the event of such termination, the Company may elect to pay
Executive six months of compensation in a lump sum including unused accrued
vacation and any accrued bonus in lieu of 90 days notice, in which event
Executive's services to the Company will be terminated immediately. No
Termination Payments or Termination Benefits other than as set forth in
Section 7.7 shall be payable upon Executive's termination of this Agreement
without Good Reason.
7.4 TERMINATION BY EXECUTIVE WITH GOOD REASON. Executive
may terminate his employment under this Agreement for Good Reason. For
purposes of this Agreement, "Good Reason" shall mean:
(i) Without Executive's consent, a material adverse change in
the Executive's status, title, position, responsibilities
(including reporting responsibilities), authority or duties
which represents a material adverse change from the status,
title, position, responsibilities (including reporting
responsibilities), authority or duties as in effect
immediately prior thereto; the assignment to the Executive
of any additional duties or responsibilities which
materially impair his ability to perform his other
responsibilities, authority, or duties; or any removal of
the Executive from or failure to reappoint or reelect
Executive to any of offices or positions except in
connection with the termination of his employment for
Substantial Cause or as a result of his death or permanent
disability.
(ii) The Company requiring Executive to relocate anywhere other
than Austin, Texas, except for required travel on the
Company's business to an extent substantially consistent
with Executive's business travel obligations, or, in the
event Executive consents to such relocation out of Austin,
Texas, the failure by the Company to pay or reimburse
Executive for the closing costs of selling any existing
home, temporary housing, expenses of locating housing, all
reasonable moving expenses incurred by Executive relating to
a change of Executive's principal residence in connection
with such relocation,
EMPLOYMENT AGREEMENT Page 7
and any other relocation costs/allowances payable in
accordance with standard Company policy or policies then in
effect for the Company's senior executives, and to indemnify
Executive against any loss (defined as the difference
between the actual bona fide sale price of such residence
and the fair market value of such residence as determined by
a member of the Society of Real Estate Appraisers designated
by Executive and satisfactory to the Company) realized in
the sale of Executive's principal residence in connection
with any such change in residence; or
(iii) A decrease in Executive's annual salary from his salary in
effect immediately prior to such decrease; or
(iv) The failure of the Company to grant and vest incentive stock
options to the extent earned in accordance with Section 4.3;
or
(v) The failure of the Company to pay the Bonus or Long-Term
Bonus to the extent earned in accordance with Section 4.2;
or
(vi) Any action taken or suffered by the Company as of or
following the Change of Control which shall cause the
Company to have the inability to reach the goals so that the
Executive may earn the Bonuses or stock options set out in
Section 4.2 or 4.3 unless the Company or its successors or
assigns shall, in good faith, provide the Executive with a
reasonably equivalent position and compensation package
reasonably acceptable to the Executive to take effect
immediately following the Change of Control; or
(vii) The failure by the Company to continue in effect (without
reduction in benefit level and/or reward opportunities) any
material compensation or employee benefit plan in which the
Executive was participating unless (i) a change is made
pursuant to Section 4.5 of this Agreement, or (ii) a
substitute or replacement plan has been implemented which
provides substantially identical compensation and benefits
to the Executive; or
(viii) The failure by the Company to provide insurance or
indemnification as provided in Section 4.7; or
(ix) Any material breach by the Company of any of its material
obligations under this Agreement; or
(x) Any purported termination of the Executive's employment for
Substantial Cause by the Company which does not comply with
the terms of this Agreement.
EMPLOYMENT AGREEMENT Page 8
The failure by Executive to set forth in any notice of termination
of employment any fact or circumstance which contributes to a showing of Good
Reason shall not waive any of Executive's rights hereunder or preclude
Executive from asserting such fact or circumstance in enforcing Executive's
rights hereunder.
In the event of termination under this Section 7.4, the Company
shall pay to Executive the same Termination Payments and Termination Benefits
to which Executive would have been entitled had he been terminated by the
Company without Substantial Cause.
7.5 DEATH OR PERMANENT DISABILITY. Executive's employment
under this Agreement shall terminate upon Executive's death or permanent
disability (as defined in the Company's or Executive's disability insurance
policies except as provided herein). Accrued but unused vacation, and any
actually earned but unpaid bonus, Termination Payments and Termination
Benefits shall be payable upon Executive's death or permanent disability in
accordance with this Section 7.5. In the event of the death of the Executive,
the Company shall continue to pay to his estate or other legal representative
the Executive's salary and any earned bonus for the Balance of the Employment
Term (as defined below), and shall pay an amount equal to any accrued and
unpaid vacation days through the date of death. Rights and benefits of the
estate or other legal representative of the Executive under the benefit plans
and programs of the Company shall be determined in accordance with the
provisions of such plans and program. For purposes of this Agreement, the
"Balance of the Employment Term" shall mean the period of time commencing
with any termination of the Executive's employment with the Company for any
reason and ending on the date the Employment Term would have expired pursuant
to Section 2, assuming that, if a Termination Notice has not already been
given by such date, that each party would have given the Termination Notice
on such date. Regardless of the definition of permanent disability in the
Company's or Executive's disability insurance policies, Executive shall not
be considered permanently disabled unless he shall have at least become
incapacitated by reason of physical or mental disability and shall be unable
to perform his normal duties hereunder for a period of more than six (6)
months in any twelve (12) month period. Executive agrees to cooperate with
the reasonable requests of the Company in obtaining life insurance coverage
on the life of the Executive if the Company desires to obtain "key man" life
insurance on the Executive and so notifies the Executive.
7.6 VESTING OF OPTIONS. Except as otherwise provided in
Section 4.3 above, all stock actually earned and all stock options actually
earned vest upon a termination by the Executive for Good Reason or for any
termination of the Executive by the Company other than for Substantial Cause.
EMPLOYMENT AGREEMENT Page 9
7.7 CHANGE IN CONTROL.
(a) Notwithstanding anything contained in this Agreement to
the contrary, in the event that the Executive, within thirty (30) days
following the expiration of the first 6 months after a Change in Control
elects to terminate his employment without Good Reason, then, in such event,
the Company shall pay to the Executive, or to his estate or legal
representative, a fixed sum of Four Hundred Fifty Thousand and No/100 Dollars
($450,000.00). In addition, the Company shall provide to the Executive and
his covered family members, at the Company's sole cost and expense,
post-termination health benefits for eighteen (18) months) following his
termination at least equal to the health benefits then provided to the
Executive and his covered family members through the Company . The payments
required under this Section 7.7 shall be made in a lump sum payable within 30
days of the Executive's termination or election to terminate as aforesaid,
and shall be in lieu of any other payments due to the Executive under this
Agreement. In the event of any other termination of the Executive after a
Change in Control, then Sections 7.1, 7.2 , 7.3, 7.4, 7.5 or 7.6, as
applicable, will continue to apply.
(b) For purposes hereof, "Change in Control" shall mean any
event or occurrence that reduces the combined voting power or voting control
of the "Xxxxxx Xxxxxx Group" to a point where the "Xxxxxx Xxxxxx Group" no
longer has sufficient voting power or voting control to assure the election
of a majority of the members of the board of directors of the Company by the
members of the Xxxxxx Xxxxxx Group. For Purposes of this Agreement, the term
"Xxxxxx Xxxxxx Group" means Xxxxxx Xxxxxx Partners II, L.P. and any person or
entity which controls, or is controlled by, or is under common control with,
Xxxxxx Xxxxxx Partners II, L.P. and/or its investment advisor, Xxxxxx Xxxxxx,
Inc., and any current, former or future officer, director, partner, or
employee of Xxxxxx Xxxxxx, Inc., including but not limited to Xxxxxx Xxxxxx
Offshore Partners, L.P. and Dresdner Bank, A.G.-Cayman Branch.
7.8 RELEASE AGREEMENT. Executive's right to receive
Termination Payments and Termination Benefits pursuant to this Section 7 is
contingent upon Executive executing a Release Agreement after termination, a
copy of which is attached to this Agreement as Exhibit C. It is understood
that Executive may preserve all rights and causes of action in the event of
termination by the Company and evidence of release of same will only be by
execution of said Release Agreement after termination.
8. CONFIDENTIALITY. During and after the term of employment under this
Agreement, Executive agrees that he shall not, without the express written
consent of Company, directly or indirectly communicate or divulge to, or use
for his own benefit or for the benefit of any other person, firm, association
or corporation, any of Company's trade secrets, proprietary data or other
confidential information, which trade secrets, proprietary data or other
confidential information were communicated to or otherwise learned or
acquired by Executive during his employment relationship with Company
("Confidential Information"), except that Executive may disclose such matters
to the extent that disclosure is required (a) as part of his duties under
this Agreement or (b) at Company's
EMPLOYMENT AGREEMENT Page 10
direction or (c) by a court or other governmental agency of competent
jurisdiction. As long as such matters remain trade secrets, proprietary data
or other confidential information, Executive shall not use such trade
secrets, proprietary data or other confidential information in any way or in
any capacity other than as expressly consented to by Company. Confidential
Information shall not mean any information which Executive can demonstrate
was known to him prior to receiving it from the Company or which is now or
hereafter becomes generally available to the public through no act or failure
to act on the part of the Executive or which is disclosed to the Executive by
a third party who has no obligation to the Company to maintain the
information in confidence
9. COVENANT NOT TO COMPETE OR SOLICIT.
9.1 Executive agrees to refrain for one year after the
termination of his employment under this Agreement for any reason, without
written permission of the Company, from becoming involved in any way, within
the boundaries of the United States, in the business of manufacturing,
designing, servicing or selling, the type of jewelry or fine paper or other
scholastic, licensed sports, insignia, recognition or affinity products
manufactured or sold (or then contemplated to be manufactured or sold) by the
Company, its divisions, subsidiaries and/or other affiliated entities,
including but not limited to, as an employee, consultant, independent
representative, partner or proprietor.
9.2 Executive also agrees to refrain during his employment
under this Agreement, and in the event of the termination of his employment
under this Agreement for any reason, for one year thereafter, without written
permission from the Company, from diverting, taking, soliciting and/or
accepting on his own behalf or on the behalf of another person, firm, or
company, the scholastic, licensed sport, insignias, recognition or affinity
business of any customer of the Company, its divisions, subsidiaries and/or
affiliated entities, or any potential customer of the Company, its divisions,
subsidiaries and/or affiliated entities whose identity became known to
Executive through his employment by the Company and to which the Company has
made a written business proposal or provided written pricing information
before the termination of Executive's employment under this Agreement.
9.3 Executive agrees to refrain during his employment under
this Agreement, and in the event of the termination of his employment under
this Agreement for any reason for a period of one year thereafter, from
inducing or attempting to influence any employee or independent
representative of the Company, its divisions, subsidiaries and/or affiliated
entities to terminate his or her employment or association with the Company
or such other entity.
9.4 Executive further agrees that the covenants in Section
9.1 and 9.2 are made to protect the legitimate business interests of the
Company, including interests in the Company's "Confidential Information," as
defined in Section 8 of this Agreement, and not to restrict his mobility or
to prevent him from utilizing his skills. Executive understands as a part of
these
EMPLOYMENT AGREEMENT Page 11
covenants that the Company intends to exercise whatever legal recourse
against him for any breach of this Agreement and in particular for breach of
these covenants.
10. CONTROLLING LAW AND PERFORMABILITY. The execution, validity,
interpretation and performance of this Agreement will be governed by the law
of the State of Texas.
11. SEPARABILITY. If any provision of this Agreement is rendered or declared
illegal or unenforceable, all other provisions of this Agreement will remain
in full force and effect.
12. NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if sent by certified mail
(return receipt requested) addressed as follows (or to such other address as
any party hereto may specify in a written notice given in accordance with
this Section 12):
If to Executive: Xxxxx X. Xxxxx
0000 Xxxxxx Xxxx
Xxxxx, Xxxxx 00000
Telephone: 000 000 0000
Facsimile: 000 000 0000
with copy to: Xxxx X. Xxxxxxxx, Esq.
Xxxxxxxx & Xxxxxxxxxx, P.C.
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000-0000
Telephone: 000 000 0000
Facsimile: 972 991 7744
If to the Company: Chairman of the Board
Commemorative Brands, Inc.
0000 Xxxxxx X Xxxx
Xxxxxx, XX 00000
Telephone: 000 000 0000
Facsimile: 000 000 0000
with copy to: Xxxxx X. Xxxxxxxx
Xxxxxx Xxxxxx, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: 000 000 0000
Facsimile: 000 000 0000
EMPLOYMENT AGREEMENT Page 12
13. ASSIGNMENT. The rights and obligations of the Company under this
Agreement shall inure to the benefit of and be binding upon its successors
and assigns. The rights and obligations of Executive under this Agreement are
of a personal nature and shall neither be transferred or assigned in whole or
in part by Executive.
In the event of any sale or other transfer of all or substantially
all of the business and assets of the Company other than by a sale of stock
of the Company or a merger or consolidation , the person or entity to whom
such sale or transfer is made shall be required to assume all of the
Company's obligations under this Agreement. In the event such purchaser does
not assume the Company's obligation under this Agreement, the Company shall
remain liable for any amounts that become due under this Agreement.
14. NON-WAIVER. No waiver of or failure to assert any claim, right, benefit
or remedy hereunder shall operate as a waiver of any other claim, right,
benefit or remedy of the Company or Executive.
15. REVIEW AND CONSULTATION. Executive acknowledges that he has had a
reasonable time to review and consider this Agreement and has consulted with
an attorney.
16. LEGAL FEES. The Company shall reimburse the Executive for reasonable
legal fees incurred by the Executive in reviewing and negotiating this
Agreement.
17. ENTIRE AGREEMENT AND AMENDMENTS. This Agreement contains the entire
agreement of Executive and the Company relating to the matters contained in
this Agreement and supersedes all prior agreements and understandings, oral
or written, between Executive and the Company with respect to the subject
matter in this Agreement. This Agreement may be changed only by an agreement
in writing by Executive and the Company, except as provided in Section 11
hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
COMMEMORATIVE BRANDS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Director
EXECUTIVE
/s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx
EMPLOYMENT AGREEMENT Page 13
