EXHIBIT 10.18
EMPLOYMENT AGREEMENT
This Agreement of Employment is made and entered into by and between Xxxxxx
Xxxxxx, Inc., a Tennessee corporation, hereinafter referred to as "Employer",
and Xxxxxx X. Xxxx, hereinafter referred to as "Employee."
Employer desires to employ Employee in the capacity of Executive Vice President
and Chief Publishing Officer, with all principal powers, duties and
responsibilities attendant thereto, and such other duties as shall be requested
of Employee by Employer, and Employee desires to be so employed by Employer. In
consideration therefore, the parties mutually agree as follows:
1. Term of Agreement
The term of this Agreement shall be for a period of one (1) year commencing
on January 3, 2005. After this one (1) year period, this Agreement will
automatically renew every six (6) months unless cancelled by either party.
In the event of involuntary termination, Employer agrees to pay Employee
salary and benefits continuation for the greater of the remainder of the
term of this Agreement or six months.
2. Employee Compensation
Employee's remuneration shall be as set forth in the Incentive Bonus
Program/Agreement for 2005 attached to this agreement and and incorporated
herein by this reference. In addition, Employers agrees to the following:
- Twenty (20) days Paid Time off (PTO) effective on Employee's 61st day of
employment
- Employer will pay Employee's current COBRA medical premiums during her
first 60 days of employement
- Employer will pay relocation benefits as set forth in the Relocation
Benefits Summary attached to this Agreement and incorporated herein by
reference.
Employee will be considered for the granting of stock options in amounts
similar to comparable senior executives; Employee recognizes and agrees
that options are granted at the sole discretion of the Compensation
Committee of the Board of Directors which may or may not issue such grants.
3. Employee Conduct
As Executive Vice President and Chief Publishing Officer, Employee
recognizes and understands her fiduciary relationship with and
responsibilities to Employer. Employee therefore promises to act always
in good faith and in the best interests of Employer in the discharge of
her duties and obligations. Further, Employee agrees to devote her full
time and efforts to her employment with Employer. Employer specifically
agrees to allow Employee to continue current outside board assignment.
Otherwise, should Employee during the term of this Agreement fail to so
devote her full working time and efforts to the benefit of Employer for
any reason other than illness or disability, or should she engage in any
activity or business enterprise competing or conflicting with the business
or activities of Employer, its subsidiaries, partners, or agents, or should
she engage in any illegal or criminal conduct or acts of insubordination or
moral turpitude (such as fornication, adultery, theft, embezzlement and/or
fraud), or should she violate any of the terms and provisions of
Subparagraph 4.a.1. hereunder, then Employer, at its sole discretion, may
terminate the employment of Employee immediately. All Employee's rights
hereunder shall end upon such termination by Employer and Employee's only
rights in such event shall be to receive all salary accrued through the
date of termination.
4. Confidential Clauses and Non-Competition Agreement
Employee further agrees as follows:
a. During Employment by Employer:
1) Confidential Information
Employee recognizes that the Bible publishing industry and the
religious book publishing industry combined comprise about 4% of
the total publishing industry, and less than 1% of the total
printing industry; therefore, Employee understands and agrees that
this Employment Agreement is not unreasonably restrictive, and
does not prohibit Employee from being employed in a lucrative
career and from making a fair and honorable living.
Employee recognizes and acknowledges that there are certain trade
secrets related to Employer's Christian and Inspirational Books,
Bibles, and Biblical Reference and Electronic Publishing, as well
as the design, sale, and distribution of Bible Covers, and related
businesses including, but not limited to, the names, royalties,
account information and/or business relationships pertaining to
Employer's artists, authors, writers, customers, and manufacturers,
as well as certain information related to manufacturing schedules
and procedures, new products, future plans, marketing practices,
sales volumes of various products, and other items of Employer's
businesses not specifically mentioned herein.
Employee recognizes and understands that she holds a position of
fiduciary privilege, and except as authorized in writing by
Employer, she agrees during the term of this Agreement and
thereafter to refrain from disclosing to any person, firm,
corporation, partnership, association or other business entity, or
to use for her own benefit, any trade secrets, unique business
information, plans, products, manufacturing data, customer lists,
author or artist lists, or any other confidential information
relating to any and all ongoing business activities of Employer,
or its parent company, or its subsidiaries the disclosure of which
she knows, or in the exercise of reasonable care should have
reason to know, may, can, or will be damaging or harmful to
Employer's business activities or those of its parent company,
affiliates, or subsidiaries, or which disclosure shall serve to
direct or divert corporate opportunities, product sales, and/or
profits away from Employer, its parent company, its affiliates,
its subsidiaries, partners, or agents, to the person, firm,
corporation, partnership, association, or the given entity to whom
or to which such disclosure is made.
2) Ownership of Work
Employee recognizes and understands that she will hold for the
benefit of Employer and disclose fully to Employer, immediately
upon origination or acquisition, any and all Works made,
discovered, developed or secured, alone or jointly with others,
during the term of her employment with Employer. Employee further
agrees that any Work prepared during the term of her employment is
a "work made for hire" for all purposes of the United States
Copyright Act. If, for any reason, all right, title and interest
in and to a Work does not vest in Employer by operation of law,
Employee hereby assigns to Employer the entire right, title and
interest in and to the Work including without limitation, patents,
trademarks, and the exclusive and perpetual copyright in and to
the Work and the exclusive right to obtain and hold in its own
name registraitons and any other such protection and any extensions
or renewals thereof. Employee's execution of this Agreement shall
be deemed an assignment thereof to Employer. For the purpose of
this Agreement, the term "Work" means any and all inventions,
discoveries, improvements, developments and innovations whether
patentable or not, software (including, without limitation, source
and object code), patents, copyrights, trademarks and or original
works of authorship, in any and all media or forms of expressions,
now known or later discovered, conceived in whole or in part by the
undersigned or through assistance of the undersigned which:
(i) result from any work performed on behalf of Employer, or
pursuant to a project suggested or directed by the Employer;
(ii) relate in any manner to the existing or contemplated business
of the Employer; or (iii) result from the use of the Employer's
time, material, employees, equipment or facilities.
b. Subsequent to Termination of Employment:
1) Non-Competition
Employee agrees that during the term of this Agreement and for a
period extending two (2) years from the date of Employee's
termination with Employer for any reason:
(a) She will not negotiate or enter into any contract with any
author, writer, editor, designer, packager or other person
who, at the time of termination, is under contract to (or is
negotiating with) Employer or its parent, affiliates or
subsidiaries, or with whom Employer or its parent, affiliates
or subsidiaries enters into any contract or agreement during
the non-compete period hereunder. Employee further agrees not
to negotiate or enter into any contract with any of the above
persons for a period of two (2) years following the expiration
of any such person's contract with Employer or its parent,
affiliates or subsidiaries.
(b) She will not attempt to procure, nor encourage others to
procure, the employment of any employees of Employer or its
parent, affiliates or subsidiaries who are employed at the
time of execution hereof, or such employees as may become
employed by Employer or its parent, affiliates or subsidiaries
during Employee's employment hereunder.
(c) She will not engage in publishing, producing or distributing
Christian and Inspirational Books, Bibles, Electronic
products, Bible Covers, Biblical Reference and Electronic
products, as well as in the design, sale, and distribution of
these products, nor divert to other companies any authors,
writers, editors, designers, packagers, or any other person
under contract with Employer or its parent, affiliates or
subsidiaries, or with whom Employer is negotiating at the
time of termination, (or who was published by Employer or its
parent, affiliates or subsidiaries during the thirty (30)
months prior to Employee's termination), in any geographical
region in which Employer or its parent, affiliates, or
subsidiaries conduct such business or sell such products both
as of the time of execution hereof and throughout the
non-compete period hereunder.
(d) She agrees never to make, utter, write, nor otherwise publish
derogatory or defamatory statements which can, may, or do
cause harm, whether intended or not, to the relationship
between Employer or its parent, affiliates, or subsidiaries
and any of their customers, personnel, producers, artists,
authors, or writers.
5. Remedies
Employee acknowledges that she will receive privileged information from
Employer during her employment and that she will have substantial access
to Employer's trade secrets, business information and personnel data. In
consideration of her employment and the privilege of access to Employer's
trade secrets, information, business methods and procedures, and personnel
data, Employee acknowledges that the restrictions contained within
paragraph 4 are reasonable and necessary in order to preserve Employer's
legitimate interests and that any violation thereof would result in
irreparable injury to Employer for which monetary damages would be an
inadequate remedy. Therefore, Employee acknowledges and agrees that in the
event of any violations thereof, Employer may seek from any court of
competent jurisdiction preliminary and permanent injunctive relief as well
as an equitable accounting of all Employee's profits or benefits arising
out of such violation, which rights shall be cumulative and in addition to
any other action or remedies to which Employer may be entitled at law or
in equity.
In the event that any Non-Competition provision of this Agreement shall be
held by a court of competent jurisdiction to be, in any respect, an
unreasonable restriction of Employee, then the court so holding may reduce
the territory to which it pertains and/or the period of time to which it
operates or effect any other change to the extent necessary to render the
Non-Competition provisions and the Non-Disclosure of Information provisions
of this Agreement enforceable by the said court.
6. Severability of Provisions
In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected nor impaired thereby and such
provisions shall be enforced to the fullest extent possible in accordance
with the mutual intent of the parties hereto.
7. Non-Waiver Agreement
No provision of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing and
is signed by the Employee and an officer of Employer. No waiver by either
party hereto of the other party's compliance with, or breach of, any
condition or provision herein to be performed by said party shall
constitute a simultaneous waiver of any other terms, provisions or
conditions herein nor shall such waiver by either party constitute a
continuing waiver of said pertinent term, provision, or condition
subsequent thereto unless such continuation of waiver is agreed to in
writing by the parties pursuant to the terms of this paragraph.
8. Warranties and Representation
This Agreement, including attachments, contains the entire final and
complete agreement between the parties hereto and no agreements or
representations, oral or otherwise, express or implied, with respect to
the subject matter hereof have been made by either party which are not set
forth expressly in this Agreement. The parties agree that this Agreement
shall supercede and replace all previous contracts or agreements whether
written or oral between Employer and Employee.
9. Applicable Law
The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Tennessee and the
parties hereto submit to the exclusive jurisdiction of the courts of
Davidson County, Tennessee which shall be the venue for resolution of any
dispute arising herefrom. The cost of any such litigation to enforce all
or part of this Agreement, including without limitation, court costs and
attorneys' fees, shall be paid by the party found to be in default
hereunder or who is otherwise found to be acting or to have acted contrary
to the terms hereof.
This Agreement is made and entered into this 26th day of October, 2004.
ACCEPTED BY: FOR XXXXXX XXXXXX, INC.
/s/ Xxxxxx Xxxx /s/ X. X. Xxxxx
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Xxxxxx Xxxx Xxxxxxx Xxxxx
President and COO
