EMPLOYMENT AGREEMENT
This Agreement dated as of April 15, 1996 by and between HA-LO INDUSTRIES,
INC., an Illinois corporation (hereinafter the "Company"), and XXXX XXXXXX,
(hereinafter referred to as the "Executive").
W I T N E S S E T H
WHEREAS, the Company and the Executive desire to enter into this Agreement,
whereby the Company will be assured of the right to the Executive's services,
skills and expertise for the period and on the terms and conditions hereinafter
set forth, and the Executive will be assured of employment on such terms and
conditions.
NOW THEREFORE, in consideration of the foregoing, the Company and the
Executive hereby agree as follows:
1. EMPLOYMENT. Subject to the terms and conditions hereinafter set
forth, the Company hereby employs the Executive as Vice
President-Planning, of the Company and the Executive hereby accepts
such employment.
2. TERM. Subject to earlier termination in accordance with the provisions
of Section 6 of this Agreement, the term of the employment of the
Executive by the Company pursuant to this Agreement (the "Term") shall
be for a period of one (1) year, commencing on the date of closing
under this Agreement provided however, that the Term shall be
automatically extended, unless either party elects not to do so and
gives written notice to the other party at least ninety (90) days
prior to such scheduled termination date of their election not to so
extend.
3. EMPLOYMENT SERVICES. During the Term of his employment pursuant to
this Agreement, the Executive shall render his services to the Company
as Vice President Planning, of the Company, or in such other
capacities as the President or Board of Directors of the Company may,
from time to time, reasonably designate. The Executive shall report to
the Chief Financial Officer of the Company in the performance of his
duties hereunder. The Executive shall devote all of his business
time, efforts and his energy and skill to the business of the company
and, the Executive will not engage in the active operation of any
other business.
4. COMPENSATION. In consideration of the services to be rendered by the
Executive to the Company pursuant to this Agreement, the Company
agrees to pay the executive during the Term, and the Executive agrees
to accept the following:
a. A base salary at the rate of One Hundred Fourteen Thousand
Dollars ($114,000) per annum, payable in installments during
the Term hereof in accordance with the normal practice of
the Company.
b. Discretionary bonus being determined by the President or
Board of Directors.
c. Upon execution of this Agreement, the Executive shall
receive options ("Options") to purchase ten thousand
(10,000) shares of the Company's common stock. The Options
shall be issued pursuant to the HA-LO Industries, Inc. Stock
Plan and shall be exercisable at a purchase price equal to
the Fair Market Value at the date of grant (as defined in
the
Stock Plan). The Options shall vest and be exercisable by
Executive one year from date of grant.
i. Except as provided below, the Option shall be
valid for a term commencing as of the date of
grant ("Date of Grant") and ending ten (10) years
from the date of Grant (the "Termination Date").
ii. If Executive is in default or otherwise breaches
the covenants set forth in this Agreement, or
otherwise ceases to be employed by the Company for
any reason other than death, permanent disability
or a "change in control" (as hereinafter defined),
all unvested Options shall be immediately
forfeited and all vested Options previously
granted to executive shall be exercisable at any
time prior to the earlier of (i) the Termination
date, or (ii) within sixty (60) days after the
date of Executive's breach of this Agreement, or
termination of employment.
iii. For purposes of this agreement, the term "change
in control" shall mean the acquisition, on or
after the date of this Agreement, of more than
fifty percent (50%) of the voting rights with
respect to outstanding common capital stock of
Employer, by a person, or group of persons acting
in concert, other than Xxx Xxxxxxxx.
5. EMPLOYEE BENEFITS. During the Term of this Agreement, the Executive
shall be entitled to the following benefits:
a. The Executive shall be entitled to participate, subject to
qualification requirements, in medical or other insurance or
hospitalization plans which are presently maintained or
hereinafter instituted by the Company and are made generally
available to employees of the Company.
b. The Company shall reimburse the Executive for reasonable
out-of-pocket business expenses which the Executive shall incur
in connection with his services for the Company hereunder in
accordance with Company policy upon presentation by the Executive
of appropriate support.
c. Subject to the rules of the Company, the Executive shall be
entitled to vacation leave of four (4) weeks during any calendar
year.
d. Subject to qualification and other requirements, the Executive
shall be entitled to participate in any profit sharing/401(k),
bonus or management incentives (including Non-Qualified Key
Employee Plan), pension, retirement or insurance plan maintained
by the Company and made generally available to employees of the
Company.
6. TERMINATION.
i. The Term of this Agreement and the Executive's employment
hereunder shall terminate upon the first to occur of the
following events: (1) the mutual agreement of the Company and
the Executive to so terminate this Agreement, (2) the death or
disability (as hereinafter defined) of the Executive, or (3) the
Company's election to terminate this Agreement and the
Executive's employment hereunder "For Cause" (as hereinafter
defined). The term "Disability" shall mean any mental, physical
or emotional disability or condition which is reasonably expected
to last for one hundred twenty (120) days or more, and which
prevents the Executive from performing substantially all of his
duties hereunder. Disability shall be determined by a physician
selected by the Company with reasonable approval of Executive.
2
ii. The term "For Cause" shall mean any of the following: A) the
commission by the Executive of a breach of any material covenant,
provision, term or condition set forth in this Agreement; or B)
the commission by the Executive of a felony or crime; or C) the
commission by the Executive of an act of personal dishonesty or
fraud involving personal profit, including, without limitation,
theft, embezzlement, fraud or other misappropriation of funds.
iii. In the event that there is a "change in control", as previously
defined, in the initial 12 months of employment and the Executive
is terminated because of this, the Company shall be obliged to
continue to pay the Executive his salary for one year.
7. EXECUTIVE'S REPRESENTATION. The Executive hereby represents and
warrant to and with the Company that the Executive is not subject to
any covenants, agreements or restrictions including without limitation
any covenants, agreement or restrictions arising out of the
Executive's prior employment or independent contractor relationships,
which would be breached or violated by the Executive's execution of
this Agreement or by Executive's performance of his duties hereunder.
8. CONFIDENTIALITY. Executive acknowledges that by virtue of his
employment with Company, he has been and/or will be exposed to or has
had or will have access to confidential information regarding
Company's business, including but not limited to, trade secrets and
proprietary information, all of which are proprietary to Company
referred to collectively as "Proprietary Information". Executive
acknowledges that Company's Proprietary Information constitutes a
proprietary and exclusive interest of Company, and, therefore, agrees
that during the term of his employment and thereafter, for any reason
whatsoever, Executive shall hold and keep secret the Proprietary
Information as described herein, as to which the Executive is now or
any time during his employment shall become informed, and Executive
shall not directly or indirectly disclose any such information to any
person, firm, court, governmental agency or corporation or use the
same except in connection with the business and affairs of Company.
9. NON-DISTURBANCE OF EMPLOYEES; NON-DISPARAGEMENT. The Executive
covenants that during the Term and for a period of two (2) years after
the termination thereof, for any reason whatsoever, the Executive
shall not, directly or indirectly, as an employee, agent, salesman or
member of any person, corporation, firm or otherwise (a) solicit any
employee, agent or independent contractor sales representative of the
Company, the product of which contact will or may yield a termination
of relationship of such employment, agency or independent contractor
sales representative relationship of such employees, agents or
independent contract sales representatives from the Company, or (b)
make, whether in writing or orally, disparaging statements or
inferences with respect to the company, its respective business,
officers or shareholders.
10. RETURN OF MATERIALS. The Executive will, at any time upon the
request of the Company, and in any event upon the termination of his
employment, for whatever reason, immediately return and surrender to
the company originals and all copies of all records, notes, memoranda,
electronic files, personal computers, computer discs, computer
equipment, telephones, price lists, customer and customer prospects
lists, business plans, recordings and other documents and other
property belonging to the Company, created or obtained by the
Executive as a result of or in the course of or in connection with the
Executive's employment with the Company. The executive acknowledges
that all such materials are, and will always remain, the exclusive
property of the Company.
11. REVISION. In the event that any of the provisions, covenants,
warranties or agreements in this Agreement are held to be in any
respect an unreasonable restriction upon or are otherwise invalid, for
whatsoever cause, then the court so holding shall reduce and is so
authorized to
3
reduce, the territory to which it pertains and/or the period of time
in which it operates, to the scope of activity to which it pertains or
effect any other change to the extent necessary to render any of the
restrictions of the Agreements enforceable.
12. GENERAL PROVISIONS.
a. SEVERABILITY. Each of the terms and provisions of this Agreement
is to be deemed severable in whole or in part and, if any term or
provision of the application thereof in any circumstances should
be invalid, illegal or unenforceable, the remaining terms and
provisions or the application thereof to circumstances other than
those as to which it is held invalid, illegal or unenforceable,
shall not be affected thereby and shall remain in full force and
effect.
b. BINDING AGREEMENT. This Agreement shall be binding upon the
parties, their heirs, successors, personal representatives and
assigns. The Company may assign this agreement to any successor
in the interest to the business, or part thereof, of the Company.
The Executive may not assign any of his obligations or duties
hereunder.
c. CONTROLLING LAW AND JURISDICTION. This Agreement shall be
governed by and interpreted and construed according to the laws
of the State of Illinois. The Executive hereby consents to the
jurisdiction of the state and federal courts in Illinois in the
event that any disputes arise under this Agreement.
d. ENTIRE AGREEMENT. This instrument contains the entire agreement
of the parties with regard to the subject matter hereof, may not
be changed orally, but only by an agreement in writing signed by
the parties hereto.
e. FAILURE TO ENFORCE. The failure to enforce any of the provisions
of this Agreement shall not be construed as a waiver of such
provisions. Further, any express waiver by any party with respect
to any breach of any provision hereunder by any other party shall
not constitute a waiver of such party's right to thereafter fully
enforce each and every provision of the Agreement.
f. SURVIVAL. Subject to the provisions hereof, the obligations
contained in this Agreement shall survive the termination, for
any reason whatsoever, for cause or otherwise, of the Executive's
employment with the Company.
g. HEADINGS. All numbers and headings of sections are for reference
only and are not intended to qualify, limit or otherwise affect
the meaning or interpretation of any Section.
h. NOTICES. All notices which are required, permitted or
contemplated hereunder to be given or made shall be given or made
in writing by certified mail (return receipt required) to the
Executive at 0000 XXXXXXXXXX XXXX, XXXXXXXXX, XXXXXXXX 00000,
and to the Company at 0000 Xxxx Xxxxx Xxxxxx, Xxxxx, Xxxxxxxx,
00000, Attention: President.
i. GENDER. The masculine, feminine or neuter pronouns used herein
shall be interpreted without regard to gender, and the use of the
singular or plural shall be deemed to include the other whenever
the context so requires.
4
WHEREFORE, the parties have executed this Agreement on the date and year first
above written.
HA-LO INDUSTRIES, INC. EXECUTIVE:
By: Xxxxxxx X. Xxxxx Xxxx Xxxxxx
Its: Chief Financial Officer
5
