Exhibit 10(n)
EMPLOYMENT AND NONCOMPETE AGREEMENT
THIS EMPLOYMENT AND NONCOMPETE AGREEMENT ("Agreement"), made and
entered into as of the 28th day of January, 1997, by and between J. XXXXXX
XXXX, XX., an individual resident of Gastonia, North Carolina ("Employee") , and
PCA INTERNATIONAL, INC., a North Carolina corporation with its principal
executive offices located in Matthews, North Carolina (the "Company").
IN CONSIDERATION of the promises and the mutual covenants contained
herein, the parties hereto agree as follows:
1. EMPLOYMENT. Subject to the terms and conditions stated herein, and
in consideration of Employee's obligations and covenants, including without
limitation, those obligations and covenants set forth in Section 9 hereof, the
Company agrees to employ Employee on an active and full-time basis, and Employee
accepts such employment, as an Executive Vice President, General Counsel and
Assistant to the Chief Executive Officer, subject to the order, supervision and
direction of the Chief Executive Officer of the Company (the "CEO") (the "CEO").
2. DUTIES. Employee shall serve the Company as an Executive Vice
President, General Counsel and Assistant to the Chief Executive Officer and
shall devote his full business time, skill and best efforts to the business of
the Company and faithfully perform such executive, administrative and
supervisory duties as may be prescribed by the CEO. Employee shall act at all
times in compliance, in all material respects, with all policies, rules and
decisions adopted from time to time by the Board of Directors of which Employee
shall have received written notice. The CEO shall deal with the Employee in good
faith and shall not require that Employee be required to relocate his residence,
travel to the extent that he must spend more nights away from home than are
reasonably required to further the Company's business, or perform tasks which
would be demeaning or degrading to, one in his position.
3. TERM OF EMPLOYMENT. The term of Employee's employment by the Company
hereunder shall commence as of the date hereof and shall continue for a period
of three (3) years after such commencement date (the "Term of Employment").
4. BASE COMPENSATION. The base annual compensation rate to be paid to
Employee for the services to be rendered hereunder ("Base
Rate") throughout the Term of Employment, except to the extent adjusted as
provided below, shall be Two Hundred and Fifty Thousand Dollars ($250,000.00),
payable in accordance with the Company's normal payroll practices, subject to
applicable federal and state income and social security tax withholding
requirements. Employee's Base Rate may be reviewed from time to time by the CEO
and adjusted upward as Employee's performance, the performance of the Company
and other pertinent factors warrant.
5. TERMINATION WITHOUT CAUSE. (a) The Board of Directors or the CEO may
terminate Employee's employment at any time, without cause. However, in the
event of a termination during, at the end of or after the Term of Employment,
other than a Termination for Cause, as hereinafter defined, the Company will pay
in equal monthly installments the following severance:
(i) if such termination occurs during the first 12 months hereof, the
Base Rate for the balance of the term of this Employment Agreement;
(ii) if such termination occurs after the first 12 months hereof, but
prior to the end of the Term of Employment, 200% of the Base Rate. Such payments
shall be made in accordance with the Company's normal payroll practices, subject
to applicable federal and state income and social security tax withholding
requirements.
(b) Employee understands and agrees that this Agreement will not be
renewed at the end of the Term of Employment. In the event the Company does not
offer employment to Employee at the end of the Term of Employment or thereafter
upon the same or better terms and conditions as set forth herein, such event
shall be deemed a termination other than a Termination for Cause and Employee
shall be paid in a lump sum within 10 days of such termination severance equal
to the Base Rate.
(c) Notwithstanding anything herein to the contrary, Employee may
terminate this Employment Agreement at any time after the first 12 months hereof
and receive the following severance:
(i) if such termination occurs during the second 12 months hereof, 200%
of the Base Rate payable in equal monthly installments;
(ii) if such termination occurs during the third 12 months hereof, 100%
of the Base Rate payable in equal monthly installments; or
(iii) if such termination occurs at any time after the first 36 months
hereof, 100% of the Base Rate payable in equal monthly installments.
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(d) The provisions of sub-paragraph (b) and (c)(iii), above, shall
survive the end of the Term of Employment.
(e) In the event any of the monthly payments due hereunder shall become
more than three (3) months past due, Employee shall have the option to
accelerate the remaining payments due hereunder so that they shall be due and
payable in full.
6. TERMINATION FOR CAUSE.
(a) The Board of Directors or the CEO shall have the right at
any time, without advance notice, to terminate Employee's employment for cause,
as hereinafter defined ("Termination for Cause").
(b) Termination for Cause shall mean termination because of
Employee's death, inability to perform his duties hereunder due to an insured
disability, theft from the Company, embezzlement of the Company's funds,
falsification of the Company's records, fraud committed against the Company,
commission of a felonious criminal act involving the Company or while engaged in
conduct of the Company's business, incompetence due to the use of or reporting
to work under the influence of alcohol, narcotics, other unlawful drugs or
controlled substances, legal incapacity, insanity, act or acts involving
dishonesty or misconduct which have or may reasonably be expected to have a
material adverse effect on the business or reputation of the Company, breach of
fiduciary duty to the Company, willful and substantial failure to perform stated
duties or lawful directives of the Board of Directors subject to the provisions
of Section 2 hereof, the CEO or other officer of the Company designated by the
CEO, or material breach of any provision of this Agreement, including without
limitation voluntary termination of this Agreement during the first 12 months of
this Employment Agreement.
(c) In the event of a Termination for Cause, Employee shall
have no right thereafter to receive any compensation or other benefits from the
Company, except for COBRA and rights under vested stock option grants.
(d) The provisions of Section 9 hereof shall continue to be
binding on the parties hereto notwithstanding the termination without cause or
Termination for Cause of Employee.
7. FRINGE BENEFITS, BONUS AND TENURE. Employee shall be entitled to
receive such fringe benefits, including vacation and employee benefit plans, if
any, as are set forth on Exhibit A hereto. Employee shall have the right to
fully participate in any bonus program to the same extent as that provided to
other Executive Vice Presidents or other similarly situated executives. For all
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purposes related to Employee's tenure as an employee, his tenure at American
Studios, Inc. shall be added to his tenure at the Company.
8. EXPENSES. The Company shall reimburse Employee for those expenses
that are incurred by him in connection with the performance of his duties under
this Agreement that are consistent with Company policies and practices, are
reasonably related to the business of the Company and have been approved,
generally or specifically, verbally or in writing, by the CEO.
9. NONCOMPETITION, SECRECY AND INVENTIONS.
(a) Employee specifically acknowledges and agrees that his
employment with the Company will bring him in personal contact with accounts and
customers of the Company, and will enable him to acquire valuable information as
to the nature and character of the business of the Company and the requirements
of the accounts and customers of the Company. Employee acknowledges and agrees
that in the event he were to become employed by some other employer or enter the
same or similar business as the Company on his own or in conjunction with others
in competition with the Company, such personal contacts with the customers and
accounts of the Company and the knowledge of such valuable information would
give to Employee an unfair competitive advantage.
Throughout the Term of Employment and for a period of two (2) years
thereafter (Employee's Term of Employment and the two-year period thereafter,
together, the "Term of the Covenants"), Employee shall not, directly or
indirectly, as principal, agent, manager, employee, partner, shareholder,
director, officer, consultant or otherwise, participate in or engage in the
Lines of Business, as hereinafter defined; provided, however, that Employee may
own up to one percent (1%) of the outstanding securities of any corporation
which is engaged in the Lines of Business, so long as such securities are traded
on a national securities exchange or are included in the National Association of
Securities Dealers Quotation System. "Lines of Business" for purposes of this
Section 9 shall mean the provision of portrait photography services through
itinerant or traveling operations or permanent studios or any other portrait
photography service, the processing or developing of photographic film in
connection with such provision and any other lines of business in which the
Company may engage during the Term of Employment.
(b) In performing the covenants set forth in this Section 9
(all of the covenants of Employee set forth in this Section 9, together, the
"Covenants Not to Compete"), Employee shall not, without limitation, during the
Term of the Covenants engage in the Lines of Business with any of the following:
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1. any client, account or customer of the Company, or
any subsidiary or affiliate of the Company, that has
done business with the Company or such affiliate or
subsidiary within two (2) years of the date of any
alleged competitive act by Employee;
2. any client, account or customer of the Company, or
any subsidiary or any affiliate of the Company, that
has transacted any business with the Company within
the twelve months preceding the date of this
Agreement;
3. Wal-Mart Stores, Inc. or any subsidiary thereof
("Wal-Mart");
4. any affiliate of Wal-Mart, including without
limitation Sam's Wholesale Club, HYPERMART*USA and
Wal-Mart SuperCenters (a "Wal-Mart Affiliate");
5. KMart Corporation or any subsidiary thereof
("KMart");
6. any affiliate of KMart, including without limitation
KMart SuperCenters (a "KMart Affiliate");
7. PETsMART, Inc. or any subsidiary thereof
("PETsMART");
8. any affiliate of PETsMART (a "PETsMART Affiliate");
9. any current or prospective institutional customer
("Institutional Customer");
10. CPI Corp.;
11. Lifetouch National School Studios, Inc.;
12. any Wal-Mart store that does business with the
Company during the Term of the Covenants;
13. any Wal-Mart Affiliate store that does business with
the Company during the Term of the Covenants;
14. any Wal-Mart store with which the Company previously
conducted business but no longer conducts business or
the Board of Directors reasonably expects to do
business during the Term of the Covenants;
15. any Wal-Mart Affiliate store with which the Company
previously conducted business but no longer
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conducts business or the Board of Directors
reasonably expects to do business during the Term of
the Covenants;
16. any PETsMART store that does business with the
Company during the Term of the Covenants;
17. any PETsMART Affiliate store that does business with
the Company during the Term of the Covenants;
18. any PETsMART store with which the Company previously
conducted business but no longer conducts business or
the Board of Directors reasonably expects to do
business during the Term of the Covenants;
19. any PETsMART Affiliate store with which the Company
previously conducted business but no longer conducts
business or the Board of Directors reasonably expects
to do business during the Term of the Covenants;
20. any Institutional Customer with which the Company
previously conducted business but no longer conducts
business or the Board of Directors reasonably expects
to do business during the Term of the Covenants;
21. any KMart store that does business with the Company
during the Term of the Covenants;
22. any KMart store that does business with the Company
during the Term of the Covenants;
23. any KMart store with which the Company previously
conducted business but no longer conducts business or
the Board of Directors reasonably expects to do
business during the Term of the Covenants;
24. any KMart Affiliate store with which the Company
previously conducted business but no longer conducts
business or the Board of Directors reasonably expects
to do business during the Term of the Covenants;
25. Xxxxx, X.X. de C.V.;
26. Aurrera, S.A. de C.V., a subsidiary of Xxxxx, X.X. de
C.V.;
27. any other subsidiary of Xxxxx, X.X. de C.V.;
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28. Xxxx Xxxxx;
29. Expressly Portraits;
30. any employee or former employee of the Company, whose
employment with the Company terminated less than two
(2) years prior to Employee's association with such
employee or former employee, within a ten-mile radius
of any Wal-Mart store or any store in which the
Company has engaged in the Lines of Business within
six (6) months prior to Employee's engaging in the
Lines of Business; or
31. any person or entity in the geographic areas listed
in paragraph 10(c) hereinbelow.
(c) In performing the Covenants Not to Compete, Employee shall
not, without limitation, during the Term of the Covenants engage in the Lines of
Business in any of the following geographic areas:
1. The United States of America;
2. The State of Alabama;
3. The State of Arizona;
4. The State of Arkansas;
5. The State of California;
6. The State of Colorado;
7. The State of Connecticut;
8. The State of Delaware;
9. The District of Columbia;
10. The State of Florida;
11. The State of Georgia;
12. The State of Idaho
13. The State of Illinois;
14. The State of Indiana;
15. The State of Iowa;
16. The State of Kansas;
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17. The State of Kentucky;
18. The State of Louisiana;
19. The State of Maine;
20. The State of Maryland;
21. The State of Massachusetts;
22. The State of Michigan;
23. The State of Minnesota;
24. The State of Mississippi;
25. The State of Missouri;
26. The State of Montana
27. The State of Nebraska;
28. The State of Nevada
29. The State of New Hampshire;
30. The State of New Jersey;
31. The State of New Mexico
32. The State of New York;
33. The State of North Carolina;
34. The State of North Dakota;
35. The State of Ohio;
36. The State of Oklahoma;
37. The State of Oregon;
38. The State of Pennsylvania;
39. The Commonwealth of Puerto Rico;
40. The State of Rhode Island;
41. The State of South Carolina;
42. The State of South Dakota;
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43. The State of Tennessee;
44. The State of Texas;
45. The State of Utah
46. The State of Vermont;
47. The State of Virginia;
48. The State of Washington;
49. The State of West Virginia;
50. The State of Wisconsin;
51. The State of Wyoming;
52. Mexico;
53. Canada;
54. Puerto Rico;
55. South America;
56. Latin America;
57. Asia;
58. China; and
59. Counties in each State of the United States where the
Company has customers.
(d) As applied to the categories of persons, firms and
entities and geographic areas covered by the Covenants Not to Compete, the
provisions of paragraphs 9(b) and 9(c), respectively, shall be completely
severable and independent, and any invalidity or unenforceability thereof as
applied to any of such persons, firms or entities or geographic areas shall not
affect the validity or enforceability thereof as applied to any one or more of
the other persons, firms or entities or geographic areas.
(e) Throughout the Term of the Covenants, Employee shall not
directly or indirectly cause or attempt to cause any supplier or customer of the
Company, or any of its subsidiaries or affiliates, or any governmental body or
public agency, not to do business with the Company or such subsidiary or
affiliate or to transfer all or part of its business from the Company, or such
subsidiary or affiliate, or otherwise interfere or attempt to interfere with any
business relationship between the Company, or
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any of its subsidiaries or affiliates, and any of such suppliers, customers,
government bodies or public agencies.
(f) Employee acknowledges that irreparable injury will result
to the Company from any breach of the Covenants Not to Compete and there is no
adequate remedy at law to redress a breach or threatened breach of the Covenants
Not to Compete As a result of the foregoing, Employee agrees that the parties
seeking to enforce any of such provisions shall be entitled to an injunction or
other equitable relief against Employee to restrain him from such breach, and
Employee waives any claim or defense that the Company has an adequate remedy at
law for any such breach; provided, however, that nothing contained herein shall
prohibit the Company, or any subsidiary or affiliate of the Company, from
pursuing any other remedy it may have, including without limiting the generality
of the foregoing the recovery of damages.
(g) If any court determines that any provision of this Section
9, or any part thereof, is invalid or unenforceable, the remainder of this
Section 9 shall not thereby be affected and shall be given full effect, without
regard to the invalid portions. If any court determines that any provision of
this Section 9, or any part thereof, is unenforceable because of the duration or
geographic scope of such provision, the parties agree that such court shall have
the power to reduce the duration or scope of such provision, as the case may be,
and the parties agree to request the court to exercise such power, and, in its
reduced form, such provision shall then be enforceable and shall be enforced.
The provisions of this Section 9 shall survive the termination of this
Agreement, for whatever reason.
(h) At all times, both during and after the termination of his
employment, Employee shall keep and retain in confidence and shall not, without
the prior written consent of the Company, disclose to any persons, firm or
corporation or otherwise use for his own benefit or the benefit of another any
of the proprietary, confidential or secret information or trade secrets of the
Company. Further, Employee and the Company agree to keep confidential the terms
and conditions of this Agreement except for such disclosure as may be required
(i) in the event of a breach of this Agreement, (ii) compulsion by law or court
order, or (iii) as may be required by any applicable provision of law.
(i) In consideration of employment, and the compensation paid
to Employee as an employee of the Company, Employee hereby recognizes as the
exclusive property of, and assigns, transfers and conveys to, the Company
without further consideration each invention, discovery or improvement
(hereinafter collectively refer@ed to as "inventions") made, conceived,
developed or first reduced to practice by Employee (whether alone or jointly
with others) during the Term of Employment or within one (1) year thereafter
which relates in any way to Employee's work at the
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Company or any of its subsidiaries or affiliates. Employee will communicate to
the Company current written records of all such inventions, which records shall
be and remain the property of the Company. Upon request by the Company, Employee
will at any time execute documents assigning to the Company, or its designees,
any such invention or any patent application or patent granted therefor, and
will execute any papers relating thereto. Employee also will give all reasonable
assistance to the Company, or its designee, regarding any litigation or
controversy in connection with his inventions, patent applications, or patents,
all expenses incident thereto to be assumed by the Company.
(j) Notwithstanding anything herein to the contrary, any participation
in or engagement in the Lines of Business by Interactive Solutions, Inc., a
North Carolina corporation, or any successor thereto, or by Xxxxx Xxxxxxx, a
resident of North Carolina, shall be a breech of this Section 9 by Employee.
10. GOVERNING LAW. This Agreement shall be construed and governed under
the laws of the State of North Carolina.
11. BINDING NATURE. Except as expressly provided herein, this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, successors and assigns. The obligations and covenants of
Employee are personal in nature and, as such, are not assignable by him.
12. ENTIRE AGREEMENT; PRIOR ORAL AGREEMENT; AMENDMENT. This Agreement
contains the entire agreement of the parties with respect to the matters set
forth herein and supersedes all prior written and prior or contemporaneous oral
agreements or understandings of the parties hereto. This Agreement confirms and
sets forth the prior oral agreement of the parties as to the terms and
conditions of Employee's employment by the Company stated herein, including
without limitation, the obligations and covenants of Employee set forth in
Section 9 hereof, and Employee's agreement to enter into a written employment
agreement with the Company, as of the date his employment by the Company
commenced, stating such terms and conditions. This Agreement may be changed or
amended only by an agreement in writing signed by both parties hereto.
13. SEVERABILITY, INVALIDITY OR UNENFORCEABILITY. The severability,
invalidity or unenforceability of any paragraph or part of any paragraph herein
shall not in any way affect the validity or enforceability of any other
paragraph or any part of any other paragraph.
14. PRIOR AGREEMENTS AND COVENANTS OF EMPLOYEE. Employee hereby
warrants and represents that he is not a party to any agreement or binding
obligation, oral or written, that would prevent his employment by the Company,
and Employee's execution of this
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Agreement and his fulfillment of his duties and obligations hereunder do not and
will not violate the provisions of any agreement, contract, loan document or
other binding written or oral obligation.
15. NOTICES. Any notice, offer, acceptance or other document required
or permitted to be given pursuant to any provisions of this Agreement shall be
in writing, signed by or on behalf of the person giving the same, and (as
elected by the person giving such notice) delivered by hand or mailed to the
parties at the following addresses by registered or certified mail, postage
prepaid, return receipt requested, or by a third party company or governmental
entity providing delivery services in the ordinary course of business, which
guarantees delivery on a specified date:
If to Employee: J. Xxxxxx Xxxx, Xx.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
If to the Company: PCA International, Inc.
000 Xxxxxxxx-Xxxx Xxxx Xxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxxx
With copies to: Xxxxxx X. Xxxxxx
XXXXXXXX, XXXXXXXX & XXXXXX, P.A.
One Independence Center
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
(000) 000-0000
or to such other address as any party hereto may designate by complying with the
provisions of this Section 15.
Such notice shall be deemed given (i) as of the date of written
acknowledgment by Employee or an officer of the Company if delivered by hand,
(ii) seventy-two (72) hours after deposit in United States mail if sent by
registered or certified mail or (iii) on the delivery date guaranteed by the
third party delivery service if sent by such service.
Rejection or other refusal to accept or inability to deliver because of
changed address of which no notice has been received shall not affect the date
upon which the notice is deemed to have been given pursuant hereto.
Notwithstanding the foregoing, no notice of change of address shall be effective
until the date of receipt hereof.
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16. STOCK OPTION GRANT. Employee will be granted an option to purchase
150,000 shares of the Company's common stock on the date hereof, having an
exercise price equal to 100% of the closing price at which a share of Common
Stock trades on the date of the grant's Effective Date, all as defined in the
PCA International, Inc. 1996 Omnibus Long-Term Compensation Plan (the "Plan").
Such option shall be treated as a nonqualified stock option for federal income
tax purposes. Such option shall terminate on a date that is ten (10) years
following the date of grant. Such options shall become exercisable on the
earlier of (i) the termination of this Employment Agreement by Employee, (ii)
the termination by the Company without Cause of this Employment Agreement or
(iii) in three (3) equal annual increments on each of the first, second, and
third anniversaries of the date of grant. Upon the death of Employee during such
10-year period, the options granted hereunder shall be transferred to his estate
or as directed by his will.
IN WITNESS WHEREOF, J. Xxxxxx Xxxx, Xx. has set his hand and seal
hereto and PCA International, Inc. has caused this Agreement to be executed and
sealed in its name by its duly authorized officials as of the day and
year first above written.
EMPLOYEE:
/s/ J. Xxxxxx Xxxx, Xx.
---------------------------(SEAL)
J. XXXXXX XXXX, XX.
COMPANY:
PCA INTERNATIONAL, INC.
By: /s/ Xxxx Xxxxxx
-----------------------
Xxxx Xxxxxx
President and CEO
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EXHIBIT A
FRINGE BENEFITS
1. Employee shall be entitled to twenty (20) days paid vacation during
the first year of employment and twenty (20) days paid vacation each year of
employment thereafter. Vacation time is not cumulative.
2. Employee shall be entitled to sick leave in accordance with the
plans and procedures established by the Board of Directors.
3. Employee shall be entitled to such life insurance and disability
insurance or other disability benefits, if any, as are provided by the Company
to its employees from time to time.
4. Employee shall be entitled to receive benefits as are afforded to
other Executive Vice Presidents or similarly situated executives.
