EXHIBIT 10.2
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 Xxxxxx
Xxxxxx ("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 Vice President
Administration of Xxxxx, shall exercise the authority and assume
the responsibilities of an executive officer of a Company of the
size and nature of Xxxxx, and shall assume such other duties as
the Chief Executive Officer and/or Board of Directors of Xxxxx
may prescribe consistent with duties of an executive officer of a
printing company of such size as Xxxxx including without
limitation such positions and duties with Xxxxx'x subsidiaries as
assigned by the Chief Executive Officer and/or 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.
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3. Compensation. Xxxxx shall compensate Employee for the
services rendered under this Agreement as follows:
(a) A base annual salary determined by the Chief
Executive Officer and/or Board of Directors of Xxxxx consistent
with its practices for executive officers of Xxxxx, but not less
than $200,000 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) Such bonuses under the Executive Annual Incentive
Plan or subsequent plan, if any, as shall be determined by the
Chief Executive Officer and/or Board of Directors of Xxxxx
consistent with its practices for executive officers of Xxxxx.
(c) 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.
(d) The Chief Executive Officer and/or 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 Chief Executive Officer and/or 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
Chief Executive Officer and/or 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 Chief Executive
Officer and/or Board of Directors, in its sole discretion, shall
adopt for select employees to compensate them for special or
extenuating circumstances.
(b) Employee shall be entitled to an annual vacation
leave at full pay as may be provided for by Xxxxx'x vacation
policies applicable to executive officers, but in any event such
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paid vacation shall not be less than three 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 $6,000.
(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 Chief
Executive Officer and/or 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 Chief
Executive Officer and/or 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.
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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 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)
one times (1x) 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 one times (1x) 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
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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 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 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'x 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'x
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'x net assets or shall approve the
dissolution of the Company;
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(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
(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) one-half times (.5x) employee's Base Annual salary
rate and (ii) a Severance Bonus equivalent to one-half times
(.5x) the bonus earned or paid for the previous fiscal year
pursuant to Section 3 (a) and 3 (b). For Termination With Cause,
Employee shall be eligible for a severance payment equal to
(.25x) employee's Highest Base Annual salary rate 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 three months
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'x liability hereunder shall be limited to
such expenses, as is customary and reasonable in the Dallas area
for the executive's level of responsibility, incurred by the
Employee. The Employee shall provide Xxxxx with reasonable
documentation of the incurrence of such outplacement costs and
expenses.
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(d) The Employee's outstanding stock options and any
other long-term incentive award shall vest according to the terms
of the Long-Term Incentive Plan.
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
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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 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 Chief
Executive Officer and/or 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
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