EMPLOYMENT AGREEMENT
EXHIBIT 10.15
This Employment Agreement (“Agreement”) is entered into as of this 14th day of
January, 2000, by and between COMMEMORATIVE BRANDS, INC. and any successors thereto (collectively
referred to as the “Company”) and XXXXXX X. XXXXX (“Executive”).
The parties hereby agree as follows:
1. Employment. Executive will serve the Company in a capacity in such office as from
time-to-time shall be determined by the President and CEO, 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. 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 impair Executive’s ability to carry out his duties under this Agreement.
2. Term. This Agreement shall be effective on January 14, 2000 and shall thereafter
terminate on January 14, 2001, unless sooner terminated in accordance with this Agreement. Not
withstanding 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 one year 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 one year from the date
of such notice, and shall not be subject to further extension. Unless this Agreement is terminated
in the manner as aforesaid, thus 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 one year remaining
Employment Term.
3. Compensation and Other Benefits
3.1 Salary. The salary compensation to be paid by the company to Executive and which
Executive agrees to accept from the Company for services performed and to be performed by Executive
hereunder shall be an annual gross amount, before applicable withholding and other payroll
deductions, of $150,000.00, payable in equal bi-weekly installments of $5,769.23, subject to such
changes as the President may, in his sole discretion, from time-to-time determine, but in no case
less than the bi-weekly amount specified above.
3.2 Benefits. Executive shall be entitled to participate in such Executive benefit
programs, plans and policies (including incentive bonus plans and incentive stock option plans) as
are maintained by the Company and as may be established for the Executives of the Company from
time-to-time on the same basis as other Executives are entitled thereto. It is understood that the
establishment, termination or change in any such Executive 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 program, plan or policy will not affect this Agreement
so long as Executive is treated on the same basis as other Executives participating in such
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
Executive benefit programs, plans or policies shall be governed solely by the terms of the program,
plan or policy itself and not 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 Executive of the Company (and, to the extent applicable, the Company’s
predecessors).
4. Working Facilities. During the term of his employment under this Agreement, Executive
shall be furnished with a private office, stenographic services 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.
5. 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.
6. Termination. Executive’s employment under this Agreement may be terminated with or
without cause or reason by either Company or Executive upon the following terms and conditions.
6.1 Termination by Company for Cause. If any of the following events or circumstances
occur, the Company may terminate Executive’s employment under this Agreement at any time during
this Agreement for any of the following causes (each a “Cause”).
| i. | Executive’s conviction of a felony; | ||
| ii. | Executive’s intentional failure to observe or perform material provisions of this Agreement required to be observed or performed by him; or | ||
| iii. | Executive’s intentional substantial wrongful damage to property of the Company. |
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
the Termination Payment or Termination Benefits (as such terms are defined below) except aforesaid
vacation and any accrued bonus.
6.2 Termination by Company Without 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 Cause as defined in Paragraph 6.1
above, Executive will be entitled to receive 26 bi-weekly payments equal to his bi-weekly
compensation in effect at the time of such
termination, less legally required withholdings. In addition to the
Termination Payments, Executive will be entitled to elect the continuation of health benefits under
COBRA and the Company will pay COBRA premiums for an 18-month period, beginning on
the date that Executive’s health coverage ceases
due to his termination, accrued but unused vacation and any accrued bonus (“Termination Benefits”).
If Executive obtains employment while he is entitled to receive the Termination Payments and the
Termination Benefits, each Termination Payment shall be reduced by the amount of his bi-weekly
compensation to be received in connection with his new employment. The combination of the
Termination Payments and the Termination Benefits constitute the sole amount to which Executive is
entitled if termination is without Cause.
6.3 Termination by Executive Without Good Reason. Executive may terminate his
employment under this Agreement without Good Reason as defined in Paragraph 6.4 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 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 6.3 shall be payable upon
Executive’s termination of this Agreement without Good Reason.
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6.4 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, the assignment to Executive of substantial duties inconsistent with Executive’s then-current position, duties, responsibilities and status with the Company, or any removal of Executive from his titles and offices, except in connection with the termination of Executive’s employment under this Agreement by Company or as a result of Executive’s death or permanent disability (as defined in the Company’s or Executive’s disability insurance policies); | ||
| (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 all reasonable moving expenses incurred by Executive relating to a change of Executive’s principal residence in connection with such relocation 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 salary from the salary in effect upon the date hereof that is inconsistent with or not commensurate with Executive’s then current position with the Company. |
In the event of termination under this Section 6.4, 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 Cause.
6.5 Death or Permanent Disability. Executive’s employment under this Agreement shall
terminate upon Executive’s death or permanent disability (as defined in the Company or Executive’s
disability insurance policies). Other than accrued but unused vacation and any accrued but unpaid
bonus, no Termination Payments or Termination Benefits shall be payable upon Executive’s death or
permanent disability.
6.6 Release Agreement. The Termination Payments and Termination Benefits pursuant to
Section 6 are contingent upon Executive executing a Release Agreement after termination, a copy of
which is attached to this Agreement. 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.
7. 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) at
Company’s direction or (b) 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.
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8. Covenant not to Compete or Solicit.
8.1 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 division, subsidiaries and/or other affiliated entities,
including but not limited to, as an Executive, consultant, independent representative, partner or
proprietor.
8.2 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 sports, insignia, 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.
8.3 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 Executive 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.
8.4 Executive further agrees that the covenants in Sections 8.1 and 8.2 are made to protect
the legitimate business interests of the Company, including interests in the Company’s
“Confidential Information,” as defined in Section 7 of this Agreement, and not to restrict his
mobility or to prevent him from utilizing his skills. Executive understands as a part of these
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.
9. Controlling Law and Performability. The execution, validity, interpretation and
performance of this Agreement will be governed by the law of the State of Texas.
10. 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.
11. 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:
| If to Executive: | Xx. Xxxxxx X. Xxxxx | |||
| 0000 Xxxxxxx Xxxx | ||||
| Xxxxx, Xxxxx 00000 | ||||
| If to the Company: | Chief Executive Officer | |||
| Commemorative Brands, Inc. | ||||
| 0000 Xxxxxx X Xxxx | ||||
| Xxxxxx, XX 00000 |
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12. 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.
13. 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.
14. Review and Consultation. Executive acknowledges that he has had a reasonable time to
review and consider this Agreement and has been given the opportunity to consult with an attorney.
15. 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.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date and year first above
written.
| COMMEMORATIVE BRANDS, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title : Chief Executive Officer | ||||
| EXECUTIVE |
||||
| /s/ Xxxxxx X. Xxxxx | ||||
| Xxxxxx X. Xxxxx | ||||
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SEPARATION AND RELEASE AGREEMENT
This Separation and Release Agreement (“Agreement”), dated
between COMMEMORATIVE BRANDS, INC. and any successor thereto (collectively, the “Company”) and
XXXXXX X. XXXXX (“Employee”).
Employee and Company agree as follows:
1. The employment relationship between Employee and Company terminated on
(the “Termination Date”).
2. In accordance with Employee’s Employment Agreement, the Company has agreed to pay Employee,
after the Termination Date, 26 bi-weekly payments less required withholdings and certain other
benefits.
3. In consideration of the above, the sufficiency of which Employee hereby acknowledges,
Employee, on behalf of Employee and his heirs, executors and assigns, hereby releases and forever
discharges the Company and its members, parents, affiliates, subsidiaries, divisions, any and all
current and former directors, officers, employees, agents, and contractors and their heirs and
assigns, from all claims, charges, or demands, in law or in equity, whether known or unknown, which
may have existed or which may now exist from the beginning of time to the date of this
letter agreement, including, without limitation, any claims Employee may have arising from or
relating to Employee’s employment or termination from employment with the Company, including a
release of any rights or claims Employee may have under Title VII of the Civil Rights Act of 1964,
as amended, and the Civil Rights Act of 1991 (which prohibit discrimination in employment based on
race, color, sex, religion, and national origin); the Americans with Disabilities Act of 1990, as
amended, and the Rehabilitation Act of 1973 (which prohibit discrimination based upon disability);
the Family and Medical leave Act of 1993 (which prohibits discrimination based on requesting or
taking a family or medical leave); Section 1981 of the Civil Rights Act of 1866 (which prohibits
discrimination based upon race); Section 1985(3) of the Civil Rights Act of 1871 (which prohibits
conspiracies to discriminate); the Employee Retirement Income Security Act of 1974, as amended
(which prohibits discrimination with regard to benefits); any other federal, state or local laws
against discrimination; or any other federal, state, or local statute, or common law relating to
employment, wages, hours, or any other terms and conditions of employment. This includes a release
by Employee of any claims for wrongful discharge, breach of contract, torts or any other claims in
any way related to Employee’s employment with or resignation or termination from the Company. This
release also includes a release of any claims for age discrimination under the Age Discrimination
in Employment Act, as amended (“ADEA”). The AREA requires that Employee be advised to consult with
an attorney before Employee waives any claim under ADEA. In addition, the ADEA provides Employee
with at least 21 days to decide whether to waive claims under ADEA and seven days after Employee
signs the Agreement to revoke that waiver.
Additionally, Company agrees to discharge and release Employee and his heirs from any claims,
demands, and/or causes of action whatsoever, presently known or unknown, that are based upon facts
occurring prior to the date of this Agreement, including, but not limited to, any claim, matter or
action related to Employees employment and/or affiliation with, or termination and separation from
Company.
4. This Agreement is not an admission by either Employee or Company of any wrongdoing or
liability.
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5. Employee agrees that he waives any right to reinstatement or future employment with
Company following his separation from Company on the Termination Date.
6. Employee further agrees that he shall engage in no act after execution of the Separation
and Release Agreement that is intended, or may reasonably be expected to harm the reputation,
business, prospects or operations of the Company, its officers, directors, stockholders or
employees. Company further agrees that it will engage in no act, which is intended, or may
reasonably be expected to harm the reputation, business or prospects of Employee.
7. Employee agrees that he shall continue to be bound by Sections 7 and 8 of his Employment
Agreement.
8. The parties agree to keep the substantive terms of this Agreement, including the amount of
consideration mentioned therein, confidential and agree not to disclose the substantive contents
of the Agreement. Notwithstanding the above provisions, the parties may disclose the terms and
provisions of the Agreement to their spouses and to taxing authorities, including the Internal
Revenue Service, regulatory bodies, and/or governmental agencies having a valid, legal right to
the information contained therein and making a valid and proper request therefor. The parties may
also disclose the terms and provisions of the Agreement to their attorneys, accountants, bankers
and/or investment advisors. The Company may disclose the terms and provisions of the Agreement to
individuals within the corporate organization where such disclosure is necessary for the business
operations of the corporation. Any party may disclose the terms and provisions of the agreement
with the written consent of the opposing party, or as may be otherwise required by law.
9. Employee shall return all Company property in his possession, including, but not limited
to, Company keys, credit cards, and originals or copies of books, records, or other information
pertaining to Company business.
10. The execution, validity, interpretation and performance of this Agreement shall be
determined and governed exclusively by the laws of the State of Texas, without reference to the
principles of conflict of laws. Exclusive jurisdiction with respect to any legal proceeding
brought concerning any subject matter contained in this Agreement may be settled by arbitration in
Austin, Texas, in accordance with the Employment Dispute Resolution Rules of the American
Arbitration Association. Judgment upon the award rendered by the arbitrator may be entered in any
court having jurisdiction. In reaching his or her decision, the arbitrator shall have no authority
to change or modify any provision of this Agreement. In addition, any and all charges which may be
made for the cost of the arbitration and the fees and expenses of the arbitrator shall be borne
equally by the parties.
Jurisdiction with respect to any legal proceeding brought by Company or Employee, concerning
any subject matter contained in this Agreement shall rest in state or federal courts sitting in
the State of Texas. Also, Company or Employee, at its election, may submit any dispute it has with
the other party under this Agreement to arbitration in accord with the procedures set forth in
this section.
11. This Agreement represents the complete agreement between employee and Company concerning
the subject matter of this Agreement and supersedes all prior agreements or understandings,
written or oral. No attempted modification or waiver of any of the provisions of this Agreement
shall be binding on either party unless in writing and signed by both Employee and Company.
12. Each of the sections contained in this Agreement shall be enforceable independently of
every other section in this Agreement, and the invalidity or nonenforceability of any section shall
not invalidate or render unenforceable any other section contained in this Agreement.
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13. It is further understood that for a period of 7 days following the execution of this
Agreement in duplicate originals, Employee may revoke the Agreement, and the Agreement shall not
become effective or enforceable until the revocation period has expired. No revocation of this
Agreement by Employee shall be effective unless Company has received with the 7-day revocation
period, written notice of any revocation, all monies received by Employee under this Agreement and
all originals and copies of this Agreement.
14. This Agreement has been entered into voluntarily and not as a result of coercion, duress,
or undue influence. Employee acknowledges that he has read and fully understands the terms of this
Agreement and has been advised to consult with an attorney before executing this Agreement.
Additionally, Employee acknowledges that he has been afforded the opportunity of at least 21 days
to consider this Agreement.
The parties to this Agreement have executed this Agreement as of the day and year first
written above.
| COMMEMORATIVE BRANDS, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| EMPLOYEE |
||||
| XXXXXX X. XXXXX | ||||
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