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EXHIBIT 10.28
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into as of the 1st
day of January, 1998, by and among Integrity Incorporated, a Delaware
corporation, ("Employer") and Xxxxx XxXxxxxx, an individual currently residing
in Nashville, Tennessee ("Employee").
In consideration of the promises, covenants and conditions set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Employee and Employer agree as
follows:
1. Employment.
Employee hereby employs Employee and Employee hereby accepts
employment in the position of Senior Vice President and General Manager,
Integrity Label Group (the "Position") upon the terms and conditions
hereinafter set forth.
2. Services.
During the term of employment hereunder, Employee shall devote his
full professional time and energy to the performance of his duties as Senior
Vice President and General Manager, Integrity Label Group and shall use his
best efforts in the performance of the same. Employer and Employee agree that
Employee's duties in the Position shall be determined by Employer and may be
altered by Employer from time to time at its sole discretion. Employer and
Employee acknowledge and agree that Employee's initial duties in the Position
shall consist of, among other things, general oversight of retail sales,
marketing, packaging, and special markets.
3. Compensation.
For and in consideration of the promises and covenants made herein and
the services to be provided hereunder, Employer agrees to compensate Employee
as follows:
(a) Base Compensation. Employer shall pay to Employee an annual
base salary in the amount of One Hundred Sixteen Thousand
Dollars and No Cents ($116,000.00), less taxes and other
normal withholdings. Said salary shall be paid to Employee in
equal semi-monthly installments. Employer shall pay to
Employee a minimum annual bonus in the amount of Ten Thousand
Dollars and No Cents ($10,000.00), less taxes and other
normal withholdings. Said bonus shall be paid to Employee in
equal quarterly installments. The annual base salary and
annual bonus referred to in this Section 3(a) shall
hereinafter be referred to as the "Annual Base Compensation."
The Annual Base Compensation may be increased for merit or
cost of living during the term of the Agreement at the
discretion of Employer.
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(b) Benefits. Employee shall be entitled to receive or
participate in all employment benefits or benefit plans
listed on Schedule 1 as generally made available by Employer
to its employees, if any, to the same extent and under the
same conditions as other covered employees.
(c) Vacation. Employee shall be entitled to three weeks of paid
vacation per fiscal year.
(d) Bonus. Employee shall be entitled to receive cash bonuses
pursuant to the general terms outlined in the offer letter
dated 12/20/96. Bonus targets will be adjusted annually based
on approved operating plan.
(e) Options. Employer shall have granted, as part of the original
offer letter dated 12/20/96, incentive stock options to
purchase 50,000 shares of the Employer's Class A Common Stock
pursuant to the Employer's Incentive Stock Option Plan.
4. Term and Termination.
Employee's employment with Employer shall begin on the 1st day of
January, 1997. The term of this Agreement, however, shall begin on the 1st day
of January, 1998 and shall continue until terminated as provided in this
Agreement. Employee acknowledges and agrees that this Agreement, and his
employment with Employer, shall be terminated upon the occurrence of any of the
following events:
(a) Employee's death;
(b) Employee becoming or remaining Disabled for substantially
continuous period of six months. For purposes of this
Paragraph, the term "Disabled" shall mean Employee's
inability to perform the essential functions of his position
with or without reasonable accommodation;
(c) Mutual written agreement between Employer and Employee to
terminate;
(d) Upon six (6) months prior written notice of termination from
Employer to Employee for any reason or no reason at all.
Provided: Employer, at its sole discretion, may elect to pay
to Employee an amount equal to Employee's salary for six (6)
months in lieu of providing the notice set forth in this
subparagraph; or
(e) Immediately upon written notice of termination from Employer
"for cause." For purposes of this Agreement, a termination
shall be considered to be "for cause" if it occurs in
conjunction with a determination by Employer that Employee
has committed or engaged in either (i) any act that
constitutes, on the part of Employee, fraud, dishonesty,
breach of fiduciary duty or (ii) conduct by Employee in his
office with the Employer
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that is grossly inappropriate and demonstrably likely to lead
to material injury to Employer, as determined by the Board of
Directors of Employer acting reasonably and in good faith;
provided, that in the case of (ii) above, such conduct shall
not constitute "cause" unless Employer's Board of Directors
shall have delivered to Employee notice setting forth with
specificity (A) the conduct deemed to qualify as "cause", (B)
reasonable action that would remedy such objection, and (C) a
reasonable time (not less than thirty (30) days) within which
Employee may take such remedial action within the specified
time.
5. Severance Payment.
If Employee's employment with Employer is terminated pursuant to
Section 4(d), the Employee shall be entitled to receive as a severance benefit
aggregate Severance Payments in an amount equal to the greater of (i) the
amount the Employee was to receive as Annual Base Compensation under his
Employment Agreement multiplied by 3 less 1/12 of such Annual Base Compensation
amount for each full month of the Employee's service with the Employer after
the date of this Agreement and (ii) one-half of Employee's Annual Base
Compensation, less, in the case of either (i) or (ii), any amount paid in lieu
of termination notice under Section 4(d). The Severance Payments may be made by
the Employer as semi-monthly salary continuation payments or as a lump sum
payment within ninety (90) days after termination of Employee's employment with
Employer, as determined by the Employer in its sole and absolute discretion.
6. Change in Control.
Contemporaneously with their execution of this Agreement, Employer and
Employee have agreed to and executed a separate agreement entitled Key Employee
Change in Control Agreement ("Change in Control Agreement"). The Change in
Control Agreement, which is attached hereto as Exhibit A, is hereby expressly
incorporated into and made a part of this Agreement as if its terms were set
forth in full herein.
7. Non-disclosure of Confidential Information.
(a) Definitions.
The following definitions shall apply to this Agreement:
(i) "Trade Secrets" means all secret,
proprietary or confidential information regarding Employer or
its business, including any and all information not generally
known to, or ascertainable by, persons not employed by
Employer, the disclosure or knowledge of which would permit
those persons to derive actual or potential economic value
therefrom or to cause economic or financial harm to Employer.
Such information shall include, but not be limited to,
financial information, strategic plans and forecasts,
marketing plans and forecasts, customer lists,
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mailing lists, computer software (including without
limitation, source code, object code and manuals), customer
billing or order information, technical information regarding
Employer's products or services, prices offered to or paid by
customers, purchase and supply information, current and
future development and expansion or contraction plans of
Employer, sales and marketing plans and techniques,
information concerning personnel assignments and operations
of Employer and matters concerning the financial affairs,
future plans and management of Employer. "Trade Secrets"
shall not include information that has become generally
available to the public by the act of one who has the right
to disclose such information without violating a legal right
of Employer.
(ii) "Confidential Information" means
information, other than Trade Secrets, which relates to
Employer, Employer's activities, Employer's business or
Employer's suppliers or customers that is not generally known
by persons not employed by Employer and which is or has been
disclosed to Employee or of which Employee became aware as a
consequence of or through his relationship to Employer.
"Confidential Information" shall not include information that
has become generally available to the public by the act of
one who has the right to disclose such information without
violating any legal right of Employer.
(iii) "Documents" means originals or copies of
handbooks, manuals, files, memoranda, correspondence, notes,
photographs, slides, overheads, audio or visual tapes,
cassettes, or disks, and records maintained on computer or
other electronic media.
(b) Covenant Regarding Non-disclosure of Trade Secrets
or Confidential Information.
Employee covenants and agrees that: (i) during his employment
with Employer he will not use or disclose any Trade Secrets
or Confidential Information of Employer other than as
necessary in connection with the performance of his duties as
an employee of Employer; and (ii) for a period of two (2)
years immediately following the termination of his employment
with Employer, Employee shall not, directly or indirectly,
transmit or disclose any Trade Secret or Confidential
Information of Employer to any person and shall not make use
of any such Trade Secret or Confidential Information,
directly or indirectly, for himself or others, without the
prior written consent of Employer, except for a disclosure
that is required by any law or order, in which case Employee
shall provide Employer prior written notice of such
requirement and an opportunity to contest such disclosure.
However, to the extent that such information is a "trade
secret" as that term is defined under a state or federal law,
this subparagraph is not intended to, and does not, limit
Employer's rights or remedies thereunder and the time period
for prohibition on disclosure or
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use of such information is until such information becomes
generally known to the public through the act of one who has
the right to disclose such information without violating a
legal right of Employer.
(c) Return of Information.
Employee agrees that he shall return all Trade Secrets,
Confidential Information or other property of Employer
immediately upon the termination of his employment with
Employer, including all handbooks, training materials,
reports, policy statements, programs, customer lists, mailing
lists and other documents provided by Employer or acquired by
Employee as a result of his employment with Employer, and all
copies thereof.
8. Inventions and Other Developments.
All inventions, formulas, techniques, processes, concepts, systems and
programs, mailing lists and customer lists and compilations, whether or not
patented or patentable, or subject to copyright, made or conceived,
individually or in conjunction with others, by Employee during the term of his
employment with Employer that relate to activities or proposed activities of
Employer or that result from work performed by Employee for Employer are the
sole and exclusive property of Employer; provided, that Employee shall retain
all rights to, and may copyright in his name, all songs written by Employee.
Employee further agrees that, subject to the proviso in the immediately
preceding sentence, upon request by Employer, he will assign title to any such
inventions, formulas, techniques, processes, concepts, systems and programs,
and lists and compilations to Employer and will sign any and all documents
necessary to effect such assignment.
9. Non-recruitment of Employees Covenant.
Employee agrees that he will not, for so long as he is employed by
Employer, and for a period of two (2) years immediately following the
termination of his employment, solicit or induce, or attempt to solicit or
induce, any employee of the Employer to terminate his or her relationship with
Employer or to enter into an employment or agency relationship with Employee or
with any other person or entity other than Employer.
10. Covenant Not to Compete.
Employee expressly covenants and agrees that during the term of his
employment with Employer and for a period of two (2) years immediately
following the termination of said employment for any reason, he will not,
directly or indirectly, seek, obtain or accept a "Competitive Position" in the
"Restricted Territory" with a "Competitor" of Employer. For purposes of this
Agreement, a "Competitor" of Employer is any business, individual, partnership,
joint venture, association, firm, corporation or other entity engaged, wholly
or in part, in the production, publishing or distribution of Christian music or
Christian videos; a "Competitive Position" is any employment with a
"Competitor" of Employer in
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a position in which Employee will use or is likely to use any Confidential
Information or Trade Secrets (as those terms are defined in Paragraph 7 of this
Agreement), or in which Employee has managerial duties for such "Competitor" of
Employer that are the same as or substantially similar to those actually
performed by Employee for Employer with respect to Employer's praise and
worship music business; and "Restricted Territory" is the geographical area set
forth in Exhibit B to this Agreement. Nothing contained in this Paragraph is
intended to prevent Employee from investing in stock or other securities listed
on a national securities exchange or actively traded on the over the counter
market of any Competitor; provided, however, that Employee shall not hold more
than a total of five percent (5%) of all issued and outstanding stock or other
securities of any such corporation.
11. Relief.
Employee acknowledges that the covenants and promises contained in
this Agreement are reasonable and necessary means of protecting and preserving
Employer's goodwill and its interest in the confidentiality and proprietary
value of its Trade Secrets and Confidential Information. Employee further
acknowledges that the same are reasonable and necessary means of protecting
Employer from unfair competition by Employee. Employee agrees that any breach
of the covenants or promises contained in paragraphs 7, 8, 9 or 10 will leave
Employer with no adequate remedy at law and may cause Employer to suffer
irreparable damage and injury. Employee further agrees that any breach of these
covenants or promises will entitle Employer to injunctive relief in any court
of competent jurisdiction without the necessity of posting any bond. Employee
also agrees that any such injunctive relief shall be in addition to any damages
that may be recoverable by Employer as a result of such breach. Employer agrees
that Employee will be entitled to seek a declaratory judgment as to the
enforceability of any of the covenants or promises contained in paragraphs 7,
8, 9 or 10.
Employee further agrees that no failure or delay by Employer in
exercising, enforcing or asserting any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise
thereof preclude any other or further exercise of any such right, power or
privilege.
12. Severability.
The covenants and other provisions set forth in this Agreement shall
be considered and construed as separate and independent covenants and
provisions. Should any covenant or provision, or any part thereof, be held
invalid, void or unenforceable in any court of competent jurisdiction, such
invalidity, voidness or unenforceability shall not render invalid, void or
unenforceable any other part, covenant or provision of this Agreement. If any
portion of the foregoing covenants or provisions is found to be invalid or
unenforceable by a court of competent jurisdiction because its duration,
territory, definition of activities or definition of information covered is
invalid or unreasonable in scope, the invalid or unreasonable term shall be
eliminated, redefined, or replaced with a new enforceable term such that the
intent of Employer and Employee in agreeing to the
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covenants and provisions of this Agreement will not be impaired and the
covenant or provision in question shall be enforceable to the fullest extent of
the applicable laws.
13. Disputes and Governing Law.
Employer and Employee agree that, except as provided in paragraph 11
hereof, any dispute arising in connection with, or relating to, this Agreement
or the termination of this Agreement, to the maximum extent allowable by
applicable law, shall be subject to resolution through informal methods and,
failing such efforts, through arbitration. Either party may notify the other
party of the existence of a dispute by written notice. The parties shall
thereafter attempt in good faith to resolve their differences within the thirty
(30) days after the receipt of such notice. If the dispute cannot be resolved
within the thirty (30) day period, either party may file a written demand for
arbitration with the other party. The arbitration shall proceed in accordance
with the terms of the Federal Arbitration Act and the rules and procedures of
the American Arbitration Association. The parties will attempt to choose an
arbitrator acceptable to the Employer and Employee, but if agreement on an
arbitrator cannot be reached within ten (10) days after either party files a
written demand for arbitration, a single arbitrator shall be appointed through
the American Arbitration Association's procedures to resolve the dispute.
Employer and Employee agree that in the event that arbitration is
necessary, the arbitrator shall apply the substantive laws of the state of
Alabama and any applicable federal law. The place for the arbitration shall be
Mobile, Alabama.
The award of the arbitrator shall be binding and conclusive upon the
parties. Either party shall have the right to have the award made the judgment
of a court of competent jurisdiction in the state of Alabama.
14. Assignment.
This Agreement may not be assigned by Employee to any other person or
entity but may be assigned by Employer at its discretion to any successor to
all, or any part, of the stock or assets of Employer or to any lender of
Employer.
15. Titles.
The titles, headings and captions used in this Agreement are for
convenience of reference only and shall in no way limit, define, expand, or
otherwise affect the meaning or construction of any provision of this
Agreement.
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16. Entire Agreement.
This Agreement is intended by the Parties hereto to be the final
expression of their agreement with respect to the subject matter hereof and
represents the complete and exclusive statement of the terms of their
agreement, notwithstanding any representations, statements or agreements to the
contrary heretofore made. Except as expressly noted herein, this Agreement
supersedes any former agreements between the Parties governing the same subject
matter. This Agreement may be modified only by a written instrument signed by
each of the Parties hereto.
IN WITNESS WHEREOF, the undersigned set their hands and seals as of
the 1st day of January, 1998.
INTEGRITY INCORPORATED XXXXX XxXXXXXX
/s/ /s/ [SEAL]
------------------------------ ----------------------------------
NAME: XXXXX XxXXXXXX
TITLE:
ATTEST:
/s/
------------------------------
Secretary
[CORPORATE SEAL]
