EXHIBIT 10.17
EMPLOYMENT AGREEMENT
This Agreement of Employment is made and entered into by and between Xxxxxx
Xxxxxx, Inc., a Tennessee corporation, hereinafter referred to as "Employer",
and Xxxx Xxxxxx Xxxxxxxxxx, hereinafter referred to as "Employee".
Employer desires to employ Employee in the capacity of Executive Vice President
& Chief Sales Officer, with all principal powers, duties and responsibilities
attendant thereto, and such other duties as shall be requested of Employee by
Employer, and Employee desires to be so employed by Employer. In consideration
therefore, the parties mutually agree as follows:
A. TERM OF AGREEMENT
The term of this Agreement shall be for a period of one (1) year commencing
on July 12, 2004. After this one (1) year period, this Agreement will
automatically renew every thirty (90) days unless cancelled by either
party.
B. EMPLOYEE COMPENSATION
Employee's remuneration shall be as set forth in Schedule A attached to
this Agreement and incorporated herein by this reference.
C. EMPLOYEE CONDUCT
As Executive Vice President & Chief Sales Officer, Employee recognizes and
understands his/her fiduciary relationship with and responsibilities to
Employer. Employee therefore promises to act always in good faith and in
the best interests of Employer in the discharge of his/her duties and
obligations. Further, Employee agrees to devote his/her full time and
efforts to his/her employment with Employer. Should Employee during the
term of this Agreement fail to so devote his/her full working time and
efforts to the benefit of Employer for any reason other than illness or
disability, or should he/she engage in any activity or business enterprise
competing or conflicting with the business or activities of Employer, its
subsidiaries, partners, or agents, or should he/she engage in any illegal
or criminal conduct or acts of insubordination or moral turpitude (such as
fornication, adultery, theft, embezzlement and/or fraud), or should he/she
violate any of the terms and provisions of Subparagraph D(1) hereunder,
then Employer, at its sole discretion, may terminate the employment of
Employee immediately. All Employee's rights hereunder shall end upon such
termination by Employer and Employee's only rights in such event shall be
to receive all salary accrued through the date of termination.
D. CONFIDENTIAL CLAUSES AND NON-COMPETITION AGREEMENT
Employee further agrees as follows:
(1) During Employment by Employer:
Confidential Information
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Employee recognizes that the Bible publishing industry and the
religious book publishing industry combined comprise about 4% of the
total publishing industry, and less than 1% of the total printing
industry; therefore, Employee understands and agrees that this
Employment Agreement is not unreasonably restrictive, and does not
prohibit Employee from being employed in a lucrative career and from
making a fair and honorable living.
Employee recognizes and acknowledges that there are certain trade
secrets related to Employer's Christian and Inspirational Books,
Bibles, and Biblical Reference and Electronic Publishing, as well as
the design, sale, and distribution of Bible Covers, and related
businesses including, but not limited to, the names, royalties,
account information and/or business relationships pertaining to
Employer's artists, authors, writers, customers, and manufacturers,
as well as certain information related to manufacturing schedules and
procedures, new products, future plans, marketing practices, sales
volumes of various products, and other items of Employer's businesses
not specifically mentioned herein.
Employee recognizes and understands that he/she holds a position of
fiduciary privilege, and except as authorized in writing by Employer,
he/she agrees during the term of this Agreement and thereafter to
refrain from disclosing to any person, firm, corporation, partnership,
association or other business entity, or to use for his/her own
benefit, any trade secrets, unique business information, plans,
products, manufacturing data, customer lists, author or artist lists,
or any other confidential information relating to any and all ongoing
business activities of Employer, or its parent company, or its
subsidiaries the disclosure of which he/she knows, or in the exercise
of reasonable care should have reason to know, may, can, or will be
damaging or harmful to Employer's business activities or those of its
parent company, affiliates, or subsidiaries, or which disclosure shall
serve to direct or divert corporate opportunities, product sales,
and/or profits away from Employer, its parent company, its affiliates,
its subsidiaries, partners, or agents, to the person, firm,
corporation, partnership, association, or the given entity to whom or
to which such disclosure is made.
Ownership of Work
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Employee recognizes and understands that he/she will hold for the
benefit of Employer and disc lose fully to Employer, immediately upon
origination or acquisition, any and all Works made, discovered,
developed or secured, alone or jointly with others, during the term
of his/her employment with Employer. Employee further agrees that
any Work prepared during the term of his/her employment is a "work
made for hire" for all purposes of the United States Copyright Act.
If, for any reason, all right, title and interest in and to a Work
does not vest in Employer by operation of law, Employee hereby
assigns to Employer the entire right, title and interest in and to
the Work including without limitation, patents, trademarks, and the
exclusive and perpetual copyright in and to the Work and the exclusive
right to obtain and hold in its own name registrations and any other
such protection and any extensions or renewals thereof. Employee's
execution of this Agreement shall be deemed an assignment thereof to
Employer. For the purpose of this Agreement, the term "Work" means
any and all inventions, discoveries, improvements, developments and
innovations whether patentable or not, software (including, without
limitation, source and object code), patents, copyrights, trademarks
and or original works of authorship, in any and all media or forms of
expressions, now known or later discovered, conceived in whole or in
part by the undersigned or through assistance of the undersigned
which: (i) result from any work performed on behalf of Employer, or
pursuant to a project suggested or directed by the Employer;
(ii) relate in any manner to the existing or contemplated business of
the Employer; or (iii) result from the use of the Employer's time,
material, employees, equipment or facilities.
(2) Subsequent to Termination of Employment:
Non-Competition
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Employee agrees that during the term of this Agreement and for a
period extending two (2) years from the date of Employee's
termination with Employer for any reason:
(i) He/she will not negotiate or enter into any contract with any
author, writer, editor, designer, packager or other person who,
at the time of termination, is under contract to (or is
negotiating with) Employer or its parent, affiliates or
subsidiaries, or with whom Employer or its parent, affiliates or
subsidiaries enters into any contract or agreement during the
non-compete period hereunder. Employee further agrees not to
negotiate or enter into any contract with any of the above
persons for a period of two (2) years following the expiration
of any such person's contract with Employer or its parent,
affiliates or subsidiaries.
(ii) He/she will not attempt to procure, nor encourage others to
procure, the employment of any employees of Employer or its
parent, affiliates or subsidiaries who are employed at the time
of execution hereof, or such employees as may become employed by
Employer or its parent, affiliates or subsidiaries during
Employee's employment hereunder or the non-compete period
hereunder.
(iii) He/she will not engage in publishing, producing or distributing
Christian and Inspirational Books, Bibles, Electronic products,
Bible Covers, Biblical Reference and Electronic products, as
well as in the design, sale, and distribution of these products,
nor divert to other companies any authors, writers, editors,
designers, packagers, or any other person under contract with
Employer or its parent, affiliates or subsidiaries, or with whom
Employer is negotiating at the time of termination, (or who was
published by Employer or its parent, affiliates or subsidiaries
during the thirty (30) months prior to Employee's termination),
in any geographical region in which Employer or its parent,
affiliates, or subsidiaries conduct such business or sell such
products both as of the time of execution hereof and throughout
the non-compete period hereunder.
(iv) He/she agrees never to make, utter, write, nor otherwise publish
derogatory or defamatory statements which can, may, or do cause
harm, whether intended or not, to the relationship between
Employer or its parent, affiliates, or subsidiaries and any of
their customers, personnel, producers, artists, authors, or
writers.
E. REMEDIES
Employee acknowledges that he/she will receive privileged information from
Employer during his/her employment and that he/she will have substantial
access to Employer's trade secrets, business information and personnel
data. In consideration of his/her employment and the privilege of access
to Employer's trade secrets, information, business methods and procedures,
and personnel data, Employee acknowledges that the restrictions contained
within paragraph D. are reasonable and necessary in order to preserve
Employer's legitimate interests and that any violation thereof would result
in irreparable injury to Employer for which monetary damages would be an
inadequate remedy. Therefore, Employee acknowledges and agrees that in
the event of any violations thereof, Employer may seek from any court of
competent jurisdiction preliminary and permanent injunctive relief as well
as an equitable accounting of all Employee's profits or benefits arising
out of such violation, which rights shall be cumulative and in addition to
any other action or remedies to which Employer may be entitled at law or in
equity.
In the event that any Non-Competition provision of this Agreement shall be
held by a court of competent jurisdiction to be, in any respect, an
unreasonable restriction of Employee, then the court so holding may reduce
the territory to which it pertains and/or the period of time to which it
operates or effect any other change to the extent necessary to render the
Non-Competition provisions and the Non-Disclosure of Information provisions
of this Agreement enforceable by the said court.
F. SEVERABILITY OF PROVISIONS
In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected nor impaired thereby and such
provisions shall be enforced to the fullest extent possible in accordance
with the mutual intent of the parties hereto.
G. NON-WAIVER AGREEMENT
No provision of this Agreement may be modified, waived or discharged unless
such waiver, modification or discharge is agreed to in writing and is
signed by the Employee and an officer of Employer. No waiver by either
party hereto of the other party's compliance with, or breach of, any
condition or provision herein to be performed by said party shall
constitute a simultaneous waiver of any other terms, provisions or
conditions herein nor shall such waiver by either party constitute a
continuing waiver of said pertinent term, provision, or condition
subsequent thereto unless such continuation of waiver is agreed to in
writing by the parties pursuant to the terms of this paragraph.
H. WARRANTIES AND REPRESENTATION
This Agreement, including attachments, contains the entire final and
complete agreement between the parties hereto and no agreements or
representations, oral or otherwise, express or implied, with respect to
the subject matter hereof have been made by either party which are not set
forth expressly in this Agreement. The parties agree that this Agreement
shall supersede and replace all previous contracts or agreements whether
written or oral between Employer and Employee.
I. APPLICABLE LAW
The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Tennessee and the
parties hereto submit to the exclusive jurisdiction of the courts of
Davidson County, Tennessee which shall be the venue for resolution of any
dispute arising herefrom. The cost of any such litigation to enforce all
or part of this Agreement, including without limitation, court costs and
attorneys' fees, shall be paid by the party found to be in default
hereunder or who is otherwise found to be acting or to have acted contrary
to the terms hereof.
This Agreement is made and entered into this 27th day of June, 2004.
ACCEPTED BY: XXXXXX XXXXXX, INC.
/s/ Xxxx Xxxxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
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Xxxx Xxxxxxxxxx Name: Xxxxxxx X. Xxxxx
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Title: President & COO
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