EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into as of this 16th day
of December, 1996, by and between COMMEMORATIVE BRANDS, INC. and any successors
thereto (collectively referred to as the "Company") and XXXXXXX BENCH
("Executive").
The parties hereby agree as follows:
1. EMPLOYMENT. Executive will serve the Company in an executive capacity in
such office as from time to time shall be determined by the Board of Directors
of the Company, and will perform, faithfully and diligently, the services and
functions performed and will carry out the functions of her office and furnish
her 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 her duties under this Agreement.
2. TERM. This Agreement shall be effective upon consummation of the
acquisition by the Company of substantially all of the assets and businesses of
CJC Holdings, Inc. and X.X. Xxxxxxx Company, Inc., on December 16, 1996 and
shall thereafter terminate on December 15, 1998; PROVIDED, that the term of this
Agreement may be automatically extended for an additional year on December 15,
1998 and each anniversary of December 15, 1998, unless at least 60 days prior to
December 15, 1998, or such anniversary date, the Company shall give notice to
Executive that the termination date shall not be so extended.
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 $85,000,
payable in equal bi-weekly installments of $3,269.23, subject to such changes as
the Chief Executive Officer of the Company may, in his sole discretion, from
time to determine.
3.2 BENEFITS. Executive shall be entitled to participate in such
employee 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 employees of the Company from time to time on the same basis
as other executive employees are entitled thereto. It is understood that the
establishment, termination or change in any such Executive employee 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 executive employees
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 employee
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 her years of service completed as an employee of the Company (and, to
the extent applicable, the Company's predecessors).
4. WORKING FACILITIES. During the term of her employment under this
Agreement, Executive shall be furnished with a private office, stenographic
services and such other facilities and services as are commensurate with her
position with the Company and adequate for the performance of her duties under
this Agreement.
5. EXPENSES. During the term of her employment under this Agreement,
Executive is authorized to incur reasonable out-of-pocket expenses for the
discharge of her 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 or at the end of the initial or any extended
term of 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 her; 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 of 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 the average of her bi-weekly compensation in
effect within the two years preceding the termination (including, for these
purposes, average bi-weekly compensation of Executive from the Company's
predecessors) ("Termination Payments"), 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 the COBRA
premiums for an 18-month period, beginning on the date that Executive's health
coverage ceases due to her termination, accrued but unused vacation, and any
accrued bonus ("Termination Benefits"). If Executive obtains employment while
she is entitled to receive the Termination Payments and the Termination
Benefits, each Termination Payment shall be reduced by the amount of her average
bi-weekly compensation to be received in connection with her new employment and
the payment of the Termination Benefits shall cease upon Executive becoming
covered under the new employer's health coverage plan at no cost to Executive.
The combination of the Termination Payments and the
-2-
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
her 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.
6.4 TERMINATION BY EXECUTIVE WITH GOOD REASON. Executive may terminate
her 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 her 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 she 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's 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.
-3-
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 she shall not, without the express written
consent of Company, directly or indirectly communicate or divulge to, or use for
her 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 teamed or acquired by
Executive during her 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.
8. COVENANT NOT TO COMPLETE OR SOLICIT.
8.1 Executive agrees to refrain for one year after the termination of her
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 divisions,
subsidiaries and/or other affiliated entities, including but not limited to, as
an employee, consultant, independent representative, partner or proprietor.
8.2 Executive also agrees to refrain during her employment under this
Agreement, and in the event of the termination of her 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 her 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 her 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 her employment under this
Agreement, and in the event of the termination of her employment under this
Agreement for any reason for a period of one year thereafter, from inducing or
attempting to influence any employee 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 her mobility or to prevent her from
utilizing her skills. Executive understands as a part of these covenants that
the
-4-
Company intends to exercise whatever legal recourse against her 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. REPARABILITY. 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: Xxxxxxx Bench
0000 Xxxxx Xxxxxxxx
Xxxxxx, XX 00000
If to the Company: Chief Executive Officer
Commemorative Brands, Inc.
0000 Xxxxxx X Xxxx
Xxxxxx, XX 00000
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 she 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.
-5-
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written.
COMMEMORATIVE BRANDS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
EXECUTIVE
/s/ Xxxxxxx Bench
-----------------------------------
Xxxxxxx Bench
-6-
SEPARATION AND RELEASE AGREEMENT
This Separation and Release Agreement ("Agreement"), dated _____________,
between COMMEMORATIVE BRANDS, INC. and any successor thereto (collectively, the
"Company") and XXXXXXX BENCH ("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 her 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 upon 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 includs a release of any claims for age discrimination
under the Age Discrimination in Employment Act, as amended ("ADEA"). The
ADEA 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, the Company agrees to discharge and release Employee and her
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
Employee's employment and/or affiliation with, or termination and separation
from Company.
-7-
4. This Agreement is not an admission by either Employee or Company of
any wrongdoing or liability.
5. Employee agrees that she waives any right to reinstatement or future
employment with, Company following his separation from Company on the
Termination Date.
6. Employee further agrees that she 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 she shall continue to be bound by Sections 7 and
8 of her 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 her 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 home 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,
-8-
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.
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 within 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:
--------------------------------
EXECUTIVE
--------------------------------------
Xxxxxxx Bench
-9-
[LOGO]
Friday, July 02, 1999
Xxxxxxx X. Bench
0000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxx 00000
RE: Employment Agreement dated December 16, 1996
Dear Xxxxxxx:
In accordance with our agreement, and effective immediately, your above
referenced Employment Agreement is hereby amended as follows:
Paragraph 6.2, the first sentence is hereby replaced in its entirety as follows:
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 39 bi-weekly payments equal to the average
of his bi-weekly compensation in effect within the two years preceding the
termination (including, for these purposes, average bi-weekly compensation of
Executive from the Company's predecessors) ("Termination Payments"), less
legally required withholdings.
All other terms and conditions of the Agreement remain unchanged.
Sincerely,
/s/ X. X. Xxxxx
-------------------------------------
Xxxxxx X. Xxxxx
President
Agreed and accepted:
/s/ Xxxxxxx X. Bench 7/2/99
----------------------------- ------
Xxxxxxx X. Bench Date
-10-
