EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement"), made and entered into effective as
of the 1st day of January, 1998 (the "Effective Date"), by and between HA-LO
INDUSTRIES, INC., an Illinois corporation with offices located at 0000 Xxxx
Xxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000 ("Employer"), and XXXXXXX X. XXXXX, a
resident of Illinois ("Employee").
WHEREAS, Employee is the Chief Operating Officer, Vice President and
Treasurer of Employer; and
WHEREAS, in consideration of the employment of Employee with Employer and
other good and valuable consideration, the receipt and sufficiency of which is
hereby mutually acknowledged, Employee and Employer agree to execute and be
bound by this Agreement;
NOW, THEREFORE, in consideration of the foregoing premises and the
agreements and covenants of the parties contained herein, the parties, intending
to be legally bound, hereby agree as follows:
1. ALL PRIOR AGREEMENTS SUPERSEDED. This Agreement constitutes the
entire agreement between the parties concerning the employment of Employee by
Employer, and supersedes all prior and contemporaneous agreements between
Employer and Employee relating to the subject matter hereof.
2. EMPLOYMENT. On the terms and subject to the conditions set forth
herein, Employer hereby employs Employee, and Employee hereby accepts employment
from Employer, as the Chief Operating Officer, Vice President and Treasurer of
Employer. If, during the term of this Agreement, Employee is removed from any
titled office maintained with Employer (whether by action of Employer's Board of
Directors or otherwise) then, unless Employer simultaneously terminates this
Agreement, Employee and Employer shall continue to be bound by the terms and
conditions hereof, and such removal shall not constitute grounds for a breach
under, or termination (including constructive termination) of, this Agreement.
3. TERM. Subject to the provisions for termination hereinafter provided,
the initial term of this Agreement shall be for a term of three (3) years,
commencing as of the Effective Date and ending December 31, 2000 (such period,
or any extensions thereof being the "Term"); provided, however, that as of
December 31, 2000, the Term shall be automatically extended for successive one
(1) calendar year periods, unless either party elects not to so extend the Term
and gives written notice to the other party at least ninety (90) days prior to
such scheduled termination date of their election not to so extend.
4. DUTIES OF EMPLOYEE. Employee shall perform, on a full-time and best
efforts basis, such duties commensurate with his position and experience as
shall be assigned to him from time to time by the President or Board of
Directors of Employer. As part of his duties hereunder, Employee agrees to
serve as an officer and director of Employer and of such subsidiaries and
affiliates of Employer to which Employee is elected.
5. COMPENSATION AND BENEFITS.
(a) For the three (3) month period commencing on the Effective Date,
Employer shall pay to Employee a salary at the initial annual rate of Two
Hundred Seventy-Five Thousand Dollars ($275,000), in equal installments on
the last day of each month or at such other frequency as the parties hereto
shall agree ("Base Pay"). As of April 1, 1998, Employee's Base Pay shall
increase to Three Hundred Thousand Dollars ($300,000). The Base Pay may
also be increased from time to time by the Compensation Committee of the
Board of Directors of Employer, in its sole discretion.
(b) BONUS COMPENSATION. Employee shall be entitled to receive bonus
compensation structured to reward Employee for excellent performance in an
annual amount, in accordance with the Employer's management incentive
plan(s) based upon such of Employer's profit and other financial objectives
as are established by the Compensation Committee of the Board of Directors
of Employer, in such payment forms and at such times as it shall determine
from time to time in its sole discretion.
(c) FRINGE BENEFITS. Employer shall provide to Employee such other
employee fringe benefits as are generally provided for the executive
employees of Employer, including all fringe benefits made available to
Employee by Employer on or prior to the Effective Date. Employee shall be
entitled to annual vacation during such period(s) and in such time
increments as are consistent with Employee's prior practices as an
executive employee of Employer.
6. EXPENSE REIMBURSEMENT. Employee shall be entitled to reimbursement by
Employer for all reasonable and customary travel and other business expenses
incurred by Employee in carrying out his duties under this Agreement, including
but not limited to, telephone, computer, fax machine and transportation
expenses.
7. TERMINATION. This Agreement shall be terminated on the earliest to
occur of (i) the expiration of the Term; (ii) the mutual agreement of Employer
and Employee; (iii) the death of the Employee; (iv) the permanent disability of
the Employee, or (v) the dismissal of Employee for "cause" (as hereinafter
defined). Upon any termination of the Term of this Agreement, Employee shall
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promptly deliver to Employer (i) without retaining any copies thereof, all the
forms, brochures, business records, project materials, sales materials, manuals,
letterhead, business cards or any other written or printed materials relating to
the business of Employer, and (ii) any computers, telephones, fax machines,
automobiles, or other personal property owned by Employer and in the possession
of Employee.
Employee shall be deemed to be "permanently disabled" hereunder if it is
determined by a physician selected by Employer, with the reasonable approval of
Employee, which physician is on the staff of a hospital associated with a
medical school and located in Xxxx or Lake County, Illinois, that Employee is
suffering from a mental, physical or emotional disability or condition which is
reasonably expected to last for two hundred seventy (270) days or more, and
which prevents Employee from performing substantially all of his duties
hereunder.
Employer shall be deemed to have "cause" to dismiss Employee from
employment upon the occurrence of any of the following: (i) Employee's
conviction of a felony; (ii) Employee's engagement in illegal conduct tending to
place Employee or Employer in disrepute; or (iii) upon thirty (30) days prior
written notice to Employee by Employer, upon Employee's breach of, and failure
to cure, any other material provision of this Agreement.
8. EMPLOYEE'S COVENANTS NOT TO COMPETE. Employee covenants that during
the term of this Agreement and for a period of one (1) year thereafter, he shall
not, except as an employee of Employer, directly or indirectly, on his own
account, or as an employee, consultant, agent, partner, joint venturer, owner or
officer of any other person, firm, partnership, corporation or entity, or in any
other capacity, conduct, engage in, or aid or assist anyone in the conduct of a
business which is competitive to that of Employer, or in which advertising
specialty and premium merchandise is sold to customers anywhere in the United
States; provided, however, that the foregoing covenants shall be of no force or
effect in the event Employer (i) violates the terms of this Agreement, (ii)
terminates Employee as an employee other than for cause, or (iii) reduces the
compensation paid to Employee.
9. CONFIDENTIALITY. Employee acknowledges that by virtue of his
employment with Employer, he has been and/or will be exposed to or has had or
will have access to confidential information regarding Employer's business,
including but not limited to, trade secrets and proprietary information, all of
which are proprietary to Employer. Employee further acknowledges that it would
be possible for an employee, upon termination of his association with Employer,
to use the knowledge or information obtained while working for or with Employer
to benefit other individuals or entities. Employee acknowledges that Employer
has expended considerable time and resources in the development and/or purchase
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of certain confidential information used in connection with Employer's business,
including, without limitation, Employer's computer programs and computer
software, accounting methodologies, pricing systems, cost of goods sold,
manufacturing and assembly processes, designs, product margins, customer lists
or records, customer information, customer xxxx-ups, information regarding
suppliers and vendors, use and utilization of patents, trademarks, trade names,
copyrights, confidential information and trade secrets of Employer or third
parties, marketing techniques, systems and networks of distribution, supplier
information, product content, product mix, inventions and, generally, the
confidential information of Employer which gives, or may give, Employer an
advantage in the marketplace against its competitors (all of the foregoing being
herein referred to collectively as "Proprietary Information"), and which have
been disclosed to or learned by Employee solely for the purpose of Employee's
employment with Employer. Employee acknowledges that Employer's Proprietary
Information constitutes a proprietary and exclusive interest of Employer, and,
therefore, Employee agrees that during the term of his employment and for a
period of sixty (60) months after the termination of Employee's employment with
Employer, for any reason whatsoever, Employee shall hold and keep secret the
Proprietary Information as described herein, as to which Employee is now or any
time during his employment shall become informed, and Employee shall not
directly or indirectly disclose any such information to any person, firm, court,
governmental agency or corporation or use the same except in connection with the
business and affairs of Employer.
10. REMEDIES. Employee acknowledges that compliance with the restrictive
covenants set forth in Paragraphs 8 and 9 herein is necessary to protect the
business, goodwill and Proprietary Information of Employer and that a breach of
these restrictions will irreparably and continually damage Employer for which
money damages may not be adequate. Consequently, Employee agrees that, in the
event that he breaches or threatens to breach any of these covenants, Employer
shall be entitled to both (1) a temporary, preliminary or permanent injunction
in order to prevent the continuation of such harm and (2) money damages insofar
as they can be determined. Nothing in this agreement, however, shall be
construed to prohibit Employer from also pursuing any other remedy, the parties
having agreed that all remedies are to be cumulative. The parties expressly
agree that Employer may, in its sole discretion, choose to enforce the
restrictive covenants in Paragraphs 8 and 9 hereof, in part, or to enforce any
of said restrictive covenants to a lesser extent than that set forth herein. As
money damages for the period of time during which Employee violates these
covenants, Employer shall be entitled to recover, including, without limitation,
the amount of fees, compensation or other remuneration earned by Employee as a
result of any such breach.
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11. SEVERABILITY. Each of the terms and provisions of this Agreement is
to be deemed severable in whole or in part and, if any term or provision of the
application thereof in any circumstances should be invalid, illegal or
unenforceable, the remaining terms and provisions or the application thereof to
circumstances other than those as to which it is held invalid, illegal or
unenforceable, shall not be affected thereby and shall remain in full force and
effect.
12. BINDING AGREEMENT. This Agreement shall be binding upon the parties,
their heirs, successors, personal representatives and assigns. Employer may
assign this Agreement to any successor in interest to the business, or part
thereof, of Employer. Employee may not assign any of his obligations or duties
hereunder.
13. CONTROLLING LAW AND JURISDICTION. This Agreement shall be governed by
and interpreted and construed according to the laws of the State of Illinois.
Employee hereby consents to the jurisdiction of the state and federal courts in
Illinois in the event that any disputes arise under this Agreement.
14. ENTIRE AGREEMENT. This instrument contains the entire agreement of
the parties with regard to the subject matter hereof, may not be changed orally,
but only by an agreement in writing signed by the parties hereto.
15. FAILURE TO ENFORCE. The failure to enforce any of the provisions of
this Agreement shall not be construed as a waiver of such provisions. Further,
any express waiver by any party with respect to any breach of any provision
hereunder by any other party shall not constitute a waiver of such party's right
to thereafter fully enforce each and every provision of the Agreement.
16. SURVIVAL. The obligations contained in this Agreement shall survive
the termination, for any reason whatsoever, for cause or otherwise, of
Employee's employment with the Employer.
17. HEADINGS. All numbers and heading of paragraphs are for reference
only and are not intended to qualify, limit or otherwise affect the meaning or
interpretation of any paragraph.
18. NOTICES. All notices which are required, permitted or contemplated
hereunder to be given or made shall be given or made in writing by certified
mail (return receipt requested) to Employer and Employee, respectively, at the
addresses shown in the Preamble, or to such other address as either party may
inform the other in writing.
19. GENDER. The masculine, feminine or neuter pronouns used herein shall
be interpreted without regard to gender, and the use of the singular or plural
shall be deemed to include the other whenever the context so requires.
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WHEREFORE, the parties have executed this Agreement on the date and year
first above written.
EMPLOYER: EMPLOYEE:
HA-LO INDUSTRIES, INC.
By:____________________________ ___________________________________________
Its:________________________ Xxxxxxx X. Xxxxx
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