EMPLOYMENT AGREEMENT BETWEEN
THE SOURCE COMPANY AND
XXXXXX X. XXXXX
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into as of the 30th
day of August, 1995 between THE SOURCE COMPANY, a Missouri corporation
("Employer" or "Company"), and Xxxxxx X. Xxxxx ("Employee").
Employer and Employee agree that the Company is in the business of the
collection of retail discount allowances, pocket payments and other rebates,
discounts and allowances related to the sale of periodicals, books and other
products through retail operations, the collection, review and analysis of
retail sales information, the sale of rack fixtures, and related consulting
services throughout the United States and Canada. The parties recognize the
nationwide scope of the Company's business and the national relationships
established with the parties necessary to transact the Company's business.
Employer and Employee wish to establish the terms of the continuing
employment of Employee and desire to enter into this Agreement for that purpose;
and therefore, Employer and Employee agree as follows:
1. Employment. Employer hereby employs Employee, and Employee hereby
accepts such employment from Employer upon the following terms and conditions.
Employee represents that Employee's employment by the Company under the terms of
this Agreement will not violate or result in a breach of any agreement or
obligation to which Employee is a party or by which Employee may be bound.
2. Term of Employment. The term of Employee's employment under this
Agreement shall commence as of the date hereof and continue until February 4,
1996, and thereafter shall automatically be extended and continued for
successive one-year periods unless terminated by Employer or Employee as of the
end of the initial term, or at any time thereafter, upon not less than 30
calendar days' notice of termination; or, in the case of a termination by
Employer, any combination of notice and/or termination pay which totals one
month. Employee's employment under this Agreement may also be terminated at any
time during the term hereof upon the occurrence of any of the following:
(A) Employee's death.
(B) At Employer's option, on 30 days' written notice, in the
event of Employee's Disability (defined as the failure substantially to
discharge Employee's duties under this Agreement for 90 consecutive
days or 120 days during any 12- month period as a result of an injury,
disease, sickness or other physical or mental incapacity). A
determination of Employee's Disability shall be made by a licensed
physician chosen by Employer subject to Employee's approval, which
approval shall not be unreasonably withheld. If Employer and Employee
do not agree on a physician, a physician shall be chosen by the Xxxx of
the Washington University (St. Louis) School of Medicine. The cost of
the determination shall be borne by the corporation and shall be
binding on Employer and Employee.
(C) By Employer for "cause," which shall mean: (i) Employee
has engaged in the conduct of bribery, stealing, embezzlement, fraud,
dishonesty, giving false information or statements, submitting false
reports, misappropriation of funds or violation of paragraph 6 of this
Agreement; (ii) Employee's continuing failure to perform Employee's
duties or excessive, unexcused absenteeism from work (provided Employer
has given written notice to Employee setting forth the basis for
Employer's claim of Employee's failure to perform Employee's duties or
excessive, unexcused absenteeism, and Employee has failed to correct
such failure of performance or absenteeism), other than for Employee's
Disability under paragraph (B); or (iii) Employee's conviction of a
felony.
(D) Upon the mutual agreement in writing of the Company and
the Employee.
Upon Employee's cessation of employment for any of the above reasons or
voluntarily by Employee upon advance written notice as provided herein, Employee
shall receive only accrued salary, bonus and vacation pay earned and unpaid as
of the date of termination, and shall not be entitled to additional
compensation.
3. Duties of Employment. Employee shall serve Employer as
President-Display Group. Employer may also designate additional duties to be
performed by Employee. Employee shall serve at Employer's direction and control
to the best of Employee's ability, and shall perform such duties and in such
capacities within the scope of Employee's position as are assigned to Employee
from time to time by senior officers of Employer.
4. Compensation. Employer agrees to pay Employee for Employee's
services during the term of Employee's employment under this Agreement a base
salary as set forth in Appendix A, subject to required withholdings and payable
at such times and otherwise on a basis consistent with Employer's normal pay and
compensation practices. If applicable, Employer shall also pay Employee
additional incentive bonuses, if earned, determined in the manner provided in
Appendix A.
5. Extent of Services. Employee agrees to devote Employee's entire
working time, attention, skills and productive efforts to the business of
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Employer (except for usual vacations and reasonable time for attention to
personal affairs, so long as Employee's performance is not adversely affected
thereby). Employee agrees to continually endeavor to improve Employee's ability
and knowledge of the business of Employer in order to increase the value of
Employee's services for the mutual benefit of Employee and Employer. Employee
shall not, during the term of this Agreement or any extension thereof, without
Employer's prior written consent, be engaged in any other business activity,
whether or not such business activity is pursued for gain, profit or other
pecuniary advantage; which shall not prevent Employee from investing in not more
than 1% of any issue of capita) stock or other securities of any corporation
whose stock is traded on a national securities exchange or over-the-counter
market and with which Employee has no employment, representative, agency or
fiduciary relationship.
6. Covenants of Employee.
(A) During Employee's employment with Employer and for two
years thereafter, Employee agrees that Employee will not, in any
manner, directly or indirectly:
(i) Except as required in Employee's duties to
Employer, disclose or divulge to any person or entity, or use
for Employee's own benefit or the benefit of any other person,
directly or indirectly, any knowledge, business methods,
customer lists, supplier lists, data, business plans or other
information of Employer. Employer and Employee stipulate that,
as between them, such information is important, material and
confidential and greatly affects the effective and successful
conduct of the business and the goodwill of Employer;
(ii) Solicit, divert, take away or interfere with
any of the customers, business, employees or agents of
Employer; or
(iii) Engage, personally or as an employee, owner,
partner, associate, officer, manager, agent, advisor,
consultant or otherwise, or by means of any corporate or other
entity or device, in any business within the United States or
Canada which is competitive with any business in which
Employer engaged during Employee's employment by Employer, or
which Employer has formulated definitive plans to enter and of
which Employee has knowledge.
(B)Each agreement of Employee in this paragraph 6 shall be
construed to be independent and severable from any other provision of
this Agreement. The existence of any claim or cause of action against
Employer, whether based on this Agreement or otherwise, shall not
constitute a defense to the enforcement by Employer of any such
agreement.
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(C)Employer and Employee intend to restrict the activities of
Employee under this paragraph 6 only to the extent necessary for the
protection of the business interests of Employer. Should any of the
provisions hereof be determined to be too broad for that purpose or
invalid or unenforceable for any reason, such provisions will be so
interpreted and applied in such a narrower sense as is necessary to
make them valid and enforceable in accordance with the intent of
Employer and Employee expressed herein, or, if legally necessary in any
jurisdiction, so as to severally exclude any one or more of them from
this Agreement.
(D)For purposes of this Agreement, a business will be deemed
competitive if it is conducted in whole or in part within the United
States or Canada and involves the collection of retail discount
allowances, pocket payments or other rebates, discounts or allowances
relating to the sale of periodicals, books or other products through
retail operations, the collection, review and analysis of retail sales
information, the sale of rack fixtures, and related consulting
services; or if it involves any other business which is competitive
with any business in which the Company is engaged during the term of
this Agreement or as of the date of Employee's cessation of employment,
or as to which the Company has formulated, on or before the date of
cessation of employment, definitive plans to enter into, of which
Employee has knowledge.
7. Expenses and Fringe Benefits. During the term of this Agreement:
(A)Employer will pay or reimburse Employee for items of
reasonable and necessary expense authorized by Employer and incurred by
Employee in the interest of the business of Employer upon presentation
by Employee, within 90 days after the date incurred, of an itemized
account of such expenditures sufficient to support the deductibility
thereof for federal income tax purposes. Any such reimbursement shall
be made by Employer within its normal expense reimbursement cycle,
generally within 30 days after Employer's receipt of such itemization
from Employee.
(B)Employee shall be entitled to participate in the fringe
benefits (medical, including dependent coverage, life insurance,
pension, retirement, 401k or other fringe benefits, some or all of
which may entail Employee contributions), if any, normally accorded to
Employees at the same level as Employee; provided, however, that
nothing in this Agreement shall obligate Employer to continue any such
benefits in force (or to require Employer to maintain the benefits at
their present levels, standards or Employee contribution rate) for any
particular period of time. Employer specifically reserves
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the right to add or change any such coverages or benefits, to reduce
any coverages or benefits, or to eliminate any coverages or benefits at
any time, and to change the eligibility criteria, carriers, providers
or plans relating to any such benefits or coverages, with corresponding
changes in coverage, cost and eligibility, without any such change,
cancellation or modification being deemed a breach of this Agreement.
8. Documents. All documents, software, records, notebooks, programs,
invoices, statements and correspondence, including all copies thereof, relating
to the business of Employer, whether prepared by Employee or others ("Employer
Documents") are the sole property of Employer. Upon the cessation of Employee's
employment with Employer, all Employer Documents in Employee's possession or
control will be returned and left with the Employer.
9. Remedies. It is agreed that the breach or evasion of the terms of
this Agreement by Employee will result in immediate and irreparable injury to
Employer which cannot be adequately compensated for by the payment of damages
alone and will authorize recourse to injunction and/or specific performance and
all other legal or equitable remedies to which Employer may be entitled. No
remedy conferred by any specific provision of this Agreement is intended to be
exclusive of any other remedy, and each and every remedy shall be cumulative and
in addition to every other remedy given hereunder or now or hereafter existing
at law or in equity, by statute or otherwise. The election of any one or more
remedies by any party shall not constitute a waiver of the right to pursue other
available remedies. Employee represents and admits that in the event of the
cessation of Employee's employment with Employer for any reason, Employee's
experience and capabilities are such that Employee can obtain employment in a
business in other lines or of a different nature, and the enforcement of a
remedy by way of injunction will not prevent Employee from earning a livelihood.
In the event Employer or Employee institutes legal action to enforce the
provisions of this Agreement which results in a judgment, the prevailing party
shall be entitled to recover its reasonable attorneys' fees and related costs
and expenses, in addition to any other judgment, award or remedy to which such
party may be entitled.
10. Severability; Enforceability. All agreements and covenants herein
are severable. In the event any of them are held to be invalid or unenforceable
as to any jurisdiction by any competent court, this Agreement shall continue in
full force and effect and, subject to subparagraph 6(C), shall be interpreted as
if such agreements or covenants were not contained herein, to the extent
necessary with respect to that jurisdiction. The reason or cause for termination
of Employee's employment or non-renewal of this Agreement shall not affect the
enforceability of any provision of this Agreement.
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11. Waiver or Modification. No waiver, amendment or modification of
this Agreement or any portion hereof shall be valid unless it is in writing and
duly executed by the party to be charged therewith. No evidence of any waiver,
amendment or modification shall be offered or received into evidence in any
proceeding, arbitration or litigation between the parties arising out of or
affecting this Agreement, or the rights or obligations of the parties hereunder,
unless such waiver, amendment or modification is in writing and duly executed as
described above. The failure of the Employer to exercise or otherwise act with
respect to any of its rights hereunder in the event of a breach of any of the
terms or conditions hereof by Employee shall not be construed as a waiver of
such breach, nor shall any such conduct prevent the Company from thereafter
enforcing strict compliance with any and all of the terms and conditions hereof.
12. Notices. All notices or other communications hereunder
shall be written and shall be deemed to have been given if
delivered personally or mailed by certified or registered mail,
return receipt requested, or sent by next business day courier,
if to Employer, to: and, if to Employee, to:
The Source Company Xxxxxx X. Xxxxx
Attention: President 0000 Xxxxxxxx Xxx Dr.
00000 Xxxxxxx Xxxx Xxxx Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Xx. Xxxxx, Xxxxxxxx 00000
or to such other addresses and persons as to which the parties give notice in
the manner provided under this paragraph 12.
13. Construction. This Agreement shall be governed by and construed
under the laws of the State of Missouri, notwithstanding the place of execution
hereof or the performance of any acts in connection with this Agreement or
Employee's employment by Employer hereunder in any other jurisdiction. For
purposes of paragraph 6 of this Agreement, references to Employer shall include
companies or other entities controlled by, controlling or under common control
with Employer, whether such control is exercised through ownership or other
direction of the management or policies of any such company or entity.
14. Successors. This Agreement shall be binding upon and shall inure to
the benefit of Employer and Employee and their respective successors, assigns,
heirs, executors, administrators and legal representatives.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
EMPLOYEE THE SOURCE COMPANY "Employer"
/s/ Xxxxxx X. Xxxxx By:
-------------------- ---------------------------
Xxxxxx X. Xxxxx S. Xxxxxx Xxxxxx
Chairman of the Board and
Chief Executive Officer
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