EXHIBIT 10.8
EMPLOYMENT AGREEMENT, DATED AS OF JULY 13, 1999 BY AND
BETWEEN COMMEMORATIVE BRANDS, INC. AND DAVID G. FIORE
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into as of this 13th
day of July, 1999, by and between COMMEMORATIVE BRANDS, INC. and any successors
thereto (collectively referred to as the "Company") and David G. Fiore
("Executive").
The parties hereby agree as follows:
1. EMPLOYMENT. Executive will serve the Company in an executive
capacity as President and Chief Executive Officer and shall report to 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 his office
and furnish his best advice, information, judgment and knowledge with respect to
the business of the Company and its subsidiaries, if any. If Executive is
elected to the Board of Directors of the Company, Executive agrees to serve on
the board of directors of the Company during the term of this Agreement.
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 materially impair Executive's
ability to carry out his duties under this Agreement.
2. TERM. The period of the Executive's employment under this Agreement
(the "Employment Term") shall commence on August 2, 1999 (the "Commencement
Date") and shall terminate on August 1, 2001, unless sooner terminated in
accordance with this Agreement. Notwithstanding the aforementioned termination
date, the termination date of this Agreement (and the Employment Term) shall be
automatically extended in a constant fashion so that the Employment Term shall
always have two years remaining unless either party provides written notice to
the other party (the "Termination Notice") of its or his intent to terminate at
the end of the Employment Term. At the time of the delivery of the Termination
Notice, the termination date shall then be fixed on the date that is two years
from the date of such notice, and shall not be subject to further extension.
Unless this Agreement is terminated in the manner as aforesaid, this Agreement
and the Employment Term shall be extended as aforesaid without any further
action of the parties, on the same terms and conditions as set forth herein,
including without limitation the extension provision to provide for a constant
two year remaining Employment Term.
3. PLACE OF EMPLOYMENT. The Executive's principal place of employment
shall be in Austin, Texas, unless moved with the written consent of the
Executive.
4. COMPENSATION AND OTHER BENEFITS.
4.1. SALARY. The minimum 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 $300,000
payable in equal bi-weekly installments of $11,538.46, subject to such increases
as the Board of
Directors of the Company may, in its sole discretion, from time to time
determine. The salary and/or any increase from time to time, shall be deemed a
minimum salary which, once established, cannot be reduced during the Employment
Term.
4.2. BONUS.
(1) For each full or partial fiscal year of the Company during the
Employment Term and, if applicable, the Balance of the
Employment Term (as defined in Section 7.5), the Company shall
pay to the Executive a bonus ("Bonus") in an amount of up to
$200,000 based upon targets or standards (E.G. EBITDA, sales)
as shall be determined by the Board of Directors, in each
case, within three months of the commencement of each fiscal
year.
(2) All Bonuses actually earned by the Executive and payable to
the Executive (or his estate or other legal representative as
provided below) for any full or partial fiscal year pursuant
to this Section 4.2 shall be paid by the Company within 120
days following the end of such fiscal year.
(3) For each full or partial fiscal year during the Employment
Term and if applicable, the Balance of the Employment Term,
the Company may pay to the Executive a Discretionary Bonus
("Discretionary Bonus") based on other factors at the
discretion of the compensation committee of the Board of
Directors in an amount of up to $100,000.
(4) If the Company achieves $30,000,000 of Consolidated EBITDA (as
hereinafter defined) within three years of the effective date
of this Agreement, the Executive shall be paid a long-term
incentive bonus of $1,000,000 ("Long Term Bonus") in the form
of Series "B" preferred stock of the Company having a face
value of $1,000,000 on the date of issuance.
(5) The preferred stock shall be issued to Executive within ninety
(90) days following the achievement of $30,000,000
Consolidated EBITDA by the Company, provided that the Company
achieves $30,000,000 Consolidated EBITDA, within three (3)
years of the date of this Agreement.
(6) To the extent that the above-referenced grant of preferred
stock is a taxable event under Federal, State, FICA/Medicare,
unemployment law or any other tax law, such taxes will be paid
by the Company or if paid by Executive, shall be reimbursed to
the Executive by the Company upon its receipt of satisfactory
evidence of such payment having been made. For purposes
hereof, Consolidated EBITDA shall have the meaning set forth
in the Company's Revolving Credit, Term Loan and Gold
Consignment Agreement dated as of December 16, 1996, as
heretofore amended and as may hereafter be amended from time
to time (to the extent the definition of Consolidated EBITDA
is thereby amended with the consent of the Executive, which
consent shall not be unreasonably withheld by the Executive)
which current definition is attached hereto as Exhibit A.
4.3. STOCK OPTIONS. At the commencement of the term of this Agreement,
the Executive shall receive an initial grant of stock options pursuant to the
terms of the Company's qualified incentive stock option plan, a copy of which is
attached hereto as Exhibit B, equivalent to 3% of the issued and outstanding
shares of the common stock of the Company on a fully diluted basis on the date
hereof. All of the stock options initially granted pursuant to this Section 4.3
shall be divested if the Executive's employment hereunder is terminated by the
Company or by the Executive for any reason whatsoever prior to the first
anniversary of this Agreement and one-half of all of the stock options granted
pursuant to this Section 4.3 shall be divested if the Executive's employment
hereunder is terminated by the Company or by the Executive for any reason
whatsoever between the first and second anniversary of this Agreement. After the
second anniversary of this Agreement, none of the stock options granted pursuant
to this Section 4.3 may be divested if the Executive's employment hereunder is
terminated by the Company or by the Executive.
If the Company attains the stated Consolidated EBITDA target within the
stated time frames in the chart below, the following additional qualified
incentive stock options for common stock will be granted to the Executive
pursuant to the terms of the Company's incentive stock option plan, based upon
the issued and outstanding shares of the common stock of the Company on a fully
diluted basis at the date hereof:
Consolidated Yr End
EBITDA AUG OPTIONS
------ --- -------
$26.5M FY 2000 0.5%
$28.0M FY 2001 0.5%
$32.5M FY 2002 0.5%
$35.0M FY 2003 0.5%
$37.5M FY 2003 0.5%
$40.0M FY 2003 0.5%
Such additional incentive stock options shall vest when earned. These
additional incentive stock options are subject to a "look-back" period of one
year, so that if the Company meets the Consolidated EBITDA goal in any year
listed, the Executive shall be entitled to stock options for that year and for
the prior year if the Consolidated EBITDA goal for the prior year was not
achieved; provided however that each "look-back" period shall apply for only one
year. For example, if Consolidated EBITDA for fiscal year 2000 is less than
$26.5M, then Executive will receive no stock options at the end of fiscal year
2000. However, if Consolidated EBITDA for fiscal year 2001 is $28.0M or more
while Consolidated EBITDA for fiscal year 2000 was less than $26.5M, then
Executive will receive stock options equal to 1% of the issued and outstanding
common stock of the Company at the end of fiscal year 2001. If Consolidated
EBITDA for fiscal year 2000 is less than $26.5m and Consolidated EIBTDA for
fiscal year 2001 is less than $28.0M, but Consolidated EBITDA for fiscal year
2002 is $32.5M or more, then Executive will receive stock options equal to 1% of
the issued and outstanding common stock of the Company at the end of fiscal year
2002. Executive may receive a maximum of 3% of the issued and outstanding Common
Stock of the Company under this Section 4.3 if the requisite goals are met, but
cannot exceed an aggregate of 3% of the issued and outstanding common stock of
the Company under this Section 4.3.
Further, Executive would only receive options equal to 2% of the issued and
outstanding common stock of the Company if Consolidated EBITDA for the Company
in fiscal year 2003 equals or exceeds $40M but Consolidated EBITDA for the
Company was less than $26.5M in fiscal year 2000, $28.0M in fiscal year 2001 and
$32.5M in fiscal year 2002.
4.4. HEALTH BENEFITS, CAR ALLOWANCE, COUNTRY CLUB & LIFE INSURANCE. The
Company will provide health benefits to Executive and his family at least equal
to the current health benefits now provided to other executives of the Company.
Additionally, the Company shall pay for the Executive's country club membership
initiation fee(s) and monthly/annual dues in a country club of his selection
located in the Austin, Texas area, a car allowance of up to $750 a month and
will provide $500,000 of life insurance paid for by the Company.
4.5. BENEFITS. Executive shall be entitled to participate in such other
employee benefit programs, plans and policies 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 other
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 other program, plan or policy will not
affect this Agreement (except as provided herein) so long as Executive is
treated on the same basis as other executive employees participating in such
other 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 other employee benefit
program, plans or policies covered by this Section 4.5 shall be governed solely
by the terms of the program, plan or policy itself and not this Agreement.
However, Executive's compensation as provided in Sections 4.1, 4.2, 4.3, 4.4,
4.6 and 4.7 of this Agreement shall be government by this Agreement. Executive
shall be entitled to an annual paid vacation in accordance with the Company's
personnel policy for his years of services completed as an employee of the
Company; provided, however, he shall always be entitled to a minimum of four
weeks per year. The Executive shall also be entitled to participate in all other
benefits provided to executives of the Company.
4.6. RELOCATION. The Company shall reimburse Executive for the
following costs of relocated to the Austin, Texas area: ----------
(1) The closing costs of selling Executive's existing residence in
Plano, Texas;
(2) Packing and moving expenses
(3) Temporary and Interim Housing (including temporary housing for
Executive and his family until suitable housing is obtained in
Austin, Texas and interim housing [E.G. an apartment or
condominium] for Executive in Austin, Texas while the
Executive's primary residence in Plano, Texas remains unsold
and Executive's family continues to reside in Plano, Texas;
and
(4) The expenses of locating housing in Austin, Texas (E.G. the
reasonable costs associated with a reasonable number of house
hunting trips for Executive and his spouse in the Austin,
Texas area); and
(5) Up to $25,000 of seller's real estate brokerage commissions
and up to $30,000 of points on financing for the purchase of
new housing for the Executive in the Austin, Texas area.
4.7. DIRECTIONS' AND OFFICERS' INSURANCE. The Company will carry
Directors' and Officers' liability insurance in the form and to the extent
determined by the Board of Directors to in the best interests of the Company and
its officers and directors from time to time. In the event the Company fails to
carry any such insurance or fails to carry it in an amount and with a carrier
reasonably similar to the insurance in place as of the date hereof, it shall
indemnify and hold harmless Executive from any claims which would have been
covered by such insurance. In addition, Company will indemnify Executive to the
maximum extent permitted by Delaware law.
5. WORKING FACILITIES. During the term of his employment under this
Agreement, Executive shall be furnished with a private office, stenographic and
secretarial services, cell phone, page, lap top, voice mail, e-mail and such
other facilities and services as are commensurate with his position with the
Company and adequate for the performance of his duties under this Agreement.
6. EXPENSES. During the term of his employment under this Agreement,
Executive is authorized to incur reasonable out-of-pocket expenses for the
discharge of his 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.
7. TERMINATION. Executive's employment under this Agreement may be
terminated other than pursuant to a Termination Notice pursuant to Section 2
hereinabove, by either Company or Executive upon the following terms and
conditions.
7.1. TERMINATION BY COMPANY FOR SUBSTANTIAL 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
"Substantial Cause"). The Company may at any time by written notice to the
Executive terminate the Term of the Executive's employment hereunder for
Substantial Cause ("Substantial Cause Notice") and the Executive shall have no
right to receive any compensation or benefit hereunder on and after the
effective date of such Substantial Cause Notice except as provided in this
Agreement. For purposes hereof, the term "Substantial Cause" shall mean: (a) a
conviction of the Executive for any crime constituting a felony in the
jurisdiction in which committed, or for any other criminal act against the
Company or the Subsidiaries involving dishonesty or willful misconduct intended
to injure the Company or the Subsidiaries (whether or not a felony and whether
or not criminal proceedings are initiated); or (b) failure or refusal of the
Executive in any material respect to follow the
lawful and proper directives of the Board of Directors and such failure or
refusal continues uncured for a period of twenty (20) days after written notice
thereof, specifying the nature of such failure or refusal and requesting that it
be cured, is given by the Company to the Executive; or (c) any willful or
intentional act of the Executive committed for the purpose, or having the
reasonably foreseeable effect, of injuring the Company, the Subsidiaries or
their business or reputation or of improperly or unlawfully converting for the
Executive's own personal benefit any property of the Company or the
Subsidiaries. For purposes hereof, any act or failure to act of the Executive
shall not be considered "willful" or "intentional" unless done or omitted to be
done by the Executive in bad faith and without a reasonable belief that the
Executive's action or omission was in the best interest of the Company; provided
however, that no termination of the Executive's employment shall be for
Substantial Cause until (i) there shall have been delivered to the Executive a
copy of a written Substantial Cause Notice setting forth that the Executive was
guilty of the conduct set forth above, specifying the particulars thereof in
detail and (ii) the Executive shall have been provided an opportunity to be
heard by the Board (with the assistance of the Executive's counsel if the
Executive so desires). Any termination of Executive for Substantial Cause must
be approved by a majority of the entire Board of Directors. In the event that
Executive is terminated based on a conviction as provided in this Section 7.1
and that conviction is not final, then Executive shall be placed on an unpaid
leave of absence until such time as the conviction has become final or has been
overturned. If the conviction does not become final (E.G. it is dismissed or
overturned) then, Executive shall be treated as having been terminated without
Substantial Cause and the Company will immediately pay in one lump sum the
Termination Payments and Termination Benefits or, in lieu thereof, at
Executive's election, if the position of President and Chief Executive Officer
is vacant rehire Executive.
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 any
Termination Payments or Termination Benefits (as such terms are defined below)
except aforesaid vacation and any accrued bonus.
7.2. TERMINATION BY COMPANY WITHOUT SUBSTANTIAL 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 Substantial Cause as defined in Paragraph 7.1 above, Executive
will be entitled to receive his salary for the Balance of the Employment Term,
plus the aggregate of the Bonus actually earned by the Executive through the
date of termination, plus the Long-Term Bonus and any stock options actually
earned through the date of termination ("Termination Payments"), less legally
required withholdings. In addition to the Termination Payments, the Company will
provide Executive and covered family members with health benefits for 24 months
beginning on the date that Executive's health coverage ceases due to his
termination, accrued by unused vacation, and any accrued bonus ("Termination
Benefits"). Health care benefits shall cease upon Executive and covered family
members becoming covered under a new employer's health coverage plan at no cost
to Executive and with no applicable pre-existing condition limitation. The
combination of the Termination Payments and the Termination Benefits constitute
the sole amount to which Executive is entitled if termination is without
Substantial Cause. The Company's obligation to make the Termination Payments and
provide the Termination Benefits and otherwise to perform its obligations under
this Agreement shall not be affected by any setoff, counterclaim, recoupment,
defense or other claim, right or action which it may have against the Executive
or others.
7.3. TERMINATION BY EXECUTIVE WITHOUT GOOD REASON. Executive may
terminate his employment under this Agreement without Good Reason as defined in
Paragraph 7.4 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 in a lump sum 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 7.7 shall be payable upon
Executive's termination of this Agreement without Good Reason.
7.4. TERMINATION BY EXECUTIVE WITH GOOD REASON. Executive may terminate
his employment under this Agreement for Good Reason. For purposes of this
Agreement, "Good Reason" shall mean:
(1) Without Executive's consent, a material adverse change in the
Executive's status, title, position, responsibilities
(including reporting responsibilities), authority or duties
which represents a material adverse change from the status,
title, position, responsibilities (including reporting
responsibilities), authority or duties as in effect
immediately prior thereto; the assignment to the Executive of
any additional duties or responsibilities which materially
impair his ability to perform his other responsibilities,
authority, or duties; or any removal of the Executive from or
failure to reappoint or reelect Executive to any of offices or
positions except in connection with the termination of his
employment for Substantial Cause or as a result of his death
or permanent disability; or
(2) 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
the closing costs of selling any existing home, temporary
housing, expenses of locating housing, all reasonable moving
expenses incurred by Executive relating to a change of
Executive's principal residence in connection with such
relocation, and any other relocation costs/allowances payable
in accordance with standard Company policy or policies then in
effect for the
Company's senior executives 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
(3) A decrease in Executive's annual salary from his salary in
effect immediately prior to such decrease; or
(4) The failure of the Company to grant and vest incentive stock
options to the extent earned in accordance with Section 4.3;
or
(5) The failure of the Company to pay the Bonus or Long-Term Bonus
to the extent earned in accordance with Section 4.2; or
(6) Any action taken or suffered by the Company as of or following
the Change of Control which shall cause the Company to have
the inability to reach the goals so that the Executive may
earn the Bonuses or stock options set out in Section 4.2 or
4.3 unless the Company or its successors or assigns shall, in
good faith, provide the Executive with a reasonably equivalent
position and compensation package reasonably acceptable to the
Executive to take effect immediately following the Change of
Control; or
(7) The failure by the Company to continue in effect (without
reduction in benefit level and/or reward opportunities) any
material compensation or employee benefit plan in which the
Executive was participating unless (i) a change is made
pursuant to Section 4.5 of this Agreement, or (ii) a
substitute or replacement plan has been implemented which
provides substantially identical compensation and benefits to
the Executive; or
(8) The failure by the Company to provide insurance or
indemnification as provided in Section 4.7; or
(9) Any material breach by the Company of any of its material
obligations under this Agreement; or
(10) Any purported termination of the Executive's employment for
Substantial Cause by the Company which does not comply with
the terms of this Agreement.
The failure by Executive to set forth in any notice of termination of
employment any fact or circumstance which contributes to a showing of Good
Reason shall not waive any of Executive's rights hereunder or preclude Executive
from asserting such fact or circumstance in enforcing Executive's rights
hereunder.
In the event of termination under this Section 7.4, the Company shall
pay to Executive the same Termination Payments and Termination Benefits to which
Executive would have been entitled had he been terminated by the Company without
Substantial Cause.
7.5. 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 except as
provided herein). Accrued but unused vacation, and any actually earned by unpaid
bonus, Termination Payments and Termination Benefits shall be payable upon
Executive's death or permanent disability in accordance with this Section 7.5.
In the event of the death of the Executive, the Company shall continue to pay to
his estate or other legal representative the Executive's salary and any earned
bonus for the Balance of the Employment Term (as defined below), and shall pay
an amount equal to any accrued and unpaid vacation days through the date of
death. Rights and benefits of the estate or other legal representative of the
Executive under the benefit plans and programs of the Company shall be
determined in accordance with the provisions of such plans and program. For
purposes of this Agreement, the "Balance of the Employment Term" shall mean the
period of time commencing with any termination of the Executive's employment
with the Company for any reason and ending on the date the Employment Term would
have expired pursuant to Section 2, assuming that, if a Termination Notice has
not already been given by such date, that each party would have given the
Termination Notice on such date. Regardless of the definition of permanent
disability in the Company's or Executive's disability insurance policies,
Executive shall not be considered permanently disabled unless he shall have at
least become incapacitated by reason of physical or mental disability and shall
be unable to perform his normal duties hereunder for a period of more than six
(6) months in any twelve (12) month period. Executive agrees to cooperate with
the reasonable requests of the Company in obtaining life insurance coverage of
the Executive if the Company desires to obtain "key man" life insurance on the
Executive and so notifies the Executive.
7.6. VESTING OF OPTIONS. Except as otherwise provided in Section 4.3
above, all stock actually earned and all stock options actually earned vest upon
a termination by the Executive for Good Reason or for any termination of the
Executive by the Company other than for Substantial Cause.
7.7. CHANGE IN CONTROL.
(1) Notwithstanding anything contained in this Agreement to the
contrary, in the event that the Executive, within thirty (30)
days following the expiration of the first 6 months after a
Change in Control elects to terminate his employment without
Good Reason, then, in such event, the Company shall pay to the
Executive, or to his estate or legal representative, a fixed
sum of Four Hundred Fifty Thousand and No/100 Dollars
($450,000.00). In addition, the
Company shall provide to the Executive and his covered family
members, at the Company's sole cost and expense,
post-termination health benefits for eighteen (18) months)
following his termination at least equal to the health
benefits then provided to the Executive and his covered family
members through the Company. The payments required under this
Section 7.7 shall be made in a lump sum payable within 30 days
of the Executive's termination or election to terminate as
aforesaid, and shall be in lieu of any other payments due to
the Executive under this Agreement. In the event of any other
termination of the Executive after a Change in Control, then
Section 7.1, 7.2, 7.3, 7.4, 7.5 or 7.6, as applicable, will
continue to apply.
(2) For purposes hereof, "Change in Control" shall mean any event
or occurrence that reduces the combined voting power or voting
control of the "Castle Harlan Group" to a point where the
"Castle Harlan Group" no longer has sufficient voting power or
voting control to assure the election of a majority of the
members of the board of directors of the Company by the
members of the Castle Harlan Group. For purposes of this
Agreement, the term "Castle Harlan Group" means Castle Harlan
Partners II, L.P. and any person or entity which controls, or
is controlled by, or is under common control with, Castle
Harlan Partners II, L.P. and/or its investment advisor, Castle
Harlan, Inc. and any current, former of future officer,
director, partner, or employee of Castle Harlan, Inc.,
including but not limited to Castle Harlan Offshore Partners,
L.P. and Dresdner Bank, A.G.-Cayman Branch.
7.8. RELEASE AGREEMENT. Executive's right to receive Termination
Payments and Termination Benefits pursuant to this Section 7 is contingent upon
Executive executing a Release Agreement after termination, a copy of which is
attached to this Agreement as Exhibit C. 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.
8. CONFIDENTIALITY. During and after the term of employment under this
Agreement, Executive agrees that he shall not, without the express written
consent of Company, directly or indirectly communicate or divulge to, or use for
his 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 learned or acquired
by Executive during his employment relationship with Company ("Confidential
Information"), except that Executive may disclose such matters to the extent
that disclosure is required (a) as part of his duties under this Agreement or
(b) at Company's direction or (c) 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. Confidential
Information shall not mean any information which Executive can demonstrate was
known to him prior to receiving it from the Company or which is now or hereafter
becomes generally available to the public through not act or failure to act on
the part of the Executive or which is disclosed to the Executive
by a third party who has no obligation to the Company to maintain the
information in confidence.
9. COVENANT NOT TO COMPETE OR SOLICIT
9.1. Executive agrees to refrain for one year after the termination of
his 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, licenses 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.
9.2. Executive also agrees to refrain during his employment under this
Agreement, and in the event of the termination of his 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 his own
behalf or on the behalf of another person, firm or company, the scholastic,
licensed sport, insignias, 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 his 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.
9.3. Executive agrees to refrain during his employment under this
Agreement, and in the event of the termination of his 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.
9.4. Executive further agrees that the covenants in Sections 9.1 and
9.2 are made to protect the legitimate business interests of the Company,
including interests in the Company's "Confidential Information", as defined in
Section 8 of this Agreement, and not to restrict his mobility or to prevent him
from utilizing his skills. Executive understands as a part of these covenants
that the Company intends to exercise whatever legal recourse against him for any
breach of this Agreement and in particular for breach of these covenants.
10. CONTROLLING LAW AND PERFORMABILITY. The execution, validity,
interpretation and performance of this Agreement will be governed by the law of
the State of Texas.
11. SEPARABILITY. If any provisions of this Agreement is rendered or
declared illegal or unenforceable, all other provisions of this Agreement will
remain in full force and effect.
12. 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 (or to such other address as any
party hereto may specify in a written notice given in accordance with this
Section 12):
If to Executive: David G. Fiore
6833 Alcove Lane
Plano, Texas, 75024
Telephone: 972-618-9078
Facsimile: 972-379-7070
With copy to: John W. Hamilton, Esq.
Hamilton & Hartsfield, P.C.
14651 Dallas Parkway, Suite 102
Dallas, Texas 75240-7477
Telephone: 972-991-7311
Facsimile: 972-991-7744
If to the Company: Chairman of the Board
Commemorative Brands, Inc.
7211 Circle S Road
Austin, TX 78745
Telephone: 512-444-0591
Facsimile: 512-443-5213
With Copy to: David B. Pittaway
Castle Harlan, Inc.
150 East 58th Street
New York, NY 10155
Telephone: 212-644-8600
Facsimile: 212-207-8042
13. ASSIGNMENT. The rights and obligation 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.
In the event of any sale or other transfer of all or substantially all
of the business and assets of the Company other than by a sale of stock of the
Company or a merger or consolidation, the person or entity to whom such sale or
transfer is made shall be required to assume all of the Company's obligations
under this Agreement. In the
event such purchaser does not assume the Company's obligations under this
Agreement, the Company shall remain liable for any amounts that become due under
this Agreement.
14. 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.
15. REVIEW AND CONSULTATION. Executive acknowledges that he has had a
reasonable time to review and consider this Agreement and has consulted with an
attorney.
16. LEGAL FEES. The Company shall reimburse the Executive for
reasonable legal fees incurred by the Executive in reviewing and negotiating
this Agreement.
17. ENTIRE AGREEMENT AND AMENDMENT. This Agreement contains the entire
agreement of Executive and the Company relating to the matter 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, except as provided in Section 11 hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
COMMEMORATIVE BRANDS, INC.
By: /S/ David B. Pittaway
-----------------------
Name: David B. Pittaway
Title: Director
EXECUTIVE
By: /S/ David G. Fiore
-----------------------
David G. Fiore