EMPLOYMENT AGREEMENT
This Agreement made as of the 3rd day of January, 1997 (the "Effective
Date"), by and between HA-LO INDUSTRIES, INC., an Illinois corporation
("Employer"), and LINDEN D. NELSON ("Employee").
WHEREAS, in consideration of the employment of Employee with Employer and
other good and valuable consideration the receipt of which is hereof
acknowledged, Employee and Employer agree to execute and be bound by this
Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the promise
and covenants contained herein the parties agree as follows:
1. RECITALS. Each of the above recitals are incorporated in this
Agreement and are binding upon the parties hereof.
2. EMPLOYMENT. Employer hereby employs Employee, and Employee hereby
accepts employment as Vice Chairman of the Board of Employer and Chairman of the
Board and Chief Executive Officer of Creative Concepts in Advertising, Inc., a
Michigan corporation which is a wholly-owned subsidiary of Employer ("CCA"), all
on the terms and conditions set forth herein.
3. TERM. Subject to the provisions for termination hereinafter provided,
the term of this Agreement shall be a period of five (5) years from the
Effective Date (the "Term").
4. DUTIES OF EMPLOYEE. Employee shall perform, on a full-time best
efforts basis as his principal employment, such duties commensurate with his
position and experience as shall be assigned to him from time to time by the
Board of Directors of the Employer, including, without limitation, serving on
the Board of Directors of the Employer and/or the Board of Directors of such
subsidiaries of the Employer as the Employer may determine; provided, however,
that Employer shall not be entitled to any additional compensation for such
service.
5. COMPENSATION AND BENEFITS.
(a) Employer shall pay to Employee salary at an initial annual rate
of Five Hundred Thousand Dollars ($500,000) per year, payable monthly, on
the last day of each calendar month or upon such other frequency as the
parties hereto shall agree ("Base Pay") while this Agreement is in effect.
The Base Pay may be changed from time to time by the Board of Directors in
its sole discretion; provided, however, that so long as Lou Weisbach is the
Chief Executive Office of Employer, Employee shall at all times during the
Term receive no less than the base pay and cash bonus then received by Lou
Weisbach.
(b) BONUS. Employee shall be entitled to such bonus payments as may
be determined in the sole and absolute discretion of the Board of Directors
of the Employer (or an authorized committee thereof), in such forms and at
such times as the Board of Directors of the Employer shall determine from
time to time in its sole discretion.
(c) FRINGE BENEFITS. Employer shall provide to Employee such
employee fringe benefits as are generally provided for employees of
Employer similarly situated to Employee, including, without limitation, one
car. Employee shall be entitled to take such annual vacation at such time
and in such amounts as are consistent with the Employer's policy.
(d) OPTIONS. Upon the execution hereof, Employee shall receive three
hundred twelve thousand five hundred (312,500) options to purchase the
common stock of Employer (the "Option Shares"). The exercise price of such
options shall be equal to the mean between the bid and asked prices for
Employer's common stock, as reported by NASDAQ System as of the close of
business on the date of this Agreement. The options shall be fully vested
upon grant. The option shall be valid for a term commencing as of the date
of this Agreement and ending ten (10) years thereafter. The options shall
be non-transferable (other than by will or otherwise upon death). During
Employee's lifetime, the options may be exercised only by the Employee.
(i) At any time after the first anniversary of the Effective
Date, Employee may, by written notice (the "Registration Notice") to
the Company request that the Company register for sale under the
Securities Act of 1933, as amended (the "Securities Act"), all or any
portion of the Option Shares that Employee has purchased, or will
purchase, on or before the effective of the registration statement
relating to the disposition of the Option Shares. As soon as
practicable following receipt of the Registration Notice, Employer (i)
shall commence to prepare and shall file a registration statement
under the Securities Act for the sale of the Option Shares specified
in such Registration Notice and (ii) use its best efforts to cause
such registration statement to become effective for the lesser of (y)
one year and (z) the date upon which all of the Option Shares which
are the subject of such registration statement have been disposed of.
The registration statement contemplated by this clause (d) shall
provide for the sale by Employee of the Option Shares included therein
from time to time on a delayed or continuous basis pursuant to Rule
415 under the Securities Act, but shall not provide for the
distribution of the Option Shares pursuant to an underwritten
distribution.
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(ii) Notwithstanding anything to the contrary contained in this
Agreement, Employer shall not be required to file a registration
statement or cause it to be declared effective at a time (x) after
completion of a fiscal year end, but prior to the availability of the
year end audited financial statements, (y) when Employer, in the good
faith judgement of its board of directors shall determine that any
offering of Option Shares would impede, delay or otherwise interfere
with any pending or contemplated acquisition involving Employer or (z)
when Employer is in possession of material information which, in the
good faith judgment of Employer's board of directors, if disclosed in
a registration statement, would be materially harmful to the interests
of Employer and its shareholders. Employee shall cease all
disposition efforts with respect to Option Shares upon receipt of
notice from Employer indicating the existence of any circumstance of
any of the events described in this clause (ii).
(iii) Employer shall not be required to register the Option
Shares pursuant to this clause (d) on more than one occasion.
(iv) It shall be a condition to the inclusion of any Option
Shares in a registration statement that Employee cooperate in the
execution and filing of the registration statement and any necessary
state securities law filings.
(v) Whether or not any registration statement becomes
effective, Employer shall pay all costs, fees and expenses incident to
Employer's performance of or compliance with this clause (d).
Notwithstanding the foregoing, any discounts, commissions, brokers'
fees or fees of similar securities industry professional relating to
the distribution of the Option Shares and fees and expenses of counsel
for Employee will be payable by Employee and the Company will have no
obligation to pay any such amounts.
6. EXPENSE REIMBURSEMENT. Employee shall be entitled to reimbursement by
the Company 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, gas, oil, automobile insurance, repairs and maintenance,
parking expenses, tolls, lodgings and meals, while performing services, and
other transportation expenses, all subject to and consistent with the Employer's
policy.
7. TERMINATION. This Agreement shall be terminated on the earliest to
occur of (i) the expiration of the Term; (ii) the
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mutual agreement of Employer and Employee; (iii) the death of the Employee; (iv)
the permanent disability of the Employee as hereinafter defined, or (v) the
dismissal of Employee for "cause" as hereinafter defined. Upon any termination
of the term of this Agreement, Employee shall promptly deliver to the Employer
(without retaining any copies thereof) all the forms, brochures, project
materials, sales materials, manuals, letterhead, business cards or any other
written or printed materials relating to the business of the Employer.
Employee shall be deemed to be "permanently disabled" hereunder if it is
determined by a physician selected by the Employer, with the reasonable approval
of Employee, which physician is on the staff of a hospital associated with a
medical school and located in the Detroit, Michigan metropolitan area, that the
Employee is suffering from a mental, physical or emotional disability or
condition which is reasonably expected to last for two hundred and ten (210)
days or more, and which prevents Employee from fully performing his duties
hereunder.
The Company shall be deemed to have "cause" to dismiss Employee from
employment by the Employer hereunder 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. NON-COMPETITION. Employee covenants that during the Term and for a
period of two (2) years after the Term, Employee shall not, directly or
indirectly, within the United States or Canada, on his own account, or as an
employee, consultant, agent, partner, joint venturer, owner or officer of any
other person, firm, partnership, corporation or other entity, or in any other
capacity, in any way, conduct, engage in or aid or assist anyone in the conduct
of a business competitive with the Employer (or any of its direct or indirect
subsidiaries).
9. NON-SOLICITATION. Employee covenants that during the Term and for a
period of two (2) years after the Term, Employee shall not, directly or
indirectly, as an employee, agent, salesman or member of any person,
corporation, firm or otherwise, (i) call upon, solicit, or engage in the
business conducted by the Employer (or any of its direct or indirect
subsidiaries) with a customer of the Employer (or any of its direct or indirect
subsidiaries) (a) with which Employee had direct or indirect contact or (b)
regarding which customer Employee learned Employer's confidential information or
trade secrets while employed by Employer or CCA or while on either of their
respective Boards of Directors or (ii) solicit any employee or agent of Employer
(or its direct or indirect subsidiaries) or make such other contact with such
employees or
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agents, which contact will or may yield a termination of the employment or
agency relationship of such employees or agents.
10. REMEDIES. Employee acknowledges that compliance with the restrictive
covenants set forth in Section 8 and 9 herein is necessary to protect the
business, goodwill and proprietary information of the Employer and that a breach
of these restrictions will irreparably and continually damage the Employer for
which money damages may not be inadequate. 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. In the event that any of the
provisions, covenants, warranties or agreements in this Agreement are held to be
in any respect an unreasonable restriction upon or are otherwise invalid, for
whatsoever cause, then the court so holding shall reduce and is so authorized to
reduce, the territory to which it pertains and/or the period of time in which it
operates, or the scope of activity to which it pertains or effect any other
change to the extent necessary to render any of the restrictions of this
Agreement enforceable.
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
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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. 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.
17. 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 the Employer at 5980 West Touhy, Niles,
Illinois 60714, Attention: Board of Directors, and to the Employee at 6180 Wing
Lake Road, Bloomfield Hills, Michigan 48301.
18. 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.
WHEREFORE, the parties have executed this Agreement on the date and year
first above written.
EMPLOYER EMPLOYEE
By: HA-LO INDUSTRIES, INC.
By:
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Its: Linden D. Nelson
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