EMPLOYMENT AGREEMENT
Exhibit 10.1
EMPLOYMENT AGREEMENT made and entered into as of the Effective Date as hereinafter defined, by
and among VALASSIS COMMUNICATIONS, INC. (“VCI” or the “Corporation”), a Delaware corporation whose
principal place of business is located at 00000 Xxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxx, 00000, VALASSIS
SALES & MARKETING SERVICES, INC. (“VSMS”) and Xxxxxx X. Xxxxx (the “Executive”).
WHEREAS, effective January 1, 2002, VCI has reorganized its sales organization to create VSMS
and pursuant to such reorganization, the Executive will be rendering services to VSMS.
IN CONSIDERATION of the mutual promises, covenants and agreements set forth below, it is
hereby agreed as follows:
1. Employment and Term.
(a) The Corporation agrees to employ the Executive, and the Executive agrees to remain in the
employ of the Corporation, in accordance with the terms and provisions of this Agreement for the
period set forth below (the “Employment Period”).
(b) The Employment Period shall commence on January 1, 2002 (the “Effective Date”) and shall
continue until the close of business on June 30, 2003.
2. Duties and Powers of Executive.
(a) Position. During the Employment Period, the Executive shall serve as Vice
President of Sales, Targeted Print and Media Solutions.
(b) Duties. During the Employment Period, and excluding any periods of vacation and
sick leave to which the Executive is entitled, the Executive agrees to devote substantially his
full business time and attention during normal business hours to the business and affairs of the
Corporation and to the discharge of his duties hereunder. The Executive shall perform his duties
hereunder subject to the customary oversight by the Executive Vice President of Targeted Print and
Media Solutions of the Corporation.
3. Compensation.
The Executive shall receive the following compensation for his services hereunder to the
Corporation:
(a) Salary. The Executive’s annual base salary (“Annual Base Salary”), payable not
less often than biweekly, shall be at the annual rate of not less than $115,000 commencing on January 1, 2002. The Board may from time to time direct such upward adjustments in Annual Base
Salary and other compensation and benefits as the Board deems to be necessary or desirable,
including, without limitation, adjustments in order to reflect increases in the cost of living.
Annual Base Salary shall not be reduced after any increase thereof. Any increase in Annual Base
Salary and/or other compensation and benefits shall not serve to limit or reduce any other
obligation of the Corporation under this Agreement.
(b) Bonus Program. Commencing on January 1, 2002, the Executive shall be eligible
for a bonus program (the “Bonus Program”) as set forth on Exhibit A hereto. Such Bonus Program
shall be effective for the period January 1, 2002 through December 31, 2002. Such Bonus Program
shall be amended by the Corporation, in its sole discretion, to cover subsequent years of the
Employment Period.
(c) Retirement and Welfare Benefit Plans. During the Employment Period and so long
as the Executive is employed by the Corporation, he shall be eligible to participate in all
savings, retirement and welfare plans, practices, policies and programs including, without
limitation, Valassis Employees’ Profit Sharing Plan, its 401(k) Retirement Savings Plan, its Flex
Plan, its death benefit plans, its disability benefit plans, and its medical, dental and health and
welfare plans (the “Plans”) applicable generally to employees and/or other executives of the
Corporation.
(d) Expenses. VSMS agrees to reimburse the Executive for all expenses, including
those for travel and entertainment, properly incurred by him in the performance of his duties
hereunder in accordance with policies established from time to time by the Board, and the Executive
shall account to the Corporation for such expenses.
(e) Fringe Benefits. During the Employment Period, VSMS shall furnish an automobile
to the Executive and pay all of the related expenses for gasoline, insurance, maintenance and
repairs.
(f) Vacation and Other Absences. During the Employment Period and so long as the
Executive is employed by the Corporation, he shall be entitled to paid vacation and such other paid
absences whether for holidays, illness, personal time or any similar purposes, in accordance with
the plans, policies, programs and practices of the Corporation in effect from time to time.
4. Termination of Employment.
(a) Death or Disability. The Executive’s employment shall terminate automatically
upon the Executive’s death during the Employment Period. If the Corporation determines in good
faith that Disability (as defined below) of the Executive has occurred during the Employment
Period, it may give to the Executive written notice in accordance with Section 9(b) of this
Agreement of its intention to terminate the Executive’s employment. In such event, the Executive’s
employment with the Corporation shall terminate effective on the 30th day after receipt of such
notice by the Executive (the “Disability Effective Date”), provided that within the thirty (30)
days after such receipt, the Executive shall not have returned to full-time performance of the
Executive’s duties. For purposes of this Agreement, “Disability” shall mean the absence of the
Executive from the Executive’s duties with the Corporation for a period of at least 180 days during
any 12-month period as a result of incapacity due to mental or physical illness.
(b) By the Corporation for Cause. The Corporation may terminate the Executive’s
employment during the Employment Period for Cause. For purposes of this Agreement, “Cause” shall
mean (i) the conviction of the Executive for the commission of a felony; (ii) action by the
Executive involving willful malfeasance or gross negligence or failure to act by the Executive
involving material nonfeasance, which, at the time of such willful malfeasance or gross negligence
or material nonfeasance, has a materially adverse effect on the Corporation and/or VSMS; or (iii)
the failure by the Executive to follow directives of the Executive Vice President of Targeted Print
and Media Solutions of the Corporation or the failure to meet reasonable performance standards
established by such executives of the Corporation.
(c) Notice of Termination. Any termination by the Corporation for Cause shall be
communicated by Notice of Termination to the Executive in accordance with Section 9(b) of this
Agreement. For purposes of this Agreement, a “Notice of Termination” means a written notice which
(i) indicates the specific termination provision in this Agreement relied upon; (ii) to the extent
applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis
for termination of the Executive’s employment under the provision so indicated; and (iii) if the
Date of Termination (as defined in Section 4(d)) is other than the date of receipt of such notice,
specifies the termination date (which date shall be not more than 30 days after the giving of such
notice). The failure by the Corporation to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Cause shall not waive any right of the Corporation
hereunder or preclude the Corporation from asserting such fact or circumstance in enforcing the
Corporation’s rights hereunder.
(d) Date of Termination. “Date of Termination” means (i) if the Executive’s
employment is terminated by the Corporation for Cause, the date of receipt of the Notice of
Termination or any later date specified therein, as the case may be; (ii) if the Executive’s
employment is terminated by the Corporation other than for Cause or by reason of Death or
Disability, the Date of Termination shall be the date on which the Corporation notifies the
Executive of such termination; and (iii) if the Executive’s employment is terminated by reason of
death or Disability, the Date of Termination shall be the date of death of the Executive or the
Disability Effective Date, as the case may be.
5. Obligations of the Corporation upon Termination.
(a) Termination Other Than for Cause. During the Employment Period, if the
Corporation shall terminate the Executive’s employment (other than in the case of a termination for
Cause) or the Executive’s employment shall terminate by reason of death or Disability (termination
in any such case referred to as “Termination”):
(i) the Corporation shall pay to the Executive in a lump sum in cash the sum of (1)
the Executive’s Annual Base Salary through the Date of Termination to the extent not
theretofore paid and (2) any accrued vacation pay, to the extent not theretofore paid. To
the extent not theretofore paid, the sum of the amounts described in clauses (1) and (2)
shall be hereinafter referred to as the “Accrued Obligations.” The amounts specified in
this Section 5(a)(i) shall be paid within 30 days after the Date of Termination; and
(ii) in the event of Termination other than by reason of the Executive’s death or
Disability, then beginning on the biweekly payment date next following the Termination and
on each biweekly payment date thereafter until the end of the Employment Period (the period
from such Date of Termination until the end of the Employment Period herein called the
“Severance Period”), the Corporation shall pay to the Executive an amount equal to the
biweekly installment of the Executive’s Annual Base Salary in effect as of such Date of
Termination; and
(iii) in the event of Termination other than by reason of the Executive’s death or
Disability, the Corporation shall pay to the Executive in a lump sum in cash within 30 days
after the Date of Termination a bonus in an amount equal to the then current Annual Base
Salary, whether or not earned; and
(iv) in the event of Termination other than by reason of the Executive’s death or
Disability, then, during the Severance Period, the Corporation shall continue medical and
welfare benefits to the Executive and/or the Executive’s family at least equal to those
which would have been provided if the Executive’s employment had not been terminated, such
benefits to be in accordance with the most favorable medical and welfare benefit plans,
practices, programs or policies (the “M&W Plans”) of the Corporation as in effect and
applicable generally to other executives of the Corporation and their families during the
90-day period immediately preceding the Date of Termination or, if more favorable to the
Executive, as in effect generally at any time thereafter with respect to other executives of
the Corporation (but on a prospective basis only unless, and then only to the extent, such
more favorable M&W Plans are by their terms retroactive), provided, however, that if the
Executive becomes re-employed with another employer and is eligible to receive medical or
other welfare benefits under another employer-provided plan, the benefits under the M&W
Plans shall be reduced as provided in Section 6 of this Agreement. For purposes of
determining eligibility of the Executive for benefits under the M&W Plans, the Executive
shall be considered to have remained employed until the end of the Severance Period.
(b) Termination by the Corporation for Cause. Subject to the provisions of Section 6
of this Agreement, if the Executive’s employment shall be terminated for Cause during the
Employment Period, the Corporation shall have no further obligations to the Executive under this
Agreement other than the obligation to pay to the Executive Annual Base Salary through the Date of
Termination plus the amount of any compensation previously deferred by the Executive, in each case
to the extent theretofore unpaid.
6. Full Settlement; Mitigation.
The Executive shall make reasonable efforts to mitigate damages by seeking other comparable
employment. To the extent that the Executive shall receive compensation or benefits from such
other employment, the payments to be made and the benefits to be provided by the Corporation as
provided in this Agreement shall be correspondingly reduced. If the Executive shall fail to make
reasonable efforts to mitigate damages by seeking other comparable employment, the Corporation’s
obligations under this Agreement shall cease until such time as the Executive commences to make
such efforts. If the Executive finally prevails with respect to any dispute among the Corporation,
the Executive or others as to the interpretation, terms, validity or enforceability of (including
any dispute about the amount of any payment pursuant to) this Agreement, the Corporation agrees to
pay all legal fees and expenses which the Executive may reasonably incur as a result of any such
dispute; provided, however, that if the Executive is not entitled to recover such legal fees and
expenses pursuant to the foregoing provisions of this Section 6, the Executive shall not be
entitled to recover any such legal fees or expenses, and he hereby waives any rights to such
recovery, under any provision of the By-laws (now or hereafter in effect) of the Corporation which
provide for indemnification of or payment to the Executive of legal fees and expenses.
7. Confidential Information and Competitive Conduct.
(a) Confidential Information. The Executive shall hold in a fiduciary capacity for
the benefit of the Corporation and VSMS all secret, confidential information, knowledge or data
relating to the Corporation or any of their affiliated companies, and its respective businesses,
which shall have been obtained by the Executive during the Executive’s employment by the
Corporation and VSMS or any of their affiliated companies and which shall not have been or now or
hereafter have become public knowledge (other than by acts by the Executive or representatives of
the Executive in violation of this Agreement). During the Employment Period and for a period of five years
thereafter, the Executive shall not, without the prior written consent of the Corporation or as may
otherwise be required by law or legal process, communicate or divulge any such information,
knowledge or data to anyone other than the Corporation, VSMS and those designated by them.
(b) Covenant Not to Compete or Solicit. During the Employment Period, the Executive
shall not offer or sell any products or services that compete with the businesses of VCI or VSMS,
nor shall he render services to any firm, person or corporation so competing with VCI or VSMS, nor
shall he have any interest, direct or indirect, in any business that is so competing with the
businesses of VCI or VSMS; provided, however, that ownership of five percent or less of any class
of debt or equity securities which are publicly traded securities shall not be a violation of this
covenant. The foregoing provisions of this Section 7(b) shall be extended, at the option of VCI,
for up to two additional years after the end of the Employment Period so long as VCI shall pay to
the Executive with respect to each year as to which it has exercised its option an amount equal to
the Executive’s then Annual Base Salary in biweekly installments during such year. The first year
of such extension shall be exercised at the option of VCI upon written notice to the Executive not
later than 60 days prior to the end of the Employment Period. The second year of such extension
shall be exercised at the option of VCI upon written notice to the Executive not later than 60 days
prior to the end of the exercised first year of such extension. So long as the Executive is
employed hereunder, and for any additional period of time described in the preceding sentences, the
Executive shall not, directly or indirectly, (i) solicit any employee of VCI or VSMS or their
respective affiliates with a view to inducing or encouraging such employee to leave the employ of
VCI or VSMS or their respective affiliates for the purpose of being hired by the Executive or any
employer affiliated with the Executive or (ii) solicit, take away, attempt to take away, or
otherwise interfere with VCI’s or VSMS’ or their affiliates’ business relationship with any of
their respective customers.
(c) In the event of a breach or threatened breach of this Section 7, the Executive agrees
that the Corporation and VSMS shall be entitled to injunctive relief in a court of appropriate
jurisdiction to remedy any such breach or threatened breach, the Executive acknowledging that
damages would be inadequate and insufficient.
8. Successors.
(a) This Agreement is personal to the Executive and without the prior written consent of the
Corporation shall not be assignable by the Executive otherwise than by will or the laws of descent
and distribution. This Agreement shall inure to the benefit of and be enforceable by the
Executive’s legal representative.
(b) This Agreement shall inure to the benefit of and be binding upon the Corporation, VSMS
and their successors and assigns.
9. Miscellaneous.
(a) The captions of this Agreement are not part of the provisions hereof and shall have no
force or effect. This Agreement may not be amended, modified, repealed, waived, extended or
discharged except by an agreement in writing signed by the party against whom enforcement of such
amendment, modification, repeal, waiver, extension or discharge is sought. No person, other than
pursuant to a resolution of the Board or a committee thereof, shall have authority on behalf of the
Corporation or VSMS to agree to amend, modify, repeal, waive, extend or discharge any provision of
this Agreement or anything in reference thereto.
(b) All notices and other communications hereunder shall be in writing and shall be given by
hand delivery to the other party or by registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
If to the Executive:
Xxxxxx X. Xxxxx
c/o Valassis Communications, Inc.
00000 Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
c/o Valassis Communications, Inc.
00000 Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
If to the Corporation:
Valassis Communications, Inc.
00000 Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
00000 Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
and
Valassis Sales & Marketing Services, Inc.
00000 Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: President
00000 Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: President
(c) The invalidity or unenforceability of any provision of this Agreement shall not affect
the validity or enforceability of any other provision of this Agreement.
(d) The Corporation may withhold from any amounts payable under this Agreement such Federal,
state or local taxes as shall be required to be withheld pursuant to any applicable law or
regulation.
(e) This instrument contains the entire agreement of the Executive, the Corporation and VSMS
with respect to the subject matter hereof, and all promises, representations, understandings,
arrangements and prior agreements are merged herein and superseded hereby.
IN WITNESS WHEREOF, the Executive, VSMS and, pursuant to due authorization from its Board of
Directors, the Corporation has caused this Agreement to be executed as of the day and year first
above written.
| VALASSIS COMMUNICATIONS, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Title: Secretary | ||||
| VALASSIS SALES & MARKETING SERVICES, INC. |
||||
| By : /s/ Xxxxxxx X. Xxxxxxxx | ||||
| Title: Secretary | ||||
| /s/ Xxxxxx X. Xxxxx | ||||
THIS AMENDMENT TO EMPLOYMENT AGREEMENT (the “Amendment”) is made January 6, 2003 by and
between Valassis Communications, Inc., Valassis Sales & Marketing Services, Inc. (collectively the
“Corporations”) and Xxxxxx X. Xxxxx (the “Executive”).
WHEREAS, the Corporations and the Executive entered into that certain Employment Agreement
effective as of January 1, 2002 (the “Employment Agreement”); and
WHEREAS, the Corporations and the Executive desire to amend the Employment Agreement to extend
the term of employment under the Employment Agreement.
NOW THEREFORE, in consideration of the above recitals, the parties hereto agree as set forth
below.
1. Section 1(b) of the Employment Agreement shall be amended to read in its entirety as
follows:
“The Employment Period shall commence as of January 1, 2002 (the “Effective Date”)
and shall continue until the close of business on September 30, 2005.”
2. The first sentence of Section 3(a) of the Employment Agreement shall be amended to read as follows:
“The Executive’s Annual Base Salary (“Annual Base Salary”), payable on a biweekly
basis, shall be at the annual rate of not less than $133,000 effective
January 1, 2003.”
3. All other terms of the Employment Agreement shall remain in full force and
effect.
4. This instrument, together with the Employment Agreement, contains the entire agreement of
the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the Executive and the Corporations have caused this Agreement to be
executed as of the day and year first above written.
| VALASSIS COMMUNICATIONS, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Title: Secretary | ||||
| VALASSIS SALES & MARKETING SERVICES, INC. |
||||
| By: | /s/ XxxxXxx X. Xxxxxx | |||
| Title: Vice President and Treasurer | ||||
| /s/ Xxxxxx X. Xxxxx | ||||
AMENDMENT
TO
EMPLOYMENT AGREEMENT
TO
EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT (the “Amendment”) is made January 28, 2004 by and
between Valassis Communications, Inc., Valassis Sales & Marketing Services, Inc. (collectively the
“Corporations”) and Xxxxxx X. Xxxxx (the “Executive”).
WHEREAS, the Corporations and the Executive entered into that certain Employment Agreement
effective as of January 1, 2002 as amended on January 6, 2003 (the “Employment Agreement”); and
WHEREAS, the Corporation and the Executive desire to amend the Employment Agreement to reflect
an increase in the Executive’s Annual Base Salary.
NOW THEREFORE, in consideration of the above recitals, the parties hereto agree as set forth
below.
1. The first sentence of Section 3(a) of the Employment Agreement shall be amended to read as
follows:
“The Executive’s Annual Base Salary (“Annual Base Salary”), payable on a biweekly
basis, shall be at the annual rate of not less than $155,000 effective January 1, 2004.”
2. All other terms of the Employment Agreement shall remain in full force and effect.
3. This instrument, together with the Employment Agreement, contains the entire agreement
of the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the Executive and the Corporations have caused this Agreement to be
executed as of the day and year first above written.
| VALASSIS COMMUNICATIONS, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Title: Secretary | ||||
| VALASSIS SALES & MARKETING SERVICES, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Title: Secretary | ||||
| /s/ Xxxxxx X. Xxxxx | ||||
AMENDMENT
TO
EMPLOYMENT AGREEMENT
TO
EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT (the “Amendment”) is made January 1, 2005 by and
between Valassis Communications, Inc., Valassis Sales & Marketing Services, Inc. (collectively the
“Corporations”) and Xxxxxx X. Xxxxx (the “Executive”).
WHEREAS, the Corporations and the Executive entered into that certain Employment Agreement
effective as of January 1, 2002 as amended on January 6, 2003 and January 28, 2004 (the “Employment
Agreement”); and
WHEREAS, the Corporation and the Executive desire to amend the Employment Agreement to extend
the term of employment under the Employment Agreement.
NOW THEREFORE, in consideration of the above recitals, the parties hereto agree as set forth
below.
1. Section 1(b) of the Employment Agreement shall be amended to read in its entirety as
follows:
“The Employment Period shall commence as of January 1, 2002 (the “Effective Date”)
and shall continue until the close of business on June 30, 2007.
2. The first sentence of Section 3(a) of the Employment Agreement shall be amended to read as
follows:
| “The Executive’s Annual Base Salary (“Annual Base Salary”), payable on a biweekly basis, shall be at the annual rate of not less than $170,000 effective January 1, 2005.” |
3. All other terms of the Employment Agreement shall remain in full force and effect.
4. This instrument, together with the Employment Agreement, contains the entire agreement
of the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the Executive and the Corporation have caused this Agreement to be
executed as of the day and year first above written.
| VALASSIS COMMUNICATIONS, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Title: Secretary | ||||
| VALASSIS SALES & MARKETING SERVICES, INC. |
||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Title: President | ||||
| /s/ Xxxxxx X. Xxxxx | ||||
AMENDMENT
TO
EMPLOYMENT AGREEMENT
TO
EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT (the “Amendment”) is made February 12, 2007 by and
between Valassis Communications, Inc., ADVO, Inc. (collectively the “Corporations”) and Xxxxxx X.
Xxxxx (the “Executive”).
WHEREAS, the Corporations and the Executive entered into that certain Employment Agreement
effective as of January 1, 2002 as amended on January 6, 2003, January 28, 2004 and January 1, 2005
(the “Employment Agreement”); and
WHEREAS, the Corporation and the Executive desire to amend the Employment Agreement to extend
the term of employment under the Employment Agreement.
NOW THEREFORE, in consideration of the above recitals, the parties hereto agree as set forth
below.
1. Section 2(a) of the Employment Agreement shall be amended to read in its entirety as
follows:
“During the Employment Period, the Executive shall serve as President and Chief
Executive Officer, ADVO, Inc.”
2. The first sentence of Section 3(a) of the Employment Agreement shall be amended to
read as follows:
“The Executive’s Annual Base Salary (“Annual Base Salary”), payable on a biweekly
basis, shall be at the annual rate of not less than $275,000 effective March 2, 2007.”
3. All other terms of the Employment Agreement shall remain in full force
and effect.
4. This instrument, together with the Employment Agreement, contains the entire agreement
of the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the Executive and the Corporation have caused this Agreement to be
executed as of the day and year first above written.
| VALASSIS COMMUNICATIONS, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Title: Secretary | ||||
| ADVO, INC. |
||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Title: Senior Vice President, Chief Financial Officer | ||||
| /s/ Xxxxxx X. Xxxxx | ||||
AMENDMENT
TO
EMPLOYMENT AGREEMENT
TO
EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT (the “Amendment”) is made December 30, 2008 by and
between Valassis Communications, Inc. (the “Corporation”), Valassis Sales & Marketing Services,
Inc., Xxxxxx Xxxxx (the “Executive”).
WHEREAS, the Corporation and the Executive entered into that certain Employment Agreement
effective as of January 1, 2002 as amended on January 6, 2003, January 28, 2004, January 1, 2005
and February 12, 2007 (the “Employment Agreement”); and
WHEREAS, the Corporation and the Executive desire to further amend the Employment Agreement to
extend the term of employment under the Employment Agreement, to amend section 3(b), and to comply
with Section 409A of the Internal Revenue Code.
NOW THEREFORE, in consideration of the above recitals, the parties hereto agree as set forth
below.
1. Section 1(b) of the Employment Agreement shall be amended to read in its entirety as
follows:
“The Employment Period shall commence as of January 1, 2002 (the “Effective Date”)
and shall continue until the close of business on December 31, 2010.”
2. Section 3(b) of the Employment Agreement shall be amended to add a new paragraph at
the end of such Section as follows:
“Notwithstanding the foregoing, with respect to the calendar year beginning on January 1,
2009 only, in lieu of the bonus provided under the first paragraph of this Section 3(b),
the Executive shall be eligible to receive an annual cash bonus of up to 100% of the
Annual Base Salary on the following basis: (i) 50% in accordance with the targets set by
the Committee; and (ii) 50% in accordance with performance targets set by the Chairman,
President and Chief Executive Officer of the Corporation. Any bonus granted hereunder
shall be paid after the end of the twelve-month performance period when the Committee has
determined that applicable targets have been met but in no event later than 60 days after
the end of such period. Notwithstanding anything to the contrary contained herein, with
respect to the bonus payable for the performance period beginning on January 1, 2009 and
ending on December 31, 2009, the Committee shall have the sole and absolute discretion to
reduce or eliminate such bonus prior to payment, without the necessity of the Executive’s
consent, whether or not such bonus is then earned or otherwise payable by its terms. All
determinations regarding the cash bonus and whether it is earned or paid shall be made by
the Committee, in its sole and absolute discretion. The Executive shall also be entitled
to participate in any programs of the Corporation enabling employees to apply all or part
of any bonus to the purchase of the Corporation’s stock and receive matching grants.”
3. A new sentence is added to the end of Section 3(d) of the Employment Agreement as
follows:
“Any such reimbursements shall be made within thirty (30) days after the proper delivery
by the Executive of such evidence of expenses that the Corporation may require, but in no
event will the reimbursement payment be made later than the end of the calendar year
following the calendar year in which the expense is incurred.”
4. A new sentence is added to the end of Section 3(e) of the Employment Agreement as
follows:
“Any amounts paid by the Corporation hereunder shall be made within thirty (30) days
after the proper delivery by the Executive of such evidence of expenses that the
Corporation may require, but in no event will the reimbursement payment be made later
than the end of the calendar year following the calendar year in which the expense is
incurred.”
5. Section 5(a)(iii) of the Employment Agreement shall be amended by adding the following
parenthetical at the end of such subsection:
“(or, with respect to any employment termination that occurs during the calendar year
2009, an amount equal to 100% of the maximum annual cash bonus for such year, whether or
not earned, as determined under the Section 3(b) of this Agreement)”
6. The first sentence of Section 5(a)(iv) of the Employment Agreement shall be amended to
add the following language after “medical and welfare benefits”, in the first place where such
phrase appears:
“on a monthly basis”
7. The following sentences shall be added to Section 5(a)(iv) of the Employment
Agreement:
“The parties intend that continued coverage under the M&W Plans shall not constitute a
‘deferral of compensation’ under Treas. Reg. Section 1.409A-1(b) during the period the
Executive would be entitled to continuation coverage under Section 4980B (COBRA)
(typically 18 months) or during any period in which such continued coverage qualifies as
a ‘limited payment’ of an ‘in kind’ benefit under Treas. Reg. Section
1.409A-1(b)(9)(v)(C) and (D). Any portion of the continued coverage under the M&W Plans
that is subject to Section 409A of the Code is intended to qualify as a ‘reimbursement or
in-kind benefit plan’ under Treas. Reg. Section 1.409A-3(i)(1)(iv). If the Corporation
reimburses the Executive for the amount of any benefit under this subsection (iv), such
reimbursement shall be made on or before the last day of the Executive’s taxable year
following the taxable year in which the expense was incurred. In no event shall the
amount that the Corporation pays for any such benefit in any one year affect the amount
that it will pay in any other year, and in no event shall the benefits described in this
paragraph be subject to liquidation or exchange.”
8. Section 5(a) of the Employment Agreement is amended by adding a new subsection (v) to
read as follows:
“(v) Notwithstanding the payment schedules contained elsewhere in this Section 5, to
the extent necessary to comply with the requirements of Section 409A of the Code, if the
Executive is a ‘specified employee’ (as defined below) at the time of his termination of
employment, the payments under Section 5(a)(ii) shall not be made before the date which
is six (6) months and one (1) day after the date of the Executive’s termination of
employment (or, if earlier, the date of his death). For purposes of the preceding
sentence, a ‘specified employee’ shall have the meaning set forth in Section 1.409A-1(i)
of the Final Regulations under Section 409A of the Code. As provided by Section 409A of
the Code and the regulations thereunder, however, no delay shall apply to payments under
Section 5(a)(ii) of the Employment Agreement to the extent the aggregate amount of such
payments does not exceed the lesser of: two (2) times the Executive’s annualized
compensation based upon his annual rate of pay for services provided to the Corporation
for the calendar year preceding the Corporation’s taxable year in which the Executive has
a ‘separation from service’ (as such term is used in Section 409A of the Code) or two (2)
times the limit on compensation set forth in Section 401(a)(17) of the Code for the year
in which the Executive has a separation from service (the ‘Designated Compensation
Amount’). Any (1) amounts otherwise payable under the terms of Section 5(a)(ii) during
the six (6) month period beginning on the date of the Executive’s termination of
employment that are in excess of the Designated Compensation Amount and (2) other
payments under this Section 5 that are delayed as provided for in this Section 5(c) will
be paid in full within thirty (30) days after the end of such six (6) month period, with
the remaining payments made on the schedule provided in the applicable subsection of this
Section 5.”
9. The following sentence shall be added to Section 6 of the Employment Agreement:
“Any amounts paid by the Corporation under this paragraph shall be made within thirty
(30) days after the proper delivery by the Executive of such evidence of legal fees and
expenses that the Corporation may require, but in no event will the reimbursement payment
be made later than the end of the calendar year following the calendar year in which the
expense is incurred.”
10. Section 7(b) of the Employment Agreement is amended by deleting the words:
“The foregoing provisions of this Section 7(b) shall be extended at the option of VCI”
and replacing them with the following:
“The Corporation, at its sole option and in its sole discretion, may choose to subject
the Executive to additional non-competition and non-solicitation restrictions”.
11. Section 9 of the Employment Agreement shall be amended to insert a new subsection (f)
to read in its entirety as follows:
“(f) The parties intend that the payments and benefits provided for in this
Agreement to either be exempt from Section 409A of the Code or be provided in a manner
that complies with Section 409A of the Code. Notwithstanding anything contained herein
to the contrary, all payments and benefits which are payable upon a termination of
employment hereunder shall be paid or provided only upon those terminations of employment
that constitute a ‘separation from service’ from the Corporation within the meaning of
Section 409A of the Code (determined after applying the presumptions set forth in Treas.
Reg. Section 1.409A-1(h)(1)).”
12. All other terms of the Employment Agreement shall remain in full force and effect.
13. This instrument, together with the Employment Agreement, contains the entire
agreement of the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the Executive and the Corporation have caused this Agreement to be
executed as of the day and year first above written.
| VALASSIS COMMUNICATIONS, INC. |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Title: Secretary | ||||
| VALASSIS SALES & MARKETING SERVICES, INC. |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Title: Vice President | ||||
| /s/ Xxxxxx X. Xxxxx | ||||
AMENDMENT
TO
EMPLOYMENT AGREEMENT
TO
EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT (the “Amendment”) is made December 31, 2009 by and
between Valassis Communications, Inc. (the “Corporation”), Valassis Sales & Marketing Services,
Inc., Xxxxxx Xxxxx (the “Executive”).
WHEREAS, the Corporation and the Executive entered into that certain Employment Agreement
effective as of January 1, 2002 as amended on January 6, 2003, January 28, 2004, January 1, 2005,
February 12, 2007 and December 30, 2008 (the “Employment Agreement”); and
NOW THEREFORE, in consideration of the above recitals, the parties hereto agree as set forth
below.
1. Section 1(b) of the Employment Agreement shall be amended to read in its entirety as
follows:
“The Employment Period shall commence as of January 1, 2002 (the “Effective Date”)
and shall continue until the close of business on December 31, 2011.”
2. All other terms of the Employment Agreement shall remain in full force and effect.
3. This instrument, together with the Employment Agreement, contains the entire agreement
of the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the Executive and the Corporation have caused this Agreement to be
executed as of the day and year first above written.
| VALASSIS COMMUNICATIONS, INC. |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Title: Secretary | ||||
| VALASSIS SALES & MARKETING SERVICES, INC. |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Title: Vice President | ||||
| /s/ Xxxxxx X. Xxxxx | ||||
AMENDMENT
TO
EMPLOYMENT AGREEMENT
TO
EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT (the “Amendment”) is made June 15, 2010 by and between
Valassis Communications, Inc. (the “Corporation”) and subsidiaries and the Executive named below
(the “Executive”).
WHEREAS, the Corporation and the Executive currently are parties to an Employment Agreement
(the “Employment Agreement”) and wish to amend the Employment Agreement; and
NOW THEREFORE, in consideration of the above recitals, the parties hereto agree as set forth
below:
1. The Employment Agreement shall be amended to include the following as an Exhibit at the end
of the Employment Agreement:
“Exhibit
Notwithstanding any provision of this Agreement to the contrary, the terms of the
Company’s Vice President (Career Level 2) Compensation and Benefits Policy (as
amended from time to time) regarding Severance and Change in Control benefits
(paragraphs 7 and 8, respectively) shall govern the treatment of the Executive in
the event that such terms are more favorable to the Executive than those set forth
in this Agreement.”
2. All other terms of the Employment Agreement shall remain in full force and effect and shall
be unaffected by this Amendment.
IN WITNESS WHEREOF, the Executive and the Corporation have caused this Agreement to be
executed as of the day and year first above written.
EXECUTIVE
|
VALASSIS COMMUNICATIONS, INC. | |
/s/ Xxxxxx X. Xxxxx
|
By: Xxxx X. Xxxxxxx |
AMENDMENT
TO
EMPLOYMENT AGREEMENT
TO
EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT (the “Amendment”) is made February 17, 2011 by and
between Valassis Communications, Inc. (the “Corporation”), Valassis Sales & Marketing Services,
Inc., Xxxxxx Xxxxx (the “Executive”).
WHEREAS, the Corporation and the Executive entered into that certain Employment Agreement
effective as of January 1, 2002 as amended on January 6, 2003, January 28, 2004, January 1, 2005,
February 12, 2007, December 31, 2009 and June 15, 2010 (the “Employment Agreement”); and
NOW THEREFORE, in consideration of the above recitals, the parties hereto agree as set forth
below.
1. The first sentence of Section 3(a) of the Employment Agreement shall be amended to
read as follows:
“The Executive’s Annual Base Salary (“Annual Base Salary”), payable on a biweekly
basis, shall be at the annual rate of not less than $314,580 effective January 1, 2011.”
2. Section 1(b) of the Employment Agreement shall be amended to read in its entirety as
follows:
“The Employment Period shall commence as of January 1, 2002 (the “Effective Date”)
and shall continue until the close of business on June 30, 2013.”
3. Section 2(a) of the Employment Agreement shall be amended to read as
follows:
“The Executive shall serve as Executive Vice President, Sales & Marketing. This
title is subject to change during the employment period.”
4. Section 3 of the Employment Agreement shall be amended to add a new
paragraph at the end of such Section as follows:
| (e) | During the Employment Period, the Corporation shall furnish to the Executive financial planning, tax and estate preparation services. |
4. Section 4 of the Employment Agreement shall be amended to add a new paragraph at the end of
such Section as follows:
| (f) | The Company reserves the right to require Employee to relocate Employee’s principal place of business to the Company’s headquarters in Livonia, Michigan (“Headquarters”) and to relocate Employee’s household to within 100 miles of Headquarters by providing reasonable notice of the requirement. Requiring such relocation shall not comprise a termination or other breach of this Agreement. Employee’s refusal or failure to timely relocate in compliance with such notice of relocation requirement shall comprise a voluntary resignation and Employee shall not be entitled to severance pay or further compensation under this Agreement or otherwise thereafter. |
5. All other terms of the Employment Agreement shall remain in full force and effect.
6. This instrument, together with the Employment Agreement, contains the entire agreement
of the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the Executive and the Corporation have caused this Agreement to be
executed as of the day and year first above written.
| VALASSIS COMMUNICATIONS, INC. |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Title: Secretary | ||||
| VALASSIS SALES & MARKETING SERVICES, INC. |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Title: Vice President | ||||
| /s/ Xxxxxx X. Xxxxx | ||||
