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Exhibit 10.6(c)
EMPLOYMENT AGREEMENT
This Agreement, effective as of May 24, 1999, is entered into by and
between Applied Graphics Technologies, Inc., a Delaware corporation ("AGT"),
and Xxxxx Xxxxxx, (hereinafter referred to as the "Employee"), an individual
presently residing at 00 Xxxxxxxx Xxxxxxxx, Xxxxxx Xxxx, Xxxxxxxxxxxxx, Xxxxxxx
EN40NW. In consideration of the mutual covenants set forth herein, the parties
agree as follows:
1. Employment Term. Subject to the further terms and conditions of this
Agreement, AGT shall employ Employee as Vice Chairman and Chief Operating
Officer for the period beginning on May 24, 1999 (the "Commencement Date") and
ending on May 23, 2001 (the "Term"). This Agreement will be automatically
renewed for an additional twelve month period, unless either party provides
notice no less than 180 days prior to the expiration of the Term that it does
not want to extend this Agreement for said twelve month period.
2. Board of Directors.
As soon as practicable after AGT's 1999 annual shareholders meeting,
which is currently scheduled to be held on June 3, 1999, the Employee will be
appointed to serve as a member of AGT's Board of Directors.
3. Compensation.
(a) AGT will pay Employee a salary at the rate of Four Hundred
Thousand dollars ($400,000) per annum.
(b) With respect to each of the two successive twelve month
periods during the Term, Employee shall be eligible for a cash bonus at the end
of said period in an amount, if any, to be
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determined in the sole discretion of AGT, provided, however, that the bonus for
the first twelve month period shall be no less than One Hundred Thousand
dollars ($100,000).
(c) In addition to the bonus set forth in subparagraph 3(b) above,
the Employee will receive a bonus of $400,000 payable on or around June 4,
1999.
(d) The salary and bonus referred to in subparagraphs (a), (b) and
(c) above represent all of Employee's cash compensation, and accordingly,
Employee shall not be entitled to any overtime, weekend or holiday
compensation. All payments made pursuant to this Agreement shall be less
applicable withholdings and deductions.
(e) Employee shall receive those insurance, retirement and other
benefits generally provided to AGT's other senior executives of similar rank
and tenure from time to time.
(f) Employee shall be reimbursed for all reasonable travel and
entertainment expenses incurred in the furtherance of AGT's business, upon
submission by Employee of reasonable documentation in accordance with AGT's
policies as are in effect from time to time.
(g) Employee shall be reimbursed for the Business class airfare
for not more than two trips per annum between New York and London for each of
Employee, his wife and children.
(h) AGT shall provide Employee with the use of a car.
(i) AGT shall, at its option, either arrange with its regular
attorneys or accountants for competent advice to be provided to Employee
concerning his tax position and Permanent Residency status or reimburse
Employee for the reasonable expenses of obtaining this advice on his own.
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4. Relocation. Employee agrees that no later than 120 days after the
Commencement Date, he will relocate his primary residence to within commuting
distance of AGT's corporate headquarters presently located in New York City.
The Company agrees to reimburse Employee for reasonable expenses relating to
relocating his primary residence to the New York metropolitan area, provided,
however, that such expenses shall not include fees and expenses relating to
purchasing or selling a residence.
5. Duties. During the Term, Employee agrees to fulfill the duties of
Vice Chairman and Chief Operating Officer, as such duties are defined by AGT's
Board of Directors or Chief Executive Officer. Employee shall report to the
Chief Executive Officer of AGT, and shall devote all of his business efforts to
the performance of his duties as Vice Chairman and Chief Operating Officer, and
shall do so to the best of his abilities. It is expected that Employee will
work in the Company's corporate headquarters presently located in New York
City, unless otherwise assigned by the Chief Executive Officer, and will travel
both in the United States and abroad as necessary and appropriate to fulfill
his duties.
6. Vacation. Employee shall be entitled to four (4) weeks vacation
during each year of the Term, to be taken consistent with AGT's policies as are
in effect from time to time.
7. Termination.
(a) This Agreement shall terminate prior to the expiration hereof
in the event of Employee's death, permanent disability, or discharge for cause.
"Cause" shall mean (i) indictment for, conviction of or pleas of guilty or nolo
contendre to any felony or business-related misdemeanor; (ii) theft, fraud or
embezzlement; (iii) excessive absenteeism not related to illness; (iv) the
intentional failure to perform assigned duties; (v) an act of gross neglect or
gross misconduct; (vi) a material breach of any of the provisions of this
Agreement; (vii) the commission of any other action with the intent to harm or
injure AGT, its parents, subsidiaries or affiliates; or (viii) habitual drug or
alcohol abuse. In the event that AGT terminates Employee for Cause, Employee
shall be entitled to compensation earned up to the date of termination, but no
other
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compensation, and AGT reserves the right to seek appropriate relief for
whatever damage may have resulted from that "Cause". Accordingly, without
limiting the foregoing, if the Employee is terminated for Cause he is not
entitled to receive any further payments or benefits pursuant to Paragraphs
3(a), 3(b), 3(e), 3(g) or 3(h) above. "Permanent disability" shall mean a
physical or mental illness, disability or disfigurement which renders Employee
incapable of performing his normal services hereunder for a continuous period
of 8 weeks, or an aggregate of 16 weeks during any 52 week period. In the
event Employee is disabled for less than such 8 or 16 weeks, respectively,
Employee shall nonetheless be entitled to full compensation during such period.
In the event of Employee's permanent disability or death, Employee shall be
entitled to receive his salary and benefits pursuant to Paragraph 3 herein
until the effective date of his termination, and the Company shall have no
further obligation to the Employee pursuant to this Agreement, including but
not limited to Paragraphs 3(a), 3(b), 3(e), 3(g) or 3(h) above.
(b) AGT shall be entitled to terminate this Agreement at any time
during the Term without Cause (as defined above). However, in the event AGT
exercises its rights under this Paragraph 7(b), AGT's sole obligation pursuant
to this Agreement shall be (i) to continue to pay Employee's salary under
Paragraph 3(a) and provide medical benefits under Paragraph 3(e) for the
shorter of (A) the remainder of the Term or (B) six months and (ii) to pay the
bonus, if any, provided for in Paragraph 3(b); provided however that Employee
shall make a good faith effort to find other employment and any amounts due
under this clause shall be offset by any compensation (including without
limitation benefits) earned or received by Employee from other persons or
entities with respect to any services performed by him during the remainder of
said Term.
(c) Amounts payable to Employee pursuant to this Paragraph 7 shall
be paid in accordance with AGT's usual payroll practices.
8. Noncompetition, Nonsolicitation and Confidentiality. As a material
inducement to AGT to employ him, Employee agrees to execute the Noncompetition,
Nonsolicitation and Confidentiality Agreement attached hereto as Exhibit A, the
terms of which are incorporated herein by reference.
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9. Absence of Restrictions. Employee represents and warrants that he is
not a party to any agreement or contract pursuant to which there is any
restriction or limitation upon him entering into this Agreement or performing
the duties called for by this Agreement.
10. Options. Employee shall be granted options to purchase 300,000 shares
of AGT's common stock at the greater of $12 per share or the fair market value
of such shares on the Commencement Date. On each of the first, second, third,
fourth and fifth anniversaries of the Commencement Date, if Employee is still
employed by AGT, 20% of such options shall vest. Such options will be subject
to the other terms and conditions set forth in AGT's customary Stock Option
Agreement and as are established by the Compensation Committee of the Board of
Directors from time to time.
11. Notices. All notices, consents and other communications required or
permitted to be given hereunder shall be in writing and delivered personally or
sent by certified or registered mail, postage prepaid, as follows:
(a) if to Employee, to: Xxxxx Xxxxxx, 00 Xxxxxxxx Xxxxxxxx, Xxxxxx
Xxxx, Xxxxxxxxxxxxx, Xxxxxxx EN40NW, with a copy to the Employee at 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000.
(b) if to AGT, to: Xxxx Xxxxxxx, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
XX 00000-0000, with a copy to Xxxxxx X. Xxxxx at the same address.
Any notice so given shall be deemed received when delivered
personally, or, if mailed, three days after it is deposited, postage prepaid,
by certified mail, in the United States mail. Either party may change the
address to which notices are to be sent by giving written notice of such change
of address to the other party in the manner herein provided for giving notice.
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12. General.
(a) Any controversy or claim arising out of or relating to this
Agreement, or any breach thereof, shall be subject to resolution in the state
or federal courts in New York and shall be governed by and construed and
enforced in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely in New York without giving effect
to principles of conflicts of laws thereof.
(b) The section headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
(c) This Agreement sets forth the entire agreement and
understanding of the parties hereto concerning the subject matter hereof, and
supersedes all prior agreements, arrangements and understandings between the
parties hereto.
(d) AGT may assign its rights and obligations under this Agreement
to any successor thereto or to any corporation or other entity controlled, or
under common control with AGT or any of its affiliates. This Agreement is
personal to Employee, and neither this Agreement nor any of Employee's rights
or obligations hereunder may be assigned, pledged or encumbered by him, without
the prior written approval of AGT.
(e) This Agreement may be amended, modified, superseded or
canceled, and the terms or covenants hereof may be waived, only by a written
instrument executed by both parties hereto, or, in the case of a waiver, by the
party waiving compliance. The failure of either party at any time or times to
require performance of any provision hereof shall in no manner affect the right
at a later time to enforce the same. No waiver by either party of the breach
of any term or covenant contained in this Agreement, whether by conduct or
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otherwise, in any one or more instances, shall be deemed to be, or construed
as, a further or continuing waiver of any such breach or a waiver of the breach
of any other term or covenant in this Agreement.
(f) In the event that any one or more of the provisions of this
Agreement shall be determined to be invalid or unenforceable in any respect,
the validity and enforceability of the remaining provisions of this Agreement
shall not in any way be affected or impaired thereby.
(g) This Agreement may be executed in counterparts, each of which
shall be deemed to be an original but all of which together shall be deemed to
be one and the same instrument.
(h) Except with regard to Employee's obligations under the
Noncompetition, Nonsolicitation and Confidentiality Agreement attached hereto
as Exhibit A, this Agreement shall be of no further force and effect and AGT
shall have no further obligations hereunder after the expiration or termination
of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date shown above.
Applied Graphics Technologies, Inc.
By
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Xxxxx Xxxxxx
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EXHIBIT A
Noncompetition, Nonsolicitation
and Confidentiality Agreement
In consideration for the agreement of Applied Graphics Technologies, Inc.,
("AGT") to employ Xxxxx Xxxxxx ("Employee") as Vice Chairman and COO, (the
"Employment Agreement") Employee hereby agrees as follows:
1. In this Agreement, the term AGT includes Applied Graphics
Technologies, Inc., as well as all of its parents, subsidiaries and affiliates.
2. Employee acknowledges that he will be furnished, or may otherwise
receive or have access to, private information which relates to AGT's past,
present or anticipated customer lists or other compilations for marketing or
development, or which relates to administrative, management, financial,
marketing, sales or manufacturing activities of AGT and that such information
is not easily accessible from public sources. All such information, including
any materials or documents containing such information, shall be considered by
AGT and Employee as proprietary and confidential ("Proprietary Information").
3. Both during and forever after the term of the Employment Agreement,
Employee agrees to preserve and protect the confidentiality of the Proprietary
Information and all physical forms thereof, whether disclosed to him before
this Agreement is signed or afterward. In addition, Employee shall not (i)
disclose or disseminate the Proprietary Information to any third party,
including employees of AGT, without a need to know, (ii) remove Proprietary
Information from AGT's premises without valid business purpose, or (iii) use
Proprietary Information for his own benefit or for the benefit of any third
party.
4. Employee acknowledges and agrees that all Proprietary Information used
or generated during the course of working for AGT is the property of AGT.
Employee agrees to deliver to AGT all documents and other tangibles (including
diskettes and other storage media) containing Proprietary Information,
including all copies of such documents or tangibles, immediately upon notice of
the termination of his employment with AGT.
5. While working for AGT and for one year following termination of his
employment from AGT for any reason, Employee will not attempt, either directly
or indirectly, to solicit, induce, entice or attempt to influence any employee
of AGT to leave AGT's employ or directly or indirectly hire or cause any other
entity to hire any person who has been an AGT employee in the 12 months
preceding the contact.
6. Noncompetition
a. Employee acknowledges that his agreement to forego competition
with AGT was a material inducement to AGT to employ him. Employee also
acknowledges that he will acquire much Proprietary Information concerning AGT's
financial status, current and future marketing and advertising strategies,
pricing, and other confidential information as the result of his employment and
that such information is not easily accessible from other sources. Employee
further acknowledges that the businesses in which AGT engages, including but
not limited to pre-press and digital archiving are very competitive; that
competition by him in those businesses during his employment, or after his
employment terminates, would severely injure AGT; and that his agreements
herein are demonstrably necessary to protect those legitimate interests.
b. During the term of his employment with AGT, Employee (i) will
devote all his professional and business time and effort to and give undivided
loyalty to AGT and (ii) will not engage in any way whatsoever, directly or
indirectly, in any business that is competitive with AGT, nor directly or
indirectly solicit or in any other manner work for or assist any business which
is competitive with AGT.
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c. The "Restricted Period" shall mean the period beginning on the
Commencement Date of the Employment Agreement and ending on the later of the
second anniversary thereof or six months after Employee's employment is
terminated. Notwithstanding the foregoing, the Restricted Period shall
terminate immediately if the Employee's employment is terminated pursuant to
Paragraph 7(b) of the Employment Agreement. During the Restricted Period,
Employee shall not, whether alone or in association with any other person,
directly or indirectly (i) engage in any business in the Specified Areas that
is competitive with any aspect of the business that is being conducted or
planned by AGT at the time Employee's employment with AGT terminates; or (ii)
have any interest or association (including, without limitation, as a
shareholder, partner, director, officer, employee, consultant, sales
representative, supplier, distributor, agent or lender) in or with any person
engaged in a business in the Specified Areas that Employee is prohibited from
engaging in pursuant to clause (i) above; provided however, that the foregoing
shall not prohibit Employee from owning securities of any publicly traded
company that is engaged in any such business as long as Employee does not own
at any time 5% or more of any class of the equity securities of such company.
For purposes of the foregoing, the "Specified Areas" means each state or
country in which AGT makes any sales or performs any services during the 12
month period preceding the date on which Employee's employment with AGT
terminates.
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d. If any provision of this Agreement is determined by a court to
be overly broad thereby making the provision unenforceable, Employee agrees
that such court shall substitute a reasonable, judicially enforceable
limitation in place of the invalid part of the provision and that as so
modified the provision shall be as fully enforceable as if set forth herein in
the modified form. If it is not possible to restate the provision in a valid
or legal manner, then that invalid or illegal portion shall be deemed not a
part of the Agreement and the remaining provisions shall remain in full force
and effect.
7. Employee acknowledges and agrees that:
a. (i) his contractual obligations under paragraphs 3, 4, 5, and
6 hereof have a unique and very substantial value to AGT, (ii) he has
sufficient assets and other skills to provide a reasonable livelihood for
himself while such paragraphs are in force, and (iii) he is subject to
immediate dismissal by AGT for any breach of those provisions and that such
dismissal shall not relieve him from his continuing obligations under this
Agreement or from the imposition by a court of any judicial remedies, such as
money damages or equitable enforcement of those provisions.
b. the terms and provisions of this Agreement are applicable to
all information and materials developed for, received from or any advice
provided to, AGT prior to or after the signing of this Agreement; and
c. the termination of his employment with AGT for any reason,
shall not relieve him from complying with the undertakings and agreements
contained herein, which call for performance prior or subsequent to the
termination date, including, but not limited to those undertakings and
agreements set forth in paragraphs 3, 4, 5 and 6 hereof.
d. in the event of his breach of any of the undertakings or
agreements set forth in paragraphs 3, 4, 5, and 6 of this Agreement, AGT shall
have the right to obtain an injunction or decree of specific performance from
any court of competent jurisdiction to restrain him from violating such
undertakings or agreements or to compel him to perform such undertakings or
agreements. Nothing herein contained shall in any way limit or exclude any and
all other rights granted by law or equity to AGT.
8. No act or failure to act by AGT will waive any right contained herein.
Any waiver by AGT must be in writing and signed by the Chairman of AGT to be
effective.
9. In the event that any provision of this Agreement conflicts with the
law under which this Agreement is to be construed or if any such provision is
held invalid by a court or other authority with jurisdiction over the parties
to this Agreement, such provision shall be deemed to be restated to reflect as
nearly as possible the original intentions of the parties in accordance with
applicable law, and the remainder of this Agreement shall remain in full force
and effect. If it is not possible to restate the provision in a valid or legal
manner, then that invalid or illegal portion shall be deemed not a part of the
Agreement and the remaining provisions shall remain in full force and effect.
10. This Agreement shall be construed according to its terms and not
strictly for or against either party.
11. This Agreement shall be governed by the laws of the State of New York
without regard to its conflicts of laws provisions.
12. All remedies provided herein are cumulative and in addition to all
other remedies which may be available at law or in equity.
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13. This Agreement shall be binding on both parties successors, heirs and
assigns.
Employee: Applied Graphics Technologies, Inc.:
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Xxxxx Xxxxxx
By:
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Title:
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Date Date
