Exhibit 10.105
FIRST AMENDMENT TO
EMPLOYMENT, NON-COMPETITION
AND STOCK REPURCHASE AGREEMENT
This First Amendment to Employment, Non-Competition and Stock Repurchase
Agreement (this "Amendment Agreement") is dated as of January 13, 1999, is made
by and between IMPAC Group, Inc., a Delaware corporation, with its principal
executive offices at 0000 Xxxxx Xxxx Xxxxxx, Xxxxxxx Xxxx, Xxxxxxxx 00000-0000
(the "Company"), and Xxxxxxxxxx Xxxxx (the "Employee"), and amends that certain
Employment, Non-Competition and Stock Repurchase Agreement, dated as of March
12, 1998, by and between the Company and the Employee (the "Employment
Agreement").
WHEREAS, this Amendment Agreement is being entered into in connection with
(a) the letter agreement dated as of January 7, 1999 between the Company, the
Employee and the other current or former officers and employees named therein
(the "January Letter Agreement"), and (b) the Company's Fourth Amended and
Restated Certificate of Incorporation filed with the Secretary of State of the
State of Delaware (the "Charter Amendment"); and
WHEREAS, pursuant to the Charter Amendment, certain additional restrictions
are being placed on the Company's ability to make payments in cash of the
repurchase price for Shares (as defined in the Employment Agreement) being
repurchased by the Company under the terms of the Employment Agreement;
WHEREAS, in the January Letter Agreement the Employee and the Company
agreed to enter in this Amendment Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company and the Employee agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein
have the respective meanings ascribed to them in the Employment Agreement.
2. Amendments. Effective as of January 13, 1999, the Employment Agreement
shall be amended as follows:
2.1. Section 1 (Definitions) shall be amended by adding the following new
definitions in the appropriate alphabetical order:
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"Subordinating Agreement" has the meaning specified in Section 7.1(a)(y)
hereof."
2.2. Section 7.1(a)(y) shall be amended by deleting it in its entirety,
and substituting therefor the following:
"if the Company is prohibited by the terms of the Company's Charter, as in
effect from time to time, or any of the Company's or any of its
Subsidiaries' agreements with its or their lenders (including, without
limitation, the Company's senior credit agreement with Bank of America
National Trust & Savings Association, as Agent, and the Indenture with
respect to the Company's Senior Subordinated Notes) (with the Charter and
any such agreement each being referred to herein as a "Subordinating
Agreement") from making any payments of any portion of the repurchase price
for any of the Shares in cash, the Company shall be entitled to complete
the repurchase of such Shares as to which payment of the repurchase price
in cash is not so prohibited by delivering to the Employee a check for the
repurchase price thereof. The Company further shall be entitled to complete
the repurchase of the other Shares to be repurchased by it, or any portion
thereof, on the first date on which such payment is not so prohibited by
any applicable Subordinating Agreement, provided that if the closing date
of such repurchase is more than six (6) months after the Employee's
Termination of Employment, then, if the repurchase price for the Shares is
based on the Market Value Per Share, the repurchase price shall be
calculated based on the Market Value Per Share as of the date of such
closing instead of as of the date of the Employee's Termination of
Employment."
3. Miscellaneous.
(a) No Other Amendment. Except as otherwise expressly provided by this
Amendment Agreement, all of the terms, conditions and provisions of the
Employment Agreement shall continue in full force and effect. This Amendment
Agreement and the Employment Agreement shall be read and construed as one
instrument.
(b) Counterparts. This Amendment Agreement may be executed by the parties
in separate counterparts, each of which when so executed and delivered shall be
an original, but all of which together shall constitute one and the same
agreement. In pleading or proving this Amendment
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Agreement, it shall not be necessary to produce or account for more than one
such counterpart.
(c) Captions. The captions of sections or subsections of this Amendment
Agreement are for reference only and shall not affect the interpretation or
construction of this Amendment Agreement.
(d) Construction. The language used in this Amendment Agreement is the
language chosen by the parties to express their mutual intent, and no rule of
strict construction shall be applied against either party.
(e) Governing Law. This Amendment Agreement shall to the maximum lawful
extent be governed by and interpreted and construed in accordance with the
internal laws of the State of Illinois, as applied to contracts under seal made,
and entirely to be performed, within Illinois, and without reference to
principles of conflicts or choice of law.
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IN WITNESS WHEREOF, each of the Company and the Employee has executed and
delivered this First Amendment to Employment, Non-Competition and Stock
Repurchase Agreement as an agreement under seal as of the date first above
written.
COMPANY: IMPAC GROUP, INC.
By /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: President
EMPLOYEE: /s/ Xxxxxxxxxx Xxxxx
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Name: Xxxxxxxxxx Xxxxx
