EXHIBIT 10.111
FIRST AMENDMENT TO
AGREEMENT RELATING TO EMPLOYMENT
AND STOCK OWNERSHIP
This First Amendment to Agreement Relating to Employment and Stock
Ownership (this "Amendment Agreement") is dated as of January 13, 1999, is made
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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 Xxxxxx Xxxxxxx (the "Employee"), and amends that certain
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Agreement Relating to Employment and Stock Ownership dated as of March 12, 1998,
by and between the Company and the Employee (the "Employment Agreement").
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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
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Restated Certificate of Incorporation filed with the Secretary of State of the
State of Delaware (the "Charter Amendment"); and
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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:
"Subordinating Agreement" has the meaning specified in Section 5.1(a)
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hereof."
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2.2. Section 5.1(a) shall be amended by deleting it in its entirety, and
substituting therefor the following:
"(a) Repurchase Terms. Notwithstanding any provision to the contrary in
Section 4 above, the Co-Managers and the Company shall be entitled to
complete the repurchase of such Shares by delivering to the Employee the
purchase price as follows in the event of a Termination of Employment by
the Company for Cause or voluntarily by the Employee without Good Reason:
(x) in cash, in an amount equal to the number of shares being purchased
multiplied by the lesser of (i) the Original Price Per Share and (ii) the
Market Price Per Share; and (y) a promissory note in the original principal
amount of the balance, if any, of the repurchase price. Unless otherwise
required by any of the Company's or any of its Subsidiaries' agreements
with its or their lenders, any promissory note delivered pursuant to this
Section 5.1 shall (i) bear interest at the Prime Rate as published from
time to time in the "Wall Street Journal", (ii) provide for the payment of
the principal evidenced thereby in not more than twelve (12) equal
quarterly installments commencing three (3) months after such repurchase,
(iii) be subordinated to the Company's indebtedness to its lenders on terms
satisfactory to such lenders, and (iv) provide for the payment in full of
the principal evidenced thereby upon any Disposition Event or Public
Offering. Notwithstanding any provision to the contrary in Section 4
above, 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
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Agreement") from making any payments of any portion of the repurchase price
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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. The Company agrees that in the event that it is permitted by
the terms of any Subordinating Agreement to repurchase shares of its Common
Stock in cash, it shall promptly exercise its rights to complete any such
repurchase delayed pursuant to this Section 5.1(a), provided that any such
repurchase shall be pro rata with all other such delayed repurchases (but
not including any
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repurchases required to be completed in installments pursuant to the first
sentence of this Section 5.1(a))."
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 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 Commonwealth of Pennsylvania, as applied to contracts under
seal made, and entirely to be performed, within Pennsylvania, 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 Agreement Relating to Employment and Stock
Ownership as an agreement under seal as of the date first above written.
COMPANY: IMPAC GROUP, INC.
By /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
Employee: By /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
