Exhibit 10.6
AMENDMENT NO. 1
TO
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AMENDMENT XX. 0 ("Xxxxxxxxx Xx. 0"), dated as of August 16, 2003, is
made a part of that certain EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement"),
dated as of August 16, 2002, by and between Phoenix Color Corp., a Delaware
corporation (the "Company"), and Xxxx Xxxxxxx (the "Executive"). It is intended
by the parties that the terms of this Amendment No. 1, to the extent that they
are more specific than the terms contained in the Agreement, or to the extent
that they should conflict with the terms contained in the Agreement, shall
supersede the terms of the Agreement. Section numbers and exhibits referenced in
this Amendment No. 1 correspond, where applicable, to section numbers and
exhibits used in the Agreement. All defined terms not otherwise defined herein
shall have the meanings set forth in the Agreement.
W I T N E S S E T H:
In consideration of the mutual covenants and representations contained
herein and the mutual benefits derived herefrom, of $10 cash consideration, and
for other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Sub-sections 13.B(i)-(iv) of the Agreement are hereby restated in their
entirety as follows:
(i) "Change of Control" means (1) the acquisition in one or more
transactions by any Person (other than from the Company) of the beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Securities
Exchange Act of 1934, as amended) of 50% or more of (A) the then outstanding
capital stock of the Company, or (B) the combined voting power of the then
outstanding capital stock of the Company entitled to vote generally in the
election of directors (the "Combined Voting Stock"); (2) the closing of a sale
or other conveyance of all or substantially all of the assets of the Company; or
(3) the effective time of any merger, share exchange, consolidation, or other
business combination involving the Company if immediately after such transaction
persons who hold a majority of the outstanding voting securities entitled to
vote generally in the election of directors of the surviving entity (or the
entity owning 100% of such surviving entity) are not persons who, immediately
prior to such transaction, held the Combined Voting Stock. Notwithstanding the
foregoing and solely for purposes of the last sentence of Section 5, in no event
shall a transaction constitute a Change of Control if the Disposition Proceeds
for such transaction are less than the Target Amount.
(ii) "Disposition Proceeds" means: (1) in the case of a transaction
described in clause (1) or (3) of Section 13.B(i), the value of cash and
non-cash consideration paid or payable (after the payment of all liabilities of
the Company, including without limitation any Retirement Benefits under any
Supplemental Executive Retirement Plan) in connection with such transaction for
the outstanding capital stock of the Company (including stock options), which
consideration shall be determined as of the closing of the transaction, assuming
the payment of any contingent portion of the consideration (including any
earn-out payment) will be made; or (2) in the case of a transaction described in
clause (2) of Section 13.B(i), the value of cash and non-cash consideration
(including without limitation payment or assumption of debt) available (after
the payment of all liabilities of the Company, including without limitation any
Retirement Benefits under any Supplemental Executive Retirement Plan) for
distribution to the holders of outstanding capital stock of the Company
(including stock options) in connection with such transaction, determined as of
the closing of the transaction assuming the payment of any contingent portion of
the consideration (including any earn-out payment) will be made, and in
accordance with generally accepted accounting principles.
(iii) "Person" means any individual, entity or group within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended, other than: Xxxxx XxXxxxx, Xxxxxx Xxxxxxxxx, employee benefit plans
sponsored or maintained by the Company, and entities controlled by the Company.
(iv) "Target Amount" means $40,000,000.
2. Exhibit A to the Agreement shall be replaced by Exhibit A hereto.
IN WITNESS WHEREOF, the parties have executed and delivered this Amendment
No. 1 on the date first above written.
PHOENIX COLOR CORP.
By: /s/ Xxxxx XxXxxxx
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Xxxxx XxXxxxx
EXECUTIVE
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
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EXHIBIT A
Phoenix Color Corp. Supplemental Executive Retirement Plan
(see attached)
See Exhibit A to Exhibit 10.4, which is incorporated herein by this reference.
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