EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is dated as of this 1st day
of March, 1997, is by and between Unidigital Inc., a Delaware corporation with
an office for purposes of this Agreement at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (hereinafter the "Company" or "Employer") and Xxxxxxx Xxxxxx with an
address at The Bramleys', Xxx Xxxx Xxxxx, Xxxxx Xxxxxx, Xxxx, Xxxx XX000XX
(hereafter the "Employee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS:
(a) Company wishes to engage the services of Employee to render
services for and on its behalf in accordance with the following terms,
conditions and provisions; and
(b) Employee wishes to perform such services for and on behalf of the
Company, in accordance with the following terms conditions and provisions.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained the parties hereto intending to be legally bound hereby agree
as follows:
1. EMPLOYMENT
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Company hereby employs Employee and Employee accepts such employment
and shall perform his duties and the responsibilities provided for herein in
accordance with the terms and conditions of this Agreement principally in
London, England.
2. EMPLOYMENT STATUS
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Employee shall at all times be Company's employee subject to the terms
and conditions of this Agreement.
3. TERM
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The term of this Agreement shall commence on March 1, 1997, and shall
terminate on March 1, 1999, for a total initial term of two (2) years (the
"Term"), and may be extended upon mutually agreed to terms and conditions.
4. POSITION
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During Employee's employment hereunder, Employee shall serve as Vice
President and a Director of UK Operations. In such positions, Employee shall
have the customary powers, responsibilities and authorities of officers in such
positions of corporations of the size, type and nature of the Company. Employee
shall perform such duties and exercise such powers commensurate with his
positions and responsibilities as shall be reasonably determined from time to
time by the Xxxxxxx Xxx, currently the Chairman of the Board, President and
Chief Executive Officer of the Company, and shall report directly to Xxxxxxx Xxx
and only to Xxxxxxx Xxx. Employee shall be provided with an office, staff and
other working facilities consistent with his positions and as required for the
performance of his duties
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and as reasonably determined by Xxxxxxx Xxx. Employee will continue to serve on
the Company's Board of Directors during the Term and so long as he is employed
by the Company hereunder. At such time as Employee's employment hereunder
ceases, for any reason whatsoever, Employee shall immediately submit his
resignation as a member of the Company's Board of Directors.
5. COMPENSATION
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(a) For the performance of all of Employee's services to be rendered
pursuant to the terms of this Agreement, Company will pay and Employee will
accept the following compensation:
Base Salary. During the Term, Company shall pay the Employee an initial
base annual salary of Pound Sterling 120,000 (the "Base Salary") payable in
regular installments in accordance with the Company's usual payment practices
(which currently is in equal monthly installments). Employee shall be entitled
to such further increases, if any, in his Base Salary as may be determined from
time to time in the sole discretion of Xxxxxxx X. Xxx; but, in any event
(b) Company shall deduct and withhold from Employee's compensation all
required taxes, including but not limited to withholding and otherwise, and any
other applicable amounts required by law or any taxing authority.
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6. BUSINESS EXPENSES AND PERQUISITES
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(a) Employee shall be entitled to receive reimbursement from the
Company for reasonable travel (business class), entertainment and other business
expenses incurred by Employee in the performance of his duties hereunder and
such amount shall be reimbursed by the Company on a monthly basis and in
accordance with Company policies then in effect.
(b) Employee shall be entitled to a personal travel allowance of Pound
Sterling 1200 per month during the Term and so long as Employee's employment
hereunder is not terminated.
7. TERMINATION
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(a) For Cause by the Company
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(i) Employee's employment hereunder may be terminated by the
Company for cause. For purposes of this Agreement, "cause" shall mean (u)
Employee's willful dishonesty that is serious enough to have a materially
detrimental effect upon the Company's best interests, (v) Employee's gross
negligence provided such acts relate to the Company, (w) Employee's breach of a
material term or provision of this Agreement which is not cured or ceased within
thirty (30) days after forwarding to Employee written notice setting forth the
breach, (x) Employee's misconduct of a
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nature that is serious enough to have a materially detrimental effect upon the
Company's best interest, (y) Employee's unjustified failure to perform his
duties hereunder or to follow reasonable directions of Xxxxxxx Xxx, or the
Company's Board of Directors, which is not cured or ceased within thirty (30)
days after forwarding to Employee written notice setting forth the breach, and
(z) Employee's conviction of, or plea of nolo contendere to , any crime
constituting a felony under the laws of the United States or the United Kingdom,
or any crime constituting or involving moral turpitude.
(ii) If Employee is terminated for cause, he shall be entitled
to receive Employee's Base Salary from Company through the date of termination
and Employee shall be entitled to no other payments of Employee's Base Salary
under this Agreement. All other benefits, if any, due Employee following
Employee's termination of employment pursuant to this Subsection 8 (a) shall be
determined in accordance with the plans, policies and practices of the Company
for executives.
(b) Disability or Death.
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(i) Employee's employment hereunder shall terminate upon his
death or if Employee becomes physically or mentally incapacitated and is
therefore unable (or will as a result thereof, be unable) for a period of four
(4) consecutive months or for an aggregate of eight (8) months in any
twenty-four (24) consecutive month period to perform his duties (such incapacity
is hereinafter referred to as "Disability"). Any
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question as to the existence of the Disability of Employee as to which Employee
and the Company cannot agree shall be determined in writing by a qualified
independent physician mutually acceptable to Employee and the Company. If
Employee and the Company cannot agree as to a qualified independent physician,
each shall appoint such a physician and those two physicians shall select a
third who shall make such determination in writing to the Company and Employee
shall be final and conclusive for all purposes of this Agreement.
(ii) Upon termination of Employee's employment hereunder
during the Term as a result of death, Employee's estate or named
beneficiary(ies) shall receive from the Company (x) Employee's Base Salary at
the rate in effect at the time of Employee's death through the end of the month
in which his death occurs and (y) the proceeds of any life insurance policy if
any, maintained for his benefit by the Company.
(iii) All other benefits, if any, due Employee following
Employee's termination of employment pursuant to this Subsection 8 (b) shall be
determined in accordance with the plans, policies and practices of the Company.
(c) Without Cause by the Company.
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(i) If Employee's employment is terminated by the Company
without cause (other than by reason of Disability or death), then Employee shall
be entitled to payment from the Company, in an amount equal to six (6) months of
Employee's Base Salary to be paid to Employee during immediately succeeding next
monthly intervals.
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All other benefits, if any, due Employee following Employee's termination of
employment pursuant to this Subsection 8 (c) (i) shall be paid for the first six
(6) months immediately following Employee's termination hereunder.
(d) Termination by Employee. If Employee wishes to terminate his
employment with the Company for any reason, Employee must afford Company with at
least six full month's written notice of termination. Such termination by
Employee shall not be deemed a breach of this Agreement.
(e) Change of Control. For purpose of this Agreement "Change of
Control" shall mean (i) any transaction or series of transactions (including,
without limitation, a tender offer, merger or consolidation) the result of which
is that any "person" or "Group" (within the meaning of Sections 13(d) and 14(d)
(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
becomes the "beneficial" owners (as defined in Rule 13 (d) (3) under the
Securities Exchange Act of 1934) of more than fifty percent (50%) of the total
aggregate voting power of all classes of the voting stock of the Company and/or
warrants or options to acquire such voting stock, calculated on a fully diluted
basis, or (ii) a sale of assets constituting all or substantially all of the
assets of the Company (determined on a consolidated basis). In the event of such
a Change of Control the new entity shall be obligated to perform the Company's
obligation under the terms of this Agreement.
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8. NON-DISCLOSURE OF INFORMATION
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Employee acknowledges that by virtue of his position he will be privy
to the Company's trade secrets including but not limited to Company's customer
list and private processes, as they may exist or as Company may determine from
time to time, and that such secrets are valuable, special, and unique assets of
Company's business and constitute confidential information and trade secrets of
Employer (hereafter collectively "Confidential Information"). Employee shall
not, while employed hereunder and for a period of twelve (12) months thereafter,
intentionally disclose all or any part of the Confidential Information to any
person, firm, corporation, association or any other entity for any reason or
purpose whatsoever, nor shall Employee and any other person by, through or with
Employee, while employed hereunder and for a period of twelve (12) months
thereafter, intentionally make use of any of the Confidential Information for
any purpose or for the benefit of any other person or entity, other than
Company, under any circumstances. Company and Employee agree that a violation of
the foregoing covenants will cause irreparable injury to the Company, and that
in the event of a breach or threatened breach by Employee of the provisions of
this Section, Company shall be entitled to an injunction restraining Employee
from:
(a) Disclosing, in whole or in part, any Confidential Information to
any person, firm, corporation, association or other entity to whom any such
information,
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in whole or in part, has been disclosed or is threatened to be disclosed in
violation of this Agreement.
(b) Continuing such injurious actions.
Nothing herein stated shall be constructed as prohibiting the
Company from pursuing any other rights and remedies, at law or in equity,
available to the Company for such breach or threatened breach, including the
recovery of damages from the Employee.
9. RESTRICTIVE COVENANT.
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(a) For a period of six (6) months after the termination of this
Agreement by Employer without cause and for a period of one (1) year after the
termination of this Agreement by Employer or Employee for any other reason, or
expiration of this Agreement, Employee covenants and agrees that, within a
radius of twenty five (25) miles from each of the then present places(s) of
Company's business or any other area in which Company is engaged in business, he
shall not own, manage, operate, control, be employed by, participate in, or be
connected in any manner with the ownership, management, operation, or control,
whether directly or indirectly, as an individual on his own account, or as a
partner, member, joint venture, officer, director or shareholder of a
corporation or other entity, of any business similar to or competitive with the
type of business conducted by Company at the time of the termination or
expiration of this Agreement.
(b) For a period of twelve (12) months or after the termination of this
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Agreement by Employer or Employee for any other reason, or expiration of this
Agreement, Employee further covenants and agrees he shall not interfere with,
solicit or disrupt or attempt to interfere with, solicit or disrupt the
relationship, contractual or otherwise, between Company and any customer,
supplier, lessee or employee of Company, its parent or subsidiaries.
(c) Employee acknowledges that the restrictions contained in this
Paragraph 10 are reasonable. In that regard, it is the intention of the parties
to this Agreement that the provisions of this Paragraph 8 shall be enforced to
the fullest extent permissible under the law and public policy applied in each
jurisdiction in which enforcement is sought. Accordingly, if any portion of this
Paragraph 10 shall be adjudicated or deemed to be invalid or unenforceable, the
remaining portions shall remain in full force and effect, and such invalid or
unenforceable portion shall be limited to the particular jurisdiction in which
such adjudication is made.
10. BREACH OR THREATENED BREACH OF COVENANTS.
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In the event of Employee's actual or threatened breach of his
obligations under either Paragraph 9 or 10, or both, of this Agreement, in
addition to any other remedies Company's may have, Company shall be entitled to
obtain a temporary restraining order and a preliminary and/or permanent
injunction restraining the other from violating these provisions. Nothing in
this Agreement shall be constructed to prohibit Comply from pursuing and
obtaining any available remedies which Company may have for such breach or
threatened breach, whether at law or in equity, including the recovery of
damages from the other.
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11. REPRESENTATIONS AND WARRANTIES BY EMPLOYEE.
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Employee hereby warrants and represents that he is not subject to or a
party to any restrictive covenants or other agreements that in any way preclude,
restrict, restrain or limit him (a) from being an Employee of Company, (b) from
engaging in the business of Company in any capacity, directly or indirectly, and
(c) from competing with any other persons, companies, businesses or entities
engaged in the business of Company.
12. NOTICES.
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Any notice required, permitted or desired to be given under this
Agreement shall be sufficient if it is in writing and (a) personally delivered
to Employee or an authorized member of Company, (b) sent by overnight delivery,
or (c) sent by registered or certified mail, return receipt requested, to
Employer's or Employee's address as provided in this Agreement or to a different
address designated in writing by either party. In all instances of notices to be
given to Company, a copy by like means shall be delivered to Company's counsel
care of Xxxxxxxx Ingersoll, 000 Xxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx
00000-0000, Attn: Xxxx Xxxxxx, Esq.
13. ASSIGNMENT.
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Employee acknowledges that his services are unique and personal.
Accordingly, Employee may not assign his rights or delegate his duties or
obligations under this Agreement. Company's rights and obligations under this
Agreement shall
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inure to the benefit of and shall be binding upon the Company's successors and
assigns. Company has the absolute right to assign it's rights and benefits under
the terms of this Agreement.
14. WAIVER OF BREACH.
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Any waiver of a breach of a provision of this Agreement, or any delay
or failure to exercise a right under a provision of this Agreement, by either
party, shall not operate or be construed as a waiver of that or any other
subsequent breach or right.
15. ENTIRE AGREEMENT.
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This Agreement contains the entire agreement of the parties. It may not
be changed orally but only by an agreement in writing which is signed by the
parties. The parties hereto agree that any existing employment agreement between
them shall terminate as of the date of this Agreement.
16. GOVERNING LAW.
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This Agreement shall be construed in accordance with and governed by
the internal laws of the State of New York.
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17. SEVERABILITY
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The invalidity or non-enforceability of any provision of this Agreement
or application thereof shall not affect the remaining valid and enforceable
provisions of this Agreement or application thereof.
18. CAPTIONS
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Captions in this Agreement are inserted only as a matter of convenience
and reference and shall not be used to interpret or construe any provisions of
this Agreement.
19. GRAMMATICAL USAGE
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In construing or interpreting this Agreement, masculine usage shall be
substituted for those feminine in form and vise versa, and plural usage shall be
substituted or singular and vice versa, in any place in which the context so
requires.
20. CAPACITY
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Employee has read and is familiar with all of the terms and conditions
of this Agreement and has the capacity to understand such terms and conditions
hereof. By executing this Agreement, Employee agrees to be bound by this
Agreement and the terms and conditions hereof.
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21. COUNTERPARTS
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This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be original, but all of which together shall constitute
one and the same Agreement.
22. ARBITRATION
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Notwithstanding anything herein to the contrary, but except for any
injunction provisions provided for in this Agreement, any claim, dispute or
controversy arising from, related to, involving or pertaining to the terms or
provisions of or relationship created by this Agreement shall be submitted to
binding arbitration under the rules of the American Arbitration Association then
obtaining in the County, City and State on New York and any award or
determination by the American Arbitration Association shall be final and binding
upon the parties. Any such award or determination shall be capable of being
submitted to the United States District Court Southern District of New York or
the New York State Supreme Court for the County of New York as a final judgment
-- and the parties hereto consent to the jurisdiction of said courts as the
Courts with the sole and exclusive jurisdiction. Each party shall bear his or
its own costs, including but not limited to attorneys fees, of such arbitration
proceedings.
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IN WITNESS WHEREOF, each of the parities hereto has executed this
Agreement as of the date first hereinabove written.
UNIDIGITAL INC.
/s/ Xxxxxxx X. Xxx
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By: Xxxxxxx X. Xxx
/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
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