Exhibit 10.11
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of July 1, 2000, by
and between ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇") and ▇▇▇▇▇▇ COMMUNICATIONS CORPORATION
(the "Company"), a Virginia corporation.
WHEREAS, the Company desires to appoint ▇▇▇▇▇▇ as the President and Chief
Executive Officer of the Company, and ▇▇▇▇▇▇ desires to accept such appointment
with the Company; and
WHEREAS, ▇▇▇▇▇▇ and the Company have decided to enter into this Agreement
to provide for the terms of ▇▇▇▇▇▇' employment in such position;
NOW, THEREFORE, in consideration of the foregoing, the mutual agreements
and understandings set forth herein and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, ▇▇▇▇▇▇ and the
Company hereby agree as follows:
1. Position and Duties. (a) The Company hereby appoints ▇▇▇▇▇▇ as the
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President and Chief Executive Officer of the Company during the term of this
Agreement.
(b) During the term of this Agreement, ▇▇▇▇▇▇ agrees to devote
substantially all of his business time, attention and energy to the business of
the Company and any other activities which may be reasonably assigned to him by
the Board of Directors of the Company (the "Board") and which are appropriate
for the President and Chief Executive Officer of the Company, and ▇▇▇▇▇▇ agrees
to use his best efforts to promote the interests of the Company. Notwithstanding
the foregoing, ▇▇▇▇▇▇ may serve as an outside director of one or more other
companies, participate in industry and other trade groups, accept public
speaking engagements and otherwise undertake charitable, civic, community and
personal activities; provided that such activities do not, individually or in
the aggregate, unreasonably interfere with ▇▇▇▇▇▇' performance of his duties for
the Company and do not harm the Company's interests or reputation in any
material respect.
(c) ▇▇▇▇▇▇ agrees to abide by the Cadmus Code of Conduct, a copy of which
has previously been provided to ▇▇▇▇▇▇, and all other material Company policies,
as such Code of Conduct and other material policies may be amended from time to
time.
2. Term of Agreement. Employment under this Agreement will begin on the
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date hereof and will terminate on June 30, 2003, unless ▇▇▇▇▇▇'▇ employment is
earlier terminated pursuant to Section 4 below or unless the term of this
Agreement is extended pursuant to this Section 2. Subject to Section 4(a) below,
the term of this Agreement will be automatically extended for successive one (1)
year periods, beginning on July 1, 2001, and continuing on each July 1
thereafter (each, an "Extension Date") so as to terminate three (3) years after
the applicable Extension Date, unless the Company gives ▇▇▇▇▇▇ written notice,
at least ninety (90) days prior to the applicable Extension Date, that the term
hereof will not be so extended. June
30, 2003, or the anniversary thereof to which the term of this Agreement has
been extended under this Section 2 is referred to hereinafter as the "Scheduled
Termination Date."
3. Compensation and Benefits. (a) The Company agrees that ▇▇▇▇▇▇'
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annual salary will be $375,000 for the Company's fiscal year beginning July 1,
2000, and ending June 30, 2001 ("Fiscal Year 2001"), payable in accordance with
the Company's regular payroll practices. ▇▇▇▇▇▇' annual salary will be reviewed
by the Board annually thereafter, but in no event will such annual salary be
less than $375,000 per year in any subsequent year during ▇▇▇▇▇▇' employment
hereunder. ▇▇▇▇▇▇' annual salary will be subject to withholding and deductions
to the extent required by applicable law or taxing authorities or as ▇▇▇▇▇▇ may
authorize.
(b) In addition, the Company agrees that ▇▇▇▇▇▇ will be eligible for a
bonus under the Company's short-term Executive Incentive Plan (together with any
successor plan, the "Executive Incentive Plan") for Fiscal Year 2001 in an
amount that the Board, in its sole discretion, determines to be earned and
payable under the terms of the Executive Incentive Plan, with ▇▇▇▇▇▇' "target"
bonus under the Executive Incentive Plan for Fiscal Year 2001 being set at sixty
percent (60%) of his annual salary for Fiscal Year 2001, or $225,000, and with
such bonus to be paid, if awarded, in accordance with the Company's customary
practices and procedures. ▇▇▇▇▇▇ will also be eligible to be considered for
bonuses under the Executive Incentive Plan (and any other plans providing
bonuses to senior executive officers of the Company) for subsequent fiscal years
of the Company. All such bonuses will be subject to withholding and deductions
to the extent required by applicable law or taxing authorities or as ▇▇▇▇▇▇ may
authorize.
(c) The Company agrees that, on August 8, 2000, the Company will award
▇▇▇▇▇▇ options to purchase 15,000 shares of the Company's common stock under the
Company's 1990 Long Term Incentive Stock Plan (together with any successor plan,
the "Stock Option Plan") at a price per share equal to the fair market value per
share of the Company's common stock as of the date of award. ▇▇▇▇▇▇ will also
be eligible to be considered for subsequent stock option awards under and as
provided in the Stock Option Plan. All such options will be subject to the
Company's customary terms and conditions, including, without limitation, terms
and conditions regarding exercisability, vesting and performance standards.
(d) Except as otherwise provided in Section 4(g) below, ▇▇▇▇▇▇ will be
eligible during ▇▇▇▇▇▇' employment hereunder to participate in (i) any and all
employee benefit plans, medical insurance plans, retirement plans, stock plans
and other benefit plans, and (ii) any and all other employee incentive and
benefit programs (including, without limitation, programs providing allowances,
reimbursement of expenses and other perquisites), as such plans and programs are
in effect from time to time for senior executives of the Company. Such
participation will be subject to the terms of the applicable plan and program
documents and the Company's generally applied policies. Without limiting the
generality of the foregoing, the Company specifically agrees that, during
▇▇▇▇▇▇' employment hereunder, ▇▇▇▇▇▇ will remain designated as an "Eligible
Employee" under and a participant in the Company's Supplemental Executive
Retirement Plan (the "SERP") and will remain eligible to participate in the
Company's Non-Qualified Thrift Plan for so long as those plans provide for
active participation by any employee of the Company.
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4. Termination of Employment and Severance Payments. (a) ▇▇▇▇▇▇
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acknowledges that he is employed at the will of the Company and that his
employment may be terminated by the Company at any time with or without cause,
for any reason or for no reason. This Agreement is not intended and will not be
construed so as to create any right of ▇▇▇▇▇▇ to continued employment. The
Company may terminate ▇▇▇▇▇▇' employment at any time without Cause (as defined
below) by providing thirty (30) days' prior written notice to ▇▇▇▇▇▇
("Termination Without Cause"). The Company may terminate ▇▇▇▇▇▇' employment for
Cause effective as of the date of notice by providing written notice to ▇▇▇▇▇▇
("Termination With Cause"). The Company may terminate ▇▇▇▇▇▇' employment if the
Board reasonably determines that ▇▇▇▇▇▇ is unable to perform his duties by
reason of Total Disability (as defined below) by providing ten (10) days' prior
written notice to ▇▇▇▇▇▇. ▇▇▇▇▇▇ may resign as an employee at any time for
Employee Cause (as defined below) by providing thirty (30) days' prior written
notice to the Company ("Termination for Employee Cause"). ▇▇▇▇▇▇ may also
resign as an employee at any time, for any other reason or for no reason, by
providing thirty (30) days' prior written notice to the Company ("Resignation").
(b) (1) In the event of a Termination Without Cause or a Termination
for Employee Cause, the Company agrees to pay ▇▇▇▇▇▇ each of the following: (i)
the Standard Termination Payments (as defined below); plus (ii) an amount per
year equal to the Salary/Bonus Continuation Payment (as defined below), subject
to applicable withholding and deductions, for the period (the "Severance
Period") beginning on the effective date of the Termination Without Cause or the
Termination for Employee Cause, as applicable, and ending on the second
anniversary of the effective date of the Termination Without Cause or the
Termination for Employee Cause, as applicable; provided that, in the case of a
Termination for Employee Cause resulting from the Company's giving ▇▇▇▇▇▇
written notice under Section 2 above that the term hereof will not be extended,
the Severance Period will end thirty (30) days after the second anniversary of
the date on which ▇▇▇▇▇▇ receives such written notice from the Company; plus
(iii) an amount equal to the Supplemental Pension Payment (as defined below);
plus (iv) if ▇▇▇▇▇▇ is not then fully vested in his accrued benefit under the
SERP and if there is a Change in Control (as defined below) during the Severance
Period, an amount equal to the SERP Equivalent Payment (as defined below); plus
(v) an amount equal to the maximum matching contribution ▇▇▇▇▇▇ would have
received under the Company's Thrift Savings Plan and the Company's Non-Qualified
Thrift Plan but for the termination of his employment based on the Salary/Bonus
Continuation Payment and determined on the basis of the terms of such plans as
in effect (A) on the date of ▇▇▇▇▇▇' termination of employment if the payment is
made in a lump sum or (B) for each applicable payment period if the payment is
made in normal increments on the Company's regularly scheduled payroll dates and
bonus payment dates during the Severance Period; plus (vi) an amount equal to
the cash allowances, reimbursement of expenses and other cash perquisites ▇▇▇▇▇▇
would have received during the Severance Period if he had remained President and
Chief Executive Officer of the Company during the Severance Period. The Company
will pay the amounts described in clauses (i), (iii) and (vi) above within
thirty (30) days after the effective date of the Termination Without Cause or
the Termination for Employee Cause, as applicable. The Company will, in its
discretion, pay the amounts described in clauses (ii) and (v) above in a lump
sum or in normal increments on the Company's regularly scheduled payroll dates
and bonus payment dates during the Severance Period. The Company will pay the
amount described in clause (iv) above within thirty (30) days after the
applicable Change in Control occurs.
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(2) In addition, in the event of a Termination Without Cause or a
Termination for Employee Cause, the Company agrees that all of ▇▇▇▇▇▇' stock
options granted by the Company to him, whether now outstanding or hereafter
granted, will be fully vested and exercisable for eighteen (18) months after the
effective date of the Termination Without Cause or the Termination for Employee
Cause, as applicable, but in no event beyond the maximum term specified in the
applicable option agreement, and this Section will be deemed to be an amendment
to each such option agreement providing for such vesting and exercise.
(3) Finally, in the event of a Termination Without Cause or a
Termination for Employee Cause, the Company agrees that ▇▇▇▇▇▇ and his eligible
family members will be entitled to participate during the Severance Period in
Cadmus' welfare benefit plans on the same basis made available to eligible
active employees of the Company, subject to the Company's right to modify such
welfare benefit plans from time to time, subject in the case of any welfare
coverage other than group health coverage to any termination of coverage imposed
by the terms of the applicable insurance policies (which the Company agrees to
make a good faith effort to have the insurer waive) and subject to the Company's
right to substitute at any time any individual or other group insurance
coverage(s) providing at least comparable coverage. Such group health coverage
shall be considered part of ▇▇▇▇▇▇' COBRA coverage. ▇▇▇▇▇▇ will be responsible
for the normal contribution to the cost of maintaining his and his eligible
family members' participation in those welfare benefit plans (determined as
though he were an active eligible employee). Subject to any limitation under
applicable tax law, ▇▇▇▇▇▇ may participate in Cadmus' welfare benefit plans by
making pre-tax salary reduction contributions from the amount due to him under
this Section 4(b).
(4) Except as otherwise specifically provided in this Agreement,
during the Severance Period, ▇▇▇▇▇▇ will not be entitled to accrue additional
benefits under or to otherwise continue to be an active participant in the
Company's Pension Plan, the Company's Thrift Savings Plan, the Company's Non-
Qualified Thrift Plan, the Company's Deferred Compensation Plan, the SERP or any
other employee pension benefit plan of the Company.
(c) In the event of a Termination With Cause or a Resignation, ▇▇▇▇▇▇
agrees that he will not be entitled to any compensation, bonus or benefits under
this Agreement for the period after the written notice of Termination With Cause
or the Resignation, as applicable, is effective, other than his earned and
unpaid base salary through the effective date of the Termination With Cause or
the Resignation, as applicable, and any other payments or benefits required to
be paid or provided to ▇▇▇▇▇▇ by applicable law.
(d) In the event that this Agreement terminates by its terms on the
Scheduled Termination Date, the Company agrees to pay ▇▇▇▇▇▇ the Standard
Termination Payments. The Company will pay such Standard Termination Payments
within thirty (30) days after the Scheduled Termination Date. After the
termination of this Agreement on the Scheduled Termination Date, neither ▇▇▇▇▇▇
nor any of his family members will be entitled to accrue additional benefits
under or to otherwise continue to be an active participant in any of Cadmus'
welfare benefit plans or employee pension benefit plans, except as required by
COBRA or any other applicable law.
(e) In the event that the Company elects to terminate the employment of
▇▇▇▇▇▇ because of his Total Disability, the Company agrees to pay to ▇▇▇▇▇▇ (i)
the Standard
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Termination Payments, and (ii) an amount equal to the Supplemental Disability
Payment (as defined below), and ▇▇▇▇▇▇ will be entitled to such disability
payments as may be provided under the terms of the Company's group long-term
disability policy for employees generally (the "Disability Policy") and such
other employee benefits as may be provided under the terms of the Company's
other employee benefit plans. The Company will pay the amounts described in
clause (i) above within thirty (30) days after the effective date of the
termination because of ▇▇▇▇▇▇' Total Disability, and the Company will, in its
discretion, pay the amounts described in clause (ii) above in a lump sum or in
increments on the dates that correspond to the dates on which payments under the
Disability Policy are payable.
(f) In the event ▇▇▇▇▇▇' employment terminates on account of his death
(i) the Company agrees to pay to ▇▇▇▇▇▇' surviving spouse, or, if none, his
estate, the Standard Termination Payments, (ii) the Company agrees to pay to
▇▇▇▇▇▇' beneficiaries (as properly designated in writing by ▇▇▇▇▇▇) death
benefits, if any, under the Company's employee benefit plans, and (iii) the
Company agrees to pay to ▇▇▇▇▇▇' beneficiaries (as properly designated by ▇▇▇▇▇▇
under the applicable plans), or, if none, his estate, any benefit under any
benefit plan that would otherwise have been due to ▇▇▇▇▇▇ at year end, prorated
up to the time of ▇▇▇▇▇▇' death as provided in the applicable plans.
(g) Except as otherwise provided in Section 9 below, the amounts to be
paid and the other benefits to be provided to ▇▇▇▇▇▇ under this Section 4, if
any, are in lieu of any amounts or other benefits ▇▇▇▇▇▇ would otherwise be
entitled to receive under any severance plan or policy now in effect or
hereafter adopted by the Company, and ▇▇▇▇▇▇ agrees that he will have no right
to receive any amount or other benefit under any such severance plan or policy.
(h) For purposes of this Agreement, the following terms will have the
following meanings:
(i) "Cause" means: (1) ▇▇▇▇▇▇ is convicted of, or pleads nolo
contendere to, any felony involving intentional injury to any person or
property, fraud, dishonesty or moral turpitude; (2) ▇▇▇▇▇▇ is materially
derelict in the performance of his duties or refuses to perform duties
reasonably assigned to him by the Board which are appropriate for the
President and Chief Executive Officer of the Company, provided that no such
dereliction or refusal will constitute "Cause" hereunder unless (A) ▇▇▇▇▇▇
shall have received written notice of such dereliction or refusal from the
Board (specifying in detail the facts and circumstances on which the Board
is relying) and a demand that the dereliction or refusal cease at least
thirty (30) days prior to any termination of ▇▇▇▇▇▇' employment as a result
thereof, and (B) ▇▇▇▇▇▇ shall have failed to cure such dereliction or
refusal during such thirty (30) day period; (3) ▇▇▇▇▇▇ takes any action or
omits to take any action which constitutes willful misconduct or gross
negligence; or (4) ▇▇▇▇▇▇ engages in fraudulent or dishonest behavior in
violation of the Code of Conduct or engages in behavior which constitutes
sexual harassment in violation of the Code of Conduct;
(ii) "Change in Control" shall have the meaning assigned thereto in
the Employee Retention Agreement (as defined in Section 9 below);
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(iii) "Employee Cause" means: (1) the Company's material breach of
this Agreement and the Company's failure to remedy such breach within
thirty (30) days after it receives written notice thereof from ▇▇▇▇▇▇; (2)
the assignment to ▇▇▇▇▇▇ of any additional duties or the withdrawal from
▇▇▇▇▇▇ of any of his current responsibilities or authority which assignment
or withdrawal materially adversely alters his position (including status,
offices, titles and reporting requirements) as it exists on the date of
this Agreement; (3) the failure of the Company to continue to allow ▇▇▇▇▇▇
to participate in the Executive Incentive Plan, the Stock Option Plan or
any other plan which is material to his total compensation in a manner
which is consistent with his performance and the participation of other
senior executives of the Company; (4) receipt by ▇▇▇▇▇▇ of written notice
from the Company under Section 2 above indicating that the term hereof will
not be extended; (5) any relocation of the Company's headquarters to a
location outside of a ▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇; or (6)
termination of the Company's business or its day-to-day operations;
(iv) "Salary/Bonus Continuation Payment" means: the average annual
total of base salary and bonuses actually payable to ▇▇▇▇▇▇ by the Company
(without regard to ▇▇▇▇▇▇' elective deferral of payment thereof) for the
three most recently ended fiscal years of the Company; provided that,
solely for purposes of calculating the amount of the Salary/Bonus
Continuation Payment hereunder, ▇▇▇▇▇▇' base salary for the fiscal years of
the Company ended June 30, 1998, June 30, 1999, and June 30, 2000 will be
deemed to be $375,000;
(v) "SERP Equivalent Payment" means: a lump sum amount equal to the
difference between (1) the actuarial equivalent of ▇▇▇▇▇▇' accrued benefit
under the SERP, and (2) the actuarial equivalent of ▇▇▇▇▇▇' actual vested
accrued benefit (paid or payable), if any, under the SERP, with "actuarial
equivalent" being determined for purposes of this definition utilizing the
actuarial assumptions utilized in determining benefit cash-outs with
respect to the Company's Pension Plan on the January 1 immediately
preceding the applicable Change in Control;
(vi) "Standard Termination Payments" means: the sum of (1) ▇▇▇▇▇▇'
earned and unpaid salary through the effective date of the termination of
his employment with the Company, (2) any bonus agreed to by the Company
that has accrued but not yet been paid to ▇▇▇▇▇▇ on the effective date of
the termination of his employment with the Company, (3) additional salary
in lieu of ▇▇▇▇▇▇' accrued and unused vacation, (4) any unreimbursed
business and entertainment expenses in accordance with the Company's
policies and (5) any other amounts reimbursable to ▇▇▇▇▇▇ in accordance
with the Company's plans and policies;
(vii) "Supplemental Disability Payment" means: the difference
between (1) the amount (not to exceed 60% of ▇▇▇▇▇▇' base salary) ▇▇▇▇▇▇
would have been paid under the Disability Policy if the Disability Policy
did not contain a cap on the payments payable thereunder, and (2) the
amount actually paid to ▇▇▇▇▇▇ under the Disability Policy and any other
disability policy (group or individual) for which the premiums are paid by
the Company;
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(viii) "Supplemental Pension Payment" means: a lump sum amount equal
to the difference between (1) the actuarial equivalent of the benefit
payable under the Company's Pension Plan which ▇▇▇▇▇▇ would have received
if his employment had continued at the compensation level in effect on the
effective date of termination of ▇▇▇▇▇▇' employment for the remainder of
the Severance Period, assuming for this purpose that all accrued benefits
are fully vested and that benefit accrual formulas are no less advantageous
to ▇▇▇▇▇▇ than those in effect on the January 1 immediately preceding the
effective date of termination of ▇▇▇▇▇▇' employment, but taking into
account any cessation of accruals for all non-union employees under the
Pension Plan, and (2) the actuarial equivalent of ▇▇▇▇▇▇'▇ actual vested
benefit (paid or payable), if any, under the Company's Pension Plan, with
"actuarial equivalent" being determined for purposes of this definition
utilizing the actuarial assumptions utilized in determining benefit cash-
outs with respect to the Company's Pension Plan on the January 1
immediately preceding the effective date of termination of ▇▇▇▇▇▇'
employment; and
(ix) "Total Disability" shall have the meaning assigned thereto in
the Disability Policy.
5. Confidential Information. (a) In the event that ▇▇▇▇▇▇' employment
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with the Company is terminated for any reason, ▇▇▇▇▇▇ agrees that he will not at
any time thereafter use for his own benefit or the benefit of any other Person
(as defined below), or disclose, divulge or communicate to any other Person, any
Confidential Information (as defined below), except as specifically authorized
by the Company in writing or except as required by applicable law.
(b) For purposes of this Agreement, "Person" means any corporation,
partnership, joint venture, trust, sole proprietorship, limited liability
company, unincorporated business association, individual or other entity; and
"Confidential Information" means all confidential information of the Company and
its subsidiaries and affiliates, including, without limitation, the Intellectual
Property (as defined in Section 6(c) below); other trade secrets and inventions;
acquisition and merger plans and information; corporate communications, public
relations, promotional, marketing and advertising plans and programs; research
and development projects; plans and strategies for current and future business
development; financial and statistical data; customer information, including,
without limitation, customer names, relationships, lists, sales and account
records; sales and marketing strategies and pricing matters; and all other
information of the Company or any of its subsidiaries or affiliates not
generally known in the businesses in which the Company or its applicable
subsidiaries and affiliates are engaged.
6. Intellectual Property. (a) ▇▇▇▇▇▇ agrees that, as between ▇▇▇▇▇▇
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and the Company, the Company owns and has full and exclusive rights to all of
the Intellectual Property, including, without limitation, all related
copyrights, trademarks and patents. Without limiting the generality of the
preceding sentence, ▇▇▇▇▇▇ further agrees that all of the Intellectual Property,
to the extent applicable, constitutes "works made for hire" in favor of the
Company under the copyright laws of the United States. To the extent that a
court finds that ▇▇▇▇▇▇ would otherwise have any rights in or to any of the
Intellectual Property, ▇▇▇▇▇▇ hereby irrevocably assigns to the Company all of
his right, title and interest in and to the Intellectual Property and all
related copyrights, trademarks and patents.
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(b) ▇▇▇▇▇▇ agrees that, upon the request of the Company and at the
Company's expense, ▇▇▇▇▇▇ will execute, deliver, file and record all further
instruments and documents (including, without limitation, registrations and
assignments of copyrights, trademarks, patents and other intellectual property
rights), and take all further action, as the Company deems necessary or prudent
in order to insure that the Company owns and has full and exclusive rights to
all of the Intellectual Property.
(c) For purposes of this Agreement, the "Intellectual Property" means all
products, services, reports, studies, analyses, marketing strategies,
inventions, computer software, programs and applications, trade secrets,
developments, methods, processes, ideas, works, concepts and know-how, used or
useful in the business of the Company or any of its subsidiaries or affiliates,
which have been developed, created or reduced to practice by ▇▇▇▇▇▇, whether
alone or in cooperation with others, during his employment with the Company, any
of its subsidiaries or any of their respective predecessors.
7. Restrictive Covenants. (a) In the event that ▇▇▇▇▇▇' employment
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with the Company is terminated for any reason, ▇▇▇▇▇▇ agrees that, during the
period beginning on the effective date of such termination and ending on the
second anniversary of the effective date of such termination, he will not,
directly or indirectly:
(i) serve as an officer, director, employee, principal, partner,
agent, contractor or consultant of or for, or otherwise have a financial
interest in, any Prohibited Business (as defined in Section 7(c) below)
which sells or offers to sell products or services in competition with the
Company or any of its subsidiaries or affiliates in the Geographic
Territory (as defined in Section 7(c) below); provided that this covenant
will not prevent ▇▇▇▇▇▇ from purchasing or owning not more than five
percent (5%) of any class of securities of any corporation, whether or not
such corporation is a Prohibited Business;
(ii) sell or offer to sell to any Person in the Geographic Territory
any goods or services of any type then sold or offered by the Company or
any of its subsidiaries or affiliates;
(iii) otherwise knowingly interfere with or cause a reduction or
termination of the business between the Company or any of its subsidiaries
or affiliates and any customer or prospective customer of the Company or
any of its subsidiaries or affiliates;
(iv) hire or attempt to hire any person employed or engaged by the
Company or any of its subsidiaries or affiliates or encourage or solicit
any such person to terminate his or her employment or engagement with the
Company or such subsidiary or affiliate of the Company;
(v) knowingly interfere with or cause a reduction or termination of
the business relationship between the Company or any of its subsidiaries or
affiliates and any business which supplies or supplied goods or services to
the Company or its subsidiaries or affiliates; or
(vi) make any public statement which is either intended to be or
reasonably likely to be injurious or detrimental to the Company or any of
its subsidiaries or affiliates
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or which is derogatory to any current or former director, officer or
employee of the Company or any of its subsidiaries or affiliates.
(b) ▇▇▇▇▇▇ acknowledges and agrees that, given the nature of the
businesses in which the Company and its subsidiaries and affiliates are engaged
and given his past service as President and Chief Executive Officer of the
Company, the restrictive covenants contained in Section 7(a) above are
reasonable in the sense that they are no greater than is necessary to protect
the legitimate interests of the Company and not unduly harsh and oppressive in
curtailing ▇▇▇▇▇▇' legitimate efforts to earn a livelihood. The parties
therefore intend that these restrictive covenants be enforced to the fullest
extent permitted by applicable law. Each of these restrictive covenants is a
separate and independent contractual provision.
(c) For purpose of this Agreement, "Prohibited Business" means any
Person that is in competition with the Company or any of its subsidiaries or
affiliates or that provides goods or services of any type provided by the
Company or any of its subsidiaries or affiliates; and "Geographic Territory"
means the United States, Western Europe and India.
8. Enforcement. (a) ▇▇▇▇▇▇ acknowledges and agrees that any violation
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by him of any of the confidentiality provisions of Section 5 above or any
violation by him of any of the restrictive covenants set forth in Section 7
above would result in irreparable harm and injuries to the Company and its
subsidiaries and affiliates, and ▇▇▇▇▇▇ therefore also acknowledges and agrees
that, in the event of any such violation by him, the Company will be entitled to
obtain from any court of competent jurisdiction preliminary and permanent
injunctive relief, damages and an equitable accounting of all earnings and
profits and to exercise all other rights and remedies to which the Company may
be entitled in connection therewith.
(b) In addition, ▇▇▇▇▇▇ further acknowledges and agrees that, in the event
of any violation by him of any of the confidentiality provisions of Section 5
above or any of the restrictive covenants set forth in Section 7, the Company
will have the right to withhold the balance of any amount that would otherwise
be due to him under Section 4(b) above.
9. Employee Retention Agreement. ▇▇▇▇▇▇ and the Company are parties to
----------------------------
an Employee Retention Agreement dated June 27, 2000 (the "Employee Retention
Agreement"), which the parties agree will survive the execution of this
Agreement and will remain in full force and effect. In the event that there is
any conflict between the terms of this Agreement and the terms of the Employee
Retention Agreement, (i) the terms of this Agreement will control in the event
that neither a "Change in Control" (as defined in the Employee Retention
Agreement) nor any other cessation or termination of employment covered by the
Employee Retention Agreement has occurred, and (ii) the terms of the Employee
Retention Agreement will control in the event that either a "Change in Control"
(as defined in the Employee Retention Agreement) or another cessation or
termination of employment covered by the Employee Retention Agreement has
occurred.
10. Miscellaneous. (a) No modification, change or waiver of this
-------------
Agreement or any term hereof will be binding, unless executed in writing by
▇▇▇▇▇▇ and the Company evidencing the parties' respective intent to be bound
thereby. No waiver of any of the terms of this Agreement will constitute a
waiver of any other term (whether or not similar), nor shall any such waiver
constitute a continuing waiver unless otherwise specifically provided.
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(b) ▇▇▇▇▇▇ acknowledges and agrees that, because this is a contract for
his personal services, he is not entitled to assign, subcontract or transfer any
of the benefits provided to him or any of the obligations imposed on him by this
Agreement. This Agreement shall be binding on and will inure to the benefit of
any successors or assigns of the Company.
(c) All notices, requests and other communications to a party hereunder
will be in writing and will be given to such party at its address set forth
below or such other address as such party may hereafter specify in writing for
this purpose to the other party:
If to ▇▇▇▇▇▇:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to the Company:
Cadmus Communications Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chairman of the Board
(d) (i) If any contest or dispute arises under this Agreement on or
before July 1, 2002, resulting from the actual or alleged failure or refusal of
the Company to perform fully in accordance with the terms hereof, the Company
agrees to reimburse ▇▇▇▇▇▇, on a current, as-incurred basis, for all reasonable
legal fees and expenses, if any, incurred by ▇▇▇▇▇▇ in connection with such
contest or dispute (regardless of the result thereof). Such reimbursement will
include, without limitation, the cost of attorneys' fees in reviewing this
Agreement in connection with such contest or dispute, in negotiating or
attempting to negotiate a settlement of such contest or dispute prior to ▇▇▇▇▇▇'
making a claim or commencing an action or proceeding, in prosecuting such an
action or proceeding and in settling any matter relating to this Agreement.
(ii) If any contest or dispute arises under this Agreement after July
1, 2002, resulting from the actual failure or refusal of the Company to perform
fully in accordance with the terms hereof, the Company agrees to reimburse
▇▇▇▇▇▇ for all reasonable legal fees and expenses, if any, incurred by ▇▇▇▇▇▇ in
connection with such contest or dispute. Such reimbursement will include,
without limitation, the cost of attorneys' fees in reviewing this Agreement in
connection with such contest or dispute, in negotiating or attempting to
negotiate a settlement of such contest or dispute prior to ▇▇▇▇▇▇' making a
claim or commencing an action or proceeding, in prosecuting such an action or
proceeding and in settling any matter relating to this Agreement.
(e) This Agreement will be governed by and construed in accordance with
the laws of the Commonwealth of Virginia, without regard to its conflicts of law
principles. Each of the parties hereby submits to the exclusive jurisdiction of
the courts of the Commonwealth of Virginia in the event that any litigation
arising out of this Agreement occurs.
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(f) This Agreement may be executed in counterparts, each of which will be
deemed to be an original but all of which together will constitute one and the
same instrument.
(g) Sections 4, 5, 6, 7, 8 and 9 will survive the termination of this
Agreement.
(h) Subject to Section 9 hereof, this Agreement constitutes the entire
agreement between ▇▇▇▇▇▇ and the Company with respect to the matters addressed
herein and supersedes all prior agreements and understandings, whether written
or oral, with respect to such matters. There are no representations,
understandings or agreements of any nature or kind between the parties which are
not included herein.
IN WITNESS WHEREOF, ▇▇▇▇▇▇ has duly executed this Agreement and the Company
has caused this Agreement to be duly executed by its duly authorized
representative, all as of the day and year first above written.
_______________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ COMMUNICATIONS CORPORATION
By_____________________________________
G. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Chairman, Executive Compensation and
Organization Committee
11
