Exhibit 10.6(e)
EMPLOYMENT AGREEMENT
This Agreement, dated April 16, 1996, is entered into by and between
Applied Graphics Technologies, Inc., a Delaware corporation ("AGT"), and Xxxxx
Xxxxxxxx, Xx., (hereinafter referred to as "Xxxxxxxx" or the "Employee") an
individual residing at 000 Xxxxx Xxx, Xxxxxxx Xxxxx, Xxx Xxxxxx 00000. In
consideration of the mutual covenants set forth herein, the parties agree as
follows:
1. Employment Term. Subject to the further terms and conditions of this
Agreement, AGT employs Employee as Senior Vice President and Chief Financial
Officer for the period beginning on the Commencement Date and ending on the day
before the second anniversary of the Commencement Date (the "Term"); provided
that no later than six months before the expiration of the Term, AGT shall
notify Employee as to whether AGT intends to extend Employee's employment for
one additional year beyond the Term. The Commencement Date shall be a mutually
agreed upon date between May 1, 1996 and June 1, 1996.
2. Employee will generally attend meetings of the Board of the Directors
and will attend meetings of Board Committees, as appropriate.
3. Compensation.
(a) AGT will pay Employee a salary at the rate of $240,000 per annum.
(b) With respect to each of AGT's fiscal years, Employee shall be
eligible for a cash bonus in an amount, if any, to be determined
in the sole discretion of AGT.
(c) The salary and bonus referred to in subparagraphs (a) - (b) above
represent all of Employee's cash compensation, and accordingly,
Employee shall not be entitled to any overtime, weekend or
holiday compensation.
(d) Employee shall receive those insurance, retirement and other
benefits generally provided to AGT's other senior executives of
similar rank and tenure.
(e) Employee shall be reimbursed for all reasonable travel and
entertainment expenses incurred in the furtherance of AGT's
business, upon submission by Employee of reasonable
documentation.
4. Duties. During the term of this Agreement, Employee agrees to fulfill
the duties of Chief Financial Officer of AGT. Employee shall report to the Chief
Operating Officer of AGT, and shall devote all of his business efforts to the
performance of his duties as Chief Financial Officer, and shall do so to the
best of his abilities.
5. Leaves. Employee shall be entitled to a four (4) week vacation during
each year of the Term, and such other leaves, if any, as may be provided
generally to AGT's other senior executives.
6. Termination.
(a) This Agreement shall terminate prior to the expiration hereof in
the event of Employee's death, permanent disability, or discharge
for cause. "Cause" shall mean (i) the conviction of or pleas of
guilty or nolo-contender to any felony or business-related
misdemeanor; (ii) the reasonable determination by AGT's Board of
Directors or Chief Executive Officer that Employee has engaged in
an act of personal dishonesty in any way relating to or affecting
the performance of his duties for AGT, its parents, subsidiaries
or affiliates; (iii) a breach of fiduciary duty; (iv) the
intentional failure to perform assigned duties; (v) gross
negligence in the performance of duties; (vi) a material breach
of any of the provisions of this Agreement; or (vii) the
commission of any other action with the intent to harm or injure
AGT, its parents, subsidiaries or affiliates. In the event that
AGT terminates Employee for cause, Employee shall be entitled to
compensation earned up to the date of termination, but no other
compensation, and AGT reserves the right to seek appropriate
relief for whatever damage may have resulted from that "cause".
"Permanent disability" shall mean a physical or mental illness,
disability or disfigurement which renders Employee incapable of
performing his normal services hereunder for a continuous period
of 8 weeks, or an aggregate of 16 weeks during any 52 week
period. In the event Employee is disabled for less than such 8 or
16 weeks, respectively, Employee shall nonetheless be entitled to
full compensation during such period. In the event of Employee's
permanent disability or death, Employee shall be entitled to full
compensation until the effective date of his termination, but no
other compensation.
(b) AGT shall be entitled to terminate this Agreement at any time
without any reason or cause whatsoever. However, in the event AGT
exercises its rights under this Paragraph 6(b), (i) any unvested
stock options which have been granted to Employee shall
immediately vest and be subject to exercise within 90 days and
(ii) AGT shall continue to pay Employee's salary and benefits
under Paragraph 3(a) for the remainder of the term set forth in
Paragraph 1; provided however that Employee shall make a good
faith effort to find other employment and any amounts due under
this clause (ii) shall be offset by any compensation earned or
received by Employee from other persons or entities with respect
to any services performed by him during the remainder of said
term.
(c) Amounts payable to Employee pursuant to this Section 6 shall be
paid in accordance with AGT's usual payroll practices.
7. Noncompetition, Nonsolicitation and Confidentiality. As a material
inducement to AGT to employ him, Employee agrees to execute the Noncompetition,
Nonsolicitation and Confidentiality Agreement attached hereto as Exhibit A, the
terms of which are incorporated herein by reference.
8. Absence of Restrictions. Employee represents and warrants that he is not
a party to any agreement or contract pursuant to which there is any restriction
or limitation upon him entering into this Agreement or performing the duties
called for by this Agreement.
9. In consideration of Employee's agreement to begin employment on the
Commencement Date, Xxxxxxxx shall be granted options to purchase 125,000 shares
of AGT's common stock at the price at which such shares are sold to the public
pursuant to AGT's Registration Statement dated January 19, 1996.
(a) Such options shall vest at the rate of 20% per year, such vesting
to occur at the end of each 365 day period after the grant of the
options.
(b) The options will be subject to such other terms and conditions as
are established by the Compensation Committee of the Board of
Directors.
10. Notices. All notices, consents and other communications required or
permitted to be given hereunder shall be in writing and delivered personally or
sent by certified or registered mail, postage prepaid, as follows:
(a) if to Employee, to: Xxxxx Xxxxxxxx, Xx., 000 Xxxxx Xxx, Xxxxxxx
Xxxxx, Xxx Xxxxxx 00000.
(b) if to AGT, to: Xxxx Xxxxxxx, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX
00000, with a copy to Xxxxxx X. Xxxxx at the same address.
Any notice so given shall be deemed received when delivered personally, or,
if mailed, three days after it is deposited, postage prepaid, by certified mail,
in the United States mail. Either party may change the address to which notices
are to be sent by giving written notice of such change of address to the other
party in the manner herein provided for giving notice.
10. General.
(a) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely in New York.
(b) The section headings contained herein are for reference purposes
only and shall not in any way affect the meaning or
interpretation of this Agreement.
(c) This Agreement sets forth the entire agreement and understanding
of the parties hereto concerning the subject matter hereof, and
supersedes all prior agreements, arrangements and understandings
between the parties hereto.
(d) AGT may assign its rights and obligations under this Agreement to
any successor thereto or to any corporation or other entity
controlled, or under common control with AGT or any of its
Partners. This Agreement is personal to Employee, and neither
this Agreement or any of Employee's rights or obligations
hereunder may be assigned, pledged or encumbered by him, without
the prior written approval of AGT.
(e) This Agreement may be amended, modified, superseded or canceled,
and the terms or covenants hereof may be waived, only by a
written instrument executed by both parties hereto, or, in the
case of a waiver, by the party waiving compliance. The failure of
either party at any time or times to require performance of any
provision hereof shall in no manner affect the right at a later
time to enforce the same. No waiver by either party of the breach
of any term or covenant contained in this Agreement, whether by
conduct or otherwise, in any one or more instances, shall be
deemed to be, or construed as, a further or continuing waiver of
any such breach or a waiver of the breach of any other term or
covenant in this Agreement.
(f) In the event that any one or more of the provisions of this
Agreement shall be determined to be invalid or unenforceable in
any respect, the validity and enforceability of the remaining
provisions of this Agreement shall not in any way be affected or
impaired thereby.
(g) Except as otherwise provided in Exhibit A, any and all disputes
between the parties hereto concerning any alleged breach or
interpretation of this contract or arising out of Employee's
employment shall be submitted solely to binding arbitration in
accordance with the procedures and rules of the American
Arbitration Association applicable at the time of the dispute for
a final, non-appealable, binding decision. The parties hereby
waive any and all right to proceed in any court or administrative
agency; however, should any dispute hereunder be adjudicated by a
court, the parties hereto waive any right each may have to a jury
trial. In a proceeding of any sort, each party shall bear its own
costs and attorneys' fees, unless an intentional breach is
claimed, and in such event, if the moving party does not
substantially prevail, such party shall pay the other party's
legal fees, and if such party does prevail, the other party shall
pay the prevailing party's fees.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
shown above. Applied Graphics Technologies, Inc.
By: __________________________
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Xxxxx Xxxxxxxx, Xx.
