EXHIBIT 10.11
EXECUTION VERSION
FIRST AMENDMENT TO
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
WHEREAS, Xxxxx X. Xxxxxx (the "Employee") entered into
an amended and restated employment agreement dated as of
September 28, 1995 (the "Employment Agreement") with
GH Acquisition Corporation, a Delaware corporation, ("Acquisition
Corp."), Graphic Holdings, Inc., a Delaware corporation ("GHI"),
and Graphic Controls Corporation, a New York corporation (the
"Company"); and
WHEREAS, each of the parties to the Employment
Agreement desires to amend the Employment Agreement in certain
respects as provided hereinbelow;
NOW, THEREFORE, Acquisition Corp., GHI, the Company and
the Employee hereby agree as follows:
Section 1. Amendment to the Employment Agreement. Upon
the effectiveness of this Amendment, the Employment Agreement
shall be and is hereby amended as set forth in paragraphs (a)
through (n) below.
(a) In lieu of the New Options, Additional Options and
Special Common Options, described or defined in Sections
2(c)(i)(B), 2(c)'(i)(C) and 2(c)(iii)(C)(II) of the Employment
Agreement, respectively, the Employee shall be granted (i) a Base
Option to purchase 60,541 shares of Common Stock and
18,163 shares of Preferred Stock, (ii) a Performance Option to
purchase 17,298 shares of Common Stock and 5,189 shares of
Preferred Stock and (iii) a Special Common Option to purchase
additional shares of Common Stock in certain circumstances
(collectively, the "Option") on the terms set forth in the stock
option agreement (the "Stock Option Agreement") attached hereto
as Exhibit A. All terms of the Option shall be defined in and
governed by the Stock Option Agreement in all respects. It is
understood and agreed that the number of shares of Preferred
Stock that may be purchased pursuant to the Base Option and the
Performance Option shall not be subject to any adjustment to give
effect to additional shares of Preferred Stock which have been
issued by GHI in lieu of cash dividends with respect to Preferred
Stock since the Effective Time.
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(b) Sections 2(c)(i)(13) and (C), 2(c)(ii)(B) and
2(c)(iii)(B) and (C) of the Employment Agreement are hereby
deleted in their entirety.
(c) Section 2(c)(iv)(A) of the Employment Agreement is
hereby amended by deleting the second sentence of such Section.
(d) Section 2(c)(iv) of the Employment Agreement is
hereby amended by deleting the phrase ,(or Special Common
Options, if any)" in the definition of "Trigger Event".
(e) Section 2(c)(v) of the Employment Agreement is
hereby amended by deleting the final sentence of such Section.
(f) For purposes of Sections 2(d)(v)(B) and 2(d)(vi)
of the Employment Agreement, the term "Options" shall be deemed
to include the Rollover Options, the Base Option, the Performance
Option and the Special Common Option.
(g) The first paragraph of Section 6 of.the Employment
Agreement is hereby amended by deleting the phrase "if Employee
shall commit an act of dishonesty, gross incompetency or
intentional or willful misconduct which act occurs in the course
of Employee's performance of his duties as an employee," and
replacing it with the phrase "if (A) Employee shall commit an act
of dishonesty, moral turpitude, gross incompetency or intentional
or willful misconduct, which act occurs in the course of
Employee's performance of his duties as an employee of GHI or any
Subsidiary (as defined below), (B) Employee shall receive a
conviction for a felony or (C) Employee shall commit a
deliberate, material breach of the terms of this Agreement, GHI's
1996 Stock Option Plan, any agreement issued under GHI's 1996
Stock Option Plan evidencing the grant of an option or any other
agreement between the Employee and GHI or a Subsidiary relating
to any aspect of the Employee's employment by GHI or a
Subsidiary". For purposes of the definition of "Cause",
Subsidiary means any corporation in an unbroken chain of
corporations beginning with GHI if, at the time of the granting
of an option pursuant to GHI's 1996 Stock Option Plan, each of
the corporations other than the last corporation in the unbroken
chain owns stock possessing 5096 or more of the total combined
voting power of all classes of stock in one of the other
corporations in the chain.
(h) Section 6(a) of the Employment Agreement is hereby
amended by deleting clause (i) of such Section-
(i) Section 6(b) of the Employment Agreement is hereby
amended by deleting clauses (i) and (ii) of such Section.
(j) Section 6(c) of the Employment Agreement is hereby
amended by deleting clauses (iii) and (v) of such Section.
(k) Section 6(d) of the Employment Agreement is hereby
amended by deleting clause (i) of such Section.
(1) Sections 6(e)(i) and (ii) of the Employment
Agreement are hereby amended by deleting the phrase ,(but not the
New Options or Additional Options (or Special Common options, if
any))" and replacing it with the phrase "(but not the Base Option
or Performance Option (or Special Common Option, if any))".
(m) Section 11(b) of the Employment Agreement is
hereby amended by deleting clause (y) of the proviso thereto.
(n) Section 11(c) of the Employment Agreement is
hereby amended by deleting in its entirety the proviso thereto.
(o) Section 11(d) of the Employment Agreement is
hereby amended by deleting clause (y) of the proviso thereto.
Section 2. Defined Terms. Except as expressly defined
herein, capitalized terms used herein shall-have the respective
meanings set forth in the Employment Agreement.
Section 3. Employment Agreement. Except as expressly
amended or modified herein, the Employment Agreement shall
continue in full force and effect in accordance with the
provisions hereof and thereof as in existence on the date hereof.
After the date hereof, any reference to the Employment Agreement
shall mean the Employment Agreement as amended by this Amendment.
Section 4. Governing Law. This Amendment shall be
governed by and construed in accordance with the laws of the
State of New York, without reference to the choice of law
principles thereof.
Section S. Counterparts. This Amendment may be
executed in one or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one
and the same instrument.
Section 6. Headings-.- The headings contained in this
Amendment are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Amendment.
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IN WITNESS WHEREOF, the parties hereto have duly
executed and delivered this Amendment to the Employment Agreement
as of December 12, 1996.
GH ACQUISITION CORPORATION
by GRAPHIC HOLDINGS, INC.
(as successor by merger)
by
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman of the
Board
GRAPHIC HOLDINGS, INC.
by
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman of the
Board
GRAPHIC CONTROLS CORPORATION
by
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman of the
Board
Xxxxx X. Xxxxxx
