EXHIBIT 10.2
EMPLOYMENT AGREEMENT
Employment Agreement (the "Agreement") made as of the 4th day of January,
1999 by and between PHOENIX COLOR CORP., a Delaware corporation ( the "Company")
and Xxxx X. Xxxxxxx (the "Employee").
RECITALS
A. The Employee has been an officer, director and a principal shareholder
of Mid-City Lithographers, Inc. ("Mid-City"), for a substantial period,
has been active in the management and business operations of Mid-City, and
has acquired special expertise and knowledge in connection therewith.
B. The Company is acquiring all of the issued and outstanding shares of
Mid-City, pursuant to a Acquisition Agreement dated November 30, 1998 (the
"Acquisition Agreement") among the Company, the Employee and other
parties, and will henceforth operate the business formerly conducted by
Mid-City.
C. The Employee desires to commence active employment with the Company, in
connection with the business formerly operated through Mid-City, and the
parties desire to set forth the terms and conditions under which the
Employee will be now employed by the Company.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants hereinafter set forth, the parties hereby agree as follows:
1. Employment; Term. Subject to the terms and conditions of this
Agreement, the Company will employ the Employee for a term of one year
commencing on the date of this Agreement (the "Employment Period").
2. Title and Duties
2.1 The Employee's title will be mutually agreed upon by the
Employee and Chairman of the Company (the "Chairman"). The duties and
responsibilities of the Employee will be generally assigned by the Chairman, and
are subject to review and adjustment by the Company's Board of Directors,
provided that any duties and responsibilities shall not be inconsistent with
Employee's position as a senior officer of the Company.
2.2 Employee shall diligently and faithfully use his best efforts to
further the interests of the Company, and shall make available and devote
substantially all of his working time for the performance of services under this
Agreement.
3. Compensation.
3.1 For all of the services to be rendered by the Employee during
the Employment Period, the Employee shall receive a salary of $170,000 per year,
payable at the times and for the same compensation periods as those in effect
for senior management of the Company.
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3.2 The Employee shall be accorded the right to participate in and
receive benefits under and in accordance with the provisions of the Company's
health insurance, life insurance, pension, disability, deferred compensation,
incentive, or profit-sharing plans or programs of the Company, either in
existence as of the date hereof or hereafter adopted, and in which other senior
management of the Company may participate, as determined by the Company's Board
of Directors.
3.3 In the event of the failure, refusal or inability of the Sellers
(as defined in the Acquisition Agreement) to comply with the indemnification
provisions of the Acquisition Agreement and/or the non-payment of any bona-fide
Company indemnification claims from the Escrow Fund (by reason of exhaustion of
such Escrow Fund or otherwise) as defined and provided for in the Acquisition
Agreement, the Company shall have the right to withhold and offset, up to the
amount of its claims for such indemnification, any sums due to the Employee
under this Section 2, with notice of any such offset to be given to the
Employee.
4. Vacations. The Employee shall be entitled to paid vacation in the
aggregate amount provided for other similarly situated senior officers of the
Company during the Employment Period. Unused vacation shall not carry-over or
accrue from year to year.
5. Reimbursement of Business Expenses. The Employee shall be entitled to
reimbursement of all reasonable and necessary accountable business expenses
incurred by him for and on behalf of the Company in the performance of his
duties during the Employment Period, pursuant to Company policies concerning
such expenses and the reporting and documentation thereof.
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6. Disability Payments; Credit. In the event that the Employee shall
receive any payment in the nature of disability compensation under the terms of
any Company disability policy which provides disability payment benefits to
Company employees, the amount of any such disability compensation received by
the Employee for the disability period shall be credited against and deducted
from the amount of salary payable under Section 3.1 above.
7. Confidentiality. In view of the fact that the Employee will have access
to Confidential Information (as defined below) of the Company, the Employee
agrees to keep secret and retain in the strictest confidence all such
information, as follows:
(a) "Confidential Information" means any and all proprietary or
non-public information relating to Company and its business, including, but not
limited to, customer lists and profiles, product pricing and pricing methods,
vendor lists, information on Company costs and markups, marketing, sales and
distribution plans and information, lists of employees and representatives,
information on compensation of Company personnel, operational methods, financial
statements, credit and financing plans, expansion plans and the like; provided,
however, that Confidential Information shall not include information that (i) is
independently developed by the Employee without use of or reliance on any
Confidential Information; (ii) the Employee lawfully obtains from any third
party who, to the best knowledge of the Employee, has not unlawfully obtained
such information; (iii) is published or generally disclosed to the public by the
Company; or (iv) is otherwise in the public domain.
(b) The Employee will not, at any time (other than as may be
required or appropriate in connection with the performance by him of his duties
hereunder) directly or indirectly, use,
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communicate, disclose or disseminate any Confidential Information in any manner
whatsoever, except as may be required under legal process by subpoena or other
court or administrative order.
(c) The Employee, upon any termination of his employment, shall
deliver to the Company any records, reports and other documents of the Company
which he may then possess or have under his control.
8. Injunctive Relief.
8.1 The parties hereby acknowledge and agree that (i) the Company
may be irreparably injured in the event of a breach by the Employee of any of
his obligations under Section 7 of this agreement, (ii) monetary damages will
not be an adequate remedy for any such breach, (iii) the Company will be
entitled to injunctive relief, without the necessity of posting a bond, in
addition to any other remedy which it may have, in the event of any such breach.
8.2 The right of the Company to obtain injunctive relief shall be
independent of, and separately enforceable from, all other rights and remedies
of the Company available under law or in equity.
9. Representations of Employee. The Employee hereby represents and
warrants as follows:
(a) The Employee is not under any contractual obligation,
restriction or disability which would limit or hinder the undertaking of
contemplated activities for the Company.
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(b) Except as disclosed in writing to the Company, the Employee is
not subject to any pending or threatened claims against him, and there are no
pending or threatened court or regulatory proceedings, investigations,
enforcement actions or other proceedings by any governmental authority
concerning any past activities of the Employee.
10. Notices. Any notice required or permitted under this Agreement shall
be in writing and shall be personally delivered or sent by registered or
certified mail, or by express delivery service, to the party for whom intended
at such party's last known business or residence address.
11. Miscellaneous Provisions.
11.1 This Agreement shall be deemed to be made under and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed in such state, and without reference to any conflict of
law provisions. The parties agree that any claims arising hereunder shall be
brought in court of general jurisdiction in the County and State of New York,
and waive any objection to the jurisdiction of such court.
11.2 Any notices required or permitted under this Agreement shall be
in writing and shall be given by registered or certified mail, return receipt
requested, by personal delivery or by overnight express delivery service,
addressed to the respective parties at the address which each has designated for
such purpose.
11.3 This Agreement shall inure to the benefit of the Company and
its successors but is not assignable except with the written consent of both
parties.
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11.4 This Agreement constitutes and expresses the whole agreement of
the parties in reference to its subject matter. The rights and remedies of the
parties hereunder shall not be exclusive and shall supplement and be in addition
to the rights and remedies available to each of them by contract, at law or in
equity or otherwise and all such rights and remedies (hereunder or otherwise)
may be exercised singly, concurrently or successively. This Agreement may not be
amended, modified or supplemented except by a writing signed by each of the
parties hereto.
11.5 In case any one or more of the covenants, agreements,
provisions or terms contained in this Agreement shall be invalid, illegal or
unenforceable in any respect, the validity of the remaining covenants,
agreements, provisions or terms contained herein shall be in no way affected,
prejudiced or disturbed thereby.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
PHOENIX COLOR CORP.
By: /s/ Xxxxxx Xxxxxxxxx
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Authorized Officer
/s/ Xxxx X. Xxxxxxx
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Employee: Xxxx X. Xxxxxxx
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