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Exhibit 10.6(f)
EMPLOYMENT AGREEMENT
This Agreement, effective as of June 29, 1998, is entered into by and
between Applied Graphics Technologies, Inc., a Delaware corporation ("AGT"), and
Xxxxxxxx X. Xxxxxxx, (hereinafter referred to as "Xxxxxxx" or the "Employee") an
individual residing at 0000 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000-0000.
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 Administration for the
period beginning July 21, 1998 and ending on July 20, 2000 (the "Term").
2. Compensation.
(a) AGT will pay Employee a salary at the rate of $225,000 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 from time to time.
(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 in accordance with AGT's
policies as are in effect from time to time. The foregoing shall include all
reasonable expenses for accommodations and local travel while working in New
York City, unless said accommodations and local travel are provided by AGT.
3. Duties. During the Term, Employee agrees to fulfill the duties of Senior Vice
President Administration of AGT. Employee shall report to the Chief Executive
Officer of AGT, and shall
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devote all of his business efforts to the performance of his duties as Senior
Vice President Administration, and shall do so to the best of his abilities. It
is expected that Employee will work in New York City an average of three (3)
days per week.
4. Vacation. Employee shall be entitled to four (4) weeks vacation during each
year of the Term, to be taken consistent with AGT's policies as are in effect
from time to time.
5. 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) indictment for, conviction of or pleas of guilty or nolo
contendre to any felony or business-related misdemeanor; (ii) theft, fraud or
embezzlement; (iii) excessive absenteeism not related to illness; (iv) the
intentional failure to perform assigned duties; (v) an act of gross neglect or
gross misconduct; (vi) a material breach of any of the provisions of this
Agreement; (vii) the commission of any other action with the intent to harm or
injure AGT, its parents, subsidiaries or affiliates; or (viii) habitual drug or
alcohol abuse. 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 receive his salary and benefits pursuant to Paragraph 2
herein until the effective date of his termination, and the Company shall have
no further obligation to the Employee pursuant to this Agreement.
(b) AGT shall be entitled to terminate this Agreement at any time
during the Term without Cause (as defined above). However, in the event AGT
exercises its rights under this Paragraph 5(b), (i) any unvested stock options
which have been granted to Employee shall immediately vest and must be exercised
within 90 days and (ii) AGT shall continue to pay
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Employee's salary and benefits under Paragraph 2(a) for the shorter of (A) the
remainder of the Term or (B) six months; 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 (including without limitation
benefits) 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 Paragraph 5 shall be
paid in accordance with AGT's usual payroll practices.
6. 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.
7. 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.
8. Options. Xxxxxxx shall be granted options to purchase 100,000 shares of AGT's
common stock at the fair market value on the date of grant. Such options shall
vest over a 5 year period and will be subject to such other terms and conditions
as are established by the Compensation Committee of the Board of Directors.
9. 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: Xxxxxxxx X. Xxxxxxx, 0000 Xxxxxxxxx Xxxx Xxxx,
Xxxxxxxxx, Xxxxxxxx 00000-0000.
(b) if to AGT, to: Xxxx Xxxxxxx, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX
00000, with a
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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) Any controversy or claim arising out of or relating to this
Agreement, or any breach thereof, shall be subject to resolution in the state or
federal courts in New York and 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 without giving effect to
principles of conflicts of laws thereof.
(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 affiliates. This Agreement is personal to
Employee, and neither this Agreement nor 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
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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) This Agreement may be executed in counterparts, each of which shall
be deemed to be an original but all of which together shall be deemed to be one
and the same instrument.
(h) Except with regard to Employee's obligations under the
Noncompetition, Nonsolicitation and Confidentiality Agreement attached hereto as
Exhibit A, this Agreement shall be of no further force and effect and AGT shall
have no further obligations hereunder after the expiration or termination of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
shown above.
Applied Graphics Technologies, Inc.
By: /s/ Xxxx Xxxxxxx
-----------------------------
/s/ Xxxxxxxx X. Xxxxxxx
---------------------------------
Xxxxxxxx X. Xxxxxxx
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EXHIBIT A
Noncompetition, Nonsolicitation
and Confidentiality Agreement
In consideration for the agreement of Applied Graphics Technologies, Inc.,
("AGT") to employ Xxxxxxxx X. Xxxxxxx ("Employee") as Senior Vice President
Administration, Employee hereby agrees as follows:
1. In this Agreement, the term AGT includes Applied Graphics Technologies, Inc.,
as well as all of its parents, subsidiaries and affiliates, including, but not
limited to, U.S. News & World Report, Applied Printing Technologies, Inc., Daily
News and The Atlantic Monthly.
2. Employee acknowledges that he will be furnished, or may otherwise receive or
have access to, private information which relates to AGT's past, present or
anticipated customer lists or other compilations for marketing or development,
or which relates to administrative, management, financial, marketing, sales or
manufacturing activities of AGT and that such information is not easily
accessible from public sources. All such information, including any materials or
documents containing such information, shall be considered by AGT and Employee
as proprietary and confidential ("Proprietary Information").
3. Both during and forever after the term of this Agreement, Employee agrees to
preserve and protect the confidentiality of the Proprietary Information and all
physical forms thereof, whether disclosed to him before this Agreement is signed
or afterward. In addition, Employee shall not (i) disclose or disseminate the
Proprietary Information to any third party, including employees of AGT, without
a need to know, (ii) remove Proprietary Information from AGT's premises without
valid business purpose, or (iii) use Proprietary Information for his own benefit
or for the benefit of any third party.
4. Employee acknowledges and agrees that all Proprietary Information used or
generated during the course of working for AGT is the property of AGT. Employee
agrees to deliver to AGT all documents and other tangibles (including diskettes
and other storage media) containing Proprietary Information, including all
copies of such documents or tangibles, immediately upon notice of the
termination of his employment with AGT.
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5. While working for AGT and for one year following termination of his
employment from AGT for any reason, Employee will not attempt, either directly
or indirectly, to solicit, induce, entice or attempt to influence any employee
of AGT to leave AGT's employ or directly or indirectly hire or cause any other
entity to hire any person who has been an AGT employee in the 12 months
preceding the contact.
6. Noncompetition
a. Employee acknowledges that his agreement to forego competition with
AGT was a material inducement to AGT to employ him. Employee also acknowledges
that he will acquire much Proprietary Information concerning AGT's financial
status, current and future marketing and advertising strategies, pricing, and
other confidential information as the result of his employment and that such
information is not easily accessible from other sources. Employee further
acknowledges that the businesses in which AGT engages, including but not limited
to pre-press and digital archiving are very competitive; that competition by him
those businesses during his employment, or after his employment terminates,
would severely injure AGT; and that his agreements herein are demonstrably
necessary to protect those legitimate interests.
b. During the term of his employment with AGT, Employee (i) will devote
all his professional and business time and effort to and give undivided loyalty
to AGT and (ii) will not engage in any way whatsoever, directly or indirectly,
in any business that is competitive with AGT, nor directly or indirectly solicit
or in any other manner work for or assist any business which is competitive with
AGT.
c. During the term of this Agreement and for the term of any period for
which this Agreement is extended (except if this Agreement is terminated
pursuant to Paragraph 5b), for a period of six months after the termination of
Employee's employment Employee shall not, whether alone or in association with
any other person, directly or indirectly (i) engage in any business in the
Specified Areas that is competitive with any aspect of the business that is
being conducted or planned by AGT at the time Employee's employment with AGT
terminates; or (ii) have any interest or association (including, without
limitation, as a shareholder, partner, director, officer, employee, consultant,
sales representative, supplier, distributor, agent or lender) in or with any
person engaged in a business in the Specified Areas that Employee is prohibited
from engaging in pursuant to clause (i) above; provided however, that the
foregoing shall not prohibit Employee from owning securities of any publicly
traded company that is engaged in any such business as long as Employee does not
own at any time 5% or more of any class of the equity securities of such
company.
For purposes of the foregoing, the "Specified Areas" means each state in which
AGT makes any sales or performs any services during the 12 month period
preceding the date on which Employee's employment with AGT terminates.
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d. If any provision of this Agreement is determined by a court to be
overly broad thereby making the provision unenforceable, Employee agrees that
such court shall substitute a reasonable, judicially enforceable limitation in
place of the invalid part of the provision and that as so modified the provision
shall be as fully enforceable as if set forth herein in the modified form. If it
is not possible to restate the provision in a valid or legal manner, then that
invalid or illegal portion shall be deemed not a part of the Agreement and the
remaining provisions shall remain in full force and effect.
7. Employee acknowledges and agrees that:
a. (i) his contractual obligations under paragraphs 3, 4, 5, and 6 have
a unique and very substantial value to AGT, (ii) he has sufficient assets and
other skills to provide a reasonable livelihood for himself while such
paragraphs are in force, and (iii) he is subject to immediate dismissal by AGT
for any breach of those provisions and that such dismissal shall not relieve him
from his continuing obligations under this Agreement or from the imposition by a
court of any judicial remedies, such as money damages or equitable enforcement
of those provisions.
b. the terms and provisions of this Agreement are applicable to all
information and materials developed for, received from or any advice provided
to, AGT prior to or after the signing of this Agreement; and
c. the termination of his employment with AGT for any reason, shall not
relieve him from complying with the undertakings and agreements contained
herein, which call for performance prior or subsequent to the termination date,
including, but not limited to those undertakings and agreements set forth in
paragraphs 3, 4, 5 and 6.
d. in the event of his breach of any of the undertakings or agreements
set forth in paragraphs 3, 4, 5, and 6 of this Agreement, AGT shall have the
right to obtain an injunction or decree of specific performance from any court
of competent jurisdiction to restrain him from violating such undertakings or
agreements or to compel him to perform such undertakings or agreements. Nothing
herein contained shall in any way limit or exclude any and all other rights
granted by law or equity to AGT.
8. No act or failure to act by AGT will waive any right contained herein. Any
waiver by AGT must be in writing and signed by the Chairman of AGT to be
effective.
9. In the event that any provision of this Agreement conflicts with the law
under which this Agreement is to be construed or if any such provision is held
invalid by a court or other authority with jurisdiction over the parties to this
Agreement, such provision shall be deemed to be restated to reflect as nearly as
possible the original intentions of the parties in accordance with applicable
law, and the remainder of this Agreement shall remain in full force and effect.
If it is not possible to restate the
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provision in a valid or legal manner, then that invalid or illegal portion shall
be deemed not a part of the Agreement and the remaining provisions shall remain
in full force and effect.
10. This Agreement shall be construed according to its terms and not strictly
for or against either party.
11. This Agreement shall be governed by the laws of the State of New York
without regard to its conflicts of laws provisions.
12. All remedies provided herein are cumulative and in addition to all other
remedies which may be available at law or in equity.
13. This Agreement shall be binding on both parties successors, heirs and
assigns.
Employee: Applied Graphics Technologies, Inc.:
/s/Xxxxxxxx X. Xxxxxxx /s/ Xxxx Xxxxxxx
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Xxxxxxxx X. Xxxxxxx By: Xxxx Xxxxxxx
Title: CEO
June 29, 1998
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Date Date
