EXHIBIT 10.2
EMPLOYMENT AGREEMENT
Employment Agreement dated as of December 11, 1997 between
Xxxxxx X. Xxxxxxx (the "Executive") and Multigraphics, Inc., A
Delaware corporation (the "Company") with its principal office at
000 Xxxxxxxx Xxxxx, Xxxxx Xxxxxxxx, Xxxxxxxx 00000.
WHEREAS, the Company desires to employ the Executive as its Vice
President in charge of the former Xxxxxx Graphics business, and the
Executive desires to accept such employment, upon the terms and
conditions hereinafter set forth;
WHEREAS, Executive's employment and the agreements hereunder are
expressly ancillary to the sale by Executive to the Company of the
Xxxxxx Graphics business;
NOW, THEREFORE, in consideration of the agreements and covenants
contained herein, the Executive and the Company hereby agree as
follows:
ARTICLE I
Employment
Section 1.01. Position; Term; Responsibilities. The Company
shall employ the Executive as its Vice President effective December
11, 1997 (the "Commencement Date"), and shall perform such
executive and administrative duties for the Company and its
subsidiaries and affiliates as may from time to time be authorized or
directed by the President and CEO of the Company or the Board of
Directors of the Company (including any committees thereof, "the
Board"). The Executive agrees to be employed by the Company in such
capacity subject to all the covenants and conditions hereinafter set
forth.
Section 1.02. Duties. During Executive's Employment hereunder,
the Executive shall perform faithfully the duties assigned to him
hereunder to the best of his abilities and devote his full and
undivided business time and attention to the transaction of the
Company's business and not engage in any other business activities
except with the approval of the Board. The previous sentence shall
not preclude the Executive from listing for sale and selling his
office and warehouse facility in Itasca, IL, winding up the affairs
of the former Xxxxxx Graphic Products Company (and the Company agrees
to make Xxx Xxxxxx reasonably available to assist in such windup,
provided such activities do not materially interfere with Xx.
Xxxxxx'x responsibilities), or participating in the affairs of any
governmental, educational or other charitable institution so long as
the Board does not determine in good faith that such activities
unreasonably interfere with the business of the Company or the
performance by Executive of his duties hereunder.
ARTICLE II
Compensation
Section 2.01. Basic Compensation. As compensation for his
services hereunder, the Company shall pay to the Executive an annual
salary of $175,000, payable in installments in accordance with the
Company's normal payment schedule for senior management of the
Company. The Executive's salary may be increased from time to time
above the Base Salary at the discretion of the Board. The
Executive's annual salary in effect from time to time under this
Section 2.01 is hereinafter called his "Base Compensation".
Section 2.02. Incentive Compensation. Determination of Amount.
In addition to his Base Compensation, the Executive shall be
entitled to earn as incentive compensation (Incentive
Compensation), in respect of each fiscal year of the Company, an
amount determined and payable in accordance with the Company's
Executive Incentive Compensation Plan or a replacement plan
established by the Board (collectively, an Incentive Plan); with
a target bonus of 40% of his Base Compensation and a Maximum of 80%
of his Base Compensation, provided, however, that the Executive shall
not be entitled to receive Incentive Compensation in respect of any
portion of a fiscal year during which the Executive's employment is
terminated as a result of a Voluntary Termination or a termination by
the Company for "Cause". A "Voluntary Termination" shall mean the
voluntary termination by Executive of his employment with the Company
(other than by expiration of the term of this Agreement, as provided
below). "Cause" is defined in Section 3.04 below. Notwithstanding
any language in such bonus plan to the contrary, Executive shall be
entitled to receive a partial (pro-rata) bonus for those portions of
fiscal year 1998 and 2001 which fall within the term of this
Agreement, provided Executive has not terminated his employment
during such periods as a result of a Voluntary Termination or a
termination by the Company for Cause. A copy of Executive's fiscal
year 1998 Executive Incentive Compensation Plan, which has been
approved by the Company's Board, is attached hereto.
Section 2.03. Stock Option Stock Award. (A) The Company shall
grant to the Executive, effective on the date of execution of this
Agreement, a nonqualified stock option under the Internal Revenue
Code of 1986, as amended (the "Code"), pursuant to the Company's
1994 Long-Term Incentive Plan (the "LTIP") to purchase 2000 shares
of Common Stock at an exercise price equal to the closing price of the
Common Stock on the American Stock Exchange on such date. Such stock
option shall expire ten years after its grant date, and shall become
exercisable as to 33-1/3% of the shares subject to such options on each
of the first, second and third anniversaries of its date, subject to
earlier vesting as provided in the LTIP. By its execution of this
Agreement, the Company hereby represents and warrants that such stock
option award has been duly approved by the Management and Compensation
Committee of the Board. A copy of the form of Stock Option Agreement,
which has been approved by the Company's Board, is attached hereto
Section 2.04. Term. Employment hereunder shall commence on the
Commencement Date and shall continue through December 31, 2000 (the
"Employment Period")
Section 2.05. Other Employee Benefits. The Executive shall be
entitled to participate in all employee benefit plans and to receive
all other fringe benefits as are from time to time made generally
available to Vice Presidents of the Company; (except for any
severance plans or policies which may be in effect at any time, which
are expressly waived by Executive in favor of the benefits set forth
herein). As of the date hereof, such plans include a 401(k) plan, an
automobile allowance program, an executive universal life insurance
program, an executive long-term disability plan and a supplemental
executive health plan. In addition, the Executive shall be entitled
to take time off for vacation or illness in accordance with the
Company's policies with respect thereto established from time to time
with respect to its senior management. Executive shall have 5 weeks
of vacation each year.
Section 2.06. Expense Reimbursements. The Company shall
reimburse the Executive for all proper expenses incurred by him in
the performance of his duties hereunder in accordance with the
policies and procedures established by the Board.
Section 2.07. Health Insurance. Following the termination of
Executive's employment for any reason, the Executive and his spouse
may, at Executive's own expense, continue in any of the Company's
health insurance plans (or such successor plans as may be effect from
time to time) until their respective 65th birthdays. The Company
will use its reasonable best efforts to keep the Executive and his
spouse eligible for coverage under the Company's plans. If Executive
or his spouse cannot be covered under any of the Company's plans, as
in effect from time-to-time, the Company will arrange alternative
coverage comparable to the health plans in effect for the Company at
such time, and the Company will pay to Executive any amounts in
excess of the amounts Executive would be required to pay under the
comparable plan of the Company.
ARTICLE III
Termination of Employment
Section 3.01. Termination. The Company may terminate
Executive's employment at any time for "Cause". Executive may
terminate Executive's employment hereunder at any time for any reason
(i.e. a Voluntary Termination). In either such event, Executive
shall be entitled to receive any accrued but unpaid compensation
under Sections 2.01 and 2.02 hereof, and any unreimbursed expenses
under Section 2.06. In the event of Executive's Voluntary
Termination on or prior to December 31, 1998, Executive will not
receive any of the Earnout for the period ended June 30, 1999 under
Section 4.2(d) of the Asset Purchase Agreement.
Section 3.02. Death or Incapacity. In the event of the death
of the Executive during the Employment Period, his Designated
Successors (as hereinafter defined) shall be entitled to receive any
accrued and unpaid compensation under Sections 2.01 and 2.02 and any
unreimbursed expenses under Section 2.06.
Section 3.04. Definitions of Terms. Cause ``shall mean ''
embezzlement or misappropriation of corporate funds, other
significant act of dishonesty or illegality, willful refusal to
perform or substantial disregard of the duties properly assigned
pursuant to Article I or significant violation of any statutory or
common law duty of loyalty to the Company. Notwithstanding the
foregoing, the Executive shall not be deemed to have been terminated
for Cause unless and until there shall have been delivered to the
Executive a copy of a resolution duly adopted by the affirmative vote
of not less than a majority of the entire Board of Directors of the
Company called and held for the purpose (after reasonable notice to
the Executive and an opportunity for the Executive, together with his
counsel, to be heard before the Board), finding that in the good
faith opinion of the Board, the Executive engaged in the conduct set
forth above in this section 3.03 and specifying the particulars
thereof in reasonable detail. Designated Successors of Executive
shall mean the executors, administrators or other legal
representatives of Executive (in such order of priority) as the
Executive may have designated in a written instrument filed with the
Secretary of the Company. "Incapacity" shall mean such physical or
mental condition of the Executive as is expected to continue
indefinitely and which renders the Executive incapable or performing
any substantial portion of the duties contemplated hereby.
ARTICLE IV
Noncompetition; Confidential Information
Section 4.01. Noncompetition. Executive expressly agrees that,
in view of the fact that this Agreement is ancillary to the sale of a
business, that during the Employment Period and for a period of three
additional years thereafter, except with the prior written consent of
the Board, the Executive:
(A) shall not engage in any activities whether as employer,
proprietor, partner, equity holder (other than the holder of less
than 5% of the stock of a corporation the securities which are traded
on a national securities exchange or quoted on NASDAQ), director,
officer, employee, consultant, agent or otherwise, in competition
with (1) the businesses conducted at the date hereof by the Company
or any of its subsidiaries or any of its affiliates controlled
directly or indirectly by the Company (the Company, its subsidiaries
and such controlled affiliates being collectively referred to as the
"Managed Companies"), or (2) any business in which the Executive is
substantially engaged at any time during the Employment Period;
(B) shall not solicit, in competition with the Managed
Companies, any person who is a customer of the businesses conducted
by the Managed Companies at the date hereof or of any business in
which the Managed Companies are substantially engaged at any time
within the last eighteen months of the Employment Period; and
(C) shall not induce or attempt to persuade any management or
sales employee of the Managed Companies to terminate his or her
employment relationship.
Section 4.02. Trade Secrets. The Executive shall not, at any
time during the Employment Period or thereafter, make use of any
trade secrets, confidential or proprietary information of any of the
Managed Companies (collectively, "Confidential Information"), except
in the course of performing his duties hereunder, nor divulge any
Confidential Information, except to the extent that such information
becomes a matter of public record, is published in a newspaper,
magazine or other periodically available to the general public or as
the Board may so authorize in writing. When the Executive shall
cease to be employed by the Company, the Executive shall surrender to
the Company all records and other documents of the Managed Companies
obtained by him or entrusted to him during the course of his
employment (together with all copies thereof); provided, however,
that the Executive may retain copies of such documents as necessary
for the Executive's personal records for federal and state income tax
purposes.
Section 4.03. Scope of Covenants; Remedies. The following
provisions shall apply to the covenants of the Executive contained in
Sections 4.01 and 4.02:
(a) the covenants contained in paragraphs (A) and (B) of
Section 4.01 shall apply within all territories in which any of the
Managed Companies are actively engaged in the conduct of business
during the Employment Period, including, without limitation, the
territories in which customers are then being solicited;
(B) without limiting the right of the Company to pursue all
other legal and equitable remedies available for violation by the
Executive of the covenants contained in Sections 4.01 and 4.02, it is
expressly agreed by the Executive and the Company that such other
remedies cannot fully compensate the Company for any such violation
and that the Company shall be entitled to injunctive relief to
prevent any such violation or any continuing violation thereof;
(C) each party intends and agrees that if any action before any
court or agency legally empowered to enforce the covenants contained
in Sections 4.01 and 4.02 any term, restriction, covenant or promise
contained therein is found to be unreasonable and accordingly
unenforceable, then such term, restriction, covenant or promise shall
be deemed modified to the maximum extent necessary to make it
enforceable by such court or agency; and
(D) the covenants contained in Sections 4.01 and 4.02 shall
survive the conclusion of the Executive's Employment by the Company.
(E) the parties hereto consent to the jurisdiction of the state
of Illinois in the event of any dispute under Section 4.01 and 4.02
including, without limitation, any proceeding seeking equitable
relief enforcing the covenants contained herein.
ARTICLE V
Miscellaneous
Section 5.01. Notices. Any notice or request required or
permitted to be given hereunder shall be sufficient if in writing and
delivered personally or sent by registered mail, postage prepaid and
return receipt requested, as follows: if to the Executive, to his
address as set forth in the records of the Company, and if to the
Company, to its address hereinabove set forth, or to any other
address designated by either party by notice similarly given. Such
notice shall be deemed to have been given upon the receipt thereof.
Section 5.02. Arbitration; Enforcement Expenses.
(A) Any controversy or claim arising out of this
Agreement, or breach thereof, except any claim or breach under
Sections 4.01 and 4.02 hereof shall be settled by arbitration in
the Chicago metropolitan area in accordance with the laws of the
State of Illinois by three disinterested arbitrators, one of
whom shall be appointed by the Company, one by the Executive,
and the third of whom shall be appointed by the first two
arbitrators. If the third arbitrator cannot be agreed upon, the
third arbitrator shall be appointed by the sitting motions judge
of the Federal District Court for the Northern District of
Illinois. The arbitration shall be conducted in accordance
with the rules of the American Arbitration Association, except
with respect to the selection of arbitrators. The arbitrators'
determination shall be final and binding upon all parties and
judgment upon the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof.
(B) The Company shall pay to the Executive all reasonable
out-of-pocket expenses, including reasonable attorneys' fees,
court costs and arbitration costs, incurred by the Executive in
connection with any arbitration proceeding referred to in
subsection (A) above brought by Executive to enforce his rights
under this Agreement if Executive is the prevailing party in
such proceeding.
Section 5.03. Assignment and Succession. The rights and
obligations of the Company under this Agreement shall inure to the
benefit of and be binding upon its successors and assigns, and the
Executive's rights and obligations hereunder shall inure to the
benefit of and be binding upon his Designated Successors.
Section 5.04. Headings. The Article, Section paragraph and
subparagraph headings are for convenience of reference only and shall
not define or limit the provisions hereof.
Section 5.05. Applicable Law. this Agreement shall at all
times be governed by and construed, interpreted and enforced in
accordance with the laws of the State of Illinois.
Section 5.06. Entire Agreement. This Agreement represents the
entire agreement among the parties hereto with respect to the
employment of the Executive, except as specifically provided herein,
and supersedes all previous agreements, policies and understandings
between the Executive and the Company with respect to Executive's
employment.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
signed by its duly authorized officer and the Executive has signed
this Agreement as of the day and year first above written.
MULTIGRAPHICS, INC.
By: /s/ Xxxxxx X. Xxxxxx,
President and CEO
EXECUTIVE
By: /s/ Xxxxxx X. Xxxxxxx
EXHIBIT 10.2
EMPLOYMENT AGREEMENT
Employment Agreement dated as of December 18, 1997 between Xxxxx
X. Xxxxxxx (the "Executive") and Multigraphics, Inc., A Delaware
corporation (the "Company") with its principal office at 000
Xxxxxxxx Xxxxx, Xxxxx Xxxxxxxx, Xxxxxxxx 00000.
WHEREAS, the Company desires to employ the Executive as its
corporate Vice President and Chief Executive Officer of Publishing
Solutions, Inc. ("PS"), and the Executive desires to accept such
employment, upon the terms and conditions hereinafter set forth;
WHEREAS, Executive's employment and the agreements hereunder are
expressly ancillary to the sale by Executive of 50% of the issued
and outstanding shares of capital stock of PS pursuant to the terms
of that certain Stock Purchase Agreement of even date herewith among
the Company, Executive and Xx. Xxx X. Xxxxx (the "Stock Purchase
Agreement"); and
WHEREAS, the Executive's employment hereunder is expressly a
condition to the aforementioned sale of capital stock of PS and the
parties agree that Executive's services hereunder are essential to
the performance of the PS business from and after the sale of stock;
NOW, THEREFORE, in consideration of the agreements and covenants
contained herein, the Executive and the Company hereby agree as
follows:
ARTICLE I
Employment
Section 1.01. Position; Term; Responsibilities. The Company
shall employ the Executive as its Corporate Vice President and Chief
Executive Officer of PS, effective December 18, 1997 (the
"Commencement Date"), and the Executive shall perform such
executive and administrative duties for the Company, PS and their
affiliates as may from time to time be authorized or directed by the
President and CEO of the Company or the Board of Directors of the
Company (including any committees thereof, "the Board"). The
Executive agrees to be employed by the Company in such capacity
subject to all the covenants and conditions hereinafter set forth.
Section 1.02. Duties. During Executive's Employment hereunder,
the Executive shall perform faithfully the duties assigned to him
hereunder to the best of his abilities and devote his full and
undivided business time and attention to the transaction of the
Company's business and not engage in any other business activities
except with the approval of the Board. The previous sentence shall
not preclude the Executive from participating in the affairs of any
governmental, educational or other charitable institution so long as
the Board does not determine in good faith that such activities
unreasonably interfere with the business of the Company or the
performance by Executive of his duties hereunder.
ARTICLE II
Compensation
Section 2.01. Basic Compensation. As compensation for his
services hereunder, the Company shall pay to the Executive an annual
salary of $150,000, payable in installments in accordance with the
Company's normal payment schedule for senior management of the
Company. The Executive's salary may be increased from time to time
above the Base Salary at the discretion of the Board. The Executive's
annual salary in effect from time to time under this Section 2.01 is
hereinafter called his "Base Compensation".
Section 2.02. Incentive Compensation. Commencing January 1,
2000, in addition to his Base Compensation, the Executive shall be
entitled to earn as incentive compensation (Incentive "Compensation"),
in respect of each fiscal year of the Company, an
amount determined and payable in accordance with the Company's
Executive Incentive Compensation Plan or a replacement plan
established by the Board (collectively, an Incentive Plan ); with
a target bonus of 30% of his Base Compensation and a Maximum of 60%
of his Base Compensation, provided, however, that the Executive shall
not be entitled to receive Incentive Compensation in respect of any
portion of a fiscal year during which the Executive's employment is
terminated as a result of a Voluntary Termination or a termination by
the Company for "Cause", and Incentive Compensation shall be
payable in accordance with the terms of the applicable plan approved
by the Board from time to time; provided, however, that Executive
shall be entitled to earn Incentive Compensation for the partial
fiscal year commencing January 1, 2000 and ending on July 31, 2000
notwithstanding any provision in the applicable plan to the contrary.
A " Voluntary Termination" shall mean the voluntary termination by
Executive of his employment with the Company. Cause is defined in
Section 3.03 below.
Section 2.03. Stock Option Award. The Company shall grant to
the Executive, effective on the date of execution of this Agreement,
a nonqualified stock option under the Internal Revenue Code of 1986,
as amended (the "Code"), pursuant to the Company's 1994 Long-Ter Code
Incentive Plan (the "LTIP") to purchase 20,000 shares of Common Stock
at an exercise price equal to the closing price of the Common Stock on
the American Stock Exchange on such date. Such stock option shall
expire ten years after its grant date, and shall become exercisable as
to 33-1/3% of the shares subject to such options on each of the first,
second and third anniversaries of its date, subject to earlier vesting
as provided in the LTIP.
Section 2.04. Term. Employment hereunder shall commence on the
Commencement Date and shall continue through December 31, 2002.
Notwithstanding the term of this Agreement, the actual period of
Executive's employment hereunder shall be referred to as the
Employment Period."
Section 2.05. Other Employee Benefits. The Executive shall be
entitled to participate in all employee benefit plans and to receive
other fringe benefits as are from time to time made generally
available to Vice Presidents of the Company; (including, commencing
January 1, 2000, any severance plans or policies which may be in
effect from time to time). As of the date hereof, such plans include
a 401(k) plan, an automobile allowance program, an executive
universal life insurance program, an executive long-term disability
plan and a supplemental executive health plan. In addition, the
Executive shall be entitled to take time off for vacation or illness
in accordance with the Company's policies with respect thereto
established from time to time with respect to its senior management.
Executive shall have 3 weeks of vacation each year.
Section 2.06. Expense Reimbursements. The Company shall
reimburse the Executive for all proper expenses incurred by him in
the performance of his duties hereunder in accordance with the
policies and procedures established by the Board.
ARTICLE III
Termination of Employment
Section 3.01. Termination. This Agreement, and Executive's
employment hereunder, may be terminated under the following
circumstances:
(A) By the Company at any time for Cause.
(B) By the Executive at any time on or prior to December 31,
1999 for any reason.
(C) By the Executive at any time on or after January 1, 2000
for any reason.
(D) By the Company at any time for any reason on or after
January 1, 2000.
(E) Upon the death or Incapacity of Executive.
In the event of a termination under Subsection (A) or (B) of this
Section 3.01, Executive shall be entitled to receive any earned but
unpaid compensation under Sections 2.01 and 2.02 hereof, and any
unreimbursed expenses under Section 2.06. In either such event,
Executive shall forfeit any right to his portion of the "Earn-Out"
payable under Sections 2.1(b) or 2.1(c) of the Stock Purchase
Agreement. In the event of a termination under Subsection (C), (D)
or (E) of this Section 3.01, Executive shall be entitled to receive
any earned but unpaid compensation under Sections 2.01 and 2.02
hereof, and any unreimbursed expenses under Section 2.06, and shall
thereafter be paid any portions of any "Earn-Out" payable to
Executive under Sections 2.1(b) and 2.1(c) of the Stock Purchase
Agreement which are earned under such Sections..
Section 3.02. Death or Incapacity. In the event of the death
of the Executive during the Employment Period, his Designated
Successors (as hereinafter defined) shall be entitled to receive any
amounts payable under Section 3.01 hereof.
Section 3.03. Definitions of Terms. "Cause" shall mean
embezzlement or misappropriation of corporate funds, other
significant act of dishonesty or illegality, misconduct resulting in
harm to the Company, material breach of the covenants contained in
Articles IV and V of this Agreement, or willful refusal to perform
or disregard of the duties properly assigned pursuant to Article I.
Notwithstanding the foregoing, through December 31, 1999 (the final
measurement date for the Earn-Out provisions contained in Sections
2.1(b) and (c) of the Stock Purchase Agreement), the Executive shall
not be deemed to have been terminated for Cause unless and until
there shall have been delivered to the Executive a copy of a
resolution duly adopted by the affirmative vote of not less than a
majority of the entire Board of Directors of the Company called and
held for the purpose (after reasonable notice to the Executive and an
opportunity for the Executive, together with his counsel, to be heard
before the Board), finding that in the good faith opinion of the
Board, the Executive engaged in the conduct set forth above in this
section 3.03 and specifying the particulars thereof in reasonable
detail. "Designated Successors" of Executive shall mean the
executors, administrators or other legal representatives of Executive
(in such order of priority) as the Executive may have designated in a
written instrument filed with the Secretary of the Company.
"Incapacity" shall mean such physical or mental condition of the
Executive as is expected to continue indefinitely and which renders
the Executive incapable or performing any substantial portion of the
duties contemplated hereby.
ARTICLE IV
Trade Secrets, Proprietary Information and Return of Materials
Section 4.01. Trade Secrets. Executive acknowledges that, by
reason of Executive's duties, Executive will have access to and
become informed of proprietary, non-public information relating to
the Company as well as other confidential business and technical
information and trade secrets ( Proprietary Informatio),
including, without limitation, the following:
(a) With respect to the Company and its affiliates, (i) service
specifications, schematics, designs, procedures, practices,
testing methods, concepts for new or improved services and other
service data; (ii) sources of supply and potential sources of
supply, for equipment, components, products and services; (iii)
all technical information relating to equipment, components,
products and services; (iv) customer information, such as
customer lists, purchasing and servicing habits and credit
information; (v) cost and pricing information; (vi) selling and
marketing information, such as selling methods, strategies and
plans; (vii) corporate planning data; (viii) training and
recruiting methods and materials; (ix) financial results and
business conditions; and (x) any information that otherwise may
be defined as "trade secret" under the Uniform Trade Secrets
Act; and
(b) With respect to any other person or entity, any of the
foregoing types of information which belong to such person or
entity but to which Executive has had access by reason of his
employment with the Company (including, without limitation,
information delivered to the Company or to any of its affiliates
in confidence by persons or entities for whom the Company is
performing services).
Section 4.02. Ownership of Company Proprietary Information.
Executive specifically acknowledges (a) that all of the Proprietary
Information set forth in Section 4.01(a) of this Agreement, whether
reduced to writing, maintained on any form of electronic media, or
maintained in the mind or memory of Executive, and whether compiled
by the Company or Executive, derives independent economic value from
not being readily known to or ascertainable by proper means by others
who can obtain economic value from the disclosure or use of such
Proprietary Information, or any part of it; (b) that reasonable
efforts have been and will be taken by the Company and Executive to
maintain the secrecy of such Proprietary Information; (c) that such
Proprietary Information is the sole property of the Company, (d) that
any retention in violation of Section 4.04 of this Agreement or use
of such Proprietary Information during or after the Employment Period
(except in the course of the performance of Executive's duties under
the terms of this Agreement) shall constitute a misappropriation of
the trade secrets of the Company.
Section 4.03. Non-disclosure of Trade Secrets. Executive will
keep in strict confidence and will not, directly or indirectly, at
any time during or after Executive's employment by the Company,
disclose, furnish, disseminate, make available or use (except in the
course of the performance of Executive's duties under the terms of
this Agreement) any of the Proprietary Information.
Section 4.04 Return of Documents and Records. Executive
agrees that upon termination of Executive's employment with the
Company, for any reason, or expiration of the Employment Period
(unless Executive remains employed4by the Company), Executive shall
return to the Company, in good condition, all property of the
Company, including, without limitation, any document or record
(including, without limitation, computerized records) containing any
Proprietary Information, and Executive shall promptly deliver to the
Company all documents and records (including, without limitation,
computerized records) of the Company in Executive's possession,
custody or control. If such items are not so returned, the Company
will have the right to charge Executive for all reasonable damages,
costs, attorneys' fees and other expenses incurred in searching for,
taking and/or recovering such property.
ARTICLE V
Restrictive Covenants
Section 5.01. During Employment Period. Executive expressly
agrees that, in view of the fact that this Agreement is ancillary to
the sale of a business, that during the Employment Period , except
with the prior written consent of the Board, the Executive will not
(a) enter into or engage in any business which competes
with the business of the Company; or
(b) solicit customers, business, patronage or orders for,
or sell, any products or services in competition with, or for
any business that competes with, the business of the Company; or
(c) divert, entice, or take away any customers, business,
patronage or orders of the Company; or
(d) promote or assist, financially or otherwise, any person,
firm, association, partnership, corporation or other entity
engaged in any business which competes with the business of the
Company.
Section 5.02. After Employment Period. For a period of two
years after the Employment Period, Executive will not:
(a) enter into or engage in any business which competes with the
Company's business within the Restricted Territory (as defined
in Section 5.04(c); or
(b) solicit customers, business, patronage or orders for, or
sell, any products or services in competition with, or for any
business, wherever located, that competes with, the Company's
business within the Restricted Territory; or
(c) divert, entice or otherwise take away any customers,
business, patronage or orders of the Company within the
Restricted Territory; or
(d) promote or assist, financially or otherwise, any person,
firm, association, partnership, corporation or other entity
engaged in any business which competes with the Company's
business within the Restricted Territory.
Section 5.03. Related Parties. For the purposes of Sections
5.01 and 5.02, inclusive, but without limitation thereof, Executive
will be in violation thereof if he engages in any or all of the
activities set forth therein directly as an individual on his own
account, or indirectly as a partner, joint venturer, employee,
agent, salesperson, consultant, officer and/or director of any firm,
association, partnership, corporation or other entity, or as a
stockholder of any corporation in which Executive or Executive's
spouse, child or parent owns, directly or indirectly, individually or
in the aggregate, more than one percent of the outstanding stock
(except for the ownership of less than 5% of the outstanding capital
stock of any publicly traded company).
Section 5.04. Certain Definitions. (a) For the purposes of
this Agreement, the term "Company" shall include any and all direct
and indirect subsidiaries, divisions or business units of the Company
for which Executive worked or had responsibility at the time of
termination of his employment and at any time during the two-year
period prior to such termination, including, without limitation, PS.
(b) For purposes of Sections 5.01 and 5.02, inclusive, the
Company's business is defined to be the sale of equipment and
consumable products used in the creation, preparation and production
of printed materials by advertising agencies, service bureaus, public
relations firms and commercial and in-plant printers, including,
without limitation, films, inks, plates, rubber rollers, cleaning
solutions and cotton pads, as well as equipment and software products
such as digital platesetters, imagesetters, prepress equipment,
presses, folders and cutters, and the provision of related services
described in any and all marketing materials as the same may be
altered, amended, supplemented or otherwise changed from time to time
or the sale of other products or the provision of other services by
the Company substantially similar to any such described products and
services.
(c) For the purposes of Section 5.02, the Restricted Territory
shall be defined as and limited to:
(i) the geographic area(s) within a one-hundred mile radius of
any and all Company location(s) in, to or for which Executive
worked, was assigned or had any responsibility (either direct or
supervisory) at the time of termination of his employment and at
any time during the Employment Period; and
(ii) all of the specific customer accounts, whether within or
outside of the geographic area described in (i) above, with
which Executive had any contact or for which Executive had any
responsibility (either direct or supervisory) at the time of
termination of his employment and at any time during the
Employment Period.
Section 5.05. Extension of Period. If it shall be judicially
determined that Executive has violated any of his obligations under
Section 5.02, then the period applicable to each obligation that
Executive shall have been determined to have violated shall
automatically be extended by a period of time equal in length to the
period during which such violation(s) occurred.
Section 5.06 Adequate Consideration. Executive acknowledges
that his obligations under this Agreement are reasonable in the
context of the nature of the Company's business and the competitive
injuries likely to be sustained by the company if Executive were to
violate such obligations. Executive further acknowledges that this
Agreement is made in consideration of, and is adequately supported
by, the sale of the PS business and the agreement of the Company to
employ or to grant compensation or benefits to the Executive pursuant
to the terms of this Agreement, which Executive acknowledges
constitutes new and/or good, valuable and sufficient consideration.
Section 5.07. Covenant Not 6to Solicit. Executive will not
directly or indirectly at any time solicit or induce or attempt to
solicit or induce any employee(s) or any sales representative(s),
agent(s) or consultant(s) of the Company to terminate their
employment, representation or other association with the Company.
Section 5.08 Communication of Contents of Agreement. During
the Employment Period and during any additional period in which the
covenants contained in Sections 5.01 and 5.02 of this Agreement
remain in effect, Executive will communicate the contents of this
Agreement to any person, firm, association, partnership, corporation
or other eneity which he intends to represent, be employed by, be
associated with, and which is engaged in a business that competes
with the business of the Company.
ARTICLE VI
Remedies
In the event of any breach by Executive of the provisions of Article
IV or V of this Agreement, the parties hereby recognize and
acknowledge that a remedy at law may be inadequate, and the Company
may suffer irreparable injury. Accordingly, Executive consents to
injunctive and other appropriate equitable relief upon the
institution of appropriate proceedings by the Company in order to
protect the rights of the Company under Articles IV and V of this
Agreement. Such relief will be in addition to any other relief to
which the Company may be entitled at law or in equity. Resort to any
remedy provided for under this Article VI or provided for by law will
not prevent the concurrent or subsequent employment of any other
appropriate remedy or remedies, or preclude the recovery by the
Company of monetary damages.
ARTICLE VII
Miscellaneous
Section 7.01. Notices. Any notice or request required or
permitted to be given hereunder shall be sufficient if in writing and
delivered personally or sent by registered mail, postage prepaid and
return receipt requested, as follows: if to the Executive, to his
address as set forth in the records of the Company, and if to the
Company, to its address hereinabove set forth, or to any other
address designated by either party by notice similarly given. Such
notice shall be deemed to have been given upon the receipt thereof.
Section 7.02. Arbitration; Enforcement Expenses.
(A) Any controversy or claim arising out of this
Agreement, or breach thereof, except any claim or breach under
Articles IV or V hereof shall be settled by arbitration in the
Chicago metropolitan area in accordance with the laws of the
State of Illinois by three disinterested arbitrators, one of
whom shall be appointed by the Company, one by the Executive,
and the third of whom shall be appointed by the first two
arbitrators. If the third arbitrator cannot be agreed upon, the
third arbitrator shall be appointed by the Chief Administrator
of the Chicago office of the American Arbitration Association.
The arbitration shall be conducted in accordance with the rules
of the American Arbitration Association, except with respect to
the selection of arbitrators. The arbitrators' determination
shall be final and binding upon all parties and judgment upon
the award rendered by the arbitrators may be entered in any
court having jurisdiction thereof.
(B) The Company shall pay to the Executive all reasonable
out-of-pocket expenses, including reasonable attorneys' fees,
court costs and arbitration costs, incurred by the Executive in
connection with any arbitration proceeding referred to in
subsection (A) above brought by Executive to enforce his rights
under this Agreement if Executive is the prevailing party in
such proceeding.
Section 7.03. Assignment and Succession. The rights and
obligations of the Company under this Agreement shall inure to the
benefit of and be binding upon its successors and assigns, and the
Executive's rights and obligations hereunder shall inure to the
benefit of and be binding upon his Designated Successors.
Section 7.04. Headings. The Article, Section paragraph and
subparagraph headings are for convenience of reference only and shall
not define or limit the provisions hereof.
Section 7.05. Applicable Law. this Agreement shall at all
times be governed by and construed, interpreted and enforced in
accordance with the laws of the State of Illinois.
Section 7.06. Entire Agreement. This Agreement represents the
entire agreement among the parties hereto with respect to the
employment of the Executive, except as specifically provided herein,
and supersedes all previous agreements, policies and understandings
between the Executive and the Company with respect to Executive's
employment.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
signed by its duly authorized officer and the Executive has signed
this Agreement as of the day and year first above written.
MULTIGRAPHICS, INC.
By: /s/ Xxxxxx X. Xxxxxx, President and CEO
EXECUTIVE
By: /s/ Xxxxx X. Xxxxxxx
EXHIBIT 10.2
EMPLOYMENT AGREEMENT
Employment Agreement dated as of December 18, 1997 between
Xxxxxxx X. Xxxxx (the "Executive") and Multigraphics, Inc., A
Delaware corporation (the "Company") with its principal office at
000 Xxxxxxxx Xxxxx, Xxxxx Xxxxxxxx, Xxxxxxxx 00000.
WHEREAS, the Company desires to employ the Executive as its
corporate Vice President and Chief Executive Officer of Publishing
Solutions, Inc. ("PS"), and the Executive desires to accept such
employment, upon the terms and conditions hereinafter set forth;
WHEREAS, Executive's employment and the agreements hereunder are
expressly ancillary to the sale by Executive of 50% of the issued
and outstanding shares of capital stock of PS pursuant to the terms
of that certain Stock Purchase Agreement of even date herewith among
the Company, Executive and Xx. Xxxxx X. Xxxxxxx (the "Stock Purchase
Agreement"); and
WHEREAS, the Executive's employment hereunder is expressly a
condition to the aforementioned sale of capital stock of PS and the
parties agree that Executive's services hereunder are essential to
the performance of the PS business from and after the sale of stock;
NOW, THEREFORE, in consideration of the agreements and covenants
contained herein, the Executive and the Company hereby agree as
follows:
ARTICLE I
Employment
Section 1.01. Position; Term; Responsibilities. The Company
shall employ the Executive as its Corporate Vice President and Chief
Executive Officer of PS, effective December 18, 1997 (the "Commencement
Date"), and the Executive shall perform such executive and administrative
duties for the Company, PS and their affiliates as may from time to time
be authorized or directed by the President and CEO of the Company or the
Board of Directors of the Company (including any committees thereof,
the "Board"). The Executive agrees to be employed by the Company in
such capacity subject to all the covenants and conditions hereinafter
set forth.
Section 1.02. Duties. During Executive's Employment hereunder,
the Executive shall perform faithfully the duties assigned to him
hereunder to the best of his abilities and devote his full and
undivided business time and attention to the transaction of the
Company's business and not engage in any other business activities
except with the approval of the Board. The previous sentence shall
not preclude the Executive from participating in the affairs of any
governmental, educational or other charitable institution so long as
the Board does not determine in good faith that such activities
unreasonably interfere with the business of the Company or the
performance by Executive of his duties hereunder.
ARTICLE II
Compensation
Section 2.01. Basic Compensation. As compensation for his
services hereunder, the Company shall pay to the Executive an annual
salary of $150,000, payable in installments in accordance with the
Company's normal payment schedule for senior management of the
Company. The Executive's salary may be increased from time to time
above the Base Salary at the discretion of the Board. The Executive's
annual salary in effect from time to time under this Section 2.01 is
hereinafter called his "Base Compensation".
Section 2.02. Incentive Compensation. Commencing January 1,
2000, in addition to his Base Compensation, the Executive shall be
entitled to earn as incentive compensation ("Incentive Compensation"),
in respect of each fiscal year of the Company, an amount determined
and payable in accordance with the Company's Executive Incentive
Compensation Plan or a replacement plan established by the Board
(collectively, an "Incentive Plan"); with a target bonus of 30% of
his Base Compensation and a Maximum of 60% of his Base Compensation,
provided, however, that the Executive shall not be entitled to receive
Incentive Compensation in respect of any portion of a fiscal year
during which the Executive's employment is terminated as a result of
a Voluntary Termination or a termination by the Company for "Cause",
and Incentive Compensation shall be payable in accordance with the
terms of the applicable plan approved by the Board from time to time;
provided, however, that Executive shall be entitled to earn Incentive
Compensation for the partial fiscal year commencing January 1, 2000
and ending on July 31, 2000 notwithstanding any provision in the
applicable plan to the contrary. A "Voluntary Termination" shall
mean the voluntary termination by Executive of his employment with
the Company. Cause is defined in Section 3.03 below.
Section 2.03. Stock Option Award. The Company shall grant to
the Executive, effective on the date of execution of this Agreement,
a nonqualified stock option under the Internal Revenue Code of 1986,
as amended (the "Code"), pursuant to the Company's 1994 Long-Term Code
Incentive Plan (the "LTIP") to purchase 20,000 shares of Common Stock
at an exercise price equal to the closing price of the Common Stock
on the American Stock Exchange on such date. Such stock option
shall expire ten years after its grant date, and shall become
exercisable as to 33-1/3% of the shares subject to such options
on each of the first, second and third anniversaries of its date,
subject to earlier vesting as provided in the LTIP.
Section 2.04. Term. Employment hereunder shall commence on the
Commencement Date and shall continue through December 31, 2002.
Notwithstanding the term of this Agreement, the actual period of
Executive's employment hereunder shall be referred to as the
"Employment Period."
Section 2.05. Other Employee Benefits. The Executive shall be
entitled to participate in all employee benefit plans and to receive
other fringe benefits as are from time to time made generally
available to Vice Presidents of the Company; (including, commencing
January 1, 2000, any severance plans or policies which may be in
effect from time to time). As of the date hereof, such plans include
a 401(k) plan, an automobile allowance program, an executive
universal life insurance program, an executive long-term disability
plan and a supplemental executive health plan. In addition, the
Executive shall be entitled to take time off for vacation or illness
in accordance with the Company's policies with respect thereto
established from time to time with respect to its senior management.
Executive shall have 3 weeks of vacation each year.
Section 2.06. Expense Reimbursements. The Company shall
reimburse the Executive for all proper expenses incurred by him in
the performance of his duties hereunder in accordance with the
policies and procedures established by the Board.
ARTICLE III
Termination of Employment
Section 3.01. Termination. This Agreement, and Executive's
employment hereunder, may be terminated under the following
circumstances:
(A) By the Company at any time for Cause.
(B) By the Executive at any time on or prior to December 31,
1999 for any reason.
(C) By the Executive at any time on or after January 1, 2000
for any reason.
(D) By the Company at any time for any reason on or after
January 1, 2000.
(E) Upon the death or Incapacity of Executive.
In the event of a termination under Subsection (A) or (B) of this
Section 3.01, Executive shall be entitled to receive any earned but
unpaid compensation under Sections 2.01 and 2.02 hereof, and any
unreimbursed expenses under Section 2.06. In either such event,
Executive shall forfeit any right to his portion of the "Earn-Out"
payable under Sections 2.1(b) or 2.1(c) of the Stock Purchase
Agreement. In the event of a termination under Subsection (C), (D)
or (E) of this Section 3.01, Executive shall be entitled to receive
any earned but unpaid compensation under Sections 2.01 and 2.02
hereof, and any unreimbursed expenses under Section 2.06, and shall
thereafter be paid any portions of any "Earn-Out" payable to
Executive under Sections 2.1(b) and 2.1(c) of the Stock Purchase
Agreement which are earned under such Sections.
Section 3.02. Death or Incapacity. In the event of the death
of the Executive during the Employment Period, his Designated
Successors (as hereinafter defined) shall be entitled to receive any
amounts payable under Section 3.01 hereof.
Section 3.03. Definitions of Terms. "Cause" shall mean
embezzlement or misappropriation of corporate funds, other
significant act of dishonesty or illegality, misconduct resulting in
harm to the Company, material breach of the covenants contained in
Articles IV and V of this Agreement, or willful refusal to perform
or disregard of the duties properly assigned pursuant to Article I.
Notwithstanding the foregoing, through December 31, 1999 (the final
measurement date for the Earn-Out provisions contained in Sections
2.1(b) and (c) of the Stock Purchase Agreement), the Executive shall
not be deemed to have been terminated for Cause unless and until
there shall have been delivered to the Executive a copy of a
resolution duly adopted by the affirmative vote of not less than a
majority of the entire Board of Directors of the Company called and
held for the purpose (after reasonable notice to the Executive and an
opportunity for the Executive, together with his counsel, to be heard
before the Board), finding that in the good faith opinion of the
Board, the Executive engaged in the conduct set forth above in this
section 3.03 and specifying the particulars thereof in reasonable
detail. "Designated Successors" of Executive shall mean the
executors, administrators or other legal representatives of Executive
(in such order of priority) as the Executive may have designated in a
written instrument filed with the Secretary of the Company.
"Incapacity" shall mean such physical or mental condition of the
Executive as is expected to continue indefinitely and which renders
the Executive incapable or performing any substantial portion of the
duties contemplated hereby.
ARTICLE IV
Trade Secrets, Proprietary Information and Return of Materials
Section 4.01. Trade Secrets. Executive acknowledges that, by
reason of Executive's duties, Executive will have access to and
become informed of proprietary, non-public information relating to
the Company as well as other confidential business and technical
information and trade secrets ("Proprietary Information"),
including, without limitation, the following:
(a) With respect to the Company and its affiliates, (i) service
specifications, schematics, designs, procedures, practices,
testing methods, concepts for new or improved services and other
service data; (ii) sources of supply and potential sources of
supply, for equipment, components, products and services; (iii)
all technical information relating to equipment, components,
products and services; (iv) customer information, such as
customer lists, purchasing and servicing habits and credit
information; (v) cost and pricing information; (vi) selling and
marketing information, such as selling methods, strategies and
plans; (vii) corporate planning data; (viii) training and
recruiting methods and materials; (ix) financial results and
business conditions; and (x) any information that otherwise may
be defined as "trade secret" under the Uniform Trade Secrets
Act; and
(b) With respect to any other person or entity, any of the
foregoing types of information which belong to such person or
entity but to which Executive has had access by reason of his
employment with the Company (including, without limitation,
information delivered to the Company or to any of its affiliates
in confidence by persons or entities for whom the Company is
performing services).
Section 4.02. Ownership of Company Proprietary Information.
Executive specifically acknowledges (a) that all of the Proprietary
Information set forth in Section 4.01(a) of this Agreement, whether
reduced to writing, maintained on any form of electronic media, or
maintained in the mind or memory of Executive, and whether compiled
by the Company or Executive, derives independent economic value from
not being readily known to or ascertainable by proper means by others
who can obtain economic value from the disclosure or use of such
Proprietary Information, or any part of it; (b) that reasonable
efforts have been and will be taken by the Company and Executive to
maintain the secrecy of such Proprietary Information; (c) that such
Proprietary Information is the sole property of the Company, (d) that
any retention in violation of Section 4.04 of this Agreement or use
of such Proprietary Information during or after the Employment Period
(except in the course of the performance of Executive's duties under
the terms of this Agreement) shall constitute a misappropriation of
the trade secrets of the Company.
Section 4.03. Non-disclosure of Trade Secrets. Executive will
keep in strict confidence and will not, directly or indirectly, at
any time during or after Executive's employment by the Company,
disclose, furnish, disseminate, make available or use (except in the
course of the performance of Executive's duties under the terms of
this Agreement) any of the Proprietary Information.
Section 4.04 Return of Documents and Records. Executive
agrees that upon termination of Executive's employment with the
Company, for any reason, or expiration of the Employment Period
(unless Executive remains employed by the Company), Executive shall
return to the Company, in good condition, all property of the
Company, including, without limitation, any document or record
(including, without limitation, computerized records) containing any
Proprietary Information, and Executive shall promptly deliver to the
Company all documents and records (including, without limitation,
computerized records) of the Company in Executive's possession,
custody or control. If such items are not so returned, the Company
will have the right to charge Executive for all reasonable damages,
costs, attorneys' fees and other expenses incurred in searching for,
taking and/or recovering such property.
ARTICLE V
Restrictive Covenants
Section 5.01. During Employment Period. Executive expressly
agrees that, in view of the fact that this Agreement is ancillary to
the sale of a business, that during the Employment Period , except
with the prior written consent of the Board, the Executive will not
(a) enter into or engage in any business which competes
with the business of the Company; or
(b) solicit customers, business, patronage or orders for,
or sell, any products or services in competition with, or for
any business that competes with, the business of the Company; or
(c) divert, entice, or take away any customers, business,
patronage or orders of the Company; or
(d) promote or assist, financially or otherwise, any person,
firm, association, partnership, corporation or other entity
engaged in any business which competes with the business of the
Company.
Section 5.02. After Employment Period. For a period of two
years after the Employment Period, Executive will not:
(a) enter into or engage in any business which competes with the
Company's business within the Restricted Territory (as defined
in Section 5.04(c); or
(b) solicit customers, business, patronage or orders for, or
sell, any products or services in competition with, or for any
business, wherever located, that competes with, the Company's
business within the Restricted Territory; or
(c) divert, entice or otherwise take away any customers,
business, patronage or orders of the Company within the
Restricted Territory; or
(d) promote or assist, financially or otherwise, any person,
firm, association, partnership, corporation or other entity
engaged in any business which competes with the Company's
business within the Restricted Territory.
Section 5.03. Related Parties. For the purposes of Sections
5.01 and 5.02, inclusive, but without limitation thereof, Executive
will be in violation thereof if he engages in any or all of the
activities set forth therein directly as an individual on his own
account, or indirectly as a partner, joint venturer, employee, agent,
salesperson, consultant, officer and/or director of any firm,
association, partnership, corporation or other entity, or as a
stockholder of any corporation in which Executive or Executive's
spouse, child or parent owns, directly or indirectly, individually or
in the aggregate, more than one percent of the outstanding stock
(except for the ownership of less than 5% of the outstanding capital
stock of any publicly traded company).
Section 5.04. Certain Definitions. (a) For the purposes of
this Agreement, the term "Company" shall include any and all direct
and indirect subsidiaries, divisions or business units of the Company
for which Executive worked or had responsibility at the time of
termination of his employment and at any time during the two-year
period prior to such termination, including, without limitation, PS.
(b) For purposes of Sections 5.01 and 5.02, inclusive, the
Company's business is defined to be the sale of equipment and
consumable products used in the creation, preparation and production
of printed materials by advertising agencies, service bureaus, public
relations firms and commercial and in-plant printers, including,
without limitation, films, inks, plates, rubber rollers, cleaning
solutions and cotton pads, as well as equipment and software products
such as digital platesetters, imagesetters, prepress equipment,
presses, folders and cutters, and the provision of related services
described in any and all marketing materials as the same may be
altered, amended, supplemented or otherwise changed from time to time
or the sale of other products or the provision of other services by
the Company substantially similar to any such described products and
services.
(c) For the purposes of Section 5.02, the Restricted Territory
shall be defined as and limited to:
(i) the geographic area(s) within a one-hundred mile radius of
any and all Company location(s) in, to or for which Executive
worked, was assigned or had any responsibility (either direct or
supervisory) at the time of termination of his employment and at
any time during the Employment Period; and
(ii) all of the specific customer accounts, whether within or
outside of the geographic area described in (i) above, with
which Executive had any contact or for which Executive had any
responsibility (either direct or supervisory) at the time of
termination of his employment and at any time during the
Employment Period.
Section 5.05. Extension of Period. If it shall be judicially
determined that Executive has violated any of his obligations under
Section 5.02, then the period applicable to each obligation that
Executive shall have been determined to have violated shall
automatically be extended by a period of time equal in length to the
period during which such violation(s) occurred.
Section 5.06 Adequate Consideration. Executive acknowledges
that his obligations under this Agreement are reasonable in the
context of the nature of the Company's business and the competitive
injuries likely to be sustained by the company if Executive were to
violate such obligations. Executive further acknowledges that this
Agreement is made in consideration of, and is adequately supported
by, the sale of the PS business and the agreement of the Company to
employ or to grant compensation or benefits to the Executive pursuant
to the terms of this Agreement, which Executive acknowledges
constitutes new and/or good, valuable and sufficient consideration.
Section 5.07. Covenant Not to Solicit. Executive will not
directly or indirectly at any time solicit or induce or attempt to
solicit or induce any employee(s) or any sales representative(s),
agent(s) or consultant(s) of the Company to terminate their
employment, representation or other association with the Company.
Section 5.08 Communication of Contents of Agreement. During
the Employment Period and during any additional period in which the
covenants contained in Sections 5.01 and 5.02 of this Agreement
remain in effect, Executive will communicate the contents of this
Agreement to any person, firm, association, partnership, corporation
or other eneity which he intends to represent, be employed by, be
associated with, and which is engaged in a business that competes
with the business of the Company.
ARTICLE VI
Remedies
In the event of any breach by Executive of the provisions of Article
IV or V of this Agreement, the parties hereby recognize and
acknowledge that a remedy at law may be inadequate, and the Company
may suffer irreparable injury. Accordingly, Executive consents to
injunctive and other appropriate equitable relief upon the
institution of appropriate proceedings by the Company in order to
protect the rights of the Company under Articles IV and V of this
Agreement. Such relief will be in addition to any other relief to
which the Company may be entitled at law or in equity. Resort to any
remedy provided for under this Article VI or provided for by law will
not prevent the concurrent or subsequent employment of any other
appropriate remedy or remedies, or preclude the recovery by the
Company of monetary damages.
ARTICLE VII
Miscellaneous
Section 7.01. Notices. Any notice or request required or
permitted to be given hereunder shall be sufficient if in writing and
delivered personally or sent by registered mail, postage prepaid and
return receipt requested, as follows: if to the Executive, to his
address as set forth in the records of the Company, and if to the
Company, to its address hereinabove set forth, or to any other
address designated by either party by notice similarly given. Such
notice shall be deemed to have been given upon the receipt thereof.
Section 7.02. Arbitration; Enforcement Expenses.
(A) Any controversy or claim arising out of this
Agreement, or breach thereof, except any claim or breach under
Articles IV or V hereof shall be settled by arbitration in the
Chicago metropolitan area in accordance with the laws of the
State of Illinois by three disinterested arbitrators, one of
whom shall be appointed by the Company, one by the Executive,
and the third of whom shall be appointed by the first two
arbitrators. If the third arbitrator cannot be agreed upon, the
third arbitrator shall be appointed by the Chief Administrator
of the Chicago office of the American Arbitration Association.
The arbitration shall be conducted in accordance with the rules
of the American Arbitration Association, except with respect to
the selection of arbitrators. The arbitrators' determination
shall be final and binding upon all parties and judgment upon
the award rendered by the arbitrators may be entered in any
court having jurisdiction thereof.
(B) The Company shall pay to the Executive all reasonable
out-of-pocket expenses, including reasonable attorneys' fees,
court costs and arbitration costs, incurred by the Executive in
connection with any arbitration proceeding referred to in
subsection (A) above brought by Executive to enforce his rights
under this Agreement if Executive is the prevailing party in
such proceeding.
Section 7.03. Assignment and Succession. The rights and
obligations of the Company under this Agreement shall inure to the
benefit of and be binding upon its successors and assigns, and the
Executive's rights and obligations hereunder shall inure to the
benefit of and be binding upon his Designated Successors.
Section 7.04. Headings. The Article, Section paragraph and
subparagraph headings are for convenience of reference only and shall
not define or limit the provisions hereof.
Section 7.05. Applicable Law. this Agreement shall at all
times be governed by and construed, interpreted and enforced in
accordance with the laws of the State of Illinois.
Section 7.06. Entire Agreement. This Agreement represents the
entire agreement among the parties hereto with respect to the
employment of the Executive, except as specifically provided herein,
and supersedes all previous agreements, policies and understandings
between the Executive and the Company with respect to Executive's
employment.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
signed by its duly authorized officer and the Executive has signed
this Agreement as of the day and year first above written.
MULTIGRAPHICS, INC.
/s/ Xxxxxx X. Xxxxxx, President and CEO
EXECUTIVE
/s/ Xxxxxxx X. Xxxxx
