Exhibit 10.05
D R A F T
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(980408)
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, made as of the __ day of ______, 1998, by and between
Dion von der Lieth (the "Executive"), an individual residing at 00 Xxxxxxxxxx
Xxxxx, Xxxxxxxxx Xxxxx, Xxx Xxxxxx 00000 and Phoenix Color Corp. (the "Company")
with a place of business at 00 Xxxxxxx Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, XX 00000.
W I T N E S S E T H:
WHEREAS, the Executive is currently employed by the Company as a Vice
President responsible for sales and marketing, and the Company desires that the
Executive shall continue to be employed by it and render services to it, and the
Executive is willing to continue to be so employed and to render services, all
upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Employment, Duties and Acceptance.
1.1 The Company hereby employs Executive, and the Executive hereby
accepts employment, for the term ("Term) set forth in Section 2 hereof, to
render services to Company as a Vice President with primary responsibility for
sales and marketing. The Executive represents and warrants to the Company that
he has full power and authority to enter into this Agreement and that he is not
under any obligation of a contractual or other nature to any person, firm or
corporation which is inconsistent or in conflict with this Agreement, or which
would prevent, limit or impair in any way the performance by Executive of his
obligations hereunder.
1.2 The Executive will serve as a Vice President of the Company and
as a member of its Board of Directors when elected as such, will have general
supervision over the ______________________ operations of the Company and its
subsidiaries or affiliates (referred to collectively as "Affiliates") and will
have such other duties and responsibilities, consistent with his position as
Vice President, as may reasonably be assigned to him by the President or the
Board of Directors of the Company. In addition, the Executive will serve as a
senior officer and a director (when elected as such) of each of the Company's
Affiliates. The Executive will report to the President of the Company.
1.3 The Executive shall devote his full business time to the
business and affairs of the Company, and shall use his best efforts, skills, and
abilities to promote the interests of the Company, except for reasonable
vacations and during periods of illness or incapacity, but nothing contained in
this Agreement shall prevent the Executive from engaging in charitable or
community activities provided they do not interfere with the regular performance
of the Executive's duties and responsibilities under this Agreement.
1.4 Unless the Executive and the Company shall otherwise agree, the
Executive's principal place of employment shall be in and around Long Island
City, New York, but the duties of the Executive shall include such visits to the
Company's facilities and the facilities of its Affiliates, at the expense of the
Company, as may be reasonably required in the performance of the Executive's
responsibilities.
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2. Term. The Term of this Agreement will commence on ______, 1998 and will
terminate at the close of business on the fifth anniversary thereof, unless
sooner terminated in accordance with the provisions of this Agreement.
Thereafter, the employment of the Executive shall continue for successive
one-year periods (each such one-year period being hereinafter referred to as a
"Renewal Term") following the Term (the first such Renewal Term to commence on
____________, 2003) unless the Corporation or Executive shall give notice to the
other at least sixty (60) days prior to the end of the Term or any Renewal Term
of the election of the Corporation or the Executive to terminate the employment
of the Executive at the end of the Term or the then current Renewal Term, as the
case may be.
3. Base Salary.
3.1 For all services performed by the Executive under this Agreement,
the Executive shall be paid a base salary ("Base Salary") at least the following
annual rates:
Calendar Year Base Salary
-------------- -----------
1998 $ 249,500
1999 261,975
2000 275,074
2001 288,827
2002 303,269
2003 319,070
Notwithstanding the foregoing specified amounts of Base Salary, (i) if the
percentage increase in the Consumer Price Index maintained by the United States
Bureau of Labor Statistics (or any successor to such index maintained by an
agency of the federal government) (the "CPI") applicable to the Standard
Metropolitan Statistical Area in which the Company's executive offices are
located shall be greater over any calendar year during the Term than the
year-to-year
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percentage increase represented by the foregoing changes in Base Salary, the
Base Salary shall be increased to reflect such percentage change in the Consumer
Price Index, and (ii) the Board of Directors may award increases in Base Salary
greater than those provided above after a review taking into account corporate
and individual performance, the Company's prospects and general business
conditions.
During any Renewal Term, the Executive's Base Salary shall be the greatest
of (i) one hundred five (105%) per cent of the Base Salary during the twelve
month period immediately preceding the Renewal Term in question; (ii) the
product of the multiplication of the Base Salary during the twelve month period
immediately preceding the Renewal Term in question by the sum of one hundred
plus the amount expressed as a percent by which the most recent reported CPI
applicable to the Standard Metropolitan Statistical Area in which the Company's
executive offices are located is greater than the CPI for that same SMSA twelve
months prior to the Renewal Term in question; and (iii) the sum offered by the
Board of Directors after a review taking into account corporate and individual
performance, the Company's prospects and general business conditions.
3.2 Base Salary shall be paid in equal monthly or semi-monthly
installments in keeping with the Company's standard payroll policies applicable
to its senior executives.
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4. Incentive Bonus.
The Executive shall be entitled to participate in any bonus pool
established by the Company to provide incentive compensation for its officers
and other supervisory personnel (the "Incentive Bonus").
5. Reimbursement for Expenses.
Company shall reimburse Executive for all reasonable out-of-pocket expenses
paid or incurred by him in the course of his employment, upon presentation by
Executive of valid receipts or invoices therefor, utilizing procedures and forms
for that purpose as established by Company from time to time.
6. Vacations.
Executive shall be entitled to reasonable vacations (which shall aggregate
no less than four (4) weeks vacation with pay) during each consecutive 12 month
period commencing on the date hereof. Executive may not accumulate any vacation
days which remain unused at the end of any year during the term hereof without
the prior consent of the President.
7. Employee Benefit Programs, etc.
7.1 The Company shall provide the Executive with an automobile (or at
Employee's option, a cash allowance in the amount of $1,500 per month) for use
in the performance of Executive's duties, along with fuel, fluids and
maintenance, upon such terms and conditions as are approved by Company. The
Company shall arrange and pay for secure communications and computer links
between the Executive's primary residence and the Company's executive offices to
permit the Executive to carry out his responsibilities from such residence, and
shall and pay or reimburse the Executive for the costs of a cellular telephone.
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7.2 Subject to the approval of the Boards of Directors of the
Company, the Executive shall be provided with disability insurance providing for
disability payments to the Executive following a termination of Executive's
employment hereunder as a result of Disability (as defined in Section 8.2
below). In the event such policy is not obtained, Executive shall be entitled to
participate in such disability plan(s) as are available to Company executives
generally.
7.3 Subject to the Executive's meeting the eligibility requirements
of each respective plan, Executive shall be offered the opportunity participate
in and be covered by each pension, life insurance, accident insurance, health
insurance, hospitalization and any other employee benefit plan adopted by the
Company, as the case may be, made available generally from and after the date
hereof to its respective executives, on the same basis as shall be available to
such other executives without restriction or limitation by reason of this
Agreement; provided, however, that Executive shall not participate in two or
more plans providing duplicative benefits or coverage. The Company shall use its
reasonable efforts to waive any qualifying period for participation in any such
plan by the Executive.
7.4 Nothing herein contained shall prevent the Company from at any
time increasing the compensation herein provided to be paid to Executive, either
permanently or for a limited period, or from paying bonuses and other additional
compensation to Executive, whether or not based upon the earnings of the
business of Company, or from increasing or expanding any employee benefit
program applicable to the Executive, in the event the Company, in its sole
discretion, shall deem it advisable so to do in order to recognize and
compensate Executive fairly for the value of his services.
8. Death or Disability.
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8.1 If Executive shall die during the term hereof, this Agreement
shall immediately terminate, except that Executive's legal representatives or
designated beneficiaries shall be entitled to receive (i) the Base Salary due to
Executive hereunder to the last day of the third month following the month in
which his death occurs, payable in accordance with the Company's regular payroll
practices, (ii) a portion of the Incentive Bonus payable under Section 4
(determined as provided under Section 8.4), based on the Company's Adjusted Net
Income through the month of the bonus year preceding the month in which death
occurs; and (iii) all other payments and entitlements available upon death under
any employee benefit program covering the Executive as of the date of death.
Except for the payments required pursuant to this Section 8.1, no payments shall
be made for any period after Executive's death.
8.2 In the event of the Disability (as hereinafter defined) of the
Executive, the Executive shall be entitled to continue to receive from the
Company and its several benefit plans an amount equal to his Base Salary
(prorated as may be necessary) in accordance with the terms of Section 3 hereof
through the last day of the third month following the month in which Executive's
employment hereunder is terminated as a result of such Disability. At any time
after the date of the Notice (as hereinafter defined) and during the continuance
of the Executive's Disability, the Company may at any time thereafter terminate
Executive's employment hereunder by written notice to the Executive. The term
"Disability" shall mean physical or mental illness or injury which prevents the
Executive from performing his customary duties for the Company for a period of
twenty (20) consecutive business days or an aggregate period of sixty (60) days
out of any consecutive twelve (12) months. The date of commencement of
Disability shall be the date set forth in the notice (the "Notice") given by
Company to the Executive at any time following a
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determination of Disability, which date shall not be earlier than the date the
Notice is given by Company. A determination of Disability by Company shall be
solely for the purposes of this Section 8.2 and shall in no way affect the
Executive's status under any benefit plan applicable to the Executive.
8.3 Upon the occurrence of a Disability, and unless the Executive's
employment shall have been terminated as provided in Section 8.2, the Executive
shall continue to perform such services for Company, consistent with his duties
under Section 1 hereof, as he is reasonably capable of performing in light of
the condition giving rise to a Disability. All payments due under Section 8.2
shall be payable in accordance with Company's regular payroll practices. Those
payments, together with the aggregate amount of all periodic payments which the
Executive is entitled to receive under all workers compensation plans,
disability plans and accident, health or other insurance plans or programs
maintained for the Executive by Company (or by any company controlling,
controlled by or under common control with the Company), shall be not less than
Executive's Base Salary for the month or period in question.
8.4 If the Executive's employment is terminated due to Disability,
the Executive shall be entitled, in addition to the payments described in
Section 8.2, to a pro-rated portion of the Incentive Bonus otherwise payable for
the fiscal year in which such Disability occurs, determined by multiplying the
Incentive Bonus that would otherwise be payable by a fraction, the numerator of
which is the number of days the Executive was employed during such fiscal year
and the denominator of which is 365.
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9. Termination for Cause.
9.1 The employment of the Executive may be terminated by the Company
for Cause. For this purpose, "Cause" shall mean:
(a) incompetence, negligence or any misconduct by Executive in
performing his duties;
(b) insubordination or the deliberate failure or refusal to
comply with the terms of this Agreement or to follow the directions or
policies of the Company , its executive officers or Board of
Directors, which directions or policies are consistent with normal
business practices and relate to the performance by Executive of his
duties as an executive of Company in accordance with the provisions of
this Agreement, and which failure or refusal shall remain uncured for
three (3) days after written notice thereof shall have been given to
Executive; provided, however, that the foregoing right to cure shall
not apply to any failure or refusal of a type substantially similar to
a failure or refusal which was the subject of a previous notice under
this clause (b);
(c) illegal use of drugs;
(d) the commission by Executive of an act of theft, dishonesty,
embezzlement, vandalism, fraud or misappropriation against Company any
subsidiary or affiliate of Company;
(e) the conviction of Executive in any jurisdiction for a
criminal offense constituting a felony; or
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(f) any deliberate or intentional act or omission, the purpose
of which is to materially damage the business or reputation of
Company.
9.2 In the event of a termination for Cause, the Executive shall
(a) be entitled to any unpaid Base Salary pro rated up to the date of
termination, and (b) have no further rights under this Agreement.
Notwithstanding such termination, the Executive shall be and remain subject to
all provisions of Section 12 below for the period indicated therein, but shall
not receive any of the compensation set forth therein.
10. Termination Upon Change of Control or by Company Without Cause.
10.1 A "Change in Control" shall occur: (A) if any Person, or
combination of Persons, (as hereinafter defined), or any affiliate of any
Person, is or becomes the "beneficial owner" (as defined in Rule 13d-3
promulgated under the Securities Exchange Act of 1934) directly or indirectly,
of securities of the Company representing twenty- five percent (25%) or more of
the total number of outstanding shares of common stock of the Company; or (B) if
individuals who, at the date of this Agreement, constitute the Board (the
"Incumbent Directors") cease, for any reason, to constitute at least a majority
thereof, provided that any new director whose election was approved by the
favorable vote of at least 75% of the Incumbent Directors shall be treated as an
Incumbent Director. For purposes hereof, "Person" shall mean any individual,
partnership, joint venture, association, trust (other than a trust established
by or in connection with any pension or other retirement plan adopted for
employees of the Company), or other entity, including a "group" as referred to
in section 13(d)(3) of the Securities Exchange Act of 1934.
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10.2 If a Change in Control occurs during the Term and any Renewal
Term, and if there subsequently occurs a material adverse change, without the
Executive's written consent, in the Executive's working conditions or status,
including but not limited to a significant change in the nature or scope of the
Executive's authority, powers, duties or responsibilities, or a reduction in the
level of support services or staff, then, whether or not such change would
otherwise constitute a breach of this Agreement by the Company, this Agreement
may be terminated by notice given by the Executive, specifying the Change of
Control and significant adverse change or changes.
10.3 Upon the termination of this Agreement in accordance with
Section 10.2 above, the Executive will be entitled, without any duty to mitigate
damages, to:
(a) All unpaid Base Salary pro-rated up to the date of
termination; and
(b) All unpaid installments of Incentive Bonus in respect of
the year prior to the date of termination; and
(c) A severance payment equal to 2.99 times the sum of (i) the
Base Salary in effect for the prior fiscal year, and (ii) the
Incentive Bonus awarded in respect of such year; and
(d) All benefits available under the Company's employee benefit
programs, to the extent applicable to senior executives voluntarily
and amicably retiring from employment with the Company.
10.4 If, after a Change of Control, the Company shall actually or
constructively terminate this Agreement without Cause,
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or shall fail to renew this Agreement without Cause, the Executive shall be
entitled to the same payments, compensation and rights as provided in the case
of a termination by the Executive under Section 10.3.
10.5 The payments, and other compensation and benefits to which the
Executive is entitled under this Section 10 shall be made available to the
Executive no later than ten (10) days after the date of any termination referred
to in Section 10.2, 10.3 or 10.4.
10.6 In the event that Executive receives the payments, and other
compensation and benefits referred to in this Section 10, he will be bound by
the restrictive provisions of Section 12 for the period therein provided,
subject to the right to receive the compensation therein set forth.
11. Termination by Executive.
If the Executive shall terminate his employment under this Agreement prior
to the end of the Term or any Renewal Term without the express written consent
of the Company, then, for purposes of establishing the rights of the Executive
upon such termination, such termination shall be deemed the equivalent of a
termination for Cause under Section 9.1, and the Executive shall have only those
rights with regard to compensation as are set forth in Section 9.2, and the
restrictive provisions of Section 12 below shall fully apply.
12. Restrictive Covenants; Compensation.
12.1 During such time as this Agreement shall be in effect and, except
as otherwise explicitly stated herein, without the Company's prior written
consent (which may be withheld for any reason or for no reason in Company's sole
discretion), Executive shall not do anything in any way inconsistent with his
duties to or adverse to the interests of Company, and shall not, directly or
indirectly, himself or by or through a family member or otherwise, alone or as a
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member of a partnership or joint venture, or as a principal, officer, director,
consultant, employee or stockholder of any other entity, compete with Company or
be engaged in or connected with any other business competitive with that of
Company or any of its Affiliates, except that Executive may own as a passive
investment not more than five percent (5%) of the securities of any publicly
held corporation that may engage in a business competitive with that of Company
or any of its Affiliates.
12.2 In view of the fact that Executive will be brought into close
contact with many confidential affairs of Company and its Affiliates not readily
available to the public, Executive agrees during the Term of this Agreement and
thereafter:
(a) to keep secret and retain in the strictest confidence all
information about (i) business, products, financial condition and other
financial affairs (such as costs, pricing, profits and plans for future
development, methods of operation and marketing concepts) of Company and
its Affiliates; (ii) its employment policies and plans; and (iii) any other
proprietary information relating to the Company and its Affiliates, their
operations, businesses, financial condition and financial affairs
(collectively, the "Confidential Information") and, for such time as
Company or any of its Affiliates is operating, not to disclose the
Confidential Information to anyone not then an officer, director or
authorized employee of Company or its Affiliates, either during or after
the term of this Agreement, except in the course of performing his duties
hereunder or with Company's express written consent or except to the extent
that such confidential information can be shown to have been in the public
domain through no fault of Executive; and
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(b) to deliver to Company within ten days after termination of his
services, or at any time Company may so request, all memoranda, notes,
records, reports and other documents relating to Company or its Affiliates,
businesses, financial affairs or operations and all property associated
therewith, which he may then possess or have under his control.
12.3 Executive shall not at any time during the two-year period
following the termination of his employment for any reason whatsoever,
including termination resulting from the natural expiration of the term of this
Agreement, (i) employ any individual who was employed by Company or any of its
Affiliates at any time during the such period or during the twelve calendar
months immediately preceding such termination, or (ii) in any way cause,
influence or participate in the employment of any such individual by anyone else
in any business that is competitive with any of the businesses engaged in by
Company or any of its Affiliates.
12.4 Executive shall not at any time during the two-year period
following the termination of his employment, for any reason whatsoever,
including termination resulting from the natural expiration of the term of this
Agreement, directly or indirectly (i) persuade or attempt to persuade any
customer or client of Company or any of its Affiliates to cease doing business
with Company or any Affiliate or to reduce the amount of business it does with
Company or any of its Affiliates or (ii) solicit for himself or any person other
than Company or any of its Affiliates, the business of any individual or
business which was a customer or client of Company or any of its Affiliates at
any time during the eighteen month period immediately preceding such
termination.
12.5 Executive acknowledges that the execution and delivery by him of
the covenants set forth in this Section 12 is an essential inducement to Company
to retain Executive
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and to enter into this agreement, and that Company would not have retained
Executive and entered into this Agreement but for such covenants. Executive
further acknowledges that his services are unique and that any breach or
threatened breach by Executive of any of the foregoing provisions of this
Section 12 cannot be remedied solely by damages. In the event of a breach or a
threatened breach by Executive of any of the provisions of this Section 12,
Company shall be entitled to injunctive relief restraining Executive and any
business, firm, partnership, individual, corporation or other entity
participating in such breach or attempted breach. Nothing herein, however, shall
be construed as prohibiting Company from pursuing any other remedies available
at law or in equity for such breach or threatened breach, including the recovery
of damages and the immediate termination of the employment of Executive
hereunder.
12.6 If any of the provisions of, or covenants contained in, this
Section 12 are hereafter construed to be invalid or unenforceable in any
jurisdiction, the same shall not affect the remainder of the provisions or the
enforceability thereof in any other jurisdiction, which shall be given full
effect, without regard to the invalid portions or the unenforceability in such
other jurisdiction. If any of the provisions of or covenants contained in this
Section 12 are held to be unenforceable in any jurisdiction because of the
duration or scope thereof, the parties hereto agree that the court making such
determination shall have the power to reduce the duration and/or scope of such
provision or covenant and, in its reduced form, said provision or covenant shall
be enforceable; provided, however, that the determination of such court shall
not affect the enforceability, duration or scope of this Section 12 in any other
jurisdiction.
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13. Relationship of Parties.
Nothing herein contained shall be deemed to constitute a partnership
between or a joint venture by the parties, nor shall anything herein contained
be deemed to constitute either the Executive, the Company or any Affiliates the
agent of the other except as is expressly provided herein. Neither Executive nor
Company shall be or become liable or bound by any representation, act or
omission whatsoever of the other party made contrary to the provisions of this
Agreement.
14. Key Man Insurance.
The Company, in its discretion, may apply for and procure in its own name
and benefit, life insurance on a the life of the Executive and disability
insurance in any amount or amounts considered advisable by the Company, and the
Executive shall submit to any medical or other examination and execute and
deliver any application or other instrument in writing, reasonably necessary to
effectuate such insurance.
15. Notices.
All notices and communications hereunder shall be in writing and delivered
by hand or sent by registered or certified mail, postage and registration or
certification fees prepaid, return receipt requested, or by overnight delivery
such as Federal Express, and shall be deemed given when hand delivered or upon
three (3) business days after the date when mailed, or upon one (1) business day
after delivery to an agent for overnight delivery, if sent in such manner, as
follows:
If to Company: Phoenix Color Corp.
000 Xxxxxxx Xxxxxxxx Xxxxxxx,
Xxxxxxxxxx, XX 00000
Attn: President
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With a copy to: Xxxxxx Xxxxxxx Xxxxxxx & Xxxxxxxx, LLP
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
If to Executive: Dion von der Lieth
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The foregoing addresses may be changed by notice given in the manner set forth
in this Section 15.
16. Disputes.
Any dispute or controversy arising under or in connection with this
Agreement shall be resolved only in either the Supreme Court of the State of New
York, New York County, or the United States District Court for the Southern
District of New York, and the parties expressly and irrevocably agree to submit
to the jurisdiction of such courts. The parties hereto further consent and agree
that process shall be validly served upon them if made by certified mail, return
receipt requested, or by any other means permitted by law. Notwithstanding the
foregoing, Company shall have the right to apply to any court having
jurisdiction over Executive to seek injunctive or other emergency relief in the
event Executive breaches, or threatens to breach, any of his covenants set forth
in Section 12.
17. Miscellaneous.
17.1 This Agreement contains the entire understanding of the parties
hereto with respect to the employment of Executive by Company during the term
hereof, and the provisions hereof may not be altered, amended, waived,
terminated or discharged in any way whatsoever except by subsequent written
agreement executed by the party charged therewith. This
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Agreement supersedes all prior employment agreements, understandings and
arrangements between Executive and Company pertaining to the terms of the
employment of Executive. A waiver by either of the parties of any of the terms
or conditions of this Agreement, or of any breach hereof, shall not be deemed a
waiver of such terms or conditions for the future or of any other term or
condition hereof, or of any subsequent breach hereof.
17.2 The provisions of this Agreement are severable, and if any
provision of this Agreement is invalid, void, inoperative or unenforceable, the
balance of the Agreement shall remain in effect, and if any provision is
inapplicable to any circumstance, it shall nevertheless remain applicable to all
other circumstances.
17.3 Company shall have the right to deduct and withhold from
Executive's compensation the amounts required to be deducted and withheld
pursuant to any present or future law concerning the withholding of income
taxes. In the event that Company makes any payments or incurs any charges for
Executive's account or Executive incurs any personal charges with Company,
Company shall have the right and Executive hereby authorizes Company to recoup
such payments or charges by deducting and withholding the aggregate amount
thereof from any compensation otherwise payable to Executive hereunder.
17.4 Executive represents that he is under no disability, restriction
or prohibition from entering this Agreement or performing the services required
hereunder; and also that he has been represented and advised by independent
legal counsel in connection with the negotiation, preparation and execution of
this Agreement.
17.5 This Agreement shall be construed and interpreted under the laws
of the State of New York applicable to contracts executed and to be performed
entirely therein.
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17.6 The captions and section headings in this Agreement are not part
of the provisions hereof, are merely for the purpose of reference and shall have
no force or effect for any purpose whatsoever, including the construction of the
provisions of this Agreement.
17.7 To the extent any provision of this Agreement contemplates
action after termination hereof or creates a cause of action or claim on which
action may be brought by either party, such provision, cause of action or claim
shall survive termination of Executive's employment or termination of this
Agreement.
17.8 Executive may neither assign his rights nor delegate his duties
under this Agreement; provided, however, that notwithstanding the foregoing this
Agreement shall inure to the benefit of Executive's legal representatives,
executors administrators or successors and to the successors or assigns of
Company.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
PHOENIX COLOR CORP.
By:
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Xxxxx XxXxxxx, President
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Dion xxx xxx Xxxxx
00
