Employment Agreement - Master Graphics Inc. and Robert J. Diehl
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement") is made
as of the 22nd day of February, 2000 and effective as of January 1, 2000, by and
between MASTER GRAPHICS, INC., a Tennessee corporation (the "Company"), and
ROBERT J. DIEHL (the "Executive").
WHEREAS, the Company and Executive entered into that certain employment
agreement between the Company and Executive effective as of March 31, 1998 (the
"Original Employment Agreement");
WHEREAS, the Company and the Executive desire to enter into this Agreement
which supercedes and replaces in its entirety the Original Employment Agreement;
WHEREAS, the Company is engaged in the business of providing general
commercial printing services to its customers; and
WHEREAS, the Company desires to employ the Executive to devote full time to
the business of the Company as the President and Chief Executive Officer of the
Company;
WHEREAS, the Executive desires to be employed by the Company on the terms
and subject to the conditions hereinafter stated.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE 1
SUPERSESSION OF ORIGINAL EMPLOYMENT AGREEMENT
The Company and the Executive acknowledge and agree that the Original
Employment Agreement is hereby terminated by mutual consent and neither the
Company nor the Executive shall have any continuing obligation to the other
pursuant to the terms of the Original Employment Agreement. The mutual
agreements and covenants contained in this Agreement shall replace and supercede
in their entirety the provisions of the Original Employment Agreement.
ARTICLE 2
TERM AND DUTIES
2.1 Term; Extension. The term of this Agreement (the "Term of this
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Agreement") shall commence as of January 1, 2000, and shall continue through
December 31, 2001. On the second and each successive anniversary of the
effective date of this Agreement, the Term of this Agreement shall be extended
for an additional one (1) year period, unless either party gives notice of such
party's intent not to extend the Term of this Agreement not later than ninety
(90) days prior to the end of the then current Term of this Agreement.
Termination of the Executive's employment pursuant to this Agreement shall be
governed by Article 4 and Article 5.
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2.2 Duties. The Executive shall be employed as the President and Chief
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Executive Officer of the Company, reporting to the Company's Board of Directors
and assuming and discharging such responsibilities as are commensurate with the
Executive's position. The Executive shall perform his duties faithfully and to
the best of his ability and shall devote his full business time and effort to
the performance of his duties hereunder. The Executive shall be responsible
for the implementation of the policies of the Company, as determined and
directed by the Board of Directors and for the implementation and administration
of the business affairs of the Company.
2.3 Location. The duties of the Executive shall be performed at such
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locations and places as may be directed by the Board of Directors; provided,
however, that the Executive shall not be required to relocate from the Memphis,
Tennessee M.S.A. without the consent of the Executive.
ARTICLE 3
COMPENSATION AND BENEFITS
3.1 Base Compensation. The Company shall pay the Executive a base salary
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("Base Salary") of Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00)
per annum, subject to applicable withholdings. Base Salary shall be payable
according to the customary payroll practices of the Company but in no event less
frequently than once each month. The Base Salary shall be reviewed annually and
shall be subject to increase according to the policies and practices adopted by
the Board of Directors from time to time; provided, however, that in no event
shall the Base Salary be decreased.
3.2 Annual Performance Bonus. The Company shall pay the Executive annual
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incentive compensation (each an "Annual Incentive Award") of up to one hundred
percent (100%) of his Base Salary, in accordance with policies and based on
performance targets established annually by the Compensation Committee of the
Board of Directors. The Annual Incentive Award and performance targets for
earning the Annual Incentive Award for the period beginning on the effective
date hereof and ending on December 31, 2000 are attached hereto as Schedule 3.2
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and are incorporated herein by this reference. At such time as the Compensation
Committee establishes new levels for incentive awards and new targets, Schedule
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3.2 shall be updated to reflect the new criteria set forth by the Compensation
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Committee; provided, however, that Schedule 3.2 shall not be amended more than
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one time per year.
3.3 Stock Options. Contemporaneously with the execution of this
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Agreement, the Company shall enter into that certain Incentive Stock Option
Agreement between the Company and the Executive (the "ISO Agreement"), which
shall be in substantially the form attached hereto as Exhibit 3.3.
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3.4 Additional Benefits. The Executive shall be entitled to participate
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in all employee benefit plans or programs and receive all benefits and
perquisites to which salaried employees are eligible under any existing or
future plan or program established by the Company for salaried employees. The
Executive shall participate to the extent permissible under the terms and
provisions
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of such plans or programs in accordance with applicable program provisions.
These may include group hospitalization, health, dental care, life or other
insurance, tax qualified pension, car allowance, savings, thrift and profit
sharing plans, termination pay programs, sick leave plans, travel or accident
insurance, disability insurance, and contingent compensation plans, including
capital accumulation programs, restricted stock programs, stock purchase
programs and stock options plans. Nothing in this Agreement shall preclude the
Company from amending or terminating any of the plans or programs applicable to
salaried employees or senior executives. The Executive shall be entitled to an
annual paid vacation as established by the Board of Directors.
3.5 Life Insurance. For so long as the Executive is employed by the
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Company, the Company, at no cost to the Executive (other than taxes owed as a
result of the provision of such insurance), shall pay annually up to the lesser
of (i) Five Thousand Dollars ($5,000.00) in life insurance premiums or (ii) the
amount of premium required to obtain a life insurance policy on the life of the
Executive with a death benefit equal to twice the Executive's Base Salary for
the year prior to the year in which such policy is procured. The
beneficiary(ies) under the Policy shall be designated by the Executive.
3.6 Business Expenses. The Company shall reimburse the Executive for all
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reasonable travel and other expenses incurred by the Executive in connection
with the performance of his duties and obligations under this Agreement to the
extent the same shall be properly documented in accordance with the Company's
policies and rules of the Internal Revenue Service.
3.7 Withholding. The Company may directly or indirectly withhold from any
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payments under this Agreement all federal, state, city or other taxes that shall
be required pursuant to any law or governmental regulation.
ARTICLE 4
DEATH AND DISABILITY
4.1 Death of Executive. In the event of the death of the Executive during
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the Term of this Agreement, this Agreement shall terminate and the Company's
obligation to make payments under this Agreement shall cease as of the date of
death, except for earned but unpaid Base Salary and Annual Incentive Awards,
which would be payable on a pro-rated basis for the year in which death
occurred, through the date of death.
4.2 Disability of Executive. Notwithstanding the disability of the
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Executive, the Company shall continue to pay the Executive pursuant to Article 3
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hereof during the Term of this Agreement, unless the Executive's employment is
earlier terminated in accordance with this Agreement. In the event the
disability continues for a period of three (3) months, the Company may
thereafter terminate this Agreement and the Executive's employment. Following
such termination, the Company shall pay the Executive amounts equal to his
regular installments of Base Salary, as of the date of termination, for a period
of six (6) months. All other compensation shall cease except for earned but
unpaid Annual Incentive Awards which would be payable on a pro-rated basis for
the year in which the disability occurred, through the date of termination.
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4.3 Responsibilities of Executive in the Event of Disability. During the
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period the Executive is receiving payments following his disability and as long
as he is physically and mentally able to do so, the Executive shall furnish
information and assistance to the Company and from time to time shall make
himself available to the Company to undertake assignments consistent with his
position or prior position with the Company and his physical and mental health.
If the Company continuously fails to make payments or provide benefits required
as part of this Agreement, the Executive's obligation to provide information and
assistance shall end.
4.4 Definition of Disability. For purposes of this Agreement, the term
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"disability" shall have the same meaning as is ascribed to such term, or any
substantially similar term, in the Company's long term income disability plan as
in effect from time to time or if no such plan exists, the meaning ascribed to
such term in Section 22(e)(3) of the Internal Revenue Code of 1986, as amended
(the "Code").
ARTICLE 5
TERMINATION OF EMPLOYMENT OTHER THAN FOR DEATH OR DISABILITY
5.1 Termination Without Cause; Constructive Termination.
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(a) Without a Change in Control. If the Executive suffers a Termination
Without Cause (hereinafter defined) or Constructive Termination (hereinafter
defined) and a Change in Control (hereinafter defined) shall not have occurred
within one (1) year prior thereto, the Company shall pay to the Executive upon
such termination a lump sum in an amount equal to the sum of the Executive's (i)
earned but unpaid Base Salary, if any, for the current fiscal year through the
date of termination; (ii) earned but unpaid Annual Incentive Award, if any, for
the current fiscal year through the date of termination; (iii) annual Base
Salary as in effect at the date of the termination; and (iv) the average of the
Annual Incentive Award paid to the Executive for the two (2) immediately
preceding completed fiscal years of the Company. For six (6) months following
such Termination Without Cause or Constructive Termination, the Company shall
reimburse the Executive for the cost of the Executive's major medical health
insurance as in effect at the date of termination. The exercisability of stock
options granted to the Executive shall be governed by any applicable stock
option agreements and the terms of the respective stock option plans.
(b) Upon a Change in Control. If the Executive suffers a Termination
Without Cause or Constructive Termination at the time of or within one (1) year
following a Change in Control, the Company shall pay to the Executive in a lump
sum upon such termination an amount equal to the sum of the Executive's (i)
earned but unpaid Base Salary, if any, for the current fiscal year through the
date of termination; (ii) earned but unpaid Annual Incentive Award, if any, for
the current fiscal year through the date of termination; (iii) 299% of the
Executive's (A) annual Base Salary as in effect at the date of the termination
plus (B) the average of the Annual Incentive Award for the two (2) immediately
preceding completed fiscal years of the Company. To the extent that such
foregoing amount, when added to any other payment in the nature of compensation
(within the meaning of Section 280G of the Code, and the regulations promulgated
thereunder ("Section 280G")) to or for the benefit of the Executive (or any part
of such amount or other payment) constitutes an "excess
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parachute payment" within the meaning of Section 280G, the amount, if any, of
(A) such "excess parachute payment" multiplied by a fraction, the numerator of
which is the number one (1.00) and the denominator of which is (I) the number
one (1.00) minus (II) the effective tax rate under Section 280G applicable to
the Executive expressed as a decimal, minus (B) the amount of such "excess
parachute payment." For six (6) months following such Termination Without Cause
or Constructive Termination, the Company shall reimburse the Executive for the
cost of the Executive's major medical health insurance as in effect at the date
of termination. The exercisability of stock options granted to the Executive
shall be governed by any applicable stock option agreements and the terms of the
respective stock option plans.
(c) No Obligation to Mitigate. In the event the Executive's employment is
Terminated Without Cause or the Executive suffers a Constructive Termination,
the Executive shall have no duty to seek other employment and there shall be no
offset against any amounts due to the Executive pursuant to this Section 5.1
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attributable to any subsequent employment that the Executive may accept.
5.2 Termination with Cause; Voluntary Termination. If the Executive
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suffers a Termination with Cause (hereinafter defined) or the Executive
voluntarily terminates his employment with the Company (a "Voluntary
Termination"), then, whether or not there has been a Change in Control, the
Company shall not be obligated to pay the Executive any amounts of compensation
or benefits following the date of termination. However, earned but unpaid Base
Salary through the date of termination shall be paid in a lump sum at such time,
and the earned but unpaid Annual Incentive Award, if any, for the year during
which such termination occurs shall be pro rated for the portion of the year
prior to the date of termination and paid in accordance with the Company's
customary practice for payment of incentive compensation.
5.3 Definitions. For purposes of this Article 5, the following terms have
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the following meanings:
(a) A "Change in Control" shall occur if an event or series of events
occurs after the effective date of this Agreement which would constitute either
a change in ownership of the Company, within the meaning of Section 280G, or a
change in the ownership of a substantial portion of the Company's assets, within
the meaning of Section 280G, but for purposes of this definition, the fair
market value threshold for determining "substantial portion of the Company's
assets" shall be "greater than 50%."
(b) "Constructive Termination" means termination of the Executive's
employment by the Executive (i) as a result of a declined reassignment of a job
that is not the equivalent of his then current position as set forth herein (in
responsibility, compensation or geographic area of service, or (ii) on account
of conduct by the Company or the Board that constitutes continuous and material
interference by the Company or the Board with the Executive's performance of his
duties as set forth in Article 2. The Executive shall have a period of one (1)
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year after termination of his employment to assert against the Company that he
has suffered a Constructive Termination, and after the
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expiration of such one year period, the Executive shall be deemed to have
irrevocably waived the right to such assertion.
(c) "Termination With Cause" means termination of the Executive's
employment by the Company, acting in good faith, by written notice to the
Executive specifying the event relied upon for such termination, due to (i) the
Executive's conviction for a felony or a crime involving moral turpitude or the
commission of any other act or omission involving dishonesty or fraud with
respect to the Company or any affiliate or any of their respective customers or
suppliers; (ii) conduct tending to bring the Company or any of its affiliates
into substantial public disgrace or disrepute; (iii) the Executive's theft,
embezzlement, misappropriation of or intentional infliction of material damage
to the Company's property or business opportunities; (iv) the Executive's
intentional breach of the noncompetition provisions of this Agreement; or (v)
the Executive's repeated neglect of or failure to perform his duties hereunder
or his ongoing willful failure or refusal to follow any reasonable, unambiguous
duly adopted written directive of the Board of Directors or any duly constituted
committee thereof that is not inconsistent with the description of the
Executive's duties set forth in this Agreement.
(d) "Termination Without Cause" means termination of the Executive's
employment by the Company other than due to the Executive's death or disability
or Termination With Cause.
ARTICLE 6
OTHER DUTIES OF THE EXECUTIVE DURING
AND AFTER THE TERM OF THIS AGREEMENT
6.1 Additional Information. The Executive shall, upon reasonable notice,
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during or after the Term of this Agreement, furnish information as may be in his
possession and cooperate with the Company as may reasonably be requested in
connection with any claims or legal actions in which the Company is or may
become a party. After the Term of this Agreement, the Executive shall be
entitled to receive reasonable compensation for the time expended by him
pursuant to this Section 6.1.
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6.2 Confidentiality.
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(a) Access to and Use of Confidential Information. The Executive agrees
and acknowledges that through the nature of his work, he shall have access to
and shall acquire information and knowledge concerning the business and
operations of the Company and its affiliates including, without limitation, any
and all trade secrets concerning the business and affairs of the Company and its
affiliates, product specifications, data, know-how, formulae, compositions,
processes, designs, sketches, photographs, graphs, drawings, samples, inventions
and ideas, past, current, and planned research and development, current and
planned manufacturing or distribution methods and processes, customer lists,
current and anticipated customer requirements, price lists, market studies,
business plans, computer software and programs (including object code and source
code), computer software and database technologies, systems, structures, and
architectures (and related formulae, compositions, processes, improvements,
devices, know-how, inventions,
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discoveries, concepts, ideas, designs, methods and information, and any other
information, however documented), and other items that are trade secrets within
the meaning of any applicable law; information concerning the business and
affairs of the Company and its affiliates (which includes historical financial
statements, financial projections and budgets, historical and projected sales,
capital spending budgets and plans, the names and backgrounds of key personnel,
personnel training and techniques and materials, however documented; and notes,
analysis, compilations, studies, summaries, and other material prepared by or
for the Company or its affiliates containing or based on, in whole or in part,
any information included in the foregoing (collectively, "Confidential
Information"). The Executive acknowledges that all such Confidential Information
is the property of the Company and its affiliates solely and constitutes
valuable, proprietary and confidential information of the Company and its
affiliates; that the disclosure thereof would cause substantial loss to the
goodwill of the Company and its affiliates; that disclosure thereof to the
Executive is being made only because of the position of trust and confidence
which he shall occupy and because of his agreement to the restrictions herein
contained. The Executive shall not during the Term of this Agreement or
thereafter, except to the extent reasonably necessary in the performance of his
duties under this Agreement, give to any person, firm, association, corporation,
entity or governmental agency any information concerning the affairs, business,
clients, customers or other relationships of the Company except as required by
law. The Executive shall not make use of this type of information for his own
purposes or for the benefit of any person, entity or organization other than the
Company. The Executive shall also use his best efforts to prevent the disclosure
of this information by others. All records, memoranda, etc. relating to the
business of the Company whether made by the Executive or otherwise coming into
his possession are confidential and shall remain the property of the Company.
None of the foregoing obligations and restrictions applies to any part of the
Confidential Information that the Executive demonstrates was or became generally
available to the public other than as a result of a disclosure by the Executive.
(b) Proprietary Items. The Executive shall not remove from the Company's
premises (except to the extent such removal is for purposes of the performance
of the Executive's duties at home or while traveling, or except as otherwise
specifically authorized by the Company) any document, record, notebook, plan,
model, component, device, or computer software or code, whether embodied in a
disk or in any other form (collectively, the "Proprietary Items"). The Executive
recognizes that, as between the Company and the Executive, all of the
Proprietary Items, whether or not developed by the Executive, are the exclusive
property of the Company. Upon termination of this Agreement by either party, or
upon the request of the Company during the Term, the Executive shall return to
The Company all of the Proprietary Items in the Executive's possession or
subject to the Executive's control, and the Executive shall not retain any
copies, abstracts, sketches, or other physical embodiment of any of the
Proprietary Items.
(c) Disputes or Controversies. The Executive recognizes that should a
dispute or controversy arising from or relating to this Agreement be submitted
for adjudication to any court, arbitration panel, or other third party, the
preservation of the secrecy of Confidential Information may be jeopardized. The
Executive and the Company shall use their best efforts to cause all pleadings,
documents, testimony, and records relating to any such adjudication to be
maintained in secrecy and to make the same available for inspection by the
Company, the Executive, and their
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respective attorneys and experts, who shall agree, in advance and in writing, to
receive and maintain all such information in secrecy, except as may be limited
by them in writing.
6.3 Noncompetition.
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(a) During the Term of Employment. The Executive shall not Compete with
the Company (hereinafter defined) at any time while he is employed by the
Company or receiving payments from the Company.
(b) Voluntary Termination; Termination With Cause. In the event of a
Voluntary Termination or a Termination With Cause, the Executive shall not
Compete with the Company for a period consisting of the longer of (i) the
remaining Term of this Agreement or (ii) one (1) year; provided that if a
Voluntary Termination follows a notice by the Company under Section 2.1 that the
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Term of this Agreement shall not be automatically extended, there shall be no
restriction on the Executive's right to Compete with the Company after the date
his employment terminates.
(c) Termination Without Cause; Constructive Termination. In the event of a
Termination Without Cause or Constructive Termination, the Executive shall not
Compete with the Company for the shorter of (i) the then remaining Term of this
Agreement or (ii) one year from the date of such termination.
(d) Definition of "Compete" with the Company. For the purposes of this
Article 6, the term "Compete with the Company" means action by the Executive,
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direct or indirect, for his own account or for the account of others, to: (i)
engage or invest in, own, manage, operate, finance, control, or participate in
the ownership, management, operation, financing, or control of, be employed by,
associated with, or in any manner connected with, lend the Executive's name or
any similar name to, lend the Executive's credit to or render services or advice
to, any business whose products or activities compete in whole or in part with
the products or activities of the Company anywhere within a fifty (50) mile
radius of any location where the Company or any affiliate of the Company
performs such services at the date of a termination of the Executive's
employment or has performed such services within one year prior to such
termination of employment; provided, however, that Employee may purchase or
otherwise acquire up to (but not more than) 4.99 percent of any class of
securities of any enterprise (but without otherwise participating in the
activities of such enterprise) if such securities are listed on any national or
regional securities exchange or have been registered under Section 12(g) of the
Securities Exchange Act of 1934; (ii) solicit business of the same or similar
type being carried on by the Company, from any person or entity known by the
Executive to be a customer of the Company or its affiliates, whether or not the
had personal contact with such person during and by reason of the Executive's
employment with the Company; (iii) solicit, employ, or otherwise engage as an
employee, independent contractor, or otherwise, any person who is an employee of
the Company or its affiliates or in any manner induce or attempt to induce any
employee of the Company or its affiliates to terminate his or her employment
with the Company or its affiliates; (iv) interfere with the Company's or its
affiliates' relationship with any person or entity, including any person or
entity who at any time during the Term was an employee, contractor, supplier, or
customer of the Company or its affiliates; or (v)
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(e) Reasonableness of Scope and Duration. The Executive acknowledges that:
(i) the services to be performed by him under this Agreement are of a special,
unique, unusual, extraordinary, and intellectual character; (ii) the Company's
business is national in scope and its products are marketed throughout the
United States; (iii) the Company competes with other businesses that are or
could be located in any part of the United States; and (iv) the covenants
contained in this Section 6.3 are reasonable as to geographic and temporal
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scope.
6.4 Injunctive Relief and Additional Remedy. The Executive acknowledges
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that the injury that would be suffered by the Company as a result of a breach of
the provisions of this Agreement (including any provision of Article 6) would be
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irreparable and that an award of monetary damages to the Company for such a
breach would be an inadequate remedy. Consequently, the Company shall have the
right, in addition to any other rights it may have, to obtain injunctive relief
to restrain any breach or threatened breach or otherwise to specifically enforce
any provision of this Agreement, and the Company shall not be obligated to post
bond or other security in seeking such relief. Without limiting the Company's
rights under this Section 6.4 or any other remedies of the Company, if the
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Executive breaches any of the provisions of Article 6, the Company shall have
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the right to cease making any payments otherwise due to the Executive under this
Agreement.
6.5 Covenants of Section 6.2 and Section 6.3 are Essential and Independent
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Covenants. The covenants by the Executive in Section 6.2 and Section 6.3 are
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essential elements of this Agreement, and without the Executive's agreement to
comply with such covenants, the Company would not have entered into this
Agreement or employed or continued the employment of the Executive. The Company
and the Executive have independently consulted their respective counsel and have
been advised in all respects concerning the reasonableness and propriety of such
covenants, with specific regard to the nature of the business conducted by the
Company, the Executive's covenants in Section 6.2 and Section 6.3 are
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independent covenants and the existence of any claim by the Executive against
the Company under this Agreement or otherwise, shall not excuse the Executive's
breach of any covenant in Section 6.2 or Section 6.3. If the Executive's
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employment hereunder expires or is terminated, this Agreement shall continue in
full force and effect as is necessary or appropriate to enforce the covenants
and agreements of the Executive in Section 6.2 and Section 6.3.
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ARTICLE 7
CONSOLIDATION, MERGER OR SALE OF ASSETS
Nothing in this Agreement shall preclude the Company from consolidating or
merging into or with, or transferring all or substantially all of its assets to,
another corporation or organization which assumes this Agreement and all
obligations and undertakings of the Company hereunder. Upon such a
consolidation, merger or sale of assets, the term "the Company" as used herein
shall mean or include the other corporation or organization and this Agreement
shall continue in full force and effect. This Article 7 is not intended to
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modify or limit the rights of the Executive hereunder.
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ARTICLE 8
MISCELLANEOUS
8.1 Entire Agreement. This Agreement contains the entire understanding
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between the Company and the Executive and supersedes any prior employment or
severance agreements between the Company and its affiliates, and the Executive.
8.2 Amendment; Waiver. This Agreement may not be modified or amended
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except in writing signed by the parties. No term or condition of this Agreement
shall be deemed to have been waived except in writing by the party charged with
waiver. A waiver shall operate only as to the specific term or condition waived
and shall not constitute a waiver for the future or act on anything other than
that which is specifically waived.
8.3 Severability; Modification of Covenant. Should any part of this
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Agreement be declared invalid for any reason, such invalidity shall not affect
the validity of any remaining portion hereof and such remaining portion shall
continue in full force and effect as if this Agreement had been originally
executed without including the invalid part. Should any covenant of this
Agreement be unenforceable because of its geographic scope or term, its
geographic scope or term shall be modified to such extent as may be necessary to
render such covenant enforceable.
8.4 Effect of Captions. Titles and captions in no way define, limit,
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extend or describe the scope of this Agreement nor the intent of any provision
thereof.
8.5 Counterpart Execution. This Agreement may be executed in any number
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of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.6 Governing Law. This Agreement has been executed and delivered in the
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State of Tennessee and its validity, interpretation, performance and enforcement
shall be governed by the laws of that state. Any dispute among the parties
hereto shall be settled by arbitration in Memphis, Tennessee, in accordance with
the rules then obtaining of the American Arbitration Association and judgment
upon the award rendered may be entered in any court having jurisdiction thereof.
All provisions hereof are for the protection and are intended to be for the
benefit of the parties hereto and enforceable directly by and binding upon each
party. Each party hereto agrees that the remedy at law of the other for any
actual or threatened breach of this Agreement would be inadequate and that the
other party shall be entitled to specific performance hereof or injunctive
relief or both, by temporary or permanent injunction or such other appropriate
judicial remedy, writ or orders as may be decided by a court of competent
jurisdiction in addition to any damages which the complaining party may be
legally entitled to recover together with reasonable expenses of litigation,
including attorney's fees incurred in connection therewith, as may be approved
by such court.
8.7 Notices. All notices, requests, consents and other communications
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hereunder shall be in writing and shall be deemed to have been made when
delivered or mailed first-class postage
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prepaid by registered mail, return receipt requested, or when delivered if by
hand, overnight delivery service or confirmed facsimile transmission, to the
following:
(a) If to the Company, at 70 Timber Creek Drive, Suite 5, Cordova,
Tennessee 38018 or at such other address as may have been furnished to
the Executive by the Company in writing; or
(b) If to the Executive, at 2669 Halle Parkway, Collierville, Tennessee
38017 or such other address as may have been furnished to the Company
by the Executive in writing.
Either party hereto may change such party's address for notices by notice duly
given pursuant hereto.
8.8 Binding Agreement. This Agreement shall be binding on the parties'
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successors, heirs and assigns.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
MASTER GRAPHICS, INC.
By: /s/ Michael B. Bemis
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Name: Michael B. Bemis
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Title: Chairman
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EXECUTIVE:
/s/ Robert J. Diehl
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Robert J. Diehl
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Schedule 3.2
Annual Performance Bonus for Year Ended December 31, 2000
Pursuant to Section 3.2 of the Employment Agreement between Master Graphics,
Inc. and Robert J. Diehl, the Compensation Committee of the Board of Directors
of Master Graphics has set Mr. Diehl's maximum Annual Incentive Award at 100% of
his current Base Salary, or $250,000. The Annual Incentive Award shall be
earned based upon satisfaction of the following criteria:
1. 12.5% ($31,250) shall be earned if the Company achieves Target 1 (break-
even cash flow for first quarter ended March 31, 2000)
2. 12.5% ($31,250) shall be earned if the Company achieves Target 2 (book
profitability for the quarter ended September 30,2000);
3. 25% ($62,500) shall be earned if the Company has sufficient funds available
under its existing credit facility (or a replacement facility) and under
the terms of the Indenture to make the interest payment on the Senior Notes
required to be made on June 1, 2000 or if the Company is not legally
required to make an interest payment on the Senior Notes on June 1, 2000;
4. 25% ($62,500) shall be earned if the Company restructures its debt or
recapitalizes during 2000 in such a fashion as to decrease the Company's
annualized interest costs by at least 20% from January 2000 levels; and
5. 25% ($62,500) shall be earned if the Company achieves $37.5 million of
EBITDA and $2.5 million in pre-tax profit for the year ended December 31,
---
2000.
All Annual Incentive Awards shall be payable on or before ninety (90) days
following the date upon which such Annual Incentive Award is conclusively
determined to be earned.
Schedule 3.2 - 1
<PAGE>
Exhibit 3.3
INCENTIVE STOCK OPTION
This INCENTIVE STOCK OPTION AGREEMENT (this "Option Agreement"), dated as
of the 22nd day of February, 2000 (the "Date of Grant"), by and between Master
Graphics, Inc., a Tennessee corporation (the "Company"), and Robert J. Diehl
(the "Optionee"). Any capitalized terms not defined herein shall have their
respective meanings set forth in the Plan.
WHEREAS, the Board of Directors of the Company (the "Board") has adopted
and the shareholders of the Company have approved the Company's 1998 Equity
Compensation Plan (the "Plan") pursuant to which the Committee is authorized to
grant key employees of the Company and its Subsidiaries incentive stock options
to purchase shares of the Company's common stock, par value $.001 per share (the
"Common Stock");
WHEREAS, the Committee appointed by the Board, as the Administrator of the
Plan, has determined that the Optionee is to be granted an incentive option to
purchase shares of the Company's Common Stock, on the terms and conditions set
forth herein; and
WHEREAS, It is intended that the Option constitute an "incentive stock
option" within the meaning of Section 422 of the Internal Revenue Code of 1986,
as amended (the "Code").
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and
agreements contained here in, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Grant of Option. Subject to the terms and conditions hereinafter set
---------------
forth, the Company, with the approval and at the direction of the Committee,
hereby grants to the Optionee, as of the Date of Grant, an option to purchase up
to 100,000 shares of Common Stock at a price of $.8125 per share (the "Exercise
Price"), which price is at least equal to the Fair Market Value of the Common
Stock on the Date of Grant. Such option is hereinafter referred to as the
"Option" and the shares of Common Stock purchasable upon exercise of the Option
are hereinafter referred to as the "Option Shares."
2. Incentive Stock Option. The Option is granted under the Plan and is
----------------------
intended to qualify as, and shall be treated by the parties hereto as, an
incentive stock option as that terms is used in Section 422 of the Code. The
Option is subject to the terms and conditions set forth in the Plan.
3. Vesting.
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(a) Subject to such further limitations as are provided herein, upon the
continuous employment of the Optionee by the Company through the applicable date
indicated below, the Option shall vest and become exercisable in four (4)
installments, the Optionee having the right
Exhibit 3.3-1
<PAGE>
hereunder to purchase from the Company the following number of Option Shares
upon exercise of the Option:
(i) on and after June 30, 2000, up to twenty-five percent (25%) of
the total number of Option Shares;
(ii) on and after December 31, 2000, up to fifty percent (50%) of the
total number of Option Shares;
(iii) on and after June 30, 2001, up to seventy-five percent (75%)
of the total number of Option Shares; and
(iv) on and after December 31, 2001, up to one hundred percent (100%)
of the total number of Option Shares.
(b) In the event Optionee's employment by the Company is terminated (i) by
the Company in a Termination Without Cause, as such term is defined in that
certain employment agreement dated of even date herewith between the Company and
the Optionee (the "Employment Agreement") or (ii) by the Optionee in a
Constructive Termination, as such term is defined in the Employment Agreement,
one hundred percent (100%) of the Option Shares shall vest immediately upon any
such termination.
(c) In the event Optionee's employment by the Company is terminated as a
result of the death or Disability, as defined in the Employment Agreement, of
the Optionee, one hundred percent (100%) of the Option Shares shall vest
immediately upon any such termination.
(d) In the event Optionee's employment by the Company is terminated as a
result of (i) by the Company in a Termination for Cause, as defined in the
Employment Agreement; or (ii) by the Optionee as a Voluntary Termination, as
defined in the Employment Agreement, the Option to the extent not previously
vested pursuant to Section 3(a) shall terminate and become null and void
------------
immediately upon such termination of the Optionee's employment.
4. Termination of Option.
---------------------
(a) The Option and all rights hereunder with respect thereto, to the extent
such rights shall not have been exercised, shall terminate and become null and
void after the expiration of ten (10) years from the Date of Grant (the "Option
Term").
(b) Upon a termination of the Optionee's employment with the Company, the
Option may be exercised during the following periods, but only to the extent
that the Option was vested and exercisable on the date of termination:
Exhibit 3.3 - 2
<PAGE>
(i) the one-year period following the date of termination of the
Optionee's employment by the Company in the case of a termination for
Disability, as defined in the Employment Agreement;
(ii) the six-month period following the date of issuance of letters
testamentary or letters of administration to the executor or administrator
of the Optionee's estate, in the case of the Optionee's death during his
employment by the Company, but not later than one-year after the Optionee's
death; and
(iii) the three-month period following the date of any other
termination of the Optionee's employment by the Company.
(iv) In no event however, shall any such period described in this
Section 4(b) extend beyond the Option Term.
------------
(c) After termination of the Optionee's employment by the Company, any
portion of the Option not exercised within the time periods provided in Section
-------
4(b) shall become immediately null and void.
----
5. Nontransferability of Option. This Option shall not be transferable
----------------------------
by the Optionee otherwise than by the Optionee's will or by the laws of descent
and distribution. During the lifetime of the Optionee, the Option shall be
exercisable only by him. Any heir or legatee of the Optionee shall take rights
herein granted subject to the terms and conditions hereof. No such transfer of
this Option Agreement to heirs or legatees of Optionee shall be effective to
bind the Company unless the Company shall have been furnished with written
notice thereof and a copy of such evidence as the Committee may deem necessary
to establish the validity of the transfer and the acceptance by the transferee
or transferees of the terms and conditions hereof.
6. Method of Exercise of Option. The vested portion of the Option may be
----------------------------
exercised by written notice by the Optionee to the Secretary of the Company
setting forth the number of Option Share with respect to which the Option is to
be exercised accompanied by payment for the shares to be purchased, and
specifying the address to which the certificate for such Option Shares is to be
mailed. The notice shall be accompanied by one or a combination of the
following payment methods, equal in value to the aggregate Exercise Price: (i)
cash, personal check, cashier's check, bank draft, or postal or express money
order payable to the order of the Company, (ii) certificates representing freely
transferable shares of Common Stock owned by the Optionee duly endorsed for
transfer to the Company, or (iii) a written election by Optionee to transact a
"cashless exercise" as described in the Plan. Notice may also be delivered by
facsimile provided that the Exercise Price of the Option Shares is received by
the Company via wire transfer on the same day the facsimile transmission is
received by the Company. An option to purchase Option Shares in accordance with
the Plan shall be deemed to have been exercised immediately prior to the close
of business on the date (i) written notice of such exercise and (ii) payment in
full of the Exercise Price for the number of Option Shares for which the Option
is being exercised, are both received by the Company, and the Optionee shall be
treated for all purposes as the record holder of such Option Shares as of such
Exhibit 3.3 - 3
<PAGE>
date. As promptly as practicable after receipt of such written notice and
payment, the Company shall deliver to the Optionee certificates for the number
of shares with respect to which the Option has been so exercised, issued in the
Optionee's name or such other name as the Optionee directs; provided, however,
that such delivery shall be deemed effective for all purposes when a stock
transfer agent of the Company shall have deposited such certificates in the
United States mail, addressed to Optionee at the address specified herein.
7. Notices. All notices, requests, consents and other communications
-------
hereunder shall be in writing and shall be deemed to have been made when
delivered or mailed first-class postage prepaid by registered mail, return
receipt requested, or when delivered if by hand, overnight delivery service or
confirmed facsimile transmission, to the following:
(a) If to the Company, at 70 Timber Creek Drive, Suite 5, Cordova,
Tennessee 38018 or at such other address as may have been furnished to
the Executive by the Company in writing; or
(b) If to the Executive, at 2669 Halle Parkway, Collierville, Tennessee or
such other address as may have been furnished to the Company by the
Executive in writing.
Either party hereto may change such party's address for notices by notice duly
given pursuant hereto.
8. Securities Laws Requirements. The Option shall not be exercisable to
----------------------------
any extent, and the Company shall not be obligated to transfer any Option Shares
to the Optionee upon exercise of such Option, if such exercise, in the opinion
of counsel for the Company, would violate the Securities Act (or any other
federal or state statutes having similar requirements as may be in effect at
that time).
9. Protections Against Violations of Agreement. No purported sale,
-------------------------------------------
assignment, mortgage, hypothecation, transfer, pledge, encumbrance, gift,
transfer in trust (voting or other) or other disposition of, or creation of a
security interest in or lien on, any of the Option Shares by any holder thereof
in violation of the provisions of this Agreement or the Charter or the Bylaws of
the Company, will be valid, and the Company will not transfer any of said Option
Shares on its books nor will any of said Option Shares be entitled to vote, nor
will any dividends be paid thereon, unless and until there has been full
compliance with said provisions to the satisfaction of the Company. The
foregoing restrictions are in addition to and not in lieu of any other remedies,
legal or equitable, available to enforce said provisions.
10. Withholding Requirements. The Company's obligations under this Option
------------------------
Agreement shall be subject to all applicable tax and other withholding
requirements, and the Company shall, to the extent permitted by law, have the
right to deduct any withholding amounts from any payment or transfer of any kind
otherwise due to the Optionee.
Exhibit 3.3 - 4
<PAGE>
11. Failure to Enforce Not a Waiver. The failure of the Company to
-------------------------------
enforce at any time any provision of this Option Agreement shall in no way be
construed to be a waiver of such provision or of any other provision hereof.
12. Governing Law. This Option Agreement shall be governed by and
-------------
construed according to the laws of the State of Tennessee without regard to its
principles of conflict of laws.
13. Incorporation of Plan. The Plan is hereby incorporated by reference
---------------------
and made a part hereof, and the Option and this Option Agreement shall be
subject to all terms and conditions of the Plan.
14. Amendments. This Option Agreement may be amended or modified at any
----------
time only by an instrument in writing signed by each of the parties hereto.
15. No Rights as a Stockholder. Neither the Optionee nor any of the
--------------------------
Optionee's successors in interest shall have any rights as a stockholder of the
Company with respect to any shares of Common Stock subject to the Option until
the date of issuance of a stock certificate for such shares of Common Stock.
16. Agreement Not a Contract of Employment. Neither the Plan, the granting
--------------------------------------
of the Option, this Option Agreement nor any other action taken pursuant to the
Plan shall constitute or be evidence of any agreement or understanding, express
or implied, that the Optionee has a right to continue to provide services as an
officer, director, employee, consultant or advisor of the Company or any
affiliate of the Company for any period of time or at any specific rate of
compensation.
[The remainder of this page is intentionally left blank]
Exhibit 3.3 - 5
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Option Agreement on the day and year first above written.
MASTER GRAPHICS, INC.
By
---------------------------
Name
-------------------------
Title
------------------------
Accepted and Agreed:
-----------------------------
Robert J. Diehl
Exhibit 3.3 - 6