RETENTION BONUS
AGREEMENT dated as of April 19, 2007, between AMERICAN COLOR
GRAPHICS, INC., a New York corporation (the “ Company
”), and
(the “ Executive ”).
WHEREAS, the
Company desires to provide the Executive with additional incentives
to remain in the employ of the Company through March 31, 2008,
on the terms and conditions set forth herein, and the Executive
desires to continue such employment on the terms and conditions set
forth herein;
NOW, THEREFORE, in
consideration of the covenants and agreements hereinafter set forth
and for other good and valuable consideration, the parties hereto
agree as follows:
1.1.
Special Retention Bonus . In consideration of the Executive
entering into this Agreement, not later than three business days
after the execution and delivery of this Agreement, the Company is
paying the Executive a special retention bonus of $___ in cash. If
the Executive resigns without Good Reason, or the Company
terminates the Executive’s employment for Cause, prior to
April 1, 2008, the Executive agrees to repay such special
retention bonus to the Company within five business days of the
date of his resignation, together with interest from the date the
Executive received the bonus (calculated at the prime rate as
published in the Wall Street Journal on the date the Executive
received the bonus) to the date of repayment. The Company
acknowledges that the special retention bonus is in addition to,
and not in lieu of, any regular incentive bonus plan in which the
Executive may participate during the 2008 fiscal year. This
Agreement does not constitute an agreement by the Company to
continue to employ you.
1.2.
Cause . Termination for “ Cause ” shall
mean termination of the Executive’s employment because
of:
(a)
any act or omission that constitutes a material breach by the
Executive of any of his obligations under this
Agreement;
(b)
the continued willful failure or refusal of the Executive to
substantially perform the duties reasonably required of him as an
employee of the Company;
(c)
any willful and material violation by the Executive of any Federal
or state law or regulation applicable to the business of the
Company, Parent or any of their respective subsidiaries, or the
Executive’s conviction of a felony, or any willful
perpetration by the Executive of a common law fraud that is
materially injurious to the Company; or
(d)
any other willful misconduct by the Executive which is materially
injurious to the financial condition or business reputation of, or
is otherwise
materially
injurious to, the Company, the Parent or any of their respective
subsidiaries or affiliates;
provided , however , that (x) the good faith
performance by the Executive of the duties required of him pursuant
to this Agreement, or (y) any act or omission of the Executive
based upon authority given by or pursuant to an action of the Board
or upon the advice of counsel for the Company, shall be
conclusively presumed not to be willful or to constitute a failure
or refusal on the part of the Executive; provided
further , however , that if any such Cause relates to
the Executive’s obligations under this Agreement, the Company
shall not terminate the Executive’s employment hereunder
unless the Company first gives the Executive written notice of its
intention to terminate and of the grounds for such termination, and
the Executive has not, within 20 business days following receipt of
the notice, cured such Cause, to the reasonable satisfaction of the
Board, or in the event such Cause is not susceptible to cure within
such 20-business day period, the Executive has not taken all
reasonable steps within such 20-business day period to cure such
Cause, to the reasonable satisfaction of the Board, as promptly as
practicable thereafter.
1.3.
Good Reason . For purposes of this Agreement, “
Good Reason ” shall mean any of the following (without
the Executive’s prior written consent):
(a)
a decrease in the Executive’s base rate of compensation or a
failure by the Company to pay material compensation due and payable
to the Executive in connection with his employment;
(b)
a material diminution of the responsibilities or title of the
Executive with the Company;
(c)
the Company’s requiring the Executive to be based at any
office or location more than 20 miles from his principal employment
location on the date of this Agreement, except for any change in
employment location agreed to with the Executive prior to the date
hereof; or
(d)
a material breach by the Company of any term or provision of this
Agreement;
provided , however , that no event or condition
described in clauses (a) through (d) of this Section 1.3
shall constitute Good Reason unless (i) the Executive gives
the Company written notice of his objection to such event or
condition, (ii) such event or condition is not corrected by
the Company within 20 business days of its receipt of such notice
(or in the event that such event or condition is not susceptible to
correction within such 20-business day period, the Company has not
taken all reasonable steps within such 20-business day period to
correct such event or condition as promptly as practicable
thereafter) and (iii) the Executive resigns his employment
with the Company and its subsidiaries not more than 40 business
days following the expiration of the 20-business day period
described in the foregoing clause (ii).
2
2. NO
MITIGATION OR OFFSET
The Executive
shall not be required to mitigate the amount of any payment or
benefit p
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