Exhibit 10.2
EMPLOYMENT AGREEMENT
BETWEEN
MULTI-COLOR CORPORATION
AND
DAWN H. BERTSCHE
Effective as of April 1,
2008
TABLE OF CONTENTS
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Page
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1.
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Employment
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1
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2.
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Term of
Agreement
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1
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3.
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Scope of
Employment; Location
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1
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4.
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Compensation
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2
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4.1
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Base
Salary
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2
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4.2
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Bonus
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2
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4.3
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Restricted
Stock Grant; Stock Option and Restricted Stock Awards
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2
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4.4
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Savings and
Retirement Plan
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2
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4.5
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Welfare and
Other Benefit Plans
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2
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4.6
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Expenses
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3
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4.7
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Fringe
Benefits
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3
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4.8
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Vacation
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3
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4.9
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Indemnity
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3
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5.
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Confidentiality, Non-competition and Other
Covenants
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3
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5.1
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Non-Disclosure
of Confidential Materials, Information and Intellectual
Property
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3
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5.2
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Non-Solicitation of the Company’s
Employees
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4
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5.3
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Covenant
Against Unfair Competition
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4
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5.4
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Return of
Confidential Materials and Information
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5
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5.5
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Irreparable
Harm
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5
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5.6
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Cumulative
Remedies; Enforceability
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5
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5.7
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Reasonableness
of Scope and Duration
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5
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5.8
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Future
Employer
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6
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5.9
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Time
Periods
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6
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6.
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Termination of
Employment
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6
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6.1
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Termination
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6
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6.2
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Date of
Termination
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8
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6.3
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Notice of
Termination
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9
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7.
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Obligations of
the Company Upon Termination
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9
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7.1
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Good Reason,
Other Than For Cause
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9
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-i-
TABLE OF CONTENTS
(continued)
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Page
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7.2
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Cause;
Non-Renewal Under Section 2; Other Than for Good Reason
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11
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7.3
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Death
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11
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7.4
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Disability
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12
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8.
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Consent to
Jurisdiction
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12
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9.
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Miscellaneous
Provisions
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13
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9.1
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Binding Effect;
Delegation of Duties Prohibited; Survival
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13
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9.2
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Amendment;
Waiver
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13
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9.3
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Entire
Agreement
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14
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9.4
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Exemption from,
or Compliance with, Section 409A
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14
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9.5
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Governing
Law
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14
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9.6
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Headings;
Section References; Construction
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14
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9.7
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Notices
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14
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9.8
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Policies,
Regulations and Guidelines for Executives
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15
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9.9
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Severability
and Reformation of Provisions
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15
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9.10
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Taxes
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15
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9.11
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Full
Settlement
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15
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9.12
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Attorneys
Fees
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15
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-ii-
GLOSSARY OF DEFINED
TERMS
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Section
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Additional Term
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2
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Annual Base Salary
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4.1
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Cause
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6.1(c
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Confidential Materials and
Information
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5.1
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Date of Termination
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6.2
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Disability
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6.1(b
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Disability Commencement Date
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6.1(b
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Good Reason
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6.1(d
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Initial Term
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2
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Notice of Termination
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6.3
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Term
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2
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iii
EMPLOYMENT
AGREEMENT
This Employment
Agreement (“Agreement”) is entered into this 19
th
day of September,
2008, by and between Multi-Color Corporation, an Ohio corporation
(“Company”), and Dawn H. Bertsche, an individual
residing at [ADDRESS] (“Executive”).
R ECITALS :
A. Company desires to retain the
services of Executive as its Senior Vice President, Finance and
Chief Financial Officer, and Executive desires to render such
services to the Company.
B. The parties hereto desire to set
forth the terms and conditions of the employment relationship
between the Executive and the Company.
A GREEMENT :
N OW ,
T HEREFORE
, the parties hereby agree as
follows:
1. E MPLOYMENT . The Company hereby employs Executive for the
“Term” (as defined in Section 2), and Executive
accepts employment by the Company and agrees to serve the Company
during the Term, upon the terms and conditions hereinafter set
forth.
2. T ERM OF A GREEMENT . The Initial Term of this Agreement shall
commence on April 1, 2008 and continue in effect until
October 31, 2011 (“Initial Term”), unless sooner
terminated as provided in Section 6. At the end of the Initial
Term, if the Executive is still employed by the Company, this
Agreement shall be renewed automatically for subsequent terms of
one (1) year each until the employment of Executive is
terminated by the Company or Executive by giving notice as provided
in Section 9.7 at least twenty-four (24) months prior to
the end of the Initial Term or any extension thereof (each such
extension period being an “Additional Term” and the
Additional Terms and the Initial Term being collectively the
“Term”).
3. S COPE OF E MPLOYMENT ; L OCATION . During the Term, Executive shall serve as
Senior Vice President, Finance and Chief Financial Officer of the
Company. During the Term, Executive agrees to devote her full
attention and time to the business and affairs of the Company as
may be assigned by the Company’s President and Chief
Executive Officer and to use the Executive’s best efforts to
perform such responsibilities in a professional manner. Executive
shall have all authorities, duties and responsibilities customarily
exercised by an individual serving as Senior Vice President,
Finance and Chief Financial Officer in a corporation of the size
and nature of the Company. It shall not be a violation of this
Agreement for the Executive to (A) serve on corporate, trade
association, civic or charitable boards or committees,
(B) deliver lectures, fulfill speaking engagements or teach at
educational institutions, or (C) manage personal investments
and affairs, so long as such activities do not significantly
interfere with the performance of the Executive’s
responsibilities as an employee of the Company in accordance with
this Agreement. During the Term, Executive shall principally
perform her duties at the Company’s Cincinnati, Ohio office,
except in the event Executive agrees in writing to another
location.
4. C OMPENSATION .
4.1
Base Salary . During
the employment of Executive, the Executive shall receive an Annual
Base Salary. The beginning Annual Base Salary of Executive shall be
Two Hundred Eighty Thousand and 00/100 Dollars ($280,000.00). The
Annual Base Salary shall be reviewed by the Compensation Committee
of the Board annually each April 1 based upon
Executive’s performance, pertinent salary survey information
and such other information as the Compensation Committee deems
appropriate, but may not be adjusted downward without the
Executive’s written consent. After any such increase, the
term “Annual Base Salary” as used in this Agreement
shall thereafter refer to the increased amount. The Annual Base
Salary shall be paid no less frequently than in equal bi-weekly
installments.
4.2
Bonus . Beginning
April 1, 2008 and during the Executive’s employment, the
Executive shall have the opportunity to be paid an annual bonus
(the “Bonus”). The Bonus shall be based upon the
Executive Incentive Compensation Plan adopted by the Compensation
Committee of the Board in April 1998, as amended. In no event shall
the target Bonus opportunity based on achievement of target
performance goals be less than eighty-five percent (85%) of
the then current Annual Base Salary. Executive shall be paid her
Bonus when other executives of the Company are paid their annual
bonuses, but in no event beyond the last day on which such payment
would qualify as a short-term deferral under Treasury Regulation
§ 1.409A-1(b)(4).
4.3 Restricted Stock Grant;
Stock Option and Restricted Stock Awards
. On the day this Agreement is
entered into, the Company shall grant the Executive under the
Company’s 2003 Stock Incentive Plan a restricted stock award
for 26,000 shares of the Company’s common stock. The
restricted stock award shall vest as follows: 1,638 shares shall
vest on April 1, 2009, an additional 3,562 shares shall vest
on April 1, 2010, and the remaining 20,800 shares shall vest
on the last day of the Initial Term. During the Executive’s
employment, Executive may receive additional restricted stock or
stock option awards, as determined by the Board or its committees
from time to time. The foregoing restricted stock award shall
provide that upon the occurrence of any of the following events
such restricted stock shall become fully and immediately vested
with no further restrictions on sale or transferability other than
those mandated by law: (i) the Company terminates the
Executive’s employment other than for Cause during the
Executive’s employment, (ii) upon the Executive’s
death or Disability, (iii) the Executive terminates employment
for Good Reason, (iv) the Executive terminates employment
without Good Reason through a plan of retirement acceptable to the
Company, which will not be unreasonably withheld, (v) the
Executive’s employment is terminated by either the Company or
the Executive for non-renewal under Section 2, or
(vi) upon a Change in Control during Executive’s
employment.
4.4
Savings and Retirement
Plan . During the Executive’s employment, the
Executive shall be eligible to participate in all savings and
retirement plans, practices, policies and programs to the extent
applicable generally to other executives of the Company, including,
without limitation, 401(k) profit sharing retirement savings,
supplemental retirement and deferred compensation plans.
4.5
Welfare and Other Benefit
Plans . During the Executive’s employment, the
Executive and/or the Executive’s family, as the case may be,
shall be eligible for participation in
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and shall receive all benefits under welfare,
fringe, incentive, vacation and other similar benefit plans,
practices, policies and programs provided by the Company
(including, without limitation, medical, prescription drug, dental,
disability, employee life, group life, accidental death and travel
accident insurance plans and programs) to the extent applicable
generally to other executives of the Company.
4.6
Expenses . During the
Executive’s employment, the Executive shall be entitled to
receive prompt reimbursement for all reasonable business expenses
incurred by the Executive and documented as required by regulations
of the Internal Revenue Service.
4.7
Fringe Benefits .
During the Executive’s employment, the Executive shall be
paid each month a car allowance of Six Hundred and 00/100 Dollars
($600.00).
4.8
Vacation . During the
Executive’s employment, the Executive shall be entitled to
paid vacation in accordance with the vacation policy of the
Company, but in no event less than four (4) weeks per
year.
4.9
Indemnity . The
Executive shall be indemnified and held harmless by the Company
against claims arising in connection with the Executive’s
status as an employee, officer, or agent of the Company or any of
its subsidiaries or affiliates. Such indemnification shall be
established to the level of the greatest indemnification permitted
by Ohio law for corporate employees, officers or directors, and
such indemnification shall continue as to the Executive even if she
has ceased to be an employee, officer, or agent of the Company or
other entity and shall inure to the benefit of the
Executive’s heirs and legal representatives. In furtherance
of this protection, during the Executive’s employment and for
a period of at least six years thereafter, the Company shall
continue to provide officers’ and directors’ liability
insurance covering Executive in at least the amount of coverage in
fiscal 2008 for such purposes and in any event provide at least as
much coverage for the Executive as the Company provides for its
other executives or directors of the Company. Nothing in this
Agreement shall operate to limit or extinguish any right to
indemnification, advancement of expenses or contribution that the
Executive (or her heirs and legal representatives) would otherwise
have (including, without limitation, by agreement or under
applicable law).
5. C ONFIDENTIALITY , N ON - COMPETITION AND O THER C OVENANTS . In consideration of Company’s employment
of Executive, Executive does covenant and agree with the Company as
follows:
5.1
Non-Disclosure of Confidential
Materials, Information and Intellectual Property . The
Executive acknowledges that as a leader in the highly-competitive
businesses of printing labels, including but not limited to, inmold
labels, and manufacturing and selling gravure cylinders, the
Company has developed, acquired and implemented confidential
intellectual property, materials and information, proprietary
strategies and programs, which it has taken steps to protect as
trade secrets (as defined in Ohio’s Uniform Trade Secrets
Act, O HIO R EV
. C ODE §§ 1333.61 - 1333.69) and which
include copyrighted materials, patent materials, expansion plans,
market research, sales systems, marketing programs, product
development strategies, budgets, pricing and cost strategies,
identity and requirements of accounts, and other non-public
proprietary information regarding customers and the employees of
the Company or of its customers or non public proprietary
information regarding the Company’s business or
the
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business of the Company’s customers
(collectively “Confidential Materials and
Information”). In performing duties for the Company, the
Executive regularly will be exposed to and work with the
Company’s Confidential Materials and Information. The
Executive acknowledges that such Confidential Materials and
Information are critical to the Company’s success and that
the Company has invested substantial money in developing the
Company’s Confidential Materials and Information. While the
Executive is employed by the Company, and after such employment
ends for any reason, the Executive will not reproduce, publish,
disclose, use, reveal, show, or otherwise communicate to any person
or entity any Confidential Materials and Information of the Company
unless specifically assigned or directed by the Company to do so or
unless it shall have become public knowledge (other than by acts by
the Executive or representatives of the Executive in violation of
this Agreement). The covenant in this Section 5.1 has no
temporal, geographical or territorial restriction or limitation,
and it applies wherever the Executive may be located.
5.2
Non-Solicitation of the
Company’s Employees . For a period of twelve
(12) months after the termination of her employment, the
Executive will not actively solicit, either directly or indirectly
through any third person, any other executive of the Company to
terminate his or her employment with the Company without the
written consent of the Chairman of the Board.
5.3
Covenant Against Unfair
Competition . While the Executive is employed by the
Company, and for twelve (12) months after Executive’s
employment is terminated by the Company for non-renewal under
Section 2 or for twenty-four (24) months after such
employment ends for any other reason, the Executive will not,
either directly or indirectly: (a) be employed by, consult
for, engage in any business for, or have any ownership interest in,
any inmold label manufacturer, or in any gravure cylinder
manufacturer which is using Think System™ technology, or any
other person or entity that competes directly or indirectly with
the Company, provided that the Executive may be employed by,
consult for, engage in any business for, or have any ownership
interest in any division, subsidiary or affiliate of such a
manufacturer, person or entity if: (i) the Executive does not
have direct or indirect responsibility for any label printing or
manufacturing and selling gravure cylinders or any other business
that competes directly or indirectly with the Company
(“Affiliated Entity Competing Business”), (ii) the
Executive does not consult directly or indirectly for any
Affiliated Entity Competing Business, (iii) the Executive is
not employed directly or indirectly by any Affiliated Entity
Competing Business, and (iv) the Executive does not have any
direct or indirect significant ownership interest in any Affiliated
Entity Competing Business; or (b) call on, solicit or
communicate with any of the Company’s customers or prospects
for the purpose of obtaining such inmold label or gravure cylinder
business or other business in violation of the restrictions on
competition contained in clause (a) of this Section, other
than for the benefit of the Company. As used in this Agreement, the
term “customer” means a business entity (including
representatives of such business entity) to which the Company
provided goods or services at any time in the prior twenty-four
(24) months, and the term “prospect” means a
business entity (including representatives of such business entity)
to which, at any time in the previous twenty-four (24) months,
the Company made a written proposal for providing goods or
services. Ownership, for personal investment purposes only, of not
in excess of two percent (2%) of the voting stock of any
publicly held corporation, shall not constitute a violation
hereof.
4
5.4
Return of Confidential
Materials and Information . The Executive agrees that
whenever the Executive’s employment with the Company ends for
any reason, all documents, including information stored in
electronic format, containing or referring to the Company’s
Confidential Materials and Information that may be in the
Executive’s possession, or over which the Executive may have
control, will be delivered by the Executive to the Company
immediately, with no request being required.
5.5
Irreparable Harm . The
Executive agrees that a breach of any covenant in this
Section 5 will cause the Company irreparable injury and damage
for which the Company has no adequate monetary remedy, and the
Executive further agrees that if the Company claims a breach of any
such covenant, the Company will be entitled to seek an immediate
restraining order and injunction to prevent such violation or
continued violation.
5.6 Cumulative Remedies;
Enforceability .
(a)
In the event of Executive’s
breach or threatened breach of the covenants set forth in this
Section 5, the parties acknowledge that the Company will
suffer irreparable harm and the Company will be entitled to an
injunction restraining Executive from committing such breach.
Executive affirmatively waives any requirement that the Company
post any bond, demonstrate the likelihood of irreparable harm to
the Company, or demonstrate that any actual damages will be
suffered by the Company or any other entity seeking enforcement
hereof as a result of Executive’s breach of any of the
covenants set forth in this Section 5.
(b)
The covenants and agreements
contained in this Section 5 will be construed as independent
of each other, and the existence of any claim or cause of action by
Executive against the Company, whether predicated on this Agreement
or otherwise, will not constitute a defense to the Company’s
enforcement of such covenants, and they shall be construed as
separate covenants and agreements. If any court shall finally
determine that the restraints provided for in any such covenants
and agreements exceed the maximum area, activity or time such court
deems reasonable and enforceable, said area, activity or time shall
be deemed to become and thereafter shall be the maximum area,
activity or time which such court deems reasonable and enforceable,
and such covenants and agreements shall be enforced as to such
reduced area, activity or time.
(c)
Nothing herein contained will be
construed as prohibiting the Company from pursuing any other
remedies available to it at law or in equity for such breach or
threatened breach, including the recovery of money
damages.
5.7 Reasonableness of Scope
and Duration .
Executive acknowledges that the restrictions contained in this
Section 5 are reasonable and necessary to protect the
legitimate interests of the Company and that the Company would not
have entered into this Agreement in the absence of such
restrictions. Executive understands and agrees that the covenants
and agreements contained in this Section 5 are, taken as a
whole, reasonable in connection with the activities covered, their
geographic scope and duration. Executive understands that the
provisions of this Agreement have been carefully designed to
restrict Executive’s activities to the minimum extent which
is consistent with the Company’s requirements. Executive has
carefully considered these restrictions, and Executive confirms
that they will not unduly restrict Executive’s ability to
obtain a livelihood.
5
5.8 Future
Employer . If
applicable, Executive shall inform any prospective or future
employer of all of the restrictive covenants and agreements
contained in this Agreement, and provide such employer with a copy
of such provisions, prior to the commencement of that
employment.
5.9 Time
Periods . All time
periods set forth in this Section 5 shall be extended by the
duration of any period during which Executive is in violation of
any provision of this Section 5.
6. T ERMINATION OF E MPLOYMENT
6.1 Termination
. Executive’s employment with
the Company shall terminate prior to the expiration of the Term
upon the occurrence of the first of the following
events:
(a) Death
. Upon the death of
Executive.
(b)
Disability . If the Disability of the
Executive has occurred during the Executive’s employment, it
may give to the Executive written notice in accordance with this
Agreement of its intention to terminate the Executive’s
employment. In such event, the Executive’s employment with
the Company shall terminate effective on the Disability
Commencement Date. As used in this Agreement,
“Disability” shall mean that the Executive, (i) in
the opinion of a physician, is unable to engage in any substantial
gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or
can be expected to last for a continuous period of not less than 12
months, or (ii) is, by reason of any medically determinable
physical or mental impairment which can be expected to result in
death or can be expected to last for a continuous period of not
less than 12 months, receiving income replacement benefits for a
period of not less than 3 months under an accident and health plan
covering employees of the Company, or (iii) is determined to
be totally disabled by the Socia