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EMPLOYMENT AGREEMENT

Employee Retention Agreement

EMPLOYMENT AGREEMENT | Document Parties: MULTI-COLOR CORPORATION You are currently viewing:
This Employee Retention Agreement involves

MULTI-COLOR CORPORATION

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Title: EMPLOYMENT AGREEMENT
Date: 9/25/2008
Industry: Printing Services     Sector: Services

EMPLOYMENT AGREEMENT, Parties: multi-color corporation
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Exhibit 10.2

EMPLOYMENT AGREEMENT

BETWEEN

MULTI-COLOR CORPORATION

AND

DAWN H. BERTSCHE

Effective as of April 1, 2008


TABLE OF CONTENTS

 

 

 

 

 

 

 

 

 

  

Page

1.

  

Employment

  

1

 

 

 

2.

  

Term of Agreement

  

1

 

 

 

3.

  

Scope of Employment; Location

  

1

 

 

 

4.

  

Compensation

  

2

 

 

 

 

 

  

4.1

  

Base Salary

  

2

 

 

 

 

 

  

4.2

  

Bonus

  

2

 

 

 

 

 

  

4.3

  

Restricted Stock Grant; Stock Option and Restricted Stock Awards

  

2

 

 

 

 

 

  

4.4

  

Savings and Retirement Plan

  

2

 

 

 

 

 

  

4.5

  

Welfare and Other Benefit Plans

  

2

 

 

 

 

 

  

4.6

  

Expenses

  

3

 

 

 

 

 

  

4.7

  

Fringe Benefits

  

3

 

 

 

 

 

  

4.8

  

Vacation

  

3

 

 

 

 

 

  

4.9

  

Indemnity

  

3

 

 

 

5.

  

Confidentiality, Non-competition and Other Covenants

  

3

 

 

 

 

 

  

5.1

  

Non-Disclosure of Confidential Materials, Information and Intellectual Property

  

3

 

 

 

 

 

  

5.2

  

Non-Solicitation of the Company’s Employees

  

4

 

 

 

 

 

  

5.3

  

Covenant Against Unfair Competition

  

4

 

 

 

 

 

  

5.4

  

Return of Confidential Materials and Information

  

5

 

 

 

 

 

  

5.5

  

Irreparable Harm

  

5

 

 

 

 

 

  

5.6

  

Cumulative Remedies; Enforceability

  

5

 

 

 

 

 

  

5.7

  

Reasonableness of Scope and Duration

  

5

 

 

 

 

 

  

5.8

  

Future Employer

  

6

 

 

 

 

 

  

5.9

  

Time Periods

  

6

 

 

 

6.

  

Termination of Employment

  

6

 

 

 

 

 

  

6.1

  

Termination

  

6

 

 

 

 

 

  

6.2

  

Date of Termination

  

8

 

 

 

 

 

  

6.3

  

Notice of Termination

  

9

 

 

 

7.

  

Obligations of the Company Upon Termination

  

9

 

 

 

 

 

  

7.1

  

Good Reason, Other Than For Cause

  

9

 

-i-


TABLE OF CONTENTS

(continued)

 

 

 

 

 

 

 

 

 

  

Page

 

  

7.2

  

Cause; Non-Renewal Under Section 2; Other Than for Good Reason

  

11

 

 

 

 

 

  

7.3

  

Death

  

11

 

 

 

 

 

  

7.4

  

Disability

  

12

 

 

 

8.

  

Consent to Jurisdiction

  

12

 

 

 

9.

  

Miscellaneous Provisions

  

13

 

 

 

 

 

  

9.1

  

Binding Effect; Delegation of Duties Prohibited; Survival

  

13

 

 

 

 

 

  

9.2

  

Amendment; Waiver

  

13

 

 

 

 

 

  

9.3

  

Entire Agreement

  

14

 

 

 

 

 

  

9.4

  

Exemption from, or Compliance with, Section 409A

  

14

 

 

 

 

 

  

9.5

  

Governing Law

  

14

 

 

 

 

 

  

9.6

  

Headings; Section References; Construction

  

14

 

 

 

 

 

  

9.7

  

Notices

  

14

 

 

 

 

 

  

9.8

  

Policies, Regulations and Guidelines for Executives

  

15

 

 

 

 

 

  

9.9

  

Severability and Reformation of Provisions

  

15

 

 

 

 

 

  

9.10

  

Taxes

  

15

 

 

 

 

 

  

9.11

  

Full Settlement

  

15

 

 

 

 

 

  

9.12

  

Attorneys Fees

  

15

 

-ii-


GLOSSARY OF DEFINED TERMS

 

 

 

 

 

Defined Term

  

Section

 

Additional Term

  

2

 

Annual Base Salary

  

4.1

 

Cause

  

6.1(c

)

Confidential Materials and Information

  

5.1

 

Date of Termination

  

6.2

 

Disability

  

6.1(b

)

Disability Commencement Date

  

6.1(b

)

Good Reason

  

6.1(d

)

Initial Term

  

2

 

Notice of Termination

  

6.3

 

Term

  

2

 

 

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

 

2


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

 

3


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


 
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