Exhibit 10.1
FIRST AMENDMENT TO EMPLOYMENT
AGREEMENT
THIS FIRST AMENDMENT (“First
Amendment”) to the Employment Agreement is made and entered
into as of the 21 st day of September, 2009 between Multi-Color
Corporation, an Ohio corporation (“Multi-Color”), and
Nigel Andrew Vinecombe (“Employee”).
RECITALS:
A. On February 29, 2008,
Collotype International Holdings Pty Ltd (“Collotype”)
was acquired by Multi-Color as part of a Share Sale and Purchase
Agreement. Pursuant to that acquisition, and effective as of the
date of the acquisition, Collotype and Employee entered an
Employment Agreement (the “Employment Agreement”),
attached hereto as Exhibit A.
B. Employee has been appointed Chief
Operating Officer (“COO”) of Multi-Color, effective
May 7, 2009.
C. Both Employee and Multi-Color
agree that Multi-Color, the parent company of Collotype, has
determined that it is in the best interests of Multi-Color and its
shareholders to amend the Employment Agreement to reflect
Employee’s new position as Chief Operating Officer of
Multi-Color. Employee agrees that the First Amendment accurately
reflects the pertinent changes to the terms and conditions of his
employment as COO of Multi-Color and he is voluntarily and
knowingly entering into the First Amendment.
NOW, THEREFORE, in consideration of
the promises and mutual covenants contained in this First Amendment
and the Employment Agreement and for good and valuable
consideration, the receipt of which is mutually acknowledged,
Multi-Color and the Employee agree to modify and amend the
Employment Agreement as follows:
1. Both Employee and Multi-Color
agree that, upon execution of the First Amendment, the amended
Employment Agreement and the First Amendment are the new agreement
between Employee and Multi-Color concerning Employee’s
employment by Multi-Color. Employee and Multi-Color understand and
agree that any reference in the Employment Agreement to Collotype
or “Employer” is hereby amended and understood to mean
Multi-Color. Employee and Multi-Color further agree that the
material amended terms in the Employment Agreement and the First
Amendment constitute a binding Employment Agreement between
Employee and Multi-Color.
2. Schedule 1 of the Employment
Agreement titled “Details” is hereby deleted and
replaced with a new Schedule as shown in the attached Amended
Schedule 1 – Details.
3. Schedule 2 of the Employment
Agreement titled “Services” is hereby deleted and
replaced with a new Schedule as shown in the Attached Amended
Schedule 2 – Services.
4. Schedule 3 of the Employment
Agreement titled “Confidential Information” remains in
full force and effect.
5. In Section 1.1, titled
“Defined terms,” the following bolded terms are amended
as follows:
Associates
means in relation to a person:
(a) a person with whom the person associates as part of a
business enterprise ; (b) a company or trust of which the
person has control; or (c) the spouse or child over the age of
18 of the person.
Business Days
means any day other than Saturday,
Sunday or Public Holiday in the State of Ohio, United States of
America.
Related Body Corporate
means a company and any and all
parent or subsidiary companies.
6. Section 1.2(a)(vi) is hereby
deleted and replaced with the following language:
“reference to dollars is a
reference to the currency of the United States of
America.”
7. Section 6.2 is hereby
deleted and replaced with language in attached Amended Schedule 1
– Details.
8. Section 6.3 is hereby
deleted and replaced with language in attached Amended Schedule 1
– Details.
9. Section 8.1 of the
Employment Agreement titled “Pre-existing medical
conditions” is hereby deleted, shall be re-titled
“Employee Disability,” and is hereby replaced with the
following language:
Employee is required to give
Multi-Color notice of any disability, as defined by the Americans
with Disabilities Act, 42 U.S.C. § 12102(2) and Oh. Rev. Code
4112.01(13), that he has or develops, if such disability requires a
reasonable accommodation from Multi-Color in order that Employee
may continue to perform the essential functions of his duties. In
the event that Employee has a disability that requires a reasonable
accommodation, Multi-Color will make efforts to reasonably
accommodate Employee as required by applicable state or federal
disability laws. However, the parties understand and agree that,
given Employee’s position as COO of Multi-Color, it would be
an undue hardship if Employee were absent or otherwise unable to
perform the essential functions of his duties for more than an
aggregate total of ninety (90) days within any twelve
(12) month period. Therefore, if as a result of or related to
a disability, Employee is unable to perform his full-time duties as
described in the Employment Agreement, First Amendment and any
subsequent amendments thereto, for an aggregate total of ninety
(90) days within any twelve (12) month period to the
satisfaction of Multi-Color, Multi-Color may terminate
Employee’s employment under Clause 11 of the Employment
Agreement and the terms of the First
Amendment. Multi-Color reserves the
right to take reasonable and appropriate measures to verify any
claim of disability raised by Employee as provided and permitted
under applicable law.
10. Section 8.2 titled
“Criminal Convictions (including traffic offenses)” is
hereby deleted, re-titled “Criminal Convictions” and is
hereby replaced with the following language:
Employee will provide Multi-Color
with written notice of any: (i) criminal felony conviction,
arrest or indictment; (ii) conviction, arrest or indictment
relating to a crime involving fraud, dishonesty or
misappropriation; or (iii) conviction, indictment, or arrest
that requires, or may require, Employee to spend time in jail or
other penal institution, whether such conviction, indictment, or
arrest occurred in the past or occurs subsequent to the execution
of this First Amendment. Multi-Color reserves the right, at its
sole discretion, to terminate the employment of Employee for any of
the above-described convictions, arrests, or indictments or for
failing to give the required notice.
11. Section 10.2 titled
“Undertakings by the Employee” is hereby deleted,
re-titled “Non-Compete and Non-Solicitation,” and is
replaced with the following language:
Non-Solicitation of
Customers: For the
period commencing on the date of this First Amendment and ending on
the expiration of one (1) year following the termination or
expiration of Employee’s employment with Multi-Color for any
reason or no reason at all, whether voluntary or involuntary,
Employee shall not either directly or through any intermediary
solicit, entice or induce, recruit, encourage or otherwise endeavor
to cause or attempt to cause any current or prospective customer of
Multi-Color to:
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a.
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Cease doing
business in whole or in part with Multi-Color;
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b.
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Change or alter
in any adverse way the business relationship such customer has with
Multi-Color; or
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c.
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Interfere or
disrupt a relationship between Multi-Color and a prospective
customer that is known by Employee where there is a probable future
economic benefit or advantage to Multi-Color from such
relationship.
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During the 60-day period following
the expiration or termination of Employee’s employment with
Multi-Color for any reason or no reason at all, whether voluntary
or involuntary, Employee shall take no affirmative action to
disclose or otherwise communicate to any of the customers of, or
suppliers to, Multi-Color that Employee’s employment with
Multi-Color has expired or been terminated, or is about to expire
or be terminated, and until that 60th day, Multi-Color shall have
the sole discretion to determine who may notify those customers or
suppliers of the expiration or termination (or impending expiration
or termination) of Employee’s employment, and the form,
substance and timing of such notification; provided, this provision
shall not be construed to prohibit a response by Employee to any
inquiry acknowledging the expiration or termination of
Employee’s employment once it has occurred.
Non-Solicitation of
Employees: For the
period commencing on the date of this Agreement and ending on the
expiration of one (1) year following the expiration or
termination of Employee’s employment with Multi-Color for any
reason or no reason at all, whether voluntary or involuntary,
Employee shall not either directly or indirectly through any
intermediary solicit, entice or induce, recruit, encourage or
otherwise endeavor or attempt to cause any employee of Multi-Color
to leave the employment of Multi-Color to work with Employee or
with any other person or business with whom Employee is or becomes
affiliated; provided, that the foregoing covenant shall not apply
to or prohibit solicitations by Employee or persons or businesses
with whom Employee has become affiliated made to the public
generally through print or e-mail solicitations or
advertising.
Covenant not to
Compete: In
consideration of Employee’s employment and exposure to the
training in, use of and provision of Multi-Color Confidential
Information, which Employee agrees would not have been made
available absent execution of this Agreement, Employee agrees that
for the period commencing on the date of this Agreement and ending
on the expiration of one (1) year following the expiration or
termination of Employee’s employment with Multi-Color for any
reason or no reason at all, whether voluntary or involuntary,
Employee will not work for any individual or entity, or own,
control or invest in any entity, that provides similar services as
Multi-Color or is a competitor of Multi-Color and its businesses.
The foregoing applies regardless of whether Employee engages in
such work or activities directly or indirectly as an employee,
independent contractor, agent, owner, investor, sole proprietor or
otherwise.
12. Sections 10.3 titled
“Duration of prohibition” and 10.4 titled
“Geographic application” is hereby deleted and is
replaced with a new Section 10.3 titled “Limitations on
Non-Compete and Non-Solicitation” which shall contain the
following language:
The undertakings in clause 10.2
apply only if the activity prohibited by clause 10.2 occurs within
any geographical area in which, as of the Termination Date, Multi
Color engages in business or has otherwise established goodwill,
business reputation or any customer relations.
13. Section 10.5 titled
“Interpretation” shall be deleted.
14,. Section 14 titled
“Governing law and jurisdiction” is hereby deleted and
is replaced with the following language under the same
title:
Multi-Color and Employee agree that
the law of the State of Ohio in the United States of America
applies to and will govern the Employment Agreement and First
Amendment, even if application by a court or other tribunal of
choice of law or conflict of law principles would normally require
application of a different law. Multi-Color and Employee further
agree to submit to the exclusive jurisdiction of courts located in
Ohio to resolve any dispute that arises under, or in connection
with, the Employment Agreement or First Amendment.
15. To the extent necessary to be
consistent with his employment by Multi-Color in the United States,
Employee and Multi-Color agree that the Employment Agreement and
First Amendment will be interpreted to reflect his employment in
the United States for Multi-Color and that he no longer is employed
by Collotype under the Employment Agreement.
16. The terms of the Employment
Agreement and Schedules thereto that are amended herein shall be
effective as of August 1, 2009. All terms of the Employment
Agreement and Schedules thereto not specifically amended herein
shall remain in full force and effect.
IN WITNESS WHEREOF, THE UNDERSIGNED
HAVE EXECUTED THIS Agreement as of the date first written
above.
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M
ULTI -C OLOR C ORPORATION
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By:
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Title:
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W
ITNESS :
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(“Employer”)
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NIGEL A.
VINECOMBE
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(“Employee”)
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W
ITNESS :
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Amended Schedule 1 –
Details
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Name
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Nigel Andrew
Vinecombe
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Address
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224 East
8 th
Street
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Apartment
#806
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Cincinnati, OH
45202
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2.
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Effective
Date of First Amendment
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August 1, 2009
The second anniversary of the
Employment Commencement Date With Multi-Color
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Annual Base
Salary:
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USD 300,000.00
(paid on the payroll schedule applicable to other US based
executives of Multi- Color)
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Bonus:
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Eligible to
participate in the Executive Incentive Compensation Plan, with a
target payout factor of 85% of Annual Base Salary
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Stock
Options:
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On the day this
First Amendment is entered into, the Company shall grant the
Executive under the Company’s 2003 Stock Incentive Plan,
30,000 stock option awards, with five-year vesting. During the
Executive’s employment, Executive may receive additional
stock option awards or restricted stock, as determined by the Board
or its committees from time to time.
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Retirement
Plan:
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Superannuation:
10% of Annual Base Salary
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Welfare and
Other Benefit Plans:
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Eligible to
participate and shall receive all benefits under welfare, fringe,
vacation and other similar benefit plans, practices, policies and
programs provided by Multi-Color to the extent applicable generally
to other US based executives of Multi-Color.
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Amended Schedule 1 – Details
Cont.
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Fringe
Benefits:
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Car Allowance
USD $600.00 per month
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Housing
Allowance:
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USD $3,750.00
per month, grossed up for tax purposes for period of time assigned
to US, but in no case not longer than twenty-four (24)
months.
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Home
Leave:
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Employee will
be reimbursed for two (2) home leave trips for Employee and spouse
to Australia for each twelve (12) months Employee works in the US.
Travel will be scheduled for business class airfare.
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Tax
Equalization:
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For the period of time assigned to the US, but
in no
case not longer than twenty-four
(24) months, Employee’s tax liability will be tied to the
“tax equalization” concept for purposes of calculating
taxes for Employee’s annual base salary, bonus, Company
contribution to the Superannuation Fund, housing allowance and home
leaves. Multi-Color will withhold an estimated home country
Australian tax liability based on Employee’s earned income.
Employee’s annual total “tax equalized” liability
will then be reconciled by an independent tax service provider
based on Employee’s actual earned and personal income based
on current Australian tax law. Employee’s total overall
annual tax liability will not exceed that of Employee’s peer
based on a “stay-at-home” tax liability
concept.
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Expenses:
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During
Employee’s employment, Employee shall be entitled to receive
prompt reimbursement for all reasonable business expenses incurred
by the Employee and documented as required by regulations of the
Internal Revenue Service.
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Francis D. Gerace
Amended Schedule 2 –
Services
Job Description:
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Manage and supervise the
day-to-day operations of the business, including sales, marketing,
operations and organizational development.
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Achieve financial
targets.
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Execute business growth strategy
subject to President and CEO, and Board approval.
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Coordinate Annual Business Plans,
including budgets, for business segments for recommendation to
Multi-Color Corporation President and CEO, and Board.
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Execute on Performance Plans once
Annual Business Plans and budgets are approved.
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Fulfill Duties and
Responsibilities associated with being Board Member.
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Exhibit A to
First Amendment
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Employment
Agreement
Nigel Vinecombe
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Collotype Labels Pty Ltd ( Employer
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The party described in item 1 of Schedule
1
( Employee )
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Employment Agreement
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Details
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3
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Agreed terms
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4
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1. Defined
terms and interpretation
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4
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2. Engagement
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5
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3. Obligations
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5
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4. Acknowledgement
by Employee
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6
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5. Total
Employment Cost
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6
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6. Leave
Entitlements
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7
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7. Performance
review
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7
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8. Notifications
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8
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9. Confidential
information, materials and intellectual property
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8
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10. Restraint
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9
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11. Termination
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10
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12. Entire
Agreement
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11
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