<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 23, 1999
Foilmark, Inc.
----------------
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
<S> <C> <C>
Delaware 000-24234 113101034
-------- --------- ---------
(State or other jurisdiction (Commission File (I.R.S. Employer
of incorporation) Number) Identification No.)
</TABLE>
4 Mullikan Way, Newburyport, MA 01950
------------------------------- -----
(Address of principal executive offices) (Zip Code)
(978) 465-0618
--------------
(Registrant's telephone number, including area code)
<PAGE>
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On April 21, 1999, the stockholders of HoloPak Technologies, Inc., a
Delaware corporation ("HoloPak"), approved (i) an Agreement and Plan of Merger
dated November 17, 1998 which provides for the merger (the "Merger") of HoloPak
with and into Foilmark Acquisition Corporation ("Foilmark Sub"), a Delaware
corporation and a wholly-owned subsidiary of Foilmark, Inc. ("Foilmark") and
(ii) the Merger. On April 21, 1999, the stockholders of Foilmark approved the
issuance of shares of Foilmark common stock, par value, $.01 per share (the
"Foilmark Common Stock") to be issued in the Merger to HoloPak stockholders. The
Foilmark stockholders also approved an amendment to Foilmark's Second Amended
and Restated Certificate of Incorporation to increase its authorized share
capital.
On April 23, 1999, a Certificate of Merger was filed with the Delaware
Secretary of State effecting the Merger of HoloPak with and into Foilmark Sub,
with Foilmark Sub as the surviving corporation changing its name to "HoloPak
Technologies, Inc." Pursuant to the Merger Agreement and upon the terms and
subject to the conditions and limitations therein, at the effective time of the
Merger each issued and outstanding share of the common stock of HoloPak, par
value $.01 per share (the "HoloPak Common Stock") was converted into the right
to receive (i) 1.11 shares of Foilmark Common Stock and (ii) $1.42 in cash.
On April 23, 1999, certain stockholders of Foilmark and certain
stockholders of HoloPak entered into a voting agreement (the "Voting Agreement")
which is filed as Exhibit 10.1 hereto. Pursuant to the Voting Agreement: (i) the
Board of Directors of Foilmark was fixed at ten; (ii) Robert J. Simon was
elected to serve as Chairman of the Board of Directors of Foilmark; (iii) Harvey
Share, Michael Mathews, Brian Kelly and James Rooney were elected to serve as
directors of Foilmark; (iv) Martin A. Olsen, Carol J. Robie, Kenneth Harris and
Wilhelm Kutsch resigned as directors of Foilmark; and (v) the Board of Directors
of Foilmark elected new members of each of the Executive Committee, the
Compensation Committee and the Audit Committee, as specified in the Voting
Agreement.
In addition, on April 23, 1999, in connection with the Merger,
Foilmark entered into employment agreements with each of Frank J. Olsen, Jr.,
Arthur Karmel, and Joseph T. Webb and entered into a consulting agreement
with James L. Rooney. These employment and consulting agreements are filed as
Exhibits 10.17, 10.18, 10.19 and 10.20, respectively, hereto. Also in
connection with the Merger, on April 23, 1999, Foilmark entered into
Indemnification Agreements with the following officers and directors of
Foilmark: Thomas R. Schwarz, Frank J. Olsen, Jr., Philip Leibel, Michael
Foster, Michael Bertuch, Edward Sullivan, Carol Robie, Wilhelm Kutsch, Glenn
Regan and Douglas Parker. These Indemnification Agreements are filed as
Exhibits 10.2 - 10.9, respectively, hereto.
Also in connection with the Merger, on April 23, 1999, Foilmark entered
into a Registration Rights Agreement with Bradford Venture Partners, Overseas
Private Investor Partners and certain other former stockholders of HoloPak who
received shares of Foilmark Common Stock in the Merger. Under this agreement,
these stockholders have been granted
2
<PAGE>
demand and piggy-back registration rights by Foilmark. This agreement is filed
as Exhibit 10.14, respectively, hereto.
Foilmark intends to pay the cash part of the merger consideration from
available cash with the balance from the working capital of Foilmark, its line
of credit with Fleet National Bank and proceeds of Massachusetts Industrial
Finance Agency Industrial Revenue Bonds.
HoloPak, through its operating subsidiaries, Transfer Print Foils, Inc.
and Alubec Industries, manufactures and distributes hot-stamp foils in the
United States, and manufactures laminated foil and direct metallized paper in
Canada. Foilmark intends to continue to operate the acquired business as it is
currently operated.
ITEM 8. CHANGE IN FISCAL YEAR
Effective April 23, 1999, the Board of Directors of Foilmark amended
Foilmark's By-laws to change its fiscal year end from December 31 to June 30 of
each year. Foilmark intends to file a transition report on Form 10-K for such
transition period.
This Current Report on Form 8-K and such press release contain "forward
looking statements" within the meaning of the safe harbor provisions of the
Private Securities Litigation Reform Act of 1995 and are qualified by cautionary
statements contained herein, including the fact that the Merger is subject to
certain conditions and therefore may not close when anticipated or at all, and
in Foilmark's filings with the Securities and Exchange Commission.
3
<PAGE>
Item 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) Financial Statements.
Balance Sheet of HoloPak Technologies, Inc. for each of the years
ended March 31, 1998 and 1997, respectively, is incorporated
herein by reference to Holopak's Annual Report on Form 10-K for
the year ended March 31, 1998.
Statement of Operations of HoloPak Technologies, Inc. for each of
the years ended March 31, 1998, 1997 and 1996, respectively, is
incorporated herein by reference to HoloPak's Annual Report on Form
10-K for the year ended March 31, 1998.
Statement of Cash Flows for HoloPak Technologies, Inc. for each of
the years ended March 31, 1998, 1997 and 1996, respectively, is
incorporated herein by reference to HoloPak's Annual Report on Form
10-K for the year ended March 31, 1998.
Balance Sheet of HoloPak Technologies, Inc. at December 31, 1998 is
incorporated herein by reference to HoloPak's Quarterly Report on
Form 10-Q for the quarter ended December 31, 1998.
Statement of Operations of HoloPak Technologies, Inc. for the nine
months ended December 31, 1998 is incorporated herein by reference
to HoloPak's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1998.
Statement of Cash Flows of HoloPak Technologies, Inc. for the nine
months ended December 31, 1998 is incorporated herein by reference to
Holopak's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1998.
(b) Pro Forma Financial Statements.
Unaudited Pro Forma Combined Balance Sheet at December 31, 1998 is
incorporated herein by reference to Foilmark's Registration
Statement on Form S-4 (Registration No. 333-74799) filed with the
Commission on March 22, 1999.
Unaudited Pro Forma Combined Statement of Operations at December 31,
1998 is incorporated herein by reference to Foilmark's Registration
Statement on Form S-4 (Registration Statement No. 333-74799) filed
with the Commission on March 22, 1999.
(c) Exhibits.
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
<S> <C>
3.1 Second Amended and Restated Certificate of Incorporation of Foilmark, Inc., as
amended April 23, 1999.
3.2 By-laws of Foilmark, Inc., as amended April 23, 1999.
10.1 Voting Agreement between Foilmark and certain stockholders of Foilmark dated as of
April 23, 1999.
10.2 Indemnification Agreement between Foilmark and Thomas R. Schwarz dated as of April
23, 1999.
10.3 Indemnification Agreement between Foilmark and Frank J. Olsen, Jr, dated as of April
23, 1999.
10.4 Indemnification Agreement between Foilmark and Philip Leibel dated as of April 23,
1999.
10.5 Indemnification Agreement between Foilmark and Michael Foster dated as of April 23,
1999.
10.6 Indemnification Agreement between Foilmark and Michael Bertuch dated as of April 23,
1999.
10.7 Indemnification Agreement between Foilmark and Edward Sullivan dated as of April 23,
1999.
10.8 Indemnification Agreement between Foilmark and Glenn Regan dated as of April 23,
1999.
10.9 Indemnification Agreement between Foilmark and Douglas Parker dated as of April 23,
1999.
10.10 Indemnification Agreement between Foilmark and Carol Robie dated April 23, 1999.
10.11 Indemnification Agreement between Foilmark and Wilhelm Kutsch dated April 23, 1999.
10.12 Indemnification Agreement between Foilmark and Brian Kelly dated April 23, 1999.
10.13 Indemnification Agreement between Foilmark and Harvey Share dated April 23, 1999.
10.14 Indemnification Agreement between Foilmark and James Rooney dated April 23, 1999.
10.15 Indemnification Agreement between Foilmark and Joseph Webb dated April 23, 1999.
10.16 Indemnification Agreement between Foilmark and Arthur Karmel dated April 23, 1999.
10.17 Indemnification Agreement between Foilmark and Robert Simon dated April 23, 1999.
10.18 Indemnification Agreement between Foilmark and Michael Mathews dated April 23,
1999.
10.19 Employment Agreement between Foilmark and Frank J. Olsen, Jr., dated as of April 23,
1999.
10.20 Employment Agreement between Foilmark and Arthur Karmel dated as of April 23, 1999.
10.21 Employment Agreement between Foilmark and Joseph Webb dated as of April 23, 1999.
10.22 Consulting Agreement between Foilmark and James Rooney dated as of April 23, 1999.
10.23 Registration Rights Agreement among Foilmark, Bradford Venture Partners, Overseas
Private Investor Partners and certain other stockholders of Foilmark dated as of April
23, 1999.
10.24 Termination of Voting Agreement among Foilmark and certain stockholders of
Foilmark, dated as of April 23, 1999.
10.25 Termination of Voting Agreement among Foilmark, Kenneth Harris and Steven
Meredith dated as of April 23, 1999.
23.1 Consent of Deloitte & Touch LLP
99.1 Text of Press Release, dated April 23, 1999, issued by Foilmark, Inc.
</TABLE>
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
FOILMARK, INC.
Date: April 23, 1999 By: /S/FRANK J. OLSEN, JR.
--------------------------------------
Frank J. Olsen, Jr.
Chief Executive Officer and President
5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
<S> <C>
3.1 Second Amended and Restated Certificate of Incorporation of Foilmark, Inc., as
amended April 21, 1999.
3.2 By-laws of Foilmark, Inc., as amended April 23, 1999.
10.1 Voting Agreement between Foilmark and certain stockholders of Foilmark dated as of
April 23, 1999.
10.2 Indemnification Agreement between Foilmark and Thomas R. Schwarz dated as of
April 23, 1999.
10.3 Indemnification Agreement between Foilmark and Frank J. Olsen, Jr, dated as of April
23, 1999.
10.4 Indemnification Agreement between Foilmark and Philip Leibel dated as of April 23,
1999.
10.5 Indemnification Agreement between Foilmark and Michael Foster dated as of April
23, 1999.
10.6 Indemnification Agreement between Foilmark and Michael Bertuch dated as of April
23, 1999.
10.7 Indemnification Agreement between Foilmark and Edward Sullivan dated as of April
23, 1999.
10.8 Indemnification Agreement between Foilmark and Glenn Regan dated as of April 23,
1999.
10.9 Indemnification Agreement between Foilmark and Douglas Parker dated as of April
23, 1999.
10.10 Indemnification Agreement between Foilmark and Carol Robie dated as of April 23,
1999.
10.11 Indemnification Agreement between Foilmark and Wilhelm Kutsch dated April 23, 1999.
10.12 Indemnification Agreement between Foilmark and Brian Kelly dated April 23, 1999.
10.13 Indemnification Agreement between Foilmark and Harvey Share dated April 23, 1999.
10.14 Indemnification Agreement between Foilmark and James Rooney dated April 23, 1999.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
10.15 Indemnification Agreement between Foilmark and Joseph Webb dated April 23, 1999.
10.16 Indemnification Agreement between Foilmark and Arthur Karmel dated April 23, 1999.
10.17 Indemnification Agreement between Foilmark and Robert Simon dated April 23, 1999.
10.18 Indemnification Agreement between Foilmark and Michael Mathews dated April 23,
1999.
10.19 Employment Agreement between Foilmark and Frank J. Olsen, Jr., dated as of April 23,
1999.
10.20 Employment Agreement between Foilmark and Arthur Karmel dated as of April 23,
1999.
10.21 Employment Agreement between Foilmark and Joseph Webb dated as of April 23, 1999.
10.22 Consulting Agreement between Foilmark and James Rooney dated as of April 23, 1999.
10.23 Registration Rights Agreement among Foilmark, Bradford Venture Partners, Overseas
Private Investor Partners and certain other stockholders of Foilmark dated as of April
23, 1999.
10.24 Termination of Voting Agreement among Foilmark and certain stockholders of
Foilmark, dated as of April 23, 1999.
10.25 Termination of Voting Agreement among Foilmark, Kenneth Harris and Steven
Meredith dated as of April 23, 1999.
23.1 Consent of Deloitte & Touch LLP
99.1 Text of Press Release, dated April 23, 1999, issued by Foilmark, Inc.
</TABLE>
<PAGE>
EXHIBIT 3.1
SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
FOILMARK, INC.
ORIGINAL CERTIFICATE FILED UNDER THE NAME OF KENSOL/FOILMARK, INC. WITH THE
SECRETARY OF STATE ON DECEMBER 31, 1991. FIRST RESTATED CERTIFICATE FILED UNDER
THE NAME OF KENSOL/FOILMARK, INC. WITH THE SECRETARY OF STATE ON OCTOBER 15,
1993.
Foilmark, Inc., a corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware, hereby certifies that this
Restated Certificate of Incorporation was duly adopted by the stockholders in
accordance with the provisions of Sections 242 and 245 of Title VIII of the
Delaware Code.
This Restated Certificate of Incorporation restates, integrates and amends
the Certificate of Incorporation to read as herein set forth in full:
FIRST: The name of the corporation (herein after "Corporation") is
Foilmark, Inc.
SECOND: The address of its registered office in the State of Delaware is:
1209 Orange Street, in the City of Wilmington, County of New Castle. The name of
its registered agent at such address is The Corporation Trust Company.
THIRD: The purposes of the Corporation are:
(a) To engage in a business for holding the shares of corporations
manufacturing and selling materials and machines for the hot stamping
industry, and to carry on all acts or activities incidental and related
thereto.
(b) To conduct research and development for the hot stamping industry.
(c) To engage in any lawful act or activity for which corporation may be
organized under the General Corporation Law of Delaware.
FOURTH: The aggregate number of shares which the Corporation is authorized
to issue is 10,500,000 shares: 10,000,000 shares of which are Common Stock, with
a par value of one cent ($.01) per share, and 500,000 shares of which are
Preferred Stock, with a par value of one cent ($.01) per share.
FIFTH: The express terms of the Preferred Stock are as follows:
1. DESIGNATION: All shares of the Preferred Stock of any particular series
shall be identical with each other in all respects, except as to the date
from which dividends thereon shall be cumulative. All shares of Preferred
Stock shall be of equal rank with each other, regardless of series, and
shall be identical with each other in all other respects, except as herein
provided. Preferred Stock shall be issued in series, running "A" to "Z",
with such distinctive serial designation as shall be stated by resolution of
the Board of Directors who shall have full discretion in respect to
Preferred Stock then unissued or in the treasury of the Corporation by
adopting an amendment to the Certificate of Incorporation designating the
following terms and conditions:
(a) to fix or change the number of shares constituting the particular
series;
(b) to fix or change the rate or amount per annum at which the holders of
the shares of the particular series shall be entitled to receive
dividends, the dates on which such dividends shall be payable and the
date or dates from which such dividends shall be cumulative;
<PAGE>
(c) to fix or change the amount or amounts per share for the particular
series payable to the holders thereof, in case of dissolution,
liquidation, or winding up of the corporation;
(d) to fix or change the redemption rights and price or prices per share for
the particular series;
(e) to fix or change the sinking fund requirements, if any, for the
particular series, which may require the Corporation to set aside or
provide a sinking fund out of earnings or otherwise for the purchase or
redemption of the shares of such series;
(f) to determine whether or not the shares of the particular series shall be
made convertible into other shares of the Corporation, to set the
conversion price or prices, or the rates of exchange at which such
conversion may be made, and the terms and conditions upon which any such
conversion rights may be exercised;
(g) to determine whether or not there shall be restrictions on the issuance
of shares of the particular series or of any other class or series; and
(h) to include additional shares of Preferred Stock which the Corporation is
authorized to issue in the particular series.
2. DIVIDEND RIGHTS. (a) The holders of Preferred Stock at the time outstanding
shall be entitled to receive, out of any funds legally available for the
payment of dividends, if, when and as declared by the Board of Directors,
cash dividends, preferential as set forth in the next succeeding paragraph
of this Subdivision 2, at the rate or amount per annum and payable on the
dates fixed for the particular series by the Board of Directors.
(b) Such dividends shall be cumulative, in the case of all shares of a
particular series, from the date or dates fixed by the Board of
Directors. No dividend or other distribution (other than a dividend
payable in Common Shares of the Corporation) shall be declared, paid, or
made on the Common Shares of the Corporation, and none of the common
Shares shall be purchased or otherwise acquired for consideration by the
corporation, until the full cumulative dividends on all the outstanding
shares of all series of the Preferred Stock up to the end of the current
dividend period shall have been declared and paid or shall have been
declared and a sum sufficient for payment thereof by the Board of
Directors. Accrued dividends on the Preferred Stock shall bear no
interest.
(c) If the amount declared by the Board of Directors to be paid as dividends
on all outstanding shares of the Preferred Stock shall be insufficient to
pay the full dividends, including accumulations, on all outstanding
shares of all series, such amount shall be paid on the shares of each
series only in the ratio which the full dividend, including
accumulations, on all outstanding shares of all series would bear to the
full dividend, including accumulations, on all outstanding shares of all
series.
(d) The holders of the Preferred Stock shall not be entitled to receive any
dividends thereon other than the dividends referred to in this
Subdivision 2.
3. LIQUIDATION RIGHTS. In the event of any liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary, then before any
distribution shall be made to the holders of Common Shares of the
Corporation, the holders of shares of each particular series of Preferred
Stock outstanding shall be entitled to receive such amount as shall have
been fixed by the Board of Directors, plus an amount in the case of each
such share equal to all accrued and unpaid dividends thereon up to the date
of payment of the final amount due thereon. Such amounts shall be payable
without interest. After such payment to the holders of Preferred Stock, the
remaining assets of the Corporation shall be divided and distributed among
the holders of Common Shares then outstanding according to their respective
interests. If the amount available for payment to the holders of outstanding
shares of Preferred Stock upon any liquidation, dissolution or winding up of
the
<PAGE>
Corporation shall be insufficient to pay the amounts theretofore specified
in this Subdivision 3 to the holders of all outstanding shares of Preferred
Stock, the amount shall be distributed on the outstanding shares of each
particular series in the ratio which the maximum amount payable on the
outstanding shares of such particular series bears to the maximum amount
payable on the outstanding shares of all series. Neither the consolidation
or merger of the Corporation with or into any other corporation or
corporations, nor the merger of any corporation or corporations into the
Corporation, nor a reorganization of the Corporation, or the sale or
transfer by the Corporation of all or any part of its assets, shall be
regarded as a liquidation, dissolution, or winding up of the Corporation
within the meaning of this Subdivision 3.
4. REDEMPTION RIGHTS. (a) The Corporation, at the option of the Board of
Directors, may redeem the whole or any part of the shares of Preferred Stock
at the time outstanding or the whole or part of any particular series
thereof, at any time and from time to time, by paying, in the case of the
Preferred Stock of each particular series, such redemption price therefore
as shall have been fixed by the Board of Directors plus an amount in the
case of each share so to be redeemed, equal to all accrued and unpaid
dividends thereon up to the date of redemption.
(b) If at any time less than all of the outstanding shares of Preferred
Stock shall be called for redemption, the Board of Directors may select
the particular series to be redeemed and if less than all of the
outstanding shares of a particular series are to be called for
redemption, the shares so to be redeemed shall be selected by lot or pro
rata.
(c) Notice of every such redemption shall be given by the Corporation by
mailing a copy of such notice at least 30 days prior to the date fixed
for such redemption to each of the holders of record of the shares of
Preferred Stock to be redeemed, at their respective addresses appearing
on the books of the Corporation. From and after the date fixed in such
notice as the date of redemption (unless default shall be made by the
Corporation in providing moneys for payment of the redemption price), all
dividends on the shares of Preferred Stock thereby called for redemption
shall cease to accrue, and all rights of the holders as shareholders of
the Corporation (except the right to receive payment of said redemption
price and accrued and unpaid dividends to the date of redemption) shall
cease to determine; or if the date shall be the date (which date shall be
the date of redemption or prior thereto) on which the Corporation shall
deposit with a bank or trust company doing business in the State of
Delaware, as Paying Agent, moneys sufficient in the amount to pay at the
office of such Paying Agent, on the date of redemption of the redemption
price, together with accrued and unpaid dividends to the date of
redemption of such Paying Agent and the intention of the Corporation to
deposit said moneys is made known on or before the date of redemption
with such Paying Agent, all dividends on the shares of Preferred Stock so
called for redemption shall cease to accrue and all rights of the holders
thereof as shareholders of the Corporation (except the right to receive
from said Paying Agent said redemption price and accrued and unpaid
dividends to the date of redemption, and the right, if any, to convert
shares thereof into Common Shares of the Corporation) shall thereupon
cease to determine, and by the deposit of said moneys with said Paying
Agent the shares of Preferred Stock so called for redemption shall be
redeemed. Any moneys so deposited with said Paying Agent which shall
remain unclaimed by the holders of the shares of Preferred Stock so
called for redemption shall be paid by said Paying Agent to the
Corporation, and thereafter the holders of the shares of Preferred Stock
so called for redemption shall look only to the Corporation for payment.
(d) So long as all cumulative dividends on the shares of Preferred Stock of
all series at the time outstanding are paid or declared and set apart for
payment for all past dividend period, the Corporation shall have the
right at any time or from time to time, to purchase all or any part of
the shares of Preferred Stock of any series, either at public or private
sale, at a price not in excess of the current redemption price per share,
plus accrued dividends and plus an amount equal to usual and customary
brokerage commissions payable in connection with the purchase thereof.
<PAGE>
5. VOTING RIGHTS: The holders of the Preferred Stock shall, subject to the
provision of the Regulations of the Corporation and the statutes of Delaware
relating to the fixing of a record date, be entitled to one vote for each
share of Preferred Stock held by them, respectively, for the election of
directors and for all other purposes, but shall not be entitled to any
other, or special, or restrictive voting rights of any kind whatsoever,
except only as and when and to the extend required by statute, and in the
case of Preferred Stock of each particular series, as and when and to the
extent as shall have been fixed by the Board of Directors.
6. No holder of Preferred Stock shall be entitled, as such holder or as a
matter of right, to subscribe for a purchase any part of any new or
additional issue of stock of any class or series, and whether issued for
cash, property, services, or otherwise.
7. Subject to an in accordance with the provisions of this Fifth Article, there
is hereby created the following series of Preferred Shares: (To be inserted,
when authorized, by Resolution of the Board of Directors)
SIXTH: No stockholder shall have any preemptive right to subscribe to an
additional issue of stock or to any security convertible into such stock.
SEVENTH: In furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware, the Board of Directors is expressly authorized to
make, alter, amend and repeal the By-laws, including: fixing the size of the
Board of Directors, filing vacancies on the Board, designating when special
meetings of the stockholders may be called, and eliminating the rights of
stockholders to act by less than unanimous consent in lieu of a meeting.
EIGHTH: The vote of 80% of the outstanding shares shall be necessary to
approve the terms of a merger or consolidation of the Corporation into a
substantial shareholder or its affiliates of associates as defined in the
federal securities law; for the sale or other disposition of all, or
substantially all, of the Corporation's assets; for amendment of Articles
Seventh, Eighth or Ninth of the Certificate of Incorporation; for the issuance
or transfer of shares of common or preferred stock to a substantial shareholder,
except the issuance of employee stock options and grants in accordance with a
plan qualified under the Internal Revenue Code of 1986 or as amended; and for
the voluntary dissolution of the Corporation. A substantial shareholder is any
person or entity which, as of the record date for the determination of
stockholders entitled to vote on any of the aforesaid transactions, is the
beneficial owner of 10% or more of the outstanding shares of the Company
entitled to vote, including any shares to which the shareholder has the right to
acquire pursuant to any agreement, or upon the conversion or similar rights as
well as shares owned by an "affiliate" or "associate" as defined under the
federal securities laws.
NINTH: The election of directors shall be by cumulative voting such that
each shareholder of record shall be eligible to cast a number of votes equal to
the number of shares held by the shareholder multiplied by the number of
directors to be elected.
TENTH: The directors and officers shall have limited liability and rights of
indemnification to the full extend permitted by the General Corporation Law of
the State of Delaware, as it exists on the date hereof or may hereafter be
amended, and any other applicable law. The Corporation shall indemnify any
person who was or is a party to any threatened, pending or completed action,
suit or proceeding, by reason of the fact that he is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against expenses (including attorneys fees), judgments, fines and amounts paid
in settlements actually and reasonable incurred in connection with such actions.
The Board of Directors is hereby empowered to contract in advance to indemnify
such persons.
<PAGE>
Executed this 18th day of December, 1998, in the name of the Corporation by
its President and its Assistant Secretary, who declare under the penalty of
perjury that the facts stated therein are true and that this instrument is the
act and deed of the Corporation.
<TABLE>
<S> <C> <C>
FOILMARK, INC.
/s/ FRANK J. OLSEN, JR.
---------------------------------------------
Frank J. Olsen, Jr., President
ATTEST:
/s/ PHILIP LEIBEL
- ------------------------------
Philip Leibel, Assistant
Secretary
</TABLE>
<PAGE>
CERTIFICATE OF AMENDMENT
OF
SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
FOILMARK, INC.
Foilmark, Inc. ("Foilmark") a corporation organized under and by virtue
of the General Corporation Law of the State of Delaware, as amended,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of Foilmark as of April 21, 1999, by
unanimous written consent of its members, filed with the minutes of the Board,
adopted resolutions proposing and declaring advisable the following amendments
to the Second Amended and Restated Certificate of Incorporation of Foilmark:
RESOLVED: That Foilmark's Second Amended and Restated Certificate of
Incorporation be amended by the filing of the Certificate of
Amendment pursuant to which Article four shall be amended to
increase the authorized shares of Foilmark common stock from
10,000,000 to 15,000,000 with a par value of $.01.
SECOND: That at the Special Meeting of the Stockholders of Foilmark
held on April 21, 1999, the holders for the requisite amount of common stock of
Foilmark voted in favor of the amendments in accordance with the provisions of
Section 242 of the General Corporation Law of the State of Delaware, as amended.
<PAGE>
THIRD: That the aforesaid amendments were duly adopted in accordance
with the applicable provisions of Sections 242 of the General Corporation Law of
the State of Delaware, as amended.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Amendment of Foilmark, under penalties of perjury, this 21st day of April, 1999.
/s/
-----------------------------
Philip Leibel, Vice President
Finance and Chief Financial Officer
<PAGE>
EXHIBIT 3.2
RESTATED BY-LAWS OF
FOILMARK, INC.
ARTICLE 1
OFFICES
SECTION 1. PRINCIPAL OFFICE. The address of its registered office in the
State of Delaware is: 100 West Tenth Street, in the City of Wilmington,
County of New Castle. The name of its registered agent at such address is
The Corporation Trust Company.
SECTION 2. OTHER OFFICES. The Corporation may also have offices at such
other places both within and without the State of Delaware as the Board of
Director may from time to time determine or the business of the Corporation
may require.
ARTICLE II
MEETINGS OF THE SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the Shareholders shall
be held in May, June or July of each year on such day and at such hour as the
Board of Directors may fix, for the purpose of electing Directors and for the
transaction of such other business as may come before the meeting. If the
election of Directors shall not be held in the manner of designation herein
for any annual meeting of the Shareholders, or at any adjournment thereof,
the Board of Directors shall cause the election to be held at a special
meeting of the Shareholders as soon thereafter as may be convenient.
SECTION 2. SPECIAL MEETINGS. Special meetings of the Shareholders, for
any purpose or purposes, unless otherwise prescribed by statute, may be
called by the President, by the Chairman of the Board of Directors or by a
majority of the Board of Directors, and shall be called by the President or
the Secretary at the request of the holders of not less than twenty-five
percent (25%) of all the outstanding shares of the Corporation entitled to
vote at the meeting.
SECTION 3. PLACE OF MEETING. The Board of Directors may designate any
place, either within or without the State of Delaware, as the place of
meeting for any annual meeting or for any special meeting called by the
Board of Directors. A waiver of notice signed by a majority of Shareholders
entitled to vote at a meeting may designate any place, either within or
without the State of Delaware, as the place for the holding of such meeting.
SECTION 4. NOTICE OF MEETING.
(a) Written or printed notice stating the place, date and hour of the
meeting, and in the case of a special meeting, the purpose or purposes for
which the meeting is called, shall be delivered not less than ten (10) nor
more than sixty (60) days before the date of the meeting, either personally
or by mail, by or at the direction of the President, or the Secretary, or the
officer or persons calling the meeting, to each Shareholder of record entitled
to vote at such meeting. If mailed, such notice shall be deemed to be
delivered when deposited in the United
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States mail, addressed to the Shareholder at his or her address as it appears
on the stock transfer books of the Corporation, with postage thereon prepaid.
(b) Whenever notice is required to be given under any provisions of these
By-Laws, a written waiver thereof, signed by the person entitled to notice,
whether before or after the time stated in these By-Laws, shall be deemed to
be equivalent to notice. Attendance of a person at a meeting shall constitute
a waiver of notice of such meeting, except when the person attends a meeting
for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
SECTION 5. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE
(a) For the purpose of determining Shareholders entitled to notice or to
vote at any meeting of Shareholders or any adjournment thereof, or
Shareholders entitled to receive payment of any dividend, or in order to make
a determination of Shareholders for any other proper purpose, the Board of
Directors of the Corporation may provide that the stock transfer books shall
be closed for a stated period but not to exceed, in any case, fifty (50)
days. If the stock transfer books shall be closed for the purpose of
determining Shareholders entitled to notice or to vote at a meeting of
Shareholders, such books shall be closed for at least ten (10) days
immediately preceding such meeting.
(b) In lieu of closing the stock transfer books, the Board of Directors
may fix in advance a date as the record date for any such determination of
Shareholders, such date in any case to be not more than sixty (60) days, and
in case of a meeting of Shareholders, not less than ten (10) days prior to
the date on which the particular action, requiring such determination of
Shareholders, is to be taken.
(c) If no record date is fixed and the stock transfer books are not
closed:
(1) The record date for determining Shareholders entitled to notice
of or to vote at a meeting of Shareholders shall be at the close of business
on the day next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the day next preceding the day on which
the meeting is held.
(2) The record date for determining Shareholders entitled to express
consent to corporate action in writing without a meeting, when no prior
action by the Board of Directors is necessary, shall be the day on which the
first written consent is expressed.
(3) The record date for determining Shareholders for any other
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
(d) A determination of Shareholders of record to notice of or to vote at
a meeting of Shareholders shall apply to any adjournment of the meeting,
provided, however, that the Board of Directors may fix a new record date for
the adjourned meeting.
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SECTION 6. VOTING LISTS. The officer or agent having charge of the stock
transfer books for shares of the Corporation shall make, at least ten (10)
days before each meeting of Shareholders, a complete list of the Shareholders
entitled to vote at such meeting, or any adjournment thereof, arranged in
alphabetical order, with the address of and the number of shares held by
each, which list, for a period of ten (10) days prior to such meeting, shall
be kept on file at the registered office of the Corporation and shall be
subject to the inspection by any Shareholder, for any purpose germane to the
meeting, at any time during usual business hours. Such list shall also be
produced and kept open at the time and place of the meeting and shall be
subject to the inspection of any Shareholder during the whole time of the
meeting. The original stock transfer book shall be prima facie evidence as to
who are the Shareholders entitled to examine such list or transfer book or to
vote at any meeting of Shareholders.
SECTION 7. QUORUM. One-third of the outstanding shares of the
Corporation entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of Shareholders. If less than one-third of
the outstanding shares are represented at a meeting, a majority of the shares
so represented may adjourn the meeting from time to time without further
notice. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted
at the meeting as originally notified. The Shareholders present at a duly
organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough Shareholders to leave less than a
quorum.
SECTION 8. PROXIES. At all meetings of Shareholders, a Shareholder may
vote by proxy executed in writing by the Shareholder or by his or her duly
authorized attorney-in-fact. Such proxy shall be filed with the Secretary
of the Corporation before or at the time of the meeting. No proxy shall be
valid after eleven months from the date of its execution, unless otherwise
provided by the proxy.
SECTION 9. VOTING SHARES. Each outstanding share entitled to vote shall
be entitled to one vote upon each matter submitted to a vote at a meeting of
Shareholders.
SECTION 10. VOTING OF SHARES BY CERTAIN HOLDERS.
(a) Shares standing in the name of another corporation may be voted by
such officer, agent or proxy as the By-Laws of such corporation may
prescribe, or, in the absence of such provision, as the Board of Directors of
such corporation may determine. A proxy purporting to be executed by a
corporation shall be presumed to be valid and the burden of proving
invalidity shall rest on any challenger.
(b) Shares held by an administrator, executor, guardian or conservator
may be voted by him or her either in person or by proxy, without a transfer
of such shares into his name. Shares standing in the name of a trustee may be
voted by such trustee either in person or by proxy, but no trustee shall be
entitled to vote shares held by him or her without a transfer of such shares
into his or her name.
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(c) Shares standing in the name of a receiver or a trustee in bankruptcy
may be voted by such receiver or trustee, and shares held by or under the
control of a receiver or a trustee in bankruptcy may be voted by such
receiver or trustee without the transfer thereof into his or her name if
authority so to do be contained in an appropriate order of the court by
which such receiver or trustee in bankruptcy was appointed.
(d) Except as otherwise provided, a shareholder whose shares are pledged
shall be entitled to vote such shares until the shares have been transferred
into the name of the pledgee, and thereafter the pledgee shall be entitled to
vote the shares so transferred.
(e) For shares standing in the names of two or more persons, whether
fiduciaries, members of a partnership, joint tenants, tenants in common,
tenants by the entirety or otherwise, or shares for which two or more persons
have the same fiduciary relationship respecting the same shares, unless the
secretary of the Corporation is given written notice to the contrary and is
furnished with a copy of the instrument or order appointing them or creating
the relationship wherein it is so provided, their acts with respect to voting
shall have the following effect:
(1) If only one votes, his act binds all;
(2) If more than one vote, the act of the majority so voting binds all;
(3) If more than one vote, but the vote is evenly split on any
particular matter each faction may vote the securities in question
proportionally, or any person voting the shares, or a beneficiary, if any,
may apply to the Delaware Court of Chancery or other such court as may have
jurisdiction to appoint an additional person to act with the persons so
voting the shares, which shall then be voted as determined by a majority of
such persons and the person appointed by the Court. If the instrument so
filed shows that any such tenancy is held in unequal interests, a majority or
even split for the purpose of this subsection shall be a majority or even
split in interest.
(f) Shares standing in the name of two or more persons as joint tenants,
or tenants in common, or tenants by the entirety, may be voted in person or
by proxy by any one or more of such persons. If more than one of such tenants
shall vote such shares, the vote of the majority shall bind all, but if the
vote is evenly split, then the vote shall be divided among them in proportion
to the number of such tenants voting in person or by proxy unless a different
apportionment of the vote is requested by such tenants.
(g) Shares of its own stock belonging to the corporation shall not be
voted, directly or indirectly, at any meeting and shall not be counted in
determining the total number of outstanding shares at any given time, but
shares of its own stock held by it in a fiduciary capacity may be voted and
shall be counted in determining the total number of outstanding shares at any
given time.
SECTION 11. INFORMAL ACTION BY SHAREHOLDERS. Unless otherwise prohibited
by law, any action required to be taken at a meeting of shareholders, or any
other action which may
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be taken at a meeting of the Shareholders, may be taken without a meeting if
a consent in writing, setting forth the action so taken, shall be signed by
the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting
at which all shares entitled to vote thereon were present and voted. Prompt
notice of the taking of the corporate action without a meeting by less than
unanimous written consent shall be given to those Shareholders who have not
consented in writing.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. GENERAL POWERS. The business and affairs of the Corporation
shall be managed by its Board of Directors.
SECTION 2. NUMBER, TENURE AND QUALIFICATIONS.
(a) The number of Directors of the Corporation shall be not less than
one nor more than twelve (12), the precise number to be determined annually
by a resolution of the Board of Directors prior to mailing notice of any
meeting of the election of Directors. The number of Directors shall not be
changed after the annual meeting except at a special meeting of Shareholders
called for that purpose.
(b) The Directors shall be classified in respect to the time for
which they shall severally hold office, by dividing them into three (3)
classes, each class consisting of approximately one-third of the whole number
of the Board of Directors or such other number as determined by the Board.
The first two classes shall consist of three Directors and the last class
shall consist of two directors. The Directors of the first class shall be
elected for a term of one (1) year, the Directors of the second class shall
be elected for a term of two (2) years, and the directors of the third
class shall be elected for a term of three (3) years. At each annual
election, the successors to the Directors of that class whose term shall
expire in that year shall be elected to hold office for the term of three
years (or such other lesser term as determined by the Board), so that the
term of office of one class of directors shall expire in each year.
(c) Directors need not be residents of the State of Delaware or
Shareholders of the Corporation.
(d) Any Director may resign at any time upon written notice to the
Corporation.
SECTION 3. COMMITTEES.
(a) The Board of Directors may, be resolution passed by a majority of
the whole Board, designate one or more committees, each committee to consist
of two or more of the Directors of the Corporation. The Board may designate
one or more Directors as alternate members of any committee, who may replace
any absent or disqualified member at any meeting of the committee. In the
absence or disqualification of a member of a committee, the
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member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in the
place of any such absent or disqualified member. The Board of Directors shall
have the following standing committees:
(1) The Executive Committee shall be comprised of the Chairman and such
other persons selected by the Board. Any person selected who is not a
Director shall be a non-voting member of the Executive Committee. The
Executive Committee conducts the affairs and business of the Company
between meetings of the Board of Directors, subject to certain
limitations set forth in the Company's Certificate of Incorporation.
The Executive Committee shall have and may exercise all the powers
and authority of the Board of Directors except for those specifically
enumerated in subparagraph (b) of Section 3 hereof as being reserved
for the action of the full Board of Directors.
(2) The Compensation Committee shall be comprised of the Chairman, all
non-employee directors, and such other persons as selected by the
Board. The Compensation Committee determines the compensation to be
paid by the Company to its officers.
(3) The Audit Committee shall be comprised of all non-employee directors
of the Corporation. The Audit Committee assists the Board of
Directors in fulfilling its responsibilities with respect to the
Company's accounting and financial reporting activities.
(4) The Stock Option Committee shall be comprised of all non-employee
directors of the Corporation. The Stock Option Committee administers
the Corporation's Stock Option Plans and determines to whom such
options will be granted and the number of shares of Common Stock to
be included in such options.
(b) Any such committee, to the extent provided in the resolution of the
Board of Directors, shall have and may exercise all the powers and authority
of the Board of Directors in the management of the business and affairs of
the Corporation, and may authorize the seal of the Corporation to be affixed
to all papers which may require it, but no such committee shall have the
power or authority:
(1) to amend the Certificate of Incorporation;
(2) to adopt an agreement of merger or consolidation;
(3) to recommend to the Shareholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets;
(4) to recommend to the Shareholders a dissolution of the
Corporation or a revocation of a dissolution;
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(5) to amend the By-Laws of Corporation; or
(6) unless the resolution so provides, to declare a dividend or to
authorize the issuance of stock.
(c) Each such committee shall keep a written record of its facts and
proceedings and shall submit such record to the Board of Directors at each
regular meeting thereof and at such other times as requested by the Board of
Directors. Failure to submit such record, or failure of the Board to
approve any action indicated therein will not, however, invalidate such
action to the extent it has been carried out by the Corporation prior to the
time the record of such action was, or should have been, submitted to the
Board of Directors as herein provided.
SECTION 4. REGULAR MEETINGS. A regular meeting of the Board of Directors
shall be held without other notice than this By-Law immediately after, and
at the same place as, the annual meeting of the Shareholders. The Board of
Directors may provide, by resolution, the time and place, either within or
without the State of Delaware, for the holding of additional regular meetings
without other notice than such resolution.
SECTION 5. SPECIAL MEETINGS. Special meeting of the Board of Directors
may be called by or at the request of the Chairman of the Board of Directors,
the President, or a majority of the Directors. The person or persons
authorized to call special meetings of the Board of Directors may fix any
place, either within or without the State of Delaware, as the place for
holding any special meeting of the Board of Directors called by them.
SECTION 6. NOTICE. Notice of any special meeting shall be given at least
five (5) day previously thereto by written notice delivered personally or
mailed to each Director at his or her business address, or on one (1) day's
notice by telegraph or telegram. If mailed, such notice shall be deemed to
be delivered when deposited in the United States Mail so addressed, with
postage thereon prepaid. If notice be given by telegram, such notice shall
be deemed to be delivered when the telegram is delivered to the telegraph
company. Any Director may waive notice of any meeting. The attendance of a
director at a meeting shall constitute a waiver of notice of such meeting,
except where a Director attends a meeting for the express purpose of
objecting to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor
the purpose of, any regular or special meeting of the Board of Directors need
be specified in the notice or waiver of notice of such meeting.
SECTION 7. QUORUMS INTERESTED DIRECTORS.
(a) A majority of the number of directors fixed in the manner provided by
Section 2 of this Article III shall constitute a quorum for the transaction
of business at any meeting of the Board of Directors, but if less than such
majority is present at a meeting, a majority of the Directors present may
adjourn the meeting from time to time without further notice.
(b) No contract or transaction between the Corporation and one or more of
the Directors or officers, or between the Corporation and any other
corporation, partnership,
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association, or other organization in which one or more of the Directors or
officers are Directors or officers, or have a financial interest, shall be
void or voidable solely for this reason, or solely because the Director or
officer is present at or participates in the meeting of the Board or
committee thereof which authorizes the contract or transaction, or solely
because his, her or their votes are counted for such purpose, if:
(1) The material facts as to his or her relationship or interest and
as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board or committee in good faith
authorizes the contract or transaction by the affirmative votes of a majority
of the disinterested Directors, even though the disinterested Directors be
less than a quorum; or
(2) The material facts as to his or her relationship or interest and
as to the contract or transaction are disclosed or are known to the
Shareholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by the Shareholders; or
(3) The contract or transaction is fair as to the Corporation as of
the time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof, or the Shareholders.
(c) Common or interested Directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
SECTION 8. MANNER OF ACTING. The act of the majority of the Directors
present at a meeting at which a quorum is present shall be the act of the
Board of Directors.
SECTION 9. VACANCIES. Any vacancy occurring in the Board of
Directors may be filled by the affirmative vote of a majority of the
remaining directors though less than a quorum of the Board of Directors. A
Director elected to fill a vacancy shall be elected for the unexpired term of
his or her predecessor in office. Any directorship may also be filled by
election at any annual meeting or at a special meeting of Shareholders called
for that purpose.
SECTION 10. COMPENSATION. When authorized by resolution of the Board of
Directors, Directors and members of any committee of the Board of Directors
shall be entitled to reasonable compensation for their services as Directors
and members of any such committee and to reimbursement for any reasonable
expenses incurred in attending such meeting. Any person receiving compensation
under this provision shall not be barred from serving the Corporation in any
other capacity and receiving reasonable compensation for such other services.
SECTION 11. PRESUMPTION OF ASSENT.
(a) A Director of the Corporation who is present at a meeting of the
Board of Directors at which action on any corporate matter is taken shall be
presumed to have assented to the action taken unless his or her dissent
shall be entered in the minutes of the meeting or
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unless he or she shall file his or her written dissect to such action with the
person acting as the Secretary of the meeting before the adjournment thereof
or shall forward such dissent by registered mail to the Secretary of the
Corporation immediately after the adjournment of the meeting. Such right to
the dissent shall not apply to a Director who voted in favor of such action.
(b) A member of the Board of Directors or of any committee designated
by the Board of Directors shall, in the performance of his or her duties, be
fully protected in relying in good faith upon the books of account or reports
made to the Corporation by any of its officers, or by an independent certified
public accountant, or by an appraiser selected with reasonable care by the
Board of Directors of by any such committee, or in relying in good faith upon
other records of the Corporation.
SECTION 12. INFORMAL ACTION.
(a) Any action required or permitted to be taken at any meeting of the
Board of Directors or any committee thereof may be taken without a meeting,
if all members of the Board or committee, as the case may be, consent thereto
in writing and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
(b) The members of the Board of Directors or any committee designated by
such Board may participate in a meeting of such Board or committee by means
of conference telephone or similar communication equipment by means of which
all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this subsection shall constitute
presence in person at such meeting.
ARTICLE IV
OFFICERS
Section 1. Number. The officers of the corporation shall be a
President, a Secretary and a Treasurer each of whom shall be elected by the
Board of Directors. The Board of Directors may from time to time elect a
Chairman of the Board, one or more Vice Presidents, Assistant Secretaries,
Assistant Treasurers and such other officers, assistant officers, and agents
as may be deemed necessary. Any two or more offices may be held by the same
person, except the offices of President and Secretary.
Section 2. Election and Term of Offices. The officers of the Corporation
to be elected by the Board of Directors shall be elected annually by the
Board of Directors at the first meeting of the Board held after each annual
meeting of the Shareholders. If the election of officers shall not be held at
such meeting, such election shall be held as soon thereafter as conveniently
may be. Each officer shall hold office until his or her successor shall have
been duly elected and shall have qualified or until his or her death or until
he or she shall resign or shall have been removed in the manner hereinafter
provided.
Section 3. Removal. Any officer or agent elected or appointed by the
Board of Directors may be removed by the Board of Directors whenever in its
judgment the best
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interests of the Corporation would be served thereby, but such removal shall
be without prejudice to the contract rights, if any, of the person so removed.
SECTION 4. VACANCIES. A vacancy in any office because of death,
resignation, removal disqualification or otherwise may be filled by the Board
of Directors for the unexpired portion of the term.
SECTION 5. THE CHAIRMAN OF THE BOARD. The Chairman of the Board, if one
be elected, shall, when present, preside at all meetings of the Board of
Directors. Except where required or permitted by law to be otherwise signed,
the Chairman shall possess the same power as the President to sign all
certificates, contracts, and other instruments of the Corporation which may
be authorized by the Board of Directors.
SECTION 6. THE PRESIDENT. The President shall have general supervision
of the business and affairs of the Corporation and over its several officers,
subject to the control of the Board of Directors. The President shall, when
present, preside at all meetings of the Shareholders. It shall be his or her
duty to have general and active management of the business of the Corporation
and to see that all orders and resolutions of the Board of Directors are
carried into effect. The President may sign, with the Secretary or any other
proper officer of the Corporation thereunto authorized by the Board of
Directors, certificates for shares of the Corporation, any deeds, mortgages,
bonds, contracts, or other instruments which the Board of Directors has
authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the Board of Directors or by these
By-Laws to some other officer or agent of the Corporation, or shall be required
by law to be otherwise signed or executed; and in general shall perform all
duties as may be prescribed by the Board of Directors from time to time. The
President may also be known as the Chief Executive Officer.
SECTION 7. THE VICE PRESIDENT. In the absence of the President or in the
event of his or her death, inability or refusal to act, the Executive Vice
President, if one be elected, shall perform the duties of the President, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the President. The Executive Vice President, if there be
one, may sign, with the Secretary or an Assistant Secretary. certificates for
shares of the Corporation; and shall perform such other duties as from time
to time may be assigned to him or her by the President or by the Board of
Directors. Any additional Vice Presidents shall perform such duties as the
President or the Board of Directors may from time to time designate.
SECTION 8. THE SECRETARY. The Secretary shall; (a) keep the minutes of
the Shareholders, the Board of Directors meetings and of the Committees
thereof in one or more books provided for that purpose; (b) see that all
notices are duly given in accordance with the provisions of these By-Laws or
as required by law; (c) be custodian of the corporate records and of the seal
of the Corporation and see that the seal of the Corporation is affixed to all
documents, the execution of which on behalf of the Corporation under its seal
is duly authorized; (d) sign with the President or the Executive Vice
President, certificates for shares of the Corporation the issuance of which
shall have been authorized by resolution of the
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Board of Directors, and (e) in general perform all duties as from time to
time may be assigned to him or her by the President or by the Board of
Directors.
SECTION 9. THE TREASURER. If required by the Board of Directors, the
Treasurer shall give a bond for the faithful discharge of his or her duties
in such sum and with such surety or sureties as the Board of Directors may
determine. The Treasurer shall: (a) have charge and custody of and be
responsible for all fund and securities of the Corporation; receive and give
receipts for monies due and payable to the Corporation from any source
whatsoever; and deposit all such monies in the name of the Corporation in
such banks, trust companies or other depositaries as shall be selected in
accordance with the provisions of Article V of these By-Laws and (b) in
general perform all of the duties incident to the office of Treasurer and
such other duties as from time to time may be assigned to him or her by the
President or by the Board of Directors. The Treasurer may also be known as the
Chief Financial Officer.
SECTION 10. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The
Assistant Secretaries, when authorized by the Board of Directors, may sign
with the President or a Vice President certificates for shares of the
Corporation, the issuance of which shall have been authorized by a resolution
of the Board of Directors. The Assistant Treasurers shall respectively, if
required by the Board of Directors, give bonds for the faithful discharge of
their duties in such sums and with such sureties as the Board of Directors
shall determine. The Assistant Secretaries and Assistant Treasurers, in
general, shall perform such duties as shall be assigned to them by the
Secretary or the Treasurer, respectively, or by the President or by the Board
of Directors.
SECTION 11. SALARIES. The salaries of the Officers shall be fixed from
time to time by the President (except as to the President's own salary) or
the Board of Directors, and no officer shall be prevented from receiving such
salary by reason of the fact that he or she is also a Director of the
Corporation.
ARTICLE V
CONTRACTS, LOANS, CHECK AND DEPOSITS
SECTION 1. CONTRACTS. The Board of Directors or Executive Committee
may authorize any officer or officers, agent or agents, to enter into any
contract or execute and deliver any instrument in the name of and on behalf
of the Corporation, and such authority may be general or confined to
specified instances.
SECTION 2. LOANS. No loans shall be contracted on behalf of the
Corporation and no evidences of indebtedness shall be issued in its name
unless authorized by a resolution of the Board of Directors or Executive
Committee. Such authority may be general or confined to specific instances.
SECTION 3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for
the payment of money, notes or other evidence of indebtedness issued in the
name of the Corporation, shall be signed by such officer or officers, agent
or agents of the Corporation and in such manner
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as shall from time to time be determined by resolution of the Board of
Directors or Executive Committee.
SECTION 4. DEPOSITS. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation in such
banks, trust companies or other depositaries as the Board of Directors or
Executive Committee may select.
ARTICLE VI
CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 1. CERTIFICATES FOR SHARES. Certificates representing shares of
the Corporation shall be in such form as shall be determined by the Board of
Directors. Such certificates shall be signed by the President or the
Executive Vice President and by the Secretary or an Assistant Secretary. If
such certificate is countersigned (1) by a transfer agent other than the
Corporation or its employee, or (2) by a registrar other than the corporation
or its employee, any signature on the certificate may be a facsimile. All
certificates for shares shall be consecutively numbered or otherwise
identified. The name and address of the person to whom the shares are issued
and the date of issue shall be entered on the stock transfer books of the
Corporation. All certificates surrendered to the Corporation for transfer
shall be canceled and no new certificate shall be issued until the former
certificate for a like number of shares have been surrendered or canceled,
except that in case of a lost, destroyed or mutilated certificate a new one
may be issued therefor upon such terms and indemnity to the Corporation as
the Board of Directors may prescribe.
SECTION 2. TRANSFER OF SHARES. Transfer of shares of the Corporation
shall be made only on the stock transfer books of the Corporation by the
holder of record thereof or by his or her legal representative, who shall
furnish proper evidence of authority to transfer, or by his or her attorney
thereunto authorized by power of attorney duly executed and filed with the
Secretary of the Corporation, and surrender for cancellation of the
certificate for such shares. The person in which name shares stand on the
books of the Corporation shall be deemed by the Corporation to be the owner
thereof for all purposes.
SECTION 3. RESTRICTION ON TRANSFER OF SHARES. The Board of Directors may
place such restrictions on the transfer (whether inter-vivos, by inheritance,
or by testamentary disposition), hypothecation or other disposition of shares
of capital stock issued by the Corporation, which, in its judgment, it deems
advisable, and which do not unreasonably restrain alienation. Such
restrictions may, among other things, require that the Corporation be
furnished with an opinion of Counsel, satisfactory to it, that such transfer,
hypothecation, or other disposition will not result in the violation of any
Federal or State law relating to securities transactions, or with a statement
or ruling from the governmental agency administering such law to that effect.
The same restrictions may be placed on previously issued and outstanding
shares of capital stock of the Corporation if the consent of the holders
thereof is obtained, Any such restrictions placed on the transfer,
hypothecation or other
12
<PAGE>
disposition of the shares of capital stock of the Corporation shall be
conspicuously noted on each certificate covering shares affected by such
restrictions.
SECTION 4. TRANSFER AGENT OR REGISTRAR. The Board of Directors may
appoint one or more transfer agents or transfer clerks and one or more
registrars, and may require all certificates for shares to bear the signature
or signatures of any of them.
ARTICLE VII
FISCAL YEAR
The fiscal year of the Corporation shall end on the last day of December
of each year.
ARTICLE VIII
DIVIDENDS
The Board of Directors may from time to time declare, and the Corporation
may pay, dividends on its outstanding share in the manner and upon the terms
and conditions provided by law.
ARTICLE IX
CORPORATE SEAL
The Board of Directors shall provide a corporate seal which shall be
circular in form and have inscribed thereon the name of the Corporation, the
state of incorporation, the date of same, and the words "Corporate Seal." In
lieu of the corporate seal, when so authorized by the Board of Directors, a
facsimile thereof may be impressed or affixed or reproduced, or the word
"(Seal)" may be placed adjacent to the signature of the authorized officer of
the Corporation.
ARTICLE X
INDEMNIFICATION
SECTION 1. COVERAGE. The Corporation shall indemnify to the full extent
permitted by law any person who is or was made, or threatened to be made, a
party to an action, suit or proceeding (whether civil, criminal,
administrative or investigative) by reason of the fact that he or she or his
or her testator or intestate is or was a Director, officer or employee of the
Corporation or serves or served any other corporation or enterprise at the
request of the Corporation.
SECTION 2. INSURANCE. The Corporation shall have the power to purchase
and maintain insurance on behalf of any person who is or was a Director,
officer, employee or
13
<PAGE>
agent of the Corporation, or who is or was serving at the request of the
Corporation as a Director, officer, employee or agent of another corporation
or other enterprise, against any liability asserted against him or her and
incurred by him or her in any such capacity or arising out of his or her
status as such, whether or not the Corporation would have the power to
indemnify him or her against such liability under the provisions of these
By-Laws.
ARTICLE XI
AMENDMENTS
These By-Laws may be altered, amended or repealed and new By-Laws may be
adopted by the Board of Directors at any regular or special meeting of the
Board of Directors.
14
<PAGE>
CERTIFICATE OF AMENDMENT TO THE BYLAWS
OF
FOILMARK, INC.
ARTICLE III
The first sentence of Article III (a) shall read as follows:
The number of Directors of the Corporation shall be fixed at ten (10).
The number of Directors shall not be changed after the annual meeting except at
a special meeting of Shareholders called for that purpose.
<PAGE>
CERTIFICATE OF AMENDMENT TO THE BYLAWS
OF
FOILMARK, INC.
ARTICLE VII
Article VII shall read as follows:
The fiscal year of the Corporation shall end on the last day of June of
each year.
<PAGE>
Exhibit 10.1
This VOTING AGREEMENT (the "Agreement") is made and entered into as of
the 23rd day of April, 1999, by and among Foilmark, Inc., a Delaware corporation
(the "Company") and such holders of shares of common stock, par value $.01 per
share, of the Company ("Common Stock") identified on SCHEDULE A attached hereto
(collectively, the "Foilmark Stockholders") and the holders of shares of common
stock, par value $.01 per share, of Holopak Technologies, Inc. ("Holopak")
identified on SCHEDULE B attached hereto (collectively, the "Holopak
Stockholders"). The Foilmark Stockholders and the Holopak Stockholders are
collectively hereinafter referred to as the "Shareholders".
W I T N E S S E T H:
WHEREAS, the Company entered into an Agreement and Plan of Merger dated
November 17, 1998, (the "Merger Agreement") which provides for the merger of
Holopak with and into Foilmark Acquisition Corporation, a Delaware corporation
and a wholly-owned subsidiary of Foilmark ("Sub") with Sub as the surviving
corporation (the "Merger"); and
WHEREAS, pursuant to the Merger Agreement, the Merger Consideration to
be received by each Holopak Stockholder at the Effective Time of the Merger
consists of shares of Common Stock and cash; and
WHEREAS, in connection with the effectiveness of the Merger, the
Company and the Shareholders have agreed to provide for the future voting of
shares of Common Stock, solely with respect to the election of directors of the
Company; and
WHEREAS, the initial designees to the Board of Directors of the Company
designated by Bradford Associates as the representative (the "Holopak
Representative") of the Holopak Stockholders (the "Holopak Designees") are
identified on SCHEDULE C attached hereto and the initial designees to the Board
of Directors of the Company designated by Frank J. Olsen, Jr. as the
representative (the "Foilmark Representative") of the Foilmark Stockholders (the
"Foilmark Designees") are identified on SCHEDULE D attached hereto.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
VOTING
1.01 Each of the Foilmark Stockholders and the Holopak
Stockholders, respectively, agrees to hold all shares of voting capital stock of
the Company registered in his respective name or beneficially owned by him as of
the date hereof (and any and all other securities of the Company legally or
beneficially acquired by such Stockholder after the date hereof (including
shares of Common Stock acquired in the Merger) (hereinafter collectively
<PAGE>
referred to as the "Shares") subject to, and to vote the Shares in accordance
with, the provisions of this Agreement.
1.02 (a) On each occasion at which the holders of voting
capital stock of the Company meet, or act by written consent in lieu of meeting,
for the purpose of electing directors, each Shareholder agrees to vote all
Shares for the election of each Foilmark Designee and each Holopak Designee at
such time as such Designee is up for election. In the event that any of the
Foilmark or the Holopak Designees, as the case may be, ceases to serve as a
director of the Company due to death, resignation or removal of said director,
then the Foilmark Representative or Holopak Representative, as the case may be,
shall nominate an individual to replace said director. The Shareholders agree
that they shall, consistent with and subject to their fiduciary obligations as
directors, vote in their capacity as directors of the Company for such Foilmark
or Holopak Designees, as the case may be.
(b) The Company shall furnish written notice to the Shareholders at
least twenty (20) days prior to any such meeting or proposed action by written
consent in lieu of meeting. The Holopak Representative or Foilmark
Representative, as the case may be, shall furnish written notice to each of the
Shareholders and the Board, no later than fifteen (15) days following receipt of
the Company's notice of any such meeting, or proposed action by written consent
in lieu of meeting, of the name of the Foilmark or Holopak Designees designated
by them to the extent that one or more of the initial Foilmark or Holopak
Designees, as the case may be, is unable to stand for reelection for any reason.
In the absence of such notice, the directors then serving on behalf of and/or
previously nominated by the Foilmark or Holopak Representative, as the case may
be, in accordance with this Section 1.02 shall be deemed to be the Foilmark of
Holopak Representative, as the case may be.
(c) In addition, each of the Shareholders shall vote all of his Shares
on each occasion at which the holders of voting capital stock of the Company
meet, or act by written consent in lieu thereof: (i) to cause the Board of
Directors of the Company (the "Board") to be fixed at ten and to name those
classes consisting of four Class I Directors, three Class II Directors
(consisting of two Holopak Designees and one Foilmark Designee), and three Class
III Directors (consisting of one Holopak Designee and two Foilmark Designees);
(ii) to cause Robert J. Simon to serve as Chairman of the Board; (iii) to cause
the Board to establish an Executive Committee, which shall consist of Robert J.
Simon, Michael S. Mathews, Frank J. Olsen, Jr. and Michael Foster, of which
Robert J. Simon shall be the Chairman; (iv) to cause the Board to establish a
Compensation Committee, which shall consist of Thomas R. Schwarz, Edward
Sullivan, Michael S. Mathews and Robert J. Simon, of which Thomas R. Schwarz
shall be the Chairman; and (v) to cause the Board to establish an Audit
Committee, which shall consist of Michael Foster, Michael Bertuch, Brian Kelly
and Harvey Share, of which Michael Bertuch shall be the Chairman.
1.03 Each of the Foilmark Designees and the Holopak Designees
shall serve as directors of the Company shall serve until his successor is
elected and qualified or until his earlier resignation or removal. The
Shareholders shall not take, or support the taking of, any action to remove a
director nominated by a particular person or entity unless such person or entity
has
2
<PAGE>
requested that such director be removed (in which case the Shareholders shall
cooperate in effecting such removal and electing a replacement).
1.04 Concurrently or forthwith after with the execution of this
Agreement, there shall be imprinted or otherwise placed on certificates
representing the shares of Common Stock held by the Shareholder the following
restrictive legend (the "Legend"):
"The shares represented by this Certificate are subject to the terms
and conditions of a Voting Agreement, dated as of April 23, 1999,
which places certain restrictions on the voting of the shares
represented hereby. Any person accepting any interest in such shares
other than in an open market transaction shall be deemed to agree to
and shall become bound by all the provisions of such Voting Agreement.
A copy of such Voting Agreement will be furnished to the record holder
of this certificate without charge upon written request to Foilmark,
Inc. at its principal place of business."
1.05 The Company agrees that, during the term of this
Agreement, it will not remove, and will not permit to be removed (upon
registration of transfer, reissuance of otherwise), the Legend from any such
certificate and will place or cause to be placed the Legend on any new
certificate issued to represent Shares theretofore represented by a certificate
carrying the Legend; provided, however, in the event that any Shares are sold or
otherwise transferred (a) in "brokers' transactions" or in "transactions
directly with a market maker" (as those terms are used in Rule 144 under the
Securities Act of 1933, as amended (the "1933 Act")), (b) pursuant to an
effective registration under the 1933 Act, or (c) to an unaffiliated third party
in an arm's length transaction (collectively the transactions referred to in
clauses (a), (b) and (c) being hereinafter referred to as "Bona Fide Sales"),
certificates for Shares representing the Shares so sold shall not bear the
Legend, and the Company shall give appropriate direction to the Company's
transfer agent with respect to removal of said Legend in such case.
1.06 The provisions of this Agreement shall be binding upon
the successors in interest to any of the Shares. Except as otherwise provided in
Section 1.05 hereof, the Company shall not permit the transfer of any of the
Shares on its books or issue a new certificate representing any of the Shares
unless and until the person to whom such security is to be transferred shall
have executed a written agreement, substantially in the form of this agreement,
pursuant to which such person becomes a party to this Agreement and agrees to be
bound by all the provisions hereof as if such person were a Shareholder.
1.07 Except as provided by this Agreement, each Shareholder
shall exercise the full rights of a stockholder with respect to the Shares.
1.08 Should the Foilmark Representative become unable to serve
in such capacity due to death or mental incapacity, the remaining Foilmark
Designees shall, by majority vote, elect a replacement Foilmark Representative.
Should the Holopak Representative become unable to
3
<PAGE>
serve in such capacity for any reason, the General Partner of Bradford Venture
Partners, L.P. shall designate a replacement Holopak Representative.
ARTICLE II
EFFECT; TERMINATION
2.01 This Agreement shall commence on the date first above written and
shall terminate in its entirety on the earlier of
(a) the fifth anniversary of the date hereof;
(b) the date on which either the Foilmark Stockholders as a
group or the Holopak Stockholders as a group own less than five percent (5%) of
the outstanding shares of Common Stock; or
(c) the date as of which the parties hereto terminate this
Agreement by written consent of all parties hereto.
The foregoing notwithstanding, this Agreement shall not apply to and be of no
further force and effect as to any Shares which are sold or otherwise
transferred in a Bona Fide Sale.
ARTICLE III
MISCELLANEOUS
3.01 Each Shareholder represents and warrants that (a) he now owns the
Shares, free and clear of liens or encumbrances, and has not, prior to the date
of this Agreement, executed or delivered any proxy or entered into any other
voting agreement or similar arrangement other than one which has expired or
terminated prior to the date hereof, and (b) such Shareholder has full power and
capacity to execute, deliver and perform this Agreement, which has been duly
executed and delivered by, and evidences the valid and binding obligation of,
such Shareholder enforceable in accordance with its terms.
3.02 If and whenever the Shares are sold, the Shareholder or the
personal representative of the Shareholder shall do all things and execute and
deliver all documents and make all transfers and cause any transferee of the
Shares to do all things and execute and deliver all documents, as may be
necessary to consummate such sale consistent with this Agreement.
3.03 The parties hereto hereby declare that it is impossible to measure
in money the damages which will accrue to a party hereto or to their heirs,
personal representatives, or assigns by reason of a failure to perform any of
the obligations under this Agreement and agree that the terms of this Agreement
shall be specifically enforceable. If any party hereto or his heirs, personal
representatives, or assigns institutes any action or proceeding to specifically
enforce the provisions hereof, any person against whom such action or proceeding
is brought hereby waives
4
<PAGE>
the claim or defense therein that such party or such personal representative has
an adequate remedy at law, and such person shall not offer in any such action or
proceeding the claim or defense that such remedy at law exists.
3.04 This Agreement, and the rights of the parties hereto, shall be
governed by and construed in accordance with the laws of the State of Delaware.
3.05 This Agreement may be amended only by an instrument in writing
signed by all parties hereto.
3.06 If any provision of this Agreement is held to be invalid or
unenforceable, the validity and enforceability of the remaining provisions of
this Agreement shall not be affected thereby.
3.07 This Agreement shall be binding upon the parties hereto and,
except as otherwise provided in Section 1.05 hereof, this Agreement may not be
assigned.
3.08 In the event that, subsequent to the date of this Agreement, any
shares or other securities (other than any shares or securities of another
corporation issued to the Company's stockholders pursuant to a plan of merger or
consolidation) are issued on, or in exchange for, any of the Shares held by the
Shareholders by reason of any stock dividend, stock split, consolidation of
shares, reclassification or consolidation involving the Company, such shares or
securities shall be deemed to be Shares for purposes of this Agreement.
3.09 This Agreement may be executed in one or more counterparts, each
of which will be deemed an original but all of which together shall constitute
one and the same agreement.
3.10 No waivers of any breach of this Agreement extended by any party
hereto to any other party shall be construed as a waiver of any rights or
remedies of any other party hereto or with respect to any subsequent breach.
3.11 All capitalized terms not defined herein shall have the meanings
designated in the Merger Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
FOILMARK, INC.
By: /s/
------------------------------
Frank J. Olsen, Jr.
Chief Executive Officer
5
<PAGE>
HOLOPAK STOCKHOLDERS:
/s/
- --------------------------
Robert J. Simon
OVERSEAS PRIVATE INVESTOR BRADFORD VENTURE PARTNERS, L.P.
PARTNERS
By: Robert J. Simon By: Robert J. Simon
- -------------------------- ----------------------------
/s/ /s/
- -------------------------- -------------------------------
James L. Rooney Harvey S. Share
/s/ /s/
- -------------------------- -------------------------------
Brian Kelly Michael S. Mathews
6
<PAGE>
FOILMARK STOCKHOLDERS:
/s/ /s/
- ---------------------------- -------------------------------
Frank J. Olsen, Jr. Thomas R. Schwarz
/s/ /s/
- ---------------------------- -------------------------------
Martin A. Olsen Carol Robie
/s/ /s/
- ---------------------------- -------------------------------
Edward Sullivan Kenneth Harris
/s/ /s/
- ---------------------------- ------------------------------
Leonard Mintz Michael Foster
/s/
- ----------------------------
Michael Bertuch
7
<PAGE>
SCHEDULE A
FOILMARK STOCKHOLDERS
<TABLE>
<CAPTION>
Prior to Effectiveness After Effectiveness
of Merger of Merger
---------------------- -------------------
No. of Percentage No. of Percentage
Holder Shares (1) Interest Shares (1) Interest
------ ---------- -------- ---------- --------
<S> <C> <C> <C> <C>
Martin A. Olsen 527,477 12.6% 507,477 6.4%
3299 Old Barn Road East
Ponte Vedra Beach, FL 32082
Frank J. Olsen, Jr. 490,659 11.7% 505,649 6.4%
13 Country Farm Road
Stratham, NH 03885
Leonard Mintz 244,696 5.9% 244,696 3.1%
89 Blueberry Lane
Westwood, MA 02090
Carol Robie 212,409 5.1% 216,409 2.7%
53 Munroe Drive
East Hampstead, NH 03826
Edward Sullivan 158,834 3.8% 163,334 2.1%
2150 Anchor Court
Newbury Park, CA 91320
Michael Foster 10,000 * 10,000 *
WPI Group, Inc.
1155 Elm Street
Manchester, NH 03101
Thomas Schwarz 5,000 * 5,000 *
60 Westcliff Road
Weston, MA 02193
Kenneth Harris 131,022 3.1% 131,022 1.7%
25 Hale Street
Newburyport, MA 01950
</TABLE>
- ------------------------
(1) Includes shares underlying stock options
8
<PAGE>
SCHEDULE B
HOLOPAK STOCKHOLDERS
<TABLE>
<CAPTION>
Prior to Effectiveness of Merger After Effectiveness of Merger
-------------------------------- -----------------------------
No. of Percentage No. of Percentage
Holder Shares (1) Interest Shares (1) Interest
- ------ ---------- -------- ---------- --------
<S> <C> <C> <C> <C>
Robert J. Simon 17,880 * 18,527 *
c/o Bradford Ventures, Ltd.
One Rockefeller Plaza
Suite 1722
New York, NY 10020
Bradford Venture Partners, L.P. 753,086 22.5% 835,925 10.6%
44 Nassau Street
Princeton, NJ 08542
Overseas Private Investor Partners 753,086 22.5% 835,925 10.6%
Clarendon House
Church Street
Hamilton 5-31 Bermuda
James L. Rooney 66,667 2.0% 131,000 1.7%
1272 Camelot Lane
Lemont, IL 60439
Harvey S. Share 2,000 * 2,220 *
250 Ridgedale Avenue
Suite R6
Florham Park, NJ 07932
Brian Kelly 8,000 * 8,880 *
c/o DelaFoil, Inc.
232 Shoemaker Road
Pottstown, PA 19464
Michael S. Mathews 17,880 * 18,527 *
193 Elm Road
Princeton, NJ 08540
</TABLE>
- ---------------
*Less than one percent.
(1) Includes shares underlying stock options
9
<PAGE>
SCHEDULE C
HOLOPAK DESIGNEES
<TABLE>
<CAPTION>
Director Class Term Ending
-------- ----- -----------
<S> <C> <C>
Robert J. Simon I 2001
James L. Rooney II 2000
Harvey S. Share III 1999
Brian Kelly I 2001
Michael S. Mathews II 2000
</TABLE>
10
<PAGE>
SCHEDULE D
FOILMARK DESIGNEES
<TABLE>
<CAPTION>
Director Class Term Ending
-------- ----- -----------
<S> <C> <C>
Frank J. Olsen, Jr. I 2001
Michael Bertuch III 1999
Thomas R. Schwarz I 2001
Edward Sullivan II 2000
Michael Foster III 1999
</TABLE>
11
<PAGE>
Exhibit 10.2
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made this 23rd day of
April, 1999 between Foilmark, Inc., a Delaware corporation having its principal
office located in Newburyport, Massachusetts ("Indemnitor"), and Thomas R.
Schwarz ("Indemnitee").
RECITALS
A. Indemnitee is now serving, or is considering serving, Indemnitor as a
director or officer, or both, and the parties hereto acknowledge that
Indemnitee's service to Indemnitor may expose Indemnitee to claims, lawsuits and
risk of liability.
B. The parties further recognize that the compensation or fees payable to
Indemnitee for the performance of such services may not be commensurate with the
potential risk involved and Indemnitor is now, or may in the future be, unable
adequately to provide insurance at a reasonable cost to cover such risk.
C. Accordingly, as an inducement to Indemnitee to serve or to continue to
serve Indemnitor, Indemnitor and Indemnitee desire to enter into this Agreement
pursuant to which Indemnitor undertakes to indemnify Indemnitee against such
risk to the fullest extent permitted to do so by Delaware law.
NOW, THEREFORE, Indemnitor and Indemnitee hereby agree as follows:
1. INDEMNIFICATION
1.1. Subject to Section 1.3 hereof, Indemnitor shall hold harmless
and indemnify Indemnitee of and from all claims and all
threatened, pending or completed actions, suits or proceedings,
whether civil, criminal, administrative or investigative,
involving Indemnitee by reason of the fact that he is or was a
director or officer, or both, of Indemnitor (or by reason of the
fact that he is or was serving at the request of Indemnitor as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) including
all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement, to the broadest and maximum extent
permitted by Delaware law.
1.2. Without limiting the generality of Section 1.1 hereof, the
indemnification provided for by Section 1.1 shall:
1.2.1. extend to and fully cover any Loss (as hereinafter
defined) arising from any Claim (as hereinafter
defined), whether such Claim is made against Indemnitee,
individually or jointly with others, by reason of any
Wrongful Act (as hereinafter defined) made in
Indemnitee's capacity as a director, officer, employee
and/or agent;
<PAGE>
1.2.2. include all rights of indemnification provided to
Indemnitee under the existing provisions of the
certificate of incorporation or bylaws of Indemnitor;
and
1.2.3. include all such additional rights of indemnification
that could possibly be provided to Indemnitee under the
certificate of incorporation or bylaws of Indemnitor or
under Delaware law.
1.3. Nothing in this Section 1 shall be deemed to provide any
indemnity by Indemnitor to Indemnitee on account of any matter:
1.3.1. in respect to remuneration paid to Indemnitee but only
to the extent that it shall be determined by a final
judgment or other final adjudication that such
remuneration was in violation of law; or
1.3.2. for an accounting of profits made from the purchase or
sale by Indemnitee of securities of either Indemnitor
within the meaning of Section 16(b) of the Securities
Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state or local statutory law;
or
1.3.3. brought about or contributed to by the dishonesty of
Indemnitee but only to the extent that a final judgment
or other final adjudication adverse to Indemnitee
establishes that acts of active and deliberate
dishonesty were committed or attempted by Indemnitee
with actual dishonest purpose and intent and were
material to the adjudication; or
1.3.4. that is based on or attributable to Indemnitee having
gained any personal profit or advantage to which
Indemnitee was not entitled but only to the extent that
a final judgment or other final adjudication adverse to
Indemnitee establishes that Indemnitee in fact gained
such personal profit or other advantage to which
Indemnitee was not entitled; or
1.3.5. in respect of which any final decision by a court having
jurisdiction of the matter shall have determined that
indemnification is not lawful.
1.4. Indemnitor promptly shall pay the expenses (including attorneys'
fees) incurred by Indemnitee in defending any civil or criminal
action, suit or proceeding, as such expenses are incurred and
prior to the final disposition of such action, suit or
proceeding, provided that Indemnitor receives a written
undertaking by or on behalf of Indemnitee to repay such amounts
advanced if it is ultimately determined that he is not entitled
to be indemnified by Indemnitor as authorized under this
Agreement. Indemnitor shall perform its obligation under this
Section 1.4 until such time as it may be determined that
Indemnitee is not entitled to indemnification by virtue of one
or more of the exclusions set forth in Section 1.3 hereof.
-2-
<PAGE>
1.5. The reference in Section 1.1 hereof to Delaware law is to
Delaware law as the same exists from time to time, but, in the
case of any amendment to or change in Delaware law, subject to
Section 6, only to the extent that such amendment or change
permits Indemnitor to provide broader or greater rights of
indemnification than is permitted to Indemnitor prior to such
amendment or change.
2. DEFINITIONS
2.1. The term "Loss" shall mean any amount Indemnitee is obligated or
asserted to be obligated to pay in respect of Indemnitee's legal
liability, whether actual or asserted, for a Wrongful Act, and
shall include damages, judgments, settlements and costs,
attorneys' fees, charges and expenses incurred in the defense of
Claims.
2.2. The term "Wrongful Act" shall mean any breach of duty, neglect,
error, misstatement, misleading statement, omission or other act
done or wrongfully attempted by Indemnitee so alleged by any
claimant or any other matter claimed against Indemnitee by
reason of Indemnitee being a director, officer, employee or
agent.
2.3. The term "Subsidiary" shall mean any corporation of which at
least 50% of the equity securities is owned by Indemnitor or by
another Subsidiary.
2.4. The term "Claim" shall mean any suit, action, proceeding,
investigation or claim threatened, whether civil, criminal,
administrative or investigative, made or instituted against or
with respect to Indemnitee or the property of Indemnitee, or
both, either by or in the right of Indemnitor or by or in the
right of a party other than Indemnitor.
3. SCOPE OF INDEMNIFICATION
This Agreement and the indemnification provided herein:
3.1. Shall apply to Indemnitee in Indemnitee's capacity or capacities
as a director, officer, employee or agent, or the like, of (i)
Indemnitor, (ii) any Subsidiary or former Subsidiary, or any
Subsidiary that is hereafter acquired or created by Indemnitor
and (iii) corporations, partnerships, associations and entities
other than Indemnitor and Indemnitor's Subsidiaries where
Indemnitee is directed or requested to serve by Indemnitor;
3.2. Shall be irrevocable and perpetual, and subject to Section 1.3
hereof, shall apply to any Claim arising or Loss incurred after
the date hereof, whether made or incurred prior to or after the
termination of Indemnitee's services to Indemnitor as a
director, officer, employee or agent; and
-3-
<PAGE>
3.3. Subject to Section 1.3 hereof, shall cover Losses arising from
any Claims made against the estate, heirs, legal representatives
or assigns of Indemnitee.
4. AGREEMENT TO BE LIBERALLY CONSTRUED
The purpose of this Agreement is to induce Indemnitee either to serve
Indemnitor in one or more of the capacities described in Section 3.1
hereof, or to induce Indemnitee to continue to serve in one or more such
capacities. Indemnitor acknowledges that, but for this Agreement and the
expectation by Indemnitee that Indemnitor will perform each of its
obligations hereunder, Indemnitee may not consent to serve or to
continue to serve Indemnitor in such capacities. Therefore, it is the
intention of Indemnitor and Indemnitee that this Agreement be liberally
construed so as to achieve its purpose of, subject to Section 1 hereof,
protecting Indemnitee from and against Losses arising from Wrongful
Acts. Indemnitor will not do or fail to do any act that would or might
prevent or hinder the performance by Indemnitor of its obligations under
this Agreement.
5. AGREEMENT NOT EXCLUSIVE
The rights and benefits of Indemnitee, and the obligations of
Indemnitor, under this Agreement shall be in addition to, and shall not
supersede or be in lieu of, the provisions (if any) in the certificate
of incorporation or bylaws of Indemnitor relating to the indemnification
of Indemnitee by Indemnitor; the provisions of policies of insurance of
Indemnitor; the provisions of policies of insurance or indemnification
arrangements provided by persons or entities other than Indemnitor; or
applicable law. Notwithstanding anything to the contrary in this
Agreement, Indemnitor shall defend, indemnify and hold harmless
Indemnitee to the full extent permitted from time to time by applicable
law. Indemnitor, however, shall not be liable to Indemnitee to make any
payment with respect to any claim made against Indemnitee for which
payment is actually made to Indemnitee under a valid and collectible
insurance policy, except with respect to any excess beyond the amount of
the payment under such policy.
6. SEVERABILITY
Nothing in this Agreement is intended to require or shall be construed
as requiring Indemnitor to do or fail to do any act in violation of
applicable law. If any provision of this Agreement is finally
determined by a court of competent jurisdiction to require Indemnitor
to do or fail to do such an act, such provision shall be limited or
modified in its application to the extent necessary to avoid a
violation of law, and as so limited or modified such provision and the
balance of this Agreement shall be enforceable in accordance with their
terms.
7. CHOICE OF LAW
This Agreement shall be governed by, and its provisions construed in
accordance with, the laws of the State of Delaware without regard to
provisions concerning conflict of laws.
-4-
<PAGE>
8. CHOICE OF FORUM
Any action instituted by or on behalf of Indemnitor under this Agreement
or to enforce or interpret any provision of this Agreement shall be
brought only in the state courts of the State of Delaware and in no
other court. If any action is instituted in any court by Indemnitee
under this Agreement or to enforce or interpret any of its terms,
Indemnitor hereby consents, and will at such time consent, to the
exclusive jurisdiction and exclusive venue of such court, and shall
cooperate with any request by Indemnitee to transfer or remove such
action to another court.
9. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon Indemnitor and its successors and
assigns, and shall inure to the benefit of Indemnitee or Indemnitee's
estate, heirs, legal representatives and assigns.
10. MODIFICATION, AMENDMENT OR WAIVER
No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both the parties hereto. Any term
or provision of this Agreement may be waived at any time by the party
entitled to the benefit thereof, but only by a written instrument
executed by such party. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other
provision hereof nor shall such waiver constitute a continuing waiver.
11. ATTORNEYS' FEES
If any action is instituted by Indemnitee under this Agreement to
enforce or interpret any of the terms of this Agreement, Indemnitee
shall be entitled to be paid all court costs and expenses, including
attorneys' fees, incurred by Indemnitee with respect to such action,
unless as a part of such action the court determines that each of the
material assertions made by Indemnitee as a part of such action were not
made in good faith or were frivolous. If any action is instituted by or
in the name of the Indemnitor under this Agreement to enforce or
interpret any of the terms of this Agreement, Indemnitee shall be
entitled to be paid all court costs and expenses, including reasonable
attorneys' fees, incurred by Indemnitee in defense of such action
(including with respect to Indemnitee's counterclaims and cross claims
made in such action), unless as a part of such action the court
determines that each of the Indemnitee's material defenses to such
action were made in bad faith or were frivolous.
12. COUNTERPARTS
This Agreement may be signed in any number of counterparts, each of
which will be an original, with the same effect as if the signatures
hereto were upon the same instrument.
-5-
<PAGE>
13. CONTENTS OF AGREEMENT
This Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof and supersedes all prior agreements
or understandings between the parties regarding such matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FOILMARK, INC.
/s/
By: FRANK J. OLSEN, JR.
----------------------------------------
Title: PRESIDENT AND CHIEF EXECUTIVE OFFICER
/s/
--------------------------------------------
Thomas R. Schwarz
-6-
<PAGE>
Exhibit 10.3
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made this 23rd day of
April, 1999 between Foilmark, Inc., a Delaware corporation having its principal
office located in Newburyport, Massachusetts ("Indemnitor"), and Frank J. Olsen,
Jr.("Indemnitee").
RECITALS
A. Indemnitee is now serving, or is considering serving, Indemnitor as a
director or officer, or both, and the parties hereto acknowledge that
Indemnitee's service to Indemnitor may expose Indemnitee to claims, lawsuits and
risk of liability.
B. The parties further recognize that the compensation or fees payable to
Indemnitee for the performance of such services may not be commensurate with the
potential risk involved and Indemnitor is now, or may in the future be, unable
adequately to provide insurance at a reasonable cost to cover such risk.
C. Accordingly, as an inducement to Indemnitee to serve or to continue to
serve Indemnitor, Indemnitor and Indemnitee desire to enter into this Agreement
pursuant to which Indemnitor undertakes to indemnify Indemnitee against such
risk to the fullest extent permitted to do so by Delaware law.
NOW, THEREFORE, Indemnitor and Indemnitee hereby agree as follows:
1. INDEMNIFICATION
1.1. Subject to Section 1.3 hereof, Indemnitor shall hold harmless
and indemnify Indemnitee of and from all claims and all
threatened, pending or completed actions, suits or proceedings,
whether civil, criminal, administrative or investigative,
involving Indemnitee by reason of the fact that he is or was a
director or officer, or both, of Indemnitor (or by reason of the
fact that he is or was serving at the request of Indemnitor as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) including
all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement, to the broadest and maximum extent
permitted by Delaware law.
1.2. Without limiting the generality of Section 1.1 hereof, the
indemnification provided for by Section 1.1 shall:
1.2.1. extend to and fully cover any Loss (as hereinafter
defined) arising from any Claim (as hereinafter
defined), whether such Claim is made against Indemnitee,
individually or jointly with others, by reason of any
Wrongful Act (as hereinafter defined) made in
Indemnitee's capacity as a director, officer, employee
and/or agent;
<PAGE>
1.2.2. include all rights of indemnification provided to
Indemnitee under the existing provisions of the
certificate of incorporation or bylaws of Indemnitor;
and
1.2.3. include all such additional rights of indemnification
that could possibly be provided to Indemnitee under the
certificate of incorporation or bylaws of Indemnitor or
under Delaware law.
1.3. Nothing in this Section 1 shall be deemed to provide any
indemnity by Indemnitor to Indemnitee on account of any matter:
1.3.1. in respect to remuneration paid to Indemnitee but only
to the extent that it shall be determined by a final
judgment or other final adjudication that such
remuneration was in violation of law; or
1.3.2. for an accounting of profits made from the purchase or
sale by Indemnitee of securities of either Indemnitor
within the meaning of Section 16(b) of the Securities
Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state or local statutory law;
or
1.3.3. brought about or contributed to by the dishonesty of
Indemnitee but only to the extent that a final judgment
or other final adjudication adverse to Indemnitee
establishes that acts of active and deliberate
dishonesty were committed or attempted by Indemnitee
with actual dishonest purpose and intent and were
material to the adjudication; or
1.3.4. that is based on or attributable to Indemnitee having
gained any personal profit or advantage to which
Indemnitee was not entitled but only to the extent that
a final judgment or other final adjudication adverse to
Indemnitee establishes that Indemnitee in fact gained
such personal profit or other advantage to which
Indemnitee was not entitled; or
1.3.5. in respect of which any final decision by a court having
jurisdiction of the matter shall have determined that
indemnification is not lawful.
1.4. Indemnitor promptly shall pay the expenses (including attorneys'
fees) incurred by Indemnitee in defending any civil or criminal
action, suit or proceeding, as such expenses are incurred and
prior to the final disposition of such action, suit or
proceeding, provided that Indemnitor receives a written
undertaking by or on behalf of Indemnitee to repay such amounts
advanced if it is ultimately determined that he is not entitled
to be indemnified by Indemnitor as authorized under this
Agreement. Indemnitor shall perform its obligation under this
Section 1.4 until such time as it may be determined that
Indemnitee is not entitled to indemnification by virtue of one
or more of the exclusions set forth in Section 1.3 hereof.
-2-
<PAGE>
1.5. The reference in Section 1.1 hereof to Delaware law is to
Delaware law as the same exists from time to time, but, in the
case of any amendment to or change in Delaware law, subject to
Section 6, only to the extent that such amendment or change
permits Indemnitor to provide broader or greater rights of
indemnification than is permitted to Indemnitor prior to such
amendment or change.
2. DEFINITIONS
2.1. The term "Loss" shall mean any amount Indemnitee is obligated or
asserted to be obligated to pay in respect of Indemnitee's legal
liability, whether actual or asserted, for a Wrongful Act, and
shall include damages, judgments, settlements and costs,
attorneys' fees, charges and expenses incurred in the defense of
Claims.
2.2. The term "Wrongful Act" shall mean any breach of duty, neglect,
error, misstatement, misleading statement, omission or other act
done or wrongfully attempted by Indemnitee so alleged by any
claimant or any other matter claimed against Indemnitee by
reason of Indemnitee being a director, officer, employee or
agent.
2.3. The term "Subsidiary" shall mean any corporation of which at
least 50% of the equity securities is owned by Indemnitor or by
another Subsidiary.
2.4. The term "Claim" shall mean any suit, action, proceeding,
investigation or claim threatened, whether civil, criminal,
administrative or investigative, made or instituted against or
with respect to Indemnitee or the property of Indemnitee, or
both, either by or in the right of Indemnitor or by or in the
right of a party other than Indemnitor.
3. SCOPE OF INDEMNIFICATION
This Agreement and the indemnification provided herein:
3.1. Shall apply to Indemnitee in Indemnitee's capacity or capacities
as a director, officer, employee or agent, or the like, of (i)
Indemnitor, (ii) any Subsidiary or former Subsidiary, or any
Subsidiary that is hereafter acquired or created by Indemnitor
and (iii) corporations, partnerships, associations and entities
other than Indemnitor and Indemnitor's Subsidiaries where
Indemnitee is directed or requested to serve by Indemnitor;
3.2. Shall be irrevocable and perpetual, and subject to Section 1.3
hereof, shall apply to any Claim arising or Loss incurred after
the date hereof, whether made or incurred prior to or after the
termination of Indemnitee's services to Indemnitor as a
director, officer, employee or agent; and
-3-
<PAGE>
3.3. Subject to Section 1.3 hereof, shall cover Losses arising from
any Claims made against the estate, heirs, legal representatives
or assigns of Indemnitee.
4. AGREEMENT TO BE LIBERALLY CONSTRUED
The purpose of this Agreement is to induce Indemnitee either to serve
Indemnitor in one or more of the capacities described in Section 3.1
hereof, or to induce Indemnitee to continue to serve in one or more such
capacities. Indemnitor acknowledges that, but for this Agreement and the
expectation by Indemnitee that Indemnitor will perform each of its
obligations hereunder, Indemnitee may not consent to serve or to
continue to serve Indemnitor in such capacities. Therefore, it is the
intention of Indemnitor and Indemnitee that this Agreement be liberally
construed so as to achieve its purpose of, subject to Section 1 hereof,
protecting Indemnitee from and against Losses arising from Wrongful
Acts. Indemnitor will not do or fail to do any act that would or might
prevent or hinder the performance by Indemnitor of its obligations under
this Agreement.
5. AGREEMENT NOT EXCLUSIVE
The rights and benefits of Indemnitee, and the obligations of
Indemnitor, under this Agreement shall be in addition to, and shall not
supersede or be in lieu of, the provisions (if any) in the certificate
of incorporation or bylaws of Indemnitor relating to the indemnification
of Indemnitee by Indemnitor; the provisions of policies of insurance of
Indemnitor; the provisions of policies of insurance or indemnification
arrangements provided by persons or entities other than Indemnitor; or
applicable law. Notwithstanding anything to the contrary in this
Agreement, Indemnitor shall defend, indemnify and hold harmless
Indemnitee to the full extent permitted from time to time by applicable
law. Indemnitor, however, shall not be liable to Indemnitee to make any
payment with respect to any claim made against Indemnitee for which
payment is actually made to Indemnitee under a valid and collectible
insurance policy, except with respect to any excess beyond the amount of
the payment under such policy.
6. SEVERABILITY
Nothing in this Agreement is intended to require or shall be construed
as requiring Indemnitor to do or fail to do any act in violation of
applicable law. If any provision of this Agreement is finally determined
by a court of competent jurisdiction to require Indemnitor to do or fail
to do such an act, such provision shall be limited or modified in its
application to the extent necessary to avoid a violation of law, and as
so limited or modified such provision and the balance of this Agreement
shall be enforceable in accordance with their terms.
7. CHOICE OF LAW
This Agreement shall be governed by, and its provisions construed in
accordance with, the laws of the State of Delaware without regard to
provisions concerning conflict of laws.
-4-
<PAGE>
8. CHOICE OF FORUM
Any action instituted by or on behalf of Indemnitor under this Agreement
or to enforce or interpret any provision of this Agreement shall be
brought only in the state courts of the State of Delaware and in no
other court. If any action is instituted in any court by Indemnitee
under this Agreement or to enforce or interpret any of its terms,
Indemnitor hereby consents, and will at such time consent, to the
exclusive jurisdiction and exclusive venue of such court, and shall
cooperate with any request by Indemnitee to transfer or remove such
action to another court.
9. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon Indemnitor and its successors and
assigns, and shall inure to the benefit of Indemnitee or Indemnitee's
estate, heirs, legal representatives and assigns.
10. MODIFICATION, AMENDMENT OR WAIVER
No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both the parties hereto. Any term
or provision of this Agreement may be waived at any time by the party
entitled to the benefit thereof, but only by a written instrument
executed by such party. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other
provision hereof nor shall such waiver constitute a continuing waiver.
11. ATTORNEYS' FEES
If any action is instituted by Indemnitee under this Agreement to
enforce or interpret any of the terms of this Agreement, Indemnitee
shall be entitled to be paid all court costs and expenses, including
attorneys' fees, incurred by Indemnitee with respect to such action,
unless as a part of such action the court determines that each of the
material assertions made by Indemnitee as a part of such action were not
made in good faith or were frivolous. If any action is instituted by or
in the name of the Indemnitor under this Agreement to enforce or
interpret any of the terms of this Agreement, Indemnitee shall be
entitled to be paid all court costs and expenses, including reasonable
attorneys' fees, incurred by Indemnitee in defense of such action
(including with respect to Indemnitee's counterclaims and cross claims
made in such action), unless as a part of such action the court
determines that each of the Indemnitee's material defenses to such
action were made in bad faith or were frivolous.
12. COUNTERPARTS
This Agreement may be signed in any number of counterparts, each of
which will be an original, with the same effect as if the signatures
hereto were upon the same instrument.
-5-
<PAGE>
13. CONTENTS OF AGREEMENT
This Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof and supersedes all prior agreements
or understandings between the parties regarding such matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FOILMARK, INC.
/s/
--------------------------------------------
By: Frank J. Olsen, Jr.
Title: President and Chief Executive Officer
/s/
--------------------------------------------
Frank J. Olsen, Jr.
-6-
<PAGE>
Exhibit 10.4
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made this 23rd day of
April, 1999 between Foilmark, Inc., a Delaware corporation having its principal
office located in Newburyport, Massachusetts ("Indemnitor"), and Philip Leibel
("Indemnitee").
RECITALS
A. Indemnitee is now serving, or is considering serving, Indemnitor as a
director or officer, or both, and the parties hereto acknowledge that
Indemnitee's service to Indemnitor may expose Indemnitee to claims, lawsuits and
risk of liability.
B. The parties further recognize that the compensation or fees payable to
Indemnitee for the performance of such services may not be commensurate with the
potential risk involved and Indemnitor is now, or may in the future be, unable
adequately to provide insurance at a reasonable cost to cover such risk.
C. Accordingly, as an inducement to Indemnitee to serve or to continue to
serve Indemnitor, Indemnitor and Indemnitee desire to enter into this Agreement
pursuant to which Indemnitor undertakes to indemnify Indemnitee against such
risk to the fullest extent permitted to do so by Delaware law.
NOW, THEREFORE, Indemnitor and Indemnitee hereby agree as follows:
1. INDEMNIFICATION
1.1. Subject to Section 1.3 hereof, Indemnitor shall hold harmless
and indemnify Indemnitee of and from all claims and all
threatened, pending or completed actions, suits or proceedings,
whether civil, criminal, administrative or investigative,
involving Indemnitee by reason of the fact that he is or was a
director or officer, or both, of Indemnitor (or by reason of the
fact that he is or was serving at the request of Indemnitor as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) including
all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement, to the broadest and maximum extent
permitted by Delaware law.
1.2. Without limiting the generality of Section 1.1 hereof, the
indemnification provided for by Section 1.1 shall:
1.2.1. extend to and fully cover any Loss (as hereinafter
defined) arising from any Claim (as hereinafter
defined), whether such Claim is made against Indemnitee,
individually or jointly with others, by reason of any
Wrongful Act (as hereinafter defined) made in
Indemnitee's capacity as a director, officer, employee
and/or agent;
<PAGE>
1.2.2. include all rights of indemnification provided to
Indemnitee under the existing provisions of the
certificate of incorporation or bylaws of Indemnitor;
and
1.2.3. include all such additional rights of indemnification
that could possibly be provided to Indemnitee under the
certificate of incorporation or bylaws of Indemnitor or
under Delaware law.
1.3. Nothing in this Section 1 shall be deemed to provide any
indemnity by Indemnitor to Indemnitee on account of any matter:
1.3.1. in respect to remuneration paid to Indemnitee but only
to the extent that it shall be determined by a final
judgment or other final adjudication that such
remuneration was in violation of law; or
1.3.2. for an accounting of profits made from the purchase or
sale by Indemnitee of securities of either Indemnitor
within the meaning of Section 16(b) of the Securities
Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state or local statutory law;
or
1.3.3. brought about or contributed to by the dishonesty of
Indemnitee but only to the extent that a final judgment
or other final adjudication adverse to Indemnitee
establishes that acts of active and deliberate
dishonesty were committed or attempted by Indemnitee
with actual dishonest purpose and intent and were
material to the adjudication; or
1.3.4. that is based on or attributable to Indemnitee having
gained any personal profit or advantage to which
Indemnitee was not entitled but only to the extent that
a final judgment or other final adjudication adverse to
Indemnitee establishes that Indemnitee in fact gained
such personal profit or other advantage to which
Indemnitee was not entitled; or
1.3.5. in respect of which any final decision by a court having
jurisdiction of the matter shall have determined that
indemnification is not lawful.
1.4. Indemnitor promptly shall pay the expenses (including attorneys'
fees) incurred by Indemnitee in defending any civil or criminal
action, suit or proceeding, as such expenses are incurred and
prior to the final disposition of such action, suit or
proceeding, provided that Indemnitor receives a written
undertaking by or on behalf of Indemnitee to repay such amounts
advanced if it is ultimately determined that he is not entitled
to be indemnified by Indemnitor as authorized under this
Agreement. Indemnitor shall perform its obligation under this
Section 1.4 until such time as it may be determined that
Indemnitee is not entitled to indemnification by virtue of one
or more of the exclusions set forth in Section 1.3 hereof.
-2-
<PAGE>
1.5. The reference in Section 1.1 hereof to Delaware law is to
Delaware law as the same exists from time to time, but, in the
case of any amendment to or change in Delaware law, subject to
Section 6, only to the extent that such amendment or change
permits Indemnitor to provide broader or greater rights of
indemnification than is permitted to Indemnitor prior to such
amendment or change.
2. DEFINITIONS
2.1. The term "Loss" shall mean any amount Indemnitee is obligated or
asserted to be obligated to pay in respect of Indemnitee's legal
liability, whether actual or asserted, for a Wrongful Act, and
shall include damages, judgments, settlements and costs,
attorneys' fees, charges and expenses incurred in the defense of
Claims.
2.2. The term "Wrongful Act" shall mean any breach of duty, neglect,
error, misstatement, misleading statement, omission or other act
done or wrongfully attempted by Indemnitee so alleged by any
claimant or any other matter claimed against Indemnitee by
reason of Indemnitee being a director, officer, employee or
agent.
2.3. The term "Subsidiary" shall mean any corporation of which at
least 50% of the equity securities is owned by Indemnitor or by
another Subsidiary.
2.4. The term "Claim" shall mean any suit, action, proceeding,
investigation or claim threatened, whether civil, criminal,
administrative or investigative, made or instituted against or
with respect to Indemnitee or the property of Indemnitee, or
both, either by or in the right of Indemnitor or by or in the
right of a party other than Indemnitor.
3. SCOPE OF INDEMNIFICATION
This Agreement and the indemnification provided herein:
3.1. Shall apply to Indemnitee in Indemnitee's capacity or capacities
as a director, officer, employee or agent, or the like, of (i)
Indemnitor, (ii) any Subsidiary or former Subsidiary, or any
Subsidiary that is hereafter acquired or created by Indemnitor
and (iii) corporations, partnerships, associations and entities
other than Indemnitor and Indemnitor's Subsidiaries where
Indemnitee is directed or requested to serve by Indemnitor;
3.2. Shall be irrevocable and perpetual, and subject to Section 1.3
hereof, shall apply to any Claim arising or Loss incurred after
the date hereof, whether made or incurred prior to or after the
termination of Indemnitee's services to Indemnitor as a
director, officer, employee or agent; and
-3-
<PAGE>
3.3. Subject to Section 1.3 hereof, shall cover Losses arising from
any Claims made against the estate, heirs, legal representatives
or assigns of Indemnitee.
4. AGREEMENT TO BE LIBERALLY CONSTRUED
The purpose of this Agreement is to induce Indemnitee either to serve
Indemnitor in one or more of the capacities described in Section 3.1
hereof, or to induce Indemnitee to continue to serve in one or more such
capacities. Indemnitor acknowledges that, but for this Agreement and the
expectation by Indemnitee that Indemnitor will perform each of its
obligations hereunder, Indemnitee may not consent to serve or to
continue to serve Indemnitor in such capacities. Therefore, it is the
intention of Indemnitor and Indemnitee that this Agreement be liberally
construed so as to achieve its purpose of, subject to Section 1 hereof,
protecting Indemnitee from and against Losses arising from Wrongful
Acts. Indemnitor will not do or fail to do any act that would or might
prevent or hinder the performance by Indemnitor of its obligations under
this Agreement.
5. AGREEMENT NOT EXCLUSIVE
The rights and benefits of Indemnitee, and the obligations of
Indemnitor, under this Agreement shall be in addition to, and shall not
supersede or be in lieu of, the provisions (if any) in the certificate
of incorporation or bylaws of Indemnitor relating to the indemnification
of Indemnitee by Indemnitor; the provisions of policies of insurance of
Indemnitor; the provisions of policies of insurance or indemnification
arrangements provided by persons or entities other than Indemnitor; or
applicable law. Notwithstanding anything to the contrary in this
Agreement, Indemnitor shall defend, indemnify and hold harmless
Indemnitee to the full extent permitted from time to time by applicable
law. Indemnitor, however, shall not be liable to Indemnitee to make any
payment with respect to any claim made against Indemnitee for which
payment is actually made to Indemnitee under a valid and collectible
insurance policy, except with respect to any excess beyond the amount of
the payment under such policy.
6. SEVERABILITY
Nothing in this Agreement is intended to require or shall be construed
as requiring Indemnitor to do or fail to do any act in violation of
applicable law. If any provision of this Agreement is finally determined
by a court of competent jurisdiction to require Indemnitor to do or fail
to do such an act, such provision shall be limited or modified in its
application to the extent necessary to avoid a violation of law, and as
so limited or modified such provision and the balance of this Agreement
shall be enforceable in accordance with their terms.
7. CHOICE OF LAW
This Agreement shall be governed by, and its provisions construed in
accordance with, the laws of the State of Delaware without regard to
provisions concerning conflict of laws.
-4-
<PAGE>
8. CHOICE OF FORUM
Any action instituted by or on behalf of Indemnitor under this Agreement
or to enforce or interpret any provision of this Agreement shall be
brought only in the state courts of the State of Delaware and in no
other court. If any action is instituted in any court by Indemnitee
under this Agreement or to enforce or interpret any of its terms,
Indemnitor hereby consents, and will at such time consent, to the
exclusive jurisdiction and exclusive venue of such court, and shall
cooperate with any request by Indemnitee to transfer or remove such
action to another court.
9. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon Indemnitor and its successors and
assigns, and shall inure to the benefit of Indemnitee or Indemnitee's
estate, heirs, legal representatives and assigns.
10. MODIFICATION, AMENDMENT OR WAIVER
No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both the parties hereto. Any term
or provision of this Agreement may be waived at any time by the party
entitled to the benefit thereof, but only by a written instrument
executed by such party. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other
provision hereof nor shall such waiver constitute a continuing waiver.
11. ATTORNEYS' FEES
If any action is instituted by Indemnitee under this Agreement to
enforce or interpret any of the terms of this Agreement, Indemnitee
shall be entitled to be paid all court costs and expenses, including
attorneys' fees, incurred by Indemnitee with respect to such action,
unless as a part of such action the court determines that each of the
material assertions made by Indemnitee as a part of such action were not
made in good faith or were frivolous. If any action is instituted by or
in the name of the Indemnitor under this Agreement to enforce or
interpret any of the terms of this Agreement, Indemnitee shall be
entitled to be paid all court costs and expenses, including reasonable
attorneys' fees, incurred by Indemnitee in defense of such action
(including with respect to Indemnitee's counterclaims and cross claims
made in such action), unless as a part of such action the court
determines that each of the Indemnitee's material defenses to such
action were made in bad faith or were frivolous.
12. COUNTERPARTS
This Agreement may be signed in any number of counterparts, each of
which will be an original, with the same effect as if the signatures
hereto were upon the same instrument.
-5-
<PAGE>
13. CONTENTS OF AGREEMENT
This Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof and supersedes all prior agreements
or understandings between the parties regarding such matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FOILMARK, INC.
/s/
-----------------------------------------
By: Frank J. Olsen
Title: President and Chief Executive Officer
/s/
--------------------------------------------
Philip Leibel
-6-
<PAGE>
Exhibit 10.5
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made this 23rd day of
April, 1999 between Foilmark, Inc., a Delaware corporation having its principal
office located in Newburyport, Massachusetts ("Indemnitor"), and Michael Foster
("Indemnitee").
RECITALS
A. Indemnitee is now serving, or is considering serving, Indemnitor
as a director or officer, or both, and the parties hereto acknowledge that
Indemnitee's service to Indemnitor may expose Indemnitee to claims, lawsuits and
risk of liability.
B. The parties further recognize that the compensation or fees
payable to Indemnitee for the performance of such services may not be
commensurate with the potential risk involved and Indemnitor is now, or may in
the future be, unable adequately to provide insurance at a reasonable cost to
cover such risk.
C. Accordingly, as an inducement to Indemnitee to serve or to
continue to serve Indemnitor, Indemnitor and Indemnitee desire to enter into
this Agreement pursuant to which Indemnitor undertakes to indemnify Indemnitee
against such risk to the fullest extent permitted to do so by Delaware law.
NOW, THEREFORE, Indemnitor and Indemnitee hereby agree as follows:
1. INDEMNIFICATION
1.1. Subject to Section 1.3 hereof, Indemnitor shall hold harmless
and indemnify Indemnitee of and from all claims and all
threatened, pending or completed actions, suits or proceedings,
whether civil, criminal, administrative or investigative,
involving Indemnitee by reason of the fact that he is or was a
director or officer, or both, of Indemnitor (or by reason of the
fact that he is or was serving at the request of Indemnitor as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) including
all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement, to the broadest and maximum extent
permitted by Delaware law.
1.2. Without limiting the generality of Section 1.1 hereof, the
indemnification provided for by Section 1.1 shall:
1.2.1. extend to and fully cover any Loss (as hereinafter
defined) arising from any Claim (as hereinafter
defined), whether such Claim is made against Indemnitee,
individually or jointly with others, by reason of any
Wrongful Act (as hereinafter defined) made in
Indemnitee's capacity as a director, officer, employee
and/or agent;
<PAGE>
1.2.2. include all rights of indemnification provided to
Indemnitee under the existing provisions of the
certificate of incorporation or bylaws of Indemnitor;
and
1.2.3. include all such additional rights of indemnification
that could possibly be provided to Indemnitee under the
certificate of incorporation or bylaws of Indemnitor or
under Delaware law.
1.3. Nothing in this Section 1 shall be deemed to provide any
indemnity by Indemnitor to Indemnitee on account of any matter:
1.3.1. in respect to remuneration paid to Indemnitee but only
to the extent that it shall be determined by a final
judgment or other final adjudication that such
remuneration was in violation of law; or
1.3.2. for an accounting of profits made from the purchase or
sale by Indemnitee of securities of either Indemnitor
within the meaning of Section 16(b) of the Securities
Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state or local statutory law;
or
1.3.3. brought about or contributed to by the dishonesty of
Indemnitee but only to the extent that a final judgment
or other final adjudication adverse to Indemnitee
establishes that acts of active and deliberate
dishonesty were committed or attempted by Indemnitee
with actual dishonest purpose and intent and were
material to the adjudication; or
1.3.4. that is based on or attributable to Indemnitee having
gained any personal profit or advantage to which
Indemnitee was not entitled but only to the extent that
a final judgment or other final adjudication adverse to
Indemnitee establishes that Indemnitee in fact gained
such personal profit or other advantage to which
Indemnitee was not entitled; or
1.3.5. in respect of which any final decision by a court having
jurisdiction of the matter shall have determined that
indemnification is not lawful.
1.4. Indemnitor promptly shall pay the expenses (including attorneys'
fees) incurred by Indemnitee in defending any civil or criminal
action, suit or proceeding, as such expenses are incurred and
prior to the final disposition of such action, suit or
proceeding, provided that Indemnitor receives a written
undertaking by or on behalf of Indemnitee to repay such amounts
advanced if it is ultimately determined that he is not entitled
to be indemnified by Indemnitor as authorized under this
Agreement. Indemnitor shall perform its obligation under this
Section 1.4 until such time as it may be determined that
Indemnitee is not entitled to indemnification by virtue of one
or more of the exclusions set forth in Section 1.3 hereof.
-2-
<PAGE>
1.5. The reference in Section 1.1 hereof to Delaware law is to
Delaware law as the same exists from time to time, but, in the
case of any amendment to or change in Delaware law, subject to
Section 6, only to the extent that such amendment or change
permits Indemnitor to provide broader or greater rights of
indemnification than is permitted to Indemnitor prior to such
amendment or change.
2. DEFINITIONS
2.1. The term "Loss" shall mean any amount Indemnitee is obligated or
asserted to be obligated to pay in respect of Indemnitee's legal
liability, whether actual or asserted, for a Wrongful Act, and
shall include damages, judgments, settlements and costs,
attorneys' fees, charges and expenses incurred in the defense of
Claims.
2.2. The term "Wrongful Act" shall mean any breach of duty, neglect,
error, misstatement, misleading statement, omission or other act
done or wrongfully attempted by Indemnitee so alleged by any
claimant or any other matter claimed against Indemnitee by
reason of Indemnitee being a director, officer, employee or
agent.
2.3. The term "Subsidiary" shall mean any corporation of which at
least 50% of the equity securities is owned by Indemnitor or by
another Subsidiary.
2.4. The term "Claim" shall mean any suit, action, proceeding,
investigation or claim threatened, whether civil, criminal,
administrative or investigative, made or instituted against or
with respect to Indemnitee or the property of Indemnitee, or
both, either by or in the right of Indemnitor or by or in the
right of a party other than Indemnitor.
3. SCOPE OF INDEMNIFICATION
This Agreement and the indemnification provided herein:
3.1. Shall apply to Indemnitee in Indemnitee's capacity or capacities
as a director, officer, employee or agent, or the like, of (i)
Indemnitor, (ii) any Subsidiary or former Subsidiary, or any
Subsidiary that is hereafter acquired or created by Indemnitor
and (iii) corporations, partnerships, associations and entities
other than Indemnitor and Indemnitor's Subsidiaries where
Indemnitee is directed or requested to serve by Indemnitor;
3.2. Shall be irrevocable and perpetual, and subject to Section 1.3
hereof, shall apply to any Claim arising or Loss incurred after
the date hereof, whether made or incurred prior to or after the
termination of Indemnitee's services to Indemnitor as a
director, officer, employee or agent; and
-3-
<PAGE>
3.3. Subject to Section 1.3 hereof, shall cover Losses arising from
any Claims made against the estate, heirs, legal representatives
or assigns of Indemnitee.
4. AGREEMENT TO BE LIBERALLY CONSTRUED
The purpose of this Agreement is to induce Indemnitee either to serve
Indemnitor in one or more of the capacities described in Section 3.1
hereof, or to induce Indemnitee to continue to serve in one or more such
capacities. Indemnitor acknowledges that, but for this Agreement and the
expectation by Indemnitee that Indemnitor will perform each of its
obligations hereunder, Indemnitee may not consent to serve or to
continue to serve Indemnitor in such capacities. Therefore, it is the
intention of Indemnitor and Indemnitee that this Agreement be liberally
construed so as to achieve its purpose of, subject to Section 1 hereof,
protecting Indemnitee from and against Losses arising from Wrongful
Acts. Indemnitor will not do or fail to do any act that would or might
prevent or hinder the performance by Indemnitor of its obligations under
this Agreement.
5. AGREEMENT NOT EXCLUSIVE
The rights and benefits of Indemnitee, and the obligations of
Indemnitor, under this Agreement shall be in addition to, and shall not
supersede or be in lieu of, the provisions (if any) in the certificate
of incorporation or bylaws of Indemnitor relating to the indemnification
of Indemnitee by Indemnitor; the provisions of policies of insurance of
Indemnitor; the provisions of policies of insurance or indemnification
arrangements provided by persons or entities other than Indemnitor; or
applicable law. Notwithstanding anything to the contrary in this
Agreement, Indemnitor shall defend, indemnify and hold harmless
Indemnitee to the full extent permitted from time to time by applicable
law. Indemnitor, however, shall not be liable to Indemnitee to make any
payment with respect to any claim made against Indemnitee for which
payment is actually made to Indemnitee under a valid and collectible
insurance policy, except with respect to any excess beyond the amount of
the payment under such policy.
6. SEVERABILITY
Nothing in this Agreement is intended to require or shall be construed
as requiring Indemnitor to do or fail to do any act in violation of
applicable law. If any provision of this Agreement is finally determined
by a court of competent jurisdiction to require Indemnitor to do or fail
to do such an act, such provision shall be limited or modified in its
application to the extent necessary to avoid a violation of law, and as
so limited or modified such provision and the balance of this Agreement
shall be enforceable in accordance with their terms.
7. CHOICE OF LAW
This Agreement shall be governed by, and its provisions construed in
accordance with, the laws of the State of Delaware without regard to
provisions concerning conflict of laws.
-4-
<PAGE>
8. CHOICE OF FORUM
Any action instituted by or on behalf of Indemnitor under this Agreement
or to enforce or interpret any provision of this Agreement shall be
brought only in the state courts of the State of Delaware and in no
other court. If any action is instituted in any court by Indemnitee
under this Agreement or to enforce or interpret any of its terms,
Indemnitor hereby consents, and will at such time consent, to the
exclusive jurisdiction and exclusive venue of such court, and shall
cooperate with any request by Indemnitee to transfer or remove such
action to another court.
9. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon Indemnitor and its successors and
assigns, and shall inure to the benefit of Indemnitee or Indemnitee's
estate, heirs, legal representatives and assigns.
10. MODIFICATION, AMENDMENT OR WAIVER
No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both the parties hereto. Any term
or provision of this Agreement may be waived at any time by the party
entitled to the benefit thereof, but only by a written instrument
executed by such party. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other
provision hereof nor shall such waiver constitute a continuing waiver.
11. ATTORNEYS' FEES
If any action is instituted by Indemnitee under this Agreement to
enforce or interpret any of the terms of this Agreement, Indemnitee
shall be entitled to be paid all court costs and expenses, including
attorneys' fees, incurred by Indemnitee with respect to such action,
unless as a part of such action the court determines that each of the
material assertions made by Indemnitee as a part of such action were not
made in good faith or were frivolous. If any action is instituted by or
in the name of the Indemnitor under this Agreement to enforce or
interpret any of the terms of this Agreement, Indemnitee shall be
entitled to be paid all court costs and expenses, including reasonable
attorneys' fees, incurred by Indemnitee in defense of such action
(including with respect to Indemnitee's counterclaims and cross claims
made in such action), unless as a part of such action the court
determines that each of the Indemnitee's material defenses to such
action were made in bad faith or were frivolous.
12. COUNTERPARTS
This Agreement may be signed in any number of counterparts, each of
which will be an original, with the same effect as if the signatures
hereto were upon the same instrument.
-5-
<PAGE>
13. CONTENTS OF AGREEMENT
This Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof and supersedes all prior agreements
or understandings between the parties regarding such matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FOILMARK, INC.
/s/
By: FRANK J. OLSEN, JR.
----------------------------------------
Title: PRESIDENT AND CHIEF EXECUTIVE OFFICER
/s/
--------------------------------------------
Michael Foster
-6-
<PAGE>
Exhibit 10.6
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made this 23rd day of
April, 1999 between Foilmark, Inc., a Delaware corporation having its principal
office located in Newburyport, Massachusetts ("Indemnitor"), and Michael Bertuch
("Indemnitee").
RECITALS
A. Indemnitee is now serving, or is considering serving, Indemnitor as a
director or officer, or both, and the parties hereto acknowledge that
Indemnitee's service to Indemnitor may expose Indemnitee to claims, lawsuits and
risk of liability.
B. The parties further recognize that the compensation or fees payable to
Indemnitee for the performance of such services may not be commensurate with the
potential risk involved and Indemnitor is now, or may in the future be, unable
adequately to provide insurance at a reasonable cost to cover such risk.
C. Accordingly, as an inducement to Indemnitee to serve or to continue to serve
Indemnitor, Indemnitor and Indemnitee desire to enter into this Agreement
pursuant to which Indemnitor undertakes to indemnify Indemnitee against such
risk to the fullest extent permitted to do so by Delaware law.
NOW, THEREFORE, Indemnitor and Indemnitee hereby agree as follows:
1. INDEMNIFICATION
1.1. Subject to Section 1.3 hereof, Indemnitor shall hold harmless
and indemnify Indemnitee of and from all claims and all
threatened, pending or completed actions, suits or proceedings,
whether civil, criminal, administrative or investigative,
involving Indemnitee by reason of the fact that he is or was a
director or officer, or both, of Indemnitor (or by reason of the
fact that he is or was serving at the request of Indemnitor as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) including
all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement, to the broadest and maximum extent
permitted by Delaware law.
1.2. Without limiting the generality of Section 1.1 hereof, the
indemnification provided for by Section 1.1 shall:
1.2.1. extend to and fully cover any Loss (as hereinafter
defined) arising from any Claim (as hereinafter
defined), whether such Claim is made against Indemnitee,
individually or jointly with others, by reason of any
Wrongful Act (as hereinafter defined) made in
Indemnitee's capacity as a director, officer, employee
and/or agent;
<PAGE>
1.2.2. include all rights of indemnification provided to
Indemnitee under the existing provisions of the
certificate of incorporation or bylaws of Indemnitor;
and
1.2.3. include all such additional rights of indemnification
that could possibly be provided to Indemnitee under the
certificate of incorporation or bylaws of Indemnitor or
under Delaware law.
1.3. Nothing in this Section 1 shall be deemed to provide any
indemnity by Indemnitor to Indemnitee on account of any matter:
1.3.1. in respect to remuneration paid to Indemnitee but only
to the extent that it shall be determined by a final
judgment or other final adjudication that such
remuneration was in violation of law; or
1.3.2. for an accounting of profits made from the purchase or
sale by Indemnitee of securities of either Indemnitor
within the meaning of Section 16(b) of the Securities
Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state or local statutory law;
or
1.3.3. brought about or contributed to by the dishonesty of
Indemnitee but only to the extent that a final judgment
or other final adjudication adverse to Indemnitee
establishes that acts of active and deliberate
dishonesty were committed or attempted by Indemnitee
with actual dishonest purpose and intent and were
material to the adjudication; or
1.3.4. that is based on or attributable to Indemnitee having
gained any personal profit or advantage to which
Indemnitee was not entitled but only to the extent that
a final judgment or other final adjudication adverse to
Indemnitee establishes that Indemnitee in fact gained
such personal profit or other advantage to which
Indemnitee was not entitled; or
1.3.5. in respect of which any final decision by a court having
jurisdiction of the matter shall have determined that
indemnification is not lawful.
1.4. Indemnitor promptly shall pay the expenses (including attorneys'
fees) incurred by Indemnitee in defending any civil or criminal
action, suit or proceeding, as such expenses are incurred and
prior to the final disposition of such action, suit or
proceeding, provided that Indemnitor receives a written
undertaking by or on behalf of Indemnitee to repay such amounts
advanced if it is ultimately determined that he is not entitled
to be indemnified by Indemnitor as authorized under this
Agreement. Indemnitor shall perform its obligation under this
Section 1.4 until such time as it may be determined that
Indemnitee is not entitled to indemnification by virtue of one
or more of the exclusions set forth in Section 1.3 hereof.
-2-
<PAGE>
1.5. The reference in Section 1.1 hereof to Delaware law is to
Delaware law as the same exists from time to time, but, in the
case of any amendment to or change in Delaware law, subject to
Section 6, only to the extent that such amendment or change
permits Indemnitor to provide broader or greater rights of
indemnification than is permitted to Indemnitor prior to such
amendment or change.
2. DEFINITIONS
2.1. The term "Loss" shall mean any amount Indemnitee is obligated or
asserted to be obligated to pay in respect of Indemnitee's legal
liability, whether actual or asserted, for a Wrongful Act, and
shall include damages, judgments, settlements and costs,
attorneys' fees, charges and expenses incurred in the defense of
Claims.
2.2. The term "Wrongful Act" shall mean any breach of duty, neglect,
error, misstatement, misleading statement, omission or other act
done or wrongfully attempted by Indemnitee so alleged by any
claimant or any other matter claimed against Indemnitee by
reason of Indemnitee being a director, officer, employee or
agent.
2.3. The term "Subsidiary" shall mean any corporation of which at
least 50% of the equity securities is owned by Indemnitor or by
another Subsidiary.
2.4. The term "Claim" shall mean any suit, action, proceeding,
investigation or claim threatened, whether civil, criminal,
administrative or investigative, made or instituted against or
with respect to Indemnitee or the property of Indemnitee, or
both, either by or in the right of Indemnitor or by or in the
right of a party other than Indemnitor.
3. SCOPE OF INDEMNIFICATION
This Agreement and the indemnification provided herein:
3.1. Shall apply to Indemnitee in Indemnitee's capacity or capacities
as a director, officer, employee or agent, or the like, of (i)
Indemnitor, (ii) any Subsidiary or former Subsidiary, or any
Subsidiary that is hereafter acquired or created by Indemnitor
and (iii) corporations, partnerships, associations and entities
other than Indemnitor and Indemnitor's Subsidiaries where
Indemnitee is directed or requested to serve by Indemnitor;
3.2. Shall be irrevocable and perpetual, and subject to Section 1.3
hereof, shall apply to any Claim arising or Loss incurred after
the date hereof, whether made or incurred prior to or after the
termination of Indemnitee's services to Indemnitor as a
director, officer, employee or agent; and
-3-
<PAGE>
3.3. Subject to Section 1.3 hereof, shall cover Losses arising from
any Claims made against the estate, heirs, legal representatives
or assigns of Indemnitee.
4. AGREEMENT TO BE LIBERALLY CONSTRUED
The purpose of this Agreement is to induce Indemnitee either to serve
Indemnitor in one or more of the capacities described in Section 3.1
hereof, or to induce Indemnitee to continue to serve in one or more such
capacities. Indemnitor acknowledges that, but for this Agreement and the
expectation by Indemnitee that Indemnitor will perform each of its
obligations hereunder, Indemnitee may not consent to serve or to
continue to serve Indemnitor in such capacities. Therefore, it is the
intention of Indemnitor and Indemnitee that this Agreement be liberally
construed so as to achieve its purpose of, subject to Section 1 hereof,
protecting Indemnitee from and against Losses arising from Wrongful
Acts. Indemnitor will not do or fail to do any act that would or might
prevent or hinder the performance by Indemnitor of its obligations under
this Agreement.
5. AGREEMENT NOT EXCLUSIVE
The rights and benefits of Indemnitee, and the obligations of
Indemnitor, under this Agreement shall be in addition to, and shall not
supersede or be in lieu of, the provisions (if any) in the certificate
of incorporation or bylaws of Indemnitor relating to the indemnification
of Indemnitee by Indemnitor; the provisions of policies of insurance of
Indemnitor; the provisions of policies of insurance or indemnification
arrangements provided by persons or entities other than Indemnitor; or
applicable law. Notwithstanding anything to the contrary in this
Agreement, Indemnitor shall defend, indemnify and hold harmless
Indemnitee to the full extent permitted from time to time by applicable
law. Indemnitor, however, shall not be liable to Indemnitee to make any
payment with respect to any claim made against Indemnitee for which
payment is actually made to Indemnitee under a valid and collectible
insurance policy, except with respect to any excess beyond the amount of
the payment under such policy.
6. SEVERABILITY
Nothing in this Agreement is intended to require or shall be construed
as requiring Indemnitor to do or fail to do any act in violation of
applicable law. If any provision of this Agreement is finally determined
by a court of competent jurisdiction to require Indemnitor to do or fail
to do such an act, such provision shall be limited or modified in its
application to the extent necessary to avoid a violation of law, and as
so limited or modified such provision and the balance of this Agreement
shall be enforceable in accordance with their terms.
7. CHOICE OF LAW
This Agreement shall be governed by, and its provisions construed in
accordance with, the laws of the State of Delaware without regard to
provisions concerning conflict of laws.
-4-
<PAGE>
8. CHOICE OF FORUM
Any action instituted by or on behalf of Indemnitor under this Agreement
or to enforce or interpret any provision of this Agreement shall be
brought only in the state courts of the State of Delaware and in no
other court. If any action is instituted in any court by Indemnitee
under this Agreement or to enforce or interpret any of its terms,
Indemnitor hereby consents, and will at such time consent, to the
exclusive jurisdiction and exclusive venue of such court, and shall
cooperate with any request by Indemnitee to transfer or remove such
action to another court.
9. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon Indemnitor and its successors and
assigns, and shall inure to the benefit of Indemnitee or Indemnitee's
estate, heirs, legal representatives and assigns.
10. MODIFICATION, AMENDMENT OR WAIVER
No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both the parties hereto. Any term
or provision of this Agreement may be waived at any time by the party
entitled to the benefit thereof, but only by a written instrument
executed by such party. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other
provision hereof nor shall such waiver constitute a continuing waiver.
11. ATTORNEYS' FEES
If any action is instituted by Indemnitee under this Agreement to
enforce or interpret any of the terms of this Agreement, Indemnitee
shall be entitled to be paid all court costs and expenses, including
attorneys' fees, incurred by Indemnitee with respect to such action,
unless as a part of such action the court determines that each of the
material assertions made by Indemnitee as a part of such action were not
made in good faith or were frivolous. If any action is instituted by or
in the name of the Indemnitor under this Agreement to enforce or
interpret any of the terms of this Agreement, Indemnitee shall be
entitled to be paid all court costs and expenses, including reasonable
attorneys' fees, incurred by Indemnitee in defense of such action
(including with respect to Indemnitee's counterclaims and cross claims
made in such action), unless as a part of such action the court
determines that each of the Indemnitee's material defenses to such
action were made in bad faith or were frivolous.
12. COUNTERPARTS
This Agreement may be signed in any number of counterparts, each of
which will be an original, with the same effect as if the signatures
hereto were upon the same instrument.
-5-
<PAGE>
13. CONTENTS OF AGREEMENT
This Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof and supersedes all prior agreements
or understandings between the parties regarding such matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FOILMARK, INC.
/s/
By: FRANK J. OLSEN, JR.
----------------------------------------
Title: PRESIDENT AND CHIEF EXECUTIVE OFFICER
/s/
--------------------------------------------
Michael Bertuch
-6-
<PAGE>
Exhibit 10.7
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made this 23rd day of
April, 1999 between Foilmark, Inc., a Delaware corporation having its principal
office located in Newburyport, Massachusetts ("Indemnitor"), and Edward Sullivan
("Indemnitee").
RECITALS
A. Indemnitee is now serving, or is considering serving, Indemnitor as a
director or officer, or both, and the parties hereto acknowledge that
Indemnitee's service to Indemnitor may expose Indemnitee to claims,
lawsuits and risk of liability.
B. The parties further recognize that the compensation or fees payable to
Indemnitee for the performance of such services may not be commensurate
with the potential risk involved and Indemnitor is now, or may in the
future be, unable adequately to provide insurance at a reasonable cost to
cover such risk.
C. Accordingly, as an inducement to Indemnitee to serve or to continue to
serve Indemnitor, Indemnitor and Indemnitee desire to enter into this
Agreement pursuant to which Indemnitor undertakes to indemnify Indemnitee
against such risk to the fullest extent permitted to do so by Delaware law.
NOW, THEREFORE, Indemnitor and Indemnitee hereby agree as follows:
1. INDEMNIFICATION
1.1. Subject to Section 1.3 hereof, Indemnitor shall hold harmless
and indemnify Indemnitee of and from all claims and all
threatened, pending or completed actions, suits or proceedings,
whether civil, criminal, administrative or investigative,
involving Indemnitee by reason of the fact that he is or was a
director or officer, or both, of Indemnitor (or by reason of the
fact that he is or was serving at the request of Indemnitor as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) including
all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement, to the broadest and maximum extent
permitted by Delaware law.
1.2. Without limiting the generality of Section 1.1 hereof, the
indemnification provided for by Section 1.1 shall:
1.2.1. extend to and fully cover any Loss (as hereinafter
defined) arising from any Claim (as hereinafter
defined), whether such Claim is made against Indemnitee,
individually or jointly with others, by reason of any
Wrongful Act (as hereinafter defined) made in
Indemnitee's capacity as a director, officer, employee
and/or agent;
<PAGE>
1.2.2. include all rights of indemnification provided to
Indemnitee under the existing provisions of the
certificate of incorporation or bylaws of Indemnitor;
and
1.2.3. include all such additional rights of indemnification
that could possibly be provided to Indemnitee under the
certificate of incorporation or bylaws of Indemnitor or
under Delaware law.
1.3. Nothing in this Section 1 shall be deemed to provide any
indemnity by Indemnitor to Indemnitee on account of any matter:
1.3.1. in respect to remuneration paid to Indemnitee but only
to the extent that it shall be determined by a final
judgment or other final adjudication that such
remuneration was in violation of law; or
1.3.2. for an accounting of profits made from the purchase or
sale by Indemnitee of securities of either Indemnitor
within the meaning of Section 16(b) of the Securities
Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state or local statutory law;
or
1.3.3. brought about or contributed to by the dishonesty of
Indemnitee but only to the extent that a final judgment
or other final adjudication adverse to Indemnitee
establishes that acts of active and deliberate
dishonesty were committed or attempted by Indemnitee
with actual dishonest purpose and intent and were
material to the adjudication; or
1.3.4. that is based on or attributable to Indemnitee having
gained any personal profit or advantage to which
Indemnitee was not entitled but only to the extent that
a final judgment or other final adjudication adverse to
Indemnitee establishes that Indemnitee in fact gained
such personal profit or other advantage to which
Indemnitee was not entitled; or
1.3.5. in respect of which any final decision by a court having
jurisdiction of the matter shall have determined that
indemnification is not lawful.
1.4. Indemnitor promptly shall pay the expenses (including attorneys'
fees) incurred by Indemnitee in defending any civil or criminal
action, suit or proceeding, as such expenses are incurred and
prior to the final disposition of such action, suit or
proceeding, provided that Indemnitor receives a written
undertaking by or on behalf of Indemnitee to repay such amounts
advanced if it is ultimately determined that he is not entitled
to be indemnified by Indemnitor as authorized under this
Agreement. Indemnitor shall perform its obligation under this
Section 1.4 until such time as it may be determined that
Indemnitee is not entitled to indemnification by virtue of one
or more of the exclusions set forth in Section 1.3 hereof.
-2-
<PAGE>
1.5. The reference in Section 1.1 hereof to Delaware law is to
Delaware law as the same exists from time to time, but, in the
case of any amendment to or change in Delaware law, subject to
Section 6, only to the extent that such amendment or change
permits Indemnitor to provide broader or greater rights of
indemnification than is permitted to Indemnitor prior to such
amendment or change.
2. DEFINITIONS
2.1. The term "Loss" shall mean any amount Indemnitee is obligated or
asserted to be obligated to pay in respect of Indemnitee's legal
liability, whether actual or asserted, for a Wrongful Act, and
shall include damages, judgments, settlements and costs,
attorneys' fees, charges and expenses incurred in the defense of
Claims.
2.2. The term "Wrongful Act" shall mean any breach of duty, neglect,
error, misstatement, misleading statement, omission or other act
done or wrongfully attempted by Indemnitee so alleged by any
claimant or any other matter claimed against Indemnitee by
reason of Indemnitee being a director, officer, employee or
agent.
2.3. The term "Subsidiary" shall mean any corporation of which at
least 50% of the equity securities is owned by Indemnitor or by
another Subsidiary.
2.4. The term "Claim" shall mean any suit, action, proceeding,
investigation or claim threatened, whether civil, criminal,
administrative or investigative, made or instituted against or
with respect to Indemnitee or the property of Indemnitee, or
both, either by or in the right of Indemnitor or by or in the
right of a party other than Indemnitor.
3. SCOPE OF INDEMNIFICATION
This Agreement and the indemnification provided herein:
3.1. Shall apply to Indemnitee in Indemnitee's capacity or capacities
as a director, officer, employee or agent, or the like, of (i)
Indemnitor, (ii) any Subsidiary or former Subsidiary, or any
Subsidiary that is hereafter acquired or created by Indemnitor
and (iii) corporations, partnerships, associations and entities
other than Indemnitor and Indemnitor's Subsidiaries where
Indemnitee is directed or requested to serve by Indemnitor;
3.2. Shall be irrevocable and perpetual, and subject to Section 1.3
hereof, shall apply to any Claim arising or Loss incurred after
the date hereof, whether made or incurred prior to or after the
termination of Indemnitee's services to Indemnitor as a
director, officer, employee or agent; and
-3-
<PAGE>
3.3. Subject to Section 1.3 hereof, shall cover Losses arising from
any Claims made against the estate, heirs, legal representatives
or assigns of Indemnitee.
4. AGREEMENT TO BE LIBERALLY CONSTRUED
The purpose of this Agreement is to induce Indemnitee either to serve
Indemnitor in one or more of the capacities described in Section 3.1
hereof, or to induce Indemnitee to continue to serve in one or more such
capacities. Indemnitor acknowledges that, but for this Agreement and the
expectation by Indemnitee that Indemnitor will perform each of its
obligations hereunder, Indemnitee may not consent to serve or to
continue to serve Indemnitor in such capacities. Therefore, it is the
intention of Indemnitor and Indemnitee that this Agreement be liberally
construed so as to achieve its purpose of, subject to Section 1 hereof,
protecting Indemnitee from and against Losses arising from Wrongful
Acts. Indemnitor will not do or fail to do any act that would or might
prevent or hinder the performance by Indemnitor of its obligations under
this Agreement.
5. AGREEMENT NOT EXCLUSIVE
The rights and benefits of Indemnitee, and the obligations of
Indemnitor, under this Agreement shall be in addition to, and shall not
supersede or be in lieu of, the provisions (if any) in the certificate
of incorporation or bylaws of Indemnitor relating to the indemnification
of Indemnitee by Indemnitor; the provisions of policies of insurance of
Indemnitor; the provisions of policies of insurance or indemnification
arrangements provided by persons or entities other than Indemnitor; or
applicable law. Notwithstanding anything to the contrary in this
Agreement, Indemnitor shall defend, indemnify and hold harmless
Indemnitee to the full extent permitted from time to time by applicable
law. Indemnitor, however, shall not be liable to Indemnitee to make any
payment with respect to any claim made against Indemnitee for which
payment is actually made to Indemnitee under a valid and collectible
insurance policy, except with respect to any excess beyond the amount of
the payment under such policy.
6. SEVERABILITY
Nothing in this Agreement is intended to require or shall be construed
as requiring Indemnitor to do or fail to do any act in violation of
applicable law. If any provision of this Agreement is finally determined
by a court of competent jurisdiction to require Indemnitor to do or fail
to do such an act, such provision shall be limited or modified in its
application to the extent necessary to avoid a violation of law, and as
so limited or modified such provision and the balance of this Agreement
shall be enforceable in accordance with their terms.
7. CHOICE OF LAW
This Agreement shall be governed by, and its provisions construed in
accordance with, the laws of the State of Delaware without regard to
provisions concerning conflict of laws.
-4-
<PAGE>
8. CHOICE OF FORUM
Any action instituted by or on behalf of Indemnitor under this Agreement
or to enforce or interpret any provision of this Agreement shall be
brought only in the state courts of the State of Delaware and in no
other court. If any action is instituted in any court by Indemnitee
under this Agreement or to enforce or interpret any of its terms,
Indemnitor hereby consents, and will at such time consent, to the
exclusive jurisdiction and exclusive venue of such court, and shall
cooperate with any request by Indemnitee to transfer or remove such
action to another court.
9. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon Indemnitor and its successors and
assigns, and shall inure to the benefit of Indemnitee or Indemnitee's
estate, heirs, legal representatives and assigns.
10. MODIFICATION, AMENDMENT OR WAIVER
No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both the parties hereto. Any term
or provision of this Agreement may be waived at any time by the party
entitled to the benefit thereof, but only by a written instrument
executed by such party. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other
provision hereof nor shall such waiver constitute a continuing waiver.
11. ATTORNEYS' FEES
If any action is instituted by Indemnitee under this Agreement to
enforce or interpret any of the terms of this Agreement, Indemnitee
shall be entitled to be paid all court costs and expenses, including
attorneys' fees, incurred by Indemnitee with respect to such action,
unless as a part of such action the court determines that each of the
material assertions made by Indemnitee as a part of such action were not
made in good faith or were frivolous. If any action is instituted by or
in the name of the Indemnitor under this Agreement to enforce or
interpret any of the terms of this Agreement, Indemnitee shall be
entitled to be paid all court costs and expenses, including reasonable
attorneys' fees, incurred by Indemnitee in defense of such action
(including with respect to Indemnitee's counterclaims and cross claims
made in such action), unless as a part of such action the court
determines that each of the Indemnitee's material defenses to such
action were made in bad faith or were frivolous.
12. COUNTERPARTS
This Agreement may be signed in any number of counterparts, each of
which will be an original, with the same effect as if the signatures
hereto were upon the same instrument.
-5-
<PAGE>
13. CONTENTS OF AGREEMENT
This Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof and supersedes all prior agreements
or understandings between the parties regarding such matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FOILMARK, INC.
/s/
By: FRANK J. OLSEN, JR.
-------------------------------------
Title: PRESIDENT AND CHIEF EXECUTIVE OFFICER
/S/
-----------------------------------------
Edward Sullivan
-6-
<PAGE>
Exhibit 10.8
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made this 23rd day of
April, 1999 between Foilmark, Inc., a Delaware corporation having its principal
office located in Newburyport, Massachusetts ("Indemnitor"), and Glenn Regan
("Indemnitee").
RECITALS
A. Indemnitee is now serving, or is considering serving, Indemnitor as a
director or officer, or both, and the parties hereto acknowledge that
Indemnitee's service to Indemnitor may expose Indemnitee to claims, lawsuits and
risk of liability.
B. The parties further recognize that the compensation or fees payable to
Indemnitee for the performance of such services may not be commensurate with the
potential risk involved and Indemnitor is now, or may in the future be, unable
adequately to provide insurance at a reasonable cost to cover such risk.
C. Accordingly, as an inducement to Indemnitee to serve or to continue to
serve Indemnitor, Indemnitor and Indemnitee desire to enter into this Agreement
pursuant to which Indemnitor undertakes to indemnify Indemnitee against such
risk to the fullest extent permitted to do so by Delaware law.
NOW, THEREFORE, Indemnitor and Indemnitee hereby agree as follows:
1. INDEMNIFICATION
1.1. Subject to Section 1.3 hereof, Indemnitor shall hold harmless
and indemnify Indemnitee of and from all claims and all
threatened, pending or completed actions, suits or proceedings,
whether civil, criminal, administrative or investigative,
involving Indemnitee by reason of the fact that he is or was a
director or officer, or both, of Indemnitor (or by reason of the
fact that he is or was serving at the request of Indemnitor as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) including
all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement, to the broadest and maximum extent
permitted by Delaware law.
1.2. Without limiting the generality of Section 1.1 hereof, the
indemnification provided for by Section 1.1 shall:
1.2.1. extend to and fully cover any Loss (as hereinafter
defined) arising from any Claim (as hereinafter
defined), whether such Claim is made against Indemnitee,
individually or jointly with others, by reason of any
Wrongful Act (as hereinafter defined) made in
Indemnitee's capacity as a director, officer, employee
and/or agent;
<PAGE>
1.2.2. include all rights of indemnification provided to
Indemnitee under the existing provisions of the
certificate of incorporation or bylaws of Indemnitor;
and
1.2.3. include all such additional rights of indemnification
that could possibly be provided to Indemnitee under the
certificate of incorporation or bylaws of Indemnitor or
under Delaware law.
1.3. Nothing in this Section 1 shall be deemed to provide any
indemnity by Indemnitor to Indemnitee on account of any matter:
1.3.1. in respect to remuneration paid to Indemnitee but only
to the extent that it shall be determined by a final
judgment or other final adjudication that such
remuneration was in violation of law; or
1.3.2. for an accounting of profits made from the purchase or
sale by Indemnitee of securities of either Indemnitor
within the meaning of Section 16(b) of the Securities
Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state or local statutory law;
or
1.3.3. brought about or contributed to by the dishonesty of
Indemnitee but only to the extent that a final judgment
or other final adjudication adverse to Indemnitee
establishes that acts of active and deliberate
dishonesty were committed or attempted by Indemnitee
with actual dishonest purpose and intent and were
material to the adjudication; or
1.3.4. that is based on or attributable to Indemnitee having
gained any personal profit or advantage to which
Indemnitee was not entitled but only to the extent that
a final judgment or other final adjudication adverse to
Indemnitee establishes that Indemnitee in fact gained
such personal profit or other advantage to which
Indemnitee was not entitled; or
1.3.5. in respect of which any final decision by a court having
jurisdiction of the matter shall have determined that
indemnification is not lawful.
1.4. Indemnitor promptly shall pay the expenses (including attorneys'
fees) incurred by Indemnitee in defending any civil or criminal
action, suit or proceeding, as such expenses are incurred and
prior to the final disposition of such action, suit or
proceeding, provided that Indemnitor receives a written
undertaking by or on behalf of Indemnitee to repay such amounts
advanced if it is ultimately determined that he is not entitled
to be indemnified by Indemnitor as authorized under this
Agreement. Indemnitor shall perform its obligation under this
Section 1.4 until such time as it may be determined that
Indemnitee is not entitled to indemnification by virtue of one
or more of the exclusions set forth in Section 1.3 hereof.
-2-
<PAGE>
1.5. The reference in Section 1.1 hereof to Delaware law is to
Delaware law as the same exists from time to time, but, in the
case of any amendment to or change in Delaware law, subject to
Section 6, only to the extent that such amendment or change
permits Indemnitor to provide broader or greater rights of
indemnification than is permitted to Indemnitor prior to such
amendment or change.
2. DEFINITIONS
2.1. The term "Loss" shall mean any amount Indemnitee is obligated or
asserted to be obligated to pay in respect of Indemnitee's legal
liability, whether actual or asserted, for a Wrongful Act, and
shall include damages, judgments, settlements and costs,
attorneys' fees, charges and expenses incurred in the defense of
Claims.
2.2. The term "Wrongful Act" shall mean any breach of duty, neglect,
error, misstatement, misleading statement, omission or other act
done or wrongfully attempted by Indemnitee so alleged by any
claimant or any other matter claimed against Indemnitee by
reason of Indemnitee being a director, officer, employee or
agent.
2.3. The term "Subsidiary" shall mean any corporation of which at
least 50% of the equity securities is owned by Indemnitor or by
another Subsidiary.
2.4. The term "Claim" shall mean any suit, action, proceeding,
investigation or claim threatened, whether civil, criminal,
administrative or investigative, made or instituted against or
with respect to Indemnitee or the property of Indemnitee, or
both, either by or in the right of Indemnitor or by or in the
right of a party other than Indemnitor.
3. SCOPE OF INDEMNIFICATION
This Agreement and the indemnification provided herein:
3.1. Shall apply to Indemnitee in Indemnitee's capacity or capacities
as a director, officer, employee or agent, or the like, of (i)
Indemnitor, (ii) any Subsidiary or former Subsidiary, or any
Subsidiary that is hereafter acquired or created by Indemnitor
and (iii) corporations, partnerships, associations and entities
other than Indemnitor and Indemnitor's Subsidiaries where
Indemnitee is directed or requested to serve by Indemnitor;
3.2. Shall be irrevocable and perpetual, and subject to Section 1.3
hereof, shall apply to any Claim arising or Loss incurred after
the date hereof, whether made or incurred prior to or after the
termination of Indemnitee's services to Indemnitor as a
director, officer, employee or agent; and
-3-
<PAGE>
3.3. Subject to Section 1.3 hereof, shall cover Losses arising from
any Claims made against the estate, heirs, legal representatives
or assigns of Indemnitee.
4. AGREEMENT TO BE LIBERALLY CONSTRUED
The purpose of this Agreement is to induce Indemnitee either to serve
Indemnitor in one or more of the capacities described in Section 3.1
hereof, or to induce Indemnitee to continue to serve in one or more such
capacities. Indemnitor acknowledges that, but for this Agreement and the
expectation by Indemnitee that Indemnitor will perform each of its
obligations hereunder, Indemnitee may not consent to serve or to
continue to serve Indemnitor in such capacities. Therefore, it is the
intention of Indemnitor and Indemnitee that this Agreement be liberally
construed so as to achieve its purpose of, subject to Section 1 hereof,
protecting Indemnitee from and against Losses arising from Wrongful
Acts. Indemnitor will not do or fail to do any act that would or might
prevent or hinder the performance by Indemnitor of its obligations under
this Agreement.
5. AGREEMENT NOT EXCLUSIVE
The rights and benefits of Indemnitee, and the obligations of
Indemnitor, under this Agreement shall be in addition to, and shall not
supersede or be in lieu of, the provisions (if any) in the certificate
of incorporation or bylaws of Indemnitor relating to the indemnification
of Indemnitee by Indemnitor; the provisions of policies of insurance of
Indemnitor; the provisions of policies of insurance or indemnification
arrangements provided by persons or entities other than Indemnitor; or
applicable law. Notwithstanding anything to the contrary in this
Agreement, Indemnitor shall defend, indemnify and hold harmless
Indemnitee to the full extent permitted from time to time by applicable
law. Indemnitor, however, shall not be liable to Indemnitee to make any
payment with respect to any claim made against Indemnitee for which
payment is actually made to Indemnitee under a valid and collectible
insurance policy, except with respect to any excess beyond the amount of
the payment under such policy.
6. SEVERABILITY
Nothing in this Agreement is intended to require or shall be construed
as requiring Indemnitor to do or fail to do any act in violation of
applicable law. If any provision of this Agreement is finally determined
by a court of competent jurisdiction to require Indemnitor to do or fail
to do such an act, such provision shall be limited or modified in its
application to the extent necessary to avoid a violation of law, and as
so limited or modified such provision and the balance of this Agreement
shall be enforceable in accordance with their terms.
7. CHOICE OF LAW
This Agreement shall be governed by, and its provisions construed in
accordance with, the laws of the State of Delaware without regard to
provisions concerning conflict of laws.
-4-
<PAGE>
8. CHOICE OF FORUM
Any action instituted by or on behalf of Indemnitor under this Agreement
or to enforce or interpret any provision of this Agreement shall be
brought only in the state courts of the State of Delaware and in no
other court. If any action is instituted in any court by Indemnitee
under this Agreement or to enforce or interpret any of its terms,
Indemnitor hereby consents, and will at such time consent, to the
exclusive jurisdiction and exclusive venue of such court, and shall
cooperate with any request by Indemnitee to transfer or remove such
action to another court.
9. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon Indemnitor and its successors and
assigns, and shall inure to the benefit of Indemnitee or Indemnitee's
estate, heirs, legal representatives and assigns.
10. MODIFICATION, AMENDMENT OR WAIVER
No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both the parties hereto. Any term
or provision of this Agreement may be waived at any time by the party
entitled to the benefit thereof, but only by a written instrument
executed by such party. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other
provision hereof nor shall such waiver constitute a continuing waiver.
11. ATTORNEYS' FEES
If any action is instituted by Indemnitee under this Agreement to
enforce or interpret any of the terms of this Agreement, Indemnitee
shall be entitled to be paid all court costs and expenses, including
attorneys' fees, incurred by Indemnitee with respect to such action,
unless as a part of such action the court determines that each of the
material assertions made by Indemnitee as a part of such action were not
made in good faith or were frivolous. If any action is instituted by or
in the name of the Indemnitor under this Agreement to enforce or
interpret any of the terms of this Agreement, Indemnitee shall be
entitled to be paid all court costs and expenses, including reasonable
attorneys' fees, incurred by Indemnitee in defense of such action
(including with respect to Indemnitee's counterclaims and cross claims
made in such action), unless as a part of such action the court
determines that each of the Indemnitee's material defenses to such
action were made in bad faith or were frivolous.
12. COUNTERPARTS
This Agreement may be signed in any number of counterparts, each of
which will be an original, with the same effect as if the signatures
hereto were upon the same instrument.
-5-
<PAGE>
13. CONTENTS OF AGREEMENT
This Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof and supersedes all prior agreements
or understandings between the parties regarding such matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FOILMARK, INC.
/s/
--------------------------------------------
By: Frank J. Olsen, Jr.
Title: President and Chief Executive Officer
/s/
---------------------------------------------
Glenn Regan
-6-
<PAGE>
Exhibit 10.9
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made this 23rd day of
April, 1999 between Foilmark, Inc., a Delaware corporation having its principal
office located in Newburyport, Massachusetts ("Indemnitor"), and Douglas Parker
("Indemnitee").
RECITALS
A. Indemnitee is now serving, or is considering serving, Indemnitor as a
director or officer, or both, and the parties hereto acknowledge that
Indemnitee's service to Indemnitor may expose Indemnitee to claims, lawsuits and
risk of liability.
B. The parties further recognize that the compensation or fees payable to
Indemnitee for the performance of such services may not be commensurate with the
potential risk involved and Indemnitor is now, or may in the future be, unable
adequately to provide insurance at a reasonable cost to cover such risk.
C. Accordingly, as an inducement to Indemnitee to serve or to continue to
serve Indemnitor, Indemnitor and Indemnitee desire to enter into this Agreement
pursuant to which Indemnitor undertakes to indemnify Indemnitee against such
risk to the fullest extent permitted to do so by Delaware law.
NOW, THEREFORE, Indemnitor and Indemnitee hereby agree as follows:
1. INDEMNIFICATION
1.1. Subject to Section 1.3 hereof, Indemnitor shall hold harmless
and indemnify Indemnitee of and from all claims and all
threatened, pending or completed actions, suits or proceedings,
whether civil, criminal, administrative or investigative,
involving Indemnitee by reason of the fact that he is or was a
director or officer, or both, of Indemnitor (or by reason of the
fact that he is or was serving at the request of Indemnitor as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) including
all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement, to the broadest and maximum extent
permitted by Delaware law.
1.2. Without limiting the generality of Section 1.1 hereof, the
indemnification provided for by Section 1.1 shall:
1.2.1. extend to and fully cover any Loss (as hereinafter
defined) arising from any Claim (as hereinafter
defined), whether such Claim is made against Indemnitee,
individually or jointly with others, by reason of any
Wrongful Act (as hereinafter defined) made in
Indemnitee's capacity as a director, officer, employee
and/or agent;
<PAGE>
1.2.2. include all rights of indemnification provided to
Indemnitee under the existing provisions of the
certificate of incorporation or bylaws of Indemnitor;
and
1.2.3. include all such additional rights of indemnification
that could possibly be provided to Indemnitee under the
certificate of incorporation or bylaws of Indemnitor or
under Delaware law.
1.3. Nothing in this Section 1 shall be deemed to provide any
indemnity by Indemnitor to Indemnitee on account of any matter:
1.3.1. in respect to remuneration paid to Indemnitee but only
to the extent that it shall be determined by a final
judgment or other final adjudication that such
remuneration was in violation of law; or
1.3.2. for an accounting of profits made from the purchase or
sale by Indemnitee of securities of either Indemnitor
within the meaning of Section 16(b) of the Securities
Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state or local statutory law;
or
1.3.3. brought about or contributed to by the dishonesty of
Indemnitee but only to the extent that a final judgment
or other final adjudication adverse to Indemnitee
establishes that acts of active and deliberate
dishonesty were committed or attempted by Indemnitee
with actual dishonest purpose and intent and were
material to the adjudication; or
1.3.4. that is based on or attributable to Indemnitee having
gained any personal profit or advantage to which
Indemnitee was not entitled but only to the extent that
a final judgment or other final adjudication adverse to
Indemnitee establishes that Indemnitee in fact gained
such personal profit or other advantage to which
Indemnitee was not entitled; or
1.3.5. in respect of which any final decision by a court having
jurisdiction of the matter shall have determined that
indemnification is not lawful.
1.4. Indemnitor promptly shall pay the expenses (including attorneys'
fees) incurred by Indemnitee in defending any civil or criminal
action, suit or proceeding, as such expenses are incurred and
prior to the final disposition of such action, suit or
proceeding, provided that Indemnitor receives a written
undertaking by or on behalf of Indemnitee to repay such amounts
advanced if it is ultimately determined that he is not entitled
to be indemnified by Indemnitor as authorized under this
Agreement. Indemnitor shall perform its obligation under this
Section 1.4 until such time as it may be determined that
Indemnitee is not entitled to indemnification by virtue of one
or more of the exclusions set forth in Section 1.3 hereof.
-2-
<PAGE>
1.5. The reference in Section 1.1 hereof to Delaware law is to
Delaware law as the same exists from time to time, but, in the
case of any amendment to or change in Delaware law, subject to
Section 6, only to the extent that such amendment or change
permits Indemnitor to provide broader or greater rights of
indemnification than is permitted to Indemnitor prior to such
amendment or change.
2. DEFINITIONS
2.1. The term "Loss" shall mean any amount Indemnitee is obligated or
asserted to be obligated to pay in respect of Indemnitee's legal
liability, whether actual or asserted, for a Wrongful Act, and
shall include damages, judgments, settlements and costs,
attorneys' fees, charges and expenses incurred in the defense of
Claims.
2.2. The term "Wrongful Act" shall mean any breach of duty, neglect,
error, misstatement, misleading statement, omission or other act
done or wrongfully attempted by Indemnitee so alleged by any
claimant or any other matter claimed against Indemnitee by
reason of Indemnitee being a director, officer, employee or
agent.
2.3. The term "Subsidiary" shall mean any corporation of which at
least 50% of the equity securities is owned by Indemnitor or by
another Subsidiary.
2.4. The term "Claim" shall mean any suit, action, proceeding,
investigation or claim threatened, whether civil, criminal,
administrative or investigative, made or instituted against or
with respect to Indemnitee or the property of Indemnitee, or
both, either by or in the right of Indemnitor or by or in the
right of a party other than Indemnitor.
3. SCOPE OF INDEMNIFICATION
This Agreement and the indemnification provided herein:
3.1. Shall apply to Indemnitee in Indemnitee's capacity or capacities
as a director, officer, employee or agent, or the like, of (i)
Indemnitor, (ii) any Subsidiary or former Subsidiary, or any
Subsidiary that is hereafter acquired or created by Indemnitor
and (iii) corporations, partnerships, associations and entities
other than Indemnitor and Indemnitor's Subsidiaries where
Indemnitee is directed or requested to serve by Indemnitor;
3.2. Shall be irrevocable and perpetual, and subject to Section 1.3
hereof, shall apply to any Claim arising or Loss incurred after
the date hereof, whether made or incurred prior to or after the
termination of Indemnitee's services to Indemnitor as a
director, officer, employee or agent; and
-3-
<PAGE>
3.3. Subject to Section 1.3 hereof, shall cover Losses arising from
any Claims made against the estate, heirs, legal representatives
or assigns of Indemnitee.
4. AGREEMENT TO BE LIBERALLY CONSTRUED
The purpose of this Agreement is to induce Indemnitee either to serve
Indemnitor in one or more of the capacities described in Section 3.1
hereof, or to induce Indemnitee to continue to serve in one or more such
capacities. Indemnitor acknowledges that, but for this Agreement and the
expectation by Indemnitee that Indemnitor will perform each of its
obligations hereunder, Indemnitee may not consent to serve or to
continue to serve Indemnitor in such capacities. Therefore, it is the
intention of Indemnitor and Indemnitee that this Agreement be liberally
construed so as to achieve its purpose of, subject to Section 1 hereof,
protecting Indemnitee from and against Losses arising from Wrongful
Acts. Indemnitor will not do or fail to do any act that would or might
prevent or hinder the performance by Indemnitor of its obligations under
this Agreement.
5. AGREEMENT NOT EXCLUSIVE
The rights and benefits of Indemnitee, and the obligations of
Indemnitor, under this Agreement shall be in addition to, and shall not
supersede or be in lieu of, the provisions (if any) in the certificate
of incorporation or bylaws of Indemnitor relating to the indemnification
of Indemnitee by Indemnitor; the provisions of policies of insurance of
Indemnitor; the provisions of policies of insurance or indemnification
arrangements provided by persons or entities other than Indemnitor; or
applicable law. Notwithstanding anything to the contrary in this
Agreement, Indemnitor shall defend, indemnify and hold harmless
Indemnitee to the full extent permitted from time to time by applicable
law. Indemnitor, however, shall not be liable to Indemnitee to make any
payment with respect to any claim made against Indemnitee for which
payment is actually made to Indemnitee under a valid and collectible
insurance policy, except with respect to any excess beyond the amount of
the payment under such policy.
6. SEVERABILITY
Nothing in this Agreement is intended to require or shall be construed
as requiring Indemnitor to do or fail to do any act in violation of
applicable law. If any provision of this Agreement is finally determined
by a court of competent jurisdiction to require Indemnitor to do or fail
to do such an act, such provision shall be limited or modified in its
application to the extent necessary to avoid a violation of law, and as
so limited or modified such provision and the balance of this Agreement
shall be enforceable in accordance with their terms.
7. CHOICE OF LAW
This Agreement shall be governed by, and its provisions construed in
accordance with, the laws of the State of Delaware without regard to
provisions concerning conflict of laws.
-4-
<PAGE>
8. CHOICE OF FORUM
Any action instituted by or on behalf of Indemnitor under this Agreement
or to enforce or interpret any provision of this Agreement shall be
brought only in the state courts of the State of Delaware and in no
other court. If any action is instituted in any court by Indemnitee
under this Agreement or to enforce or interpret any of its terms,
Indemnitor hereby consents, and will at such time consent, to the
exclusive jurisdiction and exclusive venue of such court, and shall
cooperate with any request by Indemnitee to transfer or remove such
action to another court.
9. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon Indemnitor and its successors and
assigns, and shall inure to the benefit of Indemnitee or Indemnitee's
estate, heirs, legal representatives and assigns.
10. MODIFICATION, AMENDMENT OR WAIVER
No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both the parties hereto. Any term
or provision of this Agreement may be waived at any time by the party
entitled to the benefit thereof, but only by a written instrument
executed by such party. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other
provision hereof nor shall such waiver constitute a continuing waiver.
11. ATTORNEYS' FEES
If any action is instituted by Indemnitee under this Agreement to
enforce or interpret any of the terms of this Agreement, Indemnitee
shall be entitled to be paid all court costs and expenses, including
attorneys' fees, incurred by Indemnitee with respect to such action,
unless as a part of such action the court determines that each of the
material assertions made by Indemnitee as a part of such action were not
made in good faith or were frivolous. If any action is instituted by or
in the name of the Indemnitor under this Agreement to enforce or
interpret any of the terms of this Agreement, Indemnitee shall be
entitled to be paid all court costs and expenses, including reasonable
attorneys' fees, incurred by Indemnitee in defense of such action
(including with respect to Indemnitee's counterclaims and cross claims
made in such action), unless as a part of such action the court
determines that each of the Indemnitee's material defenses to such
action were made in bad faith or were frivolous.
12. COUNTERPARTS
This Agreement may be signed in any number of counterparts, each of
which will be an original, with the same effect as if the signatures
hereto were upon the same instrument.
-5-
<PAGE>
13. CONTENTS OF AGREEMENT
This Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof and supersedes all prior agreements
or understandings between the parties regarding such matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FOILMARK, INC.
/s/
--------------------------------------------
By: Frank J. Olsen, Jr.
Title: President and Chief Executive Officer
/s/
--------------------------------------------
Douglas Parker
-6-
<PAGE>
Exhibit 10.10
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made this 23rd day of
April, 1999 between Foilmark, Inc., a Delaware corporation having its principal
office located in Newburyport, Massachusetts ("Indemnitor"), and Carol Robie
("Indemnitee").
RECITALS
A. Indemnitee is now serving, or is considering serving, Indemnitor as a
director or officer, or both, and the parties hereto acknowledge that
Indemnitee's service to Indemnitor may expose Indemnitee to claims, lawsuits and
risk of liability.
B. The parties further recognize that the compensation or fees payable to
Indemnitee for the performance of such services may not be commensurate with the
potential risk involved and Indemnitor is now, or may in the future be, unable
adequately to provide insurance at a reasonable cost to cover such risk.
C. Accordingly, as an inducement to Indemnitee to serve or to continue to
serve Indemnitor, Indemnitor and Indemnitee desire to enter into this Agreement
pursuant to which Indemnitor undertakes to indemnify Indemnitee against such
risk to the fullest extent permitted to do so by Delaware law.
NOW, THEREFORE, Indemnitor and Indemnitee hereby agree as follows:
1. INDEMNIFICATION
1.1. Subject to Section 1.3 hereof, Indemnitor shall hold harmless
and indemnify Indemnitee of and from all claims and all
threatened, pending or completed actions, suits or proceedings,
whether civil, criminal, administrative or investigative,
involving Indemnitee by reason of the fact that she is or was a
director or officer, or both, of Indemnitor (or by reason of the
fact that she is or was serving at the request of Indemnitor as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) including
all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement, to the broadest and maximum extent
permitted by Delaware law.
1.2. Without limiting the generality of Section 1.1 hereof, the
indemnification provided for by Section 1.1 shall:
1.2.1. extend to and fully cover any Loss (as hereinafter
defined) arising from any Claim (as hereinafter
defined), whether such Claim is made against Indemnitee,
individually or jointly with others, by reason of any
Wrongful Act (as hereinafter defined) made in
Indemnitee's capacity as a director, officer, employee
and/or agent;
<PAGE>
1.2.2. include all rights of indemnification provided to
Indemnitee under the existing provisions of the
certificate of incorporation or bylaws of Indemnitor;
and
1.2.3. include all such additional rights of indemnification
that could possibly be provided to Indemnitee under the
certificate of incorporation or bylaws of Indemnitor or
under Delaware law.
1.3. Nothing in this Section 1 shall be deemed to provide any
indemnity by Indemnitor to Indemnitee on account of any
matter:
1.3.1. in respect to remuneration paid to Indemnitee but only
to the extent that it shall be determined by a final
judgment or other final adjudication that such
remuneration was in violation of law; or
1.3.2. for an accounting of profits made from the purchase or
sale by Indemnitee of securities of either Indemnitor
within the meaning of Section 16(b) of the Securities
Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state or local statutory law;
or
1.3.3. brought about or contributed to by the dishonesty of
Indemnitee but only to the extent that a final judgment
or other final adjudication adverse to Indemnitee
establishes that acts of active and deliberate
dishonesty were committed or attempted by Indemnitee
with actual dishonest purpose and intent and were
material to the adjudication; or
1.3.4. that is based on or attributable to Indemnitee having
gained any personal profit or advantage to which
Indemnitee was not entitled but only to the extent that
a final judgment or other final adjudication adverse to
Indemnitee establishes that Indemnitee in fact gained
such personal profit or other advantage to which
Indemnitee was not entitled; or
1.3.5. in respect of which any final decision by a court having
jurisdiction of the matter shall have determined that
indemnification is not lawful.
1.4. Indemnitor promptly shall pay the expenses (including attorneys'
fees) incurred by Indemnitee in defending any civil or criminal
action, suit or proceeding, as such expenses are incurred and
prior to the final disposition of such action, suit or
proceeding, provided that Indemnitor receives a written
undertaking by or on behalf of Indemnitee to repay such amounts
advanced if it is ultimately determined that she is not entitled
to be indemnified by Indemnitor as authorized under this
Agreement. Indemnitor shall perform its obligation under this
Section 1.4 until such time as it may be determined that
Indemnitee is not entitled to indemnification by virtue of one
or more of the exclusions set forth in Section 1.3 hereof.
-2-
<PAGE>
1.5. The reference in Section 1.1 hereof to Delaware law is to
Delaware law as the same exists from time to time, but, in the
case of any amendment to or change in Delaware law, subject to
Section 6, only to the extent that such amendment or change
permits Indemnitor to provide broader or greater rights of
indemnification than is permitted to Indemnitor prior to such
amendment or change.
2. DEFINITIONS
2.1. The term "Loss" shall mean any amount Indemnitee is obligated or
asserted to be obligated to pay in respect of Indemnitee's legal
liability, whether actual or asserted, for a Wrongful Act, and
shall include damages, judgments, settlements and costs,
attorneys' fees, charges and expenses incurred in the defense of
Claims.
2.2. The term "Wrongful Act" shall mean any breach of duty, neglect,
error, misstatement, misleading statement, omission or other act
done or wrongfully attempted by Indemnitee so alleged by any
claimant or any other matter claimed against Indemnitee by
reason of Indemnitee being a director, officer, employee or
agent.
2.3. The term "Subsidiary" shall mean any corporation of which at
least 50% of the equity securities is owned by Indemnitor or by
another Subsidiary.
2.4. The term "Claim" shall mean any suit, action, proceeding,
investigation or claim threatened, whether civil, criminal,
administrative or investigative, made or instituted against or
with respect to Indemnitee or the property of Indemnitee, or
both, either by or in the right of Indemnitor or by or in the
right of a party other than Indemnitor.
3. SCOPE OF INDEMNIFICATION
This Agreement and the indemnification provided herein:
3.1. Shall apply to Indemnitee in Indemnitee's capacity or capacities
as a director, officer, employee or agent, or the like, of (i)
Indemnitor, (ii) any Subsidiary or former Subsidiary, or any
Subsidiary that is hereafter acquired or created by Indemnitor
and (iii) corporations, partnerships, associations and entities
other than Indemnitor and Indemnitor's Subsidiaries where
Indemnitee is directed or requested to serve by Indemnitor;
3.2. Shall be irrevocable and perpetual, and subject to Section 1.3
hereof, shall apply to any Claim arising or Loss incurred after
the date hereof, whether made or incurred prior to or after the
termination of Indemnitee's services to Indemnitor as a
director, officer, employee or agent; and
-3-
<PAGE>
3.3. Subject to Section 1.3 hereof, shall cover Losses arising from
any Claims made against the estate, heirs, legal representatives
or assigns of Indemnitee.
4. AGREEMENT TO BE LIBERALLY CONSTRUED
The purpose of this Agreement is to induce Indemnitee either to serve
Indemnitor in one or more of the capacities described in Section 3.1
hereof, or to induce Indemnitee to continue to serve in one or more such
capacities. Indemnitor acknowledges that, but for this Agreement and the
expectation by Indemnitee that Indemnitor will perform each of its
obligations hereunder, Indemnitee may not consent to serve or to
continue to serve Indemnitor in such capacities. Therefore, it is the
intention of Indemnitor and Indemnitee that this Agreement be liberally
construed so as to achieve its purpose of, subject to Section 1 hereof,
protecting Indemnitee from and against Losses arising from Wrongful
Acts. Indemnitor will not do or fail to do any act that would or might
prevent or hinder the performance by Indemnitor of its obligations under
this Agreement.
5. AGREEMENT NOT EXCLUSIVE
The rights and benefits of Indemnitee, and the obligations of
Indemnitor, under this Agreement shall be in addition to, and shall not
supersede or be in lieu of, the provisions (if any) in the certificate
of incorporation or bylaws of Indemnitor relating to the indemnification
of Indemnitee by Indemnitor; the provisions of policies of insurance of
Indemnitor; the provisions of policies of insurance or indemnification
arrangements provided by persons or entities other than Indemnitor; or
applicable law. Notwithstanding anything to the contrary in this
Agreement, Indemnitor shall defend, indemnify and hold harmless
Indemnitee to the full extent permitted from time to time by applicable
law. Indemnitor, however, shall not be liable to Indemnitee to make any
payment with respect to any claim made against Indemnitee for which
payment is actually made to Indemnitee under a valid and collectible
insurance policy, except with respect to any excess beyond the amount of
the payment under such policy.
6. SEVERABILITY
Nothing in this Agreement is intended to require or shall be construed
as requiring Indemnitor to do or fail to do any act in violation of
applicable law. If any provision of this Agreement is finally determined
by a court of competent jurisdiction to require Indemnitor to do or fail
to do such an act, such provision shall be limited or modified in its
application to the extent necessary to avoid a violation of law, and as
so limited or modified such provision and the balance of this Agreement
shall be enforceable in accordance with their terms.
7. CHOICE OF LAW
This Agreement shall be governed by, and its provisions construed in
accordance with, the laws of the State of Delaware without regard to
provisions concerning conflict of laws.
-4-
<PAGE>
8. CHOICE OF FORUM
Any action instituted by or on behalf of Indemnitor under this Agreement
or to enforce or interpret any provision of this Agreement shall be
brought only in the state courts of the State of Delaware and in no
other court. If any action is instituted in any court by Indemnitee
under this Agreement or to enforce or interpret any of its terms,
Indemnitor hereby consents, and will at such time consent, to the
exclusive jurisdiction and exclusive venue of such court, and shall
cooperate with any request by Indemnitee to transfer or remove such
action to another court.
9. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon Indemnitor and its successors and
assigns, and shall inure to the benefit of Indemnitee or Indemnitee's
estate, heirs, legal representatives and assigns.
10. MODIFICATION, AMENDMENT OR WAIVER
No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both the parties hereto. Any term
or provision of this Agreement may be waived at any time by the party
entitled to the benefit thereof, but only by a written instrument
executed by such party. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other
provision hereof nor shall such waiver constitute a continuing waiver.
11. ATTORNEYS' FEES
If any action is instituted by Indemnitee under this Agreement to
enforce or interpret any of the terms of this Agreement, Indemnitee
shall be entitled to be paid all court costs and expenses, including
attorneys' fees, incurred by Indemnitee with respect to such action,
unless as a part of such action the court determines that each of the
material assertions made by Indemnitee as a part of such action were not
made in good faith or were frivolous. If any action is instituted by or
in the name of the Indemnitor under this Agreement to enforce or
interpret any of the terms of this Agreement, Indemnitee shall be
entitled to be paid all court costs and expenses, including reasonable
attorneys' fees, incurred by Indemnitee in defense of such action
(including with respect to Indemnitee's counterclaims and cross claims
made in such action), unless as a part of such action the court
determines that each of the Indemnitee's material defenses to such
action were made in bad faith or were frivolous.
12. COUNTERPARTS
This Agreement may be signed in any number of counterparts, each of
which will be an original, with the same effect as if the signatures
hereto were upon the same instrument.
-5-
<PAGE>
13. CONTENTS OF AGREEMENT
This Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof and supersedes all prior agreements
or understandings between the parties regarding such matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FOILMARK, INC.
/s/
--------------------------------------------
By: Frank J. Olsen, Jr.
Title: President and Chief Executive Officer
/s/
--------------------------------------------
Carol Robie
-6-
<PAGE>
Exhibit 10.11
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made this 23rd day of
April, 1999 between Foilmark, Inc., a Delaware corporation having its principal
office located in Newburyport, Massachusetts ("Indemnitor"), and Wilhelm Kutsch
("Indemnitee").
RECITALS
A. Indemnitee is now serving, or is considering serving, Indemnitor as a
director or officer, or both, and the parties hereto acknowledge that
Indemnitee's service to Indemnitor may expose Indemnitee to claims,
lawsuits and risk of liability.
B. The parties further recognize that the compensation or fees payable to
Indemnitee for the performance of such services may not be commensurate
with the potential risk involved and Indemnitor is now, or may in the
future be, unable adequately to provide insurance at a reasonable cost to
cover such risk.
C. Accordingly, as an inducement to Indemnitee to serve or to continue to
serve Indemnitor, Indemnitor and Indemnitee desire to enter into this
Agreement pursuant to which Indemnitor undertakes to indemnify Indemnitee
against such risk to the fullest extent permitted to do so by Delaware law.
NOW, THEREFORE, Indemnitor and Indemnitee hereby agree as follows:
1. INDEMNIFICATION
1.1. Subject to Section 1.3 hereof, Indemnitor shall hold harmless and
indemnify Indemnitee of and from all claims and all threatened,
pending or completed actions, suits or proceedings, whether
civil, criminal, administrative or investigative, involving
Indemnitee by reason of the fact that he is or was a director or
officer, or both, of Indemnitor (or by reason of the fact that he
is or was serving at the request of Indemnitor as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise) including all expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement, to the broadest and maximum extent permitted by
Delaware law.
1.2. Without limiting the generality of Section 1.1 hereof, the
indemnification provided for by Section 1.1 shall:
1.2.1. extend to and fully cover any Loss (as hereinafter
defined) arising from any Claim (as hereinafter
defined), whether such Claim is made against
Indemnitee, individually or jointly with others, by
reason of any Wrongful Act (as hereinafter defined)
made in Indemnitee's capacity as a director, officer,
employee and/or agent;
<PAGE>
1.2.2 include all rights of indemnification provided to
Indemnitee under the existing provisions of the
certificate of incorporation or bylaws of Indemnitor;
and
1.2.3. include all such additional rights of indemnification
that could possibly be provided to Indemnitee under
the certificate of incorporation or bylaws of
Indemnitor or under Delaware law.
1.3. Nothing in this Section 1 shall be deemed to provide any
indemnity by Indemnitor to Indemnitee on account of any matter:
1.3.1. in respect to remuneration paid to Indemnitee but
only to the extent that it shall be determined by a
final judgment or other final adjudication that such
remuneration was in violation of law; or
1.3.2. for an accounting of profits made from the purchase
or sale by Indemnitee of securities of either
Indemnitor within the meaning of Section 16(b) of the
Securities Exchange Act of 1934 and amendments
thereto or similar provisions of any federal, state
or local statutory law; or
1.3.3. brought about or contributed to by the dishonesty of
Indemnitee but only to the extent that a final
judgment or other final adjudication adverse to
Indemnitee establishes that acts of active and
deliberate dishonesty were committed or attempted by
Indemnitee with actual dishonest purpose and intent
and were material to the adjudication; or
1.3.4. that is based on or attributable to Indemnitee having
gained any personal profit or advantage to which
Indemnitee was not entitled but only to the extent
that a final judgment or other final adjudication
adverse to Indemnitee establishes that Indemnitee in
fact gained such personal profit or other advantage
to which Indemnitee was not entitled; or
1.3.5. in respect of which any final decision by a court
having jurisdiction of the matter shall have
determined that indemnification is not lawful.
1.4. Indemnitor promptly shall pay the expenses (including
attorneys' fees) incurred by Indemnitee in defending any
civil or criminal action, suit or proceeding, as such
expenses are incurred and prior to the final disposition of
such action, suit or proceeding, provided that Indemnitor
receives a written undertaking by or on behalf of Indemnitee
to repay such amounts advanced if it is ultimately
determined that he is not entitled to be indemnified by
Indemnitor as authorized under this Agreement. Indemnitor
shall perform its obligation under this Section 1.4 until
such time as it may be determined that Indemnitee is not
entitled to indemnification by virtue of one or more of the
exclusions set forth in Section 1.3 hereof.
-2-
<PAGE>
1.5. The reference in Section 1.1 hereof to Delaware law is to
Delaware law as the same exists from time to time, but, in the
case of any amendment to or change in Delaware law, subject to
Section 6, only to the extent that such amendment or change
permits Indemnitor to provide broader or greater rights of
indemnification than is permitted to Indemnitor prior to such
amendment or change.
2. DEFINITIONS
2.1. The term "Loss" shall mean any amount Indemnitee is obligated or
asserted to be obligated to pay in respect of Indemnitee's legal
liability, whether actual or asserted, for a Wrongful Act, and
shall include damages, judgments, settlements and costs,
attorneys' fees, charges and expenses incurred in the defense of
Claims.
2.2. The term "Wrongful Act" shall mean any breach of duty, neglect,
error, misstatement, misleading statement, omission or other act
done or wrongfully attempted by Indemnitee so alleged by any
claimant or any other matter claimed against Indemnitee by reason
of Indemnitee being a director, officer, employee or agent.
2.3. The term "Subsidiary" shall mean any corporation of which at
least 50% of the equity securities is owned by Indemnitor or by
another Subsidiary.
2.4. The term "Claim" shall mean any suit, action, proceeding,
investigation or claim threatened, whether civil, criminal,
administrative or investigative, made or instituted against or
with respect to Indemnitee or the property of Indemnitee, or
both, either by or in the right of Indemnitor or by or in the
right of a party other than Indemnitor.
3. SCOPE OF INDEMNIFICATION
This Agreement and the indemnification provided herein:
3.1. Shall apply to Indemnitee in Indemnitee's capacity or capacities
as a director, officer, employee or agent, or the like, of (i)
Indemnitor, (ii) any Subsidiary or former Subsidiary, or any
Subsidiary that is hereafter acquired or created by Indemnitor
and (iii) corporations, partnerships, associations and entities
other than Indemnitor and Indemnitor's Subsidiaries where
Indemnitee is directed or requested to serve by Indemnitor;
3.2. Shall be irrevocable and perpetual, and subject to Section 1.3
hereof, shall apply to any Claim arising or Loss incurred after
the date hereof, whether made or incurred prior to or after the
termination of Indemnitee's services to Indemnitor as a director,
officer, employee or agent; and
-3-
<PAGE>
3.3. Subject to Section 1.3 hereof, shall cover Losses arising from
any Claims made against the estate, heirs, legal representatives
or assigns of Indemnitee.
4. AGREEMENT TO BE LIBERALLY CONSTRUED
The purpose of this Agreement is to induce Indemnitee either to serve
Indemnitor in one or more of the capacities described in Section 3.1
hereof, or to induce Indemnitee to continue to serve in one or more
such capacities. Indemnitor acknowledges that, but for this Agreement
and the expectation by Indemnitee that Indemnitor will perform each of
its obligations hereunder, Indemnitee may not consent to serve or to
continue to serve Indemnitor in such capacities. Therefore, it is the
intention of Indemnitor and Indemnitee that this Agreement be liberally
construed so as to achieve its purpose of, subject to Section 1 hereof,
protecting Indemnitee from and against Losses arising from Wrongful
Acts. Indemnitor will not do or fail to do any act that would or might
prevent or hinder the performance by Indemnitor of its obligations
under this Agreement.
5. AGREEMENT NOT EXCLUSIVE
The rights and benefits of Indemnitee, and the obligations of
Indemnitor, under this Agreement shall be in addition to, and shall not
supersede or be in lieu of, the provisions (if any) in the certificate
of incorporation or bylaws of Indemnitor relating to the
indemnification of Indemnitee by Indemnitor; the provisions of policies
of insurance of Indemnitor; the provisions of policies of insurance or
indemnification arrangements provided by persons or entities other than
Indemnitor; or applicable law. Notwithstanding anything to the contrary
in this Agreement, Indemnitor shall defend, indemnify and hold harmless
Indemnitee to the full extent permitted from time to time by applicable
law. Indemnitor, however, shall not be liable to Indemnitee to make any
payment with respect to any claim made against Indemnitee for which
payment is actually made to Indemnitee under a valid and collectible
insurance policy, except with respect to any excess beyond the amount
of the payment under such policy.
6. SEVERABILITY
Nothing in this Agreement is intended to require or shall be construed
as requiring Indemnitor to do or fail to do any act in violation of
applicable law. If any provision of this Agreement is finally
determined by a court of competent jurisdiction to require Indemnitor
to do or fail to do such an act, such provision shall be limited or
modified in its application to the extent necessary to avoid a
violation of law, and as so limited or modified such provision and the
balance of this Agreement shall be enforceable in accordance with their
terms.
7. CHOICE OF LAW
This Agreement shall be governed by, and its provisions construed in
accordance with, the laws of the State of Delaware without regard to
provisions concerning conflict of laws.
-4-
<PAGE>
8. CHOICE OF FORUM
Any action instituted by or on behalf of Indemnitor under this
Agreement or to enforce or interpret any provision of this Agreement
shall be brought only in the state courts of the State of Delaware and
in no other court. If any action is instituted in any court by
Indemnitee under this Agreement or to enforce or interpret any of its
terms, Indemnitor hereby consents, and will at such time consent, to
the exclusive jurisdiction and exclusive venue of such court, and shall
cooperate with any request by Indemnitee to transfer or remove such
action to another court.
9. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon Indemnitor and its successors and
assigns, and shall inure to the benefit of Indemnitee or Indemnitee's
estate, heirs, legal representatives and assigns.
10. MODIFICATION, AMENDMENT OR WAIVER
No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both the parties hereto. Any term
or provision of this Agreement may be waived at any time by the party
entitled to the benefit thereof, but only by a written instrument
executed by such party. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other
provision hereof nor shall such waiver constitute a continuing waiver.
11. ATTORNEYS' FEES
If any action is instituted by Indemnitee under this Agreement to
enforce or interpret any of the terms of this Agreement, Indemnitee
shall be entitled to be paid all court costs and expenses, including
attorneys' fees, incurred by Indemnitee with respect to such action,
unless as a part of such action the court determines that each of the
material assertions made by Indemnitee as a part of such action were
not made in good faith or were frivolous. If any action is instituted
by or in the name of the Indemnitor under this Agreement to enforce or
interpret any of the terms of this Agreement, Indemnitee shall be
entitled to be paid all court costs and expenses, including reasonable
attorneys' fees, incurred by Indemnitee in defense of such action
(including with respect to Indemnitee's counterclaims and cross claims
made in such action), unless as a part of such action the court
determines that each of the Indemnitee's material defenses to such
action were made in bad faith or were frivolous.
12. COUNTERPARTS
This Agreement may be signed in any number of counterparts, each of
which will be an original, with the same effect as if the signatures
hereto were upon the same instrument.
-5-
<PAGE>
13. CONTENTS OF AGREEMENT
This Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof and supersedes all prior
agreements or understandings between the parties regarding such matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FOILMARK, INC.
/s/
----------------------------------
By: Frank J. Olsen, Jr.
Title: President and Chief Executive Officer
/s/
----------------------------------
Wilhelm Kutsch
-6-
<PAGE>
Exhibit 10.12
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made this 23rd day of
April, 1999 between Foilmark, Inc., a Delaware corporation having its principal
office located in Newburyport, Massachusetts ("Indemnitor"), and Brian Kelly
("Indemnitee").
RECITALS
A. Indemnitee is now serving, or is considering serving, Indemnitor as a
director or officer, or both, and the parties hereto acknowledge that
Indemnitee's service to Indemnitor may expose Indemnitee to claims, lawsuits and
risk of liability.
B. The parties further recognize that the compensation or fees payable to
Indemnitee for the performance of such services may not be commensurate with the
potential risk involved and Indemnitor is now, or may in the future be, unable
adequately to provide insurance at a reasonable cost to cover such risk.
C. Accordingly, as an inducement to Indemnitee to serve or to continue to
serve Indemnitor, Indemnitor and Indemnitee desire to enter into this Agreement
pursuant to which Indemnitor undertakes to indemnify Indemnitee against such
risk to the fullest extent permitted to do so by Delaware law.
NOW, THEREFORE, Indemnitor and Indemnitee hereby agree as follows:
1. INDEMNIFICATION
1.1. Subject to Section 1.3 hereof, Indemnitor shall hold harmless
and indemnify Indemnitee of and from all claims and all
threatened, pending or completed actions, suits or proceedings,
whether civil, criminal, administrative or investigative,
involving Indemnitee by reason of the fact that he is or was a
director or officer, or both, of Indemnitor (or by reason of the
fact that he is or was serving at the request of Indemnitor as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) including
all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement, to the broadest and maximum extent
permitted by Delaware law.
1.2. Without limiting the generality of Section 1.1 hereof, the
indemnification provided for by Section 1.1 shall:
1.2.1. extend to and fully cover any Loss (as hereinafter
defined) arising from any Claim (as hereinafter
defined), whether such Claim is made against Indemnitee,
individually or jointly with others, by reason of any
Wrongful Act (as hereinafter defined) made in
Indemnitee's capacity as a director, officer, employee
and/or agent;
<PAGE>
1.2.2. include all rights of indemnification provided to
Indemnitee under the existing provisions of the
certificate of incorporation or bylaws of Indemnitor;
and
1.2.3. include all such additional rights of indemnification
that could possibly be provided to Indemnitee under the
certificate of incorporation or bylaws of Indemnitor or
under Delaware law.
1.3. Nothing in this Section 1 shall be deemed to provide any
indemnity by Indemnitor to Indemnitee on account of any matter:
1.3.1. in respect to remuneration paid to Indemnitee but only
to the extent that it shall be determined by a final
judgment or other final adjudication that such
remuneration was in violation of law; or
1.3.2. for an accounting of profits made from the purchase or
sale by Indemnitee of securities of either Indemnitor
within the meaning of Section 16(b) of the Securities
Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state or local statutory law;
or
1.3.3. brought about or contributed to by the dishonesty of
Indemnitee but only to the extent that a final judgment
or other final adjudication adverse to Indemnitee
establishes that acts of active and deliberate
dishonesty were committed or attempted by Indemnitee
with actual dishonest purpose and intent and were
material to the adjudication; or
1.3.4. that is based on or attributable to Indemnitee having
gained any personal profit or advantage to which
Indemnitee was not entitled but only to the extent that
a final judgment or other final adjudication adverse to
Indemnitee establishes that Indemnitee in fact gained
such personal profit or other advantage to which
Indemnitee was not entitled; or
1.3.5. in respect of which any final decision by a court having
jurisdiction of the matter shall have determined that
indemnification is not lawful.
1.4. Indemnitor promptly shall pay the expenses (including attorneys'
fees) incurred by Indemnitee in defending any civil or criminal
action, suit or proceeding, as such expenses are incurred and
prior to the final disposition of such action, suit or
proceeding, provided that Indemnitor receives a written
undertaking by or on behalf of Indemnitee to repay such amounts
advanced if it is ultimately determined that he is not entitled
to be indemnified by Indemnitor as authorized under this
Agreement. Indemnitor shall perform its obligation under this
Section 1.4 until such time as it may be determined that
Indemnitee is not entitled to indemnification by virtue of one
or more of the exclusions set forth in Section 1.3 hereof.
-2-
<PAGE>
1.5. The reference in Section 1.1 hereof to Delaware law is to
Delaware law as the same exists from time to time, but, in the
case of any amendment to or change in Delaware law, subject to
Section 6, only to the extent that such amendment or change
permits Indemnitor to provide broader or greater rights of
indemnification than is permitted to Indemnitor prior to such
amendment or change.
2. DEFINITIONS
2.1. The term "Loss" shall mean any amount Indemnitee is obligated or
asserted to be obligated to pay in respect of Indemnitee's legal
liability, whether actual or asserted, for a Wrongful Act, and
shall include damages, judgments, settlements and costs,
attorneys' fees, charges and expenses incurred in the defense of
Claims.
2.2. The term "Wrongful Act" shall mean any breach of duty, neglect,
error, misstatement, misleading statement, omission or other act
done or wrongfully attempted by Indemnitee so alleged by any
claimant or any other matter claimed against Indemnitee by
reason of Indemnitee being a director, officer, employee or
agent.
2.3. The term "Subsidiary" shall mean any corporation of which at
least 50% of the equity securities is owned by Indemnitor or by
another Subsidiary.
2.4. The term "Claim" shall mean any suit, action, proceeding,
investigation or claim threatened, whether civil, criminal,
administrative or investigative, made or instituted against or
with respect to Indemnitee or the property of Indemnitee, or
both, either by or in the right of Indemnitor or by or in the
right of a party other than Indemnitor.
3. SCOPE OF INDEMNIFICATION
This Agreement and the indemnification provided herein:
3.1. Shall apply to Indemnitee in Indemnitee's capacity or capacities
as a director, officer, employee or agent, or the like, of (i)
Indemnitor, (ii) any Subsidiary or former Subsidiary, or any
Subsidiary that is hereafter acquired or created by Indemnitor
and (iii) corporations, partnerships, associations and entities
other than Indemnitor and Indemnitor's Subsidiaries where
Indemnitee is directed or requested to serve by Indemnitor;
3.2. Shall be irrevocable and perpetual, and subject to Section 1.3
hereof, shall apply to any Claim arising or Loss incurred after
the date hereof, whether made or incurred prior to or after the
termination of Indemnitee's services to Indemnitor as a
director, officer, employee or agent; and
-3-
<PAGE>
3.3. Subject to Section 1.3 hereof, shall cover Losses arising from
any Claims made against the estate, heirs, legal representatives
or assigns of Indemnitee.
4. AGREEMENT TO BE LIBERALLY CONSTRUED
The purpose of this Agreement is to induce Indemnitee either to serve
Indemnitor in one or more of the capacities described in Section 3.1
hereof, or to induce Indemnitee to continue to serve in one or more such
capacities. Indemnitor acknowledges that, but for this Agreement and the
expectation by Indemnitee that Indemnitor will perform each of its
obligations hereunder, Indemnitee may not consent to serve or to
continue to serve Indemnitor in such capacities. Therefore, it is the
intention of Indemnitor and Indemnitee that this Agreement be liberally
construed so as to achieve its purpose of, subject to Section 1 hereof,
protecting Indemnitee from and against Losses arising from Wrongful
Acts. Indemnitor will not do or fail to do any act that would or might
prevent or hinder the performance by Indemnitor of its obligations under
this Agreement.
5. AGREEMENT NOT EXCLUSIVE
The rights and benefits of Indemnitee, and the obligations of
Indemnitor, under this Agreement shall be in addition to, and shall not
supersede or be in lieu of, the provisions (if any) in the certificate
of incorporation or bylaws of Indemnitor relating to the indemnification
of Indemnitee by Indemnitor; the provisions of policies of insurance of
Indemnitor; the provisions of policies of insurance or indemnification
arrangements provided by persons or entities other than Indemnitor; or
applicable law. Notwithstanding anything to the contrary in this
Agreement, Indemnitor shall defend, indemnify and hold harmless
Indemnitee to the full extent permitted from time to time by applicable
law. Indemnitor, however, shall not be liable to Indemnitee to make any
payment with respect to any claim made against Indemnitee for which
payment is actually made to Indemnitee under a valid and collectible
insurance policy, except with respect to any excess beyond the amount of
the payment under such policy.
6. SEVERABILITY
Nothing in this Agreement is intended to require or shall be construed
as requiring Indemnitor to do or fail to do any act in violation of
applicable law. If any provision of this Agreement is finally determined
by a court of competent jurisdiction to require Indemnitor to do or fail
to do such an act, such provision shall be limited or modified in its
application to the extent necessary to avoid a violation of law, and as
so limited or modified such provision and the balance of this Agreement
shall be enforceable in accordance with their terms.
7. CHOICE OF LAW
This Agreement shall be governed by, and its provisions construed in
accordance with, the laws of the State of Delaware without regard to
provisions concerning conflict of laws.
-4-
<PAGE>
8. CHOICE OF FORUM
Any action instituted by or on behalf of Indemnitor under this Agreement
or to enforce or interpret any provision of this Agreement shall be
brought only in the state courts of the State of Delaware and in no
other court. If any action is instituted in any court by Indemnitee
under this Agreement or to enforce or interpret any of its terms,
Indemnitor hereby consents, and will at such time consent, to the
exclusive jurisdiction and exclusive venue of such court, and shall
cooperate with any request by Indemnitee to transfer or remove such
action to another court.
9. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon Indemnitor and its successors and
assigns, and shall inure to the benefit of Indemnitee or Indemnitee's
estate, heirs, legal representatives and assigns.
10. MODIFICATION, AMENDMENT OR WAIVER
No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both the parties hereto. Any term
or provision of this Agreement may be waived at any time by the party
entitled to the benefit thereof, but only by a written instrument
executed by such party. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other
provision hereof nor shall such waiver constitute a continuing waiver.
11. ATTORNEYS' FEES
If any action is instituted by Indemnitee under this Agreement to
enforce or interpret any of the terms of this Agreement, Indemnitee
shall be entitled to be paid all court costs and expenses, including
attorneys' fees, incurred by Indemnitee with respect to such action,
unless as a part of such action the court determines that each of the
material assertions made by Indemnitee as a part of such action were not
made in good faith or were frivolous. If any action is instituted by or
in the name of the Indemnitor under this Agreement to enforce or
interpret any of the terms of this Agreement, Indemnitee shall be
entitled to be paid all court costs and expenses, including reasonable
attorneys' fees, incurred by Indemnitee in defense of such action
(including with respect to Indemnitee's counterclaims and cross claims
made in such action), unless as a part of such action the court
determines that each of the Indemnitee's material defenses to such
action were made in bad faith or were frivolous.
12. COUNTERPARTS
This Agreement may be signed in any number of counterparts, each of
which will be an original, with the same effect as if the signatures
hereto were upon the same instrument.
-5-
<PAGE>
13. CONTENTS OF AGREEMENT
This Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof and supersedes all prior agreements
or understandings between the parties regarding such matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FOILMARK, INC.
/s/
--------------------------------------------
By: Frank J. Olsen, Jr.
Title: President and Chief Executive Officer
/s/
--------------------------------------------
Brian Kelly
-6-
<PAGE>
Exhibit 10.13
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made this 23rd day of
April, 1999 between Foilmark, Inc., a Delaware corporation having its principal
office located in Newburyport, Massachusetts ("Indemnitor"), and Harvey Share
("Indemnitee").
RECITALS
A. Indemnitee is now serving, or is considering serving, Indemnitor as a
director or officer, or both, and the parties hereto acknowledge that
Indemnitee's service to Indemnitor may expose Indemnitee to claims, lawsuits and
risk of liability.
B. The parties further recognize that the compensation or fees payable to
Indemnitee for the performance of such services may not be commensurate with the
potential risk involved and Indemnitor is now, or may in the future be, unable
adequately to provide insurance at a reasonable cost to cover such risk.
C. Accordingly, as an inducement to Indemnitee to serve or to continue to
serve Indemnitor, Indemnitor and Indemnitee desire to enter into this Agreement
pursuant to which Indemnitor undertakes to indemnify Indemnitee against such
risk to the fullest extent permitted to do so by Delaware law.
NOW, THEREFORE, Indemnitor and Indemnitee hereby agree as follows:
1. INDEMNIFICATION
1.1. Subject to Section 1.3 hereof, Indemnitor shall hold harmless
and indemnify Indemnitee of and from all claims and all
threatened, pending or completed actions, suits or proceedings,
whether civil, criminal, administrative or investigative,
involving Indemnitee by reason of the fact that he is or was a
director or officer, or both, of Indemnitor (or by reason of the
fact that he is or was serving at the request of Indemnitor as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) including
all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement, to the broadest and maximum extent
permitted by Delaware law.
1.2. Without limiting the generality of Section 1.1 hereof, the
indemnification provided for by Section 1.1 shall:
1.2.1. extend to and fully cover any Loss (as hereinafter
defined) arising from any Claim (as hereinafter
defined), whether such Claim is made against Indemnitee,
individually or jointly with others, by reason of any
Wrongful Act (as hereinafter defined) made in
Indemnitee's capacity as a director, officer, employee
and/or agent;
<PAGE>
1.2.2. include all rights of indemnification provided to
Indemnitee under the existing provisions of the
certificate of incorporation or bylaws of Indemnitor;
and
1.2.3. include all such additional rights of indemnification
that could possibly be provided to Indemnitee under the
certificate of incorporation or bylaws of Indemnitor or
under Delaware law.
1.3. Nothing in this Section 1 shall be deemed to provide any
indemnity by Indemnitor to Indemnitee on account of any matter:
1.3.1. in respect to remuneration paid to Indemnitee but only
to the extent that it shall be determined by a final
judgment or other final adjudication that such
remuneration was in violation of law; or
1.3.2. for an accounting of profits made from the purchase or
sale by Indemnitee of securities of either Indemnitor
within the meaning of Section 16(b) of the Securities
Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state or local statutory law;
or
1.3.3. brought about or contributed to by the dishonesty of
Indemnitee but only to the extent that a final judgment
or other final adjudication adverse to Indemnitee
establishes that acts of active and deliberate
dishonesty were committed or attempted by Indemnitee
with actual dishonest purpose and intent and were
material to the adjudication; or
1.3.4. that is based on or attributable to Indemnitee having
gained any personal profit or advantage to which
Indemnitee was not entitled but only to the extent that
a final judgment or other final adjudication adverse to
Indemnitee establishes that Indemnitee in fact gained
such personal profit or other advantage to which
Indemnitee was not entitled; or
1.3.5. in respect of which any final decision by a court having
jurisdiction of the matter shall have determined that
indemnification is not lawful.
1.4. Indemnitor promptly shall pay the expenses (including attorneys'
fees) incurred by Indemnitee in defending any civil or criminal
action, suit or proceeding, as such expenses are incurred and
prior to the final disposition of such action, suit or
proceeding, provided that Indemnitor receives a written
undertaking by or on behalf of Indemnitee to repay such amounts
advanced if it is ultimately determined that he is not entitled
to be indemnified by Indemnitor as authorized under this
Agreement. Indemnitor shall perform its obligation under this
Section 1.4 until such time as it may be determined that
Indemnitee is not entitled to indemnification by virtue of one
or more of the exclusions set forth in Section 1.3 hereof.
-2-
<PAGE>
1.5. The reference in Section 1.1 hereof to Delaware law is to
Delaware law as the same exists from time to time, but, in the
case of any amendment to or change in Delaware law, subject to
Section 6, only to the extent that such amendment or change
permits Indemnitor to provide broader or greater rights of
indemnification than is permitted to Indemnitor prior to such
amendment or change.
2. DEFINITIONS
2.1. The term "Loss" shall mean any amount Indemnitee is obligated or
asserted to be obligated to pay in respect of Indemnitee's legal
liability, whether actual or asserted, for a Wrongful Act, and
shall include damages, judgments, settlements and costs,
attorneys' fees, charges and expenses incurred in the defense of
Claims.
2.2. The term "Wrongful Act" shall mean any breach of duty, neglect,
error, misstatement, misleading statement, omission or other act
done or wrongfully attempted by Indemnitee so alleged by any
claimant or any other matter claimed against Indemnitee by
reason of Indemnitee being a director, officer, employee or
agent.
2.3. The term "Subsidiary" shall mean any corporation of which at
least 50% of the equity securities is owned by Indemnitor or by
another Subsidiary.
2.4. The term "Claim" shall mean any suit, action, proceeding,
investigation or claim threatened, whether civil, criminal,
administrative or investigative, made or instituted against or
with respect to Indemnitee or the property of Indemnitee, or
both, either by or in the right of Indemnitor or by or in the
right of a party other than Indemnitor.
3. SCOPE OF INDEMNIFICATION
This Agreement and the indemnification provided herein:
3.1. Shall apply to Indemnitee in Indemnitee's capacity or capacities
as a director, officer, employee or agent, or the like, of (i)
Indemnitor, (ii) any Subsidiary or former Subsidiary, or any
Subsidiary that is hereafter acquired or created by Indemnitor
and (iii) corporations, partnerships, associations and entities
other than Indemnitor and Indemnitor's Subsidiaries where
Indemnitee is directed or requested to serve by Indemnitor;
3.2. Shall be irrevocable and perpetual, and subject to Section 1.3
hereof, shall apply to any Claim arising or Loss incurred after
the date hereof, whether made or incurred prior to or after the
termination of Indemnitee's services to Indemnitor as a
director, officer, employee or agent; and
-3-
<PAGE>
3.3. Subject to Section 1.3 hereof, shall cover Losses arising from
any Claims made against the estate, heirs, legal representatives
or assigns of Indemnitee.
4. AGREEMENT TO BE LIBERALLY CONSTRUED
The purpose of this Agreement is to induce Indemnitee either to serve
Indemnitor in one or more of the capacities described in Section 3.1
hereof, or to induce Indemnitee to continue to serve in one or more such
capacities. Indemnitor acknowledges that, but for this Agreement and the
expectation by Indemnitee that Indemnitor will perform each of its
obligations hereunder, Indemnitee may not consent to serve or to
continue to serve Indemnitor in such capacities. Therefore, it is the
intention of Indemnitor and Indemnitee that this Agreement be liberally
construed so as to achieve its purpose of, subject to Section 1 hereof,
protecting Indemnitee from and against Losses arising from Wrongful
Acts. Indemnitor will not do or fail to do any act that would or might
prevent or hinder the performance by Indemnitor of its obligations under
this Agreement.
5. AGREEMENT NOT EXCLUSIVE
The rights and benefits of Indemnitee, and the obligations of
Indemnitor, under this Agreement shall be in addition to, and shall not
supersede or be in lieu of, the provisions (if any) in the certificate
of incorporation or bylaws of Indemnitor relating to the indemnification
of Indemnitee by Indemnitor; the provisions of policies of insurance of
Indemnitor; the provisions of policies of insurance or indemnification
arrangements provided by persons or entities other than Indemnitor; or
applicable law. Notwithstanding anything to the contrary in this
Agreement, Indemnitor shall defend, indemnify and hold harmless
Indemnitee to the full extent permitted from time to time by applicable
law. Indemnitor, however, shall not be liable to Indemnitee to make any
payment with respect to any claim made against Indemnitee for which
payment is actually made to Indemnitee under a valid and collectible
insurance policy, except with respect to any excess beyond the amount of
the payment under such policy.
6. SEVERABILITY
Nothing in this Agreement is intended to require or shall be construed
as requiring Indemnitor to do or fail to do any act in violation of
applicable law. If any provision of this Agreement is finally determined
by a court of competent jurisdiction to require Indemnitor to do or fail
to do such an act, such provision shall be limited or modified in its
application to the extent necessary to avoid a violation of law, and as
so limited or modified such provision and the balance of this Agreement
shall be enforceable in accordance with their terms.
7. CHOICE OF LAW
This Agreement shall be governed by, and its provisions construed in
accordance with, the laws of the State of Delaware without regard to
provisions concerning conflict of laws.
-4-
<PAGE>
8. CHOICE OF FORUM
Any action instituted by or on behalf of Indemnitor under this Agreement
or to enforce or interpret any provision of this Agreement shall be
brought only in the state courts of the State of Delaware and in no
other court. If any action is instituted in any court by Indemnitee
under this Agreement or to enforce or interpret any of its terms,
Indemnitor hereby consents, and will at such time consent, to the
exclusive jurisdiction and exclusive venue of such court, and shall
cooperate with any request by Indemnitee to transfer or remove such
action to another court.
9. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon Indemnitor and its successors and
assigns, and shall inure to the benefit of Indemnitee or Indemnitee's
estate, heirs, legal representatives and assigns.
10. MODIFICATION, AMENDMENT OR WAIVER
No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both the parties hereto. Any term
or provision of this Agreement may be waived at any time by the party
entitled to the benefit thereof, but only by a written instrument
executed by such party. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other
provision hereof nor shall such waiver constitute a continuing waiver.
11. ATTORNEYS' FEES
If any action is instituted by Indemnitee under this Agreement to
enforce or interpret any of the terms of this Agreement, Indemnitee
shall be entitled to be paid all court costs and expenses, including
attorneys' fees, incurred by Indemnitee with respect to such action,
unless as a part of such action the court determines that each of the
material assertions made by Indemnitee as a part of such action were not
made in good faith or were frivolous. If any action is instituted by or
in the name of the Indemnitor under this Agreement to enforce or
interpret any of the terms of this Agreement, Indemnitee shall be
entitled to be paid all court costs and expenses, including reasonable
attorneys' fees, incurred by Indemnitee in defense of such action
(including with respect to Indemnitee's counterclaims and cross claims
made in such action), unless as a part of such action the court
determines that each of the Indemnitee's material defenses to such
action were made in bad faith or were frivolous.
12. COUNTERPARTS
This Agreement may be signed in any number of counterparts, each of
which will be an original, with the same effect as if the signatures
hereto were upon the same instrument.
-5-
<PAGE>
13. CONTENTS OF AGREEMENT
This Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof and supersedes all prior agreements
or understandings between the parties regarding such matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FOILMARK, INC.
/s/
--------------------------------------------
By: Frank J. Olsen, Jr.
Title: President and Chief Executive Officer
/s/
--------------------------------------------
Harvey Share
-6-
<PAGE>
Exhibit 10.14
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made this 23rd day of
April, 1999 between Foilmark, Inc., a Delaware corporation having its principal
office located in Newburyport, Massachusetts ("Indemnitor"), and James L. Rooney
("Indemnitee").
RECITALS
A. Indemnitee is now serving, or is considering serving, Indemnitor as a
director or officer, or both, and the parties hereto acknowledge that
Indemnitee's service to Indemnitor may expose Indemnitee to claims, lawsuits and
risk of liability.
B. The parties further recognize that the compensation or fees payable to
Indemnitee for the performance of such services may not be commensurate with the
potential risk involved and Indemnitor is now, or may in the future be, unable
adequately to provide insurance at a reasonable cost to cover such risk.
C. Accordingly, as an inducement to Indemnitee to serve or to continue to
serve Indemnitor, Indemnitor and Indemnitee desire to enter into this Agreement
pursuant to which Indemnitor undertakes to indemnify Indemnitee against such
risk to the fullest extent permitted to do so by Delaware law.
NOW, THEREFORE, Indemnitor and Indemnitee hereby agree as follows:
1. INDEMNIFICATION
1.1. Subject to Section 1.3 hereof, Indemnitor shall hold harmless
and indemnify Indemnitee of and from all claims and all
threatened, pending or completed actions, suits or proceedings,
whether civil, criminal, administrative or investigative,
involving Indemnitee by reason of the fact that he is or was a
director or officer, or both, of Indemnitor (or by reason of the
fact that he is or was serving at the request of Indemnitor as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) including
all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement, to the broadest and maximum extent
permitted by Delaware law.
1.2. Without limiting the generality of Section 1.1 hereof, the
indemnification provided for by Section 1.1 shall:
1.2.1. extend to and fully cover any Loss (as hereinafter
defined) arising from any Claim (as hereinafter
defined), whether such Claim is made against Indemnitee,
individually or jointly with others, by reason of any
Wrongful Act (as hereinafter defined) made in
Indemnitee's capacity as a director, officer, employee
and/or agent;
<PAGE>
1.2.2. include all rights of indemnification provided to
Indemnitee under the existing provisions of the
certificate of incorporation or bylaws of Indemnitor;
and
1.2.3. include all such additional rights of indemnification
that could possibly be provided to Indemnitee under the
certificate of incorporation or bylaws of Indemnitor or
under Delaware law.
1.3. Nothing in this Section 1 shall be deemed to provide any
indemnity by Indemnitor to Indemnitee on account of any matter:
1.3.1. in respect to remuneration paid to Indemnitee but only
to the extent that it shall be determined by a final
judgment or other final adjudication that such
remuneration was in violation of law; or
1.3.2. for an accounting of profits made from the purchase or
sale by Indemnitee of securities of either Indemnitor
within the meaning of Section 16(b) of the Securities
Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state or local statutory law;
or
1.3.3. brought about or contributed to by the dishonesty of
Indemnitee but only to the extent that a final judgment
or other final adjudication adverse to Indemnitee
establishes that acts of active and deliberate
dishonesty were committed or attempted by Indemnitee
with actual dishonest purpose and intent and were
material to the adjudication; or
1.3.4. that is based on or attributable to Indemnitee having
gained any personal profit or advantage to which
Indemnitee was not entitled but only to the extent that
a final judgment or other final adjudication adverse to
Indemnitee establishes that Indemnitee in fact gained
such personal profit or other advantage to which
Indemnitee was not entitled; or
1.3.5. in respect of which any final decision by a court having
jurisdiction of the matter shall have determined that
indemnification is not lawful.
1.4. Indemnitor promptly shall pay the expenses (including attorneys'
fees) incurred by Indemnitee in defending any civil or criminal
action, suit or proceeding, as such expenses are incurred and
prior to the final disposition of such action, suit or
proceeding, provided that Indemnitor receives a written
undertaking by or on behalf of Indemnitee to repay such amounts
advanced if it is ultimately determined that he is not entitled
to be indemnified by Indemnitor as authorized under this
Agreement. Indemnitor shall perform its obligation under this
Section 1.4 until such time as it may be determined that
Indemnitee is not entitled to indemnification by virtue of one
or more of the exclusions set forth in Section 1.3 hereof.
-2-
<PAGE>
1.5. The reference in Section 1.1 hereof to Delaware law is to
Delaware law as the same exists from time to time, but, in the
case of any amendment to or change in Delaware law, subject to
Section 6, only to the extent that such amendment or change
permits Indemnitor to provide broader or greater rights of
indemnification than is permitted to Indemnitor prior to such
amendment or change.
2. DEFINITIONS
2.1. The term "Loss" shall mean any amount Indemnitee is obligated or
asserted to be obligated to pay in respect of Indemnitee's legal
liability, whether actual or asserted, for a Wrongful Act, and
shall include damages, judgments, settlements and costs,
attorneys' fees, charges and expenses incurred in the defense of
Claims.
2.2. The term "Wrongful Act" shall mean any breach of duty, neglect,
error, misstatement, misleading statement, omission or other act
done or wrongfully attempted by Indemnitee so alleged by any
claimant or any other matter claimed against Indemnitee by
reason of Indemnitee being a director, officer, employee or
agent.
2.3. The term "Subsidiary" shall mean any corporation of which at
least 50% of the equity securities is owned by Indemnitor or by
another Subsidiary.
2.4. The term "Claim" shall mean any suit, action, proceeding,
investigation or claim threatened, whether civil, criminal,
administrative or investigative, made or instituted against or
with respect to Indemnitee or the property of Indemnitee, or
both, either by or in the right of Indemnitor or by or in the
right of a party other than Indemnitor.
3. SCOPE OF INDEMNIFICATION
This Agreement and the indemnification provided herein:
3.1. Shall apply to Indemnitee in Indemnitee's capacity or capacities
as a director, officer, employee or agent, or the like, of
(i) Indemnitor, (ii) any Subsidiary or former Subsidiary, or any
Subsidiary that is hereafter acquired or created by Indemnitor
and (iii) corporations, partnerships, associations and entities
other than Indemnitor and Indemnitor's Subsidiaries where
Indemnitee is directed or requested to serve by Indemnitor;
3.2. Shall be irrevocable and perpetual, and subject to Section 1.3
hereof, shall apply to any Claim arising or Loss incurred after
the date hereof, whether made or incurred prior to or after the
termination of Indemnitee's services to Indemnitor as a
director, officer, employee or agent; and
-3-
<PAGE>
3.3. Subject to Section 1.3 hereof, shall cover Losses arising from
any Claims made against the estate, heirs, legal representatives
or assigns of Indemnitee.
4. AGREEMENT TO BE LIBERALLY CONSTRUED
The purpose of this Agreement is to induce Indemnitee either to serve
Indemnitor in one or more of the capacities described in Section 3.1
hereof, or to induce Indemnitee to continue to serve in one or more such
capacities. Indemnitor acknowledges that, but for this Agreement and the
expectation by Indemnitee that Indemnitor will perform each of its
obligations hereunder, Indemnitee may not consent to serve or to
continue to serve Indemnitor in such capacities. Therefore, it is the
intention of Indemnitor and Indemnitee that this Agreement be liberally
construed so as to achieve its purpose of, subject to Section 1 hereof,
protecting Indemnitee from and against Losses arising from Wrongful
Acts. Indemnitor will not do or fail to do any act that would or might
prevent or hinder the performance by Indemnitor of its obligations under
this Agreement.
5. AGREEMENT NOT EXCLUSIVE
The rights and benefits of Indemnitee, and the obligations of
Indemnitor, under this Agreement shall be in addition to, and shall not
supersede or be in lieu of, the provisions (if any) in the certificate
of incorporation or bylaws of Indemnitor relating to the indemnification
of Indemnitee by Indemnitor; the provisions of policies of insurance of
Indemnitor; the provisions of policies of insurance or indemnification
arrangements provided by persons or entities other than Indemnitor; or
applicable law. Notwithstanding anything to the contrary in this
Agreement, Indemnitor shall defend, indemnify and hold harmless
Indemnitee to the full extent permitted from time to time by applicable
law. Indemnitor, however, shall not be liable to Indemnitee to make any
payment with respect to any claim made against Indemnitee for which
payment is actually made to Indemnitee under a valid and collectible
insurance policy, except with respect to any excess beyond the amount of
the payment under such policy.
6. SEVERABILITY
Nothing in this Agreement is intended to require or shall be construed
as requiring Indemnitor to do or fail to do any act in violation of
applicable law. If any provision of this Agreement is finally determined
by a court of competent jurisdiction to require Indemnitor to do or fail
to do such an act, such provision shall be limited or modified in its
application to the extent necessary to avoid a violation of law, and as
so limited or modified such provision and the balance of this Agreement
shall be enforceable in accordance with their terms.
7. CHOICE OF LAW
This Agreement shall be governed by, and its provisions construed in
accordance with, the laws of the State of Delaware without regard to
provisions concerning conflict of laws.
-4-
<PAGE>
8. CHOICE OF FORUM
Any action instituted by or on behalf of Indemnitor under this Agreement
or to enforce or interpret any provision of this Agreement shall be
brought only in the state courts of the State of Delaware and in no
other court. If any action is instituted in any court by Indemnitee
under this Agreement or to enforce or interpret any of its terms,
Indemnitor hereby consents, and will at such time consent, to the
exclusive jurisdiction and exclusive venue of such court, and shall
cooperate with any request by Indemnitee to transfer or remove such
action to another court.
9. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon Indemnitor and its successors and
assigns, and shall inure to the benefit of Indemnitee or Indemnitee's
estate, heirs, legal representatives and assigns.
10. MODIFICATION, AMENDMENT OR WAIVER
No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both the parties hereto. Any term
or provision of this Agreement may be waived at any time by the party
entitled to the benefit thereof, but only by a written instrument
executed by such party. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other
provision hereof nor shall such waiver constitute a continuing waiver.
11. ATTORNEYS' FEES
If any action is instituted by Indemnitee under this Agreement to
enforce or interpret any of the terms of this Agreement, Indemnitee
shall be entitled to be paid all court costs and expenses, including
attorneys' fees, incurred by Indemnitee with respect to such action,
unless as a part of such action the court determines that each of the
material assertions made by Indemnitee as a part of such action were not
made in good faith or were frivolous. If any action is instituted by or
in the name of the Indemnitor under this Agreement to enforce or
interpret any of the terms of this Agreement, Indemnitee shall be
entitled to be paid all court costs and expenses, including reasonable
attorneys' fees, incurred by Indemnitee in defense of such action
(including with respect to Indemnitee's counterclaims and cross claims
made in such action), unless as a part of such action the court
determines that each of the Indemnitee's material defenses to such
action were made in bad faith or were frivolous.
12. COUNTERPARTS
This Agreement may be signed in any number of counterparts, each of
which will be an original, with the same effect as if the signatures
hereto were upon the same instrument.
-5-
<PAGE>
13. CONTENTS OF AGREEMENT
This Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof and supersedes all prior agreements
or understandings between the parties regarding such matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FOILMARK, INC.
/s/
--------------------------------------------
By: Frank J. Olsen, Jr.
Title: President and Chief Executive Officer
/s/
--------------------------------------------
James L. Rooney
-6-
<PAGE>
Exhibit 10.15
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made this 23rd day of
April, 1999 between Foilmark, Inc., a Delaware corporation having its principal
office located in Newburyport, Massachusetts ("Indemnitor"), and Joseph T. Webb
("Indemnitee").
RECITALS
A. Indemnitee is now serving, or is considering serving, Indemnitor as a
director or officer, or both, and the parties hereto acknowledge that
Indemnitee's service to Indemnitor may expose Indemnitee to claims, lawsuits and
risk of liability.
B. The parties further recognize that the compensation or fees payable to
Indemnitee for the performance of such services may not be commensurate with the
potential risk involved and Indemnitor is now, or may in the future be, unable
adequately to provide insurance at a reasonable cost to cover such risk.
C. Accordingly, as an inducement to Indemnitee to serve or to continue to
serve Indemnitor, Indemnitor and Indemnitee desire to enter into this Agreement
pursuant to which Indemnitor undertakes to indemnify Indemnitee against such
risk to the fullest extent permitted to do so by Delaware law.
NOW, THEREFORE, Indemnitor and Indemnitee hereby agree as follows:
1. INDEMNIFICATION
1.1. Subject to Section 1.3 hereof, Indemnitor shall hold harmless
and indemnify Indemnitee of and from all claims and all
threatened, pending or completed actions, suits or proceedings,
whether civil, criminal, administrative or investigative,
involving Indemnitee by reason of the fact that he is or was a
director or officer, or both, of Indemnitor (or by reason of the
fact that he is or was serving at the request of Indemnitor as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) including
all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement, to the broadest and maximum extent
permitted by Delaware law.
1.2. Without limiting the generality of Section 1.1 hereof, the
indemnification provided for by Section 1.1 shall:
1.2.1. extend to and fully cover any Loss (as hereinafter
defined) arising from any Claim (as hereinafter
defined), whether such Claim is made against Indemnitee,
individually or jointly with others, by reason of any
Wrongful Act (as hereinafter defined) made in
Indemnitee's capacity as a director, officer, employee
and/or agent;
<PAGE>
1.2.2. include all rights of indemnification provided to
Indemnitee under the existing provisions of the certificate
of incorporation or bylaws of Indemnitor; and
1.2.3. include all such additional rights of indemnification that
could possibly be provided to Indemnitee under the certificate
of incorporation or bylaws of Indemnitor or under Delaware law.
1.3. Nothing in this Section 1 shall be deemed to provide any indemnity by
Indemnitor to Indemnitee on account of any matter:
1.3.1. in respect to remuneration paid to Indemnitee but only to the
extent that it shall be determined by a final judgment or other
final adjudication that such remuneration was in violation of
law; or
1.3.2. for an accounting of profits made from the purchase or sale by
Indemnitee of securities of either Indemnitor within the meaning
of Section 16(b) of the Securities Exchange Act of 1934 and
amendments thereto or similar provisions of any federal, state
or local statutory law; or
1.3.3. brought about or contributed to by the dishonesty of Indemnitee
but only to the extent that a final judgment or other final
adjudication adverse to Indemnitee establishes that acts of
active and deliberate dishonesty were committed or attempted by
Indemnitee with actual dishonest purpose and intent and were
material to the adjudication; or
1.3.4. that is based on or attributable to Indemnitee having gained any
personal profit or advantage to which Indemnitee was not
entitled but only to the extent that a final judgment or other
final adjudication adverse to Indemnitee establishes that
Indemnitee in fact gained such personal profit or other
advantage to which Indemnitee was not entitled; or
1.3.5. in respect of which any final decision by a court having
jurisdiction of the matter shall have determined that
indemnification is not lawful.
1.4. Indemnitor promptly shall pay the expenses (including attorneys' fees)
incurred by Indemnitee in defending any civil or criminal action, suit
or proceeding, as such expenses are incurred and prior to the final
disposition of such action, suit or proceeding, provided that Indemnitor
receives a written undertaking by or on behalf of Indemnitee to repay
such amounts advanced if it is ultimately determined that he is not
entitled to be indemnified by Indemnitor as authorized under this
Agreement. Indemnitor shall perform its obligation under this Section
1.4 until such time as it may be determined that Indemnitee is not
entitled to indemnification by virtue of one or more of the exclusions
set forth in Section 1.3 hereof.
-2-
<PAGE>
1.5. The reference in Section 1.1 hereof to Delaware law is to
Delaware law as the same exists from time to time, but, in the
case of any amendment to or change in Delaware law, subject to
Section 6, only to the extent that such amendment or change
permits Indemnitor to provide broader or greater rights of
indemnification than is permitted to Indemnitor prior to such
amendment or change.
2. DEFINITIONS
2.1. The term "Loss" shall mean any amount Indemnitee is obligated or
asserted to be obligated to pay in respect of Indemnitee's legal
liability, whether actual or asserted, for a Wrongful Act, and
shall include damages, judgments, settlements and costs,
attorneys' fees, charges and expenses incurred in the defense of
Claims.
2.2. The term "Wrongful Act" shall mean any breach of duty, neglect,
error, misstatement, misleading statement, omission or other act
done or wrongfully attempted by Indemnitee so alleged by any
claimant or any other matter claimed against Indemnitee by
reason of Indemnitee being a director, officer, employee or
agent.
2.3. The term "Subsidiary" shall mean any corporation of which at
least 50% of the equity securities is owned by Indemnitor or by
another Subsidiary.
2.4. The term "Claim" shall mean any suit, action, proceeding,
investigation or claim threatened, whether civil, criminal,
administrative or investigative, made or instituted against or
with respect to Indemnitee or the property of Indemnitee, or
both, either by or in the right of Indemnitor or by or in the
right of a party other than Indemnitor.
3. SCOPE OF INDEMNIFICATION
This Agreement and the indemnification provided herein:
3.1. Shall apply to Indemnitee in Indemnitee's capacity or capacities
as a director, officer, employee or agent, or the like, of (i)
Indemnitor, (ii) any Subsidiary or former Subsidiary, or any
Subsidiary that is hereafter acquired or created by Indemnitor
and (iii) corporations, partnerships, associations and entities
other than Indemnitor and Indemnitor's Subsidiaries where
Indemnitee is directed or requested to serve by Indemnitor;
3.2. Shall be irrevocable and perpetual, and subject to Section 1.3
hereof, shall apply to any Claim arising or Loss incurred after
the date hereof, whether made or incurred prior to or after the
termination of Indemnitee's services to Indemnitor as a
director, officer, employee or agent; and
-3-
<PAGE>
3.3. Subject to Section 1.3 hereof, shall cover Losses arising from
any Claims made against the estate, heirs, legal representatives
or assigns of Indemnitee.
4. AGREEMENT TO BE LIBERALLY CONSTRUED
The purpose of this Agreement is to induce Indemnitee either to serve
Indemnitor in one or more of the capacities described in Section 3.1
hereof, or to induce Indemnitee to continue to serve in one or more such
capacities. Indemnitor acknowledges that, but for this Agreement and the
expectation by Indemnitee that Indemnitor will perform each of its
obligations hereunder, Indemnitee may not consent to serve or to
continue to serve Indemnitor in such capacities. Therefore, it is the
intention of Indemnitor and Indemnitee that this Agreement be liberally
construed so as to achieve its purpose of, subject to Section 1 hereof,
protecting Indemnitee from and against Losses arising from Wrongful
Acts. Indemnitor will not do or fail to do any act that would or might
prevent or hinder the performance by Indemnitor of its obligations under
this Agreement.
5. AGREEMENT NOT EXCLUSIVE
The rights and benefits of Indemnitee, and the obligations of
Indemnitor, under this Agreement shall be in addition to, and shall not
supersede or be in lieu of, the provisions (if any) in the certificate
of incorporation or bylaws of Indemnitor relating to the indemnification
of Indemnitee by Indemnitor; the provisions of policies of insurance of
Indemnitor; the provisions of policies of insurance or indemnification
arrangements provided by persons or entities other than Indemnitor; or
applicable law. Notwithstanding anything to the contrary in this
Agreement, Indemnitor shall defend, indemnify and hold harmless
Indemnitee to the full extent permitted from time to time by applicable
law. Indemnitor, however, shall not be liable to Indemnitee to make any
payment with respect to any claim made against Indemnitee for which
payment is actually made to Indemnitee under a valid and collectible
insurance policy, except with respect to any excess beyond the amount of
the payment under such policy.
6. SEVERABILITY
Nothing in this Agreement is intended to require or shall be construed
as requiring Indemnitor to do or fail to do any act in violation of
applicable law. If any provision of this Agreement is finally determined
by a court of competent jurisdiction to require Indemnitor to do or fail
to do such an act, such provision shall be limited or modified in its
application to the extent necessary to avoid a violation of law, and as
so limited or modified such provision and the balance of this Agreement
shall be enforceable in accordance with their terms.
7. CHOICE OF LAW
This Agreement shall be governed by, and its provisions construed in
accordance with, the laws of the State of Delaware without regard to
provisions concerning conflict of laws.
-4-
<PAGE>
8. CHOICE OF FORUM
Any action instituted by or on behalf of Indemnitor under this Agreement
or to enforce or interpret any provision of this Agreement shall be
brought only in the state courts of the State of Delaware and in no
other court. If any action is instituted in any court by Indemnitee
under this Agreement or to enforce or interpret any of its terms,
Indemnitor hereby consents, and will at such time consent, to the
exclusive jurisdiction and exclusive venue of such court, and shall
cooperate with any request by Indemnitee to transfer or remove such
action to another court.
9. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon Indemnitor and its successors and
assigns, and shall inure to the benefit of Indemnitee or Indemnitee's
estate, heirs, legal representatives and assigns.
10. MODIFICATION, AMENDMENT OR WAIVER
No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both the parties hereto. Any term
or provision of this Agreement may be waived at any time by the party
entitled to the benefit thereof, but only by a written instrument
executed by such party. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other
provision hereof nor shall such waiver constitute a continuing waiver.
11. ATTORNEYS' FEES
If any action is instituted by Indemnitee under this Agreement to
enforce or interpret any of the terms of this Agreement, Indemnitee
shall be entitled to be paid all court costs and expenses, including
attorneys' fees, incurred by Indemnitee with respect to such action,
unless as a part of such action the court determines that each of the
material assertions made by Indemnitee as a part of such action were not
made in good faith or were frivolous. If any action is instituted by or
in the name of the Indemnitor under this Agreement to enforce or
interpret any of the terms of this Agreement, Indemnitee shall be
entitled to be paid all court costs and expenses, including reasonable
attorneys' fees, incurred by Indemnitee in defense of such action
(including with respect to Indemnitee's counterclaims and cross claims
made in such action), unless as a part of such action the court
determines that each of the Indemnitee's material defenses to such
action were made in bad faith or were frivolous.
12. COUNTERPARTS
This Agreement may be signed in any number of counterparts, each of
which will be an original, with the same effect as if the signatures
hereto were upon the same instrument.
-5-
<PAGE>
13. CONTENTS OF AGREEMENT
This Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof and supersedes all prior agreements
or understandings between the parties regarding such matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FOILMARK, INC.
/s/
--------------------------------------------
By: Frank J. Olsen, Jr.
Title: President and Chief Executive Officer
/s/
--------------------------------------------
Joseph T. Webb
-6-
<PAGE>
Exhibit 10.16
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made this 23rd day of
April, 1999 between Foilmark, Inc., a Delaware corporation having its principal
office located in Newburyport, Massachusetts ("Indemnitor"), and Arthur
Karmel.("Indemnitee").
RECITALS
A. Indemnitee is now serving, or is considering serving, Indemnitor as a
director or officer, or both, and the parties hereto acknowledge that
Indemnitee's service to Indemnitor may expose Indemnitee to claims, lawsuits and
risk of liability.
B. The parties further recognize that the compensation or fees payable to
Indemnitee for the performance of such services may not be commensurate with the
potential risk involved and Indemnitor is now, or may in the future be, unable
adequately to provide insurance at a reasonable cost to cover such risk.
C. Accordingly, as an inducement to Indemnitee to serve or to continue to
serve Indemnitor, Indemnitor and Indemnitee desire to enter into this Agreement
pursuant to which Indemnitor undertakes to indemnify Indemnitee against such
risk to the fullest extent permitted to do so by Delaware law.
NOW, THEREFORE, Indemnitor and Indemnitee hereby agree as follows:
1. INDEMNIFICATION
1.1. Subject to Section 1.3 hereof, Indemnitor shall hold harmless
and indemnify Indemnitee of and from all claims and all
threatened, pending or completed actions, suits or proceedings,
whether civil, criminal, administrative or investigative,
involving Indemnitee by reason of the fact that he is or was a
director or officer, or both, of Indemnitor (or by reason of the
fact that he is or was serving at the request of Indemnitor as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) including
all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement, to the broadest and maximum extent
permitted by Delaware law.
1.2. Without limiting the generality of Section 1.1 hereof, the
indemnification provided for by Section 1.1 shall:
1.2.1. extend to and fully cover any Loss (as hereinafter
defined) arising from any Claim (as hereinafter
defined), whether such Claim is made against Indemnitee,
individually or jointly with others, by reason of any
Wrongful Act (as hereinafter defined) made in
Indemnitee's capacity as a director, officer, employee
and/or agent;
<PAGE>
1.2.2. include all rights of indemnification provided to
Indemnitee under the existing provisions of the
certificate of incorporation or bylaws of Indemnitor;
and
1.2.3. include all such additional rights of indemnification
that could possibly be provided to Indemnitee under the
certificate of incorporation or bylaws of Indemnitor or
under Delaware law.
1.3. Nothing in this Section 1 shall be deemed to provide any
indemnity by Indemnitor to Indemnitee on account of any matter:
1.3.1. in respect to remuneration paid to Indemnitee but only
to the extent that it shall be determined by a final
judgment or other final adjudication that such
remuneration was in violation of law; or
1.3.2. for an accounting of profits made from the purchase or
sale by Indemnitee of securities of either Indemnitor
within the meaning of Section 16(b) of the Securities
Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state or local statutory law;
or
1.3.3. brought about or contributed to by the dishonesty of
Indemnitee but only to the extent that a final judgment
or other final adjudication adverse to Indemnitee
establishes that acts of active and deliberate
dishonesty were committed or attempted by Indemnitee
with actual dishonest purpose and intent and were
material to the adjudication; or
1.3.4. that is based on or attributable to Indemnitee having
gained any personal profit or advantage to which
Indemnitee was not entitled but only to the extent that
a final judgment or other final adjudication adverse to
Indemnitee establishes that Indemnitee in fact gained
such personal profit or other advantage to which
Indemnitee was not entitled; or
1.3.5. in respect of which any final decision by a court having
jurisdiction of the matter shall have determined that
indemnification is not lawful.
1.4. Indemnitor promptly shall pay the expenses (including attorneys'
fees) incurred by Indemnitee in defending any civil or criminal
action, suit or proceeding, as such expenses are incurred and
prior to the final disposition of such action, suit or
proceeding, provided that Indemnitor receives a written
undertaking by or on behalf of Indemnitee to repay such amounts
advanced if it is ultimately determined that he is not entitled
to be indemnified by Indemnitor as authorized under this
Agreement. Indemnitor shall perform its obligation under this
Section 1.4 until such time as it may be determined that
Indemnitee is not entitled to indemnification by virtue of one
or more of the exclusions set forth in Section 1.3 hereof.
-2-
<PAGE>
1.5. The reference in Section 1.1 hereof to Delaware law is to
Delaware law as the same exists from time to time, but, in the
case of any amendment to or change in Delaware law, subject to
Section 6, only to the extent that such amendment or change
permits Indemnitor to provide broader or greater rights of
indemnification than is permitted to Indemnitor prior to such
amendment or change.
2. DEFINITIONS
2.1. The term "Loss" shall mean any amount Indemnitee is obligated or
asserted to be obligated to pay in respect of Indemnitee's legal
liability, whether actual or asserted, for a Wrongful Act, and
shall include damages, judgments, settlements and costs,
attorneys' fees, charges and expenses incurred in the defense of
Claims.
2.2. The term "Wrongful Act" shall mean any breach of duty, neglect,
error, misstatement, misleading statement, omission or other act
done or wrongfully attempted by Indemnitee so alleged by any
claimant or any other matter claimed against Indemnitee by
reason of Indemnitee being a director, officer, employee or
agent.
2.3. The term "Subsidiary" shall mean any corporation of which at
least 50% of the equity securities is owned by Indemnitor or by
another Subsidiary.
2.4. The term "Claim" shall mean any suit, action, proceeding,
investigation or claim threatened, whether civil, criminal,
administrative or investigative, made or instituted against or
with respect to Indemnitee or the property of Indemnitee, or
both, either by or in the right of Indemnitor or by or in the
right of a party other than Indemnitor.
3. SCOPE OF INDEMNIFICATION
This Agreement and the indemnification provided herein:
3.1. Shall apply to Indemnitee in Indemnitee's capacity or capacities
as a director, officer, employee or agent, or the like, of (i)
Indemnitor, (ii) any Subsidiary or former Subsidiary, or any
Subsidiary that is hereafter acquired or created by Indemnitor
and (iii) corporations, partnerships, associations and entities
other than Indemnitor and Indemnitor's Subsidiaries where
Indemnitee is directed or requested to serve by Indemnitor;
3.2. Shall be irrevocable and perpetual, and subject to Section 1.3
hereof, shall apply to any Claim arising or Loss incurred after
the date hereof, whether made or incurred prior to or after the
termination of Indemnitee's services to Indemnitor as a
director, officer, employee or agent; and
-3-
<PAGE>
3.3. Subject to Section 1.3 hereof, shall cover Losses arising from
any Claims made against the estate, heirs, legal representatives
or assigns of Indemnitee.
4. AGREEMENT TO BE LIBERALLY CONSTRUED
The purpose of this Agreement is to induce Indemnitee either to serve
Indemnitor in one or more of the capacities described in Section 3.1
hereof, or to induce Indemnitee to continue to serve in one or more such
capacities. Indemnitor acknowledges that, but for this Agreement and the
expectation by Indemnitee that Indemnitor will perform each of its
obligations hereunder, Indemnitee may not consent to serve or to
continue to serve Indemnitor in such capacities. Therefore, it is the
intention of Indemnitor and Indemnitee that this Agreement be liberally
construed so as to achieve its purpose of, subject to Section 1 hereof,
protecting Indemnitee from and against Losses arising from Wrongful
Acts. Indemnitor will not do or fail to do any act that would or might
prevent or hinder the performance by Indemnitor of its obligations under
this Agreement.
5. AGREEMENT NOT EXCLUSIVE
The rights and benefits of Indemnitee, and the obligations of
Indemnitor, under this Agreement shall be in addition to, and shall not
supersede or be in lieu of, the provisions (if any) in the certificate
of incorporation or bylaws of Indemnitor relating to the indemnification
of Indemnitee by Indemnitor; the provisions of policies of insurance of
Indemnitor; the provisions of policies of insurance or indemnification
arrangements provided by persons or entities other than Indemnitor; or
applicable law. Notwithstanding anything to the contrary in this
Agreement, Indemnitor shall defend, indemnify and hold harmless
Indemnitee to the full extent permitted from time to time by applicable
law. Indemnitor, however, shall not be liable to Indemnitee to make any
payment with respect to any claim made against Indemnitee for which
payment is actually made to Indemnitee under a valid and collectible
insurance policy, except with respect to any excess beyond the amount of
the payment under such policy.
6. SEVERABILITY
Nothing in this Agreement is intended to require or shall be construed
as requiring Indemnitor to do or fail to do any act in violation of
applicable law. If any provision of this Agreement is finally determined
by a court of competent jurisdiction to require Indemnitor to do or fail
to do such an act, such provision shall be limited or modified in its
application to the extent necessary to avoid a violation of law, and as
so limited or modified such provision and the balance of this Agreement
shall be enforceable in accordance with their terms.
7. CHOICE OF LAW
This Agreement shall be governed by, and its provisions construed in
accordance with, the laws of the State of Delaware without regard to
provisions concerning conflict of laws.
-4-
<PAGE>
8. CHOICE OF FORUM
Any action instituted by or on behalf of Indemnitor under this Agreement
or to enforce or interpret any provision of this Agreement shall be
brought only in the state courts of the State of Delaware and in no
other court. If any action is instituted in any court by Indemnitee
under this Agreement or to enforce or interpret any of its terms,
Indemnitor hereby consents, and will at such time consent, to the
exclusive jurisdiction and exclusive venue of such court, and shall
cooperate with any request by Indemnitee to transfer or remove such
action to another court.
9. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon Indemnitor and its successors and
assigns, and shall inure to the benefit of Indemnitee or Indemnitee's
estate, heirs, legal representatives and assigns.
10. MODIFICATION, AMENDMENT OR WAIVER
No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both the parties hereto. Any term
or provision of this Agreement may be waived at any time by the party
entitled to the benefit thereof, but only by a written instrument
executed by such party. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other
provision hereof nor shall such waiver constitute a continuing waiver.
11. ATTORNEYS' FEES
If any action is instituted by Indemnitee under this Agreement to
enforce or interpret any of the terms of this Agreement, Indemnitee
shall be entitled to be paid all court costs and expenses, including
attorneys' fees, incurred by Indemnitee with respect to such action,
unless as a part of such action the court determines that each of the
material assertions made by Indemnitee as a part of such action were not
made in good faith or were frivolous. If any action is instituted by or
in the name of the Indemnitor under this Agreement to enforce or
interpret any of the terms of this Agreement, Indemnitee shall be
entitled to be paid all court costs and expenses, including reasonable
attorneys' fees, incurred by Indemnitee in defense of such action
(including with respect to Indemnitee's counterclaims and cross claims
made in such action), unless as a part of such action the court
determines that each of the Indemnitee's material defenses to such
action were made in bad faith or were frivolous.
12. COUNTERPARTS
This Agreement may be signed in any number of counterparts, each of
which will be an original, with the same effect as if the signatures
hereto were upon the same instrument.
-5-
<PAGE>
13. CONTENTS OF AGREEMENT
This Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof and supersedes all prior agreements
or understandings between the parties regarding such matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FOILMARK, INC.
/s/
--------------------------------------------
By: Frank J. Olsen, Jr.
Title: President and Chief Executive Officer
/s/
--------------------------------------------
Arthur Karmel
-6-
<PAGE>
Exhibit 10.17
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made this 23rd day of
April, 1999 between Foilmark, Inc., a Delaware corporation having its principal
office located in Newburyport, Massachusetts ("Indemnitor"), and Robert J. Simon
("Indemnitee").
RECITALS
A. Indemnitee is now serving, or is considering serving, Indemnitor as a
director or officer, or both, and the parties hereto acknowledge that
Indemnitee's service to Indemnitor may expose Indemnitee to claims, lawsuits and
risk of liability.
B. The parties further recognize that the compensation or fees payable to
Indemnitee for the performance of such services may not be commensurate with the
potential risk involved and Indemnitor is now, or may in the future be, unable
adequately to provide insurance at a reasonable cost to cover such risk.
C. Accordingly, as an inducement to Indemnitee to serve or to continue to
serve Indemnitor, Indemnitor and Indemnitee desire to enter into this Agreement
pursuant to which Indemnitor undertakes to indemnify Indemnitee against such
risk to the fullest extent permitted to do so by Delaware law.
NOW, THEREFORE, Indemnitor and Indemnitee hereby agree as follows:
1. INDEMNIFICATION
1.1. Subject to Section 1.3 hereof, Indemnitor shall hold harmless
and indemnify Indemnitee of and from all claims and all
threatened, pending or completed actions, suits or proceedings,
whether civil, criminal, administrative or investigative,
involving Indemnitee by reason of the fact that he is or was a
director or officer, or both, of Indemnitor (or by reason of the
fact that he is or was serving at the request of Indemnitor as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) including
all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement, to the broadest and maximum extent
permitted by Delaware law.
1.2. Without limiting the generality of Section 1.1 hereof, the
indemnification provided for by Section 1.1 shall:
1.2.1. extend to and fully cover any Loss (as hereinafter
defined) arising from any Claim (as hereinafter
defined), whether such Claim is made against Indemnitee,
individually or jointly with others, by reason of any
Wrongful Act (as hereinafter defined) made in
Indemnitee's capacity as a director, officer, employee
and/or agent;
<PAGE>
1.2.2. include all rights of indemnification provided to
Indemnitee under the existing provisions of the
certificate of incorporation or bylaws of Indemnitor;
and
1.2.3. include all such additional rights of indemnification
that could possibly be provided to Indemnitee under the
certificate of incorporation or bylaws of Indemnitor or
under Delaware law.
1.3. Nothing in this Section 1 shall be deemed to provide any
indemnity by Indemnitor to Indemnitee on account of any matter:
1.3.1. in respect to remuneration paid to Indemnitee but only
to the extent that it shall be determined by a final
judgment or other final adjudication that such
remuneration was in violation of law; or
1.3.2. for an accounting of profits made from the purchase or
sale by Indemnitee of securities of either Indemnitor
within the meaning of Section 16(b) of the Securities
Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state or local statutory law;
or
1.3.3. brought about or contributed to by the dishonesty of
Indemnitee but only to the extent that a final judgment
or other final adjudication adverse to Indemnitee
establishes that acts of active and deliberate
dishonesty were committed or attempted by Indemnitee
with actual dishonest purpose and intent and were
material to the adjudication; or
1.3.4. that is based on or attributable to Indemnitee having
gained any personal profit or advantage to which
Indemnitee was not entitled but only to the extent that
a final judgment or other final adjudication adverse to
Indemnitee establishes that Indemnitee in fact gained
such personal profit or other advantage to which
Indemnitee was not entitled; or
1.3.5. in respect of which any final decision by a court having
jurisdiction of the matter shall have determined that
indemnification is not lawful.
1.4. Indemnitor promptly shall pay the expenses (including attorneys'
fees) incurred by Indemnitee in defending any civil or criminal
action, suit or proceeding, as such expenses are incurred and
prior to the final disposition of such action, suit or
proceeding, provided that Indemnitor receives a written
undertaking by or on behalf of Indemnitee to repay such amounts
advanced if it is ultimately determined that he is not entitled
to be indemnified by Indemnitor as authorized under this
Agreement. Indemnitor shall perform its obligation under this
Section 1.4 until such time as it may be determined that
Indemnitee is not entitled to indemnification by virtue of one
or more of the exclusions set forth in Section 1.3 hereof.
-2-
<PAGE>
1.5. The reference in Section 1.1 hereof to Delaware law is to
Delaware law as the same exists from time to time, but, in the
case of any amendment to or change in Delaware law, subject to
Section 6, only to the extent that such amendment or change
permits Indemnitor to provide broader or greater rights of
indemnification than is permitted to Indemnitor prior to such
amendment or change.
2. DEFINITIONS
2.1. The term "Loss" shall mean any amount Indemnitee is obligated or
asserted to be obligated to pay in respect of Indemnitee's legal
liability, whether actual or asserted, for a Wrongful Act, and
shall include damages, judgments, settlements and costs,
attorneys' fees, charges and expenses incurred in the defense of
Claims.
2.2. The term "Wrongful Act" shall mean any breach of duty, neglect,
error, misstatement, misleading statement, omission or other act
done or wrongfully attempted by Indemnitee so alleged by any
claimant or any other matter claimed against Indemnitee by
reason of Indemnitee being a director, officer, employee or
agent.
2.3. The term "Subsidiary" shall mean any corporation of which at
least 50% of the equity securities is owned by Indemnitor or by
another Subsidiary.
2.4. The term "Claim" shall mean any suit, action, proceeding,
investigation or claim threatened, whether civil, criminal,
administrative or investigative, made or instituted against or
with respect to Indemnitee or the property of Indemnitee, or
both, either by or in the right of Indemnitor or by or in the
right of a party other than Indemnitor.
3. SCOPE OF INDEMNIFICATION
This Agreement and the indemnification provided herein:
3.1. Shall apply to Indemnitee in Indemnitee's capacity or capacities
as a director, officer, employee or agent, or the like, of (i)
Indemnitor, (ii) any Subsidiary or former Subsidiary, or any
Subsidiary that is hereafter acquired or created by Indemnitor
and (iii) corporations, partnerships, associations and entities
other than Indemnitor and Indemnitor's Subsidiaries where
Indemnitee is directed or requested to serve by Indemnitor;
3.2. Shall be irrevocable and perpetual, and subject to Section 1.3
hereof, shall apply to any Claim arising or Loss incurred after
the date hereof, whether made or incurred prior to or after the
termination of Indemnitee's services to Indemnitor as a
director, officer, employee or agent; and
-3-
<PAGE>
3.3. Subject to Section 1.3 hereof, shall cover Losses arising from
any Claims made against the estate, heirs, legal representatives
or assigns of Indemnitee.
4. AGREEMENT TO BE LIBERALLY CONSTRUED
The purpose of this Agreement is to induce Indemnitee either to serve
Indemnitor in one or more of the capacities described in Section 3.1
hereof, or to induce Indemnitee to continue to serve in one or more such
capacities. Indemnitor acknowledges that, but for this Agreement and the
expectation by Indemnitee that Indemnitor will perform each of its
obligations hereunder, Indemnitee may not consent to serve or to
continue to serve Indemnitor in such capacities. Therefore, it is the
intention of Indemnitor and Indemnitee that this Agreement be liberally
construed so as to achieve its purpose of, subject to Section 1 hereof,
protecting Indemnitee from and against Losses arising from Wrongful
Acts. Indemnitor will not do or fail to do any act that would or might
prevent or hinder the performance by Indemnitor of its obligations under
this Agreement.
5. AGREEMENT NOT EXCLUSIVE
The rights and benefits of Indemnitee, and the obligations of
Indemnitor, under this Agreement shall be in addition to, and shall not
supersede or be in lieu of, the provisions (if any) in the certificate
of incorporation or bylaws of Indemnitor relating to the indemnification
of Indemnitee by Indemnitor; the provisions of policies of insurance of
Indemnitor; the provisions of policies of insurance or indemnification
arrangements provided by persons or entities other than Indemnitor; or
applicable law. Notwithstanding anything to the contrary in this
Agreement, Indemnitor shall defend, indemnify and hold harmless
Indemnitee to the full extent permitted from time to time by applicable
law. Indemnitor, however, shall not be liable to Indemnitee to make any
payment with respect to any claim made against Indemnitee for which
payment is actually made to Indemnitee under a valid and collectible
insurance policy, except with respect to any excess beyond the amount of
the payment under such policy.
6. SEVERABILITY
Nothing in this Agreement is intended to require or shall be construed
as requiring Indemnitor to do or fail to do any act in violation of
applicable law. If any provision of this Agreement is finally determined
by a court of competent jurisdiction to require Indemnitor to do or fail
to do such an act, such provision shall be limited or modified in its
application to the extent necessary to avoid a violation of law, and as
so limited or modified such provision and the balance of this Agreement
shall be enforceable in accordance with their terms.
7. CHOICE OF LAW
This Agreement shall be governed by, and its provisions construed in
accordance with, the laws of the State of Delaware without regard to
provisions concerning conflict of laws.
-4-
<PAGE>
8. CHOICE OF FORUM
Any action instituted by or on behalf of Indemnitor under this Agreement
or to enforce or interpret any provision of this Agreement shall be
brought only in the state courts of the State of Delaware and in no
other court. If any action is instituted in any court by Indemnitee
under this Agreement or to enforce or interpret any of its terms,
Indemnitor hereby consents, and will at such time consent, to the
exclusive jurisdiction and exclusive venue of such court, and shall
cooperate with any request by Indemnitee to transfer or remove such
action to another court.
9. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon Indemnitor and its successors and
assigns, and shall inure to the benefit of Indemnitee or Indemnitee's
estate, heirs, legal representatives and assigns.
10. MODIFICATION, AMENDMENT OR WAIVER
No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both the parties hereto. Any term
or provision of this Agreement may be waived at any time by the party
entitled to the benefit thereof, but only by a written instrument
executed by such party. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other
provision hereof nor shall such waiver constitute a continuing waiver.
11. ATTORNEYS' FEES
If any action is instituted by Indemnitee under this Agreement to
enforce or interpret any of the terms of this Agreement, Indemnitee
shall be entitled to be paid all court costs and expenses, including
attorneys' fees, incurred by Indemnitee with respect to such action,
unless as a part of such action the court determines that each of the
material assertions made by Indemnitee as a part of such action were not
made in good faith or were frivolous. If any action is instituted by or
in the name of the Indemnitor under this Agreement to enforce or
interpret any of the terms of this Agreement, Indemnitee shall be
entitled to be paid all court costs and expenses, including reasonable
attorneys' fees, incurred by Indemnitee in defense of such action
(including with respect to Indemnitee's counterclaims and cross claims
made in such action), unless as a part of such action the court
determines that each of the Indemnitee's material defenses to such
action were made in bad faith or were frivolous.
12. COUNTERPARTS
This Agreement may be signed in any number of counterparts, each of
which will be an original, with the same effect as if the signatures
hereto were upon the same instrument.
-5-
<PAGE>
13. CONTENTS OF AGREEMENT
This Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof and supersedes all prior agreements
or understandings between the parties regarding such matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FOILMARK, INC.
/s/
--------------------------------------------
By: Frank J. Olsen, Jr.
Title: President and Chief Executive Officer
/s/
--------------------------------------------
Robert J. Simon
-6-
<PAGE>
Exhibit 10.18
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made this 23rd day of
April, 1999 between Foilmark, Inc., a Delaware corporation having its
principal office located in Newburyport, Massachusetts ("Indemnitor"), and
Michael S. Mathews ("Indemnitee").
RECITALS
A. Indemnitee is now serving, or is considering serving, Indemnitor as a
director or officer, or both, and the parties hereto acknowledge that
Indemnitee's service to Indemnitor may expose Indemnitee to claims, lawsuits and
risk of liability.
B. The parties further recognize that the compensation or fees payable to
Indemnitee for the performance of such services may not be commensurate with the
potential risk involved and Indemnitor is now, or may in the future be, unable
adequately to provide insurance at a reasonable cost to cover such risk.
C. Accordingly, as an inducement to Indemnitee to serve or to continue to
serve Indemnitor, Indemnitor and Indemnitee desire to enter into this Agreement
pursuant to which Indemnitor undertakes to indemnify Indemnitee against such
risk to the fullest extent permitted to do so by Delaware law.
NOW, THEREFORE, Indemnitor and Indemnitee hereby agree as follows:
1. INDEMNIFICATION
1.1. Subject to Section 1.3 hereof, Indemnitor shall hold harmless
and indemnify Indemnitee of and from all claims and all
threatened, pending or completed actions, suits or proceedings,
whether civil, criminal, administrative or investigative,
involving Indemnitee by reason of the fact that he is or was
a director or officer, or both, of Indemnitor (or by reason of
the fact that he is or was serving at the request of Indemnitor
as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise) including all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement, to the
broadest and maximum extent permitted by Delaware law.
1.2. Without limiting the generality of Section 1.1 hereof, the
indemnification provided for by Section 1.1 shall:
1.2.1. extend to and fully cover any Loss (as hereinafter
defined) arising from any Claim (as hereinafter
defined), whether such Claim is made against
Indemnitee, individually or jointly with others, by
reason of any Wrongful Act (as hereinafter defined)
made in Indemnitee's capacity as a director, officer,
employee and/or agent;
<PAGE>
1.2.2. include all rights of indemnification provided to
Indemnitee under the existing provisions of the
certificate of incorporation or bylaws of Indemnitor;
and
1.2.3. include all such additional rights of indemnification
that could possibly be provided to Indemnitee under the
certificate of incorporation or bylaws of Indemnitor or
under Delaware law.
1.3. Nothing in this Section 1 shall be deemed to provide any
indemnity by Indemnitor to Indemnitee on account of any matter:
1.3.1. in respect to remuneration paid to Indemnitee but only
to the extent that it shall be determined by a final
judgment or other final adjudication that such
remuneration was in violation of law; or
1.3.2. for an accounting of profits made from the purchase or
sale by Indemnitee of securities of either Indemnitor
within the meaning of Section 16(b) of the Securities
Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state or local statutory
law; or
1.3.3. brought about or contributed to by the dishonesty of
Indemnitee but only to the extent that a final judgment
or other final adjudication adverse to Indemnitee
establishes that acts of active and deliberate
dishonesty were committed or attempted by Indemnitee
with actual dishonest purpose and intent and were
material to the adjudication; or
1.3.4. that is based on or attributable to Indemnitee having
gained any personal profit or advantage to which
Indemnitee was not entitled but only to the extent
that a final judgment or other final adjudication
adverse to Indemnitee establishes that Indemnitee in
fact gained such personal profit or other advantage
to which Indemnitee was not entitled; or
1.3.5. in respect of which any final decision by a court
having jurisdiction of the matter shall have
determined that indemnification is not lawful.
1.4. Indemnitor promptly shall pay the expenses (including
attorneys' fees) incurred by Indemnitee in defending any
civil or criminal action, suit or proceeding, as such
expenses are incurred and prior to the final disposition of
such action, suit or proceeding, provided that Indemnitor
receives a written undertaking by or on behalf of Indemnitee
to repay such amounts advanced if it is ultimately determined
that he is not entitled to be indemnified by Indemnitor as
authorized under this Agreement. Indemnitor shall perform its
obligation under this Section 1.4 until such time as it may
be determined that Indemnitee is not entitled to
indemnification by virtue of one or more of the exclusions
set forth in Section 1.3 hereof.
-2-
<PAGE>
1.5. The reference in Section 1.1 hereof to Delaware law is to
Delaware law as the same exists from time to time, but, in
the case of any amendment to or change in Delaware law,
subject to Section 6, only to the extent that such amendment
or change permits Indemnitor to provide broader or greater
rights of indemnification than is permitted to Indemnitor
prior to such amendment or change.
2. DEFINITIONS
2.1. The term "Loss" shall mean any amount Indemnitee is obligated
or asserted to be obligated to pay in respect of Indemnitee's
legal liability, whether actual or asserted, for a Wrongful
Act, and shall include damages, judgments, settlements and
costs, attorneys' fees, charges and expenses incurred in the
defense of Claims.
2.2. The term "Wrongful Act" shall mean any breach of duty,
neglect, error, misstatement, misleading statement, omission
or other act done or wrongfully attempted by Indemnitee so
alleged by any claimant or any other matter claimed against
Indemnitee by reason of Indemnitee being a director, officer,
employee or agent.
2.3. The term "Subsidiary" shall mean any corporation of which at
least 50% of the equity securities is owned by Indemnitor or
by another Subsidiary.
2.4. The term "Claim" shall mean any suit, action, proceeding,
investigation or claim threatened, whether civil, criminal,
administrative or investigative, made or instituted against
or with respect to Indemnitee or the property of Indemnitee,
or both, either by or in the right of Indemnitor or by or in
the right of a party other than Indemnitor.
3. SCOPE OF INDEMNIFICATION
This Agreement and the indemnification provided herein:
3.1. Shall apply to Indemnitee in Indemnitee's capacity or
capacities as a director, officer, employee or agent, or the
like, of (i) Indemnitor, (ii) any Subsidiary or former
Subsidiary, or any Subsidiary that is hereafter acquired or
created by Indemnitor and (iii) corporations, partnerships,
associations and entities other than Indemnitor and
Indemnitor's Subsidiaries where Indemnitee is directed or
requested to serve by Indemnitor;
3.2. Shall be irrevocable and perpetual, and subject to Section
1.3 hereof, shall apply to any Claim arising or Loss incurred
after the date hereof, whether made or incurred prior to or
after the termination of Indemnitee's services to Indemnitor
as a director, officer, employee or agent; and
-3-
<PAGE>
3.3. Subject to Section 1.3 hereof, shall cover Losses arising
from any Claims made against the estate, heirs, legal
representatives or assigns of Indemnitee.
4. AGREEMENT TO BE LIBERALLY CONSTRUED
The purpose of this Agreement is to induce Indemnitee either to serve
Indemnitor in one or more of the capacities described in Section 3.1
hereof, or to induce Indemnitee to continue to serve in one or more such
capacities. Indemnitor acknowledges that, but for this Agreement and the
expectation by Indemnitee that Indemnitor will perform each of its
obligations hereunder, Indemnitee may not consent to serve or to
continue to serve Indemnitor in such capacities. Therefore, it is the
intention of Indemnitor and Indemnitee that this Agreement be liberally
construed so as to achieve its purpose of, subject to Section 1 hereof,
protecting Indemnitee from and against Losses arising from Wrongful
Acts. Indemnitor will not do or fail to do any act that would or might
prevent or hinder the performance by Indemnitor of its obligations
under this Agreement.
5. AGREEMENT NOT EXCLUSIVE
The rights and benefits of Indemnitee, and the obligations of
Indemnitor, under this Agreement shall be in addition to, and shall
not supersede or be in lieu of, the provisions (if any) in the
certificate of incorporation or bylaws of Indemnitor relating to the
indemnification of Indemnitee by Indemnitor; the provisions of
policies of insurance of Indemnitor; the provisions of policies of
insurance or indemnification arrangements provided by persons or
entities other than Indemnitor; or applicable law. Notwithstanding
anything to the contrary in this Agreement, Indemnitor shall defend,
indemnify and hold harmless Indemnitee to the full extent permitted
from time to time by applicable law. Indemnitor, however, shall not
be liable to Indemnitee to make any payment with respect to any claim
made against Indemnitee for which payment is actually made to
Indemnitee under a valid and collectible insurance policy, except
with respect to any excess beyond the amount of the payment under
such policy.
6. SEVERABILITY
Nothing in this Agreement is intended to require or shall be
construed as requiring Indemnitor to do or fail to do any act in
violation of applicable law. If any provision of this Agreement is
finally determined by a court of competent jurisdiction to require
Indemnitor to do or fail to do such an act, such provision shall be
limited or modified in its application to the extent necessary to
avoid a violation of law, and as so limited or modified such
provision and the balance of this Agreement shall be enforceable in
accordance with their terms.
7. CHOICE OF LAW
This Agreement shall be governed by, and its provisions construed in
accordance with, the laws of the State of Delaware without regard to
provisions concerning conflict of laws.
-4-
<PAGE>
8. CHOICE OF FORUM
Any action instituted by or on behalf of Indemnitor under this
Agreement or to enforce or interpret any provision of this Agreement
shall be brought only in the state courts of the State of Delaware
and in no other court. If any action is instituted in any court by
Indemnitee under this Agreement or to enforce or interpret any of its
terms, Indemnitor hereby consents, and will at such time consent, to
the exclusive jurisdiction and exclusive venue of such court, and
shall cooperate with any request by Indemnitee to transfer or remove
such action to another court.
9. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon Indemnitor and its successors and
assigns, and shall inure to the benefit of Indemnitee or Indemnitee's
estate, heirs, legal representatives and assigns.
10. MODIFICATION, AMENDMENT OR WAIVER
No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both the parties hereto. Any
term or provision of this Agreement may be waived at any time by the
party entitled to the benefit thereof, but only by a written
instrument executed by such party. No waiver of any of the provisions
of this Agreement shall be deemed or shall constitute a waiver of any
other provision hereof nor shall such waiver constitute a continuing
waiver.
11. ATTORNEYS' FEES
If any action is instituted by Indemnitee under this Agreement to
enforce or interpret any of the terms of this Agreement, Indemnitee
shall be entitled to be paid all court costs and expenses, including
attorneys' fees, incurred by Indemnitee with respect to such action,
unless as a part of such action the court determines that each of the
material assertions made by Indemnitee as a part of such action were
not made in good faith or were frivolous. If any action is instituted
by or in the name of the Indemnitor under this Agreement to enforce
or interpret any of the terms of this Agreement, Indemnitee shall be
entitled to be paid all court costs and expenses, including
reasonable attorneys' fees, incurred by Indemnitee in defense of such
action (including with respect to Indemnitee's counterclaims and
cross claims made in such action), unless as a part of such action
the court determines that each of the Indemnitee's material defenses
to such action were made in bad faith or were frivolous.
12. COUNTERPARTS
This Agreement may be signed in any number of counterparts, each of
which will be an original, with the same effect as if the signatures
hereto were upon the same instrument.
-5-
<PAGE>
13. CONTENTS OF AGREEMENT
This Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof and supersedes all prior agreements
or understandings between the parties regarding such matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FOILMARK, INC.
/s/
--------------------------------------------
By: Frank J. Olsen, Jr.
Title: President and Chief Executive Officer
/s/
--------------------------------------------
Michael S. Mathews
-6-
<PAGE>
Exhibit 10.19
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of the
23rd day of April, 1999, by and between Foilmark, Inc., a Delaware corporation
with a mailing address of 4 Mullikan Way, Newburyport, Massachusetts (the
"Company"), and Frank J. Olsen, Jr., an individual with a residence address of
13 Country Farm Road, Stratham, NH 03885 ("Executive").
WITNESSETH:
WHEREAS, the Company is in the business of designing, developing,
manufacturing and marketing foils, films, applicating systems and supplies (the
"Business"). Executive has served as President, Chief Executive Officer and a
Director of the Company since 1992; and
WHEREAS, the Company has entered into an Agreement and Plan of Merger
with Holopak Technologies, Inc. ("Holopak") dated as of November 17, 1998 which
contemplates, among other things, the merger of Holopak with and into a
wholly-owned subsidiary of the Company and under which the execution and
delivery of this Agreement is contemplated contemporaneously with the
effectiveness of the merger; and
WHEREAS, the Company desires to employ Executive and Executive desires
to accept such employment on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual promises
hereinbelow set forth, the parties hereby agree as follows:
1. EMPLOYMENT PERIOD. The term of this Agreement and any renewal terms
thereof (the "Employment Period") shall commence on the date hereof and, subject
to termination by Executive or the Company as hereinafter provided, shall
continue until the fifth anniversary of the date hereof. At the end of the
initial Employment Period (and any renewal period provided for herein), this
Agreement shall automatically extend for additional periods of two years (a
"Renewal Period") unless either party hereto gives written notice of non-renewal
delivered not less than six months prior to the end of the Employment Period or
any Renewal Period.
2. EMPLOYMENT; DUTIES. Subject to the terms and conditions set forth
herein, the Company hereby employs Executive to act as President and Chief
Executive Officer of the Company during the Employment Period, and Executive
hereby accepts such employment. The duties assigned and authority granted to
Executive shall be as set forth in the By-laws of the Company and consistent
with the position of President and Chief Executive Officer including but not
limited to the supervision and oversight of the business and operations of
Foilmark and Foilmark subsidiaries and such other duties as determined by its
Board of Directors from time to time. Executive shall report to the Board of
Directors and is subject to the policies and directives of the Board. Executive
agrees to use his best efforts to promote the interests of the Company and shall
devote his full time and attention to the Company's business and affairs.
Executive shall also serve as a member of the Board of Directors of the Company
pursuant to a Voting Agreement dated as of the date hereof, and such service
shall be unrelated to his employment with the Company and this Agreement.
<PAGE>
3. SALARY AND BONUS.
(a) BASE SALARY. The Company agrees to pay Executive $260,000
per year, payable weekly in arrears. Executive's base salary shall not be
decreased during the Employment Period or any Renewal Period. In addition,
promptly after the end of each fiscal year during the Employment Period,
commencing with the fiscal year ending June 30, 2000, and in conjunction with
the completion of audited financial statements of the Company for such fiscal
year then ended, the Board of Directors of the Company or its duly elected
Compensation Committee, subject to Board approval, shall review Executive's
annual base salary in its discretion, based upon the Company's performance and
Executive's particular contributions.
(b) BONUS. In addition to Executive's base salary, Executive may
also receive a cash bonus in an amount not exceeding one hundred percent (100%)
of the Executive's base salary, in the discretion of the Board of Directors
based upon the recommendation of the Compensation Committee of the Board of
Directors, the recommendation of which shall be made to, and acted upon by, the
Board of Directors not later than one (1) month after the publication of the
Company's audited financial statements. Seventy-five percent (75%) of such bonus
shall be based on a formulaic evaluation of actual results versus budget as set
forth on Schedule A hereto.
4. OTHER BENEFITS.
(a) INSURANCE AND OTHER BENEFITS. Executive shall be entitled to
participate in, and shall receive the benefits available under, the Company's
insurance programs (including health, disability and life insurance) and any
ERISA benefit plans, as the same may be adopted and/or amended from time to
time, and shall receive all other fringe benefits that are provided by the
Company to other senior executives. No other officer of the Company will have
any more favorable benefits than made available to the Executive.
(b) VACATION. Executive shall be entitled to an annual vacation
of such duration as may be determined by the Board of Directors, but not less
than that generally established for other executives of Company and in no event
less than four (4) weeks, without interruption of salary.
(c) AUTOMOBILE ALLOWANCE. The Company shall provide Executive
with the automobile allowance provided for the office of President and Chief
Executive Officer under the Company's automobile allowance policy. The
automobile allowance per month shall be $1,000 plus any operating allowance
under said policy ($1,200 per annum) and any excess mileage charges applicable
to any vehicle leased by Executive and used for business purposes.
(d) REIMBURSEMENT OF EXPENSES. The Company shall reimburse
Executive for all reasonable travel, entertainment and other expenses incurred
or paid by Executive in connection with, or related to, the performance of his
duties or responsibilities under this Agreement, provided that Executive submits
to the Company substantiation of such expenses sufficient to satisfy the record
keeping guidelines promulgated from time to time by the Internal Revenue
Service.
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<PAGE>
(e) SERVICE FEES. The Company shall reimburse Executive, in an
aggregate amount not to exceed $1,500 per year, for professional and other fees
incurred by Executive in connection with (i) an annual medical examination of
Executive and (ii) the annual planning for and preparation of Executive's
personal income tax returns. The Company shall also reimburse Executive for
estate planning services performed during the Employment Period, in an aggregate
amount not to exceed $2,500.
(f) 280G CAP. If any amount or benefits due or paid to Executive
("Payments") would constitute an Excess Parachute Payment under Section 280G of
the Internal Revenue Code of 1986, as amended (the "Code"), such Payments shall
be reduced to the extent necessary so that no Payment to be made or benefit
provided to Executive shall be subject to the excise tax imposed under Section
4999 of the Code. The Company shall reduce or eliminate Payments which have not
yet been made before seeking reimbursement of any amounts previously paid to
Executive.
5. TERMINATION BY THE COMPANY WITH CAUSE. The Company may terminate this
Agreement with Cause upon thirty (30) days written notice to Executive. For
purposes of this Section 5, "Cause" shall mean: (a) conviction of a felony; (b)
declaration of unsound mind by a court of competent jurisdiction; (c) gross
neglect or dereliction of duty; (d) a crime involving moral turpitude; (e)
commission of an action which constitutes intentional misconduct or knowing
violation of law if such action in either event results both in an improper
substantial personal benefit and a material injury to the Company; or (f) a
breach by Executive of Sections 7 or 8 of this Agreement or a material breach of
any other provision of this Agreement. In the event of a termination with Cause,
the Executive shall be entitled under this Agreement solely to salary and
benefits accrued through date of termination.
6. TERMINATION AND SEVERANCE.
6.1 NOTICE/EVENTS/DEFINED TERMS.
(a) TERMINATION BY EXECUTIVE. Executive may terminate this
Agreement at any time by providing written notice to the Company of not less
than thirty (30) days. In such event Executive shall be entitled under this
Agreement solely to salary and benefits accrued through the date of termination.
(b) TERMINATION BY THE COMPANY WITHOUT CAUSE. The Company may
terminate this Agreement at any time, without Cause by providing written notice
to the Executive of not less than thirty (30) days. As used in this Agreement,
the term "without Cause" shall mean termination by the Company for any reason
not specified in Section 5 hereof, other than (i) retirement upon reaching the
mandatory retirement age of sixty-five (65), or (ii) the death or disability of
Executive (for purposes of this Agreement, "disability" shall mean Executive's
incapacity due to physical or mental illness which has caused Executive to be
absent from the full-time performance of his duties with the Company for a
period of six (6) consecutive months or eight (8) months in any twelve (12)
month period). In the event of death or disability during the Employment Period,
the Executive shall be entitled under this Agreement solely to salary and
benefits accrued through the date of termination and the proceeds of life and
disability insurance.
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<PAGE>
(c) CHANGE IN CONTROL. A "Change in Control" will be deemed to
have occurred if: (1) a Takeover Transaction occurs; or (2) the Company
effectuates a complete liquidation or a sale or disposition of all or
substantially all of its assets. A "Change in Control" shall not be deemed to
include, however, a merger or sale of stock, assets or business of the Company,
if Executive immediately after such event owns, or in connection with such event
immediately acquires (other than in the Executive's capacity as an equity holder
of the Employer or as a beneficiary of its employee stock ownership plan or
profit sharing plan), any stock of the buyer or any affiliate thereof which, at
the time of Executive's initial investment in such stock, had a purchase price
or fair market value greater than $100,000.
(d) TAKEOVER TRANSACTION. A "Takeover Transaction" shall mean
(i) a merger or consolidation of the Company with, or an acquisition of the
Company or all or substantially all of its assets by, any other corporation,
other than a merger, consolidation or acquisition in which the individuals who
were members of the Board of Directors of the Company immediately prior to such
transaction continue to constitute a majority of the Board of Directors of the
surviving corporation (or, in the case of an acquisition involving a holding
company, constitute a majority of the Board of Directors of the holding company)
for a period of not less than twelve (12) months following the closing of such
transaction, or (ii) when any person or entity or group of persons or entities
(other than any trustee or other fiduciary holding securities under an employee
benefit plan of the Company) either related or acting in concert becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934, as amended) of securities of the Company representing more than fifty
percent (50%) of the total number of votes that may be cast for the election of
directors of the Company.
(e) TERMINATING EVENT. A "Terminating Event" shall mean: (i)
termination by the Company of the employment of Executive without Cause
occurring within twelve (12) months of a Change of Control; or (ii) resignation
of Executive from the employ of the Company, while Executive is not receiving
payments or benefits from the Company by reason of Executive's disability,
subsequent to any of the following events occurring within twelve (12) months of
a Change of Control: (A) a significant reduction in the nature or scope of
Executive's responsibilities, authorities, powers, functions or duties from the
responsibilities, authorities, powers, functions or duties exercised by
Executive immediately prior to the Change in Control; (B) a decrease in the
salary payable by the Company to Executive from the salary payable to Executive
immediately prior to the Change in Control; or (C) the relocation of the
Company's executive offices (or, if Executive is primarily located at the
Company's manufacturing facilities, such facilities) by more than 50 miles from
their current location in Newburyport, Massachusetts (unless such new location
is closer than to the Executive's then residence); provided, however, that a
Terminating Event shall not be deemed to have occurred solely as a result of
Executive being an employee of any direct or indirect successor to the business
or assets of the Company, rather than continuing as an employee of the Company,
following a Change in Control.
6.2 SEVERANCE.
(a) WITHOUT CAUSE. If the Company terminates this Agreement
without Cause, other than as a result of a Terminating Event, then commencing on
the date of termination of this Agreement, the Company shall provide Executive
with a severance package which shall consist of
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<PAGE>
the following: (i) for a period equal to the greater (A) of the remainder of the
initial Employment Period (or any then existing renewal period thereof) or (B)
three (3) years after the date of termination (x) payment on the first business
day of each month of an amount equal to one-twelfth of Executive's then current
annual base salary under Section 3(a) hereof and (y) continuation of all
benefits under Section 4(a) and (ii) for a period equal to the greater of (A)
the remainder of the initial Employment Period (or any then existing renewal
period thereof) or (B) three (3) years after the date of termination, payment on
the first business day of each month of an amount equal to one-twelfth of
Executive's annual target bonus amount for the year of termination, pro rated
for the portion of the fiscal year occurring prior to termination.
(b) WITH A TERMINATING EVENT. If the Company terminates this
Agreement as a result of a Terminating Event, then commencing on the date of
such termination and for a period equal to the greater of the remainder of the
initial Employment Period (or any then existing renewal period thereof) or three
(3) years after the date of termination, the Company shall provide Executive
with a severance package which shall consist of the following: (i) payment on
the first business day of each month an amount equal to one-twelfth of
Executive's then current annual base salary under Section 3(a) hereof; (ii)
payment on the first business day of each month of an amount equal to
one-twelfth of Executive's annual target bonus amount; and (iii) continuation of
all benefits under Section 4(a). In addition, if the Company terminates this
Agreement as a result of a Terminating Event, then the Company shall cause the
immediate vesting of all options and other rights granted to Executive under the
Company's stock plans.
(c) GENERAL RELEASE. As a condition precedent to receiving any
severance payment, Executive shall execute a release of any and all claims which
Executive or his heirs, executors, agents or assigns might have against the
Company, its subsidiaries, affiliates, successors, assigns and its past, present
and future employees, officers, directors, agents and attorneys; provided,
however, that such release would not extinguish the obligations of the Company
under indemnification or similar contractual arrangements between Company and
Executive.
(d) WITHHOLDING. Subject to Section 4(f), all payments made by
the Company under Section 6.2(a) or 6.2(b) this Agreement shall be net of any
tax or other amounts required to be withheld by the Employer under applicable
law.
(e) DEATH OR DISABILITY. The death of the Executive during the
time the severance payments are being paid under this Section shall not
terminate the obligation of the Company to make such payments. The Company shall
continue to pay any amounts otherwise due to Executive under this Agreement for
the remainder of the period determined in Section 6.2 (a) or (b) to Executive's
estate.
(f) EFFECT OF NON-RENEWAL. In the event that the Company issues
a notice of non-renewal under Section 1 hereof prior to the expiration of the
initial Employment Period, the Executive shall be entitled to receive from the
Company an amount equal to his initial Base Salary ($260,000) for a period of
two years following said initial Employment Period payable in equal monthly
installments one-twelfth of said Base Salary on the first day of each month
following said initial Employment Period.
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<PAGE>
7. NON-COMPETITION. (a) During the term of this Agreement and (i) in the
case of termination other than as a result of a Terminating Event and provided
that Executive continues to receive the severance payments provided for in
Section 6.2(a) to which he is entitled , for the greater of the remainder of the
Employment Period after the date of termination or three (3) years after the
date of termination or (ii) in the case of termination as a result of a
Terminating Event and provided that Executive continues to receive, or after
Executive has received, the severance payments provided for in Section 6.2(b) to
which he is entitled, for the greater of the remainder of the Employment Period
after the date of termination or three (3) years after the date of termination
of this Agreement, Executive will not directly or indirectly whether as a
partner, consultant, agent, employee, co-venturer, greater than two percent
owner or otherwise or through any other person (as hereafter defined): (A) be
engaged in any business or activity which is competitive with the business of
the Company in any part of the world in which the Company is or proposes to be
(as evidenced by a directive of the Board of Directors to that effect) at the
time of Executive's termination engaged in selling its products directly or
indirectly; or (B) attempt to recruit any employee of the Company, assist in
their hiring by any other person, or encourage any employee to terminate his or
her employment with the Company; or (C) encourage any customer of the Company to
conduct with any other person any business or activity which such customer
conducts or could conduct with the Company.
(b) For purpose of this Section 7, the term "Company" shall include any
person controlling, under common control with or controlled by, the Company and
The term "Person" shall mean an individual or corporation, association or
partnership in estate or trust or any other entity or organization.
(c) Executive recognizes and agrees that because a violation by him of
this Section 7 will cause irreparable harm to the Company that would be
difficult to quantify and for which money damages would be inadequate, the
Company shall have the right to injunctive relief to prevent or restrain any
such violation, without the necessity of posting a bond.
(d) Executive expressly agrees that the character, duration and scope of
this covenant not to compete are reasonable in light of the circumstances as
they exist at the date upon which this Agreement has been executed. However,
should a determination nonetheless be made by a court of competent jurisdiction
at a later date that the character, duration or geographical scope of this
covenant not to compete is unreasonable in light of the circumstances as they
then exist, then it is the intention of both Executive and the Company that this
covenant not to compete shall be construed by the court in such a manner as to
impose only those restrictions on the conduct of Executive which are reasonable
in light of the circumstances as they then exist and necessary to provide the
Company the intended benefit of this covenant to compete.
8. CONFIDENTIALITY COVENANTS. (a) Executive understands that Company may
impart to him confidential business information including, without limitation,
designs, financial information, personnel information, strategic plans, product
development information and the like (collectively "Confidential Information").
Executive hereby acknowledges Company's exclusive ownership of such Confidential
Information.
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<PAGE>
(b) Executive agrees as follows: (i) only to use the Confidential
Information to provide services to the Company; (ii) only to communicate the
Confidential Information to fellow employees, agents and representatives of the
Company on a need-to-know basis; and (iii) not to otherwise disclose or use any
Confidential Information. Upon demand by the Company or upon termination of
Executive's employment, Executive will deliver to the Company all manuals,
photographs, recordings, and any other instrument or device by which, through
which, or on which Confidential Information has been recorded and/or preserved,
which are in my Executive's possession, custody or control. Executive
acknowledges that for purposes of this Section 8 the term "Company" means any
person or entity now or hereafter during the term of this Agreement which
controls, is under common control with, or is controlled by, the Company.
(c) Executive recognizes and agrees that because a violation by him of
this Section 8 will cause irreparable harm to the Company that would be
difficult to quantify and for which money damages would be inadequate, the
Company shall have the right to injunctive relief to prevent or restrain any
such violation, without the necessity of posting a bond.
9. GOVERNING LAW. This Agreement shall be governed by and interpreted
and governed in accordance with the laws of the Commonwealth of Massachusetts.
To the extent permitted by law each of the Executive and the Company hereby
waive any right to trial by jury in any proceeding which may be brought in
respect of this Agreement.
10. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and thereof
and supersedes any and all previous agreements, written and oral, regarding the
subject matter hereof between the parties hereto. This Agreement shall not be
changed, altered, modified or amended, except by a written agreement signed by
both parties hereto.
11. NOTICES. All notices, requests, demands and other communications
required or permitted to be given or made under this Agreement shall be in
writing and shall be deemed to have been given if delivered by hand, sent by
generally recognized overnight courier service, telex or telecopy, or certified
mail, return receipt requested.
(a) to the Company at:
Foilmark, Inc.
4 Mullikan Way
Newburyport, Massachusetts 01950
Attn.: Chairman of the Board
(b) to Executive at:
13 Country Farm Road
Stratham, NH 03885
Any such notice or other communication will be considered to have been
given (i) on the date of delivery in person, (ii) on the third day after mailing
by certified mail, provided that receipt of
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delivery is confirmed in writing, (iii) on the first business day following
delivery to a commercial overnight courier or (iv) on the date of facsimile
transmission (telecopy) provided that the giver of the notice obtains telephone
confirmation of receipt.
Either party may, by notice given to the other party in accordance with
this section, designate another address or person for receipt of notices
hereunder.
12. SEVERABILITY. If any term or provision of this Agreement, or the
application thereof to any person or under any circumstance, shall to any extent
be invalid or unenforceable, the remainder of this Agreement, or the application
of such terms to the persons or under circumstances other than those as to which
it is invalid or unenforceable, shall be considered severable and shall not be
affected thereby, and each term of this Agreement shall be valid and enforceable
to the fullest extent permitted by law. The invalid or unenforceable provisions
shall, to the extent permitted by law, be deemed amended and given such
interpretation as to achieve the economic intent of this Agreement.
13. WAIVER. The failure of any party to insist in any one instance or
more upon strict performance of any of the terms and conditions hereof, or to
exercise any right or privilege herein conferred, shall not be construed as a
waiver of such terms, conditions, rights or privileges, but same shall continue
to remain in full force and effect. Any waiver by any party of any violation of,
breach of or default under any provision of this Agreement by the other party
shall not be construed as, or constitute, a continuing waiver of such provision,
or waiver of any other violation of, breach of or default under any other
provision of this Agreement.
14. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Company and any successors and assigns of the Company.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FOILMARK, INC.
By: /s/
-------------------------------
Title:
EXECUTIVE:
/s/
-------------------------------
Frank J. Olsen, Jr.
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<PAGE>
SCHEDULE A
FORMULA: BONUS/BUDGET COMPARISON
For each fiscal year during the Employment Period, the Board of
Directors, in its sole discretion, shall establish a budget for pretax income in
accordance with generally accepted accounting principles consistently applied
("GAAP") and the formulaic portion of Executive's bonus will vary as a
percentage of Base Salary in relation to the percentage achievement of that
budget as follows:
<TABLE>
<CAPTION>
PERCENTAGE OF PORTION PERCENTAGE OF BASE SALARY EARNED AS
BUDGET ATTAINED FORMULAIC PORTION
<S> <C>
Less than 80% 0%
80% 15%
90% 25%
100% 35%
110% 45%
120% 55%
130% 65%
140% and above 75%
</TABLE>
For a percentage of budget achievement between the benchmarks, the percentage of
the Base Salary shall be linearly interpolated, provided that no bonus shall be
paid for achievement less than 80% of budget and the maximum formulaic portion
of bonus shall be 75% of Base Salary in any event. In the case of a partial
fiscal year, the Company shall adjust the bonus to correspond to the Company's
budget and the Base Salary for the portion of the applicable fiscal year that
shall be included in the Employment Period. Notwithstanding the foregoing, the
initial bonus period (the "Initial Bonus Period") shall be the period starting
with the Bonus Starting Date and ending on December 31, 1999, and the Company
shall use its budget for that period (a copy of which the Company has provided
to the Executive) to determine the eligibility for a bonus, and then apply the
applicable bonus percentage to that portion of the annual Base Salary
thereafter. Subsequent bonus periods shall begin on each January 1, thereafter
and end with the last day of the Company's fiscal year, and the Company shall
prepare a budget for that period and determine the Executive's eligibility for a
bonus in the manner described for the Initial Bonus Period. The bonus program
shall continue with each Renewal Period as defined in Section 1 of the
Agreement, with the bonus periods corresponding to the Company's fiscal year.
Bonuses shall continue to be calculated as described in this Schedule.
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<PAGE>
Exhibit 10.20
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made as of the 23rd day
of April, 1999, by and between Foilmark, Inc., a Delaware corporation (the
"Company"), Foilmark Acquisition Corporation, a Delaware corporation and a
wholly-owned subsidiary of the Company ("Foilmark Sub"), and Arthur Karmel (the
"Employee").
RECITALS
WHEREAS, the Company and Employee have entered into that certain
Employment Agreement between HoloPak Technologies, Inc., a Delaware corporation
("HoloPak"), and the Employee, dated as of June 29, 1998, as amended (the
"Original Employment Agreement");
WHEREAS, HoloPak, the Company and Foilmark Sub are parties to the
Agreement and Plan of Merger, dated as of November 17, 1998 (the "Merger
Agreement"), whereby HoloPak will be merged with and into Foilmark Sub (the
"Merger"), with Foilmark Sub as the surviving corporation in the Merger (the
"Surviving Corporation");
WHEREAS, Employee and HoloPak mutually agree that the Original
Employment Agreement shall terminate immediately prior to the effective time of
the Merger, and concurrently that the Company shall employ Employee as of the
effective time of the Merger; and
WHEREAS, as a condition precedent to the Merger Agreement, the Company
has agreed to employ Employee under the terms and conditions set forth below.
WITNESSETH:
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto, each intending to be legally bound hereby,
agree as follows:
1. EMPLOYMENT.
The Company hereby employs the Employee as Chief Accounting Officer,
New Jersey Operations, of the Surviving Corporation, or another comparable
senior executive position of the Company with such title as the Board of
Directors of the Company shall determine, and Employee hereby accepts such
employment. During the term of employment under this Agreement (the "Employment
Term"), the Employee shall perform such duties as are requested from time to
time by the Board of Directors of the Company or the Chief Executive Officer of
the Company, which duties shall be consistent with the duties of a chief
financial officer of a corporation or a subsidiary of a corporation; PROVIDED,
that the Employee will not be required to perform such duties outside a radius
of thirty (30) miles of East Brunswick, New Jersey; PROVIDED, FURTHER, that
Employee may infrequently be required to travel to Newburyport, Massachusetts as
requested by the Board of Directors or the Chief Executive Officer of the
Company.
2. PERFORMANCE.
<PAGE>
During the Employment Term, the Employee shall devote his entire
business efforts to the performance of his duties hereunder.
3. TERM.
Unless otherwise terminated in accordance with Sections 5 or 6 hereof,
the Employment Term shall be for an initial term of one and one-half years
commencing on the date hereof and continuing thereafter for successive one-year
renewal terms, unless the Company or Employee shall deliver, no later than
ninety (90) days prior to the expiration of the Employment Term or any such
additional one year period, written notice to the other terminating this
Agreement effective as of the end of the Employment Term or the then current
additional one year period.
4. COMPENSATION FOR EMPLOYMENT.
(a) The basic annual compensation of the Employee for his employment
services to the Company and to all of its affiliated companies during the
Employment Term shall be $100,000.00 (the "Salary"), which the Company shall pay
to the Employee in accordance with its normal payroll policy. These are the
initial terms of annual compensation. The amount of Salary may change and
compensation will be reflected.
(b) During the Employment Term, the Company shall also provide the
Employee with those fringe benefits that are specified on Exhibit "A" hereto
(the "Fringe Benefits"). The Company shall also reimburse the Employee for any
reasonable business expenses incurred on the Company's behalf in connection with
the performance of the services during the Employment Term.
(c) (i) HoloPak has granted to the Employee under its Non-Qualified
Stock Option Plan (the "HoloPak Plan"), options to purchase shares of Common
Stock ("Options") for 5,000 shares of HoloPak Common Stock at an exercise price
of $2.5875 per share. The Options will vest and become exercisable in two equal
installments on the first two (2) anniversaries of the Employment Agreement.
Pursuant to and in accordance with Section 3.4 of the Merger Agreement, at the
effective time of the Merger, the Options shall be converted into and become
rights with respect to shares of common stock of the Company, and the Company
shall assume each Option.
(ii) As of the effective date of the Merger, the Company shall grant to
the Employee under its 1995 Amended and Restated Employee Stock Option Plan (the
"Plan") options ("Options") to purchase 6,000 shares of Company common stock,
$.01 par value, at an exercise price and pursuant to the vesting schedule set
forth in the Plan.
(iii) The Employee will be an eligible participant in the Plan
administered by the Company and, therefore, will be eligible for future grants
of stock options in addition to the Options referred to above. The administrator
of the Plan, which is currently the Compensation Committee of the Board of
Directors of the Company, will determine from time to time whether any such
additional Options shall be granted to the Employee and the exercise price
vesting schedule and other terms of any such additional options that may be
granted.
(d) The Company's commitment to grant additional Options is subject to
the Company's obtaining approval of such items by the Board of Directors of the
Company.
<PAGE>
5. TERMINATION WITHOUT COMPENSATION.
(a) PARTIAL OR TOTAL DISABILITY. If the Employee is unable to perform
his duties and responsibilities hereunder to the full extent required hereunder
by reason of non-employment related illness, injury or incapacity for six months
(during which time he shall continue to be compensated hereunder), the Company
may terminate the Employment Term, and the Company shall not have any further
liability or obligation to the Employee hereunder except for any unpaid Salary,
unpaid bonus, adjusted pro rata based upon the portion of such bonus period in
which the Employee was actually employed by the company hereunder and any Fringe
Benefits accrued to the date of termination, provided, however, that Employee
reserves any rights that he may have against the Company with respect to any
claims for damages and/or benefits under any Workers' Compensation Act, or
otherwise, arising out of injuries, illness or incapacity incurred as a result
of his employment with the Company (an "Employment Injury"). In the event of any
dispute under this Section 5(a), the Employee shall submit to a physical
examination by a licensed physician mutually satisfactory to the Company and the
Employee, the cost of such examination to be paid by the Company, and the
determination of such physician shall be determinative. If, after termination
due to disability as provided herein, the Employee obtains, at his sole expense,
medical certification from a licensed physician reasonably satisfactory to the
Company that such disability has ended, the Company shall offer to employ the
Employee pursuant to the terms of this Agreement for the remainder of the
initial term or any renewal term in effect at the time of termination, except
that the Company shall not be required to reemploy the Employee at the same
officer position if the Company shall have elected another person to such
position during the period of the Employee's disability and such other person
continues in such position at the time of the Employee's return to employment.
(b) DEATH. If the Employees dies, this Employment Agreement (except for
the provisions of Sections 6, 10 and 11 hereof) shall terminate, and thereafter
the Company shall not have any further liability or obligation to the Employee,
his executors, administrator, heirs, assigns or any other person claiming under
or through him except for unpaid Salary, any unpaid bonus earned by Employee for
the bonus period in which Employee's death occurs adjusted pro rata based upon
the portion of such bonus period in which the Employee was actually employed by
the Company hereunder and any Fringe Benefits accrued to the date of his death.
(c) CAUSE. The Company may terminate the Employment Term for "cause" by
giving the Employee 30 days' written notice of the termination date, and
thereafter the Company shall not have any further liability or obligation to the
Employee. For purposes of the Agreement, "cause" shall mean the failure of the
Employee to observe or perform (other than by reason of illness, injury or
incapacity) any of the responsibilities or provisions of this Agreement after
the provision by the Company of 30-days written and an opportunity to cure such
failure to observe or perform such material terms or provisions. "Cause" also
shall include dishonesty, willful misconduct, material neglect of the Company's
business, conviction of a felony or other crime involving moral turpitude,
misappropriation of funds or habitual insobriety.
6. TERMINATION WITH COMPENSATION.
(a) NON-RENEWAL OF TERM. The Employment Term may be terminated by
either party hereto as of the end of the initial term or any renewal term then
in effect by giving written notice of the intention to terminate the Employment
Term at least 90 days prior to the proposed termination date. If the Company
terminates the Employment Term under such circumstances, the Company shall
provide the Employee with the Termination Compensation specified in Section 6
(c).
<PAGE>
(b) WITHOUT CAUSE. The Company shall have the right to terminate the
Employment Term without cause at any time by giving the Employee 60 days'
written notice of the termination date. Under such circumstances, the Company
shall provide the Employee with the Termination Compensation specified in
Section 6(c).
(c) TERMINATION COMPENSATION. The "Termination Compensation" shall
consist of payment of the Employee's Salary under Section 4(a), at the level in
effect at the date of termination, for the longer of (A) any remaining part of
the initial term of the Employment Term or (B) 6 months. The Employee shall not
be entitled to any Termination Compensation under this Section 6 unless the
Employee executes and delivers to the Company after a notice of termination a
release in a form satisfactory to the Company in its sole discretion by which
the Employee releases the Company and its affiliates, and the Company so
releases the Employee, from any obligations and liabilities of any type
whatsoever, except for the Company's obligation to provide the Salary specified
in this Section 6, any unpaid bonus earned by Employee for the bonus period in
which termination of employment occurs, adjusted pro rata based upon the portion
of such bonus period in which the Employee was actually employed by the Company
hereunder and any liability for any Employment Injury. The parties hereto
acknowledge that the Salary to be provided under this Section 6 is to be
provided in consideration for a above-specified release. Compensation under the
terms and conditions of Section 6(c) and any obligations that the Company may
have for any Employment Injury.
(d) EXCLUSIVITY. Upon any termination by the Company under Section 6(a)
or Section 6(b), the Company shall not have any obligation to the Employee, his
executors, administrators, heirs, assigns or any other claiming under or through
him other than to provide the Termination Compensation under the terms and
conditions of Section 6(c) and any obligations that the Company may have for any
Employment Injury.
7. AGREEMENT NOT TO COMPETE.
(a) During the Non-Competition Period (defined below), the Employee
shall not, within the Restricted Area ( defined below) directly or indirectly,
in any capacity, without the express written consent of the Chairman of the
Board of Directors of the Company, render his services, engage in any business
activity or have a financial interest in, any business (other than as the holder
of not more than one percent of the total outstanding stock of any publicly-held
company) that is competitive with any of those business activities in which the
Company, the Surviving Corporation, Foilmark Manufacturing Corporation, Transfer
Print Foils, Inc., Alubec Industries, Inc, or any subsidiary of any of the
foregoing or any person, partnership, association, corporation or other entity
(each a "Person") controlled by any of them (any such party is referred to
herein as a "Foilmark Party") shall have been engaged during his employment by
the Company, nor shall the Employee assist any person or entity that is engaged
in such business, including by making Foilmark Information (defined below)
available to any such person or entity. In addition, the Employee shall not
directly or indirectly solicit or otherwise encourage any of employees of any
Foilmark Party to terminate their employment with the applicable Foilmark Party.
As used herein, the "Restricted Area" means (i) the United States of America and
(ii) Canada. If a court determines that the foregoing restrictions are too broad
or otherwise unreasonable under applicable law, including with respect to time
space, the court is hereby requested and authorized by the parties hereto to
review the foregoing restriction to include the maximum restrictions allowable
under applicable law. The "Non-Competition Period" means the period during which
the Employee is employed hereunder. In addition, (A) in the case of termination
of employment pursuant to Section 6 hereof, the "Non-Competition Period" shall
be extended from the date of such termination of employment for a period equal
to the greater of (x) the period in which any payment of compensation (except
for an employment related injury) is made to Employee pursuant to this Agreement
and (y) one year, or (B) in
<PAGE>
the case of termination of employment pursuant to Section 5 hereof, the
"Non-Competition Period" shall be extended from the date of such termination of
employment for a period of one year.
(b) The terms of this Section 7 shall apply to the Employee and any
Person controlled by the Employee, including any relative of the Employee, to
the same extent as if they were parties hereto, and the Employee shall take
whatever actions may be necessary to cause any such Persons or entities to
adhere to the terms of this Section 7.
8. INVENTIONS DESIGNS AND PRODUCT DEVELOPMENTS.
All inventions, innovations, designs ideas and product developments
(collectively, the "Developments"), developed or conceived by the Employee,
solely or jointly with others, whether or not patentable or copyrightable, at
any time during the Employment Term and that relate to the actual or planned
business activities of any Foilmark Party and all of the Employee's rights,
title and interest therein, shall be the exclusive property of the applicable
HoloPak Party. The Employee hereby assigns, transfers and conveys to any
applicable Foilmark Party all of his rights, title and interest in and to any
and all such Developments. As requested from time to time by the Board, the
Employee shall disclose fully, as soon as practicable and in writing, all
Developments to the Chairman of the Board of Directors of the Company. At any
time and from time to time, upon the request of the Board, the Employee shall
execute and deliver to the Company any and all instruments, documents and
papers, give evidence and do any and all other acts that, in the opinion of
counsel for the Company, are or may be necessary or desirable to document such
transfer or to enable any applicable Foilmark Party to file and prosecute
applications for and to acquire, maintain and enforce any and all patents,
trademark registrations or copyrights under United States or foreign law with
respect to any such Developments or to obtain any extension, validation,
reissue, continuance or renewal of any such patent, trademark or copyright. The
applicable Foilmark Party will be responsible for the preparation of any such
instruments, documents and papers and for the prosecution of any such
proceedings and will reimburse the Employee for all reasonable expenses incurred
by him in compliance with the provisions of this Section.
9. CONFIDENTIAL INFORMATION.
(a) The Employee has had and will have possession of or access to
confidential information relating to the business of one or more Foilmark
Parties, including writings, equipment, processes, drawings, reports, manuals,
invention records, financial information, business plans, customer lists, the
identity of or other facts relating to prospective customers, inventory lists,
arrangements with suppliers and customers, computer programs, or other material
embodying trade secrets, customer or product information or technical or
business information of certain Foilmark Parties. All such information, other
than any information that is in the public domain through no act or omission of
the Employee or which he is authorized to disclose, or that the Employee had in
his possession prior to this employment with the Company is referred to
collectively as the "Foilmark Information". During and after the Employment
Term, the Employee shall not knowingly, willfully or intentionally (i) use or
exploit in any manner the Foilmark Information for himself or any Person other
than a Foilmark Party, (ii) remove any Foilmark Information, or any reproduction
thereof, from the possession or control of any Foilmark Party or (iii) treat
Foilmark Information otherwise than in a confidential manner.
(b) All Foilmark Information developed, created or maintained by the
Employee, alone or with others while employed by the Company, and all Foilmark
Information maintained by the Employee thereafter, shall remain at all time the
exclusive property of the applicable Foilmark Party. The Employee shall return
to the Company all Foilmark Information, and reproductions thereof, whether
prepared by him or others, that
<PAGE>
are in his possession immediately upon request and in any event upon the
completion of his employment by the Company.
10. REMEDIES.
The Employee expressly acknowledges that the remedy at law for any
breach of Sections 6, 7, 8 or 9 will be inadequate and that upon any such breach
or threatened breach, the Company (or the applicable Foilmark Party) shall be
entitled as a matter of right to injunctive relief in any court of competent
jurisdiction, in equity or otherwise, and to enforce the specific performance of
the Employee's obligations under these provisions without the necessity of
proving the actual damage or the inadequacy of a legal remedy. Subject to the
remainder of this Section 10, the rights conferred upon the Company (and any
Foilmark Party) by the preceding sentence shall not be exclusive of, but shall
be in addition to, any other rights or remedies which the Company may have at
law, in equity or otherwise.
11. SURVIVAL.
Notwithstanding the termination of the Employment Term pursuant to
Section 5 or 6, the obligations of the Employee under Sections 6, 7, 8 and 9
hereof shall survive and remain in full force and effect and the Company shall
be entitled to relief against the Employee pursuant to the provisions of Section
10 hereof.
12. GENERAL.
(a) GOVERNING LAW. The terms of this Agreement shall be governed by the
laws of the State of New Jersey.
(b) INTERPRETATION. Unless the context of this Agreement clearly
requires otherwise, (i) references to the plural include the singular, and to
the singular include the plural, (ii) "or" has the inclusive meaning frequently
identified with the phrase "and/or" and (iii) "including" has the inclusive
meaning frequently identified with the phrase "but not limited to". The section
and other headings contained in this Agreement are for reference purposes only
and shall not control or affect the construction of this Agreement of the
interpretation thereof in any respect. Section, subsection, schedule and exhibit
references are to this Agreement unless otherwise specified. Each accounting
term used herein that is not specifically defined herein shall have the meaning
given to it under GAAP.
(c) BINDING EFFECT. All of the terms and provisions of this Agreement
shall be binding upon and inure to the benefit and be enforceable by the
respective heirs, representatives, successors (including any successor as a
result of a merger or similar reorganization) and assigns of the parties hereto,
except that the duties and responsibilities of the Employee hereunder are of a
personal nature and shall not be assignable in whole or in part by the Employee.
Any Foilmark Party other than the Company is a third party beneficiary of this
Agreement and may enforce the provisions of this Agreement that pertain to such
Foilmark Party, including Sections 6, 7, 8 and 9, to the same extent as if a
party hereto.
(d) NOTICES. All notices required to be given under this Agreement
shall be in writing and shall be deemed to have been given when personally
delivered or when mailed be registered or certified mail, postage prepaid,
return receipt requested, or when sent by Federal Express or other overnight
delivery service, addressed as follows (or to such other address that a party
may provide from time or time by notice to the other parties):
<PAGE>
TO EMPLOYEE:
Arthur Karmel
4 Gary Drive
Englishtown, NJ 07726
TO THE COMPANY:
Foilmark, Inc.
4 Malcolm Hoyt Drive
Newburyport, MA 01950
Attention: President
(e) ENTIRE AGREEMENT. Termination of Prior Agreement Modification. This
Agreement (including Exhibit A hereto) and the additional agreements specified
in Sections 4(c) and 4(d) (to the extent that the parties enter into any of such
agreements) constitute the entire agreement of the parties hereto with respect
to the subject matter hereof. This Agreement may not be modified or amended in
any way except in writing by the parties hereto.
(f) WAIVER. No waiver of any breach of this Agreement shall be
construed to be a waiver as to succeeding breaches.
(g) SEVERABILITY. If any provision of this Agreement or application
thereof to anyone under any circumstances is adjudicated to be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect any other provisions or applications of this Agreement which can be given
effect without the invalid or unenforceable provision or application and shall
not invalidate or render unenforceable such provision in any other jurisdiction.
(h) COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures hereto upon the same instrument.
(i) TERMINATION OF ORIGINAL EMPLOYMENT AGREEMENT. Employee and Foilmark
Sub agree that the Original Employment Agreement has been terminated effective
immediately prior to the effective time of the Merger. In consideration for
entering into this Agreement, the sufficiency of which is hereby acknowledged,
Employee hereby concurrently waives all rights that he may have under the
Original Employment Agreement, including, but not limited to, any right that he
may have to Termination Compensation (as such term is defined in the Original
Employment Agreement) under the Original Employment Agreement arising out of or
as a result of such termination of the Original Employment Agreement.
<PAGE>
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have hereunto duly executed this Agreement the day and year first written above.
FOILMARK, INC.
By: /s/
-------------------------------
Name: Frank J. Olsen, Jr.
Title: President & Chief Executive Officer
FOILMARK ACQUISITION CORPORATION
By: /s/
-------------------------------
Name: Frank J. Olsen, Jr.
Title: President
/s/
------------------------------
Arthur Karmel
<PAGE>
EXHIBIT A
FRINGE BENEFITS
1. TYPICAL OFFICER BENEFITS: Inclusion in the benefit plans generally
given to executive officers of the Company from time to time, including
any benefits provided with respect to life and disability insurance,
and participation in any of the Company's profit sharing and pension
plans.
2. MEDICAL INSURANCE: The Company shall waive the three-month waiting
period for participation in Medical, Prescription and Dental benefits.
3. VACATION: You will be eligible for 3 vacation weeks during the balance
of our fiscal year ending December 31, 1999. Thereafter, you will be
eligible for vacation time in accordance with Company policy; provided,
that you shall be eligible for at least 3 vacation weeks per year.
4. COMPANY VEHICLE: An automobile allowance, in accordance with Company
policy, will be provided, in an amount not less than $500 per month.
Insurance, maintenance and Company business mileage will also be
covered by the Company.
<PAGE>
Exhibit 10.21
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made as of the 23rd day
of April, 1999, by and between Foilmark, Inc., a Delaware corporation (the
"Company"), Foilmark Acquisition Corporation, a Delaware corporation and a
wholly-owned subsidiary of the Company ("Foilmark Sub"), and Joseph T. Webb
(hereinafter, the "Employee").
RECITALS
WHEREAS, the Company and Employee have entered into that certain
Employment Agreement between HoloPak Technologies, Inc., a Delaware corporation
("HoloPak"), and the Employee, dated as of May 18, 1998 (the "Original
Employment Agreement");
WHEREAS, HoloPak, the Company and Foilmark Sub are parties to the
Agreement and Plan of Merger, dated as of November 17, 1998 (the "Merger
Agreement"), whereby HoloPak will be merged with and into Foilmark Sub (the
"Merger"), with Foilmark Sub as the surviving corporation in the Merger (the
"Surviving Corporation");
WHEREAS, Employee and HoloPak mutually agree that the Original
Employment Agreement shall terminate immediately prior to the effective time of
the Merger, and concurrently that the Company shall employ Employee as of the
effective time of the Merger; and
WHEREAS, as a condition precedent to the Merger Agreement, the Company
has agreed to employ Employee under the terms and conditions set forth below.
WITNESSETH
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto, each intending to be legally bound hereby,
agree as follows:
1. EMPLOYMENT
The Company hereby employs the Employee in a senior executive position
of the Company as Vice President of Operations, East Brunswick, New Jersey, and
Employee hereby accepts such employment. During the term of employment under
this Agreement (the "Employment Term"), the Employee shall perform such duties
as are requested from time to time by the Board of Directors of the Company or
the Chief Executive Officer of the Company.
2. PERFORMANCE
During the Employment Term, the Employee shall devote his entire
business efforts to the performance of his duties thereunder.
3. TERM
<PAGE>
Unless otherwise terminated in accordance with Section 5 or 6 hereof,
the Employment Term of this Agreement shall be for an initial one year
commencing on the date hereof, and continuing thereafter for successive one-year
renewal terms.
4. COMPENSATION FOR EMPLOYMENT
(a) The basic annual compensation of the Employee for his employment
services to the Company and to all of its affiliated companies during the
Employment Term shall be $145,000 (the "Salary"), which the Company shall pay to
the Employee in accordance with the normal payroll policy and in compliance with
federal and state law. The Company may adjust the Salary upward on an annual
basis, but the Salary shall not be decreased.
(b) Commencing on the date hereof (the "Bonus Starting Date") and
continuing during the Employment Term, the Company shall pay the Employee a
bonus in accordance with this paragraph 4(b). For each fiscal year during the
Employment Term, the Board of Directors, in its sole discretion, shall establish
a budget for operating income for foil and holography or such other profit
parameters as approved by the Compensation Committee of the Company in
accordance with generally accepted accounting principles consistently applied
("GAAP") subject to approval by the Compensation Committee of the Company the
Employee's bonus will vary as a percentage of Salary in relation to the
percentage achievement of that budget as follows:
<TABLE>
<CAPTION>
Percentage of Percentage of Salary Earned
Bonus Attained As Bonus
-------------- ---------------------------
<S> <C>
less than 80% 0%
80% 10%
90% 20%
100% 30%
110% 40%
120% and above 50%
</TABLE>
For a percentage of budget achievement between the benchmarks, the percentage of
the Salary shall be linearly interpolated, provided that no bonus shall be paid
for achievement less than 80% of budget and the maximum bonus shall be 50% of
Salary in any event. In the case of a partial fiscal year, the Company shall
adjust the bonus to correspond to the Company's budget and the Salary for the
portion of the applicable fiscal year that shall be included in the Employment
Term. Notwithstanding the foregoing, the Employee's initial bonus period (the
"Initial Bonus Period") shall be the period starting with the Bonus Starting
Date and ending with the Company's fiscal year, and the Company shall use its
budget for that period (a copy of which the Company has provided to the
Employee) to determine the Employee's eligibility for a bonus, and then apply
the applicable bonus percentage to that portion of the Employee's annual Salary
that relates to the Initial Bonus Period. The Employee's second bonus period
shall be the period beginning with the Company's fiscal year and ending with the
Company's second fiscal year, and the Company shall prepare a budget for that
period and determine the Employee's eligibility for a bonus in the manner
described for the Initial Bonus Period. The bonus program shall continue with
each extension of the Employment Term as defined in paragraph 3 hereof, with the
bonus periods corresponding to the Company's fiscal year. Bonuses shall continue
to be calculated as described in this paragraph.
-2-
<PAGE>
(c) During the Employment Term, the Company shall also provide the
Employee with those fringe benefits specified on Exhibit A (the "Fringe
Benefits"). The Company shall also reimburse the Employee for any reasonable
business expenses incurred on the Company's behalf in connection with the
performance of his services during the Employment Term.
(d) HoloPak has granted to the Employee under its Non-Qualified Stock
Option Plan (the "HoloPak Plan"), options to purchase shares of Common Stock
("Options"). Pursuant to and in accordance with Section 3.4 of the Merger
Agreement, at the effective time of the Merger, the Options shall be converted
into and become rights with respect to shares of common stock of Foilmark, and
Foilmark shall assume each Option.
(e) As of the effective date of the Merger, the Company shall grant to
the Employee under its 1995 Amended and Restated Employee Stock Option Plan (the
"Plan") options ("Options") to purchase shares of 10,000 shares of Company
common stock, $.01 par value, at an exercise price and pursuant to the vesting
schedule set forth in the Plan.
(f) The Employee will be eligible to participate in the Plan and,
therefore, will be eligible for grants of stock options in addition to the
Options referred to above. The administrator of the Plan, which is currently the
Compensation Committee of the Board of Directors, will determine, from time to
time, whether any such additional Options shall be granted to the Employee and
the exercise price, vesting schedule and other terms of any such additional
options that may be granted.
(g) The Company's commitment to grant additional Options is subject to
the Company's obtaining approval of such items by the Board of Directors of the
Company.
5. TERMINATION WITHOUT COMPENSATION
(a) PARTIAL OR TOTAL DISABILITY. If the Employee is unable to perform
his duties and responsibilities hereunder to the full extent required by reason
of non-employment related illness, injury or incapacity for six months (during
which time he shall continue to be compensated hereunder), the Company may
terminate the Employment Term, and the Company shall not have any further
liability or obligation to the Employee hereunder except for any unpaid Salary,
any unpaid bonus earned by Employee pursuant to Section 4(b) hereof for the
bonus period in which termination of employment occurs, adjusted pro rata based
upon the portion of such bonus period in which the Employee was actually
employed by the Company hereunder and any Fringe Benefits accrued to the date of
termination, provided, however, that Employee reserves any rights that he may
have against the Company with respect to any claims for damages and/or benefits
under any Workers' Compensation Act, or otherwise, arising out of injuries,
illness or incapacity incurred as a result of his employment with the Company
(an "Employment Injury"). In the event of any dispute under this Section 5(a),
the Employee shall submit to a physical examination by a licensed physician
mutually satisfactory to the Company and the Employee, the cost of such
examination to be paid by the Company, and the determination of such physician
shall be determinative. If, after termination due to disability as provided
herein, the Employee obtains, at his sole expense, medical certification from a
licensed physician reasonably satisfactory to the Company that such disability
has ended, the Company shall offer to employ the Employee pursuant to the terms
of this Agreement for the remainder of the initial term or any renewal term in
effect at the time of termination, except that the Company shall not be required
to re-employ the Employee at the same officer position if the Company shall have
elected another person to such position during the period of the Employee's
disability and such other person continues in such position at the time of the
Employee's return to employment.
-3-
<PAGE>
(b) DEATH. If the Employee dies, this Employment Agreement (except for
the provisions of Sections 6, 10 and 11 hereof) shall terminate, and thereafter
the Company shall not have any further liability or obligation to the Employee,
his executors, administrators, heirs, assigns or any other person claiming under
or through him except for unpaid Salary, any unpaid bonus earned by Employee
pursuant to Section 4(b) hereof for the bonus period in which Employee's death
occurs, adjusted pro rata based upon the portion of such bonus period in which
the Employee was actually employed by the Company hereunder and any Fringe
Benefits, accrued to the date of his death.
(c) CAUSE. The Company may terminate the Employee's employment for
"cause" by giving the Employee 60 days' written notice of the termination date
and thereafter the Company shall not have any further liability or obligation to
the Employee. For the purposes of this Agreement, "cause" shall mean the failure
of the Employee to observe or perform (other than by reason of illness, injury,
or incapacity) any of the material terms or provisions of this Agreement,
dishonesty, willful misconduct, material neglect of the Company's business,
conviction of a felony or other crime involving moral turpitude,
misappropriation of funds or habitual insobriety. Any such willful misconduct or
material neglect shall constitute "cause" only if the action (or omission) at
issued shall be continuing 30 days after the Company gives the Employee written
notice of such willful misconduct or material neglect constituting "cause".
6. TERMINATION WITH COMPENSATION
(a) NON-RENEWAL OF TERM. The Employment Term may be terminated by
either party hereto as of the end of the initial term or any renewal term then
in effect by giving written notice of the intention to terminate the Employment
Term at least 90 days prior to the proposed termination date. If the Company
terminates the Employment Term under such circumstances, the Company shall
provide the Employee with the Termination Compensation specified in Section
6(c).
(b) WITHOUT CAUSE. During the initial one-year term, the Company shall
have the right to terminate the Employment Term without cause at any time by
giving the Employee 60 days' written notice of the termination date. Under such
circumstances, the Company shall provide the Employee with the Termination
Compensation specified in Section 6(c).
(c) TERMINATION COMPENSATION. The "Termination Compensation" shall
consist of payment of the Employee's Salary under Section 4(a) hereof, at the
level in effect at the date of termination, for 12 months (with continuing
benefits during the 12 months, excluding car allowance). The Employee will be
able to purchase medical benefits through the Company at a rate equal to the
Company's total cost to provide such benefits to an employee, through age 65.
The Employee shall not be entitled to any Termination Compensation under this
Section 6 unless the Employee executes and delivers to the Company after a
notice of termination a release in a form satisfactory to the Company in its
sole discretion by which the Employee releases the Company and its affiliates,
and the Company so releases the Employee, from any obligations and liabilities
of any type whatsoever, except for the Company's obligation to provide the
Salary specified in this Section 6, any unpaid bonus earned by Employee pursuant
to Section 4(b) hereof for the bonus period in which termination of employment
occurs, adjusted pro rata based upon the portion of such bonus period in which
the Employee was actually employed by the Company hereunder and any liability
for any Employment Injury. The parties hereto acknowledge that the Salary to be
provided under this Section 6 is to be provided in consideration for the
above-specified release.
(d) EXCLUSIVITY. Upon any termination by the Company under Section 6(a)
or Section 6(c), the
-4-
<PAGE>
Company shall not have any obligation to the Employee, his executors,
administrators, heirs or assigns or any other person claiming under or through
him other than to provide the Termination Compensation under the terms and
conditions of Section 6(c) and any other obligation that the Company may have
for any Employment Injury.
7. AGREEMENT NOT TO COMPETE.
(a) During the Non-Competition Period (defined below), the Employee
shall not, within the Restricted Area (defined below) directly or indirectly, in
any capacity, without the express written consent of the Chief Executive Officer
of the Company, render his services, engage in any business activity or have a
financial interest, in any business (other than as the holder of not more than
one percent of the total outstanding stock of any publicly-held company) that is
competitive with any of those business activities in which the Company, the
Surviving Corporation, Foilmark Manufacturing Corporation, Transfer Print Foils,
Inc., Alubec Industries, Inc, or any subsidiary of any of the foregoing or any
person, partnership, association, corporation or other entity controlled by any
or all of them (collectively, the "Foilmark Parties") shall have been engaged
during his employment by the Company, nor shall the Employee assist any person
or entity that is engaged in such business, including by making Foilmark
Information (defined below) available to any such person or entity. In addition,
the Employee shall not directly or indirectly solicit or otherwise encourage any
of the employees of any Foilmark Party to terminate his employment with the
applicable Foilmark Party. Notwithstanding the above, the Employee may become
employed or consult in the areas of adhesive coating, extrusion coating,
silicone coating, laminating, printing, paper or film manufacturing upon
termination of his employment, except to the extent that the Company can prove
such subsequent employment is in direct competition with a Foilmark Party. As
used herein, the "Restricted Area" means, the (i) United States of America and
(ii) Canada. If a court determines that the foregoing restrictions are too broad
or otherwise unreasonable under applicable law, including with respect to time
and space, the court is hereby requested and authorized by the parties hereto to
review the foregoing restriction to include the maximum restrictions allowable
under applicable law. The "Non-Competition Period" means the period during which
the Employee is employed hereunder. In addition, (A) in the case of termination
of employment pursuant to Section 6 hereof, the "Non-Competition Period" shall
be extended from the date of such termination of employment for a period equal
to the greater of (x) the period in which any payment of compensation (except
for an employment related injury) is made to Employee pursuant to this Agreement
and (y) one year, or (B) in the case of termination of employment pursuant to
Section 5 hereof, the "Non-Competition Period" shall be extended from the date
of such termination of employment for a period of one year.
(b) The terms of this Section 7 shall apply to the Employee and any
Person controlled by the Employee, including any relative of the Employee, to
the same extent as if they were parties hereto, and the Employee shall take
whatever actions may be necessary to cause any such Persons or entities to
adhere to the terms of this Section 7.
8. INVENTIONS, DESIGNS AND PRODUCT DEVELOPMENTS
All inventions, innovations, designs, ideas and product developments
(collectively, the "Developments"), developed or conceived by the Employee,
solely or jointly with others, whether or not patentable or copyrightable, at
any time during the Employment Term and that relate to the actual or planned
business activities of any Foilmark Party and all of Employee's right, title and
interest therein, shall be the
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<PAGE>
exclusive property of the applicable Foilmark Party. The Employee hereby
assigns, transfers and conveys to any applicable Foilmark Party all of his
right, title and interest in and to any and all such Developments. As requested
from time to time by the Board, the Employee shall disclose fully, as soon as
practicable and in writing, all Developments to the Chief Executive Officer of
the Company. At any time and from time to time, upon the request of any of the
Board, the Employee shall execute and deliver to the Company any and all
instruments, documents and papers, give evidence and do any and all other acts
that, in the opinion of counsel for the Company, are or may be necessary or
desirable to document such transfer or to enable any applicable Foilmark Party
to file and prosecute applications for and to acquire, maintain and enforce any
and all patents, trademark registrations or copyrights under United States or
foreign law with respect to any such Developments or to obtain any extension,
validation, reissue, continuance or renewal of any such patent, trademark or
copyright. The applicable Foilmark Party will be responsible for the preparation
of any such instruments, documents and papers and for the prosecution of any
such proceedings and will reimburse the Employee for all reasonable expenses by
him in compliance with the provisions of this Section.
9. CONFIDENTIAL INFORMATION
(a) The Employee has had and will have possession of or access to
confidential information relating to the business of one or more Foilmark
Parties, including writings, equipment, processes, drawings, reports, manuals,
invention records, financial information, business plans, customer lists, the
identity of or other facts relating to prospective customers, inventory lists,
arrangements with suppliers and customers, computer programs, or other material
embodying trade secrets, customer or product information or technical or
business information of certain Foilmark Parties. All such information, other
than any information that is in the public domain through no act or omission of
the Employee or which he is authorized to disclose, or that the Employee had in
his possession prior to his employment with the Company, is referred to
collectively as the "Foilmark Information." During and after the Employment Term
the Employee shall not knowingly, willfully or intentionally (i) use or exploit
in any manner the Foilmark Information for himself or any Person other than a
Foilmark Party, (ii) remove any Foilmark Information, or any reproduction
thereof, from the possession or control of any Foilmark Party or (iii) treat
Foilmark Information other than in a confidential manner.
(b) All Foilmark Information developed, created or maintained by the
Employee, alone or with others employed by the Company, and all Foilmark
Information maintained by the Employee thereafter, shall remain at all times the
exclusive property of the applicable Foilmark Party. The Employee shall return
to the Company all Foilmark Information, and reproductions thereof, whether
prepared by him or others, that are in his possession immediately upon request
and in any event upon the completion of his employment by the Company.
10. REMEDIES
The Employee expressly acknowledges that the remedy at law for any
breach of Sections 7, 8 or 9 will be inadequate and that upon any breach or
threatened breach, the Company (or Foilmark Party) shall be entitled as a matter
of right to injunctive relief in any court of competent jurisdiction, in equity
or otherwise, and to enforce the specific performance of the Employee's
obligations under these provisions without the necessity of proving the actual
damage or the inadequacy of a legal remedy. Subject to the remainder of this
Section 10, the rights conferred upon the Company (and any Foilmark Party) by
the preceding sentence shall
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not be exclusive of, but shall be in addition to, any other rights or remedies
which the Company may have at law, in equity or otherwise.
11. SURVIVAL
Notwithstanding the termination of the Employment Term pursuant to
Section 5 or 6, the obligations of the Employee under Sections 7, 8 and 9 shall
survive and remain in full force and effect and the Company shall be entitled to
relief against the Employee pursuant to the provisions of Section 10 hereof.
12. GENERAL
(a) GOVERNING LAW. The terms of this Agreement shall be governed by the
laws of the State of New Jersey.
(b) INTERPRETATION. Unless the context of this Agreement clearly
requires otherwise, (i) references to the plural include the singular, and to
the singular include the plural, (ii) "or" has the inclusive meaning frequently
identified with the phrase "and/or" and (iii) "including" has the inclusive
meaning frequently identified with the phrase "but not limited to." The section
and other headings contained in this Agreement are for reference purposes only
and shall not control or affect the construction of this Agreement or the
interpretation thereof in any respect. Section, subsection, schedule and exhibit
references are to this Agreement unless otherwise specified. Each accounting
term used herein that is not specifically defined herein shall have the meaning
given to it under GAAP.
(c) BINDING EFFECT. All of the terms and provisions of this Agreement
shall be binding upon and inure to the benefit and be enforceable by the
respective heirs, representatives, successors (including any successor as a
result of a merger or similar reorganization) and assigns of the parties hereto,
except that the duties and responsibilities of the Employee hereunder are of a
personal nature and shall not be assignable in whole or in part by the Employee.
Any Foilmark Party other than the Company is a third party beneficiary of this
Agreement and may enforce the provisions of this Agreement that pertain to such
Foilmark Party, including Sections 7, 8 and 9, to the same extent as if a party
hereto.
(d) NOTICES. All notices required to be given under this Agreement
shall be in writing and shall be deemed to have been given when personally
delivered or when mailed by registered or certified mail, postage prepaid,
return receipt requested, or when sent by Federal Express or other overnight
delivery service, addressed as follows (or to such other address that a party
may provide from time to time by notice to the other parties):
TO EMPLOYEE:
Dr. J.T. Webb
55 Winthrop Road
Lawrenceville, New Jersey 08648
TO THE COMPANY:
Foilmark, Inc.
4 Malcolm Hoyt Drive
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<PAGE>
Newburyport, MA 01950
Attention: President
(e) ENTIRE AGREEMENT; TERMINATION OF PRIOR AGREEMENTS; MODIFICATION.
This Agreement (including Exhibit A hereto) constitute the entire agreement of
the parties hereto with respect to the subject matter hereof. This Agreement may
not be modified or amended in any way except in writing by the parties hereto.
(f) WAIVER. No waiver of any breach of this Agreement shall be
construed to be a waiver as to succeeding breaches.
(g) SEVERABILITY. If any provision of this Agreement or application
thereof to anyone under any circumstances is adjudicated to be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect any other provisions or applications of this Agreement which can be given
effect without the invalid or unenforceable provision or application and shall
not invalidate or rend unenforceable such provision in any other jurisdiction.
(h) COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures hereto were upon the same instrument.
(i) TERMINATION OF ORIGINAL EMPLOYMENT AGREEMENT. Employee and Foilmark
Sub agree that the Original Employment Agreement, and that certain Employment
Agreement, dated as of May 18, 1998, between the Company and Employee (the "May
Employment Agreement"), have each been terminated without any further force and
effect, effective immediately prior to the effective time of the Merger. In
consideration for entering into this Agreement, the sufficiency of which is
hereby acknowledged, Employee hereby concurrently waives all rights that he may
have under the Original Employment Agreement and the May Employment Agreement,
including, but not limited to, any right that he may have to Termination
Compensation (as such term is defined in the Original Employment Agreement)
under the Original Employment Agreement and the May Employment Agreement arising
out of or as a result of such termination of the Original Employment Agreement
and the May Employment Agreement.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have hereunto duly executed this Agreement the day and year first written above.
FOILMARK, INC.
By: /s/
------------------------------------------
Name: Frank J. Olsen, Jr.
Title: President & Chief Executive Officer
FOILMARK ACQUISITION CORPORATION
By: /s/
------------------------------------------
Name: Frank J. Olsen, Jr.
Title: President
/s/
------------------------------------------
Joseph T. Webb
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<PAGE>
EXHIBIT A
FRINGE BENEFITS
1. TYPICAL OFFICE BENEFITS: Inclusion in the benefit plans generally given
to executive officers of the Company from time to time, life and
disability insurance, and participation in any of the Company's profit
sharing and pension plans. In addition, the Company shall waive the
waiting period for participation in the profit sharing and 401(k) plans
to the extent permitted by law to allow Employee to participate in such
plans at the earliest possible dates.
2. VACATION: Each one-year period of employment under this Agreement will
entitle Employee to a total of four weeks paid vacation in such year.
3. AUTOMOBILE ALLOWANCE: A monthly allowance for a car and insurance, and
gas and maintenance expenses, as allowed and consistent with those
given to executive officers of the Company.
<PAGE>
Exhibit 10.22
CONSULTING AGREEMENT
This CONSULTING AGREEMENT, dated as of April 23, 1999 (this "Agreement"),
between FOILMARK, INC., a Delaware corporation (the "Company") and James L.
Rooney (the "Consultant").
WHEREAS, pursuant to the Agreement and Plan of Merger, dated as of
November 17, 1998 (the "Merger Agreement"), by and among HoloPak Technologies,
Inc., a Delaware corporation ("HoloPak"), the Company and Foilmark Acquisition
Corporation, a Delaware corporation and a wholly-owned subsidiary of the Company
("Foilmark Sub"), HoloPak will merge (the "Merger") with and into Foilmark Sub
pursuant to which Foilmark Sub will be the surviving corporation in the Merger;
WHEREAS, the Consultant and HoloPak are parties to that certain Employment
Agreement, dated as of August 16, 1997 (the "Employment Agreement");
WHEREAS, Employee and HoloPak mutually agree that the Employment Agreement
shall terminate immediately prior to the effective time of the Merger; and
WHEREAS, the Company desires to induce the Consultant following the
termination of the Employment Agreement to act as a consultant to the Company
and the Consultant desires to commit himself to act as a consultant to the
Company.
NOW, THEREFORE, in order to effect the foregoing, the Company and the
Consultant wish to enter into a consulting agreement upon the terms and subject
to the conditions set forth below. Accordingly, in consideration of the premises
and the respective covenants and agreements of the parties herein contained, and
intending to be legally bound hereby, the parties hereto agree as follows:
1. TERM AND SERVICES TO BE PROVIDED.
(a) Commencing on the date hereof and continuing until the first
anniversary thereof (the "Term"), the Consultant agrees to provide consulting
services to the Company from time to time upon reasonable notice and at the
reasonable request of the Chief Executive Officer or the Board of Directors of
the Company. The Consultant will make himself available to consult and cooperate
with and advise the members of senior management of the Company with respect to
such matters involving the business of the Company as may be requested. The
Consultant, at his discretion, may perform his duties hereunder from the office
space provided to him by the Company pursuant to Section 2(e) hereof, from his
place of residence, or from another location of his choosing. In addition, the
Company agrees that the Consultant shall be a Director on the Board of Directors
of the Company immediately following the Merger.
(b) During the Term, the Consultant may pursue other personal or
business interests; PROVIDED, HOWEVER, that such interests do not interfere with
his duties as set forth in Section 1(a) hereof and do not conflict with the
provisions set forth in Sections 4, 5 or 6 hereof.
2. COMPENSATION.
<PAGE>
(a) During the Term, the Company shall pay the Consultant
consulting fees at the rate of $105,000 per annum (the "Salary"), payable on
a monthly basis.
(b) During the Term, the Company shall provide or make available to
the Consultant those fringe benefits that are specified on EXHIBIT "A" hereto
(the "Fringe Benefits").
(c) (i) HoloPak has granted to the Employee pursuant to the
Employment Agreement, under its Non-Qualified Stock Option Plan (the
"HoloPak Plan"), options to purchase shares of Common Stock ("HoloPak
Options") for 100,000 shares of HoloPak Common Stock at an exercise price
of $3.25 per share. The Options vest and become exercisable in three equal
installments as follows: (i) 33,334 shares on March 1, 1998, (ii) 33,333
shares on September 1, 1998 and (iii) 33,333 shares on March 1, 1999.
Pursuant to and in accordance with Section 3.4 of the Merger Agreement,
the Options shall be converted into and become rights with respect to
shares of common stock of Foilmark, and Foilmark shall assume each Option.
(ii) As of the effective date of the Merger, the Company
will grant to the Consultant under its 1995 Amended and Restated Employee
Stock Option Plan (the "Plan") options to purchase shares of Common Stock
(the "Company Options" and together with the HoloPak Options, the
"Options") to purchase 20,000 shares of Company common stock, $.01 par
value, at an exercise price and pursuant to the vesting schedule set forth
in the Plan.
(iii) The Employee will be an eligible participant in the
Plan and, therefore, will be eligible for future grants of stock options
in addition to the Options referred to above. The administrator of the
Plan, which is currently the Compensation Committee of the Board of
Directors of Foilmark, will determine from time to time whether any such
additional options shall be granted to the Employee and the exercise
price, vesting schedule and other terms of any such additional options
that may be granted.
(d) The Company's commitment to grant additional Options is subject
to the Company's obtaining approval of such items by the Board of Directors of
the Company.
(e) Any payments made hereunder shall be made subject to applicable
federal, state and local withholding obligations. All payments and other
benefits hereunder shall be made without set-off for any reason whatever.
3. TERMINATION.
(a) DEATH. If the Consultant dies during the Term, the Consultant's
consulting relationship with the Company hereunder shall terminate upon his
death; PROVIDED that the Company shall pay to the Consultant's spouse (or to
such other beneficiary as may be designated by the Consultant by written notice
to the Company), the compensation provided in Section 2(a) hereof that would
have been paid to Consultant hereunder for the remainder of the Term. Such
compensation shall be paid by the Company to the Consultant's spouse (or to such
other beneficiary as may be designated by the Consultant by written notice to
the Company) promptly following the Consultant's death in one lump sum.
(b) DISABILITY. If, as a result of the Consultant's incapacity due
to physical or mental illness, the Consultant shall be unable to perform the
consulting services described herein for a continuous period of six months, the
Company may terminate the Consultant's consulting relationship with
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<PAGE>
the Company. In such event, the Company shall pay the Consultant the
compensation provided in Section 2(a) hereof promptly following such termination
in one lump sum.
4. AGREEMENT NOT TO COMPETE.
(a) During the Non-Competition Period (defined below), the
Consultant shall not, within the Restricted Area (defined below) directly or
indirectly, in any capacity, without the express written consent of the Chairman
of the Board of Directors of the Company, render his services, engage in any
business activity or have a financial interest in, any business (other than as
the holder of not more than one percent of the total outstanding stock of any
publicly-held company) that is competitive with any of those business activities
in which the Company, the Surviving Corporation, Foilmark Sub, Foilmark
Manufacturing Corporation, Transfer Print Foils, Inc., Alubec Industries Inc. or
any person, partnership, association, corporation or other entity (each a
"Person") controlled by any of them (any such party is referred to herein as a
"Foilmark Party") shall have been engaged during his employment by the Company,
nor shall the Consultant assist any person or entity that is engaged in such
business, including by making Foilmark Information (defined below) available to
any such person or entity. In addition, the Consultant shall not directly or
indirectly solicit or otherwise encourage any of employees of any Foilmark Party
to terminate their employment with the applicable Foilmark Party.
Notwithstanding the above, the Consultant may become employed or consult in the
areas of adhesive coating, extrusion coating, silicone coating, laminating,
printing, paper or film manufacturing upon termination of this Agreement, except
to the extent that the Company can prove such subsequent employment is in direct
competition with a Foilmark Party. As used herein, the "Restricted Area" means
(i) the United States of America and (ii) Canada. If a court determines that the
foregoing restrictions are too broad or otherwise unreasonable under applicable
law, including with respect to time or space, the court is hereby requested and
authorized by the parties hereto to review the foregoing restriction to include
the maximum restrictions allowable under applicable law. The "Non-Competition
Period" means the period during the term of this Agreement and for three (3)
years following the Term.
(b) The terms of this Section 4 shall apply to the Consultant and
any Person controlled by the Consultant, including any relative of the
Consultant, to the same extent as if they were parties hereto, and the
Consultant shall take whatever actions may be necessary to cause any such
Persons or entities to adhere to the terms of this Section 4.
5. INVENTIONS, DESIGNS AND PRODUCT DEVELOPMENTS.
All inventions, innovations, designs, ideas and product developments
(collectively, the "Developments"), developed or conceived by the Consultant,
solely or jointly with others, whether or not patentable or copyrightable, at
any time during the Employment Term and that relate to the actual or planned
business activities of any Foilmark Party and all of the Employee's right, title
and interest therein, shall be the exclusive property of the applicable Foilmark
Party. The Consultant hereby assigns, transfers and conveys to any applicable
Foilmark Party all of his right, title and interest in and to any and all such
Developments. As requested from time to time by the Board, the Consultant shall
disclose fully, as soon as practicable and in writing, all Developments to the
Chairman of the Board of Directors of the Company. At any time and from time to
time, upon the request of any of the Board, the Consultant shall execute and
deliver to the Company any and all instruments, documents and papers, give
evidence and do any and all other acts that, in the opinion of counsel for the
Company, are or may be necessary or desirable to document such transfer or to
enable any applicable Foilmark Party to file and prosecute applications for and
to acquire, maintain and enforce any and all patents, trademark registrations or
copyrights under United States or foreign law with
3
<PAGE>
respect to any such Developments or to obtain any extension, validation,
reissue, continuance or renewal of any such patent, trademark or copyright. The
applicable Foilmark Party will be responsible for the preparation of any such
instruments, documents and papers and for the prosecution of any such
proceedings and will reimburse the Consultant for all reasonable expenses
incurred by him in compliance with the provisions of this Section.
6. CONFIDENTIAL INFORMATION.
(a) The Consultant has had and will have possession of or access to
confidential information relating to the business of one or more Foilmark
Parties, including writings, equipment, processes, drawings, reports, manuals,
invention records, financial information, business plans, customer lists, the
identity of or other facts relating to prospective customers, inventory lists,
arrangements with suppliers and customers, computer programs, or other material
embodying trade secrets, customer or product information or technical or
business information of certain Foilmark Parties. All such information, other
than any information that is in the public domain through no act or omission of
the Consultant or which he is authorized to disclose, or that the Consultant had
in his possession prior to his employment with the Company is referred to
collectively as the "Foilmark Information." During and after the Term, the
Consultant shall not knowingly, willfully or intentionally (i) use or exploit in
any manner the Foilmark Information for himself or any Person other than a
Foilmark Party, (ii) remove any Foilmark Information, or any reproduction
thereof, from the possession or control of any Foilmark Party or (iii) treat
Foilmark Information otherwise than in a confidential manner.
(b) All Foilmark Information developed, created or maintained by the
Consultant, alone or with others while employed by the Company, and all Foilmark
Information maintained by the Consultant thereafter, shall remain at all times
the exclusive property of the applicable Foilmark Party. The Consultant shall
return to the Company all Foilmark Information, and reproductions thereof,
whether prepared by him or others, that are in his possession immediately upon
request and in any event upon the completion of his employment by the Company.
7. REMEDIES.
The Consultant expressly acknowledges that the remedy at law for any
breach of Sections 4, 5 or 6 will be inadequate and that upon any such breach or
threatened breach, the Company (or the applicable Foilmark Party) shall be
entitled as a matter of right to injunctive relief in any court of competent
jurisdiction, in equity or otherwise, and to enforce the specific performance of
the Employee's obligations under these provisions without the necessity of
proving the actual damage or the inadequacy of a legal remedy. Subject to the
remainder of this Section 10, the rights conferred upon the Company (and any
Foilmark Party) by the preceding sentence shall not be exclusive of, but shall
be in addition to, any other rights or remedies which Foilmark may have at law,
in equity or otherwise.
8. NOTICE.
(a) All notices required to be given under this Agreement shall be
in writing and shall be deemed to have been given when personally delivered or
when mailed by registered or certified mail, postage prepaid, return receipt
requested, or when sent by Federal Express or other overnight delivery service,
addressed as follows (or to such other address that a party may provide from
time to time by notice to the other parties):
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<PAGE>
If to the Consultant:
James L. Rooney
1272 Camelot Lane
Lemont, IL 60439
If to the Company:
Foilmark, Inc.
4 Malcolm Hoyt Drive
Newburyport, MA 01950
Attention: Chairman of the Board
9. CONSULTANT'S INDEPENDENCE AND DISCRETION.
(a) Nothing herein contained shall be construed to constitute the
parties hereto as partners or as joint venturers, or either as agent of the
other, or as employer and employee. By virtue of the relationship described
herein, the Consultant's relationship to the Company during the Term shall only
be that of an independent contractor and the Consultant shall perform all
services pursuant to this Consulting Agreement as an independent contractor.
(b) Subject only to such specific limitations as are contained in
this Consulting Agreement, the manner, means, details or methods by which the
Consultant performs his obligations under this Consulting Agreement shall be
solely within his discretion.
10. MODIFICATIONS; WAIVER DISCHARGE. This Consulting Agreement is
entered into between the Company and the Consultant for the benefit of each of
the Company and the Consultant. No provisions of this Consulting Agreement may
be modified, waived or discharged unless such waiver, modification or discharge
is agreed to in writing signed by the Consultant and the Company's Chief
Executive Officer or such other officer as may be specifically designated by the
Board of Directors of the Company. No waiver by any party hereto at any time of
any breach by the other party hereto of, or compliance with, any condition or
provision of this Consulting Agreement to be performed by such other party shall
be deemed a waiver of similar or dissimilar provisions or conditions at the same
or at any prior or subsequent time.
11. VALIDITY. The invalidity or unenforceability of any provision or
provisions of this Consulting Agreement shall not affect the validity or
enforceability of any other provision of this Consulting Agreement, which shall
remain in full force and effect; PROVIDED, HOWEVER, that if any one or more of
the terms contained in Section 4 hereto shall for any reason be held to be
excessively broad with regard to time, duration, geographic scope or activity,
that term shall not be deleted but shall be reformed and construed in a manner
to enable it to be enforced to the extent compatible with applicable law.
12. ENTIRE AGREEMENT. This Consulting Agreement sets forth the entire
agreement of the parties hereto in respect of the subject matter contained
herein and supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties whether oral or written, by any
officer, employee or representative of any party hereto.
13. ASSIGNMENT. This Consulting Agreement may not be assigned by the
Consultant, but may be assigned by the Company to any successor to its business
and will inure to the benefit and be binding upon
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any such successor.
14. COUNTERPARTS. This Consulting Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
15. HEADINGS. The headings contained herein are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Consulting Agreement.
16. GOVERNING LAW. The validity, interpretation, construction and
performance of this Consulting Agreement shall be governed by the laws of the
State of New Jersey without regard to principles of conflicts of laws.
17. TERMINATION OF EMPLOYMENT AGREEMENT. Employee and Foilmark Sub agree
that the Employment Agreement has been terminated effective immediately prior to
the effective time of the Merger. Employee hereby waives any right that he may
have to Termination Compensation (as such term is defined in the Original
Employment Agreement) under the Original Employment Agreement arising out of or
as a result of such termination.
6
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Consulting Agreement on
the date and year first above written.
FOILMARK, INC.
By: /s/
------------------------------------
Name:
Title:
/s/
------------------------------------
James L. Rooney
7
<PAGE>
EXHIBIT A
FRINGE BENEFITS
1. TYPICAL OFFICER BENEFITS: Inclusion in the benefit plans generally given
to executive officers of the Company from time to time, including any
benefits provided with respect to health, life and disability insurance
and participation in any of the Company's profit sharing and pension
plans. In addition, the Company shall waive the waiting period for
participation in the profit sharing and 401(k) plans to the extent
permitted by law to allow Employee to participate in such plans at the
earliest possible date.
2. AUTOMOBILE ALLOWANCE: Monthly car allowance in the amount of $850 per
month for a period of twelve months, commencing April 23, 1999.
8
<PAGE>
Exhibit 10.23
FOILMARK, INC.
REGISTRATION RIGHTS AGREEMENT
This AGREEMENT (the "Agreement") is made as of the 23rd day of April, 1999
by and among Foilmark, Inc., a Delaware corporation (the "Company"), and the
undersigned security holders of the Company (the "Stockholders").
BACKGROUND
The Stockholders are persons and entities that own shares of common stock,
par value $.01 per share, of the Company (the "Common Stock"). As a condition
precedent to that certain Agreement and Plan of Merger (the "Merger Agreement")
dated as of November 17, 1998, by and among the Company, Foilmark Acquisition
Corporation, a Delaware corporation and a wholly-owned subsidiary of the
Company, and the HoloPak Technologies, Inc., a Delaware corporation, (i) the
Company has agreed to provide the registration rights provided for in this
Agreement to the Stockholders, and (ii) the Stockholders that may be deemed
"affiliates" for purposes of Rule 145 of the 1933 Act (as hereinafter defined)
have delivered to Foilmark certain letters acknowledging the same. In
consideration for delivering to Foilmark the Affiliate Letters, the sufficiency
of which is hereby acknowledged and recognized, the Company has agreed to grant
to the Stockholders the registration rights as provided herein.
WITNESSETH:
The parties hereto, each intending to be legally bound and in exchange for
the mutual covenants herein, agree as follows:
1. DEMAND REGISTRATIONS.
(a) REQUESTS FOR REGISTRATION. At any time, from the date hereof to and
including the seventh anniversary hereof, each Significant Stockholder (as
hereinafter defined) may demand registration (a "Demand Registration") under the
Securities Act of 1933, as amended (the "1933 Act"), of all or any portion of
the Registrable Securities (defined below) owned by such Significant
Stockholder. In order to accomplish such demand, the Significant Stockholder
shall send written notice of its demand to the Company, and such notice shall
specify the number of Registrable Securities sought to be registered. The
Significant Stockholders shall have, from the date hereof to and including the
seventh anniversary hereof, the right to a total of four Demand Registrations.
For purposes of this Agreement, "Significant Stockholder" shall mean Bradford
Venture Partners, L.P., a New Jersey limited partnership, and Overseas Private
Investors Partners, a Bermuda general partnership, and their respective
successors and assigns. The Company shall only be required to proceed with a
Demand Registration requested by a Significant Stockholder if the number of
Registrable Securities that the Stockholders (including the Significant
Stockholder requesting the Demand Registration) and the Company shall have
elected to include in such Demand Registration pursuant to this Section 1 is
equal to a minimum of 375,000 shares of Common Stock.
<PAGE>
(b) PROCEDURE. Within 10 days after receipt of such a demand, the Company
will give written notice of such requested registration to all other holders of
Registrable Securities and will include in such registration, subject to the
allocation provisions below, all other Registrable Securities with respect to
which the Company has received written requests for inclusion within 20 days
after the Company's mailing of such notice, plus any securities of the Company
that the Company chooses to include on its own behalf.
(c) EXPENSES. In a Demand Registration, the Company will pay the
Registration Expenses (defined below), but the Underwriting Commissions (defined
below) will be paid by those holders of Registrable Securities whose Registrable
Securities are included in the Demand Registration in proportion to any
Registrable Securities included on their behalf.
(d) PRIORITY ON DEMAND REGISTRATIONS. If a Demand Registration is
underwritten and the managing underwriters advise the Company in writing that in
their opinion the number of Registrable Securities requested to be included
exceeds the number that can be sold in such offering, at a price reasonably
related to fair value, the Company will include in such Demand Registration (i)
first, the Registrable Securities requested to be included in such Demand
Registration by all Stockholders, including the Significant Stockholder making
the demand, pro rata on the basis of the number of Registrable Securities owned,
(ii) second, any securities that the Company desires to include on its own
behalf and (iii) third, any securities of the Company that are not Registrable
Securities and have "piggyback" registration rights. A Demand Registration shall
not be considered to be one of the Significant Stockholder's four Demand
Registrations under Section 1(a) hereof, and the Company shall pay the
Registration Expenses of such Demand Registration, if (i) the Significant
Stockholder that initiated the Demand Registration is not able to register and
sell in the Demand Registration at least 75 % of the Registrable Securities
sought to be included in the Demand Registration by such Significant
Stockholder, as specified in such Significant Stockholder's notice by which the
demand was made, or (ii) the gross proceeds of the securities included in the
Demand Registration on behalf of the Company constitute at least 20% of the
total gross proceeds of the Demand Registration.
(e) SELECTION OF UNDERWRITERS. If any Demand Registration is underwritten,
the selection of investment banker(s) and manager(s) and the other decisions
regarding the underwriting arrangements for the offering will be made by the
Significant Stockholder demanding such registration.
(f) CONTEMPORANEOUS DEMAND. If any holder of the Company's securities that
is not a holder of Registrable Securities under this Agreement exercises demand
registration rights to have the Company register its securities under the 1933
Act (a "Non-Stockholder Registration") within a period of 30 days before or
after the time any Significant Stockholder shall have requested a Demand
Registration, then (i) the holders of Registrable Securities that desire to be
included in the Non-Stockholder Registration and the holders of securities other
than Registrable Securities that have registration rights with respect to such
registration shall be entitled to participate in the Non-Stockholder
Registration on a pro rata basis, according to the number of shares owned by the
holders seeking to have securities included in such registration, (ii) the
Company will pay all of the Registration Expenses of the Non-Stockholder
Registration (to the extent obligated under
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its agreement with such holder) and (iii) the Non-Stockholder Registration shall
not count as a Demand Registration with respect to any Significant Stockholder
that shall have requested a Demand Registration with such time period unless the
Significant Stockholder is able to register and sell at least 75% of the
Registrable Securities sought to be registered by that Stockholder in its Demand
Registration.
(g) WITHDRAWAL OF DEMAND. If any holder of Registrable Securities
disapproves of the terms of the underwritten public offering, such holder may
elect to withdraw the request for a Demand Registration by providing written
notice to the Company. In the event of such withdrawal, and if such holder
reimburses the Company for its Registration Expenses arising directly from such
holder's request for a Demand Registration, such initial request shall not count
for purposes of determining the number of Demand Registrations to which the
Significant Stockholders are entitled pursuant to Section 1(a) hereof.
(h) LIMITATIONS ON DEMANDS. The Company shall be entitled to postpone for
a reasonable period of time not to exceed [90] days the filing of any
registration statement otherwise required to be prepared and filed by it if, at
the time it receives the request for a Demand Registration, the Company
determines, in its reasonable judgment, that such Demand Registration would
materially interfere with any then pending financing, acquisition, corporate
reorganization or other material transaction involving the Company and/or any of
its subsidiaries, and promptly give the Significant Stockholder(s) who have
requested registration of all or part of their Registrable Securities written
notice of such determination and the reasons therefor. In such event, the
Significant Stockholder(s) who have requested registration of all or a part of
their Registrable Securities shall have the right to withdraw the request for a
Demand Registration by giving written notice to the Company within 30 days after
receipt of the notice of postponement (and, in the event of such withdrawal,
such request shall be ignored for purposes of determining the number of Demand
Registrations to which the Significant Stockholders are entitled pursuant to
Section 1(a)).
2. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Company or any other holder proposes
to register any of its securities under the 1933 Act (other than a Demand
Registration), and the registration form to be used may be used for the
registration of Registrable Securities (a "Piggyback Registration"), the Company
will give prompt written notice to all holders of Registrable Securities and
will include in such Piggyback Registration, subject to the allocation
provisions below, all Registrable Securities with respect to which the Company
has received written requests from the Stockholders for inclusion within 20 days
after the Company's mailing of such notice. The Company shall not select a form
of registration statement which imposes, for its use, limitations on the maximum
value or number of securities to be registered if these limitations would
preclude registration of the Registrable Securities that the Company has been
requested to include in such registration,
3
<PAGE>
(b) PIGGYBACK EXPENSES. In all Piggyback Registrations, the Company will
pay the Registration Expenses related to the Registrable Securities of the
Stockholders, but the Stockholders will pay the Underwriting Commissions related
to their Registrable Securities.
(c) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback Registration is an
underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number that
can be sold in such offering, at a price reasonably related to fair value, the
Company will allocate the securities to be included as follows: first, the
securities the Company proposes to sell on its own behalf; and second,
Registrable Securities requested to be included in such registration, pro rata
on the basis of the number of Registrable Securities owned among the
Stockholders.
(d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback Registration is
initiated as an underwritten secondary registration on behalf of holders of the
Company's securities (other than a Demand Registration pursuant to Section 1),
and the managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such registration
exceeds the number that can be sold in such offering, the Company will allocate
the securities to be included as follows: first, the securities requested to be
included by the holders initiating such registration; and second, Registrable
Securities requested to be included in such registration, pro rata on the basis
of the number of Registrable Securities owned among the Stockholders.
(e) SELECTION OF UNDERWRITERS. If any Piggyback Registration is
underwritten, the selection of investment banker(s) and manager(s) and the other
decisions regarding the underwriting arrangements for the offering will be made
by the Company if the registration is under Section 2(c) hereof, or by the
holders initiating such registration, if the registration is under Section 2(d)
hereof.
3. HOLDBACK AGREEMENTS.
Neither any Stockholder nor the Company shall effect any public sale or
distribution of equity securities of the Company or any securities convertible
into or exchangeable or exercisable for such securities during the seven days
prior to and the 90 days after any underwritten Demand Registration or
underwritten Piggyback Registration has become effective (except as part of such
underwritten registration if required by law or by the underwriter of such
offering).
4. REGISTRATION PROCEDURES.
Whenever the holders of Registrable Securities have requested that any
Registrable Securities be registered pursuant to Section 1 or 2 of this
Agreement, the Company will, as expeditiously as possible:
(a) prepare and file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and use its
best efforts to cause such
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<PAGE>
registration statement to become effective (provided that before filing a
registration statement or prospectus or any amendments or supplements thereto,
the Company will furnish each Stockholder with copies of all such documents
proposed to be filed);
(b) prepare and file with the Securities and Exchange Commission such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective for a period of not less than 120 days;
(c) furnish to each Stockholder such number of copies of such registration
statement, each amendment and supplement thereto and the prospectus included in
such registration statement (including each preliminary prospectus), and such
other documents as such Stockholder may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such
Stockholder;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
the managing underwriter(s) may reasonably request;
(e) notify each Stockholder at any time when a prospectus relating thereto
is required to be delivered under the 1933 Act within the period that the
Company is required to keep the registration statement effective of the
happening of any event as a result of which the prospectus included in such
registration statement contains an untrue statement of a material fact or omits
any fact necessary to make the statements therein not misleading, and, at the
request of any such Stockholders, the Company will prepare a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus will not contain an untrue
statement of a material fact or omit to state any fact necessary to make the
statements therein not misleading;
(f) cause all such Registrable Securities to be listed or included on
securities exchanges or eligible for quotation on the NASDAQ National Market
System on which similar securities issued by the Company are then listed or
included;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including an underwriting
agreement in customary form) and take such other customary actions as may be
reasonably necessary to expedite or facilitate the disposition of such
Registrable Securities;
(i) obtain a "comfort" letter addressed to the Company and the
Stockholders from the Company's independent pubic accountants in customary form
and covering such matters of the type customarily covered by "comfort" letters;
5
<PAGE>
(j) make available for inspection by any Stockholder, any underwriter
participating in any disposition pursuant to such registration statement, and
any attorney, accountant or other agent retained by any such Stockholder or
underwriter, all financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such
Stockholder, underwriter, attorney, accountant or agent in connection with such
registration statement; and
(k) use its best efforts to obtain an opinion from the Company's counsel
in such form and covering such matters as may reasonably be agreed upon by the
Company and such Stockholder at that time.
5. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company hereby indemnifies each Stockholder, its officers and
directors, and each person who controls such holder (within the meaning of the
1933 Act), against all losses, claims, damages, liabilities and expenses arising
out of or resulting from any untrue or alleged untrue statement of material fact
contained in any registration statement, prospectus or preliminary prospectus or
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading except
insofar and to the extent as the same are caused by or contained in any
information furnished to the Company by such holder expressly for use therein or
by any such holder's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after the Company has
furnished such holder with a sufficient number of copies of the same. In
connection with an underwritten offering, the Company will indemnify the
underwriters, their officers and directors, and each person who controls such
underwriters (within the meaning of the 1933 Act) to the same extent as provided
above with respect to the indemnification of the Stockholders.
(b) In connection with any registration statement in which a Stockholder
is participating, each such holder will furnish to the Company in writing such
information as is reasonably requested by the Company for use in any such
registration statement or prospectus concerning such Stockholder and will
indemnify the Company, its directors and officers and each person who controls
the Company (within the meaning of the 1933 Act) against any losses, claims,
damages, liabilities and expenses resulting from any untrue or alleged untrue
statement of material fact or any omission or alleged omission of a material
fact required to be stated in the registration statement or prospectus or any
amendment thereof or supplement thereto or necessary to make the statements
therein not misleading, but only to the extent that such untrue statement or
omission is contained in information so furnished by such holder specifically
for use in preparing the registration statement. Notwithstanding the foregoing,
the liability of a Stockholder under this Section 5(b) shall be limited to an
amount equal to the net proceeds actually received by the Stockholder from the
sale of Registrable Securities covered by the registration statement.
(c) Any person entitled to indemnification hereunder will (i) give prompt
notice to the indemnifying party of any claim with respect to which it seeks
indemnification and (ii) unless in
6
<PAGE>
such indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party will not be subject to any liability for any settlement
made without its consent (but such consent will not be unreasonably withheld).
An indemnifying party who is not entitled, or elects not, to assume the defense
of a claim will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to
such claim, unless in the reasonable judgment of any indemnified party a
conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim.
(d) If the indemnification provided for in this Section 5 is unavailable
to an indemnified party under paragraphs (a) and (b) hereof in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then an
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or Registration Expenses (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Stockholder(s) on the other hand from the
offering of the Registrable Securities, or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the
Stockholder(s) on the other in connection with the statements or omissions that
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Stockholder(s) on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bears to the total net proceeds from
the offering (before deducting expenses) received by the Stockholder(s), in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault of the Company on the one hand and the Stockholder(s) on the other hand
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or by
the Stockholder(s) and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) The Company and the Significant Stockholders agree that it would not
be just and equitable if contribution pursuant to this Section 5 were determined
by a pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating any claim or defending any such action, suit or
proceeding. Notwithstanding the foregoing, the liability of a Stockholder under
this Section 5(e) shall be limited to an amount equal to the net proceeds
actually received by the Stockholder from the sale of Registrable Securities
covered by the registration statement.
7
<PAGE>
6. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
No Stockholder may participate in any underwritten registration hereunder
unless such holder (a) agrees to sell such holder's securities on the basis
provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements under Section 1(e) or 2(e) hereof, and
(b) completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
7. DEFINITIONS.
(a) The term "Registrable Securities" means (i) the Common Stock of the
Company registered in the names of the Stockholders from time to time, and (ii)
any securities issued or to be issued with respect to the securities referred to
in clause (i) of this Section 7(a) by way of a stock dividend or stock split or,
in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization. As to any particular Registrable
Securities, such securities will cease to be Registrable Securities when they
have been effectively registered under the 1933 Act and disposed of in
accordance with the registration statement covering them.
(b) The term "Registration Expenses" means all expenses incident to the
Company's performance of or compliance with this Agreement, including all
registration and filing fees, fees and expenses of compliance with securities or
blue sky laws, printing expenses, messenger and delivery expenses, expenses and
fees for listing the securities to be registered on exchanges on which similar
securities issued by the Company are then listed, and fees and disbursements of
counsel for the Company, and of all independent certified public accountants,
underwriters (other than Underwriting Commissions) and the reasonable fees and
disbursements of a single counsel for the Stockholders in the event of a Demand
Registration.
(c) The term "Underwriting Commissions" means all underwriting discounts
or commissions relating to the sale of securities of the Company, but excludes
any expenses reimbursed to underwriters.
8. MISCELLANEOUS.
(a) NOTICES. All notices that are required or permitted hereunder shall be
in writing and shall be sufficient if personally delivered or sent by mail,
facsimile message or Federal Express or other delivery service. Any notices
shall be deemed given upon the earlier of the date when received at, or the
third day after the date when sent by registered or certified mail or the day
after the date when sent by Federal Express to, the address or fax number set
forth below, unless such address or fax number is changed by notice to the other
party hereto.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement may be
amended or terminated and the Company may take any action herein prohibited, or
omit to perform any act herein required to be performed by it, only if
previously approved in writing by the Stockholders.
8
<PAGE>
(c) BINDING EFFECT. This Agreement will bind and inure to the benefit of
the respective successors (including any successor resulting from a merger or
similar reorganization), assigns, heirs, and personal representatives of the
parties hereto. Without limiting the generality of the foregoing, if a
Stockholder liquidates or reorganizes such that its assets are transferred to
its own stockholders or partners or to another entity, such stockholders,
partners or entity shall succeed to all of the rights of such Stockholder
hereunder.
(d) PRIOR AGREEMENTS. This Agreement is the only agreement among the
Company and any of the Stockholders with respect to the subject matter hereof,
and any prior agreements between the Company and any of the Stockholders
relating to the subject matter of this Agreement are terminated as of the date
hereof and shall have no further force and effect.
(e) GOVERNING LAW. All questions concerning the construction, validity and
interpretation of this Agreement will be governed by the internal law, not the
law of conflicts, of the State of New York.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be considered to be an original instrument and
to be effective as of the date first written above. Each such copy shall be
deemed an original, and it shall not be necessary in making proof of this
Agreement to produce or account for more than one such counterpart.
(g) INTERPRETATION. Unless the context of this Agreement clearly requires
otherwise (i) references to the plural include the singular, the singular the
plural, the part the whole, (ii) references to one gender include all genders,
(iii) "or" has the inclusive meaning frequently identified with the phrase
"and/or" and (iv) "including" has the inclusive meaning frequently identified
with the phrase "but not limited to." The section and other headings contained
in this Agreement are for reference purposes only and shall not control or
affect the construction of this Agreement or the interpretation thereof in any
respect.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above. This Agreement shall be binding
upon any party that execute and delivers a copy hereof, irrespective of whether
any of the parties listed below (other than the Company) do not also become a
party hereto.
FOILMARK, INC.
By: /s/
----------------------------------------------
Name: Frank J. Olsen, Jr.
Title: President & Chief Executive Officer
9
<PAGE>
BRADFORD VENTURE PARTNERS, L.P.
By: Bradford Associates, General Partner
By: /s/
----------------------------------------------
Name:
Title:
OVERSEAS PRIVATE INVESTOR PARTNERS
By: Overseas Private Investors, Ltd.,
General Partner
By: /s/
----------------------------------------------
Name:
Title:
/s/
----------------------------------------------
James L. Rooney
/s/
----------------------------------------------
Robert J. Simon
/s/
----------------------------------------------
Michael S. Mathews
/s/
----------------------------------------------
Brian Kelly
/s/
----------------------------------------------
Harvey S. Share
10
<PAGE>
Exhibit 10.24
TERMINATION OF VOTING AGREEMENT
This Termination of Voting Agreement dated as of April 23, 1999 is by
and among Foilmark, Inc., a Delaware corporation ("Foilmark") and Martin A.
Olsen, Frank J. Olsen, Jr., the Estate of Florence Olsen, Carol J. Robie,
Leonard A. Mintz and Edward Sullivan (collectively, the "Shareholders").
Pursuant to a Voting Agreement between the Shareholders dated as of November 17,
1994 (the "Voting Agreement") and in connection with a certain Agreement and
Plan of Merger by and among Foilmark, Foilmark Aquisistion Corporation and
HoloPak Technologies, Inc. dated as of November 17, 1998 (the "Merger
Agreement"), and for other good and valuable consideration, the undersigned
hereby agree as follows:
1. That, effective as of the effective date of the Merger Agreement (the
"Effective Date"), all rights and obligations under the Voting
Agreement shall terminate and be of no further force and effect.
2. That, effective as of the Effective Date, Edward Sullivan shall have
no further right under the Voting Agreement to be elected or serve as
a director of Foilmark.
This Termination Agreement may be signed in counterparts, each of which
shall be considered an original and all of which together shall constitute one
agreement. In witness whereof, the undersigned have executed and delivered this
Termination of Voting Agreement on this effective day of April 23, 1999.
FOILMARK, INC.
/s/ By: /s/
- --------------------------- ----------------------------------
Carol J. Robie Name: Frank J. Olsen, Jr.
Title: President and Chief
Executive Officer
/s/ /s/
- --------------------------- ---------------------------------------
Leonard A. Mintz Martin A. Olsen
Estate of Florence J. Olsen
/s/ /s/
- --------------------------- ---------------------------------------
Edward Sullivan By: Martin A. Olsen
Executor
<PAGE>
Exhibit 10.25
TERMINATION AGREEMENT
This Termination Agreement dated as of April 12, 1999 is by and among
Foilmark, Inc., a Delaware corporation ("Foilmark"), Foilmark Manufacturing
Corp., a Delaware corporation, ("Manufacturing"), Steven A. Meredith
("Meredith") and Kenneth R. Harris ("Harris"). Manufacturing is the successor
corporation to Imtran Industries, Inc. after the merger of the two companies on
July 20, 1998. Pursuant to a certain Asset Purchase Agreement dated August 3,
1995 ("the Asset Purchase Agreement"), a certain First Amendment to the Asset
Purchase Agreement dated August 21, 1995 and a certain letter agreement (the
"Letter Agreement") dated August 21, 1995 and in connection with a certain
Agreement and Plan of Merger by and among Foilmark, Foilmark Acquisition
Corporation and Holopak Technologies, Inc. dated as of November 17, 1998 (the
"Merger Agreement"), and for other good and valuable consideration, the
undersigned hereby agree as follows:
1. That, effective as of the effective date of the Merger Agreement (the
"Effective Date"), all rights and obligations under the Section 10.3
of the Asset Purchase Agreement and the Letter Agreement with respect
to the election and service of either or both of Harris or Meredith
shall terminate, including but not limited to, the right of Meredith
and Harris to nominate either of themselves to serve as a member of
the Board of Directors of Foilmark.
2. That Section 10.3 of the Asset Purchase Agreement and the Letter
Agreement shall terminate and be of no further force and effect as of
the Effective Date.
This Termination Agreement may be signed in counterparts, each of which
shall be considered an original and all of which together shall constitute one
agreement. In witness whereof, the undersigned have executed and delivered this
Termination Agreement on this effective day of April 12, 1999.
FOILMARK, INC.
By: /s/
------------------------------------
Frank J. Olsen, Jr.
President and Chief Executive
Officer
FOILMARK MANUFACTURING CORP.
By: /s/
------------------------------------
Frank J. Olsen, Jr.
President
/s/
---------------------------------------
Steven A. Meredith
/s/
---------------------------------------
Kenneth R. Harris
<PAGE>
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Form 8-K of Foilmark,
Inc. of our report dated June 26, 1998, appearing in the Annual Report
on Form 10-K of HoloPak Technologies, Inc. for the year ended March 31, 1998.
/s/ Deloitte & Touche LLP
Parsippany, New Jersey
May 3, 1999
<PAGE>
Exhibit 99.1
FOILMARK, INC. ANNOUNCES COMPLETION OF MERGER
NEWBURYPORT, MA, April 23, 1999/PRNewswire/--Foilmark, Inc., a manufacturer
of hot-stamp foils, holographic films and image transfer systems (Nasdaq
National Market System: FLMK), today announced that the merger of HoloPak
Technologies, Inc. (Nasdaq National Market System: HOLO), a specialty
manufacturer of holographic images, hot-stamp foils and metallized paper with
and into a wholly-owned subsidiary of Foilmark, had been completed, following
approval by the stockholders of each corporation.
Upon the effectiveness of the merger on April 23, 1999, each issued and
outstanding share of the common stock of HoloPak, par value $.01 per share, was
converted into the right to receive (i) 1.11 shares of Foilmark Common Stock and
(ii) $1.42 in cash.
Foilmark develops, manufactures and distributes globally holographic images
and films, hot stamp foils, diffractive films and metallized paper used to
decorate or label a wide variety of products including promotional materials,
greeting cards, paperback book covers, cosmetics, appliances and sporting goods,
and holographic films used by the graphic arts, plastics and packaging
industries to decorate or enhance products and packaging. It also produces image
transfer equipment and printing supplies.
Certain statements in this news release are forward-looking statements.
Foilmark's ability to attain a more competitive market position is subject to
various risks and uncertainties that could cause actual results to differ
materially.
CONTACTS:
FOILMARK, INC.
Frank J. Olsen, Jr., CEO and President
(978) 462-7300
Philip Leibel, CFO
(978) 465-0618
