# **Exhibit 10.4**

 

# **RESTATED AND AMENDEDEMPLOYMENT AGREEMENT**

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THIS RESTATED AND AMENDEDEMPLOYMENT AGREEMENT (“Agreement”) is made as of April 28, 2003, by andbetween PERRY-JUDD’S INCORPORATED, a Delaware corporation (the “Corporation”),and CRAIG A. HUTCHISON, an individual (the “Executive”).

 

# RECITALS

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WHEREAS, the Corporationis engaged in business as a magazine and catalog full service printerthroughout the United States (the “Business”);

 

WHEREAS, the Corporationdesires to continue to employ the Executive as the president and chiefexecutive officer of the Corporation, to serve as the executive manager of theBusiness with such authority and obligations as set forth herein, and theExecutive desires to continue to provide such management services to the Corporation,on the terms and conditions set forth herein; and

 

NOW, THEREFORE, inconsideration of the mutual covenants set forth in this Agreement and othergood and valuable consideration, the receipt of which is hereby acknowledged,the Corporation and the Executive hereby agree as follows:

 

1.             Term of Employment.  The Corporation hereby employs the Executivefor an initial term of one (1) year, commencing on the date first above setforth and ending on the first anniversary thereof (the “Initial Term”), andcontinuing thereafter for successive one (1) year periods (each, a “TermExtension”); provided, however, that the Executive may terminate this Agreementas of the end of the Initial Term or any Term Extension by providing writtennotice thereof to the Corporation not less than three (3) months prior tothe end of such Initial Term or Term Extension (an “ExecutiveNon-Extension”).  The Initial Termtogether with any and all Term Extensions is referred to herein as the“Term.”  Notwithstanding the foregoing,this Agreement may be sooner terminated as provided herein.

 

2.             Duties andObligations of the Executive.

 

a.             Duties.  During the Term, the Executive shall holdthe title of “President and Chief Executive Officer” of the Corporation, shallserve as the executive manager of the Business, and as such shall haveresponsibility for and authority over the day-to-day operations and managementof the Business (subject to the supervision, control and direction of the boardof directors of the Corporation (the “Board of Directors”)).  The duties assigned to the Executivehereunder shall be consistent with the duties which would be expected of thechief executive officer of companies of like size and scope.

 

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b.             Method ofPerforming Duties.  The Executiveshall devote his full time, attention and efforts exclusively to the Businessand shall faithfully, industriously, and to the best of his ability, experienceand talents render the services required of him hereunder.  The Executive shall render such services atthe principal office of the Corporation located at Waterloo, Wisconsin, or atsuch other location as determined by the Board of Directors; provided, however,that the Executive shall travel outside of the State of Wisconsin from time totime as may be reasonably necessary for the performance of his serviceshereunder.

 

3.             Compensation.

 

a.             Salary; SeverancePay.  In consideration of theExecutive’s services to the Corporation hereunder, the Corporation shall pay tothe Executive a salary at an annual rate of Three Hundred Seventy-Six ThousandDollars ($376,000) (“Salary”).  TheSalary shall be payable semi-monthly in accordance with the standard policiesof the Corporation in existence from time to time, subject to federal, stateand local wage deductions and any other deductions required by law.  The Salary shall be subject to annual upwardadjustments in the sole discretion of the Board of Directors.

 

Except as specificallyprovided in this Section 3(a), the Executive shall not be entitled to anyseverance payment or other benefits in the event of the termination of thisAgreement.  In the event that thisAgreement is terminated pursuant to Section 4(a)(3) or 4(c) below, theExecutive shall be entitled to severance pay (“Severance Pay”) equal to theaggregate Salary which would have been payable to the Executive during theperiod commencing on the effective date of termination and ending one (1) yearthereafter, notwithstanding the expiration of the applicable Term Extension.  Any Severance Pay payable to the Executiveby the Corporation pursuant to this Section 3(a) shall be payable inaccordance with the provisions set forth above with respect to the payment ofSalary by the Corporation, and shall be subject to federal, state and localwage deductions and any other deductions required by law.  The Executive shall not be entitled to anySeverance Pay or other benefits following termination of this Agreementpursuant to an Executive Non-Extension.

 

b.             IncentiveCompensation.  As additionalconsideration for the Executive’s services hereunder, the Executive shall beentitled to participate in the Corporation’s Executive Incentive Plan (as maybe adopted and in effect from time to time).

 

c.             Benefits.                 In addition tothe other compensation payable to the Executive pursuant to thisSection 3, the Executive shall be entitled to:  (1) all employee benefits provided by the Corporation to othersenior management personnel of the Corporation; and (2) payment of monthlymembership dues incurred by the Executive in connection with the Executive’smembership at country clubs of his choice; provided, however, that theaggregate amount of such dues shall not exceed $10,000 in any twelve (12) monthperiod.

 

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d.             Reimbursement ofExpenses.  The Executive shall bereimbursed by the Corporation for all travel and out-of-pocket expensesreasonably incurred by him for the purpose of and in connection with theperformance of his services hereunder. Such reimbursement shall be made upon presentation of vouchers or otherstatements itemizing such expenses in reasonable detail consistent with theCorporation’s policies.

 

e.             Vacation. TheExecutive shall be entitled to four (4) weeks of paid vacation each year duringthe Term.

 

4.             Termination.

 

a.             Termination Notfor Cause.  This Agreement shallterminate and the obligations and covenants of the parties hereunder shall beof no further force and effect, except those obligations which shall survivethe termination of this Agreement as set forth in Section 16 below, uponthe occurrence of any of the following events:

 

(1)        Thirty (30) days afterwritten notice is delivered to the Executive in the event of the permanentdisability of the Executive (as defined hereinafter);

 

(2)        The death of theExecutive;

 

(3)        Thirty (30) days afterwritten notice of termination is delivered by the Corporation to the Executivefor any reason whatsoever, other than pursuant to Section 4(b) below orclauses (1) and (2) of this Section 4(a); or

 

(4)        Upon the expiration of thefinal Term pursuant to an Executive Non-Extension.

 

b.             Termination forCause.  This Agreement shallterminate and the obligations and covenants of the parties hereunder shall beof no further force and effect, except those obligations which shall survivethis Agreement as set forth in Section 16 below, immediately upon deliveryby the Corporation to the Executive of written notice specifying the basis fortermination in the event of the occurrence of any basis for termination forcause, as hereinafter defined.

 

c.             Termination by theExecutive for Good Cause.  Subjectto the provisions of Section 16 below, the Executive shall have the rightto terminate this Agreement for good cause, as hereinafter defined.

 

d.             Good Cause.  “Good cause” means (1) the material breachof this Agreement by the Corporation, if such breach is not cured by theCorporation within thirty (30) days after the Executive has provided writtennotice thereof to the

 

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Corporation specifyingthe nature of such breach; (2) the relocation of the Executive’s place ofemployment to a state other than Illinois, Indiana, Iowa, Michigan, Minnesota,Ohio or Wisconsin, provided such relocation is effected without the Executive’sconsent; or (3) at any time during the Term, the Executive shall fail tobe a member of the Board of Directors or the board of directors of Perry-Judd’sHoldings, Inc., a Delaware corporation (“Holdings”).

 

e.             PermanentDisability.  “Permanent disability”means the inability of the Executive to fulfill substantially all of his normalduties and responsibilities hereunder for an aggregate of one hundred eighty(180) days during any period of two hundred and forty (240) consecutive days,or an aggregate of two hundred seventy (270) days during any period of threehundred sixty-five (365) consecutive days, by reason of any physical or mentaldisability as determined by a medical doctor acceptable to the Board ofDirectors and confirmed in writing by such doctor, which confirmation shall besubmitted to the Board of Directors.

 

f.              Termination forCause.  “Termination for cause”means termination of the Executive’s employment as a result of:

 

(1)        the Executive’s willfulbreach or habitual neglect of the Executive’s material duties hereunder;

 

(2)        the Executive’s chronicalcoholism or addiction to narcotics (whether lawful or otherwise);

 

(3)        the Executive’s criminalconviction for fraud, embezzlement, misappropriation of assets, maliciousmischief, any act of moral turpitude or any felony; or

 

(4)        any other material breachof this Agreement by the Executive, which breach is described in a writtennotice from the Board of Directors specifying the nature of such breach.

 

5.             Confidential andProprietary Information.

 

a.             Definition ofConfidential and Proprietary Information. The Executive hereby acknowledges that during the Term, the Executiveshall or may make use of, acquire, create, develop or add to certainconfidential and/or proprietary information regarding the Corporation and/orthe Business (whether in existence prior to, as of or after the Effective Date,collectively, “Proprietary Information”), which Proprietary Information shallinclude, without limitation, all of the following materials and information(whether or not reduced to writing and whether or not patentable or protectedby copyright):  inventions, processes,formulae, programs, technical data, “know-how,” procedures, manuals,confidential reports and communications, marketing methods, product sales orcost information, new product ideas or improvements, research

 

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and development programs,identities or lists of suppliers, vendors or customers, financial informationof the Corporation of any nature whatsoever, or any other confidential orproprietary information relating to the Corporation and/or the Business.  The parties hereto agree that the failure ofany Proprietary Information to be marked or otherwise labelled as confidentialor proprietary information shall not affect its status as ProprietaryInformation.

 

b.             Use.  The Executive shall not, directly orindirectly, disclose, divulge, reveal, report, publish, transfer or otherwisecommunicate, or use for his own benefit or the benefit of any other person,partnership, firm, corporation or other entity, or use to the detriment of theCorporation, or misuse in any way, any Proprietary Information.  The Executive and the Corporation eachhereby stipulate that, as between them, all Proprietary Information acquired ormade, developed or conceived of in whole or in part by the Executiveconstitutes important, material and confidential and/or proprietary informationof the Corporation, constitutes unique and valuable information, and affectsthe successful conduct of the business of the Corporation and its goodwill, andthat the Corporation shall be entitled to recover its damages, in addition toany injunctive remedy available under Section 9 below, for any breach ofthis Section 5.

 

c.             Ownership.

 

(1)        In General.  The Executive hereby acknowledges and agreesthat all right, title and interest in and to any Proprietary Information shallbe and shall remain the exclusive property of the Corporation, and that anyProprietary Information which the Executive acquires from the Corporation wasreceived in confidence and as a fiduciary of the Corporation.  Without limiting the foregoing, theExecutive hereby assigns to the Corporation any and all right, title andinterest which the Executive may have in all Proprietary Information (includingwithout limitation all inventions, trade secrets, patents, copyrights and allother rights in connection therewith) made, developed or conceived of in wholeor in part by the Executive during the Term. The Executive further agrees to execute and deliver any and allinstruments, and to do all other things reasonably requested by theCorporation, both during and after the Term, in order to vest more fully in theCorporation all ownership rights in such Proprietary Information.  All equipment, notebooks, documents,memoranda, reports, files, samples, books, correspondence, lists, other writtenand graphic records, and the like, in any way relating to any ProprietaryInformation or the business of the Corporation or its activities, which theExecutive shall prepare, use, construct, observe, process, or control(collectively, “Materials”) shall be and shall remain the Corporation’sexclusive property, and the Executive hereby agrees to deliver all Materials,together with any and all copies thereof, promptly to the Corporation upon thetermination of this Agreement for any reason.

 

(2)        Work Made for Hire.  Without limiting any other provision setforth in this Agreement, if any Proprietary Information or Materials are

 

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protected by copyrightand are deemed in any way to fall within the definition of “work made forhire,” as such term is defined in 17 U.S.C. §101, or any successor provisionthereof, such work shall be considered a “work made for hire,” the copyright ofwhich shall be owned solely, completely and exclusively by theCorporation.  Without limiting any otherprovision set forth in this Agreement, if any Proprietary Information orMaterials are protected by copyright and are not considered to be included inthe categories of works covered by the “work made for hire” definitioncontained in 17 U.S.C. §101, or any successor provision thereof, such itemsshall be deemed to be assigned and transferred completely and exclusively tothe Corporation by virtue of the Executive’s execution of this Agreement.

 

6.             Non-competition.

 

a.             Restrictions.  In consideration of the retention of theExecutive as an employee of the Corporation and the benefits to be providedhereunder, and in recognition of the Executive’s overall responsibility for,and operation of, the Business throughout the United States, the Executiveshall not, directly or indirectly, engage in any business activity (as aprincipal, agent, employee, shareholder (except that the Executive may own upto five percent (5%) of the outstanding shares of a public company whose sharesare traded on a national securities exchange or listed on the NASDAQ NationalMarket or NASDAQ Small Cap Market), officer, director, partner, securityholder, creditor, consultant or otherwise) competitive with the Business(“Competitive Activity”) as follows: (i) from the date hereof until thedate of termination of this Agreement, the Executive shall not engage inCompetitive Activity anywhere in the United States; and(ii) (A) during the one (1) year period after the date of terminationof this Agreement pursuant to Section 1 or 4(b) above or (B) for so longas the Severance Pay as described in Section 3 above shall be payableafter termination of this Agreement, the Executive shall not engage inCompetitive Activity in any of the following states and jurisdictions in whichthe Corporation is then engaged in business, except as previously approved bythe Board of Directors in writing: California, Colorado, District of Columbia,Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, New York, Ohio,Texas and Wisconsin.  During the Termand the periods described in clause (ii) above, the Executive shall not,directly or indirectly, or by action in concert with others, induce orinfluence, or seek to induce or influence, any person who is engaged by theCorporation (as an agent, employee, consultant, or otherwise) to terminate suchengagement with the Corporation; provided, however, that nothing contained in thisAgreement shall be deemed to limit the authority of the Executive to terminateemployees of the Corporation in connection with the exercise of the Executive’sduties under this Agreement. Notwithstanding any provision to the contrary set forth in this Agreement,the Corporation hereby acknowledges and agrees that the restrictions set forthin this Section 6 shall not apply in the event that this Agreement isterminated by the Executive for good cause in accordance with the terms setforth in Section 4(c) above.

 

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b.             Interpretation ofCovenants.  Nothing contained inthis Section 6 shall be deemed a waiver of the Executive’s obligationsunder Section 5, and in the event of any conflict or inconsistency betweenthe provisions of this Section 6 and Section 5 above, the provisionsof Section 5 shall control.

 

7.             Reasonableness ofRestrictions.  THE EXECUTIVE HASCAREFULLY READ AND CONSIDERED THE PROVISIONS OF SECTIONS 5 AND 6 HEREOF AND,HAVING DONE SO, HEREBY AGREES THAT THE RESTRICTIONS SET FORTH IN SUCH SECTIONSARE FAIR AND REASONABLE AND ARE REASONABLY REQUIRED FOR THE PROTECTION OF THEINTERESTS OF THE CORPORATION AND ITS BUSINESS.

 

8.             Indemnification.  The Corporation shall indemnify, defend andhold harmless the Executive from and against all losses, liabilities, damages,costs and expenses of any nature whatsoever (including, without limitation,reasonable attorneys’ fees and costs related thereto) which the Executive maysuffer or incur in any threatened, pending or completed action, suit orproceeding by reason of the performance of his services under this Agreement oras a member of the Board of Directors if he acted in good faith and in a mannerhe reasonably believed to be in or not opposed to the best interests of theCorporation, and, with respect to any criminal action or proceeding, had noreason to believe his conduct was unlawful; except that no indemnificationshall be made in respect of any claim, issue or matter as to which theExecutive shall have been adjudged to be liable to the Corporation unless andonly to the extent that a court of applicable jurisdiction shall havedetermined that despite the adjudication of liability but in view of all of thecircumstances of the case, the Executive is fairly and reasonably entitled toindemnity for such expenses which such court shall determine to be proper.

 

9.             Injunctive Relief.

 

a.             RegardingEmployment Duties in General.  Theparties hereby acknowledge and agree that the services to be performed underthe terms of this Agreement are of a special, unique, unusual, extraordinaryand intellectual character that gives them a peculiar value, the loss of whichcannot be reasonably or adequately compensated in damages in an action at law.  The parties therefore expressly agree thatthe Corporation, in addition to any other rights or remedies that theCorporation may possess, shall be entitled to injunctive and other equitablerelief (other than an injunction to compel the Executive to perform for the Corporationthe services required under this Agreement) to prevent or remedy a breach ofthis Agreement by the Executive.

 

b.             RegardingConfidentiality and Non-competition. The Executive acknowledges and agrees that the Corporation shall sufferirreparable harm in the event that the Executive breaches any of hisobligations under Sections 5 and 6 hereof, and that monetary damages shall beinadequate to compensate the Corporation for any such breach.  Accordingly, the Executive agrees that inthe event of any breach or threatened breach by the Executive of any of theprovisions of Sections 5 and 6 hereof,

 

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the Corporation shall beentitled to a temporary restraining order, preliminary injunction and permanentinjunction in order to prevent or restrain any such breach or threatened breachby the Executive, or by any or all of the Executive’s agents, representativesor other persons directly or indirectly acting for, on behalf of or with theExecutive.

 

c.             No Limitation ofRemedies.  Notwithstanding theprovisions set forth in Sections 9(a) and 9(b) above or any other provisioncontained in this Agreement, the parties hereby agree that no remedy conferredby any of the specific provisions of this Agreement, including, withoutlimitation, this Section 9, is intended to be exclusive of any otherremedy, and each and every remedy shall be cumulative and shall be in additionto every other remedy given hereunder or now or hereafter existing at law or inequity or by statute or otherwise.

 

10.           Successors andAssigns.  This Agreement shall bebinding on and inure to the benefit of the parties hereto and their respectivesuccessors, assigns, heirs and legal representatives.  Notwithstanding the foregoing, neither party shall assign thisAgreement without the prior written consent of the other party.

 

11.           Governing Law.  This Agreement shall be construed under andin accordance with, and governed in all respects by, the laws of the State ofWisconsin (without giving effect to principles of conflicts of law).

 

12.           Waiver.  The failure of any party to insist on strictcompliance with any of the terms, covenants, or conditions of this Agreement byany other party shall not be deemed a waiver of that term, covenant orcondition, nor shall any waiver or relinquishment of any right or power at anyone time or times be deemed a waiver or relinquishment of that right or powerfor all or any other times.

 

13.           Notices.  Any notice or other communication requiredor permitted hereunder shall be in writing, and shall be deemed to have beengiven five (5) days after it is placed in the United States mail, registered orcertified, postage prepaid, return receipt requested, or upon receipt ifpersonally delivered, or the next business day if transmitted by telefacsimile(which telefacsimile shall be followed by a copy thereof placed in the UnitedStates mail, registered or certified, postage prepaid, return receiptrequested, no later than the next business day after transmission thereof), addressedto the parties as follows:

 
| To the Executive:         |
|---------------------------|
|                      |
| Craig A. Hutchison        |
| 18 Chautauqua Trail       |
| Madison, Wisconsin  53719 |
|                      |
| To the Corporation:       |

 

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| Perry-Judd’s  Incorporated   |
|-----------------------------------|
| 575 West Madison                  |
| P.O. Box 97                       |
| Waterloo, Wisconsin  53594-0097   |
| Attention: Chairman of  the Board |
|                              |
| With a copy to:                   |
|                              |
| Robert E. Milhous                 |
| 791 Park of Commerce  Drive       |
| Boca Raton, Florida  33487        |

 

Any party may change itsabove address for notices upon written notice to the other party in accordancewith this Section.

 

14.           Integration.  This Agreement constitutes the entireagreement of the parties hereto with respect to the retention of the Executiveby the Corporation, and supersedes any and all prior and contemporaneousagreements, whether oral or in writing, between the parties hereto with respectto the subject matter hereof.

 

15.           Amendments.  This Agreement may not be amended, modified,altered or supplemented except by written agreement of the parties hereto.

 

16.           Survival of CertainRights and Obligations.  The rightsand obligations of the parties hereto pursuant to Sections 3, 5, 6, 8 and 9hereof, including the obligation of the Corporation to pay any and allcompensation described under Section 3 above earned, or to reimburse the Executivefor expenses described in Section 3(d), as of the effective date oftermination of this Agreement, shall survive the termination of this Agreement.

 

17.           Severability.  If any provision of this Agreement is heldby a court of competent jurisdiction to be invalid, void or unenforceable, theremaining provisions shall nevertheless continue in full force without beingimpaired or invalidated in any way.  Ifany court of competent jurisdiction holds any provision of this Agreement to beinvalid, void or unenforceable with respect to any state, region or locality,such provision shall nevertheless continue in full force and effect in allother states, regions and localities to which such provision applies.

 

18.           Headings.  The section headings contained in thisAgreement are for reference purposes only and shall not affect in any way themeaning or interpretation of this Agreement.

 

19.           Counterparts.  This Agreement may be executed in one ormore counterparts, each of which shall be deemed an original, but all of whichtogether shall constitute one and the same instrument.

 

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20.           Attorneys’ Fees.  If any action at law or in equity isnecessary to enforce the terms of this Agreement, the prevailing party shall beentitled to recover all reasonable attorneys’ fees, costs and necessarydisbursements, in addition to any other relief to which such party may beentitled.

 

IN WITNESS WHEREOF, eachof the parties hereto has duly executed this Agreement as of the date firstabove written.

 
|   | PERRY-JUDD’S  INCORPORATED |
|--------|---------------------------------|
|   | a Delaware corporation          |
|   |                            |
|   |                            |
|   | By:                             |   |
|   |                            | Name: |   |
|   |                            | Title: |   |
|   |                            |
|   |                            |
|   |                            |
|   | CRAIG A. HUTCHISON              |
|        |                                 |  |  |  |

 

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