Exhibit 10.1
CHANGE OF CONTROL AND SEVERANCE AGREEMENT
AGREEMENT by and between NASHUA CORPORATION, a Massachusetts corporation (the
"Company") and Donna J. DiGiovine (the "Executive"), dated as of the 5th day of
January, 2005.
RECITALS:
WHEREAS, the Board of Directors of the Company (the "Board"), has determined
that it is in the best interests of the Company and its shareholders to assure
that the Company will have the continued dedication of the Executive as
President of the Company's Toner Products ("Toner") and Coated Paper ("Coated")
divisions, notwithstanding the possibility, threat or occurrence of a Change of
Control (as defined below) of the Company or other reasons of uncertainty;
WHEREAS, the Board believes it is imperative to diminish the inevitable
distraction of the Executive by virtue of the personal uncertainties and risks
created by a pending or threatened Change of Control and business concerns and
to encourage the Executive's full attention and dedication to the Company;
WHEREAS, the Board is implementing a value creation incentive plan to provide
the Executive and other members of management of the Company with additional
equity incentives;
WHEREAS, the Company and the Executive are parties to a Change of Control and
Severance Agreement dated as of February 25, 2000 (the "Prior Severance
Agreement");
WHEREAS, the parties wish to terminate the Prior Severance Agreement and replace
it with this Agreement; and
WHEREAS, in order to accomplish these objectives, the Board believes it is in
the best interests of the Company to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. CERTAIN DEFINITIONS.
(a) The "Effective Date" shall be the first date during the "Change of
Control Period" (as defined in Section 1(b)) on which a Change of
Control occurs. Anything in this Agreement to the contrary
notwithstanding, if the Executive's employment with the Company is
terminated or the Executive ceases to be an officer of the Company
prior to the date on which a Change of Control occurs, and it is
reasonably demonstrated that such termination of employment (1) was
at the request of a third party who has taken steps reasonably
calculated to effect the Change of Control or (2) otherwise arose in
connection with or anticipation of the Change of Control, then for
all purposes of this Agreement the "Effective Date" shall mean the
date immediately prior to the date of such termination of
employment.
(b) The "Change of Control Period" is the period commencing on the date
hereof and
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ending on the third anniversary of such date; provided, however,
that commencing on such third anniversary, and on each annual
anniversary of such date (such date and each annual anniversary
thereof is hereinafter referred to as the "Renewal Date"), the
Change of Control Period shall be automatically extended so as to
terminate one year from such Renewal Date, unless at least 60 days
prior to the Renewal Date the Company shall give notice to the
Executive that the Change of Control Period shall not be so
extended.
(c) "Net Sale Price" shall mean the aggregate consideration paid for the
Coated or Toner divisions, as the case may be. In the case of an
asset sale, Net Sale Price means the aggregate consideration paid
for the Coated or Toner divisions, as the case may be, plus assumed
bank debt, but shall exclude assumed payables or other liabilities
incurred in the ordinary course. In the case of a stock sale, merger
or other business combination, Net Sale Price means the aggregate
consideration paid. If any portion of the Net Sale Price is subject
to contingencies or will be paid in an earn-out payment (other than
amounts held in escrow to secure indemnification obligations
relating to the transaction), the bonus with respect to such portion
of the Net Sale Price shall be earned and paid upon the distribution
of the payment subject to such contingencies or the earn-out
payment, as the case may be, to the Company. The bonus shall not be
adjusted for, nor shall payment of any portion of the bonus be
delayed for, any portion of the Net Sale Price that is held in
escrow to secure indemnification obligations relating to the
transaction. Regardless of the form of transaction, value of real
estate shall not be included in Net Sale Price, except in the event
of liquidation.
2. CHANGE OF CONTROL. For the purpose of this Agreement, a "Change of
Control" shall mean:
(a) The acquisition, other than from the Company, by any individual,
entity or group (within the meaning of Section 13(d)(3) or 14(d)(2)
of the Securities Exchange Act of l934, as amended (the "Exchange
Act")) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) (a "Person") of 50% or more of
either (i) the then outstanding shares of common stock of the
Company (the "Outstanding Company Common Stock") or (ii) the
combined voting power of the then outstanding voting securities of
the Company entitled to vote generally in the election of directors
(the "Company Voting Securities"), provided, however, that any
acquisition by (x) the Company or any of its subsidiaries, or any
employee benefit plan (or related trust) sponsored or maintained by
the Company or any of its subsidiaries, or (y) any corporation with
respect to which, following such acquisition, more than 60% of,
respectively, the then outstanding shares of common stock of such
corporation and the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in
the election of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Company Voting Securities
immediately prior to such acquisition in substantially the same
proportion as their ownership, immediately prior to such
acquisition, of the Outstanding Company Common Stock and Company
Voting Securities, as the case may be, or (z) Gabelli Funds, LLC,
GAMCO Investors, Inc., Gabelli Advisers, Inc., MJG Associates, Inc.,
Gabelli Group Capital Partners, Inc., Gabelli Asset Management Inc.,
Marc J. Gabelli
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and/or Mario J. Gabelli and/or any affiliate of any of the
foregoing, in the case of each of such clauses (x), (y) and (z),
shall not constitute a Change of Control; or
(b) Individuals who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a
majority of the Board, provided that any individual becoming a
director subsequent to the date hereof whose election or nomination
for election by the Company's shareholders, was approved by a vote
of at least a majority of the directors then comprising the
Incumbent Board shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this purpose, any
such individual whose initial assumption of office is in connection
with an actual or threatened election contest relating to the
election of the Directors of the Company (as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the Exchange Act);
or
(c) Consummation by the Company of a reorganization, merger or
consolidation (a "Business Combination"), in each case, with respect
to which all or substantially all of the individuals and entities
who were the respective beneficial owners of the Outstanding Company
Common Stock and Company Voting Securities immediately prior to such
Business Combination do not, following such Business Combination,
beneficially own, directly or indirectly, more than 60% of,
respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from Business Combination in
substantially the same proportion as their ownership immediately
prior to such Business Combination of the Outstanding Company Common
Stock and Company Voting Securities, as the case may be; or
(d) (i) a complete liquidation or dissolution of the Company or of (ii)
sale or other disposition of all or substantially all of the assets
of the Company other than to a corporation with respect to which,
following such sale or disposition, more than 60% of, respectively,
the then outstanding shares of common stock and the combined voting
power of the then outstanding voting securities entitled to vote
generally in the election of directors is then owned beneficially,
directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Stock and Company
Voting Securities immediately prior to such sale or disposition in
substantially the same proportion as their ownership of the
Outstanding Company Common Stock and Company Voting Securities, as
the case may be, immediately prior to such sale or disposition.
3. EMPLOYMENT PERIOD. The Company hereby agrees to continue the Executive in
its employ, and the Executive hereby agrees to remain in the employ of the
Company, for the period commencing on the Effective Date and ending on the
first anniversary of such date (the "Employment Period").
4. TERMS OF EMPLOYMENT.
(a) Position and Duties.
(i) During the Employment Period, (A) the Executive's position
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(including status, offices, titles and reporting
requirements), authority, duties and responsibilities shall be
at least commensurate in all material respects with those
held, exercised and assigned at any time during the 90-day
period immediately preceding the Effective Date and (B) the
Executive's services shall be performed at the location where
the Executive was employed immediately preceding the Effective
Date or any office or location less than 35 miles from such
location.
(ii) During the Employment Period, the Executive agrees to devote
her reasonable full time and attention during normal business
hours to the business and affairs of the Company and, to the
extent necessary to discharge the responsibilities assigned to
the Executive hereunder, to use the Executive's best efforts
to perform faithfully and efficiently such responsibilities.
During the Employment Period it shall not be a violation of
this Agreement for the Executive to (A) serve on civic or
charitable boards or committees, (B) serve on corporate boards
or committees other than the Company's to the extent approved
by the Company's Board, (C) deliver lectures, fulfill speaking
engagements or teach at educational institutions and (D)
manage personal investments, so long as such activities do not
interfere with the performance of the Executive's
responsibilities as an employee of the Company in accordance
with this Agreement. It is expressly understood and agreed
that to the extent that any such activities have been
conducted by the Executive prior to the Effective Date, the
continued conduct of such activities (or the conduct of
activities similar in nature and scope thereto) subsequent to
the Effective Date shall not thereafter be deemed to interfere
with the performance of the Executive's responsibilities to
the Company.
(b) Compensation.
(i) Base Salary. During the Employment Period, the Executive shall
receive an annual base salary ("Annual Base Salary"), which
shall be paid at a monthly rate, at least equal to twelve
times the current monthly base salary being paid to the
Executive by the Company and its affiliated companies as of
the date of this Agreement. During the Employment Period, the
Annual Base Salary shall be reviewed at least annually and may
be increased at any time and from time to time in the sole
discretion of the Board. Any increase in Annual Base Salary
shall not serve to limit or reduce any other obligation to the
Executive under this Agreement. Annual Base Salary shall not
be reduced after any such increase and the term Annual Base
Salary as utilized in this Agreement shall refer to Annual
Base Salary as so increased. As used in this Agreement, the
term "affiliated companies" includes any company controlled
by, controlling or under common control with the Company.
(ii) Annual Bonus. In addition to Annual Base Salary, the Executive
may be awarded, for each fiscal year beginning or ending
during the
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Employment Period, an annual bonus (the "Annual Bonus") in
cash as determined by the Board of Directors, in its sole
discretion.
(iii) Incentive, Savings and Retirement Plans. In addition to Annual
Base Salary and Annual Bonus payable as hereinabove provided,
the Executive shall be entitled to participate during the
Employment Period in all incentive, savings and retirement
plans, practices, policies and programs applicable generally
to other peer executives of the Company and its affiliated
companies.
(iv) Welfare Benefit Plans. During the Employment Period, the
Executive and/or the Executive's family, as the case may be,
shall be eligible for participation in and shall receive all
benefits under welfare benefit plans, practices, policies and
programs provided by the Company and its affiliated companies
(including, without limitation, medical, prescription, dental,
disability, salary continuance, employee life, group life,
accidental death and travel accident insurance plans and
programs) to the extent generally applicable to other peer
executives of the Company and its affiliated companies.
(v) Expenses. During the Employment Period, the Executive shall be
entitled to receive reimbursement for all reasonable
documented expenses incurred by the Executive in accordance
with the policies, practices and procedures of the Company and
its affiliated companies.
(vi) Fringe Benefits. During the Employment Period, the Executive
shall be entitled to fringe benefits in accordance with the
plans, practices, programs and policies of the Company and its
affiliated companies in effect.
(vii) Vacation. During the Employment Period, the Executive shall be
entitled to paid vacation in accordance with the plans,
policies, programs and practices of the Company and its
affiliated companies as in effect.
5. TERMINATION OF EMPLOYMENT.
(a) Death or Disability. The Executive's employment shall terminate
automatically upon the Executive's death during the Employment
Period. If the Company determines in good faith that the Disability
of the Executive has occurred during the Employment Period (pursuant
to the definition of Disability set forth below), it may give to the
Executive written notice in accordance with Section 16(b) of this
Agreement of its intention to terminate the Executive's employment.
In such event, the Executive's employment with the Company shall
terminate effective on the 30th day after receipt of such notice by
the Executive (the "Disability Effective Date"), provided that,
within the 30 days after such receipt, the Executive shall not have
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returned to full-time performance of the Executive's duties. For
purposes of this Agreement, "Disability" means the absence of the
Executive from the Executive's duties with the Company on a
full-time basis for 120 consecutive business days as a result of
incapacity due to mental or physical illness determined by a
physician selected by the Company or its insurers and acceptable to
the Executive or Executive's legal representative (such agreement as
to acceptability not to be withheld unreasonably).
(b) Cause. The Company may terminate the Executive's employment during
the Employment Period for Cause. For purposes of this Agreement,
"Cause" means (i) the Executive's continued documented failure to
perform her reasonably assigned duties (other than any such failure
resulting from incapacity due to physical or mental illness or any
failure after the Executive gives notice of termination for Good
Reason), which failure is not cured within 60 days after written
notice for substantial performance is received by the Executive from
the Board which identifies the manner in which the Board believes
the Executive has not substantially performed the Executive's
duties, (ii) the Executive being convicted of a felony, or (iii) the
Executive's engagement in illegal conduct or gross misconduct
injurious to the Company.
(c) Good Reason. The Executive's employment may be terminated during the
Employment Period by the Executive for Good Reason. For purposes of
this Agreement, "Good Reason" means:
(i) the assignment to the Executive of any duties inconsistent in
any material respect with the Executive's position (including
offices, titles and reporting requirements), authority or
responsibilities as contemplated by Section 4(a) of this
Agreement, or any other action by the Company which results in
a material diminution in such position, authority or
responsibilities;
(ii) a reduction in the Executive's Annual Base Salary as in effect
on the date of this Agreement or as the same was or may be
increased thereafter from time to time;
(iii) the Company's requiring the Executive to be based at any
office or location other than that described in Section
4(a)(i)(B) hereof;
(iv) any purported termination by the Company of the Executive's
employment otherwise than as expressly permitted by this
Agreement; or
(v) any failure by the Company to comply with and satisfy Section
15(c) of this Agreement.
(d) Notice of Termination. Any termination by the Company for Cause or
by the Executive for Good Reason shall be communicated by Notice of
Termination to the other party hereto given in accordance with
Section 16(b) of this Agreement. For purposes of this Agreement, a
"Notice of Termination" means a written notice which (i) indicates
the specific termination provision in this Agreement relied upon,
(ii) to
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the extent applicable sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated and (iii) if
the Date of Termination (as defined below) is other than the date of
receipt of such notice, specifies the termination date (which date
shall be not more than fifteen days after the giving of such
notice).
(e) Date of Termination. "Date of Termination" means the date of receipt
of the Notice of Termination or any later date specified therein, as
the case may be; provided, however, that (i) if the Executive's
employment is terminated by the Company other than for Cause or
Disability, the Date of Termination shall be the date on which the
Company notifies the Executive of such termination and (ii) if the
Executive's employment is terminated by reason of death or
Disability, the Date of Termination shall be the date of death of
the Executive or the Disability Effective Date, as the case may be.
6. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(a) Death. If the Executive's employment is terminated by reason of the
Executive's death during the Employment Period, this Agreement shall
terminate without further obligations to the Executive's legal
representatives under this Agreement, other than the following
obligations: (i) payment of the Executive's Annual Base Salary
through the Date of Termination to the extent not theretofor paid,
and (ii) payment of any accrued vacation pay not yet paid by the
Company (the amounts described in paragraphs (i) and (ii) are
hereafter referred to as "Accrued Obligations"). All Accrued
Obligations shall be paid to the Executive's estate or beneficiary,
as applicable, in a lump sum in cash within 30 days of the Date of
Termination. In addition to the Accrued Obligations, in the event
(A) the Board subsequently approves the payment of an annual bonus
to members of management for the fiscal year in which the Date of
Termination occurred and (B) the Executive was employed at least one
quarter of such fiscal year, then the Executive's estate or
beneficiary shall be entitled to receive an additional payment equal
to the bonus that such Executive would have received for such fiscal
year (as determined by the Board) multiplied by a fraction, the
numerator of which is the number of days in such fiscal year for
which the Executive was actually employed and the denominator is 365
days.
(b) Disability. If the Executive's employment is terminated by reason of
the Executive's Disability during the Employment Period, this
Agreement shall terminate without further obligations to the
Executive, other than for Accrued Obligations. All Accrued
Obligations shall be paid to the Executive in a lump sum in cash
within 30 days of the Date of Termination. In addition to the
Accrued Obligations, in the event (A) the Board subsequently
approves the payment of an annual bonus to members of management for
the fiscal year in which the Date of Termination occurred and (B)
the Executive was employed at least one quarter of such fiscal year,
then the Executive shall be entitled to receive an additional
payment equal to the bonus that such Executive would have received
for such fiscal year (as determined by the Board) multiplied by a
fraction, the numerator of which is the number of days in such
fiscal year for which the Executive was actually employed and the
denominator is 365 days.
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(c) Cause; Other than for Good Reason. If the Executive's employment
shall be terminated for Cause during the Employment Period, this
Agreement shall terminate without further obligations to the
Executive other than the obligation to pay to the Executive Annual
Base Salary through the Date of Termination plus the amount of any
compensation previously deferred by the Executive, in each case to
the extent theretofore unpaid. If the Executive terminates
employment during the Employment Period other than for Good Reason,
this Agreement shall terminate without further obligations to the
Executive, other than for Accrued Obligations. In such case, all
Accrued Obligations shall be paid to the Executive in a lump sum in
cash within 30 days of the Date of Termination.
(d) Good Reason; Other Than for Cause or Disability. If, during the
Employment Period, the Company shall terminate the Executive's
employment other than for Cause or Disability, or the Executive
shall terminate employment during the Employment Period for Good
Reason, the Company shall pay to the Executive in a lump sum in cash
within 60 days after the Date of Termination, and subject to
receiving an executed irrevocable Release as described in Section
12, the aggregate of the following amounts:
A. all Accrued Obligations; and
B. the product of (x) three and (y) the sum of (i) Annual Base
Salary and (ii) the Annual Bonus paid or payable (including
any bonus or portion thereof which has been earned but
deferred) for the most recently completed fiscal year (the
"Severance Payments");
provided, however, that the calculation of such Severance Payments
shall be reduced from three to 1.5 in equal monthly amounts (i.e.,
.125 per month) over the twelve-month period following the date
hereof until the product is reduced from three to 1.5 such that on
and after twelve months from the date of this Agreement the number
"three" in clause (x) of Section 6(d)(B) above shall read "1.5."
In addition, for the remainder of the Employment Period (if the
termination took place during the Employment Period under this
Section 6), the Company shall continue benefits to the Executive
and/or the Executive's family at least equal to those which would
have been provided to them in accordance with the plans, programs,
practices and policies described in Section 4(b)(iv) of this
Agreement if the Executive's employment had not been terminated in
accordance with the most favorable plans, practices, programs or
policies of the Company and its affiliated companies applicable
generally to other peer executives and their families during the
90-day period immediately preceding the Effective Date or, if more
favorable to the Executive, as in effect generally at any time
thereafter with respect to other peer executives of the Company and
its affiliated companies and their families. For purposes of
determining eligibility of the Executive for retiree benefits
pursuant to such plans, practices, programs and policies, the
Executive shall be considered to have remained employed until the
end of the Employment Period and to have retired on the last day of
such period.
Notwithstanding the foregoing, if a Change of Control or other event
shall have
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occurred before the Date of Termination that would result in the
Executive becoming entitled to receive payments under this Agreement
or any other arrangement that would be "parachute payments", as
defined in Section 280G of the Internal Revenue Code of 1986, as
amended from time to time (the "Code"), the Company shall not be
obligated to make such payments to the Executive to the extent
necessary to eliminate any "excess parachute payments" as defined in
said Section 280G; provided, however, that if the Executive would be
better off by at least $25,000 on an after-tax basis by receiving
the full amount of the parachute payments as opposed to the cut back
amount (notwithstanding a 20% excise tax) the Executive shall
receive the full amount of the parachute payments.
(e) Other Benefits. To the extent not previously paid or provided, the
Company shall timely pay or provide to the Executive any other
amounts or benefits required to be paid or provided or which the
Executive is eligible to receive following the Executive's
termination of employment under any plan, program, policy, practice,
contract or agreement of the Company and its affiliated companies
(the "Other Benefits"). The Other Benefits shall be payable in
accordance with the terms of the plan, program, policy, practice,
contract or agreement under which such benefits have accrued.
7. DIVISIONAL SALE AND CHANGE IN CONTROL BONUSES.
(a) Division Sale Bonus. Upon the consummation of the sale or
liquidation of the Toner or Coated divisions, the Executive shall
receive a bonus payment equal to 1% of the Net Sale Price of Coated
or 3% of the Net Sale Price of Toner, as applicable, provided that
the maximum bonus that shall be payable upon the sale of Toner shall
be $400,000 and the maximum bonus payable upon the sale of Coated
shall be $400,000. The bonus will be earned and payable only upon
the consummation of the sale or liquidation of the applicable
division.
(b) Appraisal. Any controversy or claim arising out of the determination
of the Net Sale Price shall be settled by a qualified appraisal
firm. The Company and the Executive shall each select one appraisal
firm to handle the controversy or claim. In the event that the
Company and the Executive are unable to agree on an appraisal firm,
the Company and the Executive shall each select an appraisal firm,
and the two appraisal firms shall together select a third appraisal
firm to conduct the appraisal. The appraisal shall be conducted
within ten days after the appointment of the appraisal firm. The
Company shall bear the costs and expenses of the appraisal firm
incurred in connection with such appraisal. The appraisal shall be
final and binding on the parties.
(c) Change of Control Bonus. If there is a Change of Control of the
Company prior to the consummation of the sale of either Toner or
Coated, the Executive will be paid a change of control bonus as set
forth below. The amount of the bonus to be paid upon a Change of
Control shall be based on the fair market value, per share, of the
consideration received by the Company's stockholders in connection
with the Change in Control. If the fair market value, per share, of
the consideration received by the Company's stockholders in
connection with the Change in Control is:
A. at least $13.00, but less than $14.00, the bonus shall be
$410,000;
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B. at least $14.00, but less than $15.00, the bonus shall be
$451,000; or
C. $15.00 or greater, the bonus shall be $496,000.
No bonus shall be paid under this clause (c) if the fair market
value, per share, of the consideration received by the Company's
stockholders in connection with the Change in Control is less than $13.00.
If only Toner or only Coated is sold prior to a Change of Control of the
Company, the amount of the bonus payable under this clause (c) upon a
Change of Control would be reduced by the amount of any bonus previously
paid pursuant to clause (a) above with respect to such prior sale. The per
share amounts set forth herein are subject to adjustment for stock splits,
stock dividends, recapitalizations and similar events.
8. SEVERANCE BENEFITS. Notwithstanding anything contained in this Agreement
to the contrary, if, before or after the Employment Period, the
Executive's employment is terminated by the Company for reason other than
for Cause, the Company shall pay to the Executive one year's salary
continuation and continue medical and dental benefits during such
continuation period. In the event the Executive's employment is terminated
prior to the consummation of the sale of both Coated and Toner, the
Executive will continue to be eligible for the division sale bonus amount
pursuant to Section 7(a) if the consummation of the sale of either Toner
or Coated is closed within six months of the date of the last day of her
actual employment with the Company.
9. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent or
limit the Executive's continuing or future participation in any benefit,
bonus, incentive or other plans, programs, policies or practices, provided
by the Company or any of its affiliated companies and for which the
Executive may qualify, nor shall anything herein limit or otherwise affect
such rights as the Executive may have under any other agreements with the
Company or any of its affiliated companies. Amounts which are vested
benefits or which the Executive is otherwise entitled to receive under any
plan, policy, practice or program of the Company or any of its affiliated
companies at or subsequent to the Date of Termination shall be payable in
accordance with such plan, policy, practice or program except as
explicitly modified by this Agreement.
10. FULL SETTLEMENT. The Company's obligation to make the payments provided
for in this Agreement and otherwise to perform its obligations hereunder
shall not be affected by any set-off, counterclaim, recoupment, defense or
other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek
other employment or take any other action by way of mitigation of the
amounts payable to the Executive under any of the provisions of this
Agreement. The Company agrees to pay, to the full extent permitted by law,
all legal fees and expenses which the Executive may reasonably incur as a
result of any contest (but only in the event the Executive is successful
on the merits of such contest) by the Company, the Executive or others of
the validity or enforceability of, or liability under, any provision of
this Agreement or any guarantee of performance thereof, plus in each case
interest at the applicable Federal rate provided for in Section 7872(f)(2)
of the Internal Revenue Code of l986, as amended (the "Code").
11. OTHER AGREEMENTS. The parties agree that this Agreement supersedes and
replaces the Prior Severance Agreement and any and all other agreements,
policies, understandings or letters (including but not limited to
employment agreements, severance agreements and job abolishment policies)
between the parties related to the subject matter hereof.
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12. RELEASE. Prior to receipt of the payment described in Sections 6(d), 7 or
8, the Executive shall execute and deliver a Release to the Company as
follows:
The Executive hereby fully, forever, irrevocably and
unconditionally releases, remises and discharges the Company,
its officers, directors, stockholders, corporate affiliates,
agents and employees from any and all claims, charges,
complaints, demands, actions, causes of action, suits, rights,
debts, sums of money, costs, accounts, reckonings, covenants,
contracts, agreements, promises, doings, omissions, damages,
executions, obligations, liabilities and expenses (including
attorneys' fees and costs), of every kind and nature which he
ever had or now has against the Company, its officers,
directors, stockholders, corporate affiliates, agents and
employees, including, but not limited to, all claims arising
out of his employment, all employment discrimination claims
under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
Section 2000e et seq., the Age Discrimination in Employment
Act, 29 U.S.C., Section 621 et seq., the Americans With
Disabilities Act, 42 U.S.C., Section 12101 et seq., the New
Hampshire Law Against Discrimination, N.H. Rev. Stat. Ann.
Section 354-A:1 et seq. and similar state antidiscrimination
laws, damages arising out of all employment discrimination
claims, wrongful discharge claims or other common law claims
and damages, provided, however, that nothing herein shall
release the Company from Executive's Stock Option Agreements
or Restricted Stock Agreements.
The Release shall also contain, at a minimum, the following language:
The Executive acknowledges that he has been given twenty-one
(21) days to consider the terms of this Release and that the
Company advised him to consult with an attorney of his own
choosing prior to signing this Release. The Executive may
revoke this Release for a period of seven (7) days after the
execution of the Release and the Release shall not be
effective or enforceable until the expiration of this seven
(7) day revocation period.
At the same time, the Company shall execute and deliver a Release to the
Executive as follows:
The Company hereby fully, forever, irrevocably and unconditionally
releases, remises and discharges the Executive from any and all
claims which it ever had or now has against the Executive, other
than for intentional harmful acts.
13. CONFIDENTIAL INFORMATION. The Executive shall hold in a fiduciary capacity
for the benefit of the Company all secret or confidential information,
knowledge or data relating to the Company or any of its affiliated
companies, and their respective businesses, which shall have been obtained
by the Executive during the Executive's employment by the Company or any
of its affiliated companies and which shall not be or become public
knowledge (other than by acts by the Executive or representatives of the
Executive in violation of this Agreement). After termination of the
Executive's employment with the Company, the Executive shall not, without
the prior written consent of the Company, communicate or divulge any such
information, knowledge or data to anyone other than the Company and those
designated by it. In no event shall an asserted violation of the
provisions of this Section 13 constitute a basis for deferring or
withholding any amounts otherwise payable to the Executive under this
Agreement.
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14. ARBITRATION. Any controversy or claim arising out of this Agreement shall
be settled by binding arbitration in accordance with the commercial rules,
policies and procedures of the American Arbitration Association. Judgment
upon any award rendered by the arbitrator may be entered in any court of
law having jurisdiction thereof. Arbitration shall take place in Nashua,
New Hampshire at a mutually convenient location.
15. SUCCESSORS.
(a) This Agreement is personal to the Executive and without the prior
written consent of the Company shall not be assignable by the
Executive otherwise than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be
enforceable by the Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns.
(c) The Company will require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to
assume expressly and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to
perform it if no such succession had taken place. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined
and any successor to its business and/or assets as aforesaid which
assumes and agrees to perform this Agreement by operation of law or
otherwise.
16. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts, without reference to
principles of conflict of laws. The captions of this Agreement are
not part of the provisions hereof and shall have no force or effect.
This Agreement may not be amended or modified otherwise than by a
written agreement executed by the parties hereto or their respective
successors and legal representatives.
(b) All notices and other communications hereunder shall be in writing
and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Executive:
Donna J. DiGiovine
6 Lakeside Terrace
Westford, MA 01886
If to the Company:
Nashua Corporation
11 Trafalgar Square
Nashua, New Hampshire 03063
Attention: President
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or to such other address as either party shall have furnished to the
other in writing in accordance herewith. Notice and communications
shall be effective when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any
other provision of this Agreement.
(d) The Company may withhold from any amounts payable under this
Agreement such Federal, state or local taxes as shall be required to
be withheld pursuant to any applicable law or regulation.
(e) The Executive's failure to insist upon strict compliance with any
provision hereof or the failure to assert any right the Executive
may have hereunder, including, without limitation, the right to
terminate employment for Good Reason pursuant to Section
5(c)(i)-(v), shall not be deemed to be a waiver of such provision or
right or any other provision or right thereof.
(f) This Agreement contains the entire understanding of the Company and
the Executive with respect to the subject matter hereof. The
Executive and the Company acknowledge that the employment of the
Executive by the Company is "at will" and, prior to the Effective
Date, both the Executive's employment and this Agreement may be
terminated by either the Company or the Executive at any time. In
the event that this Agreement is terminated by the Company prior to
the Effective Date and the Executive remains employed by the
Company, the Executive would be entitled to the same severance
benefits as set forth in Section 8 of this Agreement.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand and,
pursuant to the authorization from its Board of Directors, the Company has
caused these presents to be executed in its name on its behalf, all as of the
day and year first above written.
NASHUA CORPORATION EXECUTIVE
By /s/ Andrew B. Albert By /s/ Donna J. DiGiovine
------------------------------------- -----------------------------
President and Chief Executive Officer Name: Donna J. DiGiovine
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