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EXHIBIT (c)(9)
EMPLOYMENT AND NON-DISCLOSURE AGREEMENT
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The parties agree as follows:
RECITALS
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Capitalized terms used in this Agreement have the meanings set forth in
Schedule 1.
Employee is currently employed as the Vice President and General Counsel and
Secretary of the Company.
Employee and the Company previously entered into the Prior Agreement which,
among other things, provided for certain compensation and severance benefits to
be paid to Employee following a "change of control" of the Company.
Reynolds and the Company desire that the Company employ Employee following
the Closing on the terms of this Agreement and that the Prior Agreement be
rendered null and void by this Agreement and Employee desires to be so employed
and to so terminate the Prior Agreement.
1. CONDITION PRECEDENT. This Agreement is conditioned upon and shall become
effective simultaneously with the Closing.
2. TERMINATION OF PRIOR AGREEMENT. Employee and the Company hereby agree to
terminate and render null and void the Prior Agreement.
3. EMPLOYMENT AND TERM. The Company agrees to employ Employee for the Term
on the terms and subject to the conditions set forth in this Agreement.
4. DUTIES. During the Term, Employee will serve in the capacity described in
Schedule 2 and perform the duties described in Schedule 2. Employee will
devote all of Employee's working time, attention and efforts to the business
affairs and best interests of the Company and Reynolds.
5. COMPENSATION. The compensation of Employee during the Term will be as
described in Schedule 2. All such amounts are subject to all applicable
withholdings by the Company. Salary payments shall begin on the next regular
payment date after the Closing.
6. BUSINESS EXPENSES. During the Term, Employee will be reimbursed for
reasonable business expenses incurred for the benefit of the Company under the
Company's usual practices for similarly situated employees of the Company.
Employee will account to the Company with enough detail to entitle the Company
to a
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federal income tax deduction for each of those expenses, if deductible.
7. BENEFITS. In addition to the compensation described in Section 5 and
reimbursement of business expenses under Section 6, during the Term Employee
will be entitled to the benefits then-currently available to other similarly
situated employees of the Company, as the same may change from time to time,
provided Employee meets the applicable terms and conditions of those benefits,
and, provided, further, that such benefits shall not, in the aggregate, be less
than currently provided by the Company (with the exception of stock options in
Company stock).
8. AGREEMENT NOT TO DISCLOSE.
8.1 AGREEMENT NOT TO DISCLOSE. Employee agrees to hold in strictest
confidence and not to use or disclose or make accessible to any person or
entity, without the prior written consent of an officer of Reynolds, any
Company Intellectual Property. Additionally, Employee agrees not to make any
disparaging remarks concerning Reynolds, the Company, or the transactions
contemplated by the Offer or to make any public statements concerning the
transactions contemplated by the Offer without Reynolds' prior written consent.
8.2 SEVERABILITY. If any court of competent jurisdiction determines that
any provision of this Section is invalid or unenforceable, that determination
will not affect the other provisions of this Agreement. The invalid or
unenforceable provision will be modified to the minimum degree necessary to
make the affected provision valid and enforceable, and this Agreement will then
be enforced to the fullest extent possible.
8.3 ACKNOWLEDGEMENT. Employee acknowledges that a breach of any
provision of this Section cannot be compensated adequately by damages in an
action at law, and that a breach would cause the Company irreparable harm.
Employee agrees that the Company will be entitled to temporary and permanent
injunctive and other equitable relief, provided that those equitable remedies
will be in addition to and not instead of other remedies available at law or in
equity to the Company as a result of a breach of this Section. Employee agrees
that the duration, scope and subject matter of this Section are reasonable in
light of all of the facts and circumstances. To the extent permitted by law,
Employee waives any defenses or objections related to the reasonableness of the
duration and subject matter of this Section.
9. OWNERSHIP. Employee understands that Company Intellectual Property is
owned solely by Company (or third parties) and that Employee may use Company
Intellectual Property only for the benefit of the Company as directed by an
officer of Reynolds.
10. OWNERSHIP AND DISCLOSURE OF INVENTIONS.
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10.1 OWNERSHIP. Employee agrees that all Company Inventions will belong
to the Company.
10.2 DISCLOSURE; RECORDS; RETURN OF DOCUMENTS. Employee will disclose
promptly and completely to the Company all Company Inventions. Upon the
Company's request at any time during or after the Term, Employee will
immediately return to the Company all of its documents, devices, data,
software, equipment, and other property, which are in Employee's possession,
custody or control, including any reproductions of those items.
10.3 FURTHER DOCUMENTATION. Employee will cooperate from time to time in
the transfer of the Company Inventions to the Company and will assist the
Company in prosecuting any applications, claims or rights of any kind involving
Company Inventions. This obligation applies at all times during and after the
Term.
10.4 ASSIGNMENT AND POWER OF ATTORNEY.
(a) If, under applicable law or judgment of a court of competent
jurisdiction, Company is not deemed to be the owner of any Company Inventions
upon creation, then Employee hereby irrevocably assigns and transfers to the
Company all right, title and interest to those Company Inventions, including
copyrights.
(b) Employee hereby assigns to the Company all claims of any nature
which Employee may now or hereafter have for infringement of any intellectual
property rights involving Company Inventions.
(c) Employee hereby appoints the Company and its officers and agents,
with full power of substitution, as Employee's true and lawful agent and
attorney-in-fact:
(1) to demand and receive from time to time embodiments of Company
Inventions and to give receipts and releases for and about Company Inventions;
(2) to institute and prosecute in the Employee's name or
otherwise, but at the expense and for the benefit of the Company, any and all
proceedings at law, in equity or otherwise, which the Company may deem proper
to collect, assert or enforce any claim, right or title of any kind in and to
the Company Inventions;
(3) to defend or compromise any and all actions, suits or
proceedings involving Company Inventions; and
(4) if the Company cannot for any reason, including mental or
physical incapacity, obtain Employee's signature to apply for or pursue any
intellectual property registration, to execute and file any applications and
documents and to do all other lawfully permitted acts to further the
prosecution and issuance of letters patent, copyright, trademark or other
intellectual property
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registrations, or transfers thereof with the same legal force and effect as if
executed by Employee.
The appointments made and the powers granted in this Section are coupled with
an interest and cannot be revoked by Employee for any reason.
11. TERMINATION AND CONSEQUENCES.
11.1 CAUSES OF TERMINATION. The Term may be terminated by the parties as
follows:
(a) by Employee upon 15 days' prior written notice;
(b) by Employee immediately upon written notice if either (i) the
Company commits a material breach of this Agreement and the breach is not cured
within 15 days after written notice from Employee, or (ii) in the event of a
Constructive Discharge;
(c) upon the death or disability of Employee (Employee will be deemed
disabled and Employee's employment terminated under this subsection (c) if
Employee is not able to perform Employee's required duties for a period of 30
consecutive days due to a disability and the Company reasonably determines that
it is unlikely that Employee will be able to return to full performance of
Employee's duties within 30 days after that);
(d) by the Company upon 15 days' prior written notice; or
(e) by the Company immediately upon written notice if Employee
commits a material breach of this Agreement and that breach is not cured within
15 days after written notice from the Company, or if Employee commits any act
involving willful misconduct, gross negligence, fraud, material
misrepresentation, material dishonesty, deliberate or attempted injury to the
Company or Reynolds, or refusal to follow the reasonable direction of
Employee's supervisor.
11.2 CONSEQUENCES OF TERMINATION. Upon termination under Section 11.1,
the Term will cease, and the parties' respective obligations under this
Agreement will cease, except:
(a) the Company will:
(1) remain liable to pay to Employee all amounts due or becoming
due and all benefits to be provided for the period up to the effective date of
termination under Sections 5, 6 and 7;
(2) if termination occurs under Section 11.1(b) or Section
11.1(d):
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(a) the Company shall on the effective date of termination pay
to Employee any balance of the Bonus which remains unpaid;
and
(b) the Company shall on the effective date of termination pay
to Employee an amount equal to one (1)-year's salary; and
(3) continue to be subject to the provisions of Sections 11-14,
inclusive.
(b) Employee will continue to be subject to the provisions of Sections 8-14,
inclusive.
Payment by the Company of the amounts due under Section 11.2(a) shall
constitute the sole and exclusive remedy of Employee under this Agreement or
otherwise (including any severance policy then in effect) arising out of the
employment or termination of Employee and payment of such amounts shall be
conditioned upon the execution by Employee of a binding and confidential
release of all claims against the Company and/or Reynolds reasonably
satisfactory to the Company and Reynolds.
12. GOVERNING LAW. This Agreement will be governed by the laws of the state
of Illinois with respect to contracts entered into and performed entirely
within that state.
13. MISCELLANEOUS.
13.1 NOTICES. All notices and other communications under this Agreement
will be in writing and will be deemed given and received: (a) on the date of
delivery when delivered by hand or when transmitted by a confirmed simultaneous
telecopy, (b) on the following business day when sent by receipted overnight
courier, or (c) three (3) business days after deposit in the United States Mail
when mailed by registered or certified mail, return receipt requested, first
class postage prepaid, if sent to the applicable addresses or telecopy numbers
listed in Schedule 2. Either party may change the address to which notices are
to be sent to it by giving written notice of that change of address to the
other party in the manner provided above for giving notices.
13.2 ASSIGNMENT; BINDING EFFECT. Neither this Agreement nor any right of
the parties hereunder may be assigned or delegated, whether voluntarily or
involuntarily, without the prior written consent of the other party provided,
however, that no consent will be required in the event of the sale of
substantially all the assets of or a merger involving the Company or the
assignment by the Company of this Agreement to Reynolds or to any parent,
subsidiary or other entity of which the Company (or the Company's parent) holds
fifty percent (50%) or more of the voting power. This Agreement will be binding
on the parties to this Agreement and
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their respective permitted successors, assigns and transferees and it is
expressly intended that Reynolds be a third party beneficiary of the rights of
the Company under this Agreement.
13.3 HEADINGS; SCHEDULES. The section, subsection and other headings in
this Agreement are inserted only for reference and are not a part of this
Agreement. The Schedules attached to this Agreement are a material part of
this Agreement and are incorporated into this Agreement by this reference.
13.4 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which will be considered one agreement and effective when
one counterpart has been signed by each party and delivered to the other party.
13.5 INTEGRATION OF AGREEMENT. This Agreement supersedes all prior
agreements, oral and written, between the parties about the subject matter of
this Agreement (including severance). Neither this Agreement, nor any
provision of this Agreement, may be changed, waived, discharged, supplemented
or terminated orally, but only by a writing signed by the party against which
the enforcement is sought. In the case of the Company, the writing must also
be signed by an officer of Reynolds.
13.6 WAIVER. Failure of either party to exercise its rights under the
terms of this Agreement on any one occasion will not be construed as a waiver
of any requirement of this Agreement or a waiver of that party's right to take
advantage of any subsequent or continued breach by the other party of any
agreement or covenant contained in this Agreement. Except as expressly
provided in this Agreement, all remedies provided in this Agreement will be in
addition to and not in substitution for any remedies otherwise available to the
aggrieved party.
13.7 CERTAIN TERMS. When used in this Agreement, (a) "including" means
"including, without limitation," whether or not that language is specifically
set forth, and will not be deemed to limit the range of possibilities to those
items specifically enumerated, and (b) "person" will be broadly interpreted to
include, without limitation, any corporation, partnership, association, limited
liability company, other association, trust or individual.
13.8. ARBITRATION. Any dispute or controversy arising out of this
Agreement or its performance shall be resolved by binding arbitration before a
panel of three (3) arbitrators in Dayton, Ohio pursuant to the rules of the
American Arbitration Association. The prevailing party's costs and expenses
(including reasonable attorney's fees) shall be borne by the other party.
14. REPLACEMENT TERMS.
14.1 OPTIONAL TERMINATION. During the first six (6) months of the Term,
Employee will be based in Sycamore, Illinois subject to reasonable travel
requirements. If at any time after 90 days after the Closing but prior to the
expiration of the Term, Employee shall be dissatisfied with his employment,
then, in that event and notwithstanding anything in this Agreement to the
contrary, Employee shall be entitled to terminate this Agreement upon 15 days
prior written notice to the Company and on the effective date of termination
Employee shall receive a payment of $105,000 (for all other purposes of this
Agreement such a termination shall be deemed a termination pursuant to Section
11.1(a)).
14.2 REPLACEMENT TERMS. Following the six-month anniversary of the Closing
but prior to the 9-month anniversary of the Closing, the Company and Reynolds
shall propose to Employee in writing new terms of employment. Employee shall
have a period of 30 days following receipt of the written proposal to accept
(which must be evidenced by execution of a mutually satisfactory agreement)
such proposal (failure to execute such an agreement within the 30-day period
shall be deemed rejection of the proposal and a "Constructive Discharge" for
purposes of Section 11, and the Term shall cease
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upon expiration of such 30-day period). If the proposal is accepted it will
replace this Agreement.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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The parties have signed this Agreement as of the 20th day of April, 1996.
DUPLEX PRODUCTS INC. EMPLOYEE:
By:______________________________ ______________________________
Print Name:______________________ Print Name:___________________
Print Title:_____________________
ROBIN3.AGR
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SCHEDULE 1
DEFINITIONS
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1. "AGREEMENT" means this agreement.
2. "BONUS" means the bonus described in Section 3 of Schedule 2.
3. "CLOSING" means the closing of the purchase by Reynolds of common stock of
the Company pursuant to the Offer.
4. "COMPANY" means Duplex Products Inc.
5. "COMPANY INTELLECTUAL PROPERTY" means all information, documents,
drawings, customer lists, software, and ideas belong to the Company, its
customers, clients, vendors, suppliers, licensors, competitors, or alliances
which are disclosed to Employee or of which Employee becomes aware, during the
course of Employee's employment with the Company.
6. "COMPANY INVENTIONS" means any of the Inventions, whether or not embodied
in a tangible means of expression, which:
6.1 are in whole or in part conceived or made by Employee in the course
of Employee's employment with the Company or which result from any work
performed by Employee for the Company, or
6.2 are made through the use of any Company Intellectual Property or any
of the Company's equipment, facilities, supplies or time.
7. "CONSTRUCTIVE DISCHARGE" means termination of the Term by Employee (in his
discretion) as described in Section 14.2 or following either: (a) a material
reduction in Employee's duties or responsibilities; or (b) relocation of
Employee's position to a location other than the Company's Sycamore, Illinois
headquarters.
8. "DIRECTLY OR INDIRECTLY" means:
8.1 acting as an agent, representative, consultant, officer, director,
independent contractor or employee of any person, or
8.2 participating in any person as an owner, partner, limited partner,
joint venturer, creditor, stockholder, or member.
Direct or Indirect competition will not include the ownership of voting
securities or other equity interests representing less than 5% of the voting
power of an entity whose securities are traded on a national securities
exchange or in the over-the-counter market.
9. "EMPLOYEE" means Mark A. Robinson.
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10. "INVENTIONS" means all inventions, discoveries, ideas, improvements,
trade secrets, patents, trademarks, service marks, concepts, computer software,
designs, drawings, specifications, techniques, know-how, other intellectual
property, derivatives of any of the above, and all copyright, trademark and
patent applications and registrations.
11. "MERGER AGREEMENT" means the Agreement and Plan of Merger among
Reynolds, Delaware Acquisition Co. and the Company dated as of April 20, 1996.
12. "OFFER" means the proposed tender offer by Reynolds for the common stock
of Duplex contemplated by the Merger Agreement.
13. "PRIOR AGREEMENT" means the agreement between the Company and Employee
dated as of January 26, 1996 as amended by letter dated March 13, 1996.
14. "POST TERMINATION PERIOD" means the period immediately following the
Term ending on the second (2nd) anniversary of the Closing.
15. "TERM" means the period commencing on the Closing and ending, unless
sooner terminated pursuant to Section 11.1, on the first anniversary of the
Closing.
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SCHEDULE 2
1. CAPACITY. Employee shall continue to be employed during the Term in the
same capacity as immediately prior to the Closing.
2. DUTIES. Those duties performed by Employee immediately prior to the
Closing.
3. COMPENSATION.
3.1 Salary. Employee shall be paid an annual salary of $105,000,
payable in accordance with the Company's ordinary payment policy as the same
may change from time to time.
3.2 Bonus. Employee shall be paid a bonus of $275,000, payable in two
(2) installments as follows: (a) $$225,000 -simultaneous with the Closing; and
(b) $50,000 - on the six (6)-month anniversary of the Closing; provided,
however, that if Employee's employment is terminated pursuant to
Section 11.1(a) or Section 11.1(e), Employee shall be deemed to have waived
all rights to the unpaid balance of the Bonus as of the effective date of
termination.
4. NOTICE ADDRESS AND TELECOPY NUMBERS
4.1 If to the Company:
Duplex Products Inc.
1947 Bethany Road
Sycamore, Illinois 60178
ATTN: President
Fax No. (815) 895-1091
with a copy to:
The Reynolds and Reynolds Company
115 S. Ludlow St.
Dayton, OH 45402
ATTN: Adam M. Lutynski
Fax No. (513) 449-4123
4.2 If to Employee:
Mark A. Robinson
415 Wood Road
Rockford, Illinois 61107
Fax No. (815) 229-8633
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