EXHIBIT 10.26
EMPLOYMENT AND EXECUTIVE SEVERANCE AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is effective as of the
10th day of March 2003 (the "Effective Date"), by and between MAIL-WELL, INC., a
Colorado corporation (the "Company") and Paul V. Reilly ("Executive").
W I T N E S S E T H:
WHEREAS, the Company is engaged in, among other businesses, the
businesses of commercial printing, envelope manufacturing and printing, printing
of custom business documents, and printing of labels ("Business");
WHEREAS, Executive is recognized as having experience in the management
and operation of the Company, having served, successively, as Chief Financial
Officer, President and Chief Operating Officer, and Chief Executive Officer and
Chairman of the Board of the Company;
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company and its stockholders
to enter into this Agreement to assure that the Company will have the continued
dedication of Executive;
WHEREAS, the Board believes it is imperative (i) to diminish the
inevitable and significant distractions of Executive and dilution of the time of
Executive, by virtue of the personal uncertainties and risks created by a
pending or threatened Triggering Event; (ii) to encourage Executive's full
attention and dedication to the Company currently and in the event of any
threatened or pending Triggering Event; (iii) to provide Executive with
compensation arrangements in the event of a Triggering Event which provide
Executive with financial security, which are competitive with those of other
corporations; (iv) to ensure that following a Triggering Event Executive does
not engage in activities or business pursuits which may threaten or damage the
Company; (v) to retain the services of Executive for a reasonable period of time
following any Triggering Event; and (vi) to obtain a full and complete Release
from Executive should a separation of employment occur in connection with or
subsequent to a Triggering Event; and
WHEREAS, in order to accomplish the objectives described in the
immediately preceding recitals, the Board desires to cause the Company to enter
into this Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
and agreements contained in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and Executive hereby agree as follows:
ARTICLE I
EMPLOYMENT, REPORTING AND DUTIES
1.1 Employment. On the terms and subject to the conditions of this
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Agreement, the Company hereby employs and engages the services of Executive to
serve as President and Chief Executive Officer and Chairman of the Board, and
Executive agrees to diligently and competently serve as and perform the
functions of President and Chief Executive Officer and Chairman of the Board
(the "Office") for the term and for the compensation and benefits stated herein.
1.2 Major Responsibilities; Authority. Executive shall have the
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authorities, duties, responsibilities and status (including offices, titles and
reporting requirements) usually associated with the Office of companies or
divisions of companies having operations, subsidiaries and assets similar in
nature and value to the operations, subsidiaries and assets of the Company or
its divisions. Executive shall also have such other duties as the Board shall
determine and Executive shall accept from time to time.
1.3 Extent of Service. During the Term (as defined in Section 4.1),
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and excluding any periods of vacation and sick leave to which Executive may be
entitled, Executive agrees to devote reasonable time and energies to the
Business consistent with past practice and shall not, during the Term, be
engaged in any business activity which would interfere or prevent Executive
from carrying out Executive's duties under this Agreement.
ARTICLE II
COMPENSATION AND RELATED ITEMS
2.1 Compensation.
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(a) Base Salary. As compensation and consideration for the
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services to be rendered by Executive under this Agreement and for the
performance by Executive of the usual obligations of such employment,
the Company agrees to pay Executive during the Term, and Executive
agrees to accept, a base salary ("Base Salary") of $600,000 per annum
which shall be paid in accordance with Company's standard payroll
practice. Executive's Base Salary may change from time to time, as
determined by the Board of Directors, and after any such change,
Executive's new level of Base Salary shall be Executive's Base Salary
for purposes of this Agreement until the effective date of any
subsequent change.
(b) Additional Compensation. In addition to the Base Salary
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provided for in Section 2.1(a), Executive and/or Executive's family,
as the case may be, shall be entitled during the Term to participate
in, and shall receive benefits under:
(i) any and all welfare benefit and similar
employee benefit plans, programs, arrangements, or policies
that are generally made available by the Company and its
affiliates now or at any time in the future to other key
employees or former key employees (to the extent such
benefits remain available to former key employees), including,
but not limited to, any hospitalization, medical,
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prescription, dental, disability, salary continuance,
individual life insurance, group life insurance, accidental
death insurance, and travel accident insurance plans,
programs, arrangements, and policies;
(ii) any and all bonus, incentive, savings,
retirement, profit sharing, pension, stock option, restricted
stock, employee stock ownership, supplemental executive
retirement and other employee benefit plans, programs,
arrangements, and policies that are generally made available
by the Company and its affiliates now or at any time in the
future to officers and other key employees;
(iii) annual vacations and sick leave in accordance
with the vacation and sick leave policies of the Company and
its affiliates that are now or at any time in the future in
effect with respect to officers and other key employees,
during which time Executive's compensation shall be paid in
full; and
(iv) fringe benefits in accordance with the fringe
benefit policies of the Company and its affiliates that are
now or at any time in the future in effect with respect to
officers and other key employees.
2.2 Expenses. The Company agrees that, during the Term, Executive
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shall be allowed reasonable and necessary business expenses in connection with
the performance of Executive's duties hereunder within guidelines established
by the Board as in effect at any time with respect to key employees ("Business
Expenses"), including, but not limited to, reasonable and necessary expenses for
food, travel, lodging, entertainment and other items in the promotion of the
Business within such guidelines. The Company shall promptly reimburse Executive
for all reasonable Business Expenses incurred by Executive upon Executive's
presentation to the Company of an itemized account thereof, together with
receipts, vouchers, or other supporting documentation. After termination of
Executive's employment under this Agreement, however such termination may come
about, Executive shall have ninety (90) days after the date of such termination
to submit Business Expenses incurred during the Term to the Company for
reimbursement.
2.3 Working Facilities. Executive shall be furnished with an office of
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a size and with other furnishings and appointments, administrative staff,
secretarial and other assistants, stenographic help, and such other facilities
and services as are suitable to Executive's position and adequate for the
performance of Executive's duties. Executive's place of employment will not be
relocated to a location in excess of thirty-five (35) miles from Englewood,
Colorado, except for required travel on Company business.
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ARTICLE III
EXCULPATION
The Company agrees that Executive will not be liable for any losses,
expenses, costs or damages caused by or resulting from the recommendations,
suggestions, actions, errors, omissions or mistakes of Executive undertaken or
proposed by Executive if Executive acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company. Executive's rights under this Article III shall not be deemed exclusive
of, but shall be cumulative with, any and all other rights (including, but not
limited to, rights of indemnification and advancement of expenses) to which
Executive may now or at any time in the future be entitled under applicable law,
the Company's articles of incorporation, the Company's bylaws, any agreement
(including, but not limited to, this Agreement), any vote of stockholders, any
resolution of directors, or otherwise.
ARTICLE IV
TERM AND TERMINATION
4.1 Term. The term of Executive's employment under this Agreement
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("Term") shall be, unless otherwise terminated pursuant to Section 4.2, for an
initial term of two years commencing on the Effective Date (the "Initial Term")
and shall automatically be renewed for successive periods of one year each
thereafter (each, a "Renewal Term") unless Executive delivers written notice of
termination to the Company, or the Company delivers written notice of
termination to Executive, at least 60 days prior to the end of the Initial Term
or any Renewal Term. Upon delivery of any such written notice of termination,
the Term shall expire at the end of the Initial Term or Renewal Term next
occurring after such delivery.
4.2 Termination of Employment. Except as may otherwise be provided
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herein, Executive's employment under this Agreement may terminate, and the Term
shall terminate, upon the occurrence of:
(a) Notice by Company. Ten (10) days after written notice of
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termination is given by the Company to Executive;
(b) Notice by Executive. One-hundred twenty (120) days after
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written notice of termination is given by Executive to the Company;
(c) Death or Disability. Executive's death or, at the
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Company's option upon Executive's becoming Disabled (as defined in
Section 4.6 hereof); or
(d) Triggering Event. One hundred twenty (120) days after
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written notice of termination is given by Executive to the Company upon
the occurrence of a Triggering Event (as defined in Section 6.1 and
6.2).
Any notice of termination given by the Company to Executive under
Section 4.2(a) above shall specify whether such termination is with or without
Cause (as defined in Section 4.4 hereof). Any notice of termination given by
Executive to the Company under Section 4.2(b)
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above shall specify whether such termination is made with or without Good
Reason (as defined in Section 4.5 hereof). Any notice of termination given by
Executive to the Company under Section 4.2(d) above shall specify whether such
termination is made with or without Good Reason (as defined in Section 4.5
hereof).
4.3 Obligations of the Company Upon Termination.
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(a) Cause; Without Good Reason. If the Company terminates
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Executive's employment under this Agreement with Cause pursuant to
Section 4.2(a) hereof, or if Executive terminates his employment
without Good Reason, then Executive's employment with the Company
shall terminate without further obligations to Executive, other than
those obligations owing or accrued to, vested in, or earned by
Executive through the date of termination, including, but not limited
to:
(i) to the extent not theretofore paid, Executive's
Base Salary in effect at the time of such termination through
the date of termination;
(ii) in the case of compensation previously deferred
by Executive, all amounts previously deferred (together with
any accrued interest thereon) and not yet paid by the Company;
and
(iii) all other amounts or benefits owing or accrued
to, vested in or earned by Executive through the date of
termination under the then existing or applicable plans,
programs, arrangements, and policies of the Company and its
affiliates, including, but not limited to, any such plans,
programs, arrangements, or policies described in Section
2.1(b) hereof;
The obligations owing or accrued to, vested in, or earned by
Executive through the date of termination, including, but not limited
to, such amounts and benefits specified in clauses (i), (ii), and (iii)
of this section 4.3(a) shall be hereinafter collectively referred to as
the "Accrued Obligations." The Accrued Obligations, shall be paid or
caused to be paid by the Company to Executive in accordance with the
plans, programs or agreements under which the Accrued Obligations were
earned.
(b) Good Reason; Without Cause. If Executive terminates
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Executive's employment under this Agreement with Good Reason pursuant
to Section 4.2(b), or if the Company terminates Executive's employment
without Cause, then Executive's employment with the Company shall
terminate, and in lieu of any other severance benefit that would
otherwise be payable to Executive:
(i) the Company shall pay the aggregate of the
following amounts to Executive in one lump sum within ninety
(90) days after the effective date of such termination or in a
manner and at such later time as specified by Executive,
provided that all such payments must be made no later than the
last day of the twenty-four (24) month period commencing on
the date of such termination:
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(A) all Accrued Obligations;
(B) an amount equal to the sum: of (x) two
(2) times Executive's Base Salary in effect at the
time of such termination (but prior to giving effect
to any reduction therein which precipitated such
termination), and (y) two times Executive's target
bonus (at 100% of plan) for the calendar year in
which such termination occurred, and (z) the pro-rata
share of Executive's target bonus for the calendar
year in which such termination occurred based upon
the proportion that the number of complete months in
such calendar year up to the date of termination
bears to the complete calendar year;
(C) if Executive elects medical or dental
coverage under the Company's group medical or dental
plans pursuant to Section 4980B of the Internal
Revenue Code of 1986, as amended ("Code") ("COBRA
Coverage"), the Company shall reimburse Executive,
promptly upon request by Executive (upon presentation
of reasonable documentation showing prior payment),
an amount equal to the premium paid each month by
Executive for COBRA Coverage during the first twelve
(12) months of such COBRA Coverage (or during such
shorter period that COBRA Coverage for Executive is
in effect);
(D) such individual outplacement service as
is appropriate for Executive's position for up to 24
months after termination of employment for a cost not
to exceed $15,000; and
(E) assistance to Executive to be provided
by a nationally recognized accounting firm selected
by the Company or other mutually agreeable accounting
firm for federal and state income tax preparation for
Executive for the calendar year in which such
termination of employment occurs.
(ii) nothing herein shall preclude the Company from
granting additional severance benefits to Executive upon
termination of employment.
(c) Death. If Executive's employment is terminated under
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Section 4.2(c) hereof by reason of Executive's death, the Company shall
pay to Executive's legal representatives the full amount of the Accrued
Obligations in accordance with the plans, programs, or agreements under
which the Accrued Obligations were earned.
(d) Disability. If Executive's employment is terminated under
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Section 4.2(c) hereof by reason of Executive becoming Disabled then the
Company shall pay to Executive or Executive's legal representative the
full amount of the Accrued Obligations in accordance with the plans,
programs, or agreements under which the Accrued Obligations were
earned.
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4.4 Cause. As used in this Agreement, the term "Cause" means (i)
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willful misconduct by Executive or gross neglect by Executive of his duties as
an employee, officer or director of the Company which continues for more than
thirty (30) days after Executive's receipt of written notice from the Board to
Executive specifically identifying the willful misconduct or gross negligence of
Executive and directing Executive to discontinue the same, (ii) the commission
by Executive of a crime constituting a felony, or (iii) the commission by
Executive of an act, other than an act taken in good faith within the course and
scope of Executive's employment, which is directly detrimental to the Company
and exposes the Company to material liability.
4.5 Good Reason.
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(a) As used in this Agreement, the term "Good Reason" means:
(i) a substantial diminution in the nature of
Executive's authorities, duties, responsibilities or status
(including offices, titles, reporting requirements and
supervisory functions) from those in effect at the time of
execution of this Agreement. Notwithstanding the foregoing,
Executive shall not assert as "Good Reason" the sole fact that
a portion of Executive's duties and responsibilities directly
attributable to a change in the ownership of the Company or a
Business Segment, as the case may be, has been eliminated (the
"Eliminated Duties and Responsibilities"), unless the
performance of all or a material portion of the Eliminated
Duties and Responsibilities continue to be required;
(ii) the required relocation of Executive's place
of employment to a location in excess of thirty-five (35)
miles from the Executive's place of employment at the time
Executive terminates employment, except for required travel
on Company business to an extent substantially equivalent to
Executive's business travel obligations at the time of
execution of this Agreement;
(iii) any reduction by the Company of Executive's
base salary, or a material reduction in Executive's bonus
opportunities, profit sharing opportunities, or other
incentive opportunities from those in effect at the time of
execution of this Agreement;
(iv) the Company breaches any material provision of
this Agreement and such breach is not cured within thirty (30)
days after the Company's receipt of notice thereof from
Executive;
(v) the failure of the Company to continue in
effect Executive's participation in the Company's employee
benefit plans, programs, arrangements and policies, at a level
substantially equivalent in value to and on a basis consistent
with the relative levels of participation of other similarly
positioned employees; or
(vi) the failure of the Company to obtain from a
successor (including a successor to a material portion of the
business or assets of the Company) a
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satisfactory assumption in writing of the Company's
obligations under this Agreement;
(vii) the failure of the Company to continue to
provide Executive with office space, related facilities and
support personnel (including, but not limited to,
administrative and secretarial assistance) that are both
commensurate in all material respects with the Office and
Executive's responsibilities to and position with the Company
and not materially dissimilar to the office space, related
facilities and support personnel provided to other key
executive officers of the Company;
(viii) the Company notifies Executive of the
Company's intention not to observe or perform one or more of
the material obligations of the Company under this Agreement;
(x) the failure or refusal of the Company to renew
this Agreement (by giving Executive Notice of such decision
pursuant to Section 4.1); or
(xi) without, in each case, Executive's prior written
consent, (A) the removal of Executive as Chairman of the Board
of Directors of the Company, if it is a surviving entity in
the change-in-control transaction of the type described in
Section 6.1 herein, or (B) the failure of Executive to be
named as Chairman of the Board of Directors of any successor
to the Company (a "Successor Entity"), or (C) the failure of
Executive to be nominated for election as Chairman of the
Board of Directors of the Company or any Successor Entity or
(D) the failure of Executive to be elected or reelected as
Chairman of the Board of Directors of the Company or any such
Successor Entity, or (E) the failure of Executive to be
appointed as Chairman of the Board of Directors of any entity
that controls the Company or any Successor Entity (a
"Controlling Entity") or (F) the removal of Executive as
Chairman of the Board of Directors of any Controlling Entity,
or (G) the failure of Executive to be nominated for election
as Chairman of the Board of Directors of any Controlling
Entity, or (H) the failure of Executive to be elected or
reelected as Chairman of the Board of Directors of any
Controlling Entity.
(b) New Office. If, at any time during the Term of this
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Agreement, whether before or after the occurrence of a Triggering
Event, Executive receives a written description from the Company of the
nature of Executive's authorities, duties, responsibilities, status,
salary, bonus and other employee benefits, or job location thereafter,
and Executive accepts in writing such new authorities, duties,
responsibilities, status, salary, bonus and other employee benefits, or
job location ("New Office") with the Company without determining that
the New Office causes a Good Reason as set forth in Section 4.5(a),
then for the remaining Term, the New Office shall be the authorities,
duties, responsibilities, status, salary, bonus and other employee
benefits, or job location to be used by Executive in determining
whether Good Reason occurs thereafter pursuant to Section 4.5(a).
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4.6 Disabled. As used herein, "Disabled" shall mean a mental or
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physical impairment which, in the reasonable opinion of a qualified doctor
selected by the Company, renders Executive unable to perform with reasonable
diligence the ordinary functions and duties of Executive on a full-time basis in
accordance with the terms of this Agreement, which inability continues for a
period of not less than 180 consecutive days.
4.7 Affiliate. As used herein, "affiliate" and "affiliates" shall
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mean, when used with respect to any specified entity, individual, or other
person, any other entity, individual, or other person which, directly or
indirectly, through one or more intermediaries controls, or is controlled by, or
is under common control with such specified entity, individual or person. The
term "control" and derivations thereof when used in the immediately preceding
sentence means the ownership, directly or indirectly, of 50% or more of the
outstanding voting equity interests of an entity or other person or possessing
the power to direct or cause the direction of the management and policies of
such entity or other person, whether through the ownership of voting equity
interests, by contract or otherwise.
4.8 Return of Materials; Confidential Information. In connection with
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Executive's separation from employment for any reason, Executive shall return
any and all property belonging to the Company including, but not limited to, any
and all documents or other media containing Confidential and Proprietary
Information, any customer information, production information,
manufacturing-related information, pricing information, files, memoranda,
reports, pass codes/access cards, training or other reference manuals, Company
vehicle, telephone, gas cards or other Company credit cards, keys, computers,
laptops, including any computer disks, software, facsimile machines, printers,
telephones, pagers or the like.
4.9 Legal Fees and Expenses. If Executive shall substantially prevail
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in any contest by the Company or others contesting the validity or enforcement
of, or liability under, any term or provision of this Agreement, the Company
shall pay any and all reasonable attorneys' fees and expenses incurred by
Executive as a result of any such contest. Otherwise, each party shall bear his,
her or its own expenses in connection with any such contest.
4.10 Non-exclusivity of Rights. Nothing in this Agreement shall prevent
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or limit Executive's continuing or future participation in any benefit, bonus,
incentive or other plan, program, arrangement or policy provided by the Company
or any of its affiliates (including, but not limited to, any plan, program,
arrangement or policy described in Section 2.1(b) hereof) and for which
Executive and/or Executive's family may qualify, nor shall anything herein limit
or otherwise affect such rights as Executive and/or Executive's family may have
under the Indemnity Agreement previously entered into between Executive and the
Company, and all stock option agreements between Executive and the Company now
in effect or hereafter entered into.
4.11 Full Payment; No Mitigation Obligation. The Company's obligation
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to make the payments provided for in sections 4.3(b)(i)(B)-(E) of this Agreement
and otherwise to perform its obligations hereunder shall be subject to any
set-off, counterclaim, recoupment, defense or other claim, right or action which
the Company may have against Executive, and is also contingent upon Executive's
execution of the release described in Section 4.12 below. In no
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event shall Executive be obligated to seek other employment or take any other
action by way of mitigation of the amounts payable to Executive under any of the
provisions of this Agreement.
4.12 Delivery of Release. Within thirty (30) days after termination of
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Executive's employment for any reason, the Company shall provide to Executive,
or Executive's legal representative, a form of written release, which form shall
be satisfactory to the Company and generally consistent with the form of release
used by the Company prior to such termination of employment (the "Release"). As
a condition to the obligation of the Company to make the payments provided for
in this Agreement and otherwise perform its obligations hereunder to Executive
upon termination of Executive's employment, Executive, or Executive's legal
representative, shall execute and deliver the Release to the Company.
4.13 Allocations. The payments made under Section 4.3(b)(i)(B)-(E)
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shall, in the aggregate, be in consideration for the Executive's separate
agreements under Sections 4.12 and 6.4 and Article V of this Agreement and, in
part, to provide Executive certain additional severance benefits under the
circumstances set forth in this Section 4.3. The allocation of the aggregate
payment as the specific consideration for each separate agreement of Executive
and as an additional severance benefit shall be in the sole discretion of the
Company.
4.14 Mitigation. Executive agrees to do anything reasonably requested
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by Company to mitigate the effects of Sections 280G and 4999 of the Internal
Revenue Code of 1986, as amended (the "Code") or any interest or penalties
incurred by Executive with respect to such excise tax (such excise tax, together
with any such interest or penalties, are hereinafter collectively referred to as
the "Excise Tax") by agreeing to a reallocation of the payments made by the
Company pursuant to Section 4.13 above. In addition, at the option of the
Executive, if a reduction in the payments made under Section 4.3(b)(i)(B)-(E)
would eliminate some or all of the Excise Taxes, the payment payable under such
Sections will be reduced by the amount that will eliminate the imposition of
such Excise Tax. Executive agrees that any such election shall be made based on
the independent tax advice received by the Executive.
4.15 Exceptions. Section 4.3(b)(i)(B)-(E) shall not apply to the
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termination by the Company of Executive's employment if Executive continues
employment with, or is offered employment by the Company or its successor on
terms that would not otherwise qualify as Good Reason.
ARTICLE V
NON-COMPETITION AND NON-SOLICITATION
5.1 Non-Competition.
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(a) Executive acknowledges that during his employment with the
Company he has enjoyed a position of trust and confidence that gave him
complete access to Confidential and Proprietary Information, which has
value to the Company.
(b) Executive agrees that he will continue to protect the
confidentiality of all such Confidential and Proprietary Information
and will not disclose it to third parties for
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a period of five (5) years from his separation from employment with
the Company for any reason. It is understood that this prohibition
may be enforced by injunctive relief because the disclosure of such
information would be likely to result in irreparable injury to the
Company.
(c) Executive acknowledges that his service as President and
CEO of the Company means that he comes within the statutory exception
contained in subsection 2(d) of C.R.S. Section 8-2-113, which allows
for non-competition agreements between employers and executives,
managers, officers and professional staff. Because of his virtually
unlimited access to Confidential and Proprietary Information, which is
of value to the Company, Executive also acknowledges that his
subsequent employment by a competitor would be more likely than not to
result in the inevitable disclosure of the trade secrets of the
Company.
(d) Executive accordingly agrees that for the term of this
Agreement and for a period of two (2) years following his separation
from employment for any reason that he shall not directly or indirectly
engage in competition with the Company by taking any of the following
actions:
(i) Owning, managing, operating, joining, controlling
or providing services to (or participating in the ownership,
management, operation or control of, other than as a holder of
less than 5% of the shares of a public company), aiding or
assisting any corporation, association, partnership, limited
liability company, proprietorship or other business entity,
regardless of form, that at any location in the United States
or Canada engages in the business of commercial, envelope,
label and/or office products printing, as such businesses are
currently engaged in by the Company or as may be engaged in by
the Company at the time of termination of Executive's
employment;
(ii) Serving as an employee, agent, consultant,
officer, director, advisor, or creditor of any such business
entity or enterprise described in (i) above;
(iii) Inducing or attempting to induce any customer,
supplier or business relation of the Company to cease doing
business with the Company or in any other way interfering with
the relationship between any customer, supplier or business
relation and the Company; or
(iv) Executive acknowledges that the restrictions set
forth above are reasonable and appropriate to protect the
Confidential and Proprietary Information of value to the
Company, which would be inevitably disclosed if he competed,
directly or indirectly, as set forth above. If however, a
court determines that any of the foregoing restrictions are
unreasonable in duration, scope or area of restriction, then
Executive and the Company agree that the restrictions shall be
applied only to the activities and territory, and only for the
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period of time, that the court determines reasonable in light
of all then-existing circumstances.
5.2 Non-Solicitation of Employees. The Executive agrees that for the
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term of this Agreement and for a period of two (2) years following his
separation from employment for any reason he shall not directly or indirectly
solicit or recruit, or attempt to solicit or recruit, or hire, or attempt to
hire, any employee of the Company who is employed by the Company or was employed
by the Company at any time during the last year of the Executive's employment
with the Company.
5.3 Confidential Information. As used herein, "Confidential and
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Proprietary Information" means all information of a technical or business nature
such as ideas, discoveries, inventions, improvements, trade secrets, know-how,
manufacturing processes, specifications, writings and other works of authorship,
computer programs, software and data, source codes, financial figures and
reports, marketing plans and data, customer lists and data, business plans or
data which relate to the actual or anticipated business of the Company of any of
its affiliates or their actual or anticipated areas of research and development,
evaluations of, and the use or non-use by Company or any of its affiliates of,
technical or business information in the public domain, forecasts, strategic
plans, arrangements with manufacturers, suppliers, brokers and other third
parties, financing plans, personnel records, customer lists, manuals, records,
information regarding actual or potential customers or suppliers, marketing
plans, present and proposed trade marks, service marks, names, brands and
labels, packaging and advertising plans and data, product formulations,
regulatory plans, programs and data, legal matters, patent and trademark matters
and any proprietary or secret information (whether such information is owned by,
licensed to or otherwise possessed by the Company or any of its affiliates),
whether patentable or not. Executive shall, both during and after Executive's
employment with the Company, protect and maintain the confidential, trade secret
and/or proprietary character of all Confidential Information. Executive shall
not, during or after termination of Executive's employment, directly or
indirectly, use (for Executive or another) or disclose any Confidential
Information, except as may be necessary for the performance of Executive's
duties under this Agreement. Executive shall deliver promptly to the Company, at
the termination of Executive's employment, or at any other time at the Company's
request, without retaining any copies, all documents and other material in
Executive's possession relating, directly or indirectly, to any Confidential
Information. Each of Executive's obligations in this Section 5.3 shall also
apply to the confidential, trade secret and proprietary information learned or
acquired by Executive during Executive's employment from others with whom the
Company or any of its affiliates has a business relationship.
5.4 Specific Enforcement; Modification. Executive acknowledges that
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the provisions of Sections 5.1, 5.2 and 5.3 are reasonable and necessary for the
protection of the Company and that the Company will be irrevocably damaged if
such provisions are not specifically enforced. Accordingly, Executive agrees
that, in addition to any other remedy to which the Company may be entitled, the
Company shall be entitled to seek and obtain injunctive relief from a court of
competent jurisdiction for the purposes of restraining it from any actual or
threatened breach of such provisions, without bond or other security being
required. Should a court of competent jurisdiction declare any of the covenants
set forth in Article V unenforceable, the court shall be
12
empowered to modify and reform such covenants so as to provide relief reasonably
necessary to protect the interests of the Company and Executive and to award
injunctive relief, or damages, or both, to which the Company may be entitled.
5.5 Provisions Not Exclusive. The provisions of Sections 5.1, 5.2, 5.3
------------------------
and 5.4 do not supercede or replace any non-competition, confidentiality or
non-solicitation agreements between Executive and the Company or any of its
affiliates now in effect or entered into in the future.
ARTICLE VI
FUNDAMENTAL CHANGES/TRIGGERING EVENTS
6.1 Triggering Event. As used herein, the term "Triggering Event"
----------------
shall mean the occurrence with respect to the Company of any of the following
events:
(a) a report on Schedule 13D is filed with the Securities and
Exchange Commission pursuant to Section 13(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), disclosing that
any person, entity or group (within the meaning of Section 13(d) or
14(d) of the Exchange Act), other than (i) the Company (or one of its
subsidiaries) or (ii) any employee benefit plan sponsored by the
Company (or one of its subsidiaries), is the beneficial owner (as such
term is defined in Rule 13d-3 promulgated under the Exchange Act),
directly or indirectly, of 50% or more of the outstanding shares of
common stock of the Company or 50% or more of the combined voting power
of the then outstanding securities of the Company (as determined under
paragraph (d) of Rule 13d-3 promulgated under the Exchange Act, in the
case of rights to acquire common stock or other securities);
(b) an event of a nature that would be required to be reported
in response to Item 1(a) of the Current Report on Form 8-K, as in
effect on the date hereof, pursuant to Section 13 or 15(d) of the
Exchange Act or would have been required to be so reported but for the
fact that such event had been "previously reported" as that term is
defined in Rule 12b-2 promulgated under the Exchange Act;
(c) any person, entity or group (within the meaning of Section
13(d) or 14(d) of the Exchange Act), other than (i) the Company (or one
of its subsidiaries) or (ii) any employee benefit plan sponsored by the
Company (or one of its subsidiaries), shall become the beneficial owner
(as such term is defined in Rule 13d-3 promulgated under the Exchange
Act), directly or indirectly, of 50% or more of the outstanding shares
of common stock of the Company or 50% or more of the combined voting
power of the then outstanding securities of the Company (as determined
under paragraph (d) of Rule 13d-3 promulgated under the Exchange Act,
in the case of rights to acquire common stock or other securities);
(d) the stockholders of the Company shall approve any
liquidation or dissolution of the Company;
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(e) the stockholders of the Company shall approve a merger,
consolidation, reorganization, recapitalization, exchange offer,
acquisition or disposition of assets or other transaction after the
consummation of which any person, entity or group (within the meaning
of Section 13(d) or 14(d) of the Exchange Act) would become the
beneficial owner (as such term is defined in Rule 13d-3 promulgated
under the Exchange Act), directly or indirectly, of 50% or more of the
outstanding shares of common stock of the Company or 50% or more of the
combined voting power of the then outstanding securities of the Company
(as determined under paragraph (d) of Rule 13d-3 promulgated under the
Exchange Act, in the case of rights to acquire common stock or other
securities);
(f) individuals who constitute the Board on the date hereof
("Incumbent Board") cease for any reason to constitute at least a
majority thereof, provided that any person becoming a director
subsequent to the date hereof whose election, or nomination for
election by the Company's stockholders, was approved by a vote of at
least two-thirds of the directors comprising the remaining members of
the Incumbent Board (either by a specific vote or by approval of the
proxy statement of the Company in which such person is named as a
nominee for director, without objection to such nomination) shall be,
for purposes of this clause (f), considered as though such person were
a member of the Incumbent Board; or
(g) a recapitalization or other transaction or series of
related transactions occurs which results in a decrease by 50% or more
in the aggregate percentage ownership of the then outstanding common
stock of the Company or 50% or more in the combined voting power of the
outstanding securities of the Company held by the stockholders of the
Company immediately prior to giving effect thereto (on a primary basis
or on a fully diluted basis after giving effect to the exercise of
stock options and warrants).
6.2 Obligations of the Company upon Termination in Anticipation
-----------------------------------------------------------
of, on or after a Section 6.1 Triggering Event.
- ----------------------------------------------
Good Reason; Without Cause. If, during the Term of this Agreement,
--------------------------
Executive terminates Executive's employment with the Company, pursuant to
Section 4.2(d), on or after the occurrence of a Triggering Event of the type
described in Section 6.1 above with Good Reason, or if during the Term of this
Agreement, the Company terminates Executive's employment with the Company
without Cause in anticipation of, on or after the occurrence of a Triggering
Event of the type described in Section 6.1 above and in lieu of any other
severance benefits that would otherwise be payable to Executive, the Company
shall pay that amount due and owing to Executive under Section 4.3(b) above,
plus an additional amount equal to (i) one (1) times Executive's Base Salary in
effect at the time of such termination (but prior to giving effect to any
reduction thereof which precipitated such termination). In consideration of such
additional payments by the Company to Executive, Executive agrees to extend the
term of his non-competition and non-solicitation obligations described in
Article V of this Agreement from a period of two (2) years following his
separation from employment to a period of three (3) years following his
separation from employment.
14
6.3 Stay-on Requirement. In consideration for the agreements of the
-------------------
Company hereunder and as a condition for the payments to be made to pursuant to
Section 6.2 hereof, Executive agrees that Executive will not terminate his
employment with the Company prior to or within one hundred twenty (120) days
following a Triggering Event.
ARTICLE VII
GENERAL PROVISIONS
7.1 Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the state of Colorado.
7.2 Assignability. This Agreement is personal to Executive and without
-------------
the prior written consent of the Company shall not be assignable by Executive
other than by will or the laws of descent and distribution. This Agreement shall
inure to the benefit of and be enforceable by Executive's legal representatives
and heirs. This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns. The Company shall require any
corporation, entity, individual or other person who is the successor (whether
direct or indirect, by purchase, merger, consolidation, reorganization, or
otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree to perform, by a written agreement in form
and substance satisfactory to Executive, all of the obligations of the Company
under this Agreement. As used in this Agreement, the term "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, written agreement, or otherwise.
7.3 Withholding. 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.
7.4 Entire Agreement; Amendment. This Agreement constitutes the entire
---------------------------
agreement and understanding between Executive and the Company with respect to
the subject matter hereof and, except as otherwise expressly provided herein,
supersedes any prior agreements or understandings, whether written or oral, with
respect to the subject matter hereof. Except as may be otherwise provided
herein, this Agreement may not be amended or modified except by subsequent
written agreement executed by both parties hereto.
7.5 Multiple Counterparts. This Agreement may be executed in multiple
---------------------
counterparts, each of which shall constitute an original, but all of which
together shall constitute one Agreement.
7.6 Notices. Any notice provided for in this Agreement shall be deemed
-------
delivered upon deposit in the United States mails, registered or certified mail,
addressed to the party to whom directed at the addresses set forth below or at
such other addresses as may be substituted therefor by notice given hereunder.
Notice given by any other means must be in writing and shall be deemed delivered
only upon actual receipt.
15
If to the Company:
Mail-Well, Inc.
8310 S. Valley Highway, #400
Englewood, Colorado 80112-5806
Attention: Chairman of the Board
with a copy to:
Mail-Well, Inc.
8310 S. Valley Highway, #400
Englewood, Colorado 80112-5806
Attention: General Counsel
If to Executive:
Paul V. Reilly
68 Golden Eagle Lane
Littleton, CO 80127
8.7 Waiver. The waiver of any breach of any term or condition of this
------
Agreement shall not be deemed to constitute the waiver of any breach of the same
or any other term or condition of this Agreement.
8.8 Severability. In the event any provision of this Agreement is
------------
found to be unenforceable or invalid, such provision shall be severable from
this Agreement and shall not effect the enforceability or validity of any other
provision of this Agreement. If any provision of this Agreement is capable to
two constructions, one of which would render the provision void and the other
that would render the provision valid, then the provision shall have the
construction that renders it valid.
8.9 Other Severance Benefits. This Agreement replaces and supercedes
------------------------
any and all provisions of and benefits under any other severance agreement or
program under which Executive would otherwise be entitled to severance benefits.
8.10 Arbitration of Disputes. Except for disputes and controversies
-----------------------
arising under Article V or involving equitable or injunctive relief, any dispute
or controversy arising under or in connection with this Agreement shall be
conducted in accordance with the rules set forth by the American Arbitration
Association. The decision of the arbitrator shall be binding on Executive and
the Company. Judgment may be entered on the arbitrator's award in any court
having jurisdiction.
16
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
MAIL-WELL, INC.
By:
---------------------------------
Name: Brian Hairston
Title: Vice President-Human Resources
----------------------------------------
Paul V. Reilly
17