EXHIBIT 10
EMPLOYMENT SEPARATION AGREEMENT
AND GENERAL RELEASE
This Employment Separation Agreement and General Release (the
"Agreement") is being entered into between Cenveo, Inc. (formerly Mail-Well,
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Inc.) ("Cenveo") and Paul V. Reilly ("Mr. Reilly") as of January 6, 2005.
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For and in consideration of the mutual promises contained herein, and for
other good and sufficient consideration, receipt of which is hereby
acknowledged, Cenveo and Mr. Reilly (sometimes hereafter referred to as the
"parties") agree as follows:
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1. RESIGNATION AND PAYMENT.
(a) Mr. Reilly shall resign from all offices and positions
he holds or may hold with Cenveo and any and all other businesses or
entities owned or controlled directly or indirectly by Cenveo, including
without limitation his positions as President and Chief Executive Officer of
Cenveo, but not his position as a director of Cenveo. Mr. Reilly shall
submit a resignation letter to the Board of Directors of Cenveo in the form
set forth in Attachment A on or before January 6, 2005. Mr. Reilly's
resignation shall be effective on the last day of the month in which it is
accepted by Cenveo's Board of Directors (the "Termination Date"). Cenveo and
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Mr. Reilly agree that until the Termination Date, he shall be entitled to
receive all benefits due him under the terms of the Employment and Executive
Severance Agreement dated March 10, 2003 between Mr. Reilly and Cenveo, Inc.
(the "Employment and Executive Severance Agreement") and further that he
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shall remain in all positions he currently holds with Cenveo and any and all
other businesses or entities owned or controlled directly or indirectly by
Cenveo.
(b) Mr. Reilly shall be entitled to receive all "Accrued
Obligations" as of the Termination Date, as such term is defined in Section
4.3(a) of the Employment and Executive Severance Agreement. Additionally,
provided that Mr. Reilly executes this Agreement and does not revoke it in
accordance with paragraph 14 below, Mr. Reilly shall be entitled to receive
the payments and benefits (the "Severance Benefits") he would have received
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pursuant to the Employment and Executive Severance Agreement, as if Cenveo
had terminated Mr. Reilly's employment without cause as of January 6, 2005
except as otherwise provided in Attachment B hereto. The parties stipulate
and agree that the Severance Benefits are as set forth in Attachment B
hereto. All payments shall be reduced by standard deductions and
withholdings for federal, state, and local taxes as determined by Cenveo.
(c) As of the Termination Date, except as provided herein,
Mr. Reilly shall not be eligible and is not eligible to participate in any
Cenveo benefits or compensation plans, except to the extent contemplated by
Cenveo's stock option plans or to the extent Mr. Reilly elects medical or
dental coverage under Cenveo's group medical or dental plans pursuant to the
federal law commonly known as COBRA.
(d) Mr. Reilly agrees that once all of the payments and
benefits referred to in this paragraph 1 have been paid, he shall have been
paid all compensation due and owing to him
under this Agreement and under the Employment and Executive Severance
Agreement or any other contract or agreement he has or may have had with
Cenveo or from any other source of entitlement, including all wages, salary,
commissions, bonuses, incentive payments, profit-sharing payments, accrued
vacation, leave, severance pay or other benefits or compensation.
(e) Mr. Reilly's rights with regard to any vested stock
options shall be governed by the applicable stock option plan terms.
2. GENERAL RELEASE. With the exception of the obligations
set forth in this Agreement, Mr. Reilly, on behalf of himself and his
agents, heirs, executors, administrators, successors and assigns, hereby
releases and forever discharges Cenveo and its affiliates, and any and all
of its and their officers, directors, employees, agents, counsel, and
successors and assigns, from any and all complaints, claims, demands,
damages, lawsuits, actions, and causes of action which he has or may have
against any one or more of them for any reason whatsoever in law or in
equity, under federal, state or other law, whether the same be upon
statutory claim, contract, tort or other basis, including but not limited to
any and all claims arising from or relating to his employment or the
termination of his employment and any and all claims relating to the
Employment and Executive Severance Agreement, any other employment contract,
any employment statute or regulation, or any employment discrimination law,
including but not limited to the Age Discrimination in Employment Act of
1967, the Older Workers' Benefit Protection Act, Title VII of the Civil
Rights Act of 1964, the Americans with Disabilities Act of 1990, the Civil
Rights Act of 1866, the Equal Pay Act of 1963, and the Colorado Civil Rights
Act, all as amended, all state and local laws, regulations and ordinances
prohibiting discrimination in employment, and other laws and regulations
relating to employment, including but not limited to the Employee Retirement
Income Security Act of 1974, the Fair Labor Standards Act, and the Family
and Medical Leave Act, all as amended. Mr. Reilly understands and
acknowledges that this is a GENERAL RELEASE. Mr. Reilly agrees, without
limiting the generality of the above release, not to file any claim or
lawsuit seeking damages or other relief and asserting any claims that are
lawfully released in this paragraph. Mr. Reilly further hereby irrevocably
and unconditionally waives any and all rights to recover any relief and
damages concerning the claims that are lawfully released in this paragraph.
Mr. Reilly represents and warrants that he has not previously filed or
joined in any such claims against any of the persons or entities released
herein, and that he has not given or sold any portion of any claims released
herein to anyone else, and that he will indemnify and hold harmless the
persons and entities released herein from all liabilities, claims, demands,
costs, expenses and/or attorneys' fees incurred as a result of any such
assignment or transfer.
3. NO ADMISSION. The parties agree that nothing contained
in this Agreement shall constitute or be treated as an admission of
liability or wrongdoing by either of them.
4. RETURN OF INFORMATION AND PROPERTY. Mr. Reilly agrees
to cooperate fully with Cenveo in returning to Cenveo, on or before the
Termination Date, any and all property belonging to the Cenveo including,
but not limited to, any and all copies of all documents or other media
containing Confidential and Proprietary Information (as defined in Section
5.3 of the Employment and Executive Severance Agreement), any customer
information,
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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.
5. NON-COMPETITION AND NON-SOLICITATION. Mr. Reilly
acknowledges and agrees that he shall be and remain subject to the
provisions of Article 5 of the Employment and Executive Severance Agreement,
in accordance with the terms thereof.
6. COOPERATION IN LEGAL PROCEEDINGS. Mr. Reilly shall
continue to cooperate with Cenveo in connection with any current or future
legal proceeding involving Cenveo. Mr. Reilly's cooperation shall include
making himself available to provide information or testimony at Cenveo's
request. Cenveo shall reimburse Mr. Reilly for reasonable expenses, if any,
he incurs while complying with this obligation.
7. TRANSITIONING DUTIES. Through the Termination Date and
thereafter for so long as Mr. Reilly receives payments from Cenveo pursuant
to this Agreement, Mr. Reilly shall cooperate with Cenveo to the extent
reasonably requested by Cenveo for the purpose of transitioning his duties.
8. DISPUTE RESOLUTION. The parties agree that any disputes
or claims relating to or arising out of this Agreement shall be resolved as
specified in Section 8.10 of the Employment and Executive Severance
Agreement.
9. REPRESENTATIONS. Each of the parties acknowledges that
such party does not rely and has not relied upon any representation or
statement made by the other party or the other party's agents,
representatives or attorneys with regard to the subject matter, basis or
effect of this Agreement or otherwise. This Agreement contains the entire
agreement between the parties relating to the subject matter of this
Agreement, and may not be altered or amended except by an instrument in
writing signed by both parties hereto.
10. GOVERNING LAW. This Agreement shall be governed by,
and construed in accordance with, the laws of Colorado (excluding the choice
of law rules thereof). The language of all parts of this Agreement shall in
all cases be construed as a whole, according to its ordinary meaning, and
not strictly for or against any of the parties.
11. WAIVER. Neither the waiver by either party of a breach
of or default under any of the provisions of the Agreement, nor the failure
of such party, on one or more occasions, to enforce any of the provisions of
the Agreement or to exercise any right or privilege hereunder shall
thereafter be construed as a waiver of any subsequent breach or default of a
similar nature, or as a waiver of any provisions, rights or privileges
hereunder.
12. ASSIGNMENT. This Agreement and the rights and
obligations of the parties hereunder may not be assigned by either party
without the prior written consent of the other party. This Agreement shall
be binding upon and inure to the benefit of the parties and their respective
representatives, successors and permitted assigns.
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13. NOTICE. All notices, demands, requests, or other
communications which are required to be given or otherwise given by either
party to the other party pursuant to this Agreement shall be in writing and
shall be deemed delivered upon deposit in the United States mail, 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 therefore
by notice given hereunder. Notice given by any other means must be in
writing and shall be deemed delivered only upon actual receipt.
If to Cenveo:
Cenveo, Inc.
8310 S. Valley Highway, #400
Englewood, Colorado 80112-5806
Attention: Chairman of the Compensation and Human Resources
Committee
If to Mr. Reilly:
Paul V. Reilly
68 Golden Eagle Lane
Littleton, Colorado 80127
14. ACKNOWLEDGMENT. With respect to the General Release in
paragraph 2 hereof, Mr. Reilly agrees and understands that he is
specifically releasing all claims under the Age Discrimination in Employment
Act, as amended, 29 U.S.C. Section 621 et seq. - a federal law which
prohibits discrimination against employees who are 40 years-old or older.
Mr. Reilly acknowledges that he has read and understands this Agreement and
executes it voluntarily and without coercion. He further acknowledges that
he is being advised herein in writing to consult with an attorney prior to
executing this Agreement, and that he has been given a period of twenty-one
(21) days within which to consider and execute this Agreement, unless he
voluntarily chooses to execute this Agreement before the end of the
twenty-one day period. Mr. Reilly understands that he has seven (7) days
following his execution of this Agreement to revoke it in writing, and that
this Agreement is not effective or enforceable until after this seven-day
period. For such revocation to be effective, notice must be received by the
Chairman of Cenveo's Compensation and Human Resources Committee no later
than the end of the seventh calendar day after the date on which Mr. Reilly
signs this Agreement. Mr. Reilly expressly agrees that, in the event he
revokes this Agreement, the Agreement shall be null and void and have no
legal or binding effect whatsoever. The parties recognize that Mr. Reilly
may elect to sign this Agreement prior to the expiration of the twenty-one
day consideration period specified herein, and Mr. Reilly acknowledges that
if he elects to do so, such election is knowing and voluntary and comes
after being advised herein in writing to consult with an attorney prior to
doing so.
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IN WITNESS HEREOF, THE PARTIES HAVE AFFIXED THEIR SIGNATURES BELOW:
Paul V. Reilly Cenveo, Inc.
/s/ Paul V. Reilly /s/ Martin J. Maloney
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By: Martin J. Maloney
Director
Date: January 6, 2005 Date: January 6, 2005
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ATTACHMENT A
January 6, 2005
Re: Resignation of Employment
Board of Directors
Cenveo, Inc.
8310 S. Valley Highway, #400
Englewood, CO 80112
I hereby tender my resignation from employment with Cenveo, Inc.
("Cenveo") and from my positions as President and Chief Executive Officer
and from any other office or position that I may hold with Cenveo or any
entity directly or indirectly owned or controlled by Cenveo, other than my
position as a director of Cenveo. I understand and agree that my resignation
from all such positions shall be effective upon acceptance of such
resignation by Cenveo's Board of Directors. Until such time, I intend to
continue my service in those positions in accordance with past practice.
Sincerely,
Paul V. Reilly
ATTACHMENT B
MR. REILLY'S SEVERANCE BENEFITS
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1. Severance Pay $2,466,200
2. Stay Bonus The pro-rata share of Mr. Reilly's target
bonus for 2005 based upon the proportion
that the number of complete months in
2005 prior to the Termination Date bears
to the complete calendar year multiplied
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by two (2). Mr. Reilly's target bonus
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for 2005 is $584,100.
3. COBRA Payments Twenty-four (24) months of premiums for
COBRA Coverage (as defined in Section
4.3(b)(i)(C) of the Employment and
Executive Severance Agreement). In the
event COBRA Coverage cannot be extended
for twenty-four (24) months, Cenveo
shall reimburse Mr. Reilly promptly upon
his request (upon presentation of
reasonable documentation showing prior
payment) for premiums paid by Mr. Reilly
for comparable medical and dental
coverage from other sources during those
months during the twenty-four (24) month
period that COBRA Coverage cannot be
obtained.
4. Outplacement Assistance Up to $15,000, as provided in Section
4.3(b)(i)(D) of the Employment and
Executive Severance Agreement
5. Accounting Assistance As provided in Section 4.3(b)(i)(E) of
the Employment and Executive Severance
Agreement