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EXHIBIT 10(d)
SEVERANCE AGREEMENT
THIS SEVERANCE AGREEMENT ("Agreement") is entered into as of the 15th day
of November, 1994, by and between DUPLEX PRODUCTS INC., a corporation,
("DUPLEX") and XXXXXX XXXXXXXX ("XXXXXXXX").
WHEREAS, DUPLEX desires to hire XXXXXXXX in the position of Vice President
and Chief Financial Officer.
WHEREAS, XXXXXXXX desires employment with DUPLEX in the position of Vice
President and Chief Financial Officer.
NOW THEREFORE, in consideration of the promises set forth in this
Agreement, and in further consideration of CAMPBELL's employment by DUPLEX, the
parties agree as follows:
1. Definitions. The terms defined below shall have the following meanings
throughout this Agreement:
1.1 Base Annual Salary. For purposes of this Agreement, "Base Annual
Salary" shall be equal to the greater of:
1.1.1 CAMPBELL's annual salary excluding bonuses or other similar
payments as of the date of a Change of Control; or
1.1.2 CAMPBELL's annual salary excluding bonuses or other similar
payments as of the date of a Qualifying Termination.
1.2 Change of Control. A "Change of Control" shall exist upon the first
of the following to occur:
1.2.1 Any tender offer, merger or other business combination, sale
of assets, contested election or any combination of the foregoing
transactions (a "Transaction"), which results in the persons who
were directors of DUPLEX before the Transaction ceasing to
constitute a majority of the Board of Directors of DUPLEX or any
successor to DUPLEX after the Transaction;
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1.2.2 DUPLEX merges or consolidates with another corporation and as
a result of the merger or consolidation fifty percent (50%) or less
of the outstanding voting securities of the surviving or resulting
corporation shall then be owned in the aggregate by former
stockholders of DUPLEX;
1.2.3 A tender offer or exchange offer is made and consummated for
the ownership of securities of DUPLEX representing more than fifty
percent (50%) of the combined voting power of DUPLEX's then
outstanding voting securities; or
1.2.4 DUPLEX transfers substantially all of its assets to another
corporation which is not a wholly-owned subsidiary of DUPLEX.
1.3 QUALIFYING TERMINATION. A "Qualifying Termination" is a termination of
CAMPBELL's employment qualifying him for Severance Consideration under
this Agreement and shall mean:
1.3.1 Any termination of CAMPBELL's employment by DUPLEX or any
successor to DUPLEX without cause;
1.3.2 Any resignation from employment by XXXXXXXX within 90 days
following a Change of Control;
1.3.3 Any significant diminution of CAMPBELL's responsibilities as
Vice President and Chief Financial Officer of DUPLEX; or
1.3.4 Any reduction in CAMPBELL's Base Annual Salary.
1.4 SEVERANCE CONSIDERATION. "Severance Consideration" shall be equal to
one year's Base Annual Salary, plus a pro rata share of any earned bonus
based upon performance. Severance Consideration shall be paid from the
general assets of DUPLEX, or any successor of DUPLEX. DUPLEX, or any
successor of DUPLEX, shall not establish a separate trust, account or plan
for the payment of Severance Consideration.
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2. PAYMENT OF SEVERANCE CONSIDERATION. If CAMPBELL's employment with DUPLEX,
or any successor of DUPLEX, is subject to a Qualifying Termination, then
DUPLEX, or any successor of DUPLEX, shall pay to XXXXXXXX Severance
Consideration pursuant to the terms of this Agreement. Severance Consideration
shall be paid to XXXXXXXX in substantially equal installments over the course
of 12 months in keeping with DUPLEX's standard payroll practice. In the event
of CAMPBELL's death prior to the entire Severance Consideration being paid, any
remaining amounts due shall be paid to CAMPBELL's estate in the same manner
provided for herein.
3. OUTPLACEMENT SERVICES. In addition to Severance Consideration, if XXXXXXXX
experiences a Qualifying Termination, then DUPLEX, or any successor of DUPLEX,
shall provide XXXXXXXX with outplacement services. Outplacement services shall
be provided by a firm mutually agreed upon by both XXXXXXXX and DUPLEX. In all
other respects, the duration, arrangements and amounts expended for such
services shall be determined by DUPLEX, or any successor of DUPLEX; provided,
however, that such outplacement services shall continue for a minimum of 6
months.
4. WITHHOLDING OF TAXES. DUPLEX shall withhold from any Severance
Consideration payable under this Agreement all federal, state, city or other
taxes as may be required by law.
5. NOT AN EMPLOYMENT AGREEMENT. Nothing in this Agreement shall give XXXXXXXX
any right to continued employment with DUPLEX or any successor of DUPLEX, nor
shall it give DUPLEX any rights to the continued performance of duties by
XXXXXXXX for DUPLEX or any successor of DUPLEX.
6. NOTICES. Notices under this Agreement shall be in writing and shall be
deemed given when mailed by United States registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
If to DUPLEX to:
Duplex Products Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Chairman of the Board
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If to XXXXXXXX to:
Xxxxxx Xxxxxxxx
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or to such other address as either party may furnish to the other in writing,
except that notices of changes of address shall be effective only upon receipt.
7. APPLICABLE LAW. The performance and interpretation of this Agreement shall
be construed in accordance with the laws of the State of Illinois.
8. SEVERABILITY. If a court of competent jurisdiction determines that any
provision of this Agreement is invalid or unenforceable, then the invalidity or
unenforceability of that provision shall not affect the validity or
enforceability of any other provision of this Agreement and all other
provisions shall remain in full force and effect.
9. NO ASSIGNMENT. CAMPBELL's rights to receive payments or benefits under this
Agreement shall not be assignable or transferable whether by pledge, creation
of a security interest or otherwise. DUPLEX shall have no liability to pay any
amount so attempted to be assigned or transferred.
10. SUCCESSORS. This Agreement shall be binding upon and inure to the benefit
of DUPLEX, its successors and assigns (including, without limitation, any
company into or with which DUPLEX may merge or consolidate). DUPLEX agrees
that it will not effect a Change of Control unless either: the person or
entity acquiring control of DUPLEX shall expressly assume by an instrument in
writing all duties and obligations of DUPLEX under this Agreement; or DUPLEX
shall provide for the payment in full of all amounts which are payable to
XXXXXXXX under this Agreement.
11. AGREEMENT AND RELEASE. CAMPBELL's right to receive and DUPLEX's obligation
to pay Severance Consideration shall be contingent upon XXXXXXXX executing a
binding agreement setting forth a release of any and all claims arising from
his employment and/or termination of employment with DUPLEX or any successor of
DUPLEX.
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Such agreement shall also contain covenants of confidentiality and
non-competition. Said non-competition covenant shall be for a period of
one year following a Qualifying Termination and shall provide, in part, that
XXXXXXXX shall not, directly or indirectly, either for himself or for any other
person, firm, partnership, agency, corporation or other entity, compete with
DUPLEX, or any successor of DUPLEX, in its lines of business or solicit, call
upon, divert or take away or attempt to solicit, divert or take away from
DUPLEX any customers of DUPLEX or any potential customers of DUPLEX nor assist
any other person or entity in doing so within the United States of America.
12. Entire Agreement. This Agreement represents the entire agreement of the
parties regarding the severance pay arrangements between them. This Agreement
may not be modified except by a writing signed by both parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered as of the day and year first written.
DUPLEX PRODUCTS INC.,
By: Xxxx X. Xxxxx, Xx. /s/Xxxxxx X. Xxxxxxxx
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XXXXXX XXXXXXXX
Its: Chairman of the Compensation Committee
