CHANGE IN CONTROL AGREEMENT
THIS CHANGE IN CONTROL AGREEMENT (this "Agreement") is effective
as of November 15, 1999 (the "Effective Date"), by and between
MAIL-WELL, INC., a Colorado corporation (the "Company"), and
Xxxx X. Xxxxxx ("Executive").
W I T N E S S E T H :
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 assure that the Company will have the continued
dedication of Executive, notwithstanding the possibility, threat or
occurrence of a Change in Control (as defined herein);
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 Change in Control, (ii) to encourage
Executive's full attention and dedication to the Company currently and
in the event of any threatened or pending Change in Control, and (iii)
to provide Executive with compensation arrangements in the event of a
Change in Control which provide Executive with financial security, which
are competitive with those of other corporations; and
WHEREAS, in order to accomplish the objectives described in the
two 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
CERTAIN DEFINITIONS
1.1 Defined Terms. For purposes of this Agreement, the
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following terms shall have the following meanings:
(a) Accrued Obligations. The term "Accrued Obligations"
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shall have the meaning ascribed to such term in Section 2.3(a) of
this Agreement.
(b) Additional Compensation. The term "Additional
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Compensation" shall mean, in addition to the Base Salary, the
following:
(i) all benefits under:
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(A) any and all welfare benefit and similar
employee benefit plans, programs, arrangements, or
policies that are made available by the Company or any
of its affiliates to Executive immediately prior to
the first to occur of (1) a termination by the Company
of Executive's employment with the Company in
anticipation of a Change in Control, or (2) the
occurrence of a Change in Control, including, but not
limited to, any hospitalization, medical,
prescription, dental, disability, salary continuance,
individual life insurance, executive life insurance,
group life insurance, accidental death insurance, and
travel accident insurance plans, programs,
arrangements, and policies; and
(B) 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 made available by the Company or any of its
affiliates to Executive immediately prior to the first
to occur of (1) a termination by the Company of
Executive's employment with the Company in
anticipation of a Change in Control, or (2) the
occurrence of a Change in Control; and
(ii) annual vacations and sick leave made available
by the Company or any of its affiliates to Executive
immediately prior to the first to occur of (1) a termination
by the Company of Executive's employment with the Company in
anticipation of a Change in Control, or (2) the occurrence
of a Change in Control; and
(iii) fringe benefits in accordance with the fringe
benefit policies of the Company or any of its affiliates
made available by the Company or any of its affiliates to
Executive immediately prior to the first to occur of (1) a
termination by the Company of Executive's employment with
the Company in anticipation of a Change in Control, or
(2) the occurrence of a Change in Control.
(c) Affiliate. The term "affiliate" or "affiliates"
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shall 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.
(d) Agreement. The term "Agreement" shall have the
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meaning ascribed to such term in the introductory paragraph of
this Agreement.
(e) Base Salary. The term "Base Salary" shall mean
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Executive's per annum base salary payable by the Company to
Executive as in effect immediately prior to the first to occur of
(1) a termination by the Company of Executive's employment with
the Company in anticipation of a Change in Control, or (2) the
occurrence of a Change in Control as the same may be increased
from time to time after the occurrence of a Change in Control.
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(f) Board. The term "Board" shall have the meaning
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ascribed to such term in the first Whereas clause of this
Agreement.
(g) Cause. The term "Cause" shall mean (i) willful
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misconduct by Executive or gross neglect by Executive of
Executive's 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 neglect
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.
(h) Change in Control. The term "Change in Control"
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shall have the meaning ascribed to such term in Section 2.5 of
this Agreement.
(i) COBRA Coverage. The term "COBRA Coverage" shall
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have the meaning ascribed to such term in Section 2.3(b)(iii)(A)
of this Agreement.
(j) Code. The term "Code" shall mean the Internal
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Revenue Code of 1986, as amended.
(k) Company. The term "Company" shall have the meaning
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ascribed to such term in the introductory paragraph and Section
3.2 of this Agreement.
(l) Control. The term "Control" and derivations thereof
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shall mean the ownership, directly or indirectly, of 50% or more
of the voting securities 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 securities, by contract or
otherwise.
(m) Controlling Entity. The term "Controlling Entity"
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shall have the meaning ascribed to such term in Section
2.4(a)(viii)(E) of this Agreement.
(n) Disabled. The term "Disabled" shall mean a mental
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or 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 the Office on a full-time basis, which inability
continues for a period of not less than 180 consecutive days.
(o) Effective Date. The term "Effective Date" shall
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have the meaning ascribed to such term in the introductory
paragraph of this Agreement.
(p) Eliminated Duties and Responsibilities. The term
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"Eliminated Duties and Responsibilities" shall have the meaning
ascribed to such term in Section 2.4(a)(i) of this Agreement.
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(q) Executive. The term "Executive" shall have the
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meaning ascribed to such term in the introductory paragraph of
this Agreement.
(r) Good Reason. The term "Good Reason" shall have the
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meaning ascribed to such term in Section 2.4(a) of this Agreement.
(s) Incumbent Board. The term "Incumbent Board" shall
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have the meaning ascribed to such term in Section 2.5(f) of this
Agreement.
(t) New Office. The term "New Office" shall have the
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meaning ascribed to such term in Section 2.4(b) of this Agreement.
(u) Office. The term "Office" shall mean President and COO.
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(v) Successor Entity. The term "Successor Entity" shall
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have the meaning ascribed to such term in Section 2.4(a)(viii)(B)
of this Agreement.
(w) Term. The term "Term" shall have the meaning
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ascribed to such term in Section 2.1 of this Agreement.
1.2 Other Terms. Other capitalized terms defined elsewhere
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herein shall have the meanings ascribed to them in the definitions
therefor appearing elsewhere herein.
ARTICLE II
TERM AND TERMINATION
2.1 Term. The term of this Agreement ("Term") shall be for
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three years commencing on the Effective Date; provided however, that if
a Change in Control occurs during such three year period, the Term shall
be for the period commencing on the Effective Date and ending on the
second anniversary of such Change in Control, notwithstanding such
three-year period.
2.2 Termination of Employment. Executive's employment with
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the Company may be terminated by the Company prior to the end of the
Term, or may be terminated by Executive prior to the end of the Term, as
of the date which is thirty (30) days after written notice of
termination is given by either party to the other.
Any notice of termination given by the Company to Executive under
Section 2.2 above shall specify whether such termination is with or
without Cause. Any notice of termination given by Executive to the
Company under Section 2.2 above shall specify whether such termination
is made with or without Good Reason. A termination of Executive's
employment by the Company (other than due to Disability as provided in
Section 2.3(d)) shall be deemed to be in anticipation of a Change in
Control if a possible or potential Change in Control is a factor in the
decision of the Company to terminate the employment of Executive.
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2.3 Obligations of the Company Upon Termination in Anticipation
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of, on or after a Change In Control
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(a) Cause; Without Good Reason. If the Company terminates
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Executive's employment with the Company in anticipation of, on or
after the occurrence of a Change in Control with Cause pursuant to
Section 2.2 hereof, or if Executive terminates Executive's
employment with the Company on or after the occurrence of a Change
in Control without Good Reason pursuant to Section 2.2 hereof,
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, the Base
Salary in effect at the time of such termination through the
date of termination; and
(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;
(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, the Additional
Compensation;
such 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 sentence, being hereinafter collectively
referred to as the "Accrued Obligations." The aggregate amount of
such obligations owing or accrued to, vested in, or earned by
Executive through the date of termination, including, but not
limited to, 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 with the Company on or after the occurrence
of a Change in Control with Good Reason pursuant to Section 2.2
hereof, or if the Company terminates Executive's employment with
the Company without Cause in anticipation of, on or after the
occurrence of a Change in Control pursuant to Section 2.2 hereof:
(i) the Company shall pay the aggregate of the
following amounts to Executive in one lump sum within thirty
(30) days after the 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:
(A) to the extent not theretofore paid,
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)
through the date of termination; and
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(B) an amount equal to the sum of: (x) three
(3) 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), (y) one and one-half (1 1/2) times the
highest annual bonus paid by the Company to Executive
in respect of the two (2) calendar years of the
Company immediately preceding such termination, 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.
(ii) In addition, the Company shall pay or cause to
be paid the aggregate of the following amounts to Executive
at the following times:
(A) 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, within thirty (30) days after
the date of such termination of employment or such
other period as may be required in accordance with any
such deferral arrangement; and
(B) in accordance with the terms of each such
plan, program, arrangement or policy, 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, all
Additional Compensation; and
(C) any and all other Accrued Obligations not
otherwise described in subsection (b)(i) above or
clauses (A) and (B) of this subsection (b)(ii); and
(iii) Executive shall receive the following additional
benefits:
(A) if Executive elects medical or dental
coverage under the Company's group medical or dental
plans pursuant to Section 4980B of the Code ("COBRA
Coverage"), the Company shall reimburse Executive,
promptly upon request by Executive, an amount equal to
the remainder, if any, resulting from the subtraction
of (1) the monthly medical and/or dental 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), from (2) the medical and/or
dental premium paid by Executive for the last month of
coverage under the Company's group medical or dental
plans immediately before Executive's employment with
the Company was terminated; and
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(B) 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 $20,000; and
(C) assistance to Executive to be provided by
a "Big Five" accounting firm selected by the Company
or other mutually agreeable accounting firm for
federal and state income tax planning and federal and
state income tax return preparation for Executive for
the calendar year in which such termination of
employment occurred.
(c) Death. If Executive's employment is terminated on
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or after the occurrence of a Change in Control by reason of
Executive's death, the Company shall pay to Executive's legal
representatives the full amount of the obligations owing or
accrued to, vested in, or earned by Executive through the date of
Executive's death, including, but not limited to, the Accrued
Obligations in accordance with the plans, programs, or agreements
under which the Accrued Obligations were earned. Anything in this
Agreement to the contrary notwithstanding, Executive's family
shall be entitled to receive benefits provided by the Company and
any of its affiliates to surviving families under the then
existing or applicable plans, programs, or arrangements and
policies of the Company and its affiliates.
(d) Disability. The Company may, at its option, terminate
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Executive's employment by written notice to Executive upon
Executive's becoming Disabled. Such termination shall not be
deemed to be a termination of Executive's employment in
anticipation of, on or after a Change in Control. If Executive's
employment is terminated on or after the occurrence of a Change in
Control by reason of Executive becoming Disabled, the Company
shall pay to Executive or Executive's legal representative the
full amount of the obligations owing or accrued to, vested in, or
earned by Executive through the date of termination, including,
but not limited to, the Accrued Obligations in accordance with the
plans, programs, or agreements under which the Accrued Obligations
were earned.
2.4 Good Reason.
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(a) Except as provided in Section 2.4(b) below, as used in
this Agreement, the term "Good Reason" means a good faith
determination by Executive that any one or more of the following
events has occurred on or after the occurrence of a Change in
Control:
(i) a material change in the nature of Executive's
Office, including, but not limited to, Executive's
authorities, duties, responsibilities or status (including
offices, titles, reporting requirements and supervisory
functions), from those in effect immediately prior to the
Change in Control. Notwithstanding the foregoing, Executive
shall not assert as "Good Reason" the sole fact that the
portion of Executive's duties and responsibilities directly
attributable to a change in the ownership of the outstanding
capital stock or outstanding indebtedness of the Company,
the presence or absence of a trading market for any of the
securities
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of the Company, any refinancing of indebtedness of the
Company or the incurrence of any additional indebtedness by
the Company has been eliminated (the "Eliminated Duties and
Responsibilities"), unless the performance of all or any
portion of the Eliminated Duties and Responsibilities
continue to be required; or
(ii) the relocation of Executive's place of
employment to a location in excess of thirty-five (35) miles
from the Company's current offices in Englewood, Colorado,
except for required travel on Company business to an extent
substantially equivalent to Executive's business travel
obligations immediately prior to the Change in Control; or
(iii) any reduction by the Company of Executive's Base
Salary, or a material reduction in Executive's bonus, profit
sharing, other incentive benefits or Additional Compensation
from those in effect immediately prior to the Change in
Control; or
(iv) the failure by the Company to increase
Executive's Base Salary in a manner consistent (both as to
frequency and percentage increase) with (A) the Company's
practices in effect immediately prior to the Change in
Control with respect to similarly positioned employees or
(B) the Company's practices implemented subsequent to the
Change in Control with respect to similarly positioned
employees, unless, in either case, such failure is due to
the failure by Executive to meet performance standards
applicable to similarly positioned employees; or
(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 satisfactory
assumption in writing of the Company's obligations under
this Agreement; or
(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 immediately prior to the Change in Control and not
materially dissimilar to the office space, related
facilities and support personnel provided to other key
executive officers of the Company; or
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(viii) if Executive served on the Board of
Directors of the Company prior to a Change in Control, (A)
the removal of Executive or the current Chairman of the
Board of the Company, if not Executive, as a director of the
Company, if it is a surviving entity in the Change in
Control transaction, or (B) the failure of Executive or the
current Chairman of the Board of the Company, if not
Executive, to be named as a director of any successor to the
Company, including any successor to a material portion of
the business or assets of the Company (each, a "Successor
Entity"), or (C) the failure of Executive or the current
Chairman of the Board of the Company, if not Executive, to
be nominated for election to the Board of Directors of the
Company or any Successor Entity or (D) the failure of
Executive or the current Chairman of the Board of the
Company, if not Executive, to be elected or reelected to the
Board of Directors of the Company or any such Successor
Entity, or (E) the failure of Executive or the current
Chairman of the Board of the Company, if not Executive, to
be appointed to the Board of Directors of any entity or
entities that Control the Company or any Successor Entity
(each, a "Controlling Entity") or (F) the removal of
Executive or the current Chairman of the Board of the
Company, if not Executive, as a director of any Controlling
Entity, or (G) the failure of Executive or the current
Chairman of the Board of the Company, if not Executive to be
nominated for election to the Board of Directors of any
Controlling Entity, or (H) the failure of Executive or the
current Chairman of the Board of the Company, if not
Executive, to be elected or reelected to the Board of
Directors of any Controlling Entity, or (I) the removal of
the current Chairman of the Board of the Company from such
position with the Company, or the failure of the current
Chairman of the Board of the Company to be appointed to such
position with any Successor Entity or Controlling Entity
(other than a Successor Entity or Controlling Entity whose
common equity securities are publicly traded) or the removal
of the current Chairman of the Board of the Company from
such position with any Successor Entity or Controlling
Entity (other than a Successor Entity or Controlling Entity
whose common equity securities are publicly traded) without,
in each case, Executive's prior written consent; or
(ix) the Company notifies Executive of the Company's
intention not to observe or perform one or more of the
obligations of the Company under this Agreement; or
(x) the Company breaches any provision of this
Agreement and such breach is not cured within thirty (30)
days after the Company's receipt of notice thereof from
Executive.
(b) If, after the occurrence of a Change in Control,
Executive receives a written description from the Company of the
nature of Executive's Office thereafter, stating Executive's
authorities, duties, responsibilities, status, salary, bonus and
other employee benefits, or job location, 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 2.4(a), then for the
remaining Term the New Office
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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 2.4(a).
2.5 Change in Control. As used herein, the term "Change in
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Control" 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;
(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
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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).
2.6 Legal Fees and Expenses. If Executive shall prevail in
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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',
accountants' and experts' fees and expenses and court costs 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.
2.7 Non-exclusivity of Rights. Nothing in this Agreement
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shall prevent 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 constituting
Additional Compensation) 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 any
other agreements with the Company or any of its affiliates. Amounts
which are vested benefits or which Executive and/or Executive's family
is otherwise entitled to receive under any plan, program, arrangement,
or policy of the Company or any of its affiliates (including, but not
limited to, any plan, program, arrangement or policy constituting
Additional Compensation) at or subsequent to the date of termination of
Executive's employment under this Agreement shall be payable in
accordance with such plan, program, arrangement or policy.
2.8 Full Payment; No Mitigation Obligation. The Company's
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obligation to make the payments provided for in this Agreement and
otherwise to perform its obligations hereunder shall not be affected by
any set-off, counterclaim, recoupment, defense or other claim, right or
action which the Company may have against Executive or others. In no
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.
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2.9 Delivery of Release. Within thirty (30) days after
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termination of Executive's employment (other than due to death of
Executive) in anticipation of, on or after the occurrence of a Change in
Control, the Company shall provide to Executive, or Executive's legal
representative, a form of written release, which form shall be
reasonably satisfactory to the Company and generally consistent with the
form of release used by the Company prior to the earlier of (a) such
termination of employment, if the Company has terminated Executive's
employment in anticipation of a Change of Control, or (b) the occurrence
of the Change in Control. 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 (other than due to death of
Executive) Executive, or Executive's legal representative, shall deliver
to the Company a written release, substantially in the form described
above and provided to Executive by the Company within such thirty (30)
day period, releasing the Company and its affiliates from any and all
liability related to Executive's employment or the termination thereof,
other than liabilities arising under this Agreement.
ARTICLE III
GENERAL PROVISIONS
3.1 Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the state of Colorado.
3.2 Assignability. This Agreement is personal to Executive
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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.
3.3 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.
3.4 Entire Agreement; Amendment. This Agreement constitutes
---------------------------
the entire agreement and understanding between Executive and the Company
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.
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3.5 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.
3.6 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.
If to the Company:
Mail-Well, Inc.
00 Xxxxxxxxx Xxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: President
If to Executive:
Xxxx X. Xxxxxx
00 Xxxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
3.7 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.
3.8 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 which would render the provision
valid, then the provision shall have the construction which renders it
valid.
3.9 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 on or after the occurrence of a Change in
Control.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the Effective Date.
MAIL-WELL, INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxx
Chairman and CEO
EXECUTIVE
/s/ Xxxx X. Xxxxxx
------------------------------------
Xxxx X. Xxxxxx
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