EXHIBIT 10.27
EXECUTIVE SEVERANCE AGREEMENT
THIS EXECUTIVE SEVERANCE AGREEMENT ("Agreement") is effective as of the
1st day of June, 2001 (the "Effective Date"), by and between MAIL-WELL, INC., a
Colorado corporation (the "Company"), and ("Executive").
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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 Triggering Event (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 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 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
TERM AND TERMINATION OF EMPLOYMENT
1.1 Term. Except as otherwise set forth herein, the term of this
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Agreement ("Term") shall commence on the Effective Date and shall continue for
an initial period ending December 31, 2002 and shall continue for additional
12-month periods thereafter unless written notice to the contrary is given by
either party to the other at least ninety (90) days prior to the end of the then
current term; provided however that if a Triggering Event occurs during the Term
(including any renewal period), the Term shall be for the period commencing on
the Effective Date and ending on the second anniversary of such Triggering
Event.
1.2 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, or a Segment Successor (as defined
herein), to Executive;
(b) Notice by Executive. The Executives' termination of
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Employment; or
(c) Death or Disability. Executive's death or, at the
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Company's option, upon Executive's becoming Disabled. As used herein,
"Disabled" shall mean a mental 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 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.
Any notice of termination given by the Company or a Segment Successor to
Executive under Section 1.2(a) above shall specify whether such termination is
with or without Cause (as defined in Section 1.6 hereof). Any notice of
termination given by Executive to the Company or a Segment Successor under
Section 1.2(b) above shall specify whether such termination is made with or
without Good Reason (as defined in Section 1.5(a) hereof).
1.3 Obligations of the Company upon Termination in Anticipation
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of, on or after a Triggering Event:
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(a) Good Reason; Without Cause. If, during the Term of this
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Agreement, Executive terminates Executive's employment with the Company
or a Segment Successor, after having provided at least ninety (90) days
advance written notice, on or after the occurrence of a Triggering
Event with Good Reason, or if during the Term of this Agreement, the
Company or a Segment Successor terminates Executive's employment with
the Company without Cause in anticipation of, on or after the
occurrence of a Triggering Event, and in lieu of any other severance
benefits that would otherwise be payable to Executive, the Company or
Segment Successor shall pay the aggregate of the following amounts to
Executive:
(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
or Segment Successor; and
(iii) all other amounts or benefits owing or accrued
to, vested in or earned by Executive through the date of
separation under the then existing or
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applicable plans, programs, arrangements, and policies of
the Company or Segment Successor and their respective
affiliates.
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 section 1.3(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 or Segment Successor to Executive in
accordance with the plans, programs or agreements under which the
Accrued Obligations were earned.
In addition, the Company or Segment Successor shall pay
Executive in one lump sum within ninety (90) days after the date of
such termination, or in a manner and at such later time as otherwise
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:
(iv) an amount equal to the sum of: (x) [one][one and
one-half][two] 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][one and one-half][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;
(v) if Executive elects medical or dental coverage
under the Company's or Segment Successor's group medical or
dental plans pursuant to Section 4980B of the Internal Revenue
Code of 1986, as amended ("Code") ("COBRA Coverage"),
reimbursement promptly upon request by Executive (upon
presentation of reasonable documentation showing prior
payment), of an amount equal to the premium paid each month by
Executive for COBRA Coverage during the 12 months of such
COBRA Coverage (or during such shorter period that COBRA
Coverage for Executive is in effect);
(vi) such individual outplacement service as are
appropriate for Executive's position for up to 12 months after
termination of employment for a cost not to exceed $10,000;
and
(vii) 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.
(b) Allocations. The payments made under this Section 1.3
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shall, in the aggregate, be in consideration for the Executive's
separate agreements under Sections
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1.12 and 1.13 and Article II of this Agreement and, in part, to
provide Executive certain additional severance benefits under the
circumstances set forth in this Section 1.3. 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.
(c) Exceptions. Section 1.3(a)(iv)-(vii) shall not apply to
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the termination by the Company of Executive's employment in connection
with the sale of the stock or assets of a Business Segment (as defined
herein) if Executive continues employment with, or is offered
employment by, the Business Segment or the Company in a stock sale or
the purchaser of the assets of the Business Segment in an asset sale
(in either case the "Segment Successor") on terms that would not
otherwise qualify as Good Reason.
(d) Waiver. The Company may, at its sole option, waive
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Executive's obligation to give ninety (90) days advance written notice
of termination contained in paragraph 1.3(a).
1.4 Other Terminations. If Executive's employment is terminated
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for any reason or circumstance not set forth in Section 1.3, the Company shall
pay to Executive all Accrued Obligations, as defined above, owed to Executive.
1.5 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 immediately prior
to the Triggering Event. 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, resulting from the
Triggering Event has been eliminated (the "Eliminated Duties
and Responsibilities"), unless the performance of all or any
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 immediately prior to the
Triggering Event;
(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 immediately prior
to the Triggering Event;
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(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 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 Triggering Event
with respect to similarly positioned employees or (B) the
Company's practices implemented subsequent to the Triggering
Event 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;
(vi) 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;
(vii) 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;
(viii) 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
(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.
(b) If, at any time during the Term of this Agreement,
whether before or after the occurrence of a Triggering Event, Executive
receives a 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
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 1.5(a), then for the remaining Term, the New
Office shall be the authorities, duties, responsibilities, status,
salary, bonus and other
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employee benefits, or job location to be used by Executive in
determining whether Good Reason occurs thereafter pursuant to
Section 1.5(a).
1.6 Cause. The term "Cause" shall mean (i) willful misconduct by
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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 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.
1.7 Triggering Event. As used herein, the term "Triggering Event"
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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).
1.8 Additional Triggering Events in Specific Circumstances. In
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addition to those Triggering Events specified in Sections 1.7 above, the
following events shall also be Triggering Events:
(a) With respect to an Executive who devotes substantially all
of his or her time and energy to the management and operation of a
Business Segment (a "Segment Executive"), the combination of Business
Segments, the sale of substantially all the capital stock of a Business
Segment, or the transfer, sale or contribution of more than 50% of the
Business Segment's Base Revenues (as defined below) shall constitute a
Triggering Event. For the purposes of this Agreement, a "Business
Segment" shall be defined as either Mail-Well Envelope, Mail-Well Print
Group, Mail-Well Label, PrintXcel, or Xxxxxx 1000, as such businesses
are constituted as of the date hereof.
(b) With respect to a Mail-Well Corporate Office Executive who
does not devote substantially all of their time and energy to the
management and operation of a single Business Segment, but rather
divides his or her time and energy among the Business Segments or
towards other Corporate objectives ("a Corporate Executive").
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(i) the sale of any Business Segment or Business
Segments in the aggregate constituting more than 50% of the
revenues of the Company (excluding discontinued operations) as
such revenues were reported in the Company's Annual Report on
Form 10(K) for the year ended December 31, 2000 ("Base
Revenues") shall constitute a Triggering Event;
(ii) the elimination of the Corporate Executive's
corporate department or major corporate function, such as
legal, human resources, purchasing, treasury or the like.
1.9 Legal Fees and Expenses. If Executive shall prevail in any
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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 attorney, accounts' 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.
1.10 Non-exclusivity of Rights. Except as provided in Section 4.4
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below, nothing in this Agreement 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 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 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.
1.11 Full Payment; No Mitigation Obligation. The Company's
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obligation to make the payments provided for in sections 1.3(a)(iv)-(vii) in
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 or others, and is also
contingent upon Executive's execution of the release described in Section 1.12.
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.
1.12 Delivery of Release. Within thirty (30) days after termination
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of Executive's employment (other than due to death of Executive) in anticipation
of, on or after the occurrence of a Triggering Event, 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 the earlier of (a) such
termination of employment, if the Company has terminated Executive's employment
in anticipation of a Triggering Event, or (b) the occurrence of the Triggering
Event. 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
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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.
1.13 Stay-on Requirement. In consideration for the agreements of
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the Company hereunder and as a condition for the payments to be made to pursuant
to Section 1.3(a)(iv)-(vii) hereof, Executive agrees that Executive will not
voluntarily terminate his employment with the Company or, in the case of a
Segment Executive, with any Segment Successor with respect to which Executive is
a Segment Executive, prior to or within three months following a Triggering
Event.
1.14 Mitigation. Executive agrees to do anything reasonably
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requested 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 1.3(b). In addition, at the option of
the Executive, if a reduction in the payments made under Section 1.3(a)(iv), (v)
and (vi) 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.
ARTICLE II
NON-COMPETITION AND NON-SOLICITATION
2.1 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 (as defined
herein), which has value to the Company.
(b) Executive acknowledges that his service as Vice President,
Tax & Treasurer 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.
(c) 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 which entitles Executive to receive
payments under Section 1.3(a)(iv)-(vii), Executive shall not
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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 in which the Segment
Executive is currently engaged in by the Company or, with
respect to a Corporate Executive, the entire company.
(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.
(d) The foregoing restrictions shall not apply to employment
with a Segment Successor that acquires the Business Segment for which
the Executive is a Segment Executive.
(e) 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
period of time, that the court determines reasonable in light of all
then-existing circumstances.
2.2 Non-Solicitation of Employees. The Executive agrees that for
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the term of this Agreement and for a period of two (2) years following his
separation from employment for any reason which entitles Executive to receive
payments under Section 1.3(a)(iv)-(vii), Executive shall not directly or
indirectly solicit or recruit, or attempt to solicit or recruit, or 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.
2.3 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
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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 and Proprietary 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 while in the employ of the Company. 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 and Proprietary 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.
2.4 Specific Enforcement; Modification. Executive acknowledges
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that the provisions of Sections 2.1, 2.2 and 2.3 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 this Article II unenforceable, the court shall be
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.
2.5 Provisions Not Exclusive. The provisions of Sections 2.1,
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2.2, 2.3 and 2.4 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 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.
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3.2 Assignability. This Agreement is personal to Executive and
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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 including any Segment
Successor that employs Executive following a Triggering Event. 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, and any Segment Successor that employs Executive following a Triggering
Event, to expressly assume and agree to perform, by a written agreement in form
and substance reasonably 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 (including any
Segment 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. 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 Triggering Event. It is expressly understood that any previously executed
Executive Severance Agreement or Change of Control Agreement or any other
agreement which purports to have change of control or similar provisions in it,
are hereby superceded by this Agreement. 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.
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 therefore by notice
given hereunder. Notice given by any other means must be in writing and shall be
deemed delivered only upon actual receipt.
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If to the Company:
Mail-Well, Inc.
0000 X. Xxxxxx Xxxxxxx, #000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: President and CEO
with a copy to: Mail-Well, Inc.
0000 X. Xxxxxx Xxxxxxx, #000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Vice President-General Counsel
If to Executive:
To the last address reflected on the records of the
Company, unless otherwise provided in writing to the Company
pursuant to this Section.
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 affect 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.
3.9 Arbitration of Disputes. Except for disputes and controversies
-----------------------
arising under Article II 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
MAIL-WELL, INC.
By:
--------------------------------------
Xxxx Xxxxxx
President and CEO
EXECUTIVE
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