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EXHIBIT 17
SEPARATION AGREEMENT
This SEPARATION AGREEMENT (the "Agreement") is made and entered into
this 19th day of January, 2000 (the "Execution Date"), to become
effective as of the eighth day after the Execution Date (the "Effective Date"),
by and between AMERICAN BUSINESS PRODUCTS, INC., a Georgia corporation ("ABP")
and XXXXX X. XXXXXXXXXXX, III (the "Executive").
WITNESSETH:
WHEREAS, the Executive has been employed as the President and Chief
Executive Officer of ABP, pursuant to that certain Employment Agreement dated
May 11, 1999 (the "Employment Agreement"); and
WHEREAS, ABP and the Executive have mutually agreed to end the
employment relationship and desire to enter into this Separation Agreement to
specify the terms and conditions of the termination of the Executive's
employment and the Employment Agreement;
NOW, THEREFORE, in consideration of the above premises and mutual
covenants and agreements hereinafter set forth, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto
agree as follows:
1. TERMINATION OF THE EXECUTIVE'S EMPLOYMENT.
The Executive and ABP agree and acknowledge that the Executive's
active employment with ABP terminated as of the close of business on December
31, 1999 (the "Resignation Date").
2. RESIGNATION FROM COMPANY POSITIONS.
As of September 16, 1999, the Executive tendered his resignation as
President and Chief Executive Office of ABP, as a member of the Board of
Directors of ABP, and as an officer and director of each of ABP's subsidiaries.
Also, effective as of September 16, 1999, the Executive resigned as a trustee
of ABP's Profit Sharing Retirement Plan, Employee Savings Plan and Group Health
Insurance Trust, and as a trustee, plan administrator and fiduciary for any
other plan, trust or other arrangement in which he held such a position. The
Executive also resigned, as of September 16, 1999, from any and all ABP
positions in which the Executive was elected or appointed, including any and
all positions in which the Executive was charged with fiduciary responsibility.
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3. SEPARATION PACKAGE.
In addition to the compensation and benefits to which the Executive would
be entitled based upon his employment with ABP through the Resignation Date,
the Executive shall receive the following as additional consideration, which
the Executive acknowledges is significant and substantial:
a. COMPENSATION.
i. Continuation of Salary. ABP shall continue the salary of the
Executive at a monthly base rate of $37,500.00 (less any
applicable taxes, authorized deductions, and any amounts
owed by Executive to ABP), payable for the period beginning
on January 1, 2000 through June 30, 2000. Payments shall be
made on the regular payroll basis.
Payments shall be made under this provision regardless of
the Executive's obtaining employment elsewhere. However, if
at any time during the period of salary continuation, the
Executive breaches his obligations under this Agreement, ABP
may, upon written notice to the Executive, cease to make any
further payments or provide any continuation of salary.
In the event of the Executive's death during the Severance
Period, payments under this paragraph shall immediately
cease and no further continuation of salary payments shall
be payable hereunder.
ii. Incentive and Bonus Compensation. The Executive shall not be
eligible for consideration for any awards under any annual
or long-term incentive compensation or bonus plan, program
or arrangement of ABP for 1999 or any year thereafter.
iii. Long-term Incentive Compensation. ABP agrees to arrange for
the Committee of the 1999 Incentive Compensation Plan: (i)
to provide that all stock options held by the Executive
shall immediately become exercisable as of the Resignation
Date and shall remain exercisable for a period of two (2)
years following the Resignation Date; and (ii) to provide
that with respect to the restricted stock award of 131,000
shares of ABP Common Stock awarded to the Executive on
February 25, 1999, 29,256 shares shall become immediately
vested and nonforfeitable effective as of the Resignation
Date (with the remaining shares forfeited as of such date).
b. BENEFITS.
The Executive shall cease to be eligible to participate in all employee
benefit plans sponsored by, contributed to or maintained by ABP as of
the Resignation Date, except as may be required by COBRA continuation
coverage provisions or other federal or state
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law.
4. COOPERATION AFTER RESIGNATION DATE.
The Executive agrees to cooperate fully with ABP and to reasonably
assist ABP on all matters relating to his employment and the conduct of
business, including any litigation, claim or suit in which ABP deems that the
Executive's cooperation is needed.
5. COVENANT NOT TO DISCLOSE COMPANY PROPRIETARY INFORMATION.
During the Executive's employment with ABP, he has had access to and
become familiar with information that the parties acknowledge to be
confidential, valuable or uniquely proprietary information regarding ABP, its
products, customers and employees. For a period of three (3) years from the
date of this Agreement, the Executive shall neither use nor disclose for any
purpose any information relating to the financial condition, prospects, capital
stock, the manner of doing business, customer lists, pricing information,
inventory or any other property of ABP, its officers, customers, or employees,
or any other such confidential, valuable or uniquely proprietary information.
Information in the public domain or information that is commonly known by or
available to the public through ABP's press releases, public documents, annual
reports, SEC filings or other public filings shall not be considered
proprietary or confidential information.
6. RETURN OF COMPANY DOCUMENTS AND PROPERTY.
The Executive hereby represents and warrants that, as of the Execution
Date of this Agreement, he has returned to ABP all documents (including copies
and computer records thereof) of any nature which relate to or contain
proprietary or confidential information concerning ABP, its customers, or
employees, and any and all property of ABP which has been in his possession,
including, except as hereinafter provided, any computers, computer programs or
limited use software licenses in his possession. The Executive confirms that
all confidential information is and shall remain the exclusive property of ABP.
All business records, papers and documents kept or made by the Executive
relating to the business of ABP shall be and remain the property of ABP, except
for such papers customarily deemed to be the personal copies of the Executive.
Information in the public domain or information that is commonly known by or
available to the public through ABP's press releases, public documents, annual
reports, SEC filings or other public filings shall not be considered
proprietary or confidential information.
7. GENERAL RELEASE BY THE EXECUTIVE.
Except as specifically provided in Section 8 hereof, for and in
consideration of the additional consideration to be provided to the Executive
by ABP pursuant to this Agreement,
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the sufficiency of which is hereby acknowledged, the Executive does hereby, for
and on behalf of himself and his related entities and persons, fully and
finally release, acquit and forever discharge ABP, ABP's related entities and
persons, all employee benefit plans of ABP and all employee benefit plans of
ABP's related entities, and such plans' related entities and persons, of and
from any and all claims, counterclaims, actions, causes of action, demands,
rights, damages, costs, expenses or compensation which the Executive and/or the
Executive's related entities and persons now have, or may have, or may
hereafter claim to have had as of the Execution Date, whether developed or
undeveloped, anticipated or unanticipated, based on any acts, omissions,
transactions or occurrences whatsoever occurring prior to and/or up until the
Execution Date, and specifically, but not by way of limitation, from those
claims which are, or arise by reason of, or are in any way connected with, or
which are or may be based in whole or in part on the employment relationship
which existed between the Executive and ABP and the termination of that
employment relationship, including, without limitation, (i) those claims
arising under any foreign, federal, state, county or municipal fair employment
practices act and/or any law, ordinance or regulation promulgated by any
foreign, federal, state, county, municipality or other state subdivision; (ii)
those claims for breach of duty and/or implied covenant of good faith and fair
dealing; (iii) those claims for interference with and/or breach of contract
(express or implied, in fact or in law, oral or written); (iv) those claims for
retaliatory or wrongful discharge of any kind; (v) those claims for intentional
or negligent infliction of emotional distress or mental anguish; (vi) those
claims for outrageous conduct; (vii) those claims for interference with
business relationships, contractual relationships or employment relationships
of any kind; (viii) those claims for breach of duty, fraud, fraudulent
inducement to contract, breach of right of privacy, libel, slander, or tortious
conduct of any kind; (ix) those claims arising under Title VII of the Civil
Rights Act of 1964 and/or the Civil Rights Act of 1991 and/or 42 U.S.C.
ss.1981; (x) those claims arising under the Age Discrimination in Employment
Act of 1967, the Age Discrimination Claims Assistance Act of 1988 and/or the
Older Workers' Benefit Protection Act; (xi) those claims arising under any
state or federal handicap or disability discrimination law or act, including
but not limited to the Rehabilitation Act of 1973 and the Americans with
Disabilities Act; (xii) those claims arising from any damages suffered at any
time by reason of the effects or continued effects of any alleged or actual
discriminatory or wrongful acts; (xiii) those claims arising under or in
reliance upon any statute, regulation, rule or ordinance (local, state or
federal); (xiv) those claims arising under Employment Retirement Income
Security Act of 1974, as amended, and/or the Family and Medical Leave Act; (xv)
those claims arising under the workers' compensation laws of any state or other
jurisdiction; and (xvi) any and all other claims arising under law or in equity
in the United States of America or in any foreign jurisdiction.
8. LIMITATION OF RELEASE BY THE EXECUTIVE.
Notwithstanding the provisions of Section 7 hereof, it is understood and
agreed that the waiver of benefits and claims contained in Section 7 does not
include a waiver of the right to payment of any vested, nonforfeitable benefits
to which the Executive or a beneficiary of the Executive may be entitled under
the terms and provisions of any employee benefit plan of ABP
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which have accrued as of the Resignation Date, and does not include a waiver of
the right to benefits and payment of consideration to which the Executive may
be entitled under this Agreement. The Executive acknowledges that he is only
entitled to the additional benefits and compensation set forth in this
Agreement, and that all other claims for any other benefits or compensation are
hereby waived, except those expressly stated in the preceding sentence.
9. KNOWING AND VOLUNTARY WAIVER OF RIGHTS BY THE EXECUTIVE.
The Executive agrees and acknowledges that he has carefully reviewed,
studied and thought over the terms of this Agreement, and that all questions
concerning this Agreement have been answered to his satisfaction. The Executive
does further acknowledge and agree that he has had the opportunity to keep this
Agreement in his possession for at least twenty-one (21) days, and that he has
had the opportunity to consider and reflect upon the terms of this Agreement
before signing it, that he knowingly and voluntarily entered into and signed
this Agreement after deliberate consideration and review of all of its terms and
provisions, that he was not coerced, pressured or forced in any way by ABP or
anyone else to accept the terms of this Agreement, that the decision to accept
the terms of this Agreement was entirely his own, that HE WAS ADVISED IN WRITING
TO CONSULT WITH AN ATTORNEY PRIOR TO EXECUTING THIS AGREEMENT AND PRIOR TO THE
EXECUTION DATE OF THIS AGREEMENT, AND THAT HE HAS HAD THE OPPORTUNITY TO CONSULT
WITH AN ATTORNEY THROUGHOUT THE NEGOTIATIONS CONCERNING THIS AGREEMENT. The
Executive also acknowledges that no promises or inducements to enter into and
execute this Agreement have been offered or made except those which are
specifically set out in this Agreement.
10. RIGHT OF REVOCATION BY THE EXECUTIVE.
From the date of execution until the Effective Date, the Executive may
revoke this Agreement by sending written notice of revocation by Registered
Mail within that period to:
Xx. Xxx Xxxxxxxx
American Business Products, Inc.
0000 XxxxxXxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
and, if he does so, this Agreement shall be null and void in its entirety, and
shall be of no force or effect. If not revoked within said period, this
Agreement will become effective, binding and irrevocable as of the Effective
Date.
11. AMENDMENT.
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It is expressly understood and agreed that this Agreement may not be
altered, amended, modified or otherwise changed in any respect or particular
whatsoever except in writing duly executed by the Executive and an authorized
representative of ABP acting on behalf of ABP.
12. MISCELLANEOUS.
a. BINDING AGREEMENT. This Agreement shall be binding upon both the
Executive and the Executive's related entities and individuals,
and upon ABP and ABP's related entities. Each party hereto
agrees, understands, and acknowledges that each party is
responsible for their own attorneys' fees, costs and all other
expenses arising from, or in any way related to claims released
herein. The undersigned parties, acting through their duly
authorized officers or individually, as the case may be, do
hereby warrant that the signatories hereto have express authority
and have the legal capacity to enter into this Agreement.
b. WAIVER. Failure to insist upon strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed a
waiver of such term, covenant or condition, nor shall any waiver
or relinquishment of any right or power hereunder at any time or
times be deemed a waiver or relinquishment of such right or power
any other time or times.
c. CHOICE OF LAW. This Agreement is to be construed in accordance
with the laws of the State of Georgia without regard to any
conflict of law principles of such state.
d. REMEDIES FOR BREACH OF AGREEMENT. In the event of a breach of any
provision of this Agreement or conduct by either the Executive or
any officer or director of ABP, the parties agree that in
addition to all legal remedies to which each may result, the
injured party may also seek equitable relief, including
injunctive relief, as the parties acknowledge that there may be
no adequate remedy at law for such breach(es). In addition, in
the event of a breach of any provision of this Agreement by the
Executive, ABP may immediately cease making any payments
whatsoever hereunder, and may seek to recover from the Executive
all payments made under this Agreement prior to the breach by the
Executive.
e. MEDIATION AND ARBITRATION. The parties hereto agree that any
dispute or controversy arising out of, relating to or in
connection with this Agreement, or the interpretation, validity,
construction, performance, breach or termination thereof, shall
first be submitted to mediation. The mediation shall be conducted
within 45
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days of either party notifying the other party of a dispute or
controversy regarding this Agreement. ABP and the Executive shall
each pay half of the costs and expenses of the mediation.
In the event the dispute cannot be resolved through mediation,
the parties hereto agree that any dispute or controversy arising
out of, relating to or in connection with this Agreement shall
then be settled by arbitration to be held in Atlanta, Georgia, in
accordance with the Commercial rules of the American Arbitration
Association ("AAA") as then in effect.
Either party may give written notice (by certified mail) to the
other party, demanding arbitration and specifying the issue(s) to
be decided. The demand must be made within 90 days of the date on
which the act or omission giving rise to the demand occurred. The
party demanding arbitration shall request a list of not less than
nine arbitrators to conduct an arbitration hearing from the AAA.
Each party shall have the right to strike a name from the list
until only three names are remaining. The remaining named
arbitrators shall be selected to conduct the arbitration hearing.
Notwithstanding the foregoing, the parties shall make good faith
efforts to agree on a single arbitrator.
After the arbitrators are selected, the arbitrators will notify
all parties and will also specify a date, between 30 and 90 days
from the selection date, for the arbitration hearing. The
timetable for the hearing may be postponed only by agreement, or
to allow for any court proceeding involving this arbitration to
be resolved prior to the arbitration hearing taking place.
The arbitrators shall apply Georgia law to the merits of any
dispute of claim without reference to rules of conflict of law.
The arbitral award will be submitted to the Superior Court of
Xxxxxx County, Georgia for enforcement under O.C.G.A. ss.9-9-1,
et seq. All parties agree to jurisdiction and venue being proper
before that court, and waive all objections each may have to that
jurisdiction and venue. The decision of the arbitrators shall be
final, conclusive and binding on the parties to the arbitration.
f. ENTIRE AGREEMENT BETWEEN PARTIES AND NO INDICATION OF FAULT. This
Agreement constitutes the entire agreement between the Executive
and ABP pertaining to the subjects contained in it and supersedes
any and all prior and/or contemporaneous agreements,
representations, or understandings, written or oral. This
Agreement is intended to fully, completely, and forever resolve
all disputes or potential disputes based upon events, omissions
or acts occurring on or prior to the Resignation Date as well as
all other issues or claims in any way arising out of or connected
with the prior employment of the Executive with ABP or the
termination of that employment, and the signing of this document
is not to be construed as an admission of any liability and/or
fault by ABP or by the Executive.
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13. EFFECTIVE DATE AND EXECUTION DATE.
For purposes of this Agreement, the "Effective Date" of this Agreement
shall be the date on which this Agreement becomes effective, which shall be the
date which is exactly eight (8) days following the Execution Date, unless this
Agreement has been revoked by the Executive prior to such date in accordance
with the provisions of this Agreement. The Execution Date shall mean that date
on which this Agreement is executed by the parties.
IN WITNESS WHEREOF, the undersigned has executed this Separation
Agreement on the day and year first above written.
EXECUTIVE:
/s/ Xxxxx X. Xxxxxxxxxxx, III
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XXXXX X. XXXXXXXXXXX, III
AMERICAN BUSINESS PRODUCTS, INC.
By: /s/ W. Xxxxx Xxxx
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Title: Chair, Compensation Committee
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[THIS DOCUMENT HAS BEEN EXECUTED IN DUPLICATE.]
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