SEVERANCE AGREEMENT
This SEVERANCE AGREEMENT ("Agreement"), effective as of March 9, 1998 (the
"Severance Date"), by and between Nu-kote Holding, Inc. and Nu-kote
International, Inc. (individually and collectively the "Company") on the one
hand and Xxxxx X. Xxxxxxxx ("Xxxxxxxx") on the other hand;
W I T N E S S E T H
WHEREAS, Xxxxxxxx currently serves as Chairman of the Board of Nu-kote
Holding, Inc.;
WHEREAS, the Company acknowledges certain prior existing agreements
respecting the employment of Xxxxxxxx, and that the Company assumed obligations
first to pay salary and then severance payments, thereunder;
WHEREAS, upon the effective date of this Agreement, neither Xxxxxxxx nor
the Company shall be deemed to owe any further obligations to the other party
under prior executed contracts and the only obligations owed shall be those
obligations set forth within this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth hereinafter, the Company and Xxxxxxxx agree as follows:
1. DUTIES
Xxxxxxxx shall remain as Chairman of the Board of Nu-kote Holding, Inc. (the
"Board") and agrees to serve in such capacity without compensation or Board fees
for such term or terms as he may be directed to such office by the Board, unless
Xxxxxxxx shall earlier be removed from such office on the Board in accordance
with the By-laws of the Company or resign or decline to stand for reelection as
a director.
2. SEVERANCE
(a) The Company hereby agrees to pay Xxxxxxxx the sum total of $262,500.00,
which represents six (6) months pay based upon Xxxxxxxx'x previous yearly salary
of $525,000.00. The Company shall pay the Severance Compensation over a twelve
(12) month period of time (the "Severance Period"), in accordance with current
payroll procedures, with the first payment commencing after March 9, 1998.
(i) Notwithstanding the foregoing provisions of this Section 2(a), if
Xxxxxxxx is a Disqualified Individual (as the term "Disqualified
Individual" is defined in Section 280G of the Code or any successor
provisions thereto) and if any portion of the Severance Payment would
be an Excess Parachute Payment (as the term "Excess Parachute Payment"
is defined in Section 280 of the Code, or any successor
provisions thereto) but for the application of this sentence, then the
amount of the Severance Payment otherwise payable to Xxxxxxxx pursuant
to this Agreement shall be reduced to the minimum extent necessary
(but in no event to less than zero) so that no portion of the
Severance Payment, as so reduced, constitutes an Excess Parachute
Payment.
(ii) The determination of whether any reduction in the amount of the
Severance Payment is required shall be made, if requested by Xxxxxxxx
or the Company, by tax counsel selected by the Company's independent
accountants and acceptable to Xxxxxxxx. The fact that Xxxxxxxx shall
have his right to the Severance Payment reduced as a result of the
existence of the limitations contained in this Section 2(a) shall not
of itself limit or otherwise affect any rights of Xxxxxxxx to any
Employee Benefit, or any other right arising other than pursuant to
this Agreement.
3. BENEFITS
The Company agrees to continue until March 9, 1999, Xxxxxxxx'x group employee
benefits as same exist in the scope provided as of the effective date of this
Agreement. The Company further agrees to continue payments for monthly dues
reflecting Xxxxxxxx'x membership in Stonebriar Country Club as same is in effect
as of the effective date of this Agreement. After March 9, 1999, the Company's
obligation to provide Xxxxxxxx with any continued benefits shall be limited to
its obligations under the Consolidated Omnibus Budget Reconciliation Act
("COBRA"). Likewise, at the end of the Severance Period, Xxxxxxxx will assume
full responsibility for the payment of sums due respecting his membership in the
Stonebriar Country Club. The Company, therefore, acknowledges Xxxxxxxx'x
ownership rights in such membership for all purposes.
4. AUTOMOBILE
Xxxxxxxx shall continue to use the automobile currently furnished by the Company
through and including March 31, 1999. Upon the expiration of this time period,
Xxxxxxxx shall have the option to purchase the automobile he is then using at
its wholesale value or at its residual value if the automobile is under lease,
or to assume the lease of such automobile if the lease term has not expired.
5. NO MITIGATION OBLIGATION
The Company hereby acknowledges that it will be difficult, and may be
impossible, for Xxxxxxxx to find reasonably comparable employment following the
Severance Date and that the non-compete covenant contained in Section 6 hereto
will further limit the employment opportunities for him. Accordingly, the
parties agree that Xxxxxxxx shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or otherwise,
nor shall any profits, income, earnings or other benefits from any source
whatsoever create any mitigation, offset, reduction or any other obligation on
the part of Xxxxxxxx.
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6. COMPETITIVE ACTIVITY
(a) During a period of one year following the execution of this Agreement, if
Xxxxxxxx shall have received or shall be receiving benefits under Section 2(a)
hereof, Xxxxxxxx shall not, without the prior written consent of the Company,
which consent may be obtained from either a majority of members of the Board of
Directors of the Company, other than Xxxxxxxx, or by written agreement executed
by an authorized agent of the Company, other than Xxxxxxxx, to be selected by
the Company, which consent shall not be unreasonably withheld, engage in any
Competitive Activity. Provided, however, that if the Company terminates payments
contemplated under this Agreement (for a reason other than Xxxxxxxx'x breach of
the Agreement as determined by law), this instant provision, which prohibits
Competitive Activity, shall be deemed to terminate contemporaneously with the
Company's termination of payments hereunder.
(b) For purposes of this Agreement, "Competitive Activity" shall mean
Xxxxxxxx'x participation, in the management of any business enterprise if such
enterprise engages in substantial and direct competition with the Company in any
state or country in which the Company does business and such enterprise's sales
of any product or service competitive with any product or service of the Company
amounted to 25% of such enterprise's net sales for its most recently completed
fiscal year and if the Company's net sales of said product or service amounted
to 25% of the Company's net sales for its most recently completed fiscal year.
"Competitive Activity" shall not include (i) the mere ownership of securities in
any such enterprise and the exercise of rights appurtenant thereto or (ii)
participation in the management of any such enterprise other than in connection
with the competitive operations of such enterprise.
7. WITHHOLDING OF TAXES
The Company may withhold from any amounts payable under this Agreement all
federal, state, city or other taxes as shall be required pursuant to any law or
government regulation or ruling.
8. INDEMNIFICATION
The Company agrees that it shall indemnify Xxxxxxxx to the fullest extent
permitted by the Company's By-laws.
9. NON-DISPARAGEMENT
Xxxxxxxx and the Company mutually agree that they will not make or cause to be
made any statement, observation or opinion, or communicate any information
(whether oral or written) that disparages or is likely in any way to harm the
reputation of the other party.
10. CONFIDENTIAL AND PROPRIETARY INFORMATION
Xxxxxxxx agrees not to use or to impart to any other person, corporation or
entity any trade secrets, attorney-client privileged information, or other
proprietary information that he has acquired while an employee of the Company.
Xxxxxxxx acknowledges that the Company is
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engaged in a highly competitive business, and that the trade secrets and
proprietary information are of great significance in the various markets in
which it is active. Accordingly, Xxxxxxxx acknowledges and agrees that the
Company shall be authorized to obtain preliminary and injunctive relief, as well
as an equitable accounting of all profits and benefits arising out of such
violation.
11. SUCCESSORS AND BINDING AGREEMENT
(a) The Company shall require any 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 by agreement in
form and substance satisfactory to Xxxxxxxx, expressly to assume to the extent
allowed by applicable law, to agree to perform this Agreement in the same manner
and to the same extent the Company would be required to perform if no such
succession had taken place. This Agreement shall be binding upon and inure to
the benefit of the Company and any successor to the Company, including, without
limitation, any persons acquiring directly or indirectly all or substantially
all of the business and/or assets of the Company whether any purchase, merger,
consolidation, reorganization or otherwise (and such successor shall thereafter
be deemed the "Company" for the purposes of this Agreement), but shall not
otherwise be assignable, transferable or delegable by the Company.
(b) This Agreement shall inure to the benefit of and be enforceable to
Xxxxxxxx'x personal or legal representatives, executors, administrators,
successors, heirs, distributees and/or legatees.
(c) This Agreement is personal in nature and neither of the parties herein
shall, without the consent of the other, assign, transfer or delegate this
Agreement or any rights or obligations hereunder except as expressly provided in
Section 11(a) hereof.
(d) The Company and Xxxxxxxx recognize that each party will have no adequate
remedy at law for breach by the other of any of the agreements contained herein,
and, in the event of any such breach, the Company and Xxxxxxxx hereby agree and
consent that the other shall be entitled to a decree of specific performance,
mandamus or other appropriate remedy to enforce performance of this Agreement.
12. NOTICE AND COOPERATION
Unless otherwise stated, all communications including, without limitation,
notices, consents, requests or approvals, provided for herein shall be in
writing and shall be deemed to have been duly given when delivered or five
business days after being mailed by United States registered or certified mail,
return receipt requested, postage prepaid, addressed to the Company (to the
attention of the Secretary of the Company) at its principal executive office,
000 Xxxxxxx Xx., Xxxxxxxx, XX 00000, and to Xxxxxxxx at his principal residence,
or to such other address as any party may have furnished to the other in writing
and in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
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Xxxxxxxx agrees that if he is ordered or subpoenaed to testify or produce
information in connection with any claim against the Company, he will
immediately provide notice to the Company, by faxing and mailing a copy of the
subpoena, order, or other request for information, to the General Counsel for
the Company, 000 Xxxxxxx Xx., Xxxxxxxx, XX 00000, 615/000-0000 [fax]. Xxxxxxxx
also agrees to meet and confer with the Company (should Xxxxxxxx so elect, with
the aid of counsel) before responding to such order or subpoena, interviewing
with, meeting, or giving a statement to any attorney or party who is adverse to
the Company in a pending or threatened claim or lawsuit.
13. LEGAL FEES AND EXPENSES
Should a court determine that either party has breached this Agreement, the
breaching party will be obligated to pay the reasonable attorneys' fees and
court costs incurred by the non-breaching party for having to institute and
pursue litigation or counsel to protect his or its rights under the Agreement.
14. GOVERNING LAW
The validity, interpretation, construction or performance of this Agreement
shall be governed by the substantive law of the State of Delaware, without
giving effect to the principles of conflict of laws of any state in which
litigation to enforce such Agreement may be commenced.
15. PRIOR AGREEMENTS
The terms of any and all prior severance agreements and employment agreements
are hereby superseded and no longer in effect.
16. NO ADMISSION OF LIABILITY
By entering this Agreement, the Company does not admit liability to Xxxxxxxx in
any way, and this Agreement shall not be construed as an admission of liability
by either the Company or Xxxxxxxx.
17. CONFIDENTIALITY
Xxxxxxxx also agrees that this Agreement is a confidential document as are all
of its terms and conditions and that he will not disclose to any person the
terms of this Agreement except as otherwise required by law.
18. VALIDITY
If any provision of this Agreement or this application of any provision hereof
to any person or circumstance is held invalid, unenforceable or otherwise
illegal, the remainder of this Agreement and the application of such provision
to any other person or circumstances shall not be affected, and the provision so
held to be invalid, unenforceable or otherwise illegal shall be informed to the
extent (and only to the extent) necessary to make it enforceable, valid and
legal.
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19. LITIGATION
No provision set forth herein shall be deemed to constitute any limitation on
the rights of Xxxxxxxx or the Company to defend his or its interests in that
certain litigation styled Xxxxxx v. Nu-kote Holding, Inc., et al, which action
is pending before the United States District Court for the Northern District of
Texas (the "Xxxxxx Litigation"), nor shall either be limited in his or its
efforts regarding voluntary compliance with any process served, discovery sought
or judicial proceedings conducted, either in the Xxxxxx Litigation or any
subsequent actions or proceedings as may be commenced regarding the Company,
Xxxxxxxx'x actions as an officer and/or director of the Company, and/or any
actions or proceedings subsequently commenced in which either Xxxxxxxx or any
other historical or current officers or directors may be named or otherwise
involved as parties.
20. MISCELLANEOUS
No provision of this Agreement may be modified, waived or discharged unless such
waiver, modification, or discharge is agreed to in writing signed by Xxxxxxxx
and the Company. No waiver by either party hereto at any time of any breach by
the other party hereto of compliance with any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise, expressed
or implied with respect to the subject matter hereto have been made by either
party which are not set forth expressly in this Agreement.
21. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which shall
be deemed to be an original but all of which together will constitute one and
the same agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first above written.
_____________________________________
Xxxxx X. Xxxxxxxx
NU-KOTE HOLDING, INC.
By: _________________________________
Name: _______________________________
Title: ______________________________
NU-KOTE INTERNATIONAL, INC.
By: _________________________________
Name: _______________________________
Title: ______________________________
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