EXHIBIT INDEX
EXHIBIT NUMBER
(10) MATERIAL CONTRACTS
(11) STATEMENT RE: COMPUTATION OF PER SHARE EARNINGS.
(21) SUBSIDIARIES OF THE REGISTRANT.
(27) FINANCIAL DATA SCHEDULE (REQUIRED FOR ELECTRONIC FILING ONLY).
EMPLOYMENT AGREEMENT
BETWEEN
ANACOMP, INC.
("ANACOMP")
with offices located at
00000 Xxxxx Xxxxxxxx Xxxxxx
Suite 600
Carmel, Indiana 46032
and
Xxx X. Xxxxxxxx
("EMPLOYEE")
Date of Agreement: May 15, 1996
Effective Date of Agreement: May 15, 1996
Date of Expiration of First Initial Term: September 30, 1998
EMPLOYMENT AGREEMENT
This Agreement is entered into between ANACOMP, INC. or any of its
subsidiaries or affiliates (herein referred to as "ANACOMP") and EMPLOYEE. The
full identification of each party, date of Agreement, effective date of
Agreement, and date of expiration of Agreement are all included on the cover
sheet immediately preceding this page which is incorporated herein by this
reference. The following conditions and terms shall apply:
ARTICLE I
Merger of All Prior Agreements
This Agreement shall supersede and terminate all prior employment
contracts and agreements between EMPLOYEE and ANACOMP.
ARTICLE II
Scope and Term of Employment, Compensation
ANACOMP and EMPLOYEE mutually agree that Xxxxxxxx I, attached hereto
and incorporated herein by this reference, is intended to define the scope of
employment, base salary, incentive compensation, and responsibility assignments.
Subject always to termination provisions as provided elsewhere in this
Agreement, the term of this Agreement shall begin on the Effective Date of
Agreement and shall terminate on the Date of Expiration of Agreement, both as
shown on the cover sheet. Unless otherwise terminated as provided elsewhere
herein, this Agreement shall automatically renew after expiration date on an
annual basis unless either party gives the other party thirty (30) days written
notice requesting that said Agreement not be renewed. If this Agreement is not
renewed and EMPLOYEE continues working beyond Termination Date, said employment
shall be on a month-to-month basis. If, at the expiration of the original 3-year
term or any renewal term, ANACOMP declines to renew this Agreement, EMPLOYEE
shall be entitled to all benefits due him under this Agreement and not
previously paid him and, unless the parties agree on a different amount, to a
severance allowance equal to twelve months' total compensation payable in a lump
sum or bi-weekly at EMPLOYEE'S option, and health benefits until other
employment is secured or for twelve months, whichever is sooner.
Compensation is confidential and is to be discussed only with the
officers of ANACOMP, as required.
ARTICLE III
Fringe Benefits
In addition to the regular compensation, EMPLOYEE shall be entitled to
the normally available employee fringe benefits including regular holidays,
vacations and health insurance. ANACOMP, however, reserves the right to change
or alter these fringe benefits from time to time with the understanding that the
EMPLOYEE will be treated on an equal basis with other employees of similar
status.
ARTICLE IV
Insurance on Employee
EMPLOYEE agrees that ANACOMP may, at its option and expense, obtain
life insurance on the life of the EMPLOYEE and the ownership of all such
policies and the proceeds therefrom shall be the sole property of ANACOMP.
EMPLOYEE agrees to undergo a routine physical examination for insurance
purposes within fifteen (15) days upon the request and at the expense of
ANACOMP.
ARTICLE V
Termination and Damages
The parties agree that the EMPLOYEE'S employment (the "Employment") may
be terminated as follows:
1. Without Cause
The Employment may be terminated by ANACOMP at any time
without cause by giving EMPLOYEE written notice.
2. With Cause
ANACOMP may immediately terminate the Employment at any time
for cause upon written notice to the EMPLOYEE specifying the cause and
effective date of termination. As used in this section, "cause" shall
mean:
(a) Inability of EMPLOYEE, as determined by XXXXXXX, to
perform EMPLOYEE'S assigned duties on a full-time basis for any
continuous period of one hundred twenty (120) days or a total of one
hundred eighty (180) days in any twelve (12) month period, which period
shall commence on the initial date of this contract and every
anniversary date thereof.
(b) The willful and continued failure by EMPLOYEE
substantially to perform his duties and obligations or the willful
engagement by EMPLOYEE in misconduct which is materially injurious to
ANACOMP, monetarily or otherwise. For purposes of this subsection, no
act or failure to act on EMPLOYEE'S part shall be considered "willful"
unless done or omitted to be done by EMPLOYEE in bad faith and without
reasonable belief that his action or omission was in the best interests
of ANACOMP.
3. Death
Death of an EMPLOYEE shall automatically terminate this
Agreement but any remedies ANACOMP may have against the estate of this
EMPLOYEE shall survive.
4. Resignation
EMPLOYEE may terminate the Employment at any time by giving
XXXXXXX written notice of his intention to resign.
5. Demotion, Transfer or Reduction in Compensation
A demotion, a transfer or a reduction in compensation may, in
EMPLOYEE'S sole discretion, be deemed a termination of the Employment.
6. Merger, Consolidation or Change in Control
If either of the following events occur:
(a) Substantially all of the assets of ANACOMP are sold or
ANACOMP is consolidated or merged with another corporation wherein
stock of ANACOMP is exchanged for stock and/or securities of another
corporation; or
(b) There is a change of control of ANACOMP of a nature that
would be required to be reported in response to Item 5(f) of Schedule
14A of Regulation 14A promulgated under the Securities Exchange Act of
1934 as in effect on the date thereof; provided that, without
limitation, such a change in control shall be deemed to have occurred
if (i) any person (as such term is used in Section 13(d) and 14(d)(2)
of the Exchange Act) is or becomes the beneficial holder directly or
indirectly, of securities of ANACOMP representing 25% or more of the
combined voting power of ANACOMP'S then outstanding securities, or (ii)
during any period of two consecutive years, individuals who at the
beginning of such period constitute the Board of Directors of ANACOMP
cease for any reason to constitute a majority thereof, unless the
election or nomination for election by XXXXXXX'S shareholders of each
new director was approved by a vote of at least 2/3 of the directors
then still in office who were directors at the beginning of such
period;
then in any such event, the EMPLOYEE shall continue to have
the benefit of and be subject to Section 1-5 of this Article V.
ARTICLE VI
Payment and Obligations After Termination
If the Employment is terminated by ANACOMP for cause or the Employment
is terminated by EMPLOYEE'S resignation, EMPLOYEE shall be paid only that part
of EMPLOYEE'S base salary accrued to the date of termination and EMPLOYEE shall
not be entitled to any month-end or year-end bonus not already paid or fully
earned except and to the extent required by law. If the Employment is terminated
due to the death or total and permanent disability of EMPLOYEE, in addition to
his base salary accrued to the date of termination, bonuses shall be paid on a
pro rata basis computed through the date of termination. If the Employment is
terminated without cause or the EMPLOYEE deems a termination to have occurred
due to a demotion, transfer or reduction in compensation, EMPLOYEE shall be
entitled to termination pay equal to twelve months' total compensation payable
in a lump sum or bi-weekly at EMPLOYEE'S option, and health benefits until other
employment is secured or for twelve months, whichever is sooner, and all his
existing options to acquire ANACOMP Common Stock shall immediately vest. All
termination payments shall be made within forty-five (45) days after
termination. All termination payments made pursuant to this Article VI or
Article V shall be in full and complete payment of any and all claims EMPLOYEE
may have regarding his employment or termination and EMPLOYEE hereby expressly
waives all rights he may have to any other payments.
EMPLOYEE agrees to return all property of ANACOMP, including, but not
limited to details of equipment, prices, specifications, programs, customer and
prospective customer lists, and any other proprietary data or objects acquired
through the EMPLOYEE'S employment with ANACOMP, within seven (7) days upon the
termination of employment, whether said termination be with or without cause.
ARTICLE VII
Restrictive Covenant and Non-Competition
Inventions and Improvements
Confidential Information
EMPLOYEE and ANACOMP shall enter into "CONFIDENTIALITY, NON-COMPETITION
AND NON-DISCLOSURE AGREEMENT" in the form attached hereto as Addendum II. In the
event of any conflict between the terms of this Agreement and such Covenant,
this Agreement shall govern.
The provisions of this Article shall not prevent EMPLOYEE from
complying with the terms of this Employment Agreement with ANACOMP nor from
owning any shares of stock of any competitor of ANACOMP so long as such shares
are regularly traded on a recognized security exchange or are listed for trade
by NASDAQ in the Over-the-Counter Market.
ARTICLE VIII
Warranties and Representations
EMPLOYEE hereby warrants and represents as follows:
(1) That the execution of this Agreement and the discharge of
EMPLOYEE'S obligations hereunder will not breach or conflict with any
other contract, agreement or understanding between EMPLOYEE and any
other party or parties.
(2) That EMPLOYEE has ideas, information and know-how relating to the
type of business conducted by XXXXXXX and EMPLOYEE'S disclosure of such
ideas, information and know-how to ANACOMP will not conflict with or
violate the rights of any third party or parties with respect thereto.
ARTICLE IX
Remedies
The parties agree that the remedy for breach of this Agreement shall
include actions in equity for injunctive relief as well as money damages. The
remedies given to or reserved by ANACOMP hereunder shall be cumulative and not
exclusive of any other remedy available under law.
ARTICLE X
No Waiver
The failure of EMPLOYER to terminate this Agreement for the breach of
any condition or covenant herein by the EMPLOYEE shall not affect EMPLOYER'S
right to terminate for subsequent breaches of the same or other conditions or
covenants. The failure or either party to enforce at any time or for any period
of time any of the provisions of this Agreement shall not be construed as a
waiver of such provisions or of the right of the party thereafter to enforce
each and every such provision.
ARTICLE XI
Benefit
This Agreement shall bind, benefit, and be enforceable by ANACOMP, its
successors and assigns, and by EMPLOYEE, EMPLOYEE'S heirs, executors,
administrators, and legal representatives.
ARTICLE XII
Severability
Should any provision of the Agreement not be enforceable in any
jurisdiction, the remainder of the Agreement shall not be affected thereby.
ARTICLE XIII
Survival
The obligations contained in Articles VI and VII shall survive the
termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be executed as of the day, month and year stated on the cover page
of this Agreement, which Agreement shall be effective only upon approval by
ANACOMP, INC., as evidenced by the authorized signature of an officer of ANACOMP
below.
APPROVED BY:
ANACOMP, INC............... EMPLOYEE:
By: /X. Xxxx Xxxxxx/....... /Xxx X. Xxxxxxxx/
ADDENDUM I
TO
EMPLOYMENT AGREEMENT DATED MAY 15, 1996
BETWEEN
ANACOMP, INC. ("ANACOMP")
AND XXX X. XXXXXXXX ("EMPLOYEE")
Scope of Employment
XXXXXXX employs the EMPLOYEE in the capacity of Senior Vice President
and Chief Technology Officer.
Assigned Responsibilities
EMPLOYEE is responsible for managing Anacomp's corporate information
systems on a worldwide basis; providing leadership and support in the
development of data automation systems for Anacomp's data centers; managing
Anacomp's engineering department; and advising the Company on technology
opportunities.
Base Salary
For all services rendered by EMPLOYEE under this Agreement, EMPLOYEE
shall receive a minimum Base Salary of $200,000 per year for fiscal year 1996,
ending September 30, 1996. For fiscal year 1997, beginning October 1, 1996, the
base salary will be $166,250. Base Salary will be reviewed at the beginning of
each fiscal year
Incentive Compensation
Bonus
In addition to Base Salary, EMPLOYEE shall receive for FY1996 a $12,500
year-end bonus if Company makes its EBIT goal. For FY1997, EMPLOYEE will be
under the Key Employee II Plan: $47,500 paid 1/12 monthly as a percent of
year-to-date goals (70% Company EBIT, 30% Company Revenue); $23,750 paid at
year-end if Company meets its EBIT goal. The annual bonus and objectives shall
be established at the beginning of each fiscal year.
One-Time Bonuses
Contract Signing Bonus - $12,500 payable May 15, 1996
Relocation Bonus - $12,500 payable October 1, 1996
ANACOMP, INC............... EMPLOYEE
By: /X. Xxxx Xxxxxx/....... /Xxx X. Xxxxxxxx/
ADDENDUM II
CONFIDENTIALITY, NON-COMPETITION AND NON-DISCLOSURE AGREEMENT
In consideration of the employment or continued employment of Employee by
Anacomp, Inc. and its successors, assigns, subsidiaries, or duly authorized
representatives (hereinafter collectively referred to as "Anacomp") and of the
award of an option for the purchase of 25,000 shares of Anacomp, Inc. Common
Stock, par value $.01 per share, at a price of $4.63 per share (price to be set
on the date of award by Anacomp's Board of Directors), Employee hereby agrees as
follows:
1. Confidentiality and Trade Secrets. The Employee recognizes and acknowledges
that during the course of his/her employment, he/she will have access to and
become acquainted with confidential, trade secret and proprietary information
about Anacomp's businesses and customers (hereinafter collectively referred to
as the "Protected Information"). The parties hereto recognize that the Protected
Information available to Employee may pertain both to customers and accounts
handled by Employee personally as well as accounts with which Employee is not
personally involved. The parties agree that all Protected Information
constitutes a trade secret of Anacomp. Protected Information may include, but is
not limited to, the names, addresses, and requirements of any customer or
prospective customer of Anacomp; the terms (including price terms) of
contractual relations with such customers; special requirements of such
customers; the identities of individual contacts at such customers; and any
other information relating to Anacomp's research, operations, business
relationships, engineering data or results, specifications, concepts, methods,
processes, rates or schedules, vendor information, products or services
(including prices, costs, sales or content), financial information or measures,
business methods, future business plans, data bases, computer programs, designs,
models, operating procedures, and knowledge of the organization. The Employee
recognizes and acknowledges that all of the Protected Information is valuable,
special and essential to the successful and effective conduct of Anacomp's
business. Therefore, the Employee shall not, during his/her employment with
Anacomp or at any time thereafter, regardless of the reasons for leaving that
employment, use, disclose or communicate, directly or indirectly, any Protected
Information to any third party for any reason or purpose whatsoever, except as
required in the course of his/her employment with Anacomp. Further, upon the
termination of his/her employment with Anacomp, for any reason whatsoever,
Employee shall promptly return any and all copies of any written material,
documents, computer hardware and software, tools and equipment belonging to
Anacomp or relating to the business of Anacomp in his/her possession.
2. Non-Competition.
2.1 Non-Competition While an Employee or Consultant. While an employee
of Anacomp, or as a consultant to Anacomp after his termination of employment,
Employee agrees not to compete in any manner, either directly or indirectly as
an employee, consultant, investor or owner, whether for compensation or
otherwise, with Anacomp, or to assist any other person or entity to compete with
Anacomp. Further, while an employee of Anacomp, Employee agrees not to engage in
any other employment without the prior written permission of Anacomp
3. Non-Solicitation.
3.1 Non-Solicitation of Employees. During the term of his/her
employment at Anacomp and for two (2) years following the termination for any
reason of such employment, Employee agrees, either on his/her own behalf or on
behalf of any other person or entity, directly or indirectly, not to hire,
solicit, or encourage to leave the employ of Anacomp any person who is then an
employee of Anacomp. The foregoing restrictions shall apply to employees located
in all geographical areas where Employee performed services for Anacomp during
the two-year period prior to his/her termination, including areas for which
Employee had supervisory authority.
3.2 Non-Solicitation of Customers. Because of Employee's access to
Protected Information of Anacomp, Employee agrees that, during the term of
his/her employment at Anacomp and for two (2) years following the termination
for any reason of such employment, he/she will not, directly or indirectly, in
connection with the products and services offered by Anacomp and those products
and services which are competitive with the products and services of Anacomp:
(a) solicit, attempt to obtain, or in any way transact business with any
customers which were customers of Anacomp during his/her employment or at the
time of his/her termination; (b) aid or assist any other party in the
solicitation of any such customers; or (c) interfere with Anacomp's
relationships with any of its customers by soliciting such customers or inducing
them to discontinue their relationships with Anacomp. Products and services
which are competitive with the products and services of Anacomp include but are
not limited to: Micrographics Products (computer output to
microfilm-COM-equipment and software, cameras and film, processors, duplicators,
retrieval and display equipment and software, computer aided
retrieval-CAR-systems, readers, reader printers, other micrographics equipment,
micrographics equipment maintenance, micrographics consumable supplies and
accessories, records management software); Output Services (computer output to
microfilm-COM, source document microfilming, output of data to compact disk,
laser printing, conversion of paper and film to electronic images, micrographic
or electronic imaging system design, consulting and education, system
implementation and integration); Electronic Image Management Products (hardware,
software, magnetics products including tapes, tape drives and optical media
supplies, maintenance of electronic imaging equipment); and Electronic Image
Management Services (conversion of computer generated data to optical or laser
disk, COLD, electronic document imaging and workflow, conversion of paper
documents to electronic images, system design consulting and education, system
implementation and integration, conversion of microfilm to electronic images);
and Archival Services (storage, management and retrieval of all forms of
customer information and business records, including but not limited to paper,
microfiche, magnetic media and digital storage media). The foregoing
restrictions shall apply to all geographical areas where Employee performed
services for Anacomp during the two-year period prior to his/her termination,
including areas for which Employee had supervisory authority.
4. Remedies. Employee acknowledges that compliance with Sections 1, 2 and 3 of
this Agreement is necessary to protect the business and good will of Anacomp and
that a breach of those sections will irreparably and continually damage Anacomp
for which money damages may not be adequate. Therefore, Employee agrees that, in
the event he/she breaches or threatens to breach any of these Sections, Anacomp
shall be entitled to both a preliminary or permanent injunction in order to
prevent the continuation of such harm and money damages insofar as they can be
determined. Nothing in this Agreement, however, shall be construed to prohibit
Anacomp from also pursuing any other remedy, the parties having agreed that all
remedies shall be cumulative.
5. Inventions. Employee agrees that all inventions, improvements, discoveries,
systems, techniques, ideas, processes, programs, and other things of value made
or conceived in whole or in part by Employee while an employee of Anacomp shall
be and remain the sole and exclusive property of Anacomp, and he/she will
disclose all such things of value to Anacomp and will cooperate with Anacomp to
insure that the ownership by Anacomp of such things of value is protected.
Nothing in this Section is meant to apply to an invention for which no
equipment, supplies, facility or trade secret information of Anacomp was used,
which was developed entirely on Employee's own time, and which does not relate
to Anacomp's business, research, development or from any work performed by
Employee for Anacomp.
6. Employment. This Agreement does not confer upon Employee any rights to
continue in the employ of Anacomp or affect in any way Anacomp's right to
terminate his/her employment at any time.
7. Severability. If any provision or clause of this Agreement, or portion
thereof, shall be held by any court or other tribunal of competent jurisdiction
to be illegal, void or unenforceable in such jurisdiction, the remainder of such
provisions shall not thereby be affected and shall be given full effect, without
regard to the invalid portion. It is the intention of the parties that, if any
court construes any provision or clause of this Agreement, or any portion
thereof, to be illegal, void or unenforceable because of the duration of such
provision or the area or matter covered thereby, such court shall reduce the
duration, area or matter of such provision and, in its reduced form, such
provision shall then be enforceable and shall be enforced.
8. Binding Effect. The rights and obligations of this Agreement shall inure to
and be binding upon the parties and their respective heirs, successors and
assigns.
9. Attorneys' Fees. In the event of any dispute, proceeding or litigation
concerning any controversy, claim or dispute between the parties hereto, arising
out of or relating to this Agreement or the interpretation or breach thereof,
the prevailing party shall be entitled to recover from the losing party its
reasonable expenses, attorneys' fees, expert fees, and costs incurred therein or
in the enforcement or collection of any judgment or award rendered therein.
10. No Waiver. Anacomp's failure to enforce any provision of this Agreement
shall not in any way be construed as a waiver of any such provision, or prevent
Anacomp thereafter from enforcing each and every provision of this Agreement.
11. Entire Agreement. This Agreement represents the entire agreement between
Employee and Anacomp, with respect to the subject matter hereof, superseding all
previous oral and written communications, representations, understanding or
agreements.
12. Employee's Understanding. Employee represents and warrants that he/she has
read each and every term of this Agreement and understands the serious duties
and obligations imposed upon Employee thereby. Employee further represents and
warrants that he/she has had full and ample opportunity to question Anacomp
about this Agreement and each of its terms and to consult an attorney regarding
this Agreement and each of its terms. Employee represents that he/she is free to
enter this Agreement and to perform each of its terms and covenants. Employee
represents that he/she is not restricted or prohibited, contractually or
otherwise, from entering into and performing this Agreement, and that his or her
execution and performance of this Agreement is not a violation or breach of any
other agreement between Employee and any other person or entity.
Dated: October 14, 1996
ANACOMP, INC.
By: /Xxxx X. Xxxxxxxx/..... /Xxx X. Xxxxxxxx/
-----------------
Its: Vice President........ Employee (signature)
.................. Xxx X. Xxxxxxxx
---------------
.................. Employee (printed)
.................. Chief Technology Officer
------------------------
.................. Current position
.................. Poway, California
-----------------
.................. Current location
..................
-----------
.................. Social Security Number
Form 21 (revised 9/96)
EMPLOYMENT AGREEMENT
BETWEEN
ANACOMP, INC.
("ANACOMP")
with offices located at
00000 Xxxxx Xxxxxxxx Xxxxxx
Suite 600
Carmel, Indiana 46032
and
Xxxx X. Xxxx
("EMPLOYEE")
Date of Agreement: December 16, 1992
Effective Date of Agreement: October 1, 1992
Date of Expiration of First Initial Term: September 30, 1995
EMPLOYMENT AGREEMENT
This Agreement is entered into between ANACOMP, INC. or any of its
subsidiaries or affiliates (herein referred to as "ANACOMP") and EMPLOYEE. The
full identification of each party, date of Agreement, and date of expiration of
Agreement are all included on the cover sheet immediately preceding this page
which is incorporated herein by this reference. The following conditions and
terms shall apply:
ARTICLE I
Merger of All Prior Agreements
This Agreement shall supersede and terminate all prior employment
contracts and agreements between EMPLOYEE and ANACOMP.
ARTICLE II
Scope and Term of Employment, Compensation
ANACOMP and EMPLOYEE mutually agree that Xxxxxxxx I, attached hereto
and incorporated herein by this reference, is intended to define the scope of
employment, base salary, incentive compensation, and responsibility assignments.
Subject always to termination provisions as provided elsewhere in this
Agreement, the term of this Agreement shall begin on the Effective Date of
Agreement and shall terminate on the Date of Expiration of Agreement, both as
shown on the cover sheet. Unless otherwise terminated as provided elsewhere
herein, this Agreement shall automatically renew after expiration date on an
annual basis unless either party gives the other party thirty (30) days written
notice requesting that said Agreement not be renewed. If this Agreement is not
renewed and EMPLOYEE continues working beyond Termination Date, said employment
shall be on a month-to-month basis. If, at the expiration of the original 3-year
term or any renewal term, ANACOMP declines to renew this Agreement, EMPLOYEE
shall be entitled to regular compensation and benefits up to the date of
termination and, unless the parties agree on a different amount, to a severance
allowance equal to EMPLOYEE'S previous twelve months' total cash compensation,
including bonuses, payable in a lump sum or bi-weekly at EMPLOYEE'S option, and
health benefits until other employment is secured or for twelve months,
whichever is sooner, and all existing options to acquire ANACOMP Common Stock
shall immediately vest.
Compensation is confidential and is to be discussed only with the
officers of ANACOMP, as required.
ARTICLE III
Fringe Benefits
In addition to the regular compensation, EMPLOYEE shall be entitled to
the normally available employee fringe benefits including regular holidays,
vacations and health insurance. ANACOMP, however, reserves the right to change
or alter these fringe benefits from time to time with the understanding that the
EMPLOYEE will be treated on an equal basis with other employees of similar
status.
ARTICLE IV
Insurance on Employee
EMPLOYEE agrees that ANACOMP may, at its option and expense, obtain
life insurance on the life of the EMPLOYEE and the ownership of all such
policies and the proceeds therefrom shall be the sole property of ANACOMP.
EMPLOYEE agrees to undergo a routine physical examination for insurance
purposes within fifteen (15) days upon the request and at the expense of
ANACOMP.
ARTICLE V
Termination and Damages
The parties agree that the EMPLOYEE'S employment (the "Employment") may
be terminated as follows:
1. Without Cause
The Employment may be terminated by ANACOMP at any time
without cause by giving EMPLOYEE written notice.
2. With Cause
ANACOMP may immediately terminate this Agreement at any time
for cause upon written notice to the EMPLOYEE specifying the cause and
effective date of termination. As used in this section, "cause" shall
mean:
(a) Inability of EMPLOYEE, as determined by the Board of
Directors of ANACOMP, to perform EMPLOYEE'S assigned duties on a
full-time basis for any continuous period of one hundred twenty (120)
days or a total of one hundred eighty (180) days in any twelve (12)
month period, which period shall commence on the initial date of this
contract and every anniversary date thereof.
(b) The willful and continued failure by EMPLOYEE
substantially to perform his duties and obligations or the willful
engagement by EMPLOYEE in misconduct which is materially injurious to
ANACOMP, monetarily or otherwise. For purposes of this subsection, no
act or failure to act on EMPLOYEE'S part shall be considered "willful"
unless done or omitted to be done by EMPLOYEE in bad faith and without
reasonable belief that his action or omission was in the best interests
of ANACOMP.
3. Death
Death of an EMPLOYEE shall automatically terminate this
Agreement but any remedies ANACOMP may have against the estate of this
EMPLOYEE shall survive.
4. Resignation
EMPLOYEE may terminate the Employment at any time by giving
XXXXXXX written notice of his intention to resign.
5. Demotion, Transfer or Reduction in Compensation
A demotion, a transfer or a reduction in compensation may, in
EMPLOYEE'S sole discretion, be deemed a termination of the Employment.
6. Merger, Consolidation or Change in Control
If either of the following events occur:
(a) Substantially all of the assets of ANACOMP are sold or
ANACOMP is consolidated or merged with another corporation wherein
stock of ANACOMP is exchanged for stock and/or securities of another
corporation; or
(b) There is a change of control of ANACOMP of a nature that
would be required to be reported in response to Item 6(e) of Schedule
14A of Regulation 14A promulgated under the Securities Exchange Act of
1934 as in effect on the date thereof; provided that, without
limitation, such a change in control shall be deemed to have occurred
if (i) any person (as such term is used in Section 13(d) and 14(d)(z)
of the Exchange Act) is or becomes the beneficial holder directly or
indirectly, of securities of ANACOMP representing 25% or more of the
combined voting power of ANACOMP'S then outstanding securities, or (ii)
during any period of two consecutive years, individuals who at the
beginning of such period constitute the Board of Directors of ANACOMP
cease for any reason to constitute a majority thereof, unless the
election or nomination for election by XXXXXXX'S shareholders of each
new director was approved by a vote of at least 2/3 of the directors
then still in office who were directors at the beginning of such
period;
then in any such event, the EMPLOYEE shall continue to have
the benefit of and be subject to Section 1-5 of this Article V and
Article VI below.
ARTICLE VI
Payment and Obligations After Termination
If this Agreement is terminated by ANACOMP for cause or the Employment
is terminated by EMPLOYEE'S resignation, EMPLOYEE shall be paid only that part
of EMPLOYEE'S base salary accrued to the date of termination and EMPLOYEE shall
not be entitled to any month-end or year-end bonus not already paid or fully
earned except and to the extent required by law. If this Employment is
terminated due to the death or total and permanent disability of EMPLOYEE,
bonuses shall be paid on a pro rata basis computed through the date of
termination. If the Employment is terminated without cause or as a result of a
merger, consolidation or change in control, or the EMPLOYEE deems a termination
to have occurred due to a demotion, transfer or reduction in compensation,
EMPLOYEE shall be entitled to termination pay equal to EMPLOYEE'S previous
twelve months' total cash compensation, including bonuses, payable in a lump sum
or bi-weekly at EMPLOYEE'S option, and health benefits until other employment is
secured or for twelve months, whichever is sooner, and all his existing options
to acquire ANACOMP Common Stock shall immediately vest. All termination payments
shall be made within forty-five (45) days after termination. All termination
payments made pursuant to this Article VI or Article V shall be in full and
complete payment of any and all claims EMPLOYEE may have regarding his
employment or termination and EMPLOYEE hereby expressly waives all rights he may
have to any other payments.
EMPLOYEE agrees to return all property of ANACOMP, including, but not
limited to details of equipment, prices, specifications, programs, customer and
prospective customer lists, and any other proprietary data or objects acquired
through the EMPLOYEE'S employment with ANACOMP, within seven (7) days upon the
termination of employment, whether said termination be with or without cause.
ARTICLE VII
Restrictive Covenant and Non-Competition
Inventions and Improvements
Confidential Information
EMPLOYEE and ANACOMP shall enter into "EMPLOYEE'S COVENANT NOT TO COMPETE OR
DISCLOSE TRADE SECRETS" in the form attached hereto as Addendum II. In the event
of any conflict between the terms of this Agreement and such Covenants, this
Agreement shall govern.
ARTICLE VIII
Warranties and Representations
EMPLOYEE hereby warrants and represents as follows:
(1) That the execution of this Agreement and the discharge of
EMPLOYEE'S obligations hereunder will not breach or conflict with any
other contract, agreement or understanding between EMPLOYEE and any
other party or parties.
(2) That EMPLOYEE has ideas, information and know-how relating to the
type of business conducted by XXXXXXX and EMPLOYEE'S disclosure of such
ideas, information and know-how to ANACOMP will not conflict with or
violate the rights of any third party or parties with respect thereto.
ARTICLE IX
Remedies
The parties agree that the remedy for breach of this Agreement shall
include actions in equity for injunctive relief as well as money damages. The
remedies given to or reserved by ANACOMP hereunder shall be cumulative and not
exclusive of any other remedy available under law.
ARTICLE X
No Waiver
The failure of EMPLOYEE to terminate this Agreement for the breach of
any condition or covenant herein by the EMPLOYEE shall not affect EMPLOYEE'S
right to terminate for subsequent breaches of the same or other conditions or
covenants. The failure or either party to enforce at any time or for any period
of time any of the provisions of this Agreement shall not be construed as a
waiver of such provisions or of the right of the party thereafter to enforce
each and every such provision.
ARTICLE XI
Benefit
This Agreement shall bind, benefit, and be enforceable by ANACOMP, its
successors and assigns, and by EMPLOYEE, EMPLOYEE'S heirs, executors,
administrators, and legal representatives.
ARTICLE XII
Severability
Should any provision of the Agreement not be enforceable in any
jurisdiction, the remainder of the Agreement shall not be affected thereby.
ARTICLE XIII
Survival
The obligations contained in Articles VI and VII shall survive the
termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be executed as of the day, month and year stated on the cover page
of this Agreement, which Agreement shall be effective only upon approval by
ANACOMP, INC., as evidenced by the authorized signature of an officer of ANACOMP
below.
APPROVED BY:
ANACOMP, INC............... EMPLOYEE:
By: /X. Xxxx Xxxxx/........ /Xxxx X. Xxxx/
ADDENDUM I
TO
EMPLOYMENT AGREEMENT DATED OCTOBER 1, 1992
BETWEEN
ANACOMP, INC. ("ANACOMP")
AND XXXX X. XXXX ("EMPLOYEE")
Scope of Employment
XXXXXXX employs the EMPLOYEE in the capacity of Vice President, LAAP
and Canada Operations, and Senior Division Vice President.
Assigned Responsibilities
EMPLOYEE is responsible for managing the LAAP and Canadian operations
and for performing such other duties as may be assigned by the Chief Operating
Officer.
Base Salary
For all services rendered by EMPLOYEE under this Agreement, EMPLOYEE
shall receive a minimum Base Salary of $80,000 per year for fiscal year 1993,
beginning October 1, 1992. Base Salary will be reviewed at the beginning of each
fiscal year.
Incentive Compensation
Bonus
In addition to Base Salary, EMPLOYEE shall receive a minimum annual
bonus of $80,000 in fiscal year 1993, beginning October 1, 1992, based upon
meeting 100% of assigned objectives. The annual bonus and objectives shall be
established at the beginning of each fiscal year, but in no case shall the bonus
be less than $80,000 for meeting 100% of assigned objectives.
ANACOMP, INC............... EMPLOYEE
By: /X. Xxxx Xxxxx/........ /Xxxx X. Xxxx/
ADDENDUM II
CONFIDENTIALITY, NON-COMPETITION AND NON-DISCLOSURE AGREEMENT
In consideration of the employment or continued employment of Employee by
Anacomp, Inc. and its successors, assigns, subsidiaries, or duly authorized
representatives (hereinafter collectively referred to as "Anacomp") and of the
award of an option for the purchase of 25,000 shares of Anacomp, Inc. Common
Stock, par value $.01 per share, at a price of $4.63 per share (price to be set
on the date of award by Anacomp's Board of Directors), Employee hereby agrees as
follows:
1. Confidentiality and Trade Secrets. The Employee recognizes and acknowledges
that during the course of his/her employment, he/she will have access to and
become acquainted with confidential, trade secret and proprietary information
about Anacomp's businesses and customers (hereinafter collectively referred to
as the "Protected Information"). The parties hereto recognize that the Protected
Information available to Employee may pertain both to customers and accounts
handled by Employee personally as well as accounts with which Employee is not
personally involved. The parties agree that all Protected Information
constitutes a trade secret of Anacomp. Protected Information may include, but is
not limited to, the names, addresses, and requirements of any customer or
prospective customer of Anacomp; the terms (including price terms) of
contractual relations with such customers; special requirements of such
customers; the identities of individual contacts at such customers; and any
other information relating to Anacomp's research, operations, business
relationships, engineering data or results, specifications, concepts, methods,
processes, rates or schedules, vendor information, products or services
(including prices, costs, sales or content), financial information or measures,
business methods, future business plans, data bases, computer programs, designs,
models, operating procedures, and knowledge of the organization. The Employee
recognizes and acknowledges that all of the Protected Information is valuable,
special and essential to the successful and effective conduct of Anacomp's
business. Therefore, the Employee shall not, during his/her employment with
Anacomp or at any time thereafter, regardless of the reasons for leaving that
employment, use, disclose or communicate, directly or indirectly, any Protected
Information to any third party for any reason or purpose whatsoever, except as
required in the course of his/her employment with Anacomp. Further, upon the
termination of his/her employment with Anacomp, for any reason whatsoever,
Employee shall promptly return any and all copies of any written material,
documents, computer hardware and software, tools and equipment belonging to
Anacomp or relating to the business of Anacomp in his/her possession.
2. Non-Competition.
2.1 Non-Competition While an Employee or Consultant. While an employee
of Anacomp, or as a consultant to Anacomp after his termination of employment,
Employee agrees not to compete in any manner, either directly or indirectly as
an employee, consultant, investor or owner, whether for compensation or
otherwise, with Anacomp, or to assist any other person or entity to compete with
Anacomp. Further, while an employee of Anacomp, Employee agrees not to engage in
any other employment without the prior written permission of Anacomp
3. Non-Solicitation.
3.1 Non-Solicitation of Employees. During the term of his/her
employment at Anacomp and for two (2) years following the termination for any
reason of such employment, Employee agrees, either on his/her own behalf or on
behalf of any other person or entity, directly or indirectly, not to hire,
solicit, or encourage to leave the employ of Anacomp any person who is then an
employee of Anacomp. The foregoing restrictions shall apply to employees located
in all geographical areas where Employee performed services for Anacomp during
the two-year period prior to his/her termination, including areas for which
Employee had supervisory authority.
3.2 Non-Solicitation of Customers. Because of Employee's access to
Protected Information of Anacomp, Employee agrees that, during the term of
his/her employment at Anacomp and for two (2) years following the termination
for any reason of such employment, he/she will not, directly or indirectly, in
connection with the products and services offered by Anacomp and those products
and services which are competitive with the products and services of Anacomp:
(a) solicit, attempt to obtain, or in any way transact business with any
customers which were customers of Anacomp during his/her employment or at the
time of his/her termination; (b) aid or assist any other party in the
solicitation of any such customers; or (c) interfere with Anacomp's
relationships with any of its customers by soliciting such customers or inducing
them to discontinue their relationships with Anacomp. Products and services
which are competitive with the products and services of Anacomp include but are
not limited to: Micrographics Products (computer output to
microfilm-COM-equipment and software, cameras and film, processors, duplicators,
retrieval and display equipment and software, computer aided
retrieval-CAR-systems, readers, reader printers, other micrographics equipment,
micrographics equipment maintenance, micrographics consumable supplies and
accessories, records management software); Output Services (computer output to
microfilm-COM, source document microfilming, output of data to compact disk,
laser printing, conversion of paper and film to electronic images, micrographic
or electronic imaging system design, consulting and education, system
implementation and integration); Electronic Image Management Products (hardware,
software, magnetics products including tapes, tape drives and optical media
supplies, maintenance of electronic imaging equipment); and Electronic Image
Management Services (conversion of computer generated data to optical or laser
disk, COLD, electronic document imaging and workflow, conversion of paper
documents to electronic images, system design consulting and education, system
implementation and integration, conversion of microfilm to electronic images);
and Archival Services (storage, management and retrieval of all forms of
customer information and business records, including but not limited to paper,
microfiche, magnetic media and digital storage media). The foregoing
restrictions shall apply to all geographical areas where Employee performed
services for Anacomp during the two-year period prior to his/her termination,
including areas for which Employee had supervisory authority.
4. Remedies. Employee acknowledges that compliance with Sections 1, 2 and 3 of
this Agreement is necessary to protect the business and good will of Anacomp and
that a breach of those sections will irreparably and continually damage Anacomp
for which money damages may not be adequate. Therefore, Employee agrees that, in
the event he/she breaches or threatens to breach any of these Sections, Anacomp
shall be entitled to both a preliminary or permanent injunction in order to
prevent the continuation of such harm and money damages insofar as they can be
determined. Nothing in this Agreement, however, shall be construed to prohibit
Anacomp from also pursuing any other remedy, the parties having agreed that all
remedies shall be cumulative.
5. Inventions. Employee agrees that all inventions, improvements, discoveries,
systems, techniques, ideas, processes, programs, and other things of value made
or conceived in whole or in part by Employee while an employee of Anacomp shall
be and remain the sole and exclusive property of Anacomp, and he/she will
disclose all such things of value to Anacomp and will cooperate with Anacomp to
insure that the ownership by Anacomp of such things of value is protected.
Nothing in this Section is meant to apply to an invention for which no
equipment, supplies, facility or trade secret information of Anacomp was used,
which was developed entirely on Employee's own time, and which does not relate
to Anacomp's business, research, development or from any work performed by
Employee for Anacomp.
6. Employment. This Agreement does not confer upon Employee any rights to
continue in the employ of Anacomp or affect in any way Anacomp's right to
terminate his/her employment at any time.
7. Severability. If any provision or clause of this Agreement, or portion
thereof, shall be held by any court or other tribunal of competent jurisdiction
to be illegal, void or unenforceable in such jurisdiction, the remainder of such
provisions shall not thereby be affected and shall be given full effect, without
regard to the invalid portion. It is the intention of the parties that, if any
court construes any provision or clause of this Agreement, or any portion
thereof, to be illegal, void or unenforceable because of the duration of such
provision or the area or matter covered thereby, such court shall reduce the
duration, area or matter of such provision and, in its reduced form, such
provision shall then be enforceable and shall be enforced.
8. Binding Effect. The rights and obligations of this Agreement shall inure to
and be binding upon the parties and their respective heirs, successors and
assigns.
9. Attorneys' Fees. In the event of any dispute, proceeding or litigation
concerning any controversy, claim or dispute between the parties hereto, arising
out of or relating to this Agreement or the interpretation or breach thereof,
the prevailing party shall be entitled to recover from the losing party its
reasonable expenses, attorneys' fees, expert fees, and costs incurred therein or
in the enforcement or collection of any judgment or award rendered therein.
10. No Waiver. Anacomp's failure to enforce any provision of this Agreement
shall not in any way be construed as a waiver of any such provision, or prevent
Anacomp thereafter from enforcing each and every provision of this Agreement.
11. Entire Agreement. This Agreement represents the entire agreement between
Employee and Anacomp, with respect to the subject matter hereof, superseding all
previous oral and written communications, representations, understanding or
agreements.
12. Employee's Understanding. Employee represents and warrants that he/she has
read each and every term of this Agreement and understands the serious duties
and obligations imposed upon Employee thereby. Employee further represents and
warrants that he/she has had full and ample opportunity to question Anacomp
about this Agreement and each of its terms and to consult an attorney regarding
this Agreement and each of its terms. Employee represents that he/she is free to
enter this Agreement and to perform each of its terms and covenants. Employee
represents that he/she is not restricted or prohibited, contractually or
otherwise, from entering into and performing this Agreement, and that his or her
execution and performance of this Agreement is not a violation or breach of any
other agreement between Employee and any other person or entity.
Dated: October 11, 1996
ANACOMP, INC.
By: /Xxxx X. Xxxxxxxx/..... /Xxxx X. Xxxx/
--------------
Its: Vice President........ Employee (signature)
.................. Xxxx X. Xxxx
------------
.................. Employee (printed)
.................. President-International Group
-----------------------------
.................. Current position
.................. Poway, California
-----------------
.................. Current location
..................
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................ Social Security Number
Form 21 (revised 9/96)
